Study and Halachic Rulings – Lesson 38

[Rabbi Michael Abraham] Okay, today I want to finish this series, and I want to talk a bit about logical reasoning, its status, its meaning, where exactly its role is within the halakhic and learning framework. The starting point is that in several places the Talmud assumes that something written explicitly in a verse, something that has a verse for it, and something that follows from reasoning, are of the same status. The Talmud asks, for example, regarding “the burden of proof is on the one who seeks to extract from another,” and also regarding “the mouth that prohibited is the mouth that permits,” the Talmud asks: why do I need a verse? It is reasoning. So that means that the status of something derived from a verse — from Scripture — and something derived from reasoning is the same status. If something derived from reasoning had a different status, even if it were still binding, but if it had a different status, then there would be no room for the Talmud’s question, “Why do I need a verse? It is reasoning.” You would need the verse in order to tell me that the status is full Torah-level status. And if it came from reasoning, I would have thought the status of that law was lower. So that question of the Talmud basically says that reasoning and Scripture, or a verse, are the same thing. Now, this idea, actually — maybe I’ll preface with one more thing. Rabbi Shimon Shkop, in Gate 5 of Sha’arei Yosher — yes, things I’ve talked about more than once — speaks there about what is called the theory of law. He says there that there are legal principles that obligate us even though there is no commandment about them in the Torah; they have no source in the Torah. And he writes this in various contexts in order to resolve difficulties and so on; I won’t get into all those details, but that’s the principle that runs through all of Gate 5. And there, in the second chapter of the gate, he asks: perhaps you’ll say, why should I have to obey such principles if the Torah does not command them? So he answers the question the Jewish way — with another question: why should I have to obey the things that the Torah does command? The fact that I have to obey what the Torah commands is itself based on reasoning. The reasoning that says that if the Torah commands, then one must obey. So he says: if so, it turns out that the question is actually based on the reverse relation. The question assumes that command is the primary foundation, and if reasoning has any status, then that can only derive from a command. Meaning, if there were a command telling us to follow reasoning as well. But command is the fundamental thing, and reasoning, if anything, is derivative. He says: what do you mean? It’s exactly the opposite. Reasoning is the fundamental thing, and only because there is reasoning do we have to obey a command. Therefore, he says, when you ask me why obey legal principles if there is no command about them, that is simply a meta-halakhic mistake, you could say, because you are assuming that command is the basic infrastructure. But if the basis for the validity of the command is itself reasoning, then obviously other reasonings not connected to command will have the same validity. The mouth that prohibited can prohibit other things too. Yes, by the way, “the mouth that prohibited” — there too it says, “Why do I need a verse? It is reasoning.” That is Rabbi Shimon Shkop’s claim. Does his principle mean that reasoning is Torah-level? What do you say? Does what Rabbi Shimon Shkop writes amount to what I said before, that there is reasoning…

[Speaker B] Seemingly it comes earlier. What? Seemingly reasoning precedes Torah-level law.

[Rabbi Michael Abraham] Fine, but now I’m asking: according to Rabbi Shimon Shkop’s line of thought, what would be the status of a law derived from reasoning?

[Speaker C] It can’t be less.

[Rabbi Michael Abraham] What would its halakhic status be?

[Speaker C] It can’t be less than Torah-level. Everything is Torah-level.

[Speaker D] It could simply be non-halakhic, no?

[Rabbi Michael Abraham] Yes, okay, that’s also one possibility. I’m asking what it would be.

[Speaker C] If the basis of Torah-level law is reasoning, then certainly it can’t be less than Torah-level — that reasoning would be less than Torah-level. Maybe more, if that has any meaning.

[Rabbi Michael Abraham] The logical basis of Torah-level law is the reasoning that one must obey the commands of the Holy One, blessed be He. But that is the logical basis. It does not necessarily mean there is a relation here regarding the level of force of those laws.

[Speaker C] Meaning, how could it be less? If the basis of the Torah, the foundation, the logical basis, is reasoning, then how could it be that reasoning ends up being less, or having less force than what…

[Rabbi Michael Abraham] Since that thing is a logical basis and not a substantive basis, the hierarchy at the level of force does not have to be preserved. Meaning, why?

[Speaker C] Wait, I’ll explain.

[Rabbi Michael Abraham] If, for example, the Torah commands me with a certain command, then I say this is a Torah-level obligation. Why is it a Torah-level obligation? Because the Holy One, blessed be He, commanded it. We talked about the fact that without a command, things do not have Torah-level status, before I got to reasoning. I’m saying: once there is a command in the Torah, that means this law is a Torah-level law. Now, true, my obligation to obey that Torah-level law comes from reasoning, but the status of the law itself has nothing to do with my reasoning. The status of the law itself is the status given to it by the Holy One, blessed be He. Meaning, it could be that the Holy One Himself says: look, there’s something you are absolutely very obligated to do, but its status will not be Torah-level. The question of how clear my obligation is to do it is one question. The question of what its status is, or what the halakhic force of that law is, is another question. Meaning, the Holy One, blessed be He, can say: I expect you to do everything that follows from reasoning; I expect it from you no less than things I commanded in the Torah. That is a statement saying that I have to do it. But the question of the law’s halakhic status is another question. Do you think there is less obligation to keep a rabbinic law than a Torah-level law?

[Speaker C] According to this, it comes out the same.

[Rabbi Michael Abraham] According to this, it comes out that no.

[Speaker C] According to this, it comes out that actually…

[Speaker F] Depends what the metric is. What? Torah-level has the same status as rabbinic.

[Rabbi Michael Abraham] Correct. In terms of the obligation to keep it, the obligation to keep a rabbinic law is exactly like the obligation to keep a Torah-level law. Jewish law requires both this and that. The force of the law will be different. It’s like: am I more obligated to observe the Sabbath than not to eat pork? Observing the Sabbath carries stoning. Both are Torah-level, but Sabbath is an offense of karet and stoning, whereas pork is a prohibition punishable by lashes, a lighter prohibition. Is there a difference in the level of my obligation to keep those two laws? No. I am fully obligated to keep both laws, both Torah-level laws, completely.

[Speaker F] But that’s on the principled level, you’re saying. You’re asking a principled question whether there is a difference between those two commandments or prohibitions. But there is a difference in the sense that we know one thing is more severe and another is less severe. Right.

[Speaker C] So logically what does that mean? Unless the Sages say, look, from the outset we’re instituting this as something with less force.

[Rabbi Michael Abraham] Almog, wait, Almog was in the middle. Almog, what are you saying?

[Speaker F] I didn’t understand for a second. You asked whether there is a difference. So when you ask whether there’s a difference, you mean whether there is a difference on the principled level. There is a difference between commandments.

[Rabbi Michael Abraham] Obviously there’s a difference. But I’m asking whether the level of my obligation to keep the commandments necessarily stands in proportion to their level of halakhic force.

[Speaker F] No, that doesn’t belong; it’s completely detached.

[Rabbi Michael Abraham] That’s the claim. Meaning, I am fully obligated to keep both a rabbinic law and a Torah-level law, and also a severe Torah-level law and a lighter Torah-level law. In all these, my obligation is exactly the same obligation. Their halakhic force is something else. Their halakhic force derives from all kinds of other considerations, but the Holy One, blessed be He, decides that.

[Speaker C] What is “halakhic force”? Severity — what do you mean?

[Rabbi Michael Abraham] The implication of how severe it is if you transgress it. Right.

[Speaker C] But if the Sages do not limit the meaning of their force, then really why should it be less? Why should it have lesser halakhic significance if the Torah commandment is based on reasoning and what they, let’s say, say — if they tell you that this…

[Rabbi Michael Abraham] No, the command is not based on reasoning. My obligation to keep the commandment is based on reasoning.

[Speaker C] So in the end it’s reasoning. If the foundation is reasoning, then everything is reasoning. No, no.

[Rabbi Michael Abraham] The obligation to keep the Torah-level prohibition of pork comes from reasoning. What reasoning? The reasoning does not say pork is problematic. The reasoning says that what the Holy One, blessed be He, commands must be kept.

[Speaker C] Okay, so in the end it’s reasoning. In the final analysis it’s reasoning.

[Rabbi Michael Abraham] But the force of the law is something else entirely. What does that have to do with it? The force of the law is the question whether it harms Netzach within Hod or I don’t know what, Chesed within Gevurah. Fine? I don’t know exactly what. What does that have to do with the question of how obligated I am to keep it?

[Speaker C] The Sages will come and tell you that what they institute, since it too is based, let’s say, on reasoning to obey them, then that too harms Netzach within Hod, so it comes out the same. I don’t understand. I don’t understand why it should be different. If in the end the foundation is reasoning, then okay, it may be that there are more severe commandments and less severe ones, I’m not saying there can’t be, but it’s not built in.

[Rabbi Michael Abraham] You’re repeating the same question. I don’t know what to answer. I answered it.

[Speaker C] I don’t understand the answer.

[Rabbi Michael Abraham] What’s the problem?

[Speaker C] If the foundation is based on reasoning, then why can’t it theoretically be that a rabbinic commandment, if it too is based on reasoning or on that same reasoning, would in the end have the same force, the same meaning and the same force?

[Rabbi Michael Abraham] Fine, listen to what I’m explaining. It is not based on reasoning. My obligation to obey is based on reasoning. That is not the same thing. Say in the moral context, right? Why is murder forbidden? Because murder destroys a soul, and destroying a soul is something bad done to somebody. Now the question why I obey the command not to murder is a different question. It is a different question. Meaning, the question what creates the command itself, or what the command itself is based on, is a question one has to discuss — what its significance is, what it does, what damage it causes, or I don’t know exactly, all kinds of things like that. The question how obligated I am to it is another question. Think about law. When I am obligated to obey the law, why am I obligated to obey the law? Because the Knesset legislated it. Suppose there is a more severe law and a less severe law, or a greater punishment and a lighter punishment. Is my obligation to obey the two laws different? No. In both cases I am answerable because I did not obey the laws of the Knesset, and both are laws of the Knesset. But that does not mean the same punishment will be imposed for both.

[Speaker C] But that too, reasoning says that. That too reasoning in the end defines it, says look, here this is something that inst… something that inst… no.

[Rabbi Michael Abraham] Again I’m explaining, I’m repeating it again and again. The reasoning has nothing to do with the law itself. The reasoning says that what the Knesset obligates, what the Knesset legislates, obligates me. That’s what it says. It does not say that paying taxes is a logical thing. That’s another reasoning; maybe it also exists. I’m not talking about that. I’m talking about the reasoning that if the Knesset legislates, one must obey. That is the reasoning. Or the same thing: if the Torah commands, one must obey. That is not reasoning that says pork is problematic. I have no such reasoning. The reasoning only says that what is written in the Torah must be obeyed, that’s all. That is uniform for everything written in the Torah. There is no difference between whether it is written here in the Torah or there in the Torah, whether it is severe or light. If it is written in the Torah, what is written in the Torah must be obeyed. That reasoning is indifferent to the level of severity of the law. There is no connection between the level of my obligation to keep it and the level of severity of the law. And therefore, when Rabbi Shimon Shkop says that I have an obligation to keep something derived from reasoning that is exactly like the obligation to keep a law, that does not mean that the severity of something derived from reasoning and the severity of a law written in the Torah are the same severity. Those are two different things. And therefore, for example, even if I were to say that the obligation to keep the theory of law is rabbinic and not Torah-level, there is no problem with that from Rabbi Shimon Shkop’s perspective. It does not contradict what Rabbi Shimon Shkop said. One must obey it. Just as one must obey rabbinic laws and one must obey Torah-level laws, and for each of these there is reasoning that says why one must obey. And if the reasoning obligates, then the reasoning obligates. But the reasoning that stands at the foundation of the law — not my obligation to keep the law, but the reasoning that stands at the foundation of the law — is an entirely different reasoning. And there it may be that the reasoning at the foundation of one law is stronger, and the reasoning at the foundation of another law is weaker, or the rationale — I don’t know what to call it, not exactly reasoning. But in the end it’s reasoning.

[Speaker C] Fine. Obviously. There are different reasonings also regarding the importance of the commandment. But in the end it’s reasoning. Only reasoning.

[Rabbi Michael Abraham] I’m talking about reasoning, I…

[Speaker C] keep repeating again and again. But only that. Therefore it’s not something built in and separate whether it is Torah-level or not Torah-level. I didn’t understand. The claim is that in the end everything is reasoning. A person only does what his intellect tells him he should do and nothing else. Whether it is written or not written — in the end he has to decide in his own mind, his conscience, and his morality.

[Rabbi Michael Abraham] Shmuel, I agree completely with every word you just said. Only — what does that have to do with our discussion?

[Speaker C] Because then in the end it comes out that reasoning decides everything across the whole range, from A to Z. Nothing else remains. There is no place empty of it. That’s how I understand our discussion. Our discussion is about the severity of things. The severity of things too will in the end be influenced by reasoning.

[Rabbi Michael Abraham] But when you speak here about reasonings, that’s the obligation to keep the thing.

[Speaker C] No, also about the very severity of…

[Rabbi Michael Abraham] the prohibition, the halakhic force of the thing. And there is no connection between them — at least not necessarily. I agree that the obligation to keep everything is founded in reasoning, true; that’s what Rabbi Shimon Shkop says. I don’t need to agree; that’s where I started. I’m only arguing that this does not necessarily relate to the severity or halakhic force of the law in question.

[Speaker C] Right, that I agree with, Rabbi, but in the end when we come to every commandment and prohibition and think about how severe it is, in the end it will all be settled within the realm of reasonings.

[Rabbi Michael Abraham] Fine, but how does that relate — again I ask — I asked a very simple question.

[Speaker C] No, the Rabbi is sort of separating whether it’s a Torah-level prohibition or a rabbinic one, as something separate from the logical explanatory consideration; I think that’s impossible.

[Rabbi Michael Abraham] The logical consideration — the consideration of why to keep it — is reasoning, reasoning.

[Speaker C] Not whether to keep it, but in general what the severity of the prohibition is, let’s say. That has implications, right? Torah-level, rabbinic — that has implications for the severity of the prohibition.

[Rabbi Michael Abraham] In the end I don’t know the “what” of the prohibition. I don’t know the “what” of the prohibition. What does that have to do with reasoning?

[Speaker C] No, severity — I didn’t say the “what,” severity.

[Rabbi Michael Abraham] And I also don’t know. Severity is given to me by the Torah. I don’t know what the severity is.

[Speaker C] And then I exercise judgment and say, if the Holy One, blessed be He, commanded it, I trust that He gave something and aimed me toward something.

[Rabbi Michael Abraham] And all that has nothing to do with the question of how obligated I am to keep it. That is another independent question. I am obligated to keep all these laws with the same level of obligation, even though their force, their severity, differs.

[Speaker C] Okay, and when I come to examine the severity, what is my tool in the end for deciding? Reasoning. There too, reasoning. No, no — not the same reasoning, another reasoning, but still reasoning.

[Rabbi Michael Abraham] No, no. What, do you have reasoning about the importance of putting on tefillin, eating pork, I don’t know, things like that?

[Speaker C] Yes. I’m saying if it was received in some sense more directly from the Holy One, blessed be He, there is some direction in that; the Jewish people accepted it as something more binding, so in my logic there is reason to keep it more.

[Rabbi Michael Abraham] What does “more directly from the Holy One, blessed be He” have to do with anything? How does “directness” enter here?

[Speaker C] Both are written in the Torah, everything is directly…

[Rabbi Michael Abraham] from the Holy One, blessed be He. What is the difference between rabbinic and Torah-level?

[Speaker E] Could we get an example of a commandment or halakhah that comes from reasoning and not from a verse, that fits Rabbi Shimon Shkop’s framework, and you could show us through that example that the degree of severity is different from the degree of Torah-level law?

[Rabbi Michael Abraham] What do you mean? I already gave you an example. What’s the difference? There are Torah-level laws that differ in severity, right? There are laws involving karet and stoning, and there are laws that are simple prohibitions punishable by lashes. And both are Torah-level. For both there is reasoning that says that if I was commanded, I have to keep it. The level of obligation is the same level. But the level of severity is not the same severity.

[Speaker E] But here you’re talking about having a verse that gives you the halakhic force. I want an example where there is no verse and the reasoning is what brings me to the law.

[Rabbi Michael Abraham] I can’t give you such an example; it’s impossible, because I’m discussing that right now. How can I determine the relation of something that comes from reasoning — now I’m supposed to know how severe it is — that’s exactly what we’re discussing now. How can I bring you an example? I’m bringing you an example from things we know in order to try to draw conclusions about things we don’t know. The things we know are Torah-level laws, because there the Torah itself told us the severity of each law, and we see there are Torah-level laws with different levels of severity. And there are rabbinic laws altogether, which according to Maimonides are also based on “do not turn aside,” but they are still rabbinic laws. So there are different levels of severity of laws, even though the obligation to keep all of them is the same obligation. So far, that is from what is known. Now I infer — now I ask: okay, now I have something else, something derived from reasoning. Once it is derived from reasoning, I have no source that determines its force, because it is not written in the Torah. So how do I know its level of severity or force? That’s what I’m discussing now.

[Speaker G] Right, and what do you say? What’s the answer?

[Rabbi Michael Abraham] I’m asking whether Rabbi Shimon Shkop’s words necessarily mean that the obligation to keep the theory of law has the force of Torah-level law. I argue that they do not. All he says is that one simply has to keep it; there is a full obligation.

[Speaker D] The problem is…

[Speaker E] Rabbi, from the fact that Rabbi Shimon Shkop is basically relying on the statement that says “why do I need a verse? It is reasoning”…

[Rabbi Michael Abraham] No, no, no — he does not rely on that. That’s why I said it’s an independent issue. The first statement I made was about the Talmudic passages that say, “Why do I need a verse? It is reasoning,” and there it seems that this is a statement about the force of the law. What is written in Rabbi Shimon Shkop is about the question of how obligated I am to keep it. It is not about the question of the law’s force. Those are two different things. Okay. Fine? Now, I want to get a bit more deeply into the question of the…

[Speaker D] So what, Rabbi — wait, does the Rabbi see a contradiction in that? What? So the Rabbi sees a contradiction here?

[Rabbi Michael Abraham] No, no, no contradiction at all. These are two different statements.

[Speaker D] It could be that it would be a Torah-level law… No, why — yes, but why does the Talmud say, “Why do I need a verse? It is reasoning”? “Why do I need a verse? It is reasoning” implies that it’s saying that even if I’m obligated from reasoning, how am I supposed to get to that?

[Rabbi Michael Abraham] So that comes from “Why do I need a verse? It is reasoning,” but it does not come from Rabbi Shimon Shkop’s line of argument.

[Speaker D] That it’s Torah-level — I don’t understand.

[Rabbi Michael Abraham] No, no contradiction. I’m trying to show…

[Speaker D] Yes, but I’m saying, isn’t it a bit…

[Rabbi Michael Abraham] I’m trying a bit… to learn from every… every context… every place. From the Talmudic passages that say “Why do I need a verse? It is reasoning,” we learn that the force of the law is the same as a law written in a verse. It is Torah-level. From Rabbi Shimon Shkop we cannot learn that. You can say that because the Talmud says “Why do I need a verse? It is reasoning,” then apparently in Rabbi Shimon Shkop too I should say that the status is Torah-level — fine. But it does not follow from Rabbi Shimon Shkop’s argument. By the way, also in Kant — in several places I have spoken and written about this — there are two completely different questions, and people get confused into finding contradictions in Kant’s words: whether morality is connected to God or not connected to God. After all, Kant is the founding father of autonomous humanistic morality, right? You don’t need God — secular human morality. Everybody hangs everything on Kant. On the other hand, one of the proofs, in another work of his, one of the proofs he brings for the existence of God is a proof from morality. Because without God morality has no force. So how…

[Speaker D] So the Rabbi is distinguishing between the force of that and… what? Yes, the Rabbi distinguishes between the force of why to be moral and what morality is.

[Rabbi Michael Abraham] Right, exactly.

[Speaker D] Yes, but I still don’t understand something. When the Talmud says “Why do I need a verse? It is reasoning” — how can one understand from that that this reasoning is on the same level as Torah-level law? You could have said to the Talmud: obviously — why do I need a verse? It is reasoning — and the Torah comes to tell you that this reasoning is a Torah-level prohibition, like “You shall not murder,” even though I know that had the Torah not said “You shall not murder”…

[Rabbi Michael Abraham] And that is exactly what the Talmud asks. And we see that, from the Talmud’s perspective, there is no difference in force.

[Speaker D] Yes, but that’s a bit difficult. By what logic?

[Rabbi Michael Abraham] What do you mean, by what logic? That’s what I’m saying — I prove it from the Talmud. Do you agree that there is a proof from the Talmud? Yes, I understand. You’re asking on the Talmud: why does the Talmud think that?

[Speaker D] Yes, I don’t understand…

[Rabbi Michael Abraham] that exact line of thought.

[Speaker D] Where does such reasoning come from?

[Rabbi Michael Abraham] Fine, in a moment I’ll qualify it a bit, and then it’ll be less difficult. One second. Okay.

[Speaker C] Rabbi, Rabbi — the claim about Kant, as far as I understood, is that he invents God as a guarantor for the sake of man. No, no. That’s how I understood the explanation. It’s not pragmatism and… because the end here is man. One formulation of the categorical imperative is that man should be treated as an end. So man is the end for him; if that’s… if the end is man, then what makes it atheistic?

[Rabbi Michael Abraham] Not true, not true. Man as an end is the content of morality; it has nothing to do with the source of its force. Morality is to see man as an end. But why be moral? That is another question. That’s not… It’s like, say, utilitarian morality. Some people explain what utilitarian morality is: morality whose purpose is to bring about maximum utility. Utility even in the sense of utility for the whole world, right? Not necessarily for me; not in the egoistic sense. But utilitarian morality itself suffers from two interpretations, and many people get confused between them. One interpretation: utility is the reason to be moral. Because my goal is to bring about maximum utility, which in my view is a very problematic interpretation. The second interpretation, which is much more plausible, is that utility defines what the moral act is. But the question why be moral — that is a completely different question; it has nothing to do with utility. Why be moral? Because of Kant’s categorical imperative, because of the Holy One, blessed be He, I don’t know, whatever you want. But that has nothing to do with the question of utility. Utility only defines what a moral act is. A moral act is an act that brings maximum utility. Now my question is why do the moral act? That is a completely different question, unrelated to utility. The first explanation, which sees utility as the reason obligating me to behave morally, is basically saying there is no such thing as morality; a person acts for the sake of utility. Only the second explanation can assign utilitarianism to the realm of morality, because the second explanation…

[Speaker C] And that’s the straightforward interpretation of utilitarianism — not what the Rabbi said in the first interpretation. What? But that is the interpretation, the straightforward interpretation of utilitarianism. Isn’t that what the Rabbi said in the first interpretation?

[Rabbi Michael Abraham] What? That it’s the reason, not just the outer wrapping? Absolutely not. I’m saying many people say that, and many also mix them up or don’t notice that there are two different things here. But that mixing is very problematic philosophically, because the first explanation has nothing to do with morality at all. Only the second explanation has to do with morality.

[Speaker C] Wait, but Rabbi, according to Kant, then with utilitarianism for example — after all, it measures the matter not by intention but by result. If the basis is service of God or a categorical imperative, then what does that mean? Even if you accomplished nothing but had good intentions, that has the same moral significance.

[Rabbi Michael Abraham] No, no, no — here you’re introducing yet another confusion. I didn’t bring utilitarianism into this. Right now I’m talking about utilitarianism.

[Speaker C] The Rabbi just said it. The Rabbi said it could be that the utilitarian says not why to do but what to do. Why Kant? The Rabbi just said that.

[Rabbi Michael Abraham] Kant is not a utilitarian.

[Speaker C] No, obviously not, but the Rabbi said there is a possibility that the utilitarians say they’re not talking about why to do, but what to do. What to do: utilitarianism. Why to do: that too they can accept, they too can swallow Kant. I don’t think so.

[Rabbi Michael Abraham] A move like Kant, Kant is not a utilitarian. A move like Kant in this sense — that morality is your obligation to moral conduct. That’s it. Not utility and not anything else. Why, where does it come from? From the Holy One, blessed be He, from some categorical imperative or another, from whatever it may be. But Kant was not a utilitarian in either sense. Obviously. Okay, so let’s return to our topic; I got too deep into that corner. So I want to return for a moment to the discussion of the status of things derived from reasoning. Not why one must keep them. Rabbi Shimon Shkop is talking to me about that question, that one must keep something derived from reasoning, and the consideration is a philosophical one. Now I’m asking a different question: what is the halakhic status of something derived from reasoning? And here I do not know of a philosophical consideration that would tell me one way or the other. So what yes? Let’s try to see what can be learned from the passages. So I want to begin with a passage that I think I’ve already touched on more than once, regarding the Talmud in Berakhot about blessings over enjoyment. Maybe one more point before I get there, one more remark that has to be made here. It is obvious that when I talk about things derived from reasoning, the decision about their status will not be and cannot be sweeping. Meaning, if I say that something derived from reasoning is Torah-level, that its halakhic status is Torah-level, is that true also of weak reasoning? Who says so? Meaning, it may be that there are reasonings of different strengths about why one must do this thing or why it obligates, and at different levels. There may be some reasonings that will give me Torah-level laws, but weaker reasonings will say one should do it, but it is not Torah-level. Okay? Meaning, once I am talking about reasoning, it is clear there is a spectrum, a whole continuum of levels. There are strong reasonings and weak reasonings, reasonings I am certain of and reasonings I am not certain of, reasonings that are very fundamental and reasonings that are less fundamental — all kinds of axes or scales by which reasonings can be measured. I’ll maybe give an example so this will be clearer. Suppose we talk about an unusual manner of performing a prohibited act on the Sabbath. Doing a prohibited act in an unusual manner on the Sabbath is a rabbinic prohibition. Yes, if I do something that, when done in the normal way, is prohibited by Torah law, if I do it in an unusual manner, the prohibition is rabbinic. Now you understand that doing something in an unusual manner has different levels of unusualness. There is a slight deviation from the normal way, and there is a deviation so great that you no longer see the connection between the act and the original mode of action. Therefore, when I talk about an unusual manner, that is not one single concept. There are levels, a continuum of levels, of unusualness. And therefore, for example, when some later authorities struggle — wait, but if this is an unusual manner, then it should have been… there are places where we see that when he does something in an unusual manner, it is permitted. So the later authorities ask: wait, what do you mean? But an unusual manner is rabbinically prohibited. What do you mean, unusual manner is rabbinically prohibited? It may be that this unusualness is already so great that there is nothing left in it of the original action that was originally prohibited, and therefore there it is simply not that action, so it is permitted. Something that is still that action but in a different way — and again, it depends how different — will be a rabbinic prohibition. There are certain concepts we use that have a continuum of levels in which those concepts can appear, like the concept of unusualness. And the same is true of the concept of reasoning. I have very strong reasonings and weaker reasonings. They sound logical to me, plausible, but would I stake my head on them? Not so strongly. So when I talk about reasoning here too, one has to be very careful with sweeping statements, that all reasonings should really be on the same level. On the same level.

[Speaker E] Doesn’t the Rabbi think that when Rabbi Shimon Shkop makes this big innovation — that even what is not written in the Torah, because of its plausibility, can become part of the Torah’s obligation — since he is making such a major innovation, he intends only something that is one hundred percent clear reasoning with no dissent, and he doesn’t want now to start dividing it into parts of less good reasoning and better reasoning? I think the innovation is so great that the reasoning has to be very, very clear.

[Rabbi Michael Abraham] No, no — here one has to distinguish between two things.

[Speaker E] Precisely Rabbi Shimon Shkop — on the contrary — precisely…

[Rabbi Michael Abraham] Rabbi Shimon Shkop is not talking about the force of the thing; he is talking about the level of obligation to keep it.

[Speaker E] Yes, yes, I understand. Obligation.

[Rabbi Michael Abraham] Fine. To keep it. It may be that in terms of its force this is a rabbinic law, but I am fully obligated to keep it like a Torah-level law. So here clearly the obligation to keep will depend on reasoning, but not on the reasoning that stands at the foundation of the law; rather on the reasoning that tells me why to keep the law. For example, if the reasoning says, look, once the Sages said something, one has to obey them, because otherwise there will be anarchy, because they are the authority, I don’t know, formulate whatever reasoning you want. You understand that this reasoning is the same reasoning for all the laws the Sages establish. But that does not mean that among the laws established by the Sages there are no hierarchies of levels of force. There are severe rabbinic laws and lighter rabbinic laws. Telling a non-Jew to do something, for example, is considered a lighter prohibition.

[Speaker E] But until today, also in the examples you brought in the past on the issue of theft, entering someone else’s property, with King David and that whole story there with Rabbi Shimon Shkop — where there is civil theft and not Torah theft — what I understood was that the reasoning pertains to the body of the law itself. Not only to the general point that one has to keep it because reasoning says to keep it, but the law itself, the event itself, is what reasoning comes to request, to demand.

[Rabbi Michael Abraham] It depends what you’re talking about. That is exactly the difference. If you’re talking about the reasoning by virtue of which I keep the laws written in the Torah, then that reasoning does not pertain to the substance of the law. It is a theoretical reasoning that says that what is written in the Torah must be kept. That I understood. But reasonings that generate laws not written in the Torah are by definition reasonings that pertain to the substance of the law itself. Otherwise, what reasoning is there to obey something if nobody said it? There we are definitely talking about content-based reasoning, reasoning that pertains to the law itself. Fine, that’s clear.

[Speaker E] Can the reasoning pertaining to the substance of the law obligate even if I did not arrive at the reasoning that says one has to keep it because it is maybe part of the Torah?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker E] You have some law — with that story about theft, I just don’t remember the details exactly — but he creates a situation where even if according to the Torah it’s not considered theft, you are still obligated because you may not enter someone else’s area or take something that belongs to someone else. Okay?

[Rabbi Michael Abraham] To violate someone else’s rights, yes. Yes.

[Speaker E] So now, what I understood Rabbi Shimon Shkop to be saying is that this law of not entering and taking someone else’s rights enters the framework of theft even if it is not found within the prohibition of theft, but is now something else entirely.

[Rabbi Michael Abraham] It is a legal application of theft, and now one can discuss what its force is — Torah-level, rabbinic, I don’t know what — but there is such a prohibition.

[Speaker E] Fine, but it is not written in the Torah. Right. Meaning, for the body of the law itself he used reasoning, not for the general point saying one must keep what is written in the Torah. Right.

[Rabbi Michael Abraham] Because when it is not written in the Torah, the reasoning always speaks about the substance of the law itself, because it is not reasoning of obedience, since there is no one to obey — nobody said it.

[Speaker E] But still Rabbi Shimon Shkop says one has to obey it.

[Rabbi Michael Abraham] Of course. What does “obey” mean here? There is nobody to obey; nobody commanded it. One has to keep it. One has to keep it because of the substantive reasoning, not because there is reasoning of obedience. Exactly.

[Speaker E] So here again, if he says that, then I assume the reasoning has to be of a very, very serious degree of logic and not something to split into levels.

[Rabbi Michael Abraham] And that can be discussed, I don’t know. But it may be that every level of reasoning obligates me; only the various levels of reasoning determine the status of the law or its halakhic severity. But the very obligation to keep it may perhaps exist at every level of reasoning. As long as my reasoning tells me that this should be done, then it is expected of me to do it. Certainly the strength or severity of the law can depend on the quality of the reasoning or its strength. I don’t know — that’s an open question. In any event, just as an example, look at this passage written by the Shevut Ya’akov, without going into all the contexts right now. He says: “Even according to the answer of Tosafot it is proven that the reasonings are not equal, for there is strong reasoning and weak reasoning. And similarly that case in Pesachim can also be resolved…,” I’ll skip the rest. Meaning, even if you say that reasoning is Torah-level — and that’s his discussion there — not all reasonings are equal. But “not all reasonings are equal” does not necessarily mean that the obligation to keep them will differ. That’s what I said earlier to Ezra. Meaning, the obligation to keep may be the same obligation to keep. The severity of the law may perhaps depend on the quality or strength of the reasoning. Okay, so let’s really go into the example. The Talmud in Berakhot talks about blessings over enjoyment, reciting a blessing over food before it. And the Talmud says this: it searches for a source for why one must recite a blessing — “Who creates the fruit of the vine” or “Who creates the fruit of the tree” and the like — and it does not find a source, it rejects all the sources, and in the end the conclusion is: “Rather, it is reasoning. It is forbidden for a person to benefit from this world without a blessing.” That is reasoning. “Our Rabbis taught: It is forbidden for a person to benefit from this world without a blessing, and whoever benefits from this world without a blessing has committed sacrilege. What is his remedy? Let him go to a wise man…” and so on — so that the wise man will teach him what to bless and so forth. Yes, and here too Rabbi Hanina bar Pappa said: “Whoever benefits from this world without a blessing is as though he robs the Holy One, blessed be He, and the Jewish people, as it is said: ‘He who robs his father and mother and says, It is no transgression, is the companion of a destroyer,’” and so on. In short, the Talmud reaches the conclusion that the obligation to bless before we eat is based on reasoning — so that I will not commit sacrilege, so that I will not rob, whatever it is: it is forbidden for a person to benefit from this world without a blessing.

[Speaker D] On this, Rabbi, this is reasoning in a religious context, right?

[Rabbi Michael Abraham] Meaning, okay, fine — not all reasonings are, yes?

[Speaker D] No, because there I do understand, for example, that this reasoning is really something the Torah — the Talmud — treats as actual Jewish law.

[Rabbi Michael Abraham] The Talmud there actually doesn’t see it that way; we’ll see that in a moment. The Talmud—so the Pnei Yehoshua there says, on the spot, in the Talmud: “Rather, by reasoning, it is forbidden for a person,” and so on. It sounds from the wording of all the halakhic decisors…

[Speaker B] Can you share the screen?

[Rabbi Michael Abraham] Ah, sorry, I thought it was already shared.

[Speaker B] Thanks. One second. Yes.

[Rabbi Michael Abraham] It sounds from the wording of all the halakhic decisors that according to this conclusion here, all blessings over enjoyment are rabbinic, except for Grace after Meals alone. Grace after Meals is written explicitly in the Torah: “You shall eat, be satisfied, and bless.” But the other blessings over enjoyment are rabbinic. And according to Rashba, the after-blessing on the seven species is also Torah-level, but regarding the other blessings he agrees. And in my humble opinion, at first glance this is puzzling, because throughout the Talmud it seems that anything derived from reasoning has Torah-level status, and on the contrary the Talmud asks: “Why do I need a verse? It is reasoning.” Fine. And then he goes into Tosafot there; that’s not important right now. What is he saying? He says: I don’t understand, says the Pnei Yehoshua, why we rule in Jewish law that the obligation to bless before eating is a rabbinic obligation, and therefore, for example, in cases of doubt regarding blessings we rule leniently, because the obligation to bless is rabbinic, and with rabbinic doubt we go leniently. He says: why? After all, if in the end the Talmud concludes that the obligation to bless comes from reasoning, then its status should have been Torah-level, because it says: “Why do I need a verse? It is reasoning.”

And then he says: “However, it seems to me, in my humble opinion, that even if you were to say that reasoning is also Torah-level, even so it still works out well that we hold that in cases of doubt regarding blessings we rule leniently, because there is no room to be stringent, since it is forbidden to recite an unnecessary blessing; therefore that reasoning falls away on its own.” And it still requires further analysis, and so on. Even he himself understands that this sounds very forced. Meaning, he’s basically saying that because with a blessing there’s the problem of an unnecessary blessing with the Divine Name and so on, therefore we are stringent not to bless. That’s not because of the rule that rabbinic doubt is treated leniently; it’s because of Torah-level doubt treated stringently. We spoke once before about leniency and stringency, so here he says: this is not because of rabbinic doubt treated leniently; this is because of Torah-level doubt treated stringently. Meaning, since I have a doubt whether I’m permitted to bless, then I might be uttering an unnecessary blessing, which is a Torah prohibition, so Torah-level doubt is treated stringently, and therefore we do not bless—not because rabbinic doubt is treated leniently.

But that is very forced. Everywhere it is clear that with doubtful blessings we go leniently. Not because it’s rabbinic doubt. More than that: if I needed to bless because of doubtful blessings, then I really would have to bless, so it also would not be a blessing in vain. Since the blessing is said because I need to bless, then it is not in vain. In short, that answer is forced.

It seems to me that the simpler way to understand this is that the obligation to bless, based on the reasoning that one may not benefit from this world without a blessing, basically means that I need to bless the Holy One, blessed be He—say, ask His permission—so that I won’t be a thief, or so that I won’t misuse what belongs to Heaven. You have to ask the Holy One, blessed be He, for permission: I’m asking to eat this apple. Okay. The Sages established, rabbinically, that one must bless using the Divine Name and kingship, with the standard and familiar formula of blessings over enjoyment. Okay? But that is only a rabbinic law. On the Torah level, in order to fulfill the demand of the reasoning, all I need to do is ask permission from the Holy One, blessed be He.

So now, when I am in a case of doubtful blessings, do I need to bless with the Divine Name and kingship? Certainly not. Why not? Because the obligation to bless with the Divine Name and kingship is rabbinic, and of course you can add the point that there is also a doubt here of an unnecessary blessing. But even without that, since the obligation to bless with the Divine Name and kingship is rabbinic, then with a rabbinic obligation, in doubt we go leniently. But there is also a Torah-level obligation to bless, and that obligation need not be done with the Divine Name and kingship; it can be done in your own words. And that—if the foundation is reasoning—then in a case of doubt you should be stringent about. Therefore I claim—and this is also how I rule in Jewish law—that if someone is in doubt, say you have an apple in your hand and you don’t remember whether you blessed or not. You’re in doubt. So in practice you do not recite the formal blessing, and it is even forbidden to recite it because it may be an unnecessary blessing, but according to what I’m saying here, you are obligated to ask permission, or say a blessing in your own words, without the Divine Name and kingship, in order to fulfill the Torah-level obligation, because with Torah-level doubt we are stringent. You may not be lenient with a Torah-level law.

So there is no contradiction. And in the students of Rabbeinu Yonah there on the Talmud, they actually write there—in two places there—that one who ate without a blessing brings a misuse-offering in the Temple. Now what does that mean, a misuse-offering? After all, eating without a blessing is a rabbinic prohibition. So unconsecrated slaughter in the Temple courtyard, and a misuse-offering? Once again you see that there is indeed some kind of issue here; apparently there is some Torah-level problem here. You can resolve it another way as well if you understand what a guilt-offering is, but I won’t get into that here. In principle, there really is a Torah-level transgression here if you didn’t bless. And I really do claim that if you bless in your own words and eat without the Divine Name and kingship—not in a doubtful case, but certainly: you bless in your own words, not with the Divine Name and kingship—you do not bring a misuse-offering, because you fulfilled the Torah-level requirement. You did not fulfill the rabbinic requirement, but for a rabbinic requirement you do not bring a misuse-offering.

[Speaker H] Rabbi, what does that mean if I’m in doubt whether I recited Grace after Meals?

[Rabbi Michael Abraham] There you have to be stringent—Torah-level doubt.

[Speaker H] So there I do repeat it? Yes.

[Rabbi Michael Abraham] By the way, that itself is proof against the Pnei Yehoshua’s answer. Because according to the Pnei Yehoshua it should turn out that even in a case of doubt about Grace after Meals we should be lenient. Because he wants to claim that even blessings over enjoyment before eating are Torah-level, because reasoning is Torah-level, and nevertheless in a case of doubt one should be lenient because of taking God’s name in vain. Fine—so why not in Grace after Meals? What’s the difference? It’s the same thing. So what he says is forced. It seems to me that…

[Speaker D] Doesn’t he mean there that because of taking God’s name in vain, it kind of weakens the reasoning?

[Rabbi Michael Abraham] What do you mean, weakens the reasoning? And how does that…

[Speaker D] matter? I don’t know, I didn’t understand the Pnei Yehoshua there. The way the Rabbi is presenting it, it sounds as if—not that there is no reasoning—but now I see in the Torah “do not take the name of the Lord,” so that weakens this reasoning that one should invoke God’s name in order to enjoy.

[Rabbi Michael Abraham] That is what he says, but it doesn’t weaken the reasoning; it just means that because there is a problem with God’s name, therefore one doesn’t bless—that’s his claim.

[Speaker D] Fine. In any case, as the Rabbi pointed out, that’s… And what the Rabbi is saying is only regarding blessings over enjoyment, right? Meaning the Rabbi’s innovation is only for enjoyment, not blessings over commandments?

[Rabbi Michael Abraham] Correct.

[Speaker C] Rabbi, couldn’t one explain it close to what the Rabbi may be saying—I was disconnected before—that basically the reasoning says that a person may not benefit from this world without a blessing? Meaning, there must be some significance to acknowledging God for the existence of the world. But you can’t constantly give thanks, bless over every breath and every… So in principle, if you fulfilled it with Grace after Meals, which is the basic food, I don’t know, something like that, then you’ve fulfilled the basic claim?

[Rabbi Michael Abraham] The Talmud says that one needs to bless before food from that very same reasoning.

[Speaker C] Yes, yes, but once you fulfilled it, you fulfilled the Torah commandment.

[Rabbi Michael Abraham] The Talmud does not say that. According to your view, the Talmud should have said that in fact there is no obligation to bless before food. Because if I recited Grace after Meals, then I already addressed that reasoning of misuse, because in Grace after Meals I blessed. The Talmud does not say that. The Talmud says that because of the concern of misuse one must bless before the food; it is not enough that you bless afterward.

So that is the Pnei Yehoshua. Now the Tzelach there attacks him. The Tzelach says: what do you mean? It’s obvious that doubtful blessings are treated leniently because the obligation to bless is rabbinic. So what is this whole business that the Pnei Yehoshua bases himself on, that “why do I need a verse? It is reasoning”? After all, if the Talmud says “why do I need a verse? It is reasoning,” the meaning is that what comes from reasoning has Torah-level status. So why…? That was the Pnei Yehoshua’s argument. So the Tzelach says that this applies only in places where the reasoning introduces a detail within an already existing law. If the reasoning introduces a new detail in an existing law—sorry, if the reasoning does not introduce… if the reasoning introduces a detail within an existing law—there we say, “Why do I need a verse? It is reasoning.”

Suppose there is a prohibition on eating pork, and suppose reasoning led me to conclude that the prohibition applies in the amount of an olive-bulk, and that less than an olive-bulk is not considered significant eating. Let’s say I had such a reasoning. Then the source—the law given to Moses at Sinai—that tells me the measure is an olive-bulk would be unnecessary; I have reasoning. But notice that all of this concerns a prohibition that already exists and is written in the Torah: it is forbidden to eat pork. The only question is what the threshold of the prohibition is; about that I have reasoning. And if the reasoning were good enough, then I would not need a verse.

But the Talmud in Berakhot that we just saw is speaking about reasoning that is not a detail within an existing law. It is reasoning that establishes an entirely new law: that one is obligated to bless before eating. That is not a detail within an existing law; it is a new law—an obligation to bless before eating. The Tzelach says: reasoning that establishes a law—not a detail within an existing law, but a new law—certainly is not Torah-level. Meaning, what is he basically saying? In the two places in the Talmud that I mentioned—we didn’t see them here, but I mentioned them—where the Talmud says, “Why do I need a verse? It is reasoning,” namely “the burden of proof rests on the claimant” and “the mouth that prohibited is the mouth that permits,” in both those places the reasoning introduces a detail within an existing law. It says “Judge your fellow with righteousness.” Now “with righteousness” means based on evidence, with the rules of procedure and everything required; then you ask, based on reasoning, what the correct procedure is and what is good evidence and what is weaker evidence. So there reasoning can tell me what “Judge your fellow with righteousness” means, because there is a verse, “Judge your fellow with righteousness,” and reasoning serves me in interpreting the verse; this is interpretive reasoning. It is not reasoning that creates a new law from scratch; rather, by means of reasoning I understand what the verse means.

But in blessings over enjoyment we are dealing with constitutive reasoning, not interpretive reasoning. It is reasoning by whose force a new law is created out of nothing; it is not reasoning that interprets some verse. There, says the Tzelach, we do not say, “Why do I need a verse? It is reasoning.” There it is obvious that without a verse it would not be Torah-level; reasoning alone would not be Torah-level. Why is that obvious? What?

[Speaker C] Why is it obvious?

[Rabbi Michael Abraham] First of all, it is obvious because we see that doubt regarding blessings over enjoyment is treated leniently. So you see that despite…

[Speaker C] But look, you can answer that also according to the…

[Rabbi Michael Abraham] No—what do you mean?

[Speaker C] But you can… the blessings over enjoyment can also be explained according to the Pnei Yehoshua.

[Rabbi Michael Abraham] The Pnei Yehoshua himself did not explain it that way; I suggested an explanation. What the Pnei Yehoshua himself answered does not hold water. So according to the way the Pnei Yehoshua understood it, this is really a Torah-level law with respect to which we go leniently in cases of doubt. The Tzelach says: your eyes can see that this is not a Torah-level law. You’re assuming—what led the Pnei Yehoshua to say this? The Talmudic passages that say, “Why do I need a verse? It is reasoning.” The Tzelach says: that has nothing to do with this; it proves nothing. Those passages there speak about interpretive reasoning; here we’re talking about constitutive reasoning. Constitutive reasoning creates a rabbinic law.

Now what is the idea behind this? The idea behind it is of course connected—and I won’t get into details—but the idea is basically that for something to be Torah-level there must be a command about it. Without a command it is not Torah-level. Yes, the examples that always spring to mind… Say there were no law forbidding driving through a red light. But it would still be dangerous: people are crossing there at the crosswalk, and you’re driving through the red light in your car, so that’s very dangerous. Okay? It is dangerous, and therefore it makes sense not to drive through a red light. But as long as the law does not forbid it, then there is no law; it is not an offense. It is a moral offense, but not a halakhic offense—or a legal offense, in this case. In other words, there has to be a command for the halakhah to have the status of Torah law.

[Speaker D] And therefore here—I know the Rabbi really strongly holds by this reasoning—that every Torah law requires both a rationale and a command.

[Rabbi Michael Abraham] That’s not reasoning; that’s a definition.

[Speaker D] Yes, the Rabbi holds by that, so why then does the Rabbi rule stringently in this matter of blessings over enjoyment?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker D] The Rabbi said that because of this reasoning of blessings over enjoyment, that it is Torah-level—but there isn’t a command, as the Rabbi is now saying.

[Rabbi Michael Abraham] No, I didn’t say it was Torah-level.

[Speaker D] The Rabbi…

[Rabbi Michael Abraham] I said that if you were to say that reasoning is Torah-level, according to the Pnei Yehoshua, then you don’t need to reach his forced answer; I have a better answer for him.

[Speaker D] Yes, but the Rabbi said that this is also how he rules.

[Rabbi Michael Abraham] Even if this reasoning really were Torah-level—I agree with the Tzelach that it is not Torah-level.

[Speaker E] Okay.

[Rabbi Michael Abraham] But by the way, again, I still won’t agree with you in a third move, and I say: despite the fact that it is not Torah-level, its doubt is treated stringently. And that is related to things I said about Maimonides’ position. My claim is that anything whose foundation is reasoning—according to Maimonides, you need both reasoning and command for a law to be Torah-level. If there is a command without reasoning, or reasoning without a command, then it is rabbinic. But my claim—and there is various evidence for this—is that there will be a difference between these two types of rabbinic law: reasoning without a command, and command without reasoning. In the case of reasoning without a command, its doubt is treated stringently, even though it is rabbinic. And in the case of command without reasoning, its doubt is treated leniently. Therefore I claim that a law derived from hermeneutic principles, which according to Maimonides is rabbinic in nature and everyone attacks him for that—well, the doubt concerning such laws is treated stringently. You see that in many places. That’s how the Rabbi would explain it.

[Speaker D] So it’s a rabbinic law whose doubt is treated stringently.

[Rabbi Michael Abraham] And the reason for that is that the rule of treating doubt stringently, even in Torah law, is not because it is Torah law, but because there is reasoning there. And every Torah law has reasoning. And what is the idea behind that? Once there is some reasoning here, that means there is a rationale. What is reasoning? It means there is a rationale to this thing. So that means that if you—say you are about to eat pork, and you don’t know, say something is in front of you and you don’t know whether it is pork or not. If you eat it, there may be some problematic result here. Right? If you’re in doubt, there is some concern for that problematic result. So let’s say even according to Maimonides, Torah-level doubt is fundamentally treated leniently; it is only a rabbinic law that one should be stringent. But on the Torah level, Torah-level doubt is treated leniently. Fine? Still, it is obvious that there is some concern here that if you eat the pork there is a problem. Therefore someone can come and say that although this law is rabbinic, one should still be stringent about it. One should be stringent because there is concern that you will bring about the harm that this prohibition was meant to prevent. In that sense it is like a Torah law. So if in Torah law I am stringent in cases of doubt, then in this case too I will be stringent in cases of doubt.

Therefore I want to claim that although earlier I said what I said in order to explain the Pnei Yehoshua on his own terms, if you ask me what I think, I still think this is correct in practice as well. I claim that a law newly created—not interpretive reasoning, but reasoning that establishes a new law—is not Torah-level. It is not Torah-level because there is no command for it. But I still claim that its doubt is treated stringently. Okay? That is basically the claim.

[Speaker C] But what exactly is the meaning of a command? I don’t quite understand it. For example, in the example the Rabbi gave about driving through a red light: suppose we had some properly functioning Scandinavian state, where there simply is no law, because everyone is careful and sees red and understands this is human life, and no one even imagines driving through a red light, risking even a hair on someone’s head. And then suddenly some typical Israeli appears and drives wildly and crazily and mows down children there, and they stop him and he says, “Guys, it’s not written anywhere that it’s forbidden.” He’s right. What is the meaning of the fact that it isn’t written? What does the Rabbi really think the significance is here of “it’s not written”?

[Rabbi Michael Abraham] I said—that is the significance. He is completely right in his claim. You cannot judge him. You can punish him in the moral sense, in that he is an immoral person. But legally… in order to judge, there has to be a law. You cannot judge a person if there is no law.

[Speaker C] But even judging is based on reasoning. What? Does the Rabbi really think they would say, fine, okay—and not use reasoning, and say plain common sense, you don’t do such a thing? If no one in the country does that, you can’t…

[Rabbi Michael Abraham] But in order to judge a person there has to be a law. You can’t judge a person if there is no law.

[Speaker E] What you’re saying—that a reasonable person doesn’t do this—you can argue that in civil law, because the person who was harmed can come and ask for compensation…

[Rabbi Michael Abraham] You can also speak about a general duty of care.

[Speaker E] Exactly. And it doesn’t matter whether there is a specific law or not.

[Rabbi Michael Abraham] That’s also criminal. Right.

[Speaker C] So by the same reasoning you’re saying, then in Sodom too it would really make sense…

[Rabbi Michael Abraham] that there’s no need to legislate…

[Speaker C] there too there is a general duty of care.

[Rabbi Michael Abraham] The law says that there is a general duty of care.

[Speaker E] Negligence is defined by failure to uphold a duty of care.

[Rabbi Michael Abraham] What a reasonable person does is a criterion for what the general duty of care requires. But if the law did not contain a general duty of care, it would be impossible to judge a person. On what basis would you judge him?

[Speaker C] Formally I agree, obviously. I agree formally that that is the situation, but that’s just an entirely formalistic matter.

[Rabbi Michael Abraham] The whole legal matter is formalistic. Law is formal.

[Speaker C] But its significance is extremely weak in a properly functioning state. Here, take Nazi laws. It wasn’t written, and they said, “We followed the law,” and at Nuremberg they said there are things that common sense tells you—you don’t need a law to say you may not murder.

[Rabbi Michael Abraham] In a properly functioning state, people are not judged without a law.

[Speaker C] But look, in the Nuremberg trials there was no law. They followed German law…

[Rabbi Michael Abraham] to the letter, and indeed they did extraordinary legal gymnastics in order to…

[Speaker C] And the Rabbi wouldn’t have done those gymnastics? The Rabbi would have released Eichmann and all of them?

[Rabbi Michael Abraham] It’s possible I would not have released him, in order to protect society, but you can’t…

[Speaker C] He wouldn’t endanger society, Rabbi. Eichmann at age…

[Rabbi Michael Abraham] forty-two wasn’t endangering society. I’m speaking from a legal standpoint. What the court in Nuremberg did, in my opinion, was moral judgment, not legal judgment. Afterward came Dworkin’s principles and all sorts of legal tricks and twists in order to justify that move. But all those contortions really testify about the case itself. But leave it—I won’t get into these very, very extreme cases, where one can say that it’s as if there were a law, because it’s already so extreme that it’s as if the law itself said it, even if it didn’t explicitly say it. Fine, there are all kinds of pilpulim around this issue. Fundamentally, you need a law in order to judge, and the same is true in halakhah. For a halakhah to be Torah law, there has to be a law establishing it. That is, there has to be a command in the Torah. Without that, maybe you have behaved improperly and maybe people will have moral complaints against you of one kind or another, but you cannot say that you violated a Torah prohibition if there is no law.

Reasoning can interpret an existing command, as I said with the general duty of care. If there is an existing command, reasoning can explain to me its parameters—when one violates it, when one does not, what it does say, what it does not say. That is obvious; there is no interpretation without reasoning. Interpretations are always made on the basis of reasoning. But when reasoning establishes a new law rather than interpreting an existing law, the Tzelach is right: it is not Torah-level. So therefore, for example, in such a situation it is impossible to judge the person, certainly impossible to flog him. There is no such thing. Without a command there is no… You cannot flog a person for violating a prohibition that comes from reasoning. You can punish outside the regular law, from some other authority, but not lashes in the ordinary halakhic sense.

So that is regarding the dispute between the Tzelach and the Pnei Yehoshua. And here we see that the status of reasoning is a kind of special status. That is, when it serves me in interpreting an existing law, then indeed if I have reasoning, there is no need to write it in the Torah—not the law itself, but this particular detail that I derive from the reasoning. There is no need to write it in the Torah because I would derive it by reasoning. But if there is no existing law and the reasoning establishes a new law, then if it is not written in the Torah its status is not like Torah law. Therefore in the end the Talmud that speaks about blessings over enjoyment and sees them as rabbinic law does not contradict “Why do I need a verse? It is reasoning.” “Why do I need a verse? It is reasoning” applies only to interpretive reasoning, while the Talmud about blessings over enjoyment is speaking about reasoning that establishes a new law rather than interpreting an existing law.

Now perhaps one more comment about reasoning. In several places we find—let’s take a familiar example, one we already saw once—the Talmud in Pesachim speaks about “You shall fear the Lord your God”—the word “et” comes to include. There the Talmud says as follows: “And the other one—does he not expound ‘et’? As it was taught: Shimon HaAmsuni, and some say Nechemiah HaAmsuni, would expound every ‘et’ in the Torah. Once he reached ‘You shall fear the Lord your God,’ he stopped and did not expound. His students said to him: Rabbi, what will become of all the ‘ets’ that you expounded? He said to them: Just as I received reward for the exposition, so I receive reward for refraining. Until Rabbi Akiva came and expounded: ‘You shall fear the Lord your God’—to include Torah scholars.”

Shimon HaAmsuni basically belonged to Rabbi Akiva’s school. Rabbi Akiva’s school derived inclusions from the word “et.” But he got stuck on the verse “You shall fear the Lord your God.” When he reached that verse he could not find what to expound, and I’ve explained more than once—I dealt with this in other series, not really in this one—and I said that if you come to include someone else in addition to the Holy One, blessed be He, that is a problem. Whom can one include as being like the Holy One, blessed be He, such that one must fear him as one fears the Holy One, blessed be He? Therefore Shimon HaAmsuni says here: it cannot be that I will find something to include from the word “et” in this verse. And then he decided: well, if so, I need to give up this mode of exposition—I basically need to reject this hermeneutic rule that whenever the word “et” appears, it comes to include something. Then suddenly Rabbi Akiva comes and says: no—“You shall fear the Lord your God” comes to include Torah scholars.

In other words, still—why? What is the discussion here? After all, what would Rabbi Akiva have said if the verse “You shall fear the Lord your God” did not exist? Would he have had reasoning saying that one must fear Torah scholars? I tend to think not. Why? For exactly the same reason that Shimon HaAmsuni did not want to include Torah scholars from this verse. Fear is something we are supposed to direct only toward the Holy One, blessed be He, not toward human beings. Therefore by reasoning, if you had asked him, one need not fear anyone but the Holy One, blessed be He. But there is a verse, says Rabbi Akiva: “You shall fear the Lord your God.” And “et” comes to include—that is his assumption. So now I’m looking: okay, what does it include? I have to include something, because there is a verse. Now I look for what to include—fine, I look for what is least implausible. As I said, on the level of reasoning itself it is not right to fear anyone, anything. Okay? That is the starting point. But what can I do—the verse, or the interpretive rule, tells me that I nevertheless have to include someone here whom one must fear. Because “et” always comes to include, so that forces me to compromise and look for something that one nevertheless should fear. So I look for what is least implausible, and that is what Rabbi Akiva proposes: Torah scholars.

[Speaker D] So according to Shimon HaAmsuni, he said it’s not forced from “et”? I didn’t understand. And according to Shimon HaAmsuni, then it doesn’t have to be forced from the “et”?

[Rabbi Michael Abraham] Shimon HaAmsuni apparently did not assume with certainty that “et” comes to include. That is what he thought. But he encountered a counterexample, and so he concluded that apparently what he thought was not correct. I wrote a column about this on my website; you can see it there. Maybe I’ll send it to you later.

[Speaker C] Rabbi, I didn’t understand why Rabbi Akiva could not accept the heroic act of Shimon HaAmsuni. Much nicer, much more correct. If you see that it’s impossible and the reasoning says that nothing can fit there…

[Rabbi Michael Abraham] It’s a relative question. Rabbi Akiva assumed that the hermeneutic rule that one includes from the word “et” is clear.

[Speaker C] More than the honor of the Holy One, blessed be He? Yes, yes.

[Rabbi Michael Abraham] Therefore he says: if so, then here we have to force things a bit—there’s no choice—because there is an “et” that comes to include. From Shimon HaAmsuni’s perspective, this hermeneutic rule that includes from “et” was not so unequivocal. He thought it was true, but he was also willing to accept a counterexample and understand that apparently it was not true. By the way, the argument here touches on the philosophy of science, Popper and the confirmation of a scientific theory and so on. I wrote about it on my site, in a column there; I’ll send it to you on WhatsApp if you want.

In any case, what do I want to learn from here? That Rabbi Akiva used reasoning here, but that does not mean the law that came out of that reasoning is a law that could have been derived without a verse. About such a law you cannot say, “Why do I need a verse? It is reasoning.” Why not? Because if there had been no verse, Rabbi Akiva would not have said that one must fear anyone. It’s not that the reasoning is not reasoning on the substance of the law. Rather, once the verse forces me to include someone whom one must fear, now I activate my reasoning in order to understand whom. Who is least unsuitable, yes, who is least mistaken? Torah scholars seem least mistaken. That is a move of reasoning. But the reasoning is not reasoning that says one must fear Torah scholars. The reasoning is interpretive reasoning that says: if I already have to include someone, then the least implausible choice is Torah scholars.

Now here it is obvious that you cannot say, “Why do I need a verse? It is reasoning.” Without the verse I would not say this law. Without the verse I would say not to fear anyone. Therefore you need the verse. The fact that there is reasoning does not make the verse unnecessary, even according to the Pnei Yehoshua. Okay? And I want to say more than that. All the laws learned from hermeneutic exposition are basically learned in this way. People are used to thinking of a derashah as if it were some kind of decree of Scripture, like a verse, but that is not correct. In every derashah the interpreter’s reasoning is involved. There is no derashah without the interpreter’s reasoning. But in most cases—and perhaps one can even say in all of them—the reasoning is not reasoning sufficient to establish the law on its own, without the derashah altogether. Because if that were so, you would not need a derashah. The reasoning itself would say it.

When I say that reasoning serves the interpreter,

[Speaker D] that’s only according to the Pnei Yehoshua, though—one second.

[Rabbi Michael Abraham] when I say that reasoning serves the interpreter in reaching his conclusion, that usually means that the reasoning by itself is not enough to produce the law. I needed the derashah. And once I have the derashah, the reasoning only tells me what the content of the derashah is. In that sense, it is interpretive reasoning. Let me give some examples.

For example, when we make a verbal analogy—“lah, lah”—between a slave and a woman. We make a verbal analogy between a slave and a woman. Now, even after I have the verbal analogy between slave and woman, I can still ask myself: with respect to what? With respect to the fact that a slave too is acquired in three ways—money, document, and intercourse? In what respect am I comparing slave and woman? On this point the verbal analogy itself says nothing. The verbal analogy only says that I need to compare. But compare in what respect? Here the interpreter’s reasoning comes in. And there will be things he will not learn from slave to woman or from woman to slave—for example, that a slave is not acquired by money, document, and intercourse. Meaning, there are things I will not derive from the verbal analogy and things I will. Who decides what yes and what no? Reasoning. But the reasoning does not say the law itself. The reasoning tells me what I can derive from the verbal analogy and what I will not derive from the verbal analogy.

Exactly like “You shall fear the Lord your God,” where the reasoning comes to tell me what I should include. But why include at all? That is because of the hermeneutic rule that “et” comes to include. The same with verbal analogy. Why am I comparing slave and woman in the first place? Because of the verbal analogy, not because I have reasoning that they are similar. The verbal analogy says to compare. The reasoning comes to say what I am going to do by force of the verbal analogy.

And that is how it is in all derashot. All the hermeneutic principles always deal with a textual trigger. They always involve some sort of textual appearance that tells me to do something. For example, a generalization followed by particulars tells me to include around the particulars. A verbal analogy tells me to compare the two contexts. A paradigmatic source tells me to compare two contexts as well—not important. Every such hermeneutic principle basically tells me: given a certain textual phenomenon, what does that mean for me, what am I supposed to do once I find such a textual phenomenon. But after that general instruction—you have to include, you have to compare, you have to exclude, you have to whatever, do all kinds of things like that—reasoning always comes and tells me what to compare, what to include, what to exclude, and what not to. “Derive from it and from itself, or leave it in its place.” I compare in one respect, but I apply it in a way appropriate to that context there. I do not apply it as is, taking everything from here over there.

Therefore, reasoning is always involved in derashot. But reasoning always comes in stage two. The hermeneutic rule is the trigger that tells me: here is a textual phenomenon that compels you to do something—to include, exclude, compare, and the like—and then reasoning comes and tells me what to include or what to exclude, and so on. Okay? In this sense, even if I do not accept Maimonides, but rather the view of most medieval authorities, that laws derived from derashot are Torah-level laws—why are they Torah-level, if they are based on reasoning? Because this is interpretive reasoning. It is not constitutive reasoning. Since the source is really the derashah from the verse, the reasoning only told me how to apply the derashah or what the parameter is of what emerges from the derashah. Therefore this is interpretive reasoning, but I have a source in the Torah for this law. So one can relate to this law as a Torah-level law. Maimonides claims not so, because he does not see the derashah as a source but only as some kind of hint. Never mind that. On the conceptual level, I want to show that although reasoning is involved here, this law is Torah-level not because of the reasoning. This law is Torah-level because of the derashah. The reasoning only told me how to apply the derashah, or what the correct result of the derashah is.

So again I return to what I said earlier: reasonings do not have a status that creates Torah law—except when they are reasonings that interpret an existing law or existing source. And reasoning that establishes a new law will not be Torah-level. There is, by the way, an opinion in the Talmud about reasonings that interpret and not reasonings that establish. Yes.

[Speaker D] Does the Rabbi basically agree that there can really be three kinds of reasoning? Reasoning outside the religious context altogether, rabbinic reasoning, and Torah-level reasoning?

[Rabbi Michael Abraham] Yes. Reasoning—for example, blessings over enjoyment are rabbinic reasoning. Blessings over enjoyment are reasoning of the third type. Only because the Sages established it as an obligation did it become a rabbinic law. If the Sages had not established it as an obligation, with the formal text and the Divine Name and kingship and so on, then there would have been an extra-halakhic obligation, moral if you like, it doesn’t matter, to bless—an obligation arising from reasoning. It would have been neither rabbinic nor Torah-level. Exactly like moral obligations, like the trait of Sodom, going beyond the letter of the law, and things of that sort.

[Speaker D] Okay?

[Rabbi Michael Abraham] Moral reasonings, for example. Morality too is reasoning. And in my view—I’ve mentioned this more than once—

[Speaker D] yes—

[Rabbi Michael Abraham] morality is not part of halakhah. These are two independent categories. So one must also… one must conduct oneself according to moral values. One must behave morally, obviously. But that is not part of halakhah. It comes from reasoning, and that reasoning obligates, but it is not halakhah—not rabbinic and not Torah-level.

[Speaker D] So it’s only a matter of what the Sages took as reasoning, and then it became rabbinic.

[Rabbi Michael Abraham] I said—for example, blessings over enjoyment. Absolutely. At some stage the Sages have to do something with the reasoning in order for it to enter halakhah. If the Sages do nothing with it, it remains extra-halakhic reasoning, and there will be a claim against you if you don’t act on it—a moral claim or something like that—but not a halakhic one.

[Speaker D] And also what the Rabbi said, that if there is reasoning to establish the law, then you don’t need to include it from the verse—according to the Tzelach that’s not quite exact. No, clearly.

[Rabbi Michael Abraham] That is only where the reasoning defines an existing law, or adds a detail within an existing law. There the Talmud says, “Why do I need a verse? It is reasoning.” I brought examples. There is the law of “Judge your fellow with righteousness.”

[Speaker D] Now some of the laws, the Talmud and the medieval authorities…

[Rabbi Michael Abraham] say are from reasoning—such as “the mouth that prohibited” or “one who seeks to take from another bears the burden of proof.” But these are reasonings that interpret the law of “Judge your fellow with righteousness.” Therefore there the Talmud says, “Why do I need a verse? It is reasoning.” But regarding reasoning that establishes a new law, no one would say, “Why do I need a verse? It is reasoning.” The Talmud always asks, “From where do we know this?” It is always looking for a source; there is no law without a source.

[Speaker D] Right. So what the Rabbi—no, before that the Rabbi said with Rabbi Dadon and the “et,” that the way inclusive derashot work is to find the why, the obligation that I need to include, and then see what is most reasonable to include.

[Rabbi Michael Abraham] Right. In inclusions, in all derashot.

[Speaker D] Yes, in all derashot. So the Rabbi said that in most cases there is no reasoning, rather I do it because I have to do it and I just take what seems most plausible.

[Rabbi Michael Abraham] Not reasoning strong enough that I would build the law on it by itself. It could be that once the law already exists, I can also give it a rationale.

[Speaker D] I’m saying maybe that’s not necessarily so, because even if I had very strong reasoning, the inclusion still gives me the option of turning it into Torah law according to the Tzelach.

[Rabbi Michael Abraham] Ah—that the derashah is not unnecessary even if the reasoning is very strong. Yes. Because in places where we are dealing with the establishment of a truly new law—for example, fear of Torah scholars, I don’t know whether you’d say that’s part of fear of God, but here it looks more like a new law. Yes, agreed. Okay, we’ll stop here. This is the end of the series. We’re now going into the break between terms. Next time we’ll begin a new series; we’ll send a message.

[Speaker B] Yishar koach! Thank you very much! Can I ask a question? Yes, yes. Thank you very much. Rabbi, I wanted to ask about the very last thing you said regarding what comes first—whether it’s the interpretive need arising from the verses or the reasoning. It seems to me that once, in another series, but also from my own intuition, there could perhaps be a situation where a Torah scholar feels that something is necessary, he has some kind of reasoning, and he looks for textual grounding in the verses in order to expound it? Certainly. Because the Rabbi just said that this is stage two.

[Rabbi Michael Abraham] No. In derashot, once the interpretive trigger exists, you use reasoning to understand which conclusion to go toward. You can take it in various directions. But there could also be a situation where I already have prior reasoning that one must fear Torah scholars, and I look for a source to anchor it in the Torah, because unless I anchor it in the Torah it will not be Torah-level. Let’s say according to Maimonides, even after the derashah it still wouldn’t be Torah-level, but say according to most medieval authorities. Okay? And then I find this derashah of “You shall fear the Lord your God,” which parallels what I said earlier. Meaning yes—the reasoning can be strong enough to generate the law, and nevertheless you still need the derashah in order for the law to be a Torah-level law and not merely an extra-halakhic obligation.

[Speaker B] I’ll add that what made me think of that example is the rabbinic story about “An Ammonite, but not an Ammonite woman; a Moabite, but not a Moabite woman,” where Boaz was basically looking for a way to permit Ruth.

[Rabbi Michael Abraham] Yes, I gave several examples of this when I spoke about Yitzhak Gilat, whose book Chapters in the Development of Halakhah drew very sharp criticism, because Gilat presents a picture there as if the Sages basically use halakhic tools to solve problems. For example, after the destruction of the Temple an economic problem arose, so the Sages reduced the force of the obligation of the Sabbatical year and said that the Sabbatical year in our times is rabbinic, and then one can adopt various leniencies because they needed it for economic problems. And I argued—and not only argued, just read there, that is what he writes. His claim is not that the Sages are playing games there—

[Speaker F] but rather that they went looking for a halakhic mechanism.

[Rabbi Michael Abraham] The trigger was economic distress. But afterward they really looked for a mechanism, and in their view that mechanism holds water. It’s not that they’re playing a game just to solve their economic problem. The economic problem was only the motivation to look for such a derashah or such a source. And after that, the source has to stand; it has to hold water.

[Speaker B] Yes, I studied that column—it’s a really foundational piece, it makes a lot of sense and resolves internal conflicts that sometimes genuinely come up.

[Rabbi Michael Abraham] Reform Jews don’t bother doing that. When I spoke about the difference between Reform and Orthodox, I said that for Reform, the need itself constitutes a justification. Whereas for the Orthodox, the need also plays a role—contrary to the apologetics that say needs don’t interest us at all—but the need can at most be motivation to look for a justification that holds, and the justification has to stand on its own. Yes, excellent.

[Speaker B] Thank you very much, Rabbi, for the lesson and for the series and for your time. Thank you very much.

[Rabbi Michael Abraham] That’s it? Okay.

[Speaker F] It was very interesting. Thank you very much. Thank you. All the best to you.

[Rabbi Michael Abraham] Goodbye.