Learning from Experience – Lesson 10

[Rabbi Michael Abraham] Last time we began—that is, we talked about presumptions based on three occurrences, like with a forewarned ox, menstrual cycles, brothers who died because of circumcision, yes, a lethal woman, all those situations. We explained that what really stands behind these generalizations is apparently the principle of abduction. We’re basically looking for the theory responsible for the three examples, and on that basis we can also predict additional cases. So the induction we make—the generalization to further cases—is always a function of the theory that we formulate from the cases already known to us, and that’s the abduction. There is no induction without abduction in the background. And therefore, in the case of a presumption based on three occurrences, we saw that the Talmud already starts with this, and afterward the commentators and halakhic decisors distinguish between situations where we have a plausible or possible theory—in which case we follow the presumption of three occurrences—and a situation where we just have something that happened three times and there’s no reason to think there’s something common here, because maybe it’s just luck. We talked about that there in the Talmud in Yevamot, and in such a case we really won’t make the induction. Where there is no abduction in the background, we won’t make the induction.

After that I said that in the Talmud, and in Jewish law generally, presumptions of three occurrences can also appear in another sense—not only in the sense of three times as proof, but maybe also three times as habituation. With a forewarned ox there’s room to hesitate—we’ll see in a moment—but the commentators discuss many presumptions and ask whether a presumption of three occurrences means that after three times we have proof of something—in other words, three accumulated pieces of evidence are enough to establish some kind of presumption. And we talked about whether this is to remove an existing presumption, to create a presumption, to take money away, to establish a monetary claim—or maybe three times can also be a presumption of habituation. Meaning, after something happens three times, the assumption is that it will continue to happen, because the situation has become habitual, or the person has become used to doing it three times, so he’ll probably keep doing it. And there’s a discussion whether a three-time presumption is a presumption of conduct, a presumption of habituation, sorry, or a presumptive proof.

And I brought the Kehillot Yaakov—there’s a long Kehillot Yaakov on this in Tohorot, section 47, 26 I think in the new edition—where he talks about all these presumptions and brings various disputes. He discusses there how it can be that we derive one from another if one is habituation and the other is a presumption, or in general the dispute between Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel over whether a presumption is created after two times or after three times—why do we assume it’s the same everywhere? Maybe in habituation it’s one way and in proof it’s another. I expanded on that and said that even presumptive proof itself—who says that in every context the evidentiary force after three times is the same? Maybe there are contexts in which two times are enough to count as proof, and other contexts where you need three times for them to count as proof. But the Talmud assumes not.

And from there I argued—and really the Chazon Ish said this to his brother-in-law the Steipler—that even if there is a presumption of conduct and a presumptive proof, sorry, and a presumption of habituation, that doesn’t mean they can’t be compared, because the comparison is not substantive; it’s formal. Because in the end, the decision that after three pieces of evidence I’m satisfied enough to establish a presumption—like the presumption regarding land ownership, menstrual cycles, and the like—is obviously an arbitrary decision. After all, two pieces of evidence also have some degree of force, and maybe one could have required four, five, ten times in order to establish a presumption. Why draw the line specifically at three? Clearly, we have to draw some formal line somewhere, to cut the continuum—to set some threshold that halakhically will count as proof, and therefore we set it at three times.

Now, if the concept of three is not the result of saying, “I’ve reached evidence at a level of seventy percent,” but rather the strength of evidence is some continuum between zero and one, and after three times I draw the line—for me that’s enough. Even though in some contexts it’s evidence at sixty percent, in other contexts it’s evidence at ninety percent. That doesn’t matter, because we don’t measure percentages anywhere, and we usually have no way of doing so. So what we do is establish a formal rule: if there were three indications, that’s enough for me. And if that’s so, then there’s definitely room to say that if formally we say that three cases count, for us, as something fixed, then the same will be true both for proof and for habituation. Not because they’re really the same thing, but because in both cases you need to draw a line to determine when you’ve become habituated or when there’s sufficient proof. And if Jewish law says the line comes after three times, then it’s very plausible that if they do it here after three times, they’ll do it there after three times as well. That doesn’t mean we’re really comparing a presumptive proof to a presumption of habituation substantively. Rather, Rabban Shimon ben Gamliel says the line passes after three times, so he’ll say that both in presumptions of proof and in presumptions of habituation. Rabbi says it passes after two times, so he’ll say that both in presumptions of proof and in presumptions of habituation, because he thinks the formal line passes after two times. That’s all. Not because there is really a substantive basis to compare all these contexts to each other.

So that’s what we talked about up to last time, and then at the end last time I started talking about a specific example from which this whole discussion emerges—presumptions of proof or presumptions of habituation—and that’s the example of the forewarned ox and the dispute regarding veten tal u-matar livrakhah, and the comparison to the forewarned ox. I started that, and today I want to open it up a bit more, and in the end I’ll also derive from it itself some insight about abductions. So I’ll begin again with this discussion about forewarning and veten tal u-matar livrakhah. I’ll share again the source sheet, this file. Okay.

So the Mishnah in Bava Kamma says: “What is an innocuous ox, and what is a forewarned ox? A forewarned ox is any about which testimony was given on three days, and it returns to being innocuous once it refrains for three days—these are the words of Rabbi Yehuda. Rabbi Meir says: a forewarned ox is one about which testimony was given three times, and it returns to being innocuous once children handle it.” What does that mean? According to Rabbi Meir, it becomes forewarned if testimony was given three times, even if those three times were on the same day. According to Rabbi Yehuda, it’s three times that must happen on three different days.

The Talmud explains here why—what’s the idea? What is Rabbi Yehuda’s reason? Abaye said: “‘Yesterday’—one; ‘the day before’—two; ‘three days ago’—three; and its owner did not guard it’—the verse teaches regarding a fourth goring.” So he derives from the verse that it requires three days. Yes, “yesterday, the day before, and today” is three days. Rava said: “Yesterday, the day before”—doesn’t matter, Rava says something else. And what is Rabbi Meir’s reason? As it was taught: Rabbi Meir said, “If when it spaced out its gorings he is liable, then if it concentrated its gorings, all the more so.” And Rabbi Meir too agrees with the scriptural derivation Rabbi Yehuda brings, and we see that in three days the ox becomes forewarned. Rabbi Meir says: if in three days it becomes forewarned, then with three gorings in one day all the more so it becomes forewarned. Meaning, Rabbi Meir says that if it’s true over three days, then it’s also true in one day.

So what is the dispute, really, between Rabbi Yehuda and Rabbi Meir? The dispute is not over what is derived from the verse. Both derive from the verse the same thing—that an ox becomes forewarned with three gorings over three days. Rather, according to Rabbi Yehuda, three gorings in one day are weaker than three gorings over three days, while according to Rabbi Meir they’re stronger. What’s the difference? If the verse tells me that after three gorings over three days the ox becomes forewarned, then according to Rabbi Yehuda it’s only there—but with three gorings in one day I don’t have proof, and there it does not become forewarned. According to Rabbi Meir, it’s an a fortiori argument: if with three gorings over three days it becomes forewarned, then with three gorings on the same day all the more so it becomes forewarned.

Fine. So the dispute is really over three gorings in one day: does that make it forewarned or not? And the root of the dispute is the question whether three gorings in one day make the ox more forewarned than three gorings over three days, or less. According to Rabbi Yehuda it’s less; according to Rabbi Meir it’s more. That’s the dispute. By the way, in practice Jewish law follows Rabbi Yehuda. Yes, Maimonides says here: “What is a forewarned ox? Any about which testimony was given on three days. But if it gored in one day, or bit, or crouched, or kicked, or butted”—all these are derivatives of goring—“even a hundred times, it is not forewarned.” Meaning he rules according to Rabbi Yehuda, that if it happens in one day, then it is not forewarned; only on three different days.

Okay, those are the data. Now I return to the Tur, Orach Chayim 114, which brings the Jerusalem Talmud: “One who prays and does not know whether he mentioned or did not mention”—this is talking about veten tal u-matar livrakhah, or rather mashiv ha-ruaḥ u-morid ha-geshem—“does not know whether he mentioned it or not. Before thirty days, there is a presumption that he says what he is accustomed to saying; from then onward, he says what he needs to say.” Meaning, before thirty days, we assume he said what he had been used to saying in the past. After thirty days, we already assume he has become accustomed to the new formula.

As a result, what happens within thirty days if he is in doubt whether he mentioned it or not? Suppose during those thirty days he has a doubt—he doesn’t remember whether he said mashiv ha-ruaḥ u-morid ha-geshem or whether he said “who brings down the dew.” He doesn’t remember. He has to repeat, because presumably he did not mention it. Okay? Presumably he did not mention it, because within thirty days the presumption has not yet changed. And the same applies thirty days after Passover—presumably he did mention it and therefore must repeat. Yes, this applies both in Tishrei and in Nisan.

And Maharam of Rothenburg had the custom on Shemini Atzeret to say the blessing “You are mighty” ninety times, up to mashiv ha-ruaḥ u-morid ha-geshem, corresponding to thirty days in which he says it three times each day, so that now if he should be in doubt, he need not repeat. Maharam of Rothenburg had a trick. After thirty days, the presumption is established that the person already says the correct thing, the thing that should be said. Before thirty days, not. What does that mean? It means that basically what are thirty days? Thirty days with three prayers a day; each time he mentions mashiv ha-ruaḥ u-morid ha-geshem. That means that really ninety prayers have to pass, and after ninety prayers we assume he has become used to saying mashiv ha-ruaḥ u-morid ha-geshem.

Okay? Maharam of Rothenburg says: fine, so I have a trick—why get tangled up? After all, what happens in such a case? If, for example, I’m in doubt on day twenty or day five, then I have to repeat again. It’s a doubtful blessing said in vain and all that; it’s unnecessary complication. Maharam of Rothenburg says: let me solve all these doubts for you. On the first day, on the seventh of Cheshvan, say mashiv ha-ruaḥ u-morid ha-geshem ninety times, and that’s it, everything’s fine. From then on, for any prayer that comes, you can be calm—if you’re in doubt, you probably said the correct thing, because you said it ninety times.

Now, of course, there are all sorts of comments by later authorities, because the prayers of thirty days are not ninety times. On the Sabbath, for example, there are four prayers because of Musaf. Okay? So in short, it’s not exactly ninety times. But it’s obvious that we’re dealing here with formal lines. As I said earlier, like the case of a three-year-old girl whose virginity returns—since I already mentioned that example—that’s a formal line. So these comments really aren’t… they’re not right. In any case, “and his proof”—that’s Maharam of Rothenburg.

Now the Tur says: “And his proof is from the chapter ‘How is the foot liable,’” the Talmud in Bava Kamma 24, “where it says regarding the forewarned ox: ‘If when it spaced out its gorings he is liable’”—what we just read—“‘then if it concentrated its gorings, all the more so.’” Yes? What does Rabbi Meir say? That if the three gorings happen on three days, it becomes forewarned. Then all the more so if the three gorings happen in one day, surely it becomes forewarned. “Then if it concentrated its gorings, all the more so.” So too here: since after thirty days, if he is in doubt he need not repeat, all the more so after ninety times in one day. That’s the proof. If with a forewarned ox, three gorings in one day are stronger than three gorings over three days, then saying mashiv ha-ruaḥ u-morid ha-geshem ninety times in one day is better, more effective, than spreading it over thirty consecutive days. That is Maharam of Rothenburg’s proof.

And the honored Rabbi Rabbeinu Peretz wrote: “I have not seen the elder rabbis of France act this way”—that is, the Tosafists. No, I haven’t seen the Tosafists say this. As I already said, it’s not that he just didn’t see it; apparently they disagreed with Maharam of Rothenburg. “For the case under discussion is not comparable to the proof.” And what about the proof from the forewarned ox? They say: what? It’s not a proof. Why not? “For there the reason is because it was established as one that gores, and if it was established by three spaced occurrences, all the more so by three close ones.” Yes, if by goring three times day after day it becomes established as a gorer, then by three gorings in one day it is certainly established as a gorer. “But regarding rain, which was instituted in prayer, the matter depends on training one’s tongue”—we do not say that. Meaning, mashiv ha-ruaḥ u-morid ha-geshem is not similar to the question of the forewarned ox. With the forewarned ox, the issue is when it becomes established as a gorer. And there the Talmud says that if it happens on three days one after the other, then all the more so if all three occurrences are in one day. But here the discussion is about training one’s tongue. And when it comes to training one’s tongue, who says the same reasoning applies—that if over thirty days it works, then certainly in one day it will work? That’s something else.

Now, on the face of it, what exactly is the difference? Why is there a difference between forewarning and training one’s tongue? So later authorities usually explain that the dispute is really about how I understand the process of forewarning the ox. What does that mean? After all, with mashiv ha-ruaḥ u-morid ha-geshem, that’s clearly a process of habituation and not of proof, right? Because if the person said mashiv ha-ruaḥ u-morid ha-geshem for thirty days, that means he’s already become used to it—yes, his tongue’s routine is to say mashiv ha-ruaḥ u-morid ha-geshem. He’s already become used to it. It’s not that those ninety times are evidence that by nature he was born the kind of person who says mashiv ha-ruaḥ u-morid ha-geshem. There is no character issue here. The question is when he gets accustomed to it. So there it’s certainly a matter of habituation. Okay? Regarding mashiv ha-ruaḥ u-morid ha-geshem, that seems clear.

With forewarning an ox, there’s room to hesitate. It could be explained in two ways. Either an ox that gores three times is an indication that in its nature it is a goring ox, and then I treat those three times in the process of forewarning as a process of proof. Yes, after three times that it gored, that is proof that it has a goring nature. And someone—I think someone commented here last time—that if this is proof that it has a goring nature, then in principle it was already forewarned the first time; we just didn’t know it. And after three times we now know. It’s simply evidence that it has a goring nature.

By contrast, one could understand that the process of forewarning an ox is not a process of proof but a process of habituation. An ox that gores three times has that ingrained in it as a habit, and from that point onward it becomes one with a goring character. It doesn’t testify to how it was born, to the nature implanted in it; rather, it trains it to become a gorer. Those are the two possibilities.

Now the later authorities say: this is the dispute between Maharam of Rothenburg and Rabbeinu Peretz. How so? With mashiv ha-ruaḥ u-morid ha-geshem, it’s obvious that this is a matter of habituation, right? Not a matter of proof. There the question is whether I’ve already become used to saying the correct thing, or whether I’m still in the previous habit. Now if Maharam of Rothenburg compares the forewarning of an ox to the habituation involved in mashiv ha-ruaḥ u-morid ha-geshem, he apparently understands that forewarning an ox is also habituation. Otherwise, what basis would there be for the comparison? Rather, he understands that forewarning an ox is also habituation. And therefore he says: if in habituation what is closer together is more habituating than what is more spread out, then the same is true of mashiv ha-ruaḥ u-morid ha-geshem: what is closer together is more habituating than what is farther apart.

Rabbeinu Peretz disagrees with him on exactly this point. Rabbeinu Peretz says: what are you comparing? A forewarned ox there is proof. With mashiv ha-ruaḥ… proof that it has a goring nature. It’s not that it has now become habituated to being a gorer; rather, the three times are evidence that its nature is a goring nature. But with mashiv ha-ruaḥ u-morid ha-geshem we’re talking about habituation. So there’s no basis to bring proof from processes of proof to processes of habituation. Maybe with proof, three close indications are better evidence than indications spaced apart, but with habituation it doesn’t work that way. Therefore there’s no proof from there to here.

By the way, as an aside, with mashiv ha-ruaḥ u-morid ha-geshem it’s not after three times that you said it, but after thirty days. The number three does appear there, yes—it’s hard to ignore—but it’s not three in any direct way. It’s thirty times three prayers. Because here you have three units of thirty prayers. So it’s three units, but each unit is thirty prayers. You could also have made it three units of seventeen prayers or three units of six prayers. Why specifically thirty? Obviously—and again I return to the question of the formal line—they wanted to choose three units of something. But what is the something? Clearly it has to be fixed according to the matter at hand. After three prayers, apparently the level of habituation is really minimal. So Maharam of Rothenburg says that doesn’t belong. I’m looking for… a formal line of three. But three of what? Three times something that will bring me to a zone where it’s already habituation at a reasonable level. And in his estimation that’s three times thirty. Okay. But it’s clear that we’re looking for the formal line of three, but nobody says that after three times—if it were really the case that after three times everyone becomes habituated and acquires the new habit—then it should have been after three prayers, after one day. So why thirty?

[Speaker C] Rabbi, but according to Maharam of Rothenburg, in the end the Jewish law still doesn’t follow Rabbi Meir but Rabbi Yehuda.

[Rabbi Michael Abraham] Okay, good question, I’ll get to that in just a moment. A very good question. I’ll get to that in a moment. In any case, for our purposes, later authorities do indeed tend to learn—certainly contemporary later authorities, that’s how it’s usually learned in the yeshivot, it’s a very popular lecture—that the dispute between Maharam of Rothenburg and Rabbeinu Peretz is over whether the forewarning of an ox is proof, as Rabbeinu Peretz holds, or habituation, as Rabbi Meir—sorry, as Maharam of Rothenburg—holds. And if it’s habituation, then you can derive from it to mashiv ha-ruaḥ u-morid ha-geshem; if it’s proof, that’s a different topic and you can’t derive from it. That’s the dispute. That’s generally how the later authorities understand this situation.

Now, in the Beit Yosef, where he discusses this Jewish law, he explains it and brings several explanations of the dispute. Only one of them is apparently the standard explanation among later authorities. Yes, he says: “And our Rabbi of blessed memory, Maharam of Rothenburg, had the custom to say on Shemini Atzeret the blessing ‘You are mighty’ ninety times,” and so on. That’s a quotation from the Tur. On that the Beit Yosef writes: “So wrote the Sefer Mitzvot Katan. And Rabbi David Avudraham wrote that the reason of Rabbi Rabbeinu Peretz”—who does not agree with Maharam of Rothenburg—“is because rain is different, since the matter depends on training one’s tongue. And even though he trained his tongue to say from the beginning of ‘You are mighty’ until ‘who causes the wind to blow’ alone, without the first blessing of ‘Shield of Abraham,’ that does not create a habituated presumption, because he begins to pray in the order of the blessing ‘Shield of Abraham’ and only afterward ‘You are mighty.’”

What is his claim? Why does Rabbeinu Peretz disagree with Maharam of Rothenburg? Because it depends on training one’s tongue. How did the later authorities understand that? “Depends on training one’s tongue” means: don’t compare the forewarning of an ox to becoming habituated to mashiv ha-ruaḥ u-morid ha-geshem, because mashiv ha-ruaḥ u-morid ha-geshem is habituation whereas forewarning is proof. It’s about training the tongue, so don’t compare. But he says not so. Explicitly, he says not so.

Avudraham explains that the whole difference according to Rabbeinu Peretz is because both are actually habituation. On the contrary, according to Avudraham it’s pretty clear that both Rabbeinu Peretz and Maharam of Rothenburg hold that forewarning an ox is habituation, not proof. Rabbeinu Peretz is only claiming: fine, so therefore you can derive it, because it’s habituation. But the point is that you are not saying it within the framework of the Amidah. You say mashiv ha-ruaḥ u-morid ha-geshem, mashiv ha-ruaḥ u-morid ha-geshem, mashiv ha-ruaḥ u-morid ha-geshem ninety times. That won’t train you to say mashiv ha-ruaḥ u-morid ha-geshem within the blessing of the Amidah. You need to say the whole Amidah and within it mashiv ha-ruaḥ u-morid ha-geshem ninety times, and then you can say that you’ve become habituated. Right? A psychological claim. A person does not become accustomed to saying a certain formula if he isolates it from its context. If he says it in the context of the Amidah ninety times, then one can say that when he said the Amidah, within it he said mashiv ha-ruaḥ u-morid ha-geshem. But if he just says mashiv ha-ruaḥ u-morid ha-geshem, mashiv ha-ruaḥ u-morid ha-geshem, mashiv ha-ruaḥ u-morid ha-geshem, that does not guarantee that when he says the Amidah he’ll say mashiv ha-ruaḥ u-morid ha-geshem. That’s what Maharam of Rothenburg claims.

So on the contrary, according to Avudraham, you see that Rabbeinu Peretz agrees with Maharam of Rothenburg, and he too holds that the forewarned ox is habituation and not proof. The difference is simply that you didn’t do it correctly. If you were to do it ninety times in one day and say the whole Amidah—or at least the entire blessing that includes mashiv ha-ruaḥ u-morid ha-geshem—then he too would agree with Maharam of Rothenburg, and the proof from the forewarned ox would be a good proof. He’s just saying that this way, no, that’s not how one becomes habituated. If you said the whole blessing ninety times, fine. But to say only the words mashiv ha-ruaḥ u-morid ha-geshem ninety times—that does not create habituation. So in principle he is willing to accept a proof from the forewarned ox to mashiv ha-ruaḥ. His distinction is only local, a technical distinction. Therefore, according to Avudraham’s understanding, it is clear that both Rabbeinu Peretz and Maharam of Rothenburg hold that the forewarned ox is habituation and not proof.

The second explanation the Beit Yosef brings is that of Mahari Avuhav: “Our great Rabbi Mahari Avuhav of blessed memory wrote that Rabbeinu Peretz’s reason is that there it points to a bad nature”—that is, the goring ox—“and therefore when it gores in close succession, that indicates that this has been implanted in it as an acquisition.” In our words: if the ox gores three times, that is evidence that in its nature goring has been implanted. The fact is, it gored three times. “Which is not the case if it did so at intervals, for with each one we can say it was just an accident.” Right? What happens when it’s spread out? When it’s spread out, you would say that each time was some exceptional incident. But when it happens close together, it’s clear that this is its nature, not a coincidence. So indeed, with the forewarned ox, if over three days it becomes forewarned, then with three gorings in one day it certainly becomes forewarned, because three gorings in one day are stronger than over three different days. But here—what does “here” mean? With mashiv ha-ruaḥ—“the matter depends on the habit of the tongue, and the tongue is not habituated so well when it does one thing in close succession.”

Here he says what the later authorities usually say: Mahari Avuhav is indeed the standard explanation, namely that mashiv ha-ruaḥ u-morid ha-geshem is not proof. The three gorings of the forewarned ox are evidence that it has a goring nature, whereas with mashiv ha-ruaḥ u-morid ha-geshem we’re talking about habit, not proof. And he says: why are you bringing me this, why are you comparing an evidentiary process to a process of habituation? Two different things. And as for evidence, one can understand the reasoning that three times on separate days are less than three times in one day, because on separate days it could be accidental. But with habituation—if you do it over three separate days—who says that doesn’t habituate better than doing it all on that same day? That is exactly the standard explanation among the later authorities.

By the way, he says that the Rosh leans toward Maharam’s reasoning. That’s the third view. The Rosh, of course, was the father of the Tur, so the Tur brings in the name of… the Beit Yosef brings in the name of the Rosh that the Rosh leans toward Maharam’s reasoning. And by the way, the Rosh was a student of Maharam of Rothenburg, so it’s no surprise that he leans toward Maharam’s reasoning. “And his words seem right, for the habit of the tongue comes only from the habituated nature in a person, and it is like a goring ox.”

[Speaker B] What does he mean by that? It sounds somehow like he’s claiming that even with mashiv ha-ruaḥ u-morid ha-geshem we’re talking about proof and not habituation.

[Rabbi Michael Abraham] Habitual speech testifies to a person’s ingrained nature, and it is like an ox that has gored repeatedly. Which is strange, because until now we clearly assumed that saying “He makes the wind blow” is definitely a matter of habituation. With an ox that has been established as dangerous, there’s room to discuss whether that’s habituation or evidence. He says no, not at all—the Rosh argues that no, even in the case of saying “He makes the wind blow,” what we really have is evidence, not habituation. What does that mean? It’s evidence that you have a certain nature that becomes habituated in some way, or something like that. It really is a bit hard to understand this whole idea, but it’s not important for our purposes, so I’m not going into it here. In any case, those are the three explanations, those are the three explanations, and the explanation of Mahari Abuav is the accepted explanation among the later authorities of our time, right? That this is the debate—whether it is evidence or habituation. Now, a learning point, which is less important for our purposes but this is already a good opportunity. Earlier they asked here: how can you bring proofs, from Maharam of Rothenburg, based on Rabbi Meir’s view? After all, there is a dispute between Rabbi Meir and Rabbi Yehuda, and Jewish law is ruled like Rabbi Yehuda. Rabbi Meir says that three times in one day definitely establishes an ox as dangerous; he holds that one day is stronger than three days. But that itself is what Rabbi Yehuda does not accept. Rabbi Yehuda claims that three days is stronger. So therefore, with three times in one day you do not become established as dangerous. Right? So precisely if you compare it to the ox established as dangerous, then Maharam of Rothenburg, who makes that comparison, should actually have concluded that saying it in one day is no good. Because if you compare it to the ox established as dangerous, then take the opinion that is ruled as Jewish law in that case—the opinion of Rabbi Yehuda. Why are you relying on Rabbi Meir, whose opinion is not accepted? More than that: Rabbeinu Peretz himself, who disagrees with Maharam of Rothenburg—why doesn’t he raise the simplest argument? Why are you bringing me proofs from Rabbi Meir, when the law is ruled like Rabbi Yehuda? No, he argues with him as if it is perfectly fine to bring proofs from Rabbi Meir. I just don’t agree with the proof, because this case is not similar to that one. But if it were similar, he would have no problem at all. Why don’t you have a problem? After all, he brought a proof from an opinion that was not ruled as Jewish law. You could have, without getting into any reasoning and distinctions and pilpul at all, simply said: forget it, that’s Rabbi Meir’s opinion, you’re right, but Jewish law follows Rabbi Yehuda. So what do you want? Even Rabbeinu Peretz, who disagrees with Maharam of Rothenburg, does not make that argument. That’s interesting. Why? There is something very strange here. Now look. This is a common phenomenon in the world of Talmudic learning; this time I’m not saying it critically. Many times when I say this, it is critical, as a criticism of faulty thinking in the world of Talmudic learning. But not here. Here it is a legitimate approach, at least in certain cases. You can bring proofs even from opinions that were not ruled as Jewish law. I’ll maybe give an example. There is a dispute among the medieval authorities (Rishonim) about a case where there is, say, a sick person, and the doctors say he needs to eat meat. And it is the Sabbath. Now we do not have kosher meat. So either he is given non-kosher meat—pork, I don’t know, something non-kosher, something like that—or we slaughter an animal for him and feed him kosher meat. Which is preferable? Is it preferable to give him non-kosher meat or to slaughter an animal for him on the Sabbath? I once wrote a column on the site about this; I said this is the test of the ordinary layman. If you ask an ordinary householder, he will immediately tell you: what do you mean, eat pork? Unthinkable. Obviously you have to slaughter for him—saving a life overrides the Sabbath. Everything is fine. You can slaughter for him, desecrate the Sabbath, that’s completely fine. But eat pork? Unthinkable. But if you ask a learned analyst, he will immediately tell you the opposite. After all, what saving a life overrides is not desecrating the Sabbath; saving a life overrides all transgressions. Desecrating the Sabbath is only an example. Eating pork too is overridden by saving a life. Now the whole question is only which transgression is more severe and which is less severe—eating pork or desecrating the Sabbath? Obviously eating pork is less severe. The taboo, as it were, around eating pork somehow got into people’s bones and became something unimaginable, right? Like the members of Knesset today in the plenum who could not bring themselves to look at Ohana as the speaker because he is gay. Right—but the fact that he desecrates the Sabbath and eats forbidden and unslaughtered food—I don’t know whether he does, but never mind—those who desecrate the Sabbath and eat forbidden and unslaughtered food, they have no problem looking at them; everything is excellent from their perspective. Why? What’s the problem? Because it’s a taboo. It has nothing to do with halakhic considerations. They have some kind of phobia against LGBT people, against homosexuals. So there they won’t look—it’s impure, it’s invalid. But a person can violate every transgression in the Torah, including their prime minister, and at him they look freely, no problem, everything is fine. He only committed adultery, eats non-kosher food, desecrates the Sabbath—everything is fine, as long as he’s not, Heaven forbid, gay. So it’s the same thing here, right? The ordinary householder, when he looks at this question, will tell you: no, what are you talking about? Eating pork is out of the question. Eating pork? A Jew does not touch pork. So what then—desecrate the Sabbath, slaughter an animal in order to feed him? Of course. But from the simple reasoning of someone who knows the halakhic principles, the answer is: eat pork, not slaughter. What do you mean? Slaughtering on the Sabbath is a prohibition punishable by stoning. Much more severe. Eating pork is an ordinary prohibition, there is nothing especially severe here. The prohibition of pork is a light prohibition. A standard prohibition punishable by lashes, like any other prohibition; there is nothing severe about it. It became a kind of taboo, but it has no basis. Therefore, on a simple view, you really should give him pork. Still, the medieval authorities (Rishonim) dispute this too—not only ordinary laymen—and they raise various arguments. One of the arguments is the argument of the Ran. And the Ran argues that it is preferable to slaughter the cow. The Ran is also an ordinary householder. He says it is preferable to slaughter the cow. Why? Because if he eats pork, then every bite or every olive-sized portion, right, every piece of pork, is yet another prohibition and another prohibition and another prohibition. But if you slaughter the cow, that prohibition is more severe than pork, but it is one prohibition. After you have slaughtered the cow, he can eat as much as he wants and everything is fine. It is preferable to violate one severe prohibition rather than a number of lighter prohibitions. That is the Ran’s argument. It doesn’t matter right now how you cook that meat—that’s another question, not important. But what, he’ll eat the meat raw? Uncooked.

[Speaker D] I don’t know. In any case, the Ran. The sum of lighter prohibitions is more severe than one severe prohibition? A third times two is less than one?

[Rabbi Michael Abraham] Right, the question is how many prohibitions there are, against how lenient they are. But since you have to set a rule—we spoke about formal lines—why are three times considered evidence? Because you have to establish some halakhic line. So he says: if I need to establish an across-the-board rule, I can’t keep looking every time, and I don’t know how to measure the leniency and severity of prohibitions. Therefore he says: if it is many prohibitions versus one prohibition, then I prefer the one prohibition. That is the rule of thumb. That is what he says—a formal guideline—but that’s fine, that is the logic behind it. Now this Ran, plainly speaking, was not ruled as Jewish law, but nevertheless many later authorities bring proof from him for other topics, showing that quantity can outweigh quality. There is Petach Devir; he has a section on this matter, that quantity can outweigh quality. Now how do you bring a proof from an opinion that was not ruled as Jewish law? Assuming it was not ruled that way—it doesn’t matter right now, that too can be debated—the claim is that even those who disagree with him do not disagree with him on this point; rather, their dispute is about something else. It doesn’t matter right now what, because that is not our topic, but what is the logic here? When I find a proof for some principle, and that proof is taken from an opinion that was not ruled as Jewish law, that does not invalidate the proof. The question is whether the one who disagrees with that view—the one whose opinion was in fact ruled as Jewish law—disagrees because of that line of reasoning, or disagrees for some other reason. And if on this issue he agrees, and he disagrees for some other reason, then there is no problem that you brought the proof from an opinion not ruled as Jewish law, because even the opinion that was ruled as Jewish law does not disagree on this aspect; it disagrees on another aspect. Now of course, each time you have to decide exactly what these opinions are disputing, but on the principled level that is the logic of the matter.

[Speaker D] Let’s get back to our case—what happens in our case?

[Rabbi Michael Abraham] If the Maharam of Rothenburg really brings a proof from an ox that becomes forewarned to “He makes the wind blow and the rain fall,” then he is bringing that proof from Rabbi Meir. And that means he assumes that Rabbi Yehuda, who disagrees with Rabbi Meir, does not disagree with him on this point. Rabbi Yehuda also agrees that spacing the gorings out is less effective than bringing the gorings close together. That’s his claim. And therefore the fact that the proof relies on Rabbi Meir does not disqualify it, because Rabbi Yehuda does not disagree with Rabbi Meir on this point. It’s clear that this is how the Maharam understood it. Why the Maharam understood it that way, I don’t know. But it’s clear that this is how the Maharam understood it, because otherwise how can you bring a proof from a view that was not accepted as Jewish law? Obviously you assume that the principle from which you brought the proof is accepted also by the opinion that was actually accepted as Jewish law, meaning Rabbi Yehuda as well, and that their dispute is about a different point. Okay? That’s the logic.

More than that: Rabbeinu Peretz, who does not argue against the Maharam of Rothenburg by saying, “How can you bring a proof from a view that was not accepted as Jewish law? In practice we rule differently”—apparently Rabbeinu Peretz also thinks that this is not where they disagree. The dispute is not on this point.

So now, just for the anecdote, let’s do the calculation: what is the dispute about? And you’ll see that all the later authorities here get confused. All the later authorities here say the exact opposite of the truth. It’s amazing. They all repeat it, and they are all wrong by one hundred eighty degrees. This is a mathematical mistake. Meaning, you just can’t say otherwise. It’s a mistake.

What I didn’t understand was this: obviously Rabbi Meir and Rabbi Yehuda disagree about one thing; they don’t disagree about two things. The question is whether they disagree about whether one gets accustomed more in one day or only over three days, or whether three days is not because of habituation at all but because of evidence. Exactly. So how did the Maharam of Rothenburg know that one side here is right and not the other? I’m saying: I don’t know. I’m not asking how the Maharam of Rothenburg knew; I’m asking what the Maharam of Rothenburg is saying. I want to understand what he says. Why he says it—ask him, I don’t know. But I want us to do the calculation: what is he saying? What did he hold?

Let’s be Briskers for a moment, yes? Briskers basically don’t ask “why,” they only ask “what.” Fine. So now I want— I don’t agree with them, but I do think that first of all you have to ask what, and only after that ask why. So right now I want to ask what.

Okay, so let’s do the calculation. According to the Maharam of Rothenburg, the calculation actually starts from Rabbi Yehuda. If the Maharam of Rothenburg claims that “He makes the wind blow and the rain fall” is habituation—yes, that’s the simple understanding—then if it is habituation, the Maharam of Rothenburg claims that habituation happens more through closeness than through spacing out, right? It’s clear that this is what he assumes. More than that, he assumes that regarding this matter… So then Rabbi Meir—how did Rabbi Meir understand the forewarned ox? Obviously Rabbi Meir understood that the forewarned ox is habituation, right? As the later authorities say. Rabbi Meir understood that a forewarned ox is habituation, and therefore he says that habituation through closeness is better than habituation at a distance.

So what does Rabbi Yehuda disagree about? Rabbi Yehuda does not claim: yes, it’s true, it’s habituation, but habituation close together is harder than habituation far apart. Because if that were so, then the Maharam of Rothenburg could not bring a proof from Rabbi Meir. Rather, it is obvious that the Maharam of Rothenburg at least understood that Rabbi Yehuda also agrees with Rabbi Meir that habituation through closeness is better than through distance. He only claims that establishing an ox as forewarned is not habituation but evidence. And therefore don’t bring me proofs that on the same day it also creates a presumption, because with evidence that is not true. Okay?

So what comes out in the end? According to the Maharam of Rothenburg, I’ll ask you now: according to the Maharam of Rothenburg, is establishing an ox as forewarned habituation or evidence? Evidence, evidence. Right. Because in practice we rule like Rabbi Yehuda, and the Maharam of Rothenburg understood that the dispute between Rabbi Meir and Rabbi Yehuda is over the question whether establishing an ox as forewarned is habituation or evidence, and the Jewish law follows Rabbi Yehuda, that it is evidence.

Exactly the opposite of what the later authorities say, because the later authorities understood that according to the Maharam of Rothenburg, establishing an ox as forewarned is habituation. Not true. According to the Maharam of Rothenburg, establishing an ox as forewarned is habituation according to Rabbi Meir. But the Jewish law, where we rule like Rabbi Yehuda, is that establishing an ox as forewarned is evidence. And therefore Rabbi Yehuda also agrees that in processes of habituation, closeness works better than distance. And regarding “He makes the wind blow and the rain fall,” which is habituation, Rabbi Yehuda too would agree that doing it close together is more effective than doing it spaced out. That is the Maharam of Rothenburg’s proof. But all of that is only regarding “He makes the wind blow”; with establishing an ox as forewarned it does not work that way.

But then the Maharam of Rothenburg can’t rely on that, because if Rabbi Yehuda says it is evidence, then the ox is not relevant at all, it isn’t even here. So what are you learning from in the first place? Ezra, listen, that’s why I gave the introduction. But Rabbi Meir—Rabbi Meir says that if the forewarned ox is habituation, then closeness is better, right? Right. Now Rabbi Yehuda agrees with him that in elements of habituation, closeness really works better. He only says: don’t apply that to a forewarned ox, because with a forewarned ox it is evidence. Okay, but with “He makes the wind blow” it is habituation, and there too Rabbi Yehuda will agree that doing it on the same day is more effective.

But when the Maharam of Rothenburg relies on something, he wants to rely also on the topic of the ox, right? He’s not just suddenly bringing up a topic of habituation. That’s exactly the point. The Maharam of Rothenburg says like this: regarding the ox, the ox is really evidence. But now I am asking a different question: if there is a process of habituation, is habituation through closeness more effective than habituation at a distance? The answer is: according to all views, yes. Why? Because Rabbeinu Peretz says that establishing an ox as forewarned is habituation, and there he says that closeness is more effective. So according to Rabbi Meir this is certainly so. Now Rabbi Yehuda—what does he disagree about? He also agrees that in processes of habituation, closeness is better than distance. He only says that establishing an ox as forewarned is not habituation but evidence.

The Maharam of Rothenburg says: fine, but “He makes the wind blow” is habituation, so there Rabbi Yehuda too would agree that saying it on the same day is perfectly fine. What I’m trying to say is that the issue of habituation does not need to rely on anything at all. Habituation is a topic in its own right; you don’t need to go anywhere, neither to Rabbi Yehuda nor to Rabbi Meir. Because that is not the dispute, that is not the dispute. Exactly, that is not the dispute. So the Maharam of Rothenburg will say: I think habituation works this way and that way; you don’t need to rely on anything. But the Maharam of Rothenburg is not just saying it from his own reasoning. According to Rabbi Meir it is proven. Do you agree with me on that? It’s not relevant, because the topic of the ox in practical Jewish law is evidence, and all the habituation is irrelevant. Ezra, I’m talking now about Rabbi Meir, not about practical Jewish law, okay? According to Rabbi Meir, the ox is habituation. And Rabbi Meir says that with the ox, habituation through closeness is more effective than habituation through distance. Right? Up to here this is Rabbi Meir, not practical Jewish law, right? Good.

Now I claim that Rabbi Yehuda also agrees that if establishing an ox as forewarned were habituation, then closeness would be better. Why do I care that he thinks establishing an ox as forewarned is evidence? I’m interested in what happens in habituation, because with “He makes the wind blow” it is habituation. So that’s my proof. The Maharam of Rothenburg brought an excellent proof; he isn’t just saying his own reasoning. He has a proof. The proof is from Rabbi Meir, and Rabbi Yehuda doesn’t disagree with him on that, so he has an excellent proof. Even though establishing an ox as forewarned is not similar to “He makes the wind blow,” he has a terrific proof.

Okay, I understood that. I was only trying to say that habituation turns into something that is no longer really at the basis of the dispute. It’s just statements: Rabbi Meir spoke about habituation, but the moment you say that… But where? Well, from Rabbi Meir this is agreed upon, it is agreed upon by both tannaim. Exactly. Yes, but it’s not a topic that is in the issue at all, because the issue was… Exactly, that’s the point. That’s why the Maharam brought the proof. Look—on this they both agree; their argument is about something else. Ah, they both agree that habituation through closeness is better? Then I have an excellent proof from there. Fine, okay.

That is the calculation in the Maharam. So it comes out that the Maharam of Rothenburg holds that establishing an ox as forewarned is evidence, not habituation—the opposite of what the later authorities say. Now I’ll prove to you that they are also mistaken about Rabbeinu Peretz, and that there too it’s the opposite. Let’s do the same calculation with Rabbeinu Peretz.

What happens with Rabbeinu Peretz? Rabbeinu Peretz argues there is no proof. Right? Why is there no proof? He does not say, “Because I rule like Rabbi Yehuda, so why are you bringing me proofs from Rabbi Meir?” Meaning, he too agrees that this is not the dispute between Rabbi Meir and Rabbi Yehuda. So what is he actually claiming? That both Rabbi Meir and Rabbi Yehuda hold—wait, yes—that both Rabbi Meir and Rabbi Yehuda hold that in habituation, closeness is not more effective than distance. On that there is no dispute. So why does Rabbi Meir say that closeness is more effective? Because he holds that establishing an ox as forewarned is evidence, and on that Rabbi Yehuda disagrees with him; Rabbi Yehuda claims that it is habituation. But in processes of habituation, everyone—even Rabbi Meir—agrees with Rabbi Yehuda that if it were talking about habituation, then closeness would not be more effective than distance. Exactly the mirror image of the Maharam of Rothenburg.

And what comes out according to Rabbeinu Peretz? Is establishing an ox as forewarned evidence or habituation? Of course habituation. According to Rabbi Yehuda, whom we follow in practice, it is habituation. Exactly the opposite of what the later authorities say—look. I presented this in a table; in one of my columns on the website I did this analysis. It’s amazing, because it is simply one hundred eighty degrees reversed, the whole calculation is flawed, and all the later authorities repeat it as though it were obvious, and I have not seen anyone point this out.

He says, look—you see, Maharam of Rothenburg is the top row: according to Rabbi Meir it is habituation, according to Rabbi Yehuda it is evidence. And according to Rabbeinu Peretz: according to Rabbi Meir it is evidence, and according to Rabbi Yehuda it is habituation. Now what do all the later authorities say? The later authorities look at this column, because after all the proof is from Rabbi Meir. So they say: according to the Maharam of Rothenburg, establishing an ox as forewarned is habituation, and according to Rabbeinu Peretz, establishing an ox as forewarned is evidence. But all of that is from looking at Rabbi Meir. If you look at Rabbi Yehuda, whose view is the Jewish law, it comes out exactly the opposite: according to the Maharam, establishing an ox as forewarned is evidence, and according to Rabbeinu Peretz, establishing an ox as forewarned is habituation. One hundred eighty degrees reversed.

From an analytic point of view this is very interesting. This is the danger you always have to keep in mind when bringing proofs from a view that is not the practical Jewish law. You have to work out very, very carefully what exactly it disputes with the view that was accepted as Jewish law, and only then evaluate the proof.

Now, it’s interesting that there are still these two approaches, of Rabbeinu Peretz and the Maharam of Rothenburg. After all, both possibilities are possible, as the rabbi described. So each one surely knew of the other possibility too. So how did they decide? How did they decide? Surely each one knew that there was also an option to describe it the other way? It could very well be, absolutely, that it really started from reasoning—one thought it made sense that habituation works better when done close together, and the other said no. But once you have that reasoning and you go back to the dispute, I think the proof from the dispute does strengthen the matter. Very often that’s how it is. Whenever there are disputes and each side brings a proof for its position from a verse or from an exposition or from wherever—after all, both sides understand the verse differently. So what’s the point of bringing a proof from the verse? Just say what you think and that’s it. True. But it’s a shame, a shame that we don’t say this explicitly on the table—that first there is reasoning, and afterwards I interpret the verse, I derive the Jewish law. Because that is the assumption, because the assumption is that it’s always like that; you don’t need to say it. The assumption is that it’s always like that.

But the way legal rulings are conducted today by contemporary halakhic decisors—supposedly most of them avoid, heaven forbid, using their own judgment, and first of all attach themselves to another decisor, and only if there’s no choice and they reach some distress do they reluctantly use judgment. I share that criticism, what…

So in any event, that’s just an interesting analytic lesson: it turns out that Rabbeinu Peretz and the Maharam of Rothenburg disagree in exactly the opposite way from how the later authorities usually understand them.

By the way, this really does raise an interesting question. When I discuss the question, okay, what is the reasoning behind it? Why think that in habituation closeness is more effective than distance, as the Maharam of Rothenburg holds, or think that in habituation closeness is actually less effective than distance, as Rabbeinu Peretz holds? Here there really is a dispute between Rabbeinu Peretz and the Maharam, and we can discuss the reasoning behind it.

It could be—look, with a three-time presumption, let’s say if a three-time presumption is evidence, yes, then when there are three times in one day I could say that maybe this is not evidence, because on that day he had some fit of rage to gore; that doesn’t mean he has a goring nature. The fact is that it happened on one day and not on other days—maybe it’s just a fit of rage, on the one hand. On the other hand, you could say that if it happened on three different days, then maybe that is not evidence either; okay, one day he gored and a week later he gored again—who says he has a goring nature? Every now and then he gets some kind of fit of rage. If it happens consecutively, that is better evidence that this really is in his nature. You understand that there are two sides here regarding evidence.

And regarding habituation too, you could raise the same two sides. When you do it three times at once, it gets internalized much more, because if you do it spaced out, you did it once and forgot it, you did it again and forgot that too—it doesn’t accumulate, it doesn’t combine; that’s one side. On the other hand you could say the opposite: if you did it three times in a row, it’s basically like once—what difference does it make? Whereas if there is elapsed time, yes, if you do it at intervals, then it is more effective. So you understand that from the standpoint of reasoning you can go either way. And I agree that probably the dispute between the Maharam of Rothenburg and Rabbeinu Peretz began from reasoning. But once that is their reasoning, when they study the dispute of the tannaim, Rabbi Meir and Rabbi Yehuda, they really do understand it in the way I described earlier.

Now this is the analytic completion. Now I want to return for a moment to the question of abduction, and here I want to read a section from Kehillot Yaakov. Let’s first read Maimonides. Look: Maimonides, Laws of Monetary Damages, chapter 6:

“If an ox gored an ox today, a donkey tomorrow, and a camel on the third day, it becomes forewarned for all.” Yes? It gores. We remember that according to Maimonides, forewarning exists only when it happens on three different days, not on the same day. But what happens if on three different days it gored three different animals, one different animal each day? The claim is that it becomes forewarned for all. There is a dispute in the Talmud about this, not important now; this is how Maimonides rules.

“If it saw an ox today and gored it, and the next day it saw an ox and did not gore it, and on the third day it saw an ox and gored it, and on the fourth it saw an ox and did not gore it, and on the fifth it saw an ox and gored it, and on the sixth it saw an ox and did not gore it, it becomes forewarned intermittently for oxen, and similarly in all comparable cases.” Here we return to three-time presumptions. Right? What happens if it gores only on odd days—day one, three, and five—and on day two and four, again, if there was no other ox near it at all, that proves nothing. But if on day two and four it also saw oxen, it saw them and did not gore them, and on day one, three, and five when it saw them it also gored them, then Maimonides says the presumption is formed for odd days.

Okay—by odd days I mean with a one-day interval, because next week those would already be even days. There is room to discuss what happens here: if it is now forewarned for Sunday, Tuesday, Thursday, and Sabbath, and the following week again Sunday, Tuesday, Thursday, and Sabbath—or is it Sunday, Tuesday, Thursday, Sabbath, Monday, Wednesday, Friday, Sunday, so once odd and once even? Does the interval determine it, or does the day of the week determine it? Regarding oxen, I assume it is not the day of the week that determines it but the interval; that seems to me at least. But there is room to hesitate—if this reminds you of Wittgenstein’s sequences, yes, three, five, seven—is the next one nine or is the next one eleven? It is exactly the same problem. In any event, that is how he rules.

Now let’s see Jewish law 10—before that was Jewish law 9. Jewish law 10:

“If it saw an ox today and gored it, and the next day it saw a donkey and did not gore it, and on the third day it saw a horse and gored it, and on the fourth day it saw a camel and did not gore it”—the whole safari showed up there—“and on the fifth day it saw a mule and gored it, and on the sixth day it saw a wild donkey and did not gore it, it becomes forewarned intermittently for all.”

Do you notice what is happening here? Six different animals passed before it like sheep before the shepherd—one on day one, one on day two—and it only gored those on the odd days. But each one was different. What happens there? It becomes forewarned on odd days for all the animals. But, says Maimonides, “if it gored on a day for which it was forewarned one of the three species that it had gored intermittently, then it is forewarned.” What is written here—“it becomes forewarned intermittently for all”—“for all” means only the three animals that it gored, not every animal under the sun. Only for ox, horse, and mule. Ox, horse, and mule on odd days it is forewarned for. That is how Maimonides rules.

From here, by the way, several later authorities learn—the Maggid Mishneh starts this—that there too, where it says “it becomes forewarned for all,” where it gored an ox today, a donkey tomorrow, and a camel on the third day—“it becomes forewarned for all”—what does “for all” mean? For ox, donkey, and camel. Not all animals, only those three specifically. I’m not at all sure that this inference is correct. On the contrary, I tend to think it is not. And that is why in Jewish law 10 Maimonides takes the trouble to specify, after saying “it becomes forewarned intermittently for all,” that if it sees one of the three species that it gored, then it is forewarned. Here he specifies that “for all” means these three species. In Jewish law 9 he does not specify. From that, in my opinion, it sounds as though there it really means all animals.

Now understand that the problem here is basically a problem of induction. And I have several possible ways of making the induction. This is exactly Wittgenstein’s problem. Because I now give you a sequence and ask you: what is the rule that underlies the sequence?

The sequence is as follows. Let’s begin with Jewish law 9: an ox on day one, a donkey on day two, a camel on day three. Now tell me what the general rule is of which these are all particular examples. Maimonides claims that the general rule is: it gores every animal it sees. That is the general rule. The fact that it happened to encounter an ox, a donkey, and a camel is incidental. Even if it had encountered a zebra, it would have gored that too. Since this includes three different animals, apparently this is not about a certain type of animal; it is all animals. That is a generalization.

One could have said—and there are later authorities who, in my opinion, think that this is what Maimonides means, though I said I disagree—that it becomes forewarned for ox, donkey, and camel, but not for a mule. Only for those three. Why? Because the abduction they make is different. They have a different theory: it gets angry only at those animals. Or at least for that you have evidence.

So here you can decide. It is like, if you remember the example I gave about gravity: I saw a phone fall to earth, a pen fall to earth, and a ball. Will a book also fall to earth? I don’t know. Maybe it is only those three objects? Or maybe not. If it is three different objects, then apparently what they share, the common denominator they share, is that all of them have mass. If so, then the general law is that anything that has mass will fall to earth, and so a book as well. Again, the abduction that underlies the induction is exactly this issue of intermittent forewarning.

Now what is interesting is what happens in Jewish law 10. In Jewish law 10 the sequence is more complex: an ox on day one and it gores; a donkey on day two, which it does not gore; a horse on day three, which it gores; a camel on day four, which it does not gore; a mule on day five, which it gores; and a wild donkey on day six, which it does not gore. Now let’s see what generalizations are possible.

You could make several generalizations here. For example, you could say that it is forewarned for odd days for all animals, including the camel that it did not gore on day two, because it gores only on odd days. So what do I care that it did not gore the camel on day two? It is not because it was a camel that it didn’t gore it. It didn’t gore it because it was day two, not because it was primary, but because it was even—exactly Wittgenstein, okay? So one possible generalization is that it is forewarned for all animals on odd days.

A second possible generalization is that it is forewarned only for these three animals on odd days, as I said earlier. A third possible generalization is that it is forewarned only for ox, horse, and mule—the ones it gored—but on all days, not only on odd days. Why? Because really on the even days it did not gore not because it does not gore on even days, but because it encountered animals that it does not want to gore. That too is a possible theory, right? Maybe it gores only the animals it encountered on days one, three, and five—ox, horse, and mule. If it had encountered them on day two, it would have gored them too. The reason it did not gore on day two is simply that it encountered a different animal, not one of those three. That too is a possible generalization, right? This presents for us in the clearest possible way the problem of induction. How do we now generalize from the three cases we encountered—or you could even say the six cases, what it gored and what it did not gore—how do we produce from that a general law?

And the big question is really: what abduction underlies this generalization? Because the question what the general law is—that is what will determine what I should be concerned about in the coming days, with respect to which days and which animals. And there are several possibilities here.

What does Maimonides decide? Look what he decides. He says: it becomes forewarned for odd days only for these three animals—ox, horse, and mule—on odd days. Now this is very interesting, because Kehillot Yaakov claims that such a thing cannot be understood; it is a logical contradiction. Why? And on the face of it, scientific elimination would indeed say that this is an abduction—specifically an impossible abduction. It cannot be; it is not one of the options. All the options I said before, yes; this one cannot be. Why? So let’s see.

“Maimonides in chapter 6 of the Laws of Monetary Damages ruled like Rav Pappa in Bava Kamma, that if it is forewarned for its own kind, it is not forewarned for a different kind. If you are forewarned for a horse, you will not gore a donkey. Only what you have gored are you forewarned for. Nevertheless, when it gored an ox, a donkey, and a camel, it becomes forewarned for all, as explained in the Talmud, for in this Rav Pappa agrees. But it is evident from the words of Maimonides that it was forewarned only for ox, donkey, and camel, and not for the other species.”

In my opinion that is not true. His proof is from Jewish law 10. “And in Jewish law 10 he wrote: ‘It saw an ox today and gored it, the next day a donkey,’ etc. Yes? ‘On the third day it saw a wild donkey—if it gored one of the three species intermittently, then it is forewarned.’ It is evident that it was forewarned only for those that it gored, as the Maggid Mishneh wrote.” And of course that is not true, or at least certainly not necessary. Because here he is speaking specifically about the three species, because indeed those are three species intermittently. But when above he said “forewarned for all,” it could mean all animals, because there were no animals there that it did not gore. There it gored three species and there were no animals that it did not gore. There, when he says “forewarned for all,” that means all animals. So that is not a proof.

But Kehillot Yaakov says: “Still, this is seemingly puzzling. In any case it is puzzling. How is it possible to say that it became forewarned only for these three species and specifically intermittently?” The combination of those two criteria is a logical contradiction. Why? “For after we assume that it was forewarned only for ox, horse, and mule, and that it is not its way to gore other animals, then the fact that it did not gore on the days in between—the donkey, the camel, and the wild donkey—is no evidence at all that its way is to gore on alternating days, since we are assuming that for those species it is not a gorer, and it would not have gored them even on its goring day. And it is as though it saw nothing at all.”

Do you understand the difficulty? What is he actually saying? He is basically saying this: if you decide that it is forewarned only for odd days, then you cannot say that it is not forewarned to gore a camel, because it didn’t gore the camel because it saw it on day four, a day on which it does not gore. So the fact that it did not gore the camel proves nothing. Therefore it should have been forewarned for all species, including the camel and those it did not gore.

Or you can propose another alternative, another abduction: you can decide that it is forewarned only on odd days, but then you cannot say that it is not forewarned for a camel, because the reason it did not gore the camel was that it was on an even day. If it had encountered the camel on an odd day, it would have gored that too. In short, you can’t dance at two weddings. If you decide that the issue is odd days, you cannot separate among the animals. If you decide that it is only for these three animals and not others, then why specifically odd days? On the face of it, an absolute logical contradiction.

But why? After all, they are not connected. Why shouldn’t we assume that it really does gore only on odd days, and only these species? Why do you think it’s only these species? After all it gored three different species. Right. Why do you think it’s specifically only these species and not the camel? But the fact that it didn’t gore the camel on day two—you yourself are telling me that on day two it doesn’t gore; it wouldn’t have gored even an ox on day two. No, it’s two conditions, the two things together. So I ask: who told you? How do you know? No one. But Maimonides takes the smallest possible novelty; he restricts as much as possible. Okay.

So here I really think that this should indeed be the answer. What do I mean? Kehillot Yaakov is not right. He has some… By the way, do you know what Kehillot Yaakov’s answer is? He claims that according to Maimonides, goring is habituation and not evidence. Do you understand why that resolves it? If it were evidence, then the objection is difficult. As we said earlier: you have no evidence that it does not gore camels, because that happened on an even day; or you have no evidence that it does not gore on even days, because that was a camel and camels it does not gore. But if you are speaking about habituation, then what did it become habituated to? It became habituated on odd days to ox, horse, and mule. That’s what it became habituated to. It gored ox, horse, and mule on odd days. So that is what it became habituated to, and that’s it. The whole objection we asked before is an objection that arises only if I understand the forewarning as evidence. He says: you have no evidence that it does not gore camels, or no evidence that it does not gore on even days. But if it is habituation, then he is right.

But I claim that although it is a brilliant answer, it is unnecessary. Precisely because of what you said earlier. After all, there are several possible abductions here, right? Let’s say we take two. The two most plausible are: it gores all animals on odd days—that is one possibility. And the reason it did not gore on even days is not because it does not gore that type of animal, but because they were even days. That is one possibility. The second possibility is that it gores only these three types of animals, but on every day. Because the reason it did not gore on the intervening days is that those were not from these three types.

Now which of these two abductions is right? I don’t know. Right? I don’t know. One of them is right; I don’t know which one. So let’s take the intersection. What generalization would be such that whether I adopt this one or adopt that one, I will certainly be right? The generalization is what Maimonides says. About what can I be sure? Everything else is maybe yes, maybe no. About what can I be sure? I can be sure that ox, horse, and mule on odd days—it gores. For that I have evidence.

Again, this cannot be the true law. The true law is certainly one of the broader rules. But since I do not know which of the broader rules is the right one, I take the subset common to them about which I can say with certainty that I know. With certainty—or at least with high reliability—that I know. And that is what Maimonides says. Therefore there is no difficulty at all.

And again, what is really behind this? This is exactly Hume’s problem of induction. You can never know which of your generalizations is right. You don’t know, because you have the examples before you—how will you know what the general rule is? Now, once you have several general rules, you choose the simplest one. If you have two that are equally simple, what do you do? You remain in doubt. What do you do in case of doubt? You take that among them about which you can be sure. This is not the correct theory; this is induction without abduction, because you do not know what the correct theory is. The correct theory could be this or that. But even if the correct theory is that it gores only on odd days, I will not miss anything if I apply Maimonides’ ruling, because Maimonides’ ruling is a particular case of that. Only partial, but it does not contradict that theory. And it also does not contradict the opposite theory, that it gores only these three species on any day whatsoever. Right? So if I take Maimonides’ ruling, I am acting correctly whether the abduction is the first or whether the abduction is the second.

And this is exactly a nice illustration of how abduction stands at the basis of all inductions. And when I do not know how to decide which of the two theories is simpler, I do not know how to choose the abduction, I will have to make an induction based on uncertainty between the theories. But that induction—I know that it is not the right one, or very probably not the right one. But it is the minimum about which I can be sure.

Think, for example: physicists today use Newtonian mechanics, even though everyone knows it is not correct. Relativity is correct, but Newton is a special case for low speeds. At low speeds there is convergence between the two theories, and therefore one can use Newtonian mechanics; it is simpler. That is exactly what we are saying here. I use an incorrect theory because it gives me the correct results according to either of the correct theories—whether theory A is correct or theory B is correct—because it is an appropriate approximation for this particular case. For this particular case it converges with the correct theory, whether that is A or B. Therefore I use it.

And Kehillot Yaakov’s mistake is exactly that: he thought we need to stick to the abductions, and he did not grasp that one can make an induction even if one does not know what the abduction is. Make the minimal induction you can, even if you are uncertain about the abductions.

But maybe you could argue in Kehillot Yaakov’s favor: why go here and make the intersection of the two possibilities and all that in order to be lenient with the owner? Why not think the other way? My own mind would say the opposite: you need to guard more, be more careful. Since there are two possibilities, choose the cautious side, regarding the ox so that it won’t gore on Sabbath and others. On that too Kehillot Yaakov agrees that this is not right. That definitely is not right. Why? Because if that were right, then when it gored an ox on Sunday, Tuesday, and Thursday, I would say that it is forewarned for oxen on all days, not only on odd days. Let’s be cautious to be safe—after all, maybe it gores oxen on all days. No. I go with the minimum that is proven. That is obvious—one who seeks to extract money from another bears the burden of proof. You want him to pay you. As for how much he should guard, let him always guard. But when can you demand from him that he pay? Only when you can bring proof that you are sure of.

But the basis for my demand that he pay is not because it is evidence; it is a matter of what the basic requirement is for him to guard his ox. But you see that that is not right. You see that when it gored an ox on Sunday, Tuesday, and Thursday, if it gores my ox on Monday it is still innocent, it is not forewarned. Of course there is some limit—after all, why didn’t the Torah obligate you after a single time? Wait, there is no difference by a millimeter between that and what you are suggesting. It is no less severe; it is exactly the same thing. If you take the cautious side, that would mean taking the cautious side in that case too. So why not obligate him after one time, for example? Exactly. That’s what I’m saying. Therefore it is obvious—and Kehillot Yaakov agrees to this too, these are explicit passages in the Talmud, there is nothing to argue about here—it is obvious that you do only what you have clear proof happened three times. Only that. Anything beyond that: one who seeks to extract money from another bears the burden of proof. And then the question returns here. Okay.

And sorry, can I ask? According to that, if the ox gored only on even days, for example, and in between saw no animal at all, then you can’t obligate that it should be forewarned for all days? I didn’t understand. If the ox gored three consecutive times but only on even days, for example, we say it becomes forewarned. But really it only gored on even or odd days—so why, when it gores on day… it gored three times… If on the day in between it saw an ox and did not gore it, then it is forewarned for odd days. No, no, no. I’m saying that in Maimonides it sounds like it would become forewarned for all days. Right, right. But that goes somewhat against what we said now. Maimonides says it is forewarned if it gores these species and on these days. I didn’t understand. But that’s because on the days in between it saw animals and did not gore them. There was also negative evidence there in Maimonides’ move. Yes, yes. But what you explained, that Maimonides takes the safe route, that he doesn’t take risks. Right, that is a certain correction to what I said earlier, I agree. If it gores on Sunday, Tuesday, and Thursday, and on Monday and Wednesday it did not see an ox at all, it would still be forewarned for every day. The assumption is simply that whenever it sees the ox, it gores it. It’s like we would not say that it is forewarned only at four in the afternoon on Sunday, because only then it gored the ox, and on Tuesday at ten in the morning and on Thursday at midnight, because then it gored. Rather, obviously we make here some reasonable theory, even if it is not… it is not necessary, but it is reasonable. That is the correction that needs to be made here. Okay. Okay, any other comment or question? So we’ll finish. Shabbat shalom. Thank you. Thank you very much.