Study and Halachic Rulings – Lesson 36
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Leniency, stringency, and the role of the decisor versus the questioner
- “The Jewish Ark of Lies” and opposition to tailoring rulings to the individual
- Reasons, appeal, and consulting another sage
- A transgression for the sake of Heaven, “extra-halakhic,” and two divine wills
- Presenting views that are not the decisor’s own and the distinction between dispute and error
- The example of conversion, Rabbi Druckman, the judge from Ashdod, and Rabbi David Zvi Hoffmann
- Responsa versus a Jewish law book and halakhic writing style
- Minchat Shlomo, Ketav Sofer, "do not place a stumbling block," and presenting a leniency to the questioner
- Laws of doubt, pressing circumstances, “Rabbi Shimon is worthy to be relied upon,” and conduct versus determination
- "Do not place a stumbling block," autonomy, and the Ritva in Sukkah
- Ideologies of ruling and policies of leniency and stringency
- Academia versus the beit midrash, contextuality, and first-order halakhic ruling
- A descriptive perspective versus a participant’s perspective, and the controversy over teaching at the university
Summary
General overview
The speaker defines leniency as opening up more halakhic options for the questioner, and presents an approach according to which the role of the halakhic decisor is to sketch a “halakhic map” of possibilities with “price tags” indicating levels of prohibition, dispute, and pressing circumstances, while the practical decision is left to the questioner, who understands his own situation, fear of Heaven, and the prices he will have to pay. He opposes tailoring different rulings to different people and argues that this is dishonest, and he distinguishes between a conceptual dispute that should be presented to the questioner and a “mistake” that should not. Later he distinguishes between responsa and a Jewish law book, brings an example from Minchat Shlomo and Ketav Sofer about presenting a leniency even when those who prohibit disagree, and develops an explanation for how in pressing circumstances one can be lenient even in a Torah-level doubt by understanding the laws of doubt as rules of conduct rather than determination. Finally, he attacks a “policy of ruling” based on a desire to be lenient or stringent as a legitimate consideration, criticizes contextual academic analyses as irrelevant to first-order halakhic ruling, and sharpens the difference between an academic descriptive perspective and a beit-midrash perspective that plays from within the system.
Leniency, stringency, and the role of the decisor versus the questioner
The speaker states that leniency means opening more halakhic options, and that a lenient decisor differs from a stringent decisor in how many paths he opens. He argues that the role of the decisor is to lay out before the questioner all the permitted possibilities and note beside each one a “price tag,” such as a rabbinic prohibition, a Torah prohibition, a dispute among decisors, or a dispensation in pressing circumstances. He defines the decisor’s role as ending once the halakhic map has been drawn, and says that the decision of which path to choose is entrusted to the questioner and not the decisor, because only the questioner knows how pressing the situation is, what prices will be demanded of him, and what level of fear of Heaven he has. He rejects the notion that a decisor should “choose for the questioner” or “tailor” the ruling to the person standing before him, and says the decisor should give the same answer to all questioners and leave the choice to them.
“The Jewish Ark of Lies” and opposition to tailoring rulings to the individual
The speaker cites Nadav Shnerb and his article “The Jewish Ark of Lies” for the claim that giving different answers to different people is dishonest. He uses the example of three possible paths, in which a poor person might choose an economical path even if it is only post facto or subject to dispute, while a wealthy person might choose a more ideal path from the outset, and says this is the questioner’s choice and not the decisor’s tailoring. He clarifies that Jewish law is one for everyone, and that choosing between paths the law allows is not “personal law” but a decision outside the stage of halakhic ruling, so there is no “Shulchan Arukh for each individual,” and the decisor does not give permission to the poor and prohibition to the rich in the same case. He rejects attempts to present the determination as identifying a specific “divine will” that replaces Jewish law, and argues that Jewish law ends with mapping the possible paths, not with choosing among them.
Reasons, appeal, and consulting another sage
The speaker argues that the decisor is not obligated to give reasons, but he should indicate the meaning of the path, such as the level of prohibition, the existence of a dispute, or permission in pressing circumstances, rather than “the reasons for the ruling” as such. He states that there is no appeal from a decisor and cites the principle: “If one sage prohibited, his colleague may not permit.” He describes the historical debate around the establishment of the Chief Rabbinate, in which the British authorities demanded an appellate instance for religious courts, and notes that in religious courts the issue is more complicated and that there are hints in the Talmud of a right to receive reasons — “From where did you judge me?” — in order to enable an appeal, but he returns and emphasizes that with regard to a decisor there is no such thing as an appeal.
A transgression for the sake of Heaven, “extra-halakhic,” and two divine wills
The speaker presents “a transgression for the sake of Heaven” as something extra-halakhic, and argues that there is no halakhic permission for a transgression even if it fulfills God’s will in an exceptional situation. He cites Yael, the wife of Heber the Kenite, as an example of an act done to save Israel, and argues that it was done “against the law” and outside the formal boundaries, even if it did fulfill God’s will. He states that Jewish law does not include all dimensions of life and that there are decisions that are not halakhic decisions, and that a law book like the Shulchan Arukh does not write “laws” for transgressions done for the sake of Heaven, but at most this belongs to the ethical realm. He concludes that the topic will not be discussed in depth and returns the discussion to the role of the decisor in presenting halakhic paths.
Presenting views that are not the decisor’s own and the distinction between dispute and error
The speaker argues that in principle a decisor should present to the questioner even options with which he himself disagrees, because the questioner could have asked another decisor and received a different answer, and presenting the full picture includes such paths as well, with a “price tag” of risk and reservation. He distinguishes between a case in which he thinks another view is incorrect conceptually but cannot be absolutely refuted, and a case in which “it is clear to me that the other decisor made a mistake,” in which case this is not an option that should be presented. He emphasizes the distinction between an error in judgment and an error in an explicit Mishnah, and admits that there is not always a sharp line, but insists that there are situations in which a view is simply an error and should not be presented as a legitimate path.
The example of conversion, Rabbi Druckman, the judge from Ashdod, and Rabbi David Zvi Hoffmann
The speaker cites an article he wrote on conversion, “On Violence and Good Intentions,” in which he opposed Rabbi Druckman’s conversion policy and argued that in practice they were giving up acceptance of the commandments, and that “conversion without acceptance of the commandments is not conversion,” so the converts remain gentiles. He notes that during the uproar surrounding a judge from Ashdod, he thought that on the merits of the issue the judge was correct regarding the validity of the conversion, but rejected the claim that the other judges were “wicked” and therefore disqualified from judging. He describes a response from a law professor who argued that some later authorities do dispense with acceptance of the commandments, and cites Melamed Leho’il by Rabbi David Zvi Hoffmann as an apparent source for that, but says that in his opinion this is “simply a mistake,” even “an error in an explicit Mishnah,” and therefore should not be seen as a halakhic view to present to the questioner. He uses the example to argue that a decisor is not obligated to present “mistaken views,” even if they are written in a book and seem to an academic to be part of the map.
Responsa versus a Jewish law book and halakhic writing style
The speaker distinguishes between a book of responsa as an answer to a concrete question from a particular person, and a Jewish law book that deals with types of situations. He says that in an answer to a questioner one should draw a full map of relevant possibilities and views, whereas in a law book one may, and even should, write only one’s own opinion and support it, without being obligated to bring all the opinions. He criticizes the current practice of Jewish law books that present a “zoo” of opinions, and quotes Nadav’s expression of a “zoo” in which every decisor is “in his own cage.” He argues that a law book should present one substantive position and not be a catalog of opinions.
Minchat Shlomo, Ketav Sofer, "do not place a stumbling block," and presenting a leniency to the questioner
The speaker brings an example from Rabbi Shlomo Zalman Auerbach in Minchat Shlomo (part 1, section 44) about buying Sabbatical-year produce from a shopkeeper who relies on the sale permit. He cites Ketav Sofer (Yoreh De'ah, section 77), which says that someone who is stringent based on his own reasoning or according to the opinion of those who prohibit may give his own food to someone who follows the lenient practice, without violating “do not place a stumbling block” and without even assisting, even if the giver believes the lenient authority is “mistaken,” and even in a Torah prohibition. He notes Sha'ar HaMelekh (chapter 7 of the laws of marriage), who is stringent about giving a cigarette to someone who smokes on a Jewish holiday, and Ketav Sofer’s rejection of his proof, as well as the possibility of distinguishing between Torah-level and rabbinic prohibitions. He cites Rabbi Shlomo Zalman’s novel point that when two sages disagree and one prohibits while the other permits, then in a rabbinic matter there is room to tell the questioner the rule “in matters of the Sages, follow the lenient opinion,” even if the one who prohibits “cries out loudly” against the one who permits. In the speaker’s opinion this supports the idea that the decisor presents possibilities and the questioner decides.
Laws of doubt, pressing circumstances, “Rabbi Shimon is worthy to be relied upon,” and conduct versus determination
The speaker raises the difficulty that if the decisor presents two positions, then the questioner is in a legal doubt, and apparently should act according to the laws of doubt: in a rabbinic doubt, leniently; in a Torah-level doubt, stringently. He argues that in practice we see among decisors that leniency in pressing circumstances is possible even where a Torah-level doubt would have seemed to require stringency, and formulates the problem as how pressing circumstances can permit violating the law of doubt, which is itself part of Jewish law. He proposes a distinction between rules of determination and rules of conduct, and argues that the laws of doubt are rules of conduct that do not determine what the “truth” is, but how to act when the situation is defined as doubtful. He develops the idea that the rule of pressing circumstances allows choosing the lenient view in a way that removes the definition of the situation as a doubt for purposes of conduct, so that the rule “in a Torah-level doubt, be stringent” is not activated, because the situation is no longer being treated as a doubt. He compares this to the example of Rabbi Yonatan Eybeschutz and the priest regarding “follow the majority,” and stresses that the rule follows the majority only when there is a doubt; where there is no doubt, the rule does not apply. He suggests that in pressing circumstances the questioner may “join” a halakhic path, like the students of a lenient opinion such as Rabbi Shimon or Beit Shammai for that purpose, so that the decisor should at the very least also present opinions that were not ruled in practice if there is room to rely on them in pressing circumstances.
"Do not place a stumbling block," autonomy, and the Ritva in Sukkah
The speaker mentions that he previously discussed the Ritva in Sukkah in a case where he permits and the other person takes a stricter view, and argued that the problem there is harming autonomy if one does not inform him, not “do not place a stumbling block,” because from his perspective the thing is permitted. He distinguishes this from the opposite case, where he considers it prohibited and the other person considers it permitted, and there, in his words, this is “really do not place a stumbling block,” unless one argues that the other person is allowed to rely on a sage who reached a practical ruling, so it does not count as causing stumbling. He notes that the issue is not the main topic, but uses it to clarify his view of the relationship between disputes among decisors, responsibility toward the questioner, and presenting paths.
Ideologies of ruling and policies of leniency and stringency
The speaker describes that there are approaches of stringent decisors, lenient decisors, innovative decisors, and conservative decisors, and acknowledges that one can systematically characterize Beit Hillel as tending to leniency and Beit Shammai to stringency in most cases. He argues that a decisor himself should not rule based on a “policy of ruling” or a consideration of wanting to be lenient or stringent, and that such considerations belong to researchers rather than to the decisor within the act of ruling. He says that a decisor should say “what seems correct to him” on the merits of the issue and justify it substantively, even if in retrospect a researcher identifies a consistent tendency toward stringency. He adds that within his conception of the decisor’s role as drawing a map, the question of “lenient or stringent” becomes even emptier, because the questioner chooses the path, but it still has significance when writing a law book or when a decisor opens or closes options on the map, and even then the desire to be lenient or stringent must not be the decisive consideration.
Academia versus the beit midrash, contextuality, and first-order halakhic ruling
The speaker presents the academic analysis according to which halakhic disputes are explained by historical contexts, such as the claim that the sages of France during the Crusades were stringent in the laws of sanctifying God’s name in order to “raise the walls,” while the sages of Spain and Maimonides were more lenient in a calmer environment. He classifies this as “second-order” ruling that is irrelevant to a first-order decisor, because a first-order decisor rules according to what seems correct to him and not according to the context of the one who wrote the opinion. He argues that even if context influenced things subconsciously, in halakhic discussion what determines the ruling is the substantive reasoning and analysis, not the psychological or historical explanation for choosing them. He says that presenting Jewish law as stringent because of a social or historical need is dishonest, and distinguishes this from an explicit enactment, where someone with authority can legislate and present it as an added rabbinic enactment rather than as the primary law.
A descriptive perspective versus a participant’s perspective, and the controversy over teaching at the university
The speaker returns to the example of the law professor who argued that Rabbi David Zvi Hoffmann is “an existing opinion,” and explains that an academic describes a map of views and therefore must include everything that appears in the books, whereas someone operating “on the halakhic field” may determine that a view is an error and therefore does not count as a halakhic opinion. He compares this to the difference between someone describing a soccer game and someone playing it. He cites a controversy in the Shabbat supplement of Makor Rishon about Avinoam Rosenak in the Department of Jewish Thought at the Hebrew University, between an existentialist approach that seeks to develop a personal position and “the philological-historical school” that seeks to teach description and historical analysis of views. He notes that he wrote an article supporting the technocratic-descriptive position and argued that the university’s role is to describe and analyze, whereas constructing a personal position belongs to the beit midrash or to private work, and he concludes by emphasizing the constant distinction between academic description and determination and guidance within the halakhic system.
Full Transcript
[Rabbi Michael Abraham] Last time I dealt a bit — can you hear me well? There was a session where they couldn’t hear me so well. Is it okay? Yes, yes, we can hear.
[Speaker B] Yes, yes, we can hear. Okay.
[Rabbi Michael Abraham] Last time I talked about the question of what leniency is. What is leniency and what is stringency, when the motivation was basically to try through that to understand the role of a halakhic decisor in relation to someone asking him a question. I said that leniency basically means opening up more options. A lenient decisor versus a stringent decisor differ from one another in the question of how many options each one opens up. Whoever opens more options is a lenient decisor. Now from here I went on to say that this actually hints to us at a different conception of the role of the decisor. When someone comes to ask him a question, the decisor’s role is to lay out before him all the possible options by which he can act, and alongside them a price, a price tag. If you do this, it’s a rabbinic prohibition. If you do that, it’s a Torah prohibition. This one — there’s a dispute among the decisors. This one is possible in pressing circumstances. All kinds of things, where you can attach some kind of price tag to each of these options, and with that the role of the decisor ends. Meaning, from that point on, the question of what to do in practice is entrusted to the questioner, not to the decisor. After I’ve told you the halakhic map — I’m the halakhic expert. After I’ve told you the map, presented the halakhic map before you, the decision of what to do is yours. We talked about pressing circumstances and things like that, so I said that the only one who really understands how pressing the situation is, how important it is to him to keep Jewish law, what his fear of Heaven is and so on, what prices this will demand of him — the only one who truly understands that accurately is the questioner, not the decisor. And therefore the decision of which of the paths to take should really be left to the questioner. And the role of the decisor is only to present the alternatives. And contrary to what people often think — that the decisor is the one who should choose for the questioner the path that suits him. There are even those who greatly praise decisors who know how to “walk according to the spirit of each and every person,” as the midrash says, meaning that they understand who the questioner standing before them is and adapt the ruling accordingly. About that, Nadav — yes, Nadav Shnerb, a friend of mine — wrote an article called “The Jewish Ark of Lies”; I think I mentioned it. “The Jewish Ark of Lies.” And he basically argues that this is dishonesty. Meaning, to tell one person one ruling and another person a different ruling — that’s dishonest. The question is: what does Jewish law say in such a situation? The different situations people are in may affect the question of which path the person will choose. Let’s say that in such a situation there are three possible paths. A person who is very poor will choose the economical path, even if it is permitted only post facto or even if there are decisors who disagree with it. A wealthy person will choose the more ideal path, the one that is preferable from the outset, because for him money is not such a significant consideration. But that’s the questioner’s decision, not the decisor’s. And therefore the decisor should not tailor the ruling to the questioner and his circumstances; rather, the decisor should always give the same answer. Contrary to these very widespread conceptions, the claim is that the decisor should really give the same answer to everyone.
[Speaker C] Does the decisor have to give reasons?
[Rabbi Michael Abraham] No. Not necessarily.
[Speaker C] If you want to — but still, if the questioner wants to decide based on the reasons, maybe that will give him more room to decide.
[Rabbi Michael Abraham] No, it’s not a question of reasons. The question is what each path means. He certainly can tell him: this is a disputed path. This is a rabbinic prohibition. This is a Torah prohibition. This is something they allowed in pressing circumstances. Meaning, that he certainly does indicate. But those are not the reasons for the ruling; rather, they are the meaning of the ruling or the meaning of the path.
[Speaker C] And can one file some kind of appeal against the decisor? Go to someone else? Meaning, to a higher authority or something?
[Rabbi Michael Abraham] No. We’re not talking about a religious court, by the way; we’re talking about a decisor. With a decisor there is no appeal at all. On the contrary — “If one sage prohibited, his colleague may not permit.” Meaning, even if you go to a second one, he is forbidden to permit what the first prohibited. In a religious court it’s a more complicated story, although even there, in principle, there’s no such thing as an appeal. There was a debate at the time of the establishment of the Chief Rabbinate about this. Lord Bentwich — yes, the envoy of His Majesty’s government for legal affairs and so on, Norman Bentwich. So he basically accompanied the establishment of the Chief Rabbinate and all the discussion around it, and the demand of the British government was that there be an appellate instance. Without that they were not willing to allow rabbinical courts to be established here, which was basically the Jewish legal system here in the Land of Israel. They would not agree that such a thing should be established as long as there was no appellate instance, because this is a basic legal principle, that there should be an appellate instance. And there was a very, very big debate; various things were written about it, the question whether there is any room at all for appellate instances in the Torah legal system. It’s not all that simple, because there is the question of “From where did you judge me?” which appears in the Talmud, that a person has the right to ask the religious court to write down for him the reasons for the ruling. Why does he need the reasons for the ruling? Apparently because he is going to use them to appeal. So under some circumstances there may perhaps be some possibility of appeal. In short, in religious courts it’s a more complicated story, but with regard to a decisor there is no such thing as an appeal. Okay.
[Speaker B] But Rabbi, from the questioner’s point of view, then—
[Rabbi Michael Abraham] Obviously.
[Speaker B] If he gives him several options from among the decisors or things like that, then in the end he’s in a state of doubt, and then he’ll just act according to the laws of doubt.
[Rabbi Michael Abraham] I didn’t understand.
[Speaker B] If the Rabbi gives the questioner the two options, let’s say, within the direction of Jewish law, now it’s more comfortable for him to go according to the lenient side in the matter, but clearly from his perspective, since he’s not an expert and he doesn’t know, then for him the law is doubtful. And it’s a legal doubt, so why shouldn’t he simply act according to the laws of doubt?
[Rabbi Michael Abraham] So we talked about this last time, that in pressing circumstances one can even be lenient in a case of doubt.
[Speaker B] Yes, but the Rabbi brought the Maharam Mintz, that it’s only because—
[Rabbi Michael Abraham] That I brought earlier. I’m already at the next stage; I’m in the middle of the next stage, I just stopped in the middle. I’m still — we’ll get there in a moment.
[Speaker B] Ah, because we still don’t have the second explanation there. Rabbi Shimon — the Rabbi said he’d say it today. What?
[Rabbi Michael Abraham] That we rely—
[Speaker B] On Rabbi Shimon in pressing circumstances.
[Rabbi Michael Abraham] “Rabbi Shimon is worthy to be relied upon” — yes, yes, we’ll talk about that. So the claim basically is that the choice of which path to follow is given to the questioner, not the decisor, and the decisor in principle should give a uniform answer to all questioners, to sketch the map before them. Now just one small clarification.
[Speaker E] I didn’t really understand why this is “The Jewish Ark of Lies.” If Jewish law basically is, at root, personal, then the fact that maybe we can’t do that, but still to aspire to that is worthwhile — that the decisor should be so empathetic and know each person’s difficulty so well that he can indeed give a clear answer for the decision the person is making — but the role of the decisor, if there is such a role, is specifically to step into his shoes and at least try to aspire to that. No? Why not?
[Rabbi Michael Abraham] You can’t tell one person, “This chicken is permitted,” and another person, “This chicken is forbidden.” The question is whether it’s permitted or forbidden, okay? Yes or no. If you’re saying there are two paths, then say there are two paths; otherwise you’re lying.
[Speaker E] No, but if we are now — seemingly I understood, or I’m claiming and the Rabbi is claiming — that actually Jewish law is personal to each person, to his conditions and his faith and his level and all the circumstances of his life, his distress, his sensitivity, then it is a personal matter for each person and Jewish law is not one for everyone.
[Rabbi Michael Abraham] No, no, I didn’t say Jewish law is not one for everyone. Jewish law ends with drawing the map. The choice of which path to take on that map is not a question of Jewish law; it’s a question that you have to decide — which path are you taking.
[Speaker E] That doesn’t mean that now this is the law for him.
[Rabbi Michael Abraham] No. Halakhic ruling stops at drawing the map. When you decide which path to take, that doesn’t mean that’s the law for you. You’re deciding which of the paths that Jewish law allows you’re going to follow. Halakhic ruling is only the first stage.
[Speaker E] If, God forbid, we could write each person his own Jewish law, then each person would have his own Shulchan Arukh.
[Rabbi Michael Abraham] No, but there wouldn’t be a Shulchan Arukh for each person. Jewish law is one for everyone.
[Speaker E] So what is it that one chooses this option and one chooses that option?
[Rabbi Michael Abraham] Because once Jewish law allows several paths, then you can choose. And the choice can vary from one person to another. But that doesn’t mean that for you the law is path A and for him the law is path B.
[Speaker E] That’s the Jewish lie; maybe if anything that’s the Jewish Ark of Lies — the opposite of what Nadav meant. That actually it’s not true. It’s not true that the law is one and there are several paths; rather, the paths are really also determined by the person.
[Rabbi Michael Abraham] I didn’t understand — no. That’s what I’m claiming is not so. If you want to ask, then no. I didn’t understand the meaning of what you’re claiming.
[Speaker E] No, I don’t really understand — in the end it comes out as word games. If we’re only saying there is an inner choice, then Jewish law is sort of not fixed for every individual?
[Rabbi Michael Abraham] It can’t decide for him.
[Speaker E] Not the decisor — Jewish law. The divine will.
[Rabbi Michael Abraham] No, no, that’s exactly the point — even the Holy One, blessed be He, doesn’t decide for him. It’s not a different halakhic ruling; that’s exactly the difference, and it’s not word games. It’s a profound difference. It’s not a different halakhic ruling. Jewish law is one for everyone. There isn’t one Jewish law for you and another for him; Jewish law is one for everyone. It’s just that when Jewish law presents several paths, then a person can choose one of them, and any such choice is legitimate. That doesn’t mean that this choice is the law for him. No. Halakhic ruling is one for everyone.
[Speaker E] But it has many paths, so what is “the law”? If it has all the possible paths—
[Rabbi Michael Abraham] Then what kind of one law is that? Not all the paths. There are paths that are not possible. You draw the map of possible paths, not all paths. There are paths that are not possible. You cannot select on the Sabbath. That will not appear on the map as something you can do on the Sabbath. You can’t; it’s forbidden.
[Speaker E] We’ll find a way. What, if we purified the creeping thing with a hundred and fifty reasons and that’s what the reality will be, life-and-death need and all the possible circumstances — then we won’t find a way? What?
[Rabbi Michael Abraham] If you find a way, then there is a way. But if you’re just cheating—
[Speaker E] If we’re honest with ourselves and, as they say, we don’t believe in the Jewish Ark of Lies Nadav talked about but in some other ark, then we’ll see that it is possible.
[Rabbi Michael Abraham] I didn’t understand the question.
[Speaker E] Isn’t it an everyday reality that Jewish law is actually determined per specific situation?
[Rabbi Michael Abraham] No, it’s an everyday reality that this is how decisors behave, but they behave incorrectly.
[Speaker E] No, I’m saying decisors — decisors don’t behave like that. They supposedly rule from the book and supposedly think, supposedly believe, that it has nothing to do with the litigants themselves.
[Rabbi Michael Abraham] They decide for the person. That’s exactly the point. They decide for the person, and that is a mistake. The person has to decide, not the decisor. He can consult with the decisor, talk, hear his opinion — everything is fine. Even at the stage of the questioner’s decision, the decisor can accompany him. But that is the questioner’s decision, not the decisor’s. The decisor’s role is to draw the map, that’s all. All this consideration and accommodation toward each person and adapting Jewish law to each individual — it’s all simply an incorrect conception of what halakhic ruling is and what Jewish law is. Is this chicken forbidden for the rich person but permitted for the poor person? Of course not. If it’s permitted for the poor person, it’s permitted for the rich person too.
[Speaker E] Just like sometimes a transgression for the sake of Heaven is permitted, and just as things in reality are not that simple.
[Rabbi Michael Abraham] A transgression for the sake of Heaven is an extra-halakhic determination. I’m talking about options within Jewish law.
[Speaker E] So extra-halakhic? What, is there such a thing as extra-halakhic?
[Rabbi Michael Abraham] Of course. A transgression for the sake of Heaven is extra-halakhic. It’s a transgression. There is no permission in Jewish law to commit that transgression.
[Speaker E] That’s also a matter of definition, no? What does extra-halakhic mean? Is there a place where the Holy One, blessed be He, is not present, and there we operate differently from His halakhic will?
[Rabbi Michael Abraham] What does that have to do with the Holy One, blessed be He, not being present? I make a decision, and that decision is not a halakhic decision. When Yael, the wife of Heber the Kenite, lay with Sisera in order to kill him — where did we find permission to violate the prohibition of forbidden relations? She was a married woman.
[Speaker E] But she knew that the Holy One, blessed be He, wanted her in that situation to act that way in order to save the Jewish people. So that’s against Jewish law? To say that that is against Jewish law?
[Rabbi Michael Abraham] Was she a prophetess?
[Speaker E] I don’t know. Does the Rabbi want now to go into depth about what happened there historically? No, I don’t want to go into depth—
[Rabbi Michael Abraham] I’ll explain it to you without depth. She wasn’t a prophetess, and she decided that nonetheless it was right to do that. Right. That’s what she believed was the word of God.
[Speaker E] That’s what she believed — very nice—
[Rabbi Michael Abraham] But there is no halakhic permission to do that.
[Speaker E] But that’s exactly the point: that all of Jewish law is ultimately determined by human beings. In the end it emerges through dialogue and discourse with human beings.
[Rabbi Michael Abraham] That’s a deviation from Jewish law; that’s called a transgression for the sake of Heaven. That’s not Jewish law.
[Speaker E] It’s called a transgression for the sake of Heaven, but obviously that’s just caricature — they don’t really mean it was a transgression. She did a commandment.
[Rabbi Michael Abraham] In the end, did she do a commandment or did she commit a transgression?
[Speaker E] She committed a transgression for the sake of Heaven.
[Rabbi Michael Abraham] Did she fulfill the will of God?
[Speaker E] In the Rabbi’s view, did she do the will of God? I assume so. So God acted against Jewish law?
[Rabbi Michael Abraham] Yes, obviously. Outside the boundaries.
[Speaker E] Fine, okay. What clash? Fine, what is the clash between morality and Jewish law?
[Rabbi Michael Abraham] No—
[Speaker E] Morality — I’m not talking about morality.
[Rabbi Michael Abraham] There are two wills of the Holy One, blessed be He — so what? And one of them overrides the other. So does that mean that that is Jewish law? No. It means that morality overrode Jewish law in this case.
[Speaker E] Meaning, if we were to define Jewish law as the will of God, that doesn’t sound to me like what—
[Rabbi Michael Abraham] But the point is that Jewish law has its own rules, and you have to find permission for the thing you want to permit if it is forbidden according to the rules of Jewish law.
[Speaker E] Agreed, obviously. It’s not every man doing what is right in his own eyes.
[Rabbi Michael Abraham] Right. And if you operate outside Jewish law, then you can make a decision against the rules of Jewish law. You say: in this situation, I’m not working with the rules of Jewish law.
[Speaker E] I don’t think it’s a matter of semantics.
[Rabbi Michael Abraham] In my opinion it’s not. Halakhic permission requires justification.
[Speaker E] Obviously, I agree with that too.
[Rabbi Michael Abraham] This kind of permission has no halakhic justification. Fine, but leave it.
[Speaker E] If we came to Rabbi Yosef Karo and said to him: Rabbi, if the situation were to repeat itself — exactly, one-to-one, the situation of Yael the wife of Heber the Kenite—
[Rabbi Michael Abraham] Then he would tell you: as the author of the Shulchan Arukh I tell you it’s forbidden; as Rabbi Yosef Karo I suppose that in the view of—
[Speaker E] The Holy One, blessed be He, yes—
[Rabbi Michael Abraham] It would be proper to do that.
[Speaker E] So what should one do, Rabbi?
[Rabbi Michael Abraham] I’m asking—
[Speaker E] I’m asking Rabbi Yosef Karo: what should one do? Decide what you do. What should he write in the Shulchan Arukh, in that additional paragraph that he adds? There is no Shulchan Arukh for transgressions. There is a Shulchan Arukh for laws, not for transgressions.
[Rabbi Michael Abraham] So in the situation of—
[Speaker E] Yael the wife of Heber the Kenite, what would he write in the Shulchan Arukh?
[Rabbi Michael Abraham] He wouldn’t write it in the Shulchan Arukh. That’s not a situation that belongs in the Shulchan Arukh.
[Speaker E] That’s—
[Speaker B] It would be written in ethics.
[Speaker E] But that’s life. I’m not talking about morality right now.
[Rabbi Michael Abraham] In life there are all kinds of aspects. Jewish law is one of them, and it’s not everything. Fine, but leave it aside—doing a transgression for the sake of Heaven is really a topic we’re not going to get into here. So what I basically want to say is that the halakhic decisor is supposed to lay out before the questioner the different paths available to him, with price tags, and the questioner is the one who has to decide. But I want to comment on a point that came up at the end of last time. Suppose there’s something that I think is wrong, an approach that I think is incorrect, but there are halakhic decisors who rule that way. So I said last time—and there was some debate about this—that in principle you’re supposed to present those options to the questioner as well, even though you don’t agree with them. Because in the end that questioner could have gone and asked the other decisor, and he would have gotten a different answer. He doesn’t know that; I know that. So if I want to present him with the full picture, then I’m supposed to present him also with the answers he would have gotten from other decisors, even though I don’t agree with them. I’m not talking now only about paths that are all possible according to my own view, but even paths that I think are incorrect—but if there are decisors who say yes, then I can tell him: Look, I think this path is wrong, but there are decisors who do say yes. As far as I’m concerned, that’s part of the price tag attached to this path. Meaning, I’ll present this path too, and I’ll tell him: Listen, in my view this is wrong, but there are decisors who say yes. Now you decide—that’s the price tag. Now you decide whether you want to take that risk or not. In other words, that’s the price tag for that path, but it means that I’m also presenting paths that in my opinion are wrong.
Now here there’s a bit of room for hesitation. Someone asked this last time, I no longer remember who. Here there really is some room to wonder. Suppose we’re in a place where it’s clear to me that the second decisor made a mistake. There are differences between different kinds of disputes among halakhic decisors. There are situations where it’s clear to me that the other decisor erred. Clear to me. It could be that in such a situation I’m not supposed to present it, because in my eyes if he erred, then that isn’t really an option. If he had gone to ask the other rabbi and that rabbi would have permitted it, that would be a mistaken permission. So the fact that he could have gone to ask him and made a mistake—that’s not an option I’m supposed to present to him. So where was I speaking last time? In a situation where I think what he says is wrong, but it’s a matter of reasoning; he has different reasoning. So true, I believe in my reasoning, but I don’t have some clear proof against him. It’s not something absolute for me, where he is certainly and simply mistaken; rather, I have a different line of reasoning. Certainly, I think I’m right and he’s wrong, but it’s not something I can simply prove to him—that he’s mistaken, or what is called mistaken with respect to an explicit Mishnah, or things of that sort. In such situations I think you really do need to present the different paths, and the questioner is the one who has to choose between them.
This reminds me of a story from once. I wrote an article in Hakdamot about conversion, about the gates of conversion: “On Violence and Good Intentions” was the title of the article. And there I wrote against Rabbi Druckman’s conversion system and their conversion policy. I argued that they were basically giving up acceptance of the commandments—at least de facto, even though they don’t admit it. People there aren’t really accepting the commandments, and I don’t buy those stories. And conversion without acceptance of the commandments is not conversion. The people are simply gentiles. So, yes, basically like the Haredi criticism that there was then—the dayan in Ashdod, all the uproar that followed that whole affair—I thought that on the substance of the issue, the dayan from Ashdod was right. Even though I understand that if there are dayanim who think otherwise, they are decent people—I don’t turn them into wicked people the way he wanted to claim, that they are wicked and therefore conversion before them isn’t conversion at all, because wicked dayanim are disqualified from judging. That’s going too far. There’s a dispute here. I don’t agree with them, but that’s what they think, and they’re fine; they’re Jews too. If that’s what they think, then they’re doing what they think is right. I can’t invalidate their conversions because they’re wicked; I invalidate their conversions because in my view they’re invalid. Because I think that without acceptance of the commandments, it’s not conversion.
Then in some response article that was published afterward, someone wrote—he happened to be a professor of law—he wrote that there are later authorities (Acharonim) willing to forgo acceptance of the commandments in conversion. And therefore, it isn’t true that it is so clear and absolute that if there is no acceptance of the commandments, then the conversion is invalid. So I wrote in my article that there is no such thing—that is, whoever says that is mistaken with respect to an explicit Mishnah. He says, what do you mean? There are later authorities (Acharonim) who claimed such a thing. There were other arguments too, that it doesn’t appear in the Shulchan Arukh and so on; there are all kinds of arguments. The fact that it doesn’t appear in the Shulchan Arukh proves nothing. But the fact that there are later authorities (Acharonim) who argue this—that’s the interesting point for me. First of all, most of them don’t really argue this. But there is, it seems to me, Melamed Leho’il, Rabbi David Tzvi Hoffmann—there in one place or two places it really does seem to say that apparently one can forgo acceptance of the commandments in conversion. But what can I say? In my opinion it’s simply a mistake. So Rabbi David Tzvi Hoffmann wrote it; it’s written in Rashi script inside a black book with gold letters. That doesn’t mean it’s a halakhic opinion. It’s just a mistake. So if it’s a mistake, then now the question is: there is such an approach in Rabbi David Tzvi Hoffmann—what do we do with it? So that professor, yes, the one who wrote the article, wrote: “Look, there are also approaches willing to forgo acceptance of the commandments in conversion.” So I said—my response ultimately wasn’t published, they no longer had the energy to continue the discussion in the editorial system—but what I basically wanted to write was that as an academic researcher of this field, one dealing with Hebrew law, an academic researcher of this field is right from his own standpoint: every book by a halakhic decisor is, from his perspective, one of the opinions that exist on the halakhic map. Because he is supposed to describe the halakhic map. As an academic, he isn’t supposed to enter as a decisor and judge and decide who is right and who is wrong. If there is such an opinion, then from his standpoint he maps the field with all the opinions, including that opinion.
But I’m not writing that article as a researcher. I’m writing it as someone who is playing on the halakhic field. And I claim that on the halakhic level, what Rabbi David Tzvi Hoffmann says is a mistake. That’s all. And if he converts someone like that, the person remains a gentile. Therefore in such a case I don’t regard Rabbi David Tzvi Hoffmann—even though in his case it really is written there, and he’s almost the only one; in all the others people quote, it isn’t really written there—even in his case, where I think in one or two places at least it really does look like that’s what he says, I think that despite the fact that it’s written there, it’s simply a mistake. So therefore I still claim there is no such halakhic opinion even though Rabbi David Tzvi Hoffmann wrote it. Why? Because it’s simply a mistake. It’s not a question where we have this argument or that argument, reasoning this way or that way. In my eyes it’s simply a mistake. A mistake with respect to an explicit Mishnah.
Now in such a situation, to return to our case—I only brought that story as an illustration—in such a situation, if I’m standing before a questioner, I don’t think I need to mention to him that there is the opinion of Rabbi David Tzvi Hoffmann. Even though in principle he could go to another decisor who would answer him the way Rabbi David Tzvi Hoffmann did. Fine. So if that decisor would answer him that way, he would be making a mistake. And mistaken opinions are not something I need to present to him. There is a difference between saying, “I don’t agree with a certain halakhic opinion,” and saying, “That halakhic opinion is simply a mistake.” Those are two completely different statements, even though in both cases I rule as I think, and in my view whoever says otherwise is wrong. But he is wrong in a place where we have—it’s like the distinction in the Talmud between an error in judgment and an error with respect to an explicit Mishnah. Meaning, there can be a difference of judgment; I think this is right and that isn’t. But I understand that there is another judgment; someone thinks differently, fine, what can I do? I think he’s wrong, but there is such a halakhic opinion. But where we’re talking about a mistake, then it’s an error with respect to an explicit Mishnah. Meaning, there is no such halakhic opinion even though the person who wrote it is a halakhic decisor. Okay?
[Speaker E] Rabbi? Can I use the opportunity to ask one more religious question about this? I didn’t really understand. After all, I don’t know anyone who observes all the commandments. “There is no righteous person on earth.” So when someone says—he says—and no one really intends it.
[Rabbi Michael Abraham] Let’s not get into the conversion topic now; that’s a debate that isn’t our subject. I brought it as an illustration. So the claim I actually want to make is that when I stand before a questioner and there is an opinion that from my perspective is simply a mistake—not some position based on reasoning that I think is incorrect—that one I don’t think I need to present. So on this issue I do accept the comment that was made last time. But if there is an opinion from which I differ on the level of reasoning, I still need to present the existence of such an opinion to the questioner.
[Speaker F] Rabbi, Rabbi, sorry—in this case where there really is a line of reasoning that I present, how does that fit with the monism the Rabbi speaks about so much? Meaning that there is one halakhic truth. How can I be a monist and still present several possibilities?
[Rabbi Michael Abraham] I’m a monist because I think what I say is the halakhic truth. But I know there are also other opinions, and after all it’s possible that on the fundamental level I’m mistaken—not because they are also right, but because there is a chance that they are right and I’m wrong. Not because both they and I are right. Rather, I think I’m right. And what—when I thought I was right, have I never been mistaken? It’s possible that I’m mistaken. So I can’t categorically disqualify the other opinion.
[Speaker F] So if that’s the case, what’s the difference between that and when I don’t present a position because I think he’s mistaken? Meaning, if I understand correctly, what the Rabbi is saying now is that it’s not just error or truth, it’s not zero or one, there’s something in between.
[Rabbi Michael Abraham] No. I’m claiming that what the other one says is also a mistake, but since the debate between us is a debate in reasoning, and he has different reasoning—fine, there is such a halakhic opinion. I think it is incorrect, but there is such a halakhic opinion. But an opinion like Rabbi David Tzvi Hoffmann’s, say in the example I brought earlier, in my eyes is not a halakhic opinion; it’s simply a mistake. So here this is not a difference in reasoning, where you think this and I think that. It’s still true that this is what I think, but I understand that I think this way and others can think differently. I do not think both sides are right.
[Speaker E] Is there no universe in which Rabbi David Tzvi Hoffmann could be right and, Heaven forbid, the Rabbi wrong? What? Is there no possible universe in which Rabbi David Tzvi Hoffmann is right and, Heaven forbid, the Rabbi is wrong? In my opinion, no. In a complete mistake—is it even scientific to say that?
[Rabbi Michael Abraham] How do I know “scientific”? A complete mistake—I don’t know how to draw the lines. A complete mistake means it has no root or branch at all. Fine, in any case, that’s the claim.
[Speaker B] It seems to me that the distinction the Rabbi is making is a bit vague, because it’s not really error with respect to an explicit Mishnah or error in judgment. There isn’t a clear line here between an error with respect to an explicit Mishnah and an error in judgment.
[Rabbi Michael Abraham] Between an error with respect to an explicit Mishnah and an error in judgment there is no sharp line. Don’t live under illusions.
[Speaker B] Yes, right, but that’s exactly it. So I’m saying: even if the matter isn’t an error with respect to an explicit Mishnah, it has a source, but the sources seem to me—or to the decisor—ridiculous and really null and void, then I also won’t mention it.
[Rabbi Michael Abraham] I simply say that his sources are mistaken. What difference does it make to me whether he is mistaken or his sources are?
[Speaker B] Yes, no, I mean—but even in reasoning there’s room to say that I won’t have to mention that path if to me that reasoning is completely not…
[Rabbi Michael Abraham] I agree that in a place where the reasoning is so compelling and clear, then it may be that this too will count as an error with respect to an explicit Mishnah. I wouldn’t know how to set a sweeping line. Another comment I want to make on this matter: it’s clear that everything I’ve talked about here—I spoke in the past about the differences between a book of responsa and a book of Jewish law. A responsa book is a halakhic answer to a concrete question about a certain situation of a certain person. And a book of Jewish law deals with a type of situations. Suppose I write about a certain type of non-kosher defect in a chicken, then I write: this type of defect in a chicken disqualifies it from being eaten, forbids it for consumption. I wrote a book of Jewish law and there I wrote that statement, okay? That’s a book of Jewish law. But if a person comes before me with a specific chicken, and I found that type of defect there, and I disqualified his chicken from being eaten—that’s responsa, not a book of Jewish law, even though it’s exactly the same statement. The context is responsa versus a book of Jewish law. The question is whether you’re talking about a specific case or a type of cases. Okay?
Why am I saying this? Because obviously everything I’ve said up to now refers only to an answer to a specific questioner, to responsa. If someone comes and asks me a question, or sends me a written question, doesn’t matter, and I answer him—I’m answering him with a responsum for a specific case. In that case I need to sketch out the full map before him. But if I’m writing a book of Jewish law, in a book of Jewish law I don’t have to write all the halakhic opinions. In a book of Jewish law I can write my own opinion. And that’s it. That’s what I think. Whoever wants can rely on it; whoever doesn’t want to won’t rely on it. In response to a specific question I need to sketch the map, because I’m the one giving an answer to a person. But when I write my own book, a book of Jewish law, there I can spell out only my own opinion, support it, explain that everyone else is mistaken, and present only the correct opinion. There is no obligation in every book of Jewish law to present all the opinions, contrary to what people do today. Today, books of Jewish law usually present all the opinions. They bring in—this one thinks this way, that one thinks that way—a kind of zoo. Also Nadav’s expression. A zoo: you put every decisor in his cage. In this cage there’s the tiger, in this cage there’s the monkey, in this cage there’s the leopard. Meaning, books of Jewish law today are built like a zoo. This one writes this way, and that one says that way, and he thinks this way, and that’s it. A book of Jewish law—you’re supposed to ground your own opinion and write your own opinion. But that’s a book of Jewish law, not an answer to a specific case. You’re claiming that in this type of cases, in my opinion, that is the Jewish law. So that’s another comment on what I said last time.
Now I want to show you an example from Rabbi Shlomo Zalman in Minchat Shlomo. He deals with buying Sabbatical-year produce from a shopkeeper who relies on the sale permit. Is it permitted for the shopkeeper? Is it permitted for me to cause others to stumble if I rely on the sale permit and someone else does not rely on it? So he writes as follows. This is part 1, section 44: “And also the Ketav Sofer in Yoreh De’ah section 77, even though he knew nothing at all of the Mabit, nevertheless arrived at the same conclusion and even added several proofs and wrote that one who practices prohibition in some matter based on his own reasoning, or because he follows the view of those who prohibit, is permitted to give of his own to one who practices permissibility. And this does not involve ‘do not place a stumbling block’ nor helping the hands of transgressors, since his fellow too knows that there are those who prohibit, except that he acts like those who permit. And also the Ketav Sofer concludes that even in a case such as this, where the giver believes it is certainly prohibited, and in his view the one who permits is simply mistaken—even so, it is permitted.”
This I’m not sure I accept, but he takes it further, contrary to the distinction I made earlier. “And although he brings from Sha’ar HaMelekh, chapter 7 of the laws of marriage, that one who is stringent not to smoke on a Jewish holiday is forbidden to hand a cigarette to one who permits it because of ‘do not place a stumbling block’”—he may not give a cigarette to someone who smokes on a Jewish holiday because he thinks smoking is forbidden; the question is whether it counts as food preparation or not—“see there, where he rejects his proof,” and so on, “and he marvels that Sha’ar HaMelekh contradicts himself, and he wrote: since the proof of Sha’ar HaMelekh is rejected at its root, we stand by our words, which God has illuminated and shone for us in this matter.” End quote. And it is clear from the Ketav Sofer that he permits this even with a Torah prohibition. So even in a Torah prohibition, if someone says the thing is permitted and I think it is forbidden, I’m allowed to cause him to stumble in something that according to my own view is forbidden, if according to his view it is permitted. At any rate, in our case, where it is only rabbinic—the sale permit, where the Sabbatical year in our time is rabbinic—then it may be that even Sha’ar HaMelekh, who wrote in the laws of marriage to be stringent, meant that only regarding smoking on a Jewish holiday, which is forbidden by Torah law, but in rabbinic matters perhaps even he agrees.
Now he continues and says as follows: “And I think that one who comes to ask two sages, and one forbids and one permits, since the rule is that in matters of the Sages one follows the lenient opinion, as is written in tractate Avodah Zarah, it stands to reason that even if the one who forbids is standing there crying out like a town crier that the one who permits is mistaken, nevertheless, if the one who permits is also a sage qualified to rule, it seems that if after the end of the debate between the forbidding sage and the permitting sage, the questioner should return and ask them again, ‘How should I act?’ it stands to reason that even the one who forbids must tell him that rule—that in rabbinic matters one follows the lenient view.”
Meaning, there is a dispute between two decisors: one forbids, the other permits. The decisor who forbids thinks the decisor who permits is mistaken. Now the questioner comes to ask him. So he has to tell him: listen, there is also another decisor who is lenient, and with a rabbinic doubt, we are lenient. In a rabbinic prohibition, a rabbinic doubt is ruled leniently. Even though I think the other one is mistaken, I still need to present before him the position of the second decisor, and tell him that with a rabbinic doubt we are lenient, and therefore you can choose.
[Speaker B] That I understand, because it’s with respect to the questioner. But what he said above about ‘do not place a stumbling block’ I didn’t understand.
[Rabbi Michael Abraham] The ‘do not place a stumbling block’ issue is less important to me. He links the two questions together. Obviously one can distinguish between them, but he links the two questions together. And therefore he claims that if someone comes to ask me, I need to tell him also the position of the person I think is mistaken, and tell him that it is a rabbinic doubt—or at least, according to my own approach, at least give him the option to choose. The Ketav Sofer—and that’s what I emphasized before, which is why I read the earlier passage—because the Ketav Sofer says his rule even with Torah prohibitions: that I’m permitted to cause someone else to stumble, someone who thinks the matter is permitted, while in my opinion it is forbidden—still I may cause him to stumble. And if Rabbi Shlomo Zalman links that to our question, then at least according to the Ketav Sofer it comes out that even in Torah-level questions, if someone comes to ask me and there are lenient views, I’m supposed to tell him there are also lenient views. True, in Torah matters a Torah-level doubt is ruled stringently, so what practical difference does it make if I forbid and there is a lenient opinion? Still, in a case of doubt, the questioner is supposed to be stringent. I claim that is not correct, and that brings me back to the question that was asked here earlier: there are the laws of doubt. So apparently even if I presented him with several paths, the questioner is supposed to be stringent because he is in doubt. So I claim that is not correct. The questioner can choose; in a pressing situation at least, he can choose another path. Okay? Even though a Torah-level doubt is ruled stringently—and I still owe you an explanation of that. I said I’d get to that shortly, to explain why one can be lenient in a pressing situation even though it is a doubt.
So that’s basically the claim. Meaning, the claim is that at least according to Rabbi Shlomo Zalman, he says this only in rabbinic prohibitions, because he ties it to the rule that a rabbinic doubt is ruled leniently. But I claim one should do this even in Torah matters, because this is not connected to the laws of doubt. I claim that quite apart from the laws of doubt, if there are several possible paths and you are uncertain between them, then present them all with the appropriate price tag, and the questioner is the one who will have to choose. It could be that because of the laws of doubt, the questioner will need to be stringent in Torah matters—but I’ll get to that in a moment and argue that not necessarily.
[Speaker B] By the way, this isn’t related here, but I just want to be clear: the Rabbi also doesn’t agree with the ‘do not place a stumbling block’ point, because if I remember right, the Rabbi discussed it there with the Ritva in tractate Sukkah.
[Rabbi Michael Abraham] I discussed it, yes, right, with the Ritva in tractate Sukkah. I discussed it, and the Ritva does not agree. Meaning, I discussed it, but in the opposite case: if I permit and the person being caused to stumble takes the strict view. So in such a case, the Ritva’s claim is that in principle it is permitted, because the Sages…
[Speaker B] There they said—but…
[Rabbi Michael Abraham] Only if I tell him that—meaning, I draw his attention to it: note that this is something that according to your own view is forbidden. But in principle I am allowed to cause him to stumble; I spoke there about autonomy and so on. Here we are dealing with the opposite case: I think it is forbidden, and I cause him to stumble in something that according to his own view is permitted. Okay, that is not the same case, even though I think that in my own personal opinion this is…
[Speaker B] The same direction, yes, it’s the same…
[Rabbi Michael Abraham] The same direction, and even more severe, actually. I claim that such a situation is certainly forbidden. In the Ritva’s case there is still room for doubt; this case is certainly forbidden. Because in that case, the Ritva’s case, I explained that really I am not violating ‘do not place a stumbling block’; I am harming his autonomy. In terms of ‘do not place a stumbling block,’ since I’m a monist, I think it is permitted, so I did not cause him to stumble in a prohibition; I caused him to stumble in something that in my opinion is permitted. And if in my opinion it is permitted, then I go by my opinion—what do I care if he thinks otherwise? Why do I still need to tell him about it or draw his attention to it? Because I am forbidden to harm his autonomy, not because of the laws of ‘do not place a stumbling block.’ But from the standpoint of ‘do not place a stumbling block’ there is no problem. But if I move now to the opposite case—I think it is forbidden and the one being caused to stumble thinks it is permitted—then here I have violated ‘do not place a stumbling block’ in the full sense.
[Speaker B] Yes, that’s what I wanted to clarify—that the Rabbi…
[Rabbi Michael Abraham] Even before the question of autonomy, here it is a halakhic prohibition of ‘do not place a stumbling block.’
[Speaker B] Right, right, according to his conception of the path.
[Rabbi Michael Abraham] It could be—perhaps there is room to argue—that since he relies on a sage who is also qualified to rule and says it is permitted, and since he is allowed to rely on that sage, then this is not called causing him to stumble. One could make such a claim, and then it could be that it really would be permitted to cause him to stumble. Because he is allowed to rely on the other sage, even though I think the other sage is mistaken. Fine, there is room to hesitate about that, but that is not our topic here.
So this Rabbi Shlomo Zalman, or really the Ketav Sofer as quoted in this passage from Rabbi Shlomo Zalman, I think they are not a bad source for the claim I made earlier: that basically the role of the halakhic decisor is to present the options before you; the choice between the options is your decision. Now, what is that decision? So apparently—and here I come to the question that was asked here earlier—apparently the decision should go according to the laws of doubt, just as Rabbi Shlomo Zalman himself assumes. If it is a rabbinic doubt, you can be lenient; if it is a Torah-level doubt, you need to be stringent. So basically, at least in Torah matters there is no point in presenting the positions; just present the strict view, because in any case he needs to choose it because of the laws of doubt. But I claim no. I claim that “Rabbi Shimon is worthy to be relied upon in a pressing situation,” even in a place where there really is a doubt between two decisors, two views, and in a Torah-level doubt apparently one should be stringent—still, in a pressing situation one may be lenient, and in the halakhic decisors you definitely see that.
How does that fit with the laws of doubt? That is basically the question I asked in the previous lesson. After all, the laws of doubt are also part of Jewish law. So how can it be that I tell a person to go against Jewish law because he is in a pressing situation? If Jewish law says that in a case of doubt you have to be stringent, then Jewish law says here to be stringent. I don’t care that it’s because of doubt; doubt too is a halakhic rule. So in practice, Jewish law tells me here to be stringent. So how can it be that because I’m in distress, it’s a pressing situation, I’m allowed to violate Jewish law? What, would I also allow you to violate definite Jewish law in a pressing situation? No. So why, in the law of doubt—what is different? The law of doubt is also Jewish law. How is it different?
Here I want to make the following claim. There are situations in which—let me formulate it this way—the question whether a Torah-level doubt is ruled stringently, or in general whether halakhic rules are rules of decision or rules of conduct, is a question that arises about such rules. Right? For example with presumption: when in doubt we follow the presumption. Is that conduct or decision? What does that mean? Does the presumption actually tell me what the halakhic truth is here? Or is presumption a rule for how I should act in a situation where I’m in doubt? After all, it didn’t really resolve the doubt; I’m still in doubt. For example, that question comes up regarding presumption—these questions arise regarding all kinds of rules for resolving doubt, yes, majority and proximity, or all kinds of rules for deciding doubtful cases. The question arises regarding them whether they are decision or conduct.
Now, if I assume—and this is how I think, and probability suggests—that the general rules of doubt are rules of conduct, not rules of decision, then when we say that a Torah-level doubt is ruled stringently, it doesn’t mean that this rule says the stringent view is the correct one. No, I’m still in doubt. It’s just that the rule tells me how to act when I’m in doubt, right? It is plainly a rule of conduct. It is not a decisive rule. Okay?
[Speaker B] On that there isn’t even a debate, is there Rabbi? What? That’s obvious, isn’t it? There isn’t even a debate about that, right? About what? About a Torah-level doubt being ruled stringently—no one says that’s because it shows that the stringent view is the correct one.
[Rabbi Michael Abraham] No, I’m not sure. Right now I don’t remember that it’s so absolutely obvious, but maybe there is room to hesitate. Because when we talk about a rule—after all, even with presumption, what is the side that says it resolves the matter? Presumption doesn’t resolve anything. What does it resolve? The original presumption.
[Speaker B] The original presumption is like, in your world, something like that.
[Rabbi Michael Abraham] The ritual bath was valid a week ago; now I know it is lacking. Someone immersed in it the day before yesterday. So the rule is that we leave the ritual bath on its original presumption. Let’s leave aside the presumption regarding the impure person, Rabbi Akiva Eiger and all that—whether we follow the presumption of the ritual bath or the presumption of the impure person. But setting that aside, in terms of the ritual bath’s presumption, we leave the bath on its presumption, and that bath is valid, and therefore the person who immersed is pure. Do you really want to tell me that this presumption is proof that the bath really was full two days ago? It’s lacking now. How do I know when it became lacking? Maybe that happened a day earlier. The presumption doesn’t really resolve the doubt. So what is the basis for saying presumption is decision and not conduct? The claim is that we need to relate to it as if there has been a decision. Meaning, from our halakhic standpoint it is as though the doubt was resolved. Not that there was really some statistical resolution, yes? Rather, that itself too is a rule of conduct. The conduct is to relate to the thing as a decision and not as mere conduct. Okay? And that’s what I think in most cases when people discuss whether it’s conduct or decision: it’s clear that it’s conduct. The only question is what the conduct says. Does the conduct say to treat it as though the doubt was resolved, or is it a form of conduct where the doubt remains unresolved? Why is that important? Let’s see here.
If I have a doubt before me, and the laws of doubt tell me that a Torah-level doubt is ruled stringently—now if the rule of doubt tells me that I actually need to treat this as though the doubt has been resolved and now there is a prohibition here, then this really is a hard question: how can I in a pressing situation allow someone to be lenient? After all, he is basically going against Jewish law, and a pressing situation does not permit violating Jewish law. But if I understand this as a rule of conduct, then at least the possibility opens up—it’s not necessary, but at least the possibility opens up—to instruct him permissively. Why? Because now I ask: there is another rule. The rule says that in a pressing situation I can follow the lenient opinion. Now the question is whether the rule of conduct that says a Torah-level doubt is ruled stringently, or the rule of conduct that says in a case of doubt I can rely on Rabbi Shimon—“Rabbi Shimon is worthy to be relied upon in a pressing situation”—which one comes first? They are both rules of conduct.
[Speaker B] But the Rabbi already noted this—there is no such rule. The Rabbi pointed this out last week. There is no such rule. Where did the Rabbi invent this from? There’s no source for that.
[Rabbi Michael Abraham] I want—right, there is no source for that—and I want to claim that what the Sages are basically saying is that if I’m in doubt, I can go in the lenient direction in a pressing situation, choose the lenient direction, because after all that too is legitimate. And if I am not in doubt, then the rule that a Torah-level doubt is ruled stringently doesn’t apply to me, because after all I’m not in doubt. Meaning, if I first apply this principle of following Rabbi Shimon in a pressing situation, not second but first, then that basically means that the state I’m in, at least de facto, is no longer a state of doubt. So why should I apply to it the halakhic rule that a Torah-level doubt is ruled stringently? After all, I’m not in a state of doubt. Meaning, if I apply the rule that a Torah-level doubt is ruled stringently second and not first, then it isn’t true what I said earlier—that a Torah-level doubt is ruled stringently, and now Jewish law says to be stringent, so how can you allow someone to be lenient? You’re allowing him to violate Jewish law in a pressing situation. No. The rule to be stringent in a pressing situation speaks about states of doubt. But who says that if I’m in a pressing situation, I’m in a state of doubt? I’m allowed not to be in doubt if I’m in a pressing situation. And this even emerges from reasoning. I’m allowed not to be in doubt in a pressing situation. And if I’m not in doubt, then the rule that a Torah-level doubt is ruled stringently will not apply to me.
[Speaker B] But I didn’t exactly understand what the Rabbi is saying here. What does it mean that you are allowed not to be in a state of doubt? Are you in a state of doubt or not? That’s a factual question. If I don’t know whether Rabbi Shimon or Rabbi…
[Rabbi Michael Abraham] Judah is right, then it’s…
[Speaker B] A matter of self-honesty?
[Rabbi Michael Abraham] No, it’s not self-honesty. The question is from the standpoint of Jewish law. We see—it’s not a statistical question whether I’m in doubt or not. It’s a question whether from the standpoint of Jewish law we regard such a situation as a state of doubt to which the laws of doubt apply or not. It’s like the well-known story about Rabbi Yonatan, which I’m very fond of. The priest came to Rabbi Yonatan Eybeschutz and said to him: after all, we are the majority, the Christians. And it says in the Torah, “Follow the majority.” So basically you ought to act like us. Why don’t you act like us? So Rabbi Yonatan Eybeschutz told him that the rule of following the majority is a rule said about situations of doubt. I am not in a state of doubt, so there is no need to follow the majority. Okay? Like the case of most stores—that’s the example. There are mostly non-kosher butcher shops in town. And I found a piece of meat in the market, on the street, but it has a premium kosher seal on it. Do I need to declare that piece non-kosher because most of the shops here sell non-kosher meat? No. Why not? After all, there is a rule to follow the majority. No. You follow the majority only if I am in a state of doubt; then the rule of conduct is to follow the majority. But if I’m not in doubt, then the rule that obligates me to follow the majority doesn’t apply to me. And if there’s a kosher seal here, then this isn’t a doubtful piece, so I know it’s kosher, and there is no reason at all to follow the majority. Obviously, obviously.
Here I want to say something similar. Maybe it isn’t exactly the same thing, but I want to go in a similar direction. I want to say that the permission to follow the lenient opinion in a pressing situation is a permission that basically tells me: you’re allowed to choose that opinion and ignore the existence of the other opinion. And then I’m basically saying: you can treat this situation as though from your standpoint it is not a doubtful situation but rather the Jewish law.
[Speaker B] What is the source for that, Rabbi? What is the source for that? That’s what the Rabbi asked earlier—I don’t understand the difference.
[Rabbi Michael Abraham] No, because I claim that this determination is not a halakhic decision. You need to define a situation as doubtful, and then the rule is that a Torah-level doubt is ruled stringently. The definition of the situation as doubt is a definition that can come from reasoning. Is this indeed a state of doubt or not? For example, there is immediate doubt and non-immediate doubt, doubt whether there is a prohibition here and doubt whether there is no prohibition here—where is the source for all these? It’s all reasoning. The reasoning defines when a situation is defined as doubt. And now comes the halakhic rule that says that in a doubtful situation you need to be stringent. The reasoning that says that if there are two opinions, you can take the lenient opinion if you are in a pressing situation—that is reasoning which says that in such a case you are allowed not to see it as a state of doubt. Consequently, the rule that a Torah-level doubt is ruled stringently will not apply to you.
[Speaker B] What, this is halakhic reasoning? To say—no, this isn’t a halakhic position.
[Rabbi Michael Abraham] It is reasoning that says whether I define this situation as a doubt. After all, just because there are two halakhic opinions here, who says such a situation is even a state of doubt? In my case the law is doubtful because it’s doubtful to me—a doubt in reality and not a legal doubt. The reasoning says that a legal doubt too is a doubt. Okay, so the reasoning also says that in a pressing situation I can choose one opinion and not be considered to be in a state of doubt.
[Speaker B] Even though I have doubt? I don’t understand—what does that mean?
[Rabbi Michael Abraham] Statistically I have doubt.
[Speaker B] And I can say—and I can act—and you ignored them; sometimes you ignore them.
[Rabbi Michael Abraham] Why?
[Speaker B] Because it’s convenient for me.
[Rabbi Michael Abraham] No, not because it’s convenient for me, because it’s a pressing situation, because otherwise it’s difficult for me.
[Speaker B] Yes, because it’s convenient for me, yes, of course.
[Rabbi Michael Abraham] It’s convenient for me and it’s difficult…
[Speaker B] …for me otherwise—it’s not the same thing. Fine, but that’s…
[Rabbi Michael Abraham] That’s the explanation I found for this matter, that “Rabbi Shimon is worthy to be relied upon in a pressing situation,” if we don’t go like the Rema. The Rema says that basically the Jewish law follows Rabbi Shimon, and it’s only a stringency not to follow Rabbi Shimon, but in a pressing situation one need not be stringent. That’s clear. But there are examples, and many halakhic decisors, who don’t really go that way. Even in the Rema himself it isn’t entirely clear that with all his leniencies that’s really how it works. But in other halakhic decisors it is certainly not true. Even in topics where it says, “Rabbi Shimon is worthy to be relied upon in a pressing situation,” in some of those topics the halakhic decisors rule like Rabbi Judah. And nevertheless they follow Rabbi Shimon in a pressing situation. The only explanation I can think of is the explanation I gave here: that in a pressing situation you are allowed not to see this state as a state of doubt. Yes, if there is someone who thinks that way, you are allowed to rely on him because you are in a pressing situation. So you could say—define yourself. After all, suppose I am—if I am his disciple. Suppose Rabbi Judah and Rabbi Shimon disagree; suppose I were a disciple of Rabbi Shimon. If I were Rabbi Shimon’s disciple, then I would go like him. Beit Shammai and Beit Hillel—Beit Shammai continued to act according to their own view even after the heavenly voice came out and said that the Jewish law follows Beit Hillel. Meaning, if I am a disciple of Shammai or of Beit Shammai, then I act like Beit Shammai. Someone who doesn’t belong to either school and is in doubt—the rule is that the Jewish law follows Beit Hillel. So if I’m a disciple of Shammai or of Beit Shammai, I act like Beit Shammai. Now, if you are in a pressing situation, you are allowed to attach yourself to Beit Shammai and be considered like one of their disciples for this issue, if they have a lenient opinion in such a case. You are seen like their disciple, and then the laws of doubt do not apply to you. That is basically the claim. So that’s… fine, there’s more…
[Speaker D] Why, basically—what’s really the reason that in a pressing situation I’m allowed to do this sort of mental flip?
[Rabbi Michael Abraham] I can’t hear.
[Speaker D] Why exactly is it permitted for me, in a pressing situation, to do this whole mental reversal?
[Rabbi Michael Abraham] Think about it: if you are in a pressing situation, and after all there is an opinion that says it is permitted to do this, and there is a sage who says it is permitted to do this, and that sage’s disciples do it that way even not in a pressing situation, then in a pressing situation you are allowed to count as his disciple for this matter, so that you may be lenient. It’s a matter of reasoning.
[Speaker B] Wait, so according to that, the Rabbi is saying this applies only to the questioner and not to the decisor? The decisor can’t do this for himself?
[Rabbi Michael Abraham] Right. “Rabbi Shimon is worthy to be relied upon in a time of pressing need” — that is a statement to the questioner, not to the halakhic decisor. Because the questioner has to choose which path to follow. But obviously, if the decisor understands that this may be a case of pressing need, then the decisor has to lay out before him views that in fact were not accepted as normative Jewish law — which goes even further than what I said earlier. Earlier I said that I present all the views even if I disagree. Here we are talking even about views that were not ruled as normative Jewish law. If you are allowed to rely on them in a time of pressing need, then the decisor is supposed to present them to you; otherwise how would you know? That is much more far-reaching. Meaning, that says something about the decisor too, not only about the questioner: he at least has to present those paths. After that, the questioner will choose whichever path he chooses. Fine. I don’t remember whether I sent you the article, and if not, I’ll send it this time, about leniency and stringency. There are some other interesting points there about what leniency is and what stringency is, but that’s not my topic here. I used the question of leniency and stringency here in order to present the role of the decisor as opposed to the role of the questioner. My goal was not to clarify what leniency and stringency are. I did that clarification in order to move beyond it and understand what the relationship is, or how the roles are divided, between the decisor and the questioner. So that’s… so with that I’m finished for now.
Now I want to make a few more remarks that really do touch on the role of the decisor. There are all kinds of approaches or ideologies of halakhic ruling. There are decisors who are stringent, there are decisors who are lenient, innovative, conservative, original, all kinds. There are all kinds of characteristics of a decisor, of decisors, or of methods of ruling. And you can see, I think, fairly systematically, that in most cases Beit Hillel tends toward leniency and Beit Shammai toward stringency — not always. There are rulings in which Beit Shammai is lenient. But in general you can definitely say that Beit Hillel is more lenient than Beit Shammai. So it is not wrong to characterize decisors by their policy of ruling — that Beit Hillel is lenient and Beit Shammai stringent.
But I want to argue — once I was on some panel with Rabbi Moshe Lichtenstein and Rabbi Ra’am HaCohen. It was in Otniel, I think, I don’t remember where anymore, in Gush, I don’t remember where it was. And I don’t even remember what the argument was about, but one of them said that one should be stringent or one should be lenient, I no longer remember. And I said that one should neither be stringent nor lenient. A decisor is not supposed to rule according to policy, according to a policy of ruling. The decisor has to say what seems correct to him. Afterwards, a scholar who studies that decisor will come along and try to classify him: is he a stringent decisor or a lenient decisor, is he conservative, is he innovative, original — all those characteristics are the business of the researchers who study that decisor, not of the decisor himself.
When I approach a topic, it cannot be that I decide it on the basis of my first deciding that I need to be a stringent decisor, and therefore I’ll decide in favor of the stringent side. That is not a legitimate consideration for a decisor, even though there is such a thing as a decisor’s character — again, I’m saying — but it is not a legitimate consideration of the decisor. The decisor has to say what seems right to him. Now of course, if he tends toward stringency, then what will seem right to him will generally look like the stringent opinion. But his reasoning has to be reasoning on the merits of the matter. He has to explain why in his opinion this is the more correct view. Afterward the researcher will come and look at all the rulings of Beit Hillel and all the rulings of Beit Shammai, and he can characterize Beit Hillel as tending toward leniency and Beit Shammai as tending toward stringency. But that does not mean that Beit Hillel or Beit Shammai, within the halakhic ruling they write or state, will insert the consideration, “I want to be stringent” or “I want to be lenient.” Such a consideration is not legitimate in halakhic ruling. One is not supposed to want either to be stringent or to be lenient.
[Speaker B] But Rabbi, there is only legitimacy to want. What? But Rabbi, you do give legitimacy to wanting.
[Rabbi Michael Abraham] Legitimacy for what?
[Speaker B] For wanting. A decisor can want to be lenient or stringent.
[Rabbi Michael Abraham] He can want; he can’t control that.
[Speaker B] Yes, it’s just that, like, it mustn’t be inside the ruling.
[Rabbi Michael Abraham] He has no control over what you want. But you have to neutralize that when you come to rule on Jewish law. Your desires are not relevant. The question is what seems correct to you.
[Speaker B] And that connects to what the Rabbi said about a person being shaped by the landscape of his birthplace — that he wants to detach himself, but not completely, so he’ll never really succeed.
[Rabbi Michael Abraham] I’ll get to that in a moment. So in the end, my claim is not that these characteristics do not exist in different decisors. My claim is that those characteristics are the business of the researcher, but they are not a legitimate consideration within the halakhic ruling itself. That is basically my claim.
Now notice, in light of what I said earlier, this becomes a bit — I don’t know if emptied out, but at least somewhat emptied of meaning. Because ultimately what I argued earlier is that the decisor is not really the one who makes the decision at all. The decisor merely maps out the possible paths. The questioner is the one who will decide which of the paths to choose. Now when you map out all the possible paths, then it is not really a question of whether you are lenient or stringent. Because the one who chooses the easier path or the less easy path is the questioner, not you. So why is it relevant?
[Speaker B] No, the Rabbi said — why? The Rabbi did agree that clearly a decisor has his book, his Shulchan Arukh, each decisor and his own book, where he says what he thinks the Jewish law is.
[Rabbi Michael Abraham] Okay, so I said it is not emptied entirely of content; it is somewhat emptied of content. When you answer a question from someone asking, you are really supposed to spread out before him all the paths. So you are not deciding here which path he follows. He decides that. You simply spread out all the paths and indicate the price tag next to each of them. So really, in such a situation, there is not much meaning to the question of whether you want to be lenient or want to be stringent. That question has no meaning, not because you are not supposed to make use of a desire to be lenient or stringent, but because it is not in your system of considerations at all, since you are not dealing with the question of leniency and stringency. The questioner deals with that, not you.
But there are still two reservations. Why does it nevertheless have meaning? One reservation is what Didi said earlier: in a place where I am writing a law book, not responsa, there I really do write my opinion. And my opinion is what I truly think — not whether I want to be lenient or stringent, but what I truly think. That is what I have to write there. That is one reservation. And the second reservation is that, as I said, even from the perspective of the decisor there is such a thing as leniency and stringency, except that leniency and stringency do not mean choosing the easier path or the less easy path, but rather opening up more options. That is what is called leniency. Now here too, suppose there is some path that you are unsure how legitimate it is. If you want to be lenient, you will present it too as one of the possible paths. And if you want to… be stringent, you won’t present it.
So here I say no. If that path is possible, then yes. If in your opinion it is not possible, then no. But the consideration of whether you want to be lenient or want to be stringent should not take part in the question of whether you open up that path or not. If you think there are arguments on its side, then present the sides. Say that this path may perhaps be possible even though you are uncertain about it. But do not use those meta-halakhic considerations of wanting to be lenient or wanting to be stringent in deciding whether to open or not open some path on the map you are drawing.
And even on this point there may be room for the reservation I mentioned earlier. You mentioned just now the issue that I think I also discussed in this series, if I remember correctly — I’m not entirely sure anymore, but I think so. The controversy about the Crusades.
[Speaker B] The Rabbi spoke about it. Huh? The Rabbi spoke about it.
[Rabbi Michael Abraham] About the controversy over the Crusades. Yes, the academic approach, basically.
[Speaker B] According to that Hebron guy who published the book, and it caused a whole uproar — that the decisors were supposedly influenced by the time and by what they wanted at that time.
[Rabbi Michael Abraham] There, there it is something a bit different. And I want to talk about the academic approach, where basically when you — and I think I mentioned this example in the discussion about Yitzhak Gilat, Gilat. Yes, the debate about sanctifying God’s name. That the sages of Spain tend to be lenient — Maimonides — and the sages of France, the Tosafot authors, tend to be stringent in the laws of sanctifying God’s name. And academic researchers attribute the dispute to the circumstances in which those decisors operated. That is, the claim is that the sages of France were operating during the Crusades, and there was enormous pressure on the Jews, and they had to raise the walls higher, and therefore they were stringent in the laws of sanctifying God’s name. The sages of Spain operated in a somewhat more relaxed environment — not always the best one either, but somewhat more relaxed — and in that environment they could allow themselves to be more lenient in the laws of sanctifying God’s name.
Now of course, being lenient and stringent is subject to everything we talked about earlier. If you are talking about the principled conception of what they wrote in Tosafot or what is written in Maimonides, then that is a law book. There you can certainly state your opinion. But where someone asks you a question, you really have to present the possibilities, not state your opinion. And the questioner is the one who is supposed to choose among them. But if I relate to the Tosafot authors and to Maimonides, they wrote books, not only answers to questions. So about the books at least, one can say this.
In any case, how do I relate to this type of analysis, the academic analysis? How do I actually relate to this kind of analysis? I now return to the question of first-order ruling. In academic analysis, one basically relates to the decisor as an expression of the landscape of his birthplace — the person is shaped by the landscape of his birthplace. And that is basically a different kind of interpretation of his ruling, in which his ruling is essentially a product of the environment in which he operates. That is a different kind of reasoning. In the beit midrash, halakhic opinions are not reasoned that way. In the beit midrash, they look at the Tosafot authors, who said this, and Maimonides, who said that, and they look for the reasoning: what is the reasoning of this one and what is the reasoning of that one? But in the academic world, they look for the context, the context. And the context is what, in their view, dictates the answer. At least in that sense — that is the academic dimension. There are academics who also combine arguments on the merits of the issue, but then they are combining non-academic arguments. The academic argument basically deals with contextuality.
And in such a situation, when I want to classify this in terms of first-order ruling or second-order ruling, I would say: this is basically another kind of ruling. It is not ruling at all in the traditional sense, but it is clear that in terms of the category of first order or second order, it belongs to the second order, not the first. Because from the perspective of the first-order decisor, even if the researcher is right and the Tosafot authors ruled as they did because they wanted to raise the walls higher during the Crusades, and Maimonides was lenient because there those constraints did not exist — suppose I accept that explanation. What does that mean for me? At the end of the day, I rule in a certain way not because Tosafot wrote this way or because Maimonides wrote differently. It is also not according to rules of ruling about what I do when there is a dispute between Tosafot and Maimonides. I rule according to what seems right to me. But if I rule according to what seems right to me, then why should I care why the Tosafot authors arrived at their ruling? After all, I am asking what seems right to me. So in essence I am dealing only with the reasoning or the substantive rationales on the merits of the issue in the various views. Even if the contextual analysis is correct, it does not interest the first-order decisor. Because the first-order decisor does not rule like Tosafot or like Maimonides; he rules as he thinks. Tosafot and Maimonides are opinions he examines on the way to arriving at the position he endorses. And therefore it really makes no difference at all why Tosafot came to rule that way in the contextual sense.
Yes, it is important what the reasoning of the Tosafot authors was. That is important to ask — why? Because I have to decide which reasoning seems more convincing to me. So I do need to analyze why Tosafot said this and why Maimonides said that, and to analyze it on the substantive plane and not on the contextual plane. Because for me, in the end, I will reach a decision according to what I think about the substantive plane, and the context is not of interest even if it is correct.
And this connects very strongly to what I said earlier, that in fact the Tosafot authors were also not supposed — even if we say that what led them to be stringent in the laws of self-sacrifice or saving life in sanctifying God’s name, sorry, was the situation in which they lived — I claim that this is not a legitimate halakhic consideration. It is the same thing as saying, “I want to be stringent, and therefore I say that this is forbidden.” In exactly the same way I say: because this is now the Crusades, I want to raise the walls higher, and therefore I say that this is forbidden. Right — that is not legitimate; it is false. One may not say such a thing.
What you can do is one of two things. Either say: look, there is the opinion of Maimonides and there is my opinion — when someone asks you now, not in what you write in a book, but when someone asks you. After all, there is the opinion of Maimonides and there is my opinion. That’s it. This is how it seems to me and this is how it seemed to Maimonides, and these are the rationales or these are the costs of each side. You can add: but I think that at a time like this it is appropriate to be stringent, as I am saying. But present it that way. Do not present your opinion and do not present Maimonides’ opinion on the basis of your thinking that here one needs to be stringent. That is false. What you need to do is present what you would present in any other situation. What you present does not depend on the situation. The choice between the paths that you present is a function of the situation. But that choice should be made by the questioner, not by you.
So therefore the academic analysis is not only second-order, and not only something that essentially does not interest the first-order decisor, but I also claim that it cannot be the correct analysis describing the thought process of the Tosafot authors.
[Speaker G] So Rabbi, Rabbi, I didn’t understand how you find substantive reasoning for a method that is based on arguments of contextuality.
[Rabbi Michael Abraham] I am claiming that it is not based on context. It may be that unconsciously the context — or consciously, it doesn’t matter — the context may have had an influence, but in the end, when Tosafot ruled Jewish law, they were supposed to rule on the basis of relevant substantive reasons. And I am looking for those. Okay. You can never know what influences you subconsciously; all of us are of course shaped by the landscape of our birthplace. But the question of how context influenced you is irrelevant. What interests me is what you say — that is, what your reasons are.
[Speaker G] Okay, so you think that behind the method of Tosafot there stands a substantive reasoning that they were also conscious of, as if they acted according to it? Not behind — in front of.
[Rabbi Michael Abraham] Meaning, in their awareness there was substantive reasoning. Afterwards, the researcher may come along — the psychologist, I don’t know, the psychologist of Tosafot or the researcher of Tosafot — and say: why did they choose this reasoning rather than the reasoning of Maimonides? Ah, because subconsciously they had some desire to be stringent because they lived in circumstances that required stringency. Fine, it may be true, it may not be true. But in the halakhic discussion, that is not interesting. And in that sense, in my opinion, it is the same thing as a decisor who says, “I want to be stringent, and therefore I will rule thus and so here” — which I argued earlier a decisor is not supposed to do, and not because that does not exist in his subconscious. A scholar who studies him, when examining all his rulings, may indeed discover that this decisor tends toward stringency. That’s fine, and it is legitimate; a person is allowed to have tendencies. All people have tendencies. But those tendencies are not supposed to take part in the decision. Psychological analysis may perhaps expose all sorts of tendencies a person has, but in his conscious decisions he is not supposed to take those tendencies into account.
There is perhaps just one comment, and I’ll finish with it. Earlier I mentioned the article by the law professor, who basically saw the position of Rabbi David Zvi Hoffmann as legitimate, and I said that he is right in his academic hat. Because academics, from their point of view, describe reality, and when they describe reality they spread out all the opinions that appear in books of Jewish law. But I, as someone playing on the halakhic field and not on the research or academic field, from my point of view I can say that Rabbi David Zvi Hoffmann’s view is simply a mistake. There is no such opinion in Jewish law. Okay? That is what I said earlier.
So this too is really an expression of a certain difference between the academic approach and the beit midrash approach. The view from outside as opposed to the view from inside. The academic describes. And when you describe, then there is also Rabbi David Zvi Hoffmann; there is such a book on the shelf in the sacred library, in the library of Jewish law. There is Melamed Leho’il; that too appears there. But then, from his point of view, when he describes what happens in Jewish law, he is right; he has to be faithful to the facts — there is such an opinion in Jewish law. I, as someone looking at things from the inside, on the halakhic field, say: there is no such opinion in Jewish law. Because I am not describing; I am playing within the game. Like the difference between someone who describes a soccer game and someone who plays it. So yes, that is a very big difference between the academic perspective that describes the game and the perspective of the one who plays the game.
The difference I mentioned earlier is also the same difference. Someone who describes the context describes the game, but someone who plays the game does not use context as a consideration — unless he is making an enactment or a decree, if he has authority for that. To say: I decree stringency in such a situation because the situation requires stringency — he cannot say that this is the Jewish law when his motive is actually a desire to be stringent. That is false. You can say: this is not the law; there are two possibilities, but I am now issuing a decree or instituting an enactment that in this situation everyone must be stringent rabbinically. Okay? A special enactment. That is permitted to someone who has the authority to institute enactments. But in principle, that is permitted. However, to say that this is the Jewish law because you want to be stringent — that is false. That is forbidden.
Therefore, by the way, even the consideration of the desire to be stringent — I too can be stringent because of the desire to be stringent if I understand that this is an enactment. But I cannot present it as a halakhic ruling toward stringency when my reasoning is that I want to be stringent. That is false. Do you understand the difference? The question is whether it is Torah-level or rabbinic, in short. It is forbidden to add things just because I want something. What I write as the law proper has to match what I understand the law proper to be. If I make additions, sometimes additions can be made if I am in a position where I have the authority to do so, but I have to present it as an addition; otherwise it is “do not add” or falsehood, or “do not add,” or whatever it may be.
Something like this once came up in a controversy in the Sabbath supplement of Makor Rishon. They described there some dispute in the Department of Jewish Thought at the Hebrew University surrounding Avinoam Rosenak. The claim was that he was too existentialist. That is, he talks with the students in class, presents them with positions, and tries to get them to develop positions of their own — what do you think about the matter, something existential, what speaks to you, what does not speak to you — and the people of the school they called the philological-historical school said that what ought to be taught is: what did Sefer Ha-Ikkarim say, what did Maimonides say, what did the Maharal say, to understand this within its historical context and from which beit midrash it emerged, and that’s all. To develop a Jewish thought in which each student develops his own Jewish thought and what he identifies with and what he does not identify with — let them do that in yeshiva. That is not the business of academia.
And it got heated — these departments of Talmud and Jewish thought, everything runs at high intensity; it’s not like physics or mathematics. There the agenda is an inseparable part of the daily work. And there was a very large argument there about this matter; it reached Makor Rishon, of course in a very sympathetic article toward Rosenak: what do you mean, are these people such technocrats? You need to teach people, involve them, help them formulate an opinion, and so on. And I actually wrote an article in favor of the technocrats. And I argued that the university has a role, and its role is to teach things from an academic perspective. What the student does with it afterwards and how he forms a Jewish thought of his own — let him do that in the beit midrash, let him do it by himself, let him do it in yeshiva, or I’ll help with that in free time after class. But in class I am supposed to teach him academic study. And the role of academia is to describe. You have to describe and analyze the various views and present the map; in that sense it is like a decisor, only contextually and not substantively. So you present all the views before the student, along with the contextual analysis and along with the substantive analysis, and that’s all.
And in that sense I actually very much sided with the philological-historical camp — which of course provoked furious reactions afterward in the next issue of Makor Rishon, when everyone was terribly offended that I had turned the university into something technocratic and not existential. Even Rosenak sent me some angry email. Anyway, that is just to sum up this issue of academia versus the beit midrash. That’s it.
[Speaker B] Okay, thank you very much, Rabbi.
[Rabbi Michael Abraham] You’re welcome. Any comment or question? If so, go ahead. Okay, goodbye, Sabbath peace.
[Speaker F] Sabbath peace.