To the Perplexed of the Generation – Lesson 19

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[Rabbi Michael Abraham] No, no, no. There’s a widespread belief that the question is whether it’s true—right, true. And with statistical tools you can prove that this is so. We did that last year, but if you want, we can talk about it afterward. And this simplicity basically says that the simpler you are, the more correct you are. The fewer principles you have, the more right you are. Where does that come from? Where does that intuition come from, and where does that phenomenon come from? Because it’s also a phenomenon in the world. The fact is that we really do keep discovering more and more general laws. It’s not just that we have some hope like that; that hope is also fulfilled. How does that happen? It happens simply because in the end everything begins from one place, from the Holy One, blessed be He. The Holy One, blessed be He, is utterly simple in the ultimate sense of simplicity. That is one of the basic principles in the conception of Him—that is, He is not composite, He is simple. And this whole complex reality comes out of something simple, through many intermediate stages. Those intermediate stages are the general laws. The general laws are basically what are called the ten utterances. The world was created through ten utterances, and about this everyone says, “Forever, O Lord, Your word stands firm in the heavens.” Rabbi HaNazir calls this the logos, the divine speech that stands forever in the heavens. The Holy One, blessed be He, didn’t speak back then and since then remain silent; rather, He created this speech, and this speech stands in the world all the time and governs it. This speech is the fundamental laws of nature that move the world. Therefore this speech of the Holy One, blessed be He, is the laws, the general laws. And if you want to know the One who spoke and the world came into being, then you have to take the collection of details you see around you and try to begin making generalizations—systematically making a generalization, testing it, reaching a higher generalization and then an even higher one. The number of principles keeps decreasing the higher the generalization you make. At infinity, when you finish all the work, you reach Him. He is one and simple, not composite, because everything begins there. And I think our intuition also comes from that. It’s a kind of religious intuition. I have no other explanation. Why are people so convinced that there must be some general law that explains all the details? Where does that idea come from? Why assume at all that that’s the case? Because here, I think at least—and of course this is only a conjecture—there is some kind of intuition that everything really does come from one place. In other words, that there is some order in the chaos, some system of simple laws that governs this whole business. That is really a feeling of faith / belief. I think it is literally an expression of faith / belief. And of course the same is true in Torah: corresponding to the ten utterances, there are also the Ten Commandments. People have already written quite a bit about this, that the Ten Commandments are the basis of Torah, and the ten utterances are the basis of the world. And in fact these two aspects of reality, the spiritual aspect and the physical or physicochemical aspect, are basically directed or governed by a set of general principles called the Ten Commandments or the ten utterances. These are parallel systems. I think the Ramah of Pano even makes a more detailed analogy between these things. He generally likes analogies; he also made an analogy between the thirteen hermeneutical principles and the thirteen attributes of mercy of the Holy One, blessed be He. He likes these kinds of parallel theoretical structures. But in truth many have already spoken about this. The Maharal writes about it, that the ten utterances and the Ten Commandments are basically the general laws that govern all the details. But how do we recognize them? How do I know what these general utterances are, these general laws? Through the details. I have no other way to get there. Right now I do not hear the voice of the Holy One, blessed be He, directly. I hear it through analysis of Torah and of the reality around me, by trying generalizations, reaching higher and higher and higher, and my desire is to get to as small a number of laws as possible, because my intuition tells me that this is closest to Him. When I arrive at one basic law, at one simple point that stands at the foundation of everything, then as it were I have reached Him. I’m trying to climb along the way. So the goal of learning is really to create structures that reflect, essentially, the hand of the Holy One, blessed be He. That’s how we discover the Holy One, blessed be He—through these theoretical generalizations, both in the scientific realm and in the Torah realm. Maybe in this context it’s also worth seeing—by the way, Rabbi Kook uses here, perhaps in the next passage even more, the concept of minute details of halakhic / of Jewish law and law in a related context, in two senses. A law, just a law in our language, has two meanings that are connected in some way to each other, but it’s not exactly the same thing. Law is first of all something binding. A law is something that obligates; this is how it must be, yes? And a law is also something general. Right? Beyond the details, the details obey some law that is more general. I said there’s obviously a connection between the two things. Why is it general? Because it always obligates. Something that obligates happens all the time because it obligates. Right? So therefore it is general. The law of gravitation is a law—why? Because it obligates. What does that mean, that it obligates? That a great many phenomena we see around us obey it because it obligates. But these are still two meanings: it obligates, and it is general. I think Rabbi Kook here in this passage—we may read it later—uses these two meanings alternately. What I’m talking about here, on the one hand, is the binding law, our desire to engage with the laws of the Holy One, blessed be He, with halakhic directives and not only with broad philosophical, moral ideas. But at the same time he uses the term law also in the sense of rising from particulars to generalities, to the general. And that is not, as I said earlier, completely independent—the two meanings, of course. The more general the law is, the more binding it is, and vice versa. Take the law of gravitation: it obligates objects with mass. For objects that have no mass, the law of gravitation doesn’t say very much. Leave general relativity aside for the moment, which says it affects light too. Never mind. So it doesn’t affect—why? Because it is a binding law, but not a very broad one. If there were some unified field theory of Einstein’s, one law that governs all reality, it would be the most binding thing possible. All of reality would have to behave according to it, and therefore it would also be the most general thing possible. Right? So the more general something is, the more binding it is as well, and vice versa. Therefore the aspiration to discover the laws, that which binds, is connected to the aspiration to discover what is more general, or really to draw closer to the Holy One, blessed be He. Therefore in practice commitment, attachment to the normative part of Torah and not only to ideas and thoughts and ethics / morality and the like—it’s one thing bound up with the other. Maybe these are two things that are not independent. Maybe one more comment before I want to enter the long passage, the third one on your page. There is here some conception of the halakhic / of Jewish law system. In other words, there is here some conception that says that the laws, or the fine points as he calls them—not laws in the general sense but laws in the sense of binding things, commandments as opposed to ideas, yes?—these details are basically expressions of general laws. In other words, there is some general structure, some kind of formalization, some general formulas that govern the details, and one can advance from the details to the generalities. To convince you that this is not trivial at all: we are so used to it and we have such an intuition both in the scientific context and in the legal one; with everything we try to find the general aspect in it. It is not trivial at all. I’ll bring a few examples that I’ve really been dealing with lately, and so they drew my attention a bit to this aspect. We’ve been dealing with various topics that touch on the logic of Jewish law. There’s some group I participate in, and we deal with all sorts of issues of this kind. And we had some goal—or maybe we still do a little, although I think people are slowly starting to despair—to do a kind of comparative law. That is, to see how this is expressed also in ordinary, general legal systems. For example, right now we’re dealing with the logic of time, so selection, condition, all kinds of issues of that sort, and trying to build some logical model of how this whole thing works. After all, there are temporal reversals here, things in the future affecting the past. In a condition, for example: I betroth a woman on condition that she will give me two hundred zuz in a week. So the giving of the two hundred zuz in a week actually applies the betrothal from today, in a condition effective from now. Okay? So there’s some kind of temporal reversal here, and that requires some logical treatment—how does this work, how can there be a temporal reversal, and in what patterns does it work. And in the second stage we try to look for what happens in the legal context. Is it also the case in legal contexts that when they deal with conditions—well, conditions exist in every legal system—but the question is how the logic is built there. And every time we fall flat on our face. I’m saying this after speaking with a few people who are definitely among the prominent figures in these fields, to consult with them a bit, and every single time they see it as a mere nuisance. It doesn’t interest them at all. Meaning, for example, in the legal world it is customary to distinguish—although some deny this distinction—between a suspensive condition and a resolutory condition. A suspensive condition is a condition whose fulfillment causes what we want to apply—the ownership, or the contract, or whatever—to take effect. And if it is not fulfilled, then not. A resolutory condition works in the opposite way. And that is a condition such that if it is fulfilled, then the legal effect expires, or the contract expires or is voided, breached, whatever we call it. Fine? This is a resolutory condition. Now, usually the accepted understanding of the difference between a suspensive condition and a resolutory condition is that in a suspensive condition—say, I don’t know, I sell you an apartment on condition that, I don’t know, you go to the beach in a week. Fine? And if I define that as a suspensive condition, then in practice that means that during this week the apartment is not sold at all, and if in a week you go to the beach, then the apartment passes into your possession. So if the condition is fulfilled, then the legal effect takes effect. If the condition is not fulfilled, then it never was. It remains nonexistent, just as during the first week it was nonexistent, it continues to be nonexistent. Okay? A resolutory condition works the opposite way. A resolutory condition usually…

[Speaker B] But is the apartment his from the moment he goes to the beach, or is it his retroactively?

[Rabbi Michael Abraham] No, from the moment he goes to the beach. That’s the simple view. I’ll get to that in a moment. From the moment he goes to the beach. That’s the simple view in a suspensive condition. And with a resolutory condition it works the opposite way. A resolutory condition is supposed to uproot the contract if it is fulfilled. I say, I give you the apartment on condition that you do not go to the beach. Fine? So if he goes to the beach, that terminates the contract, for the sake of discussion. And the question of how we define, how we know when a condition is suspensive and when it is resolutory, is also a very non-simple question in the legal world—according to context, never mind. Fine? So what happens there? For it to terminate, it has to take effect first, right? So there it works the opposite way. There it works the opposite way. There I first of all give you the apartment from now. Fine? Now if you went to the beach—I don’t even remember what I said—if you went to the beach, then fine, it remains yours, and if you didn’t go to the beach then the ownership expires. What does it mean that it expires? From the moment you did not go to the beach. Meaning for a week it was yours and then it expired. Fine? Nothing happens retroactively in the legal world, at least in the simple view. Nothing happens retroactively; everything happens from now on. Therefore what needs to be done is either I apply the legal effect now and there is a resolutory condition in a week that will terminate the legal effect from then on, or I do not apply the legal effect now and there is a suspensive condition such that from a week from now onward it will apply it. Fine? Good, so now I’m trying to examine various situations in which I want the thing to work retroactively. There are situations in which it is unreasonable to apply the condition in a way that does not work retroactively. For example, a case—I don’t remember exactly what it was called—Berkowitz something versus Kleiner, Kliner, something, I don’t remember. There was some woman there who gave a gift to her son-in-law and daughter on condition that they let her live in their apartment. Together with them. She was an older woman and she wanted to live with them, so she gave them some gift—I don’t even remember what it was—on condition that they let her live in their apartment. Fine, her daughter died, and she remained with her son-in-law, and the son-in-law gave her a hard time, and she had to leave the apartment. Then she turned to the court and said: well, if that’s the case, then I want my gift back. I gave it only on the understanding that I would live in the apartment. And if I am not… if I’m not able to live there, then I want my gift back. Now the court hesitated. Why did it hesitate? Because from the context it’s clear that this condition is a resolutory condition. It’s a resolutory condition. Fine? And what does that mean? Since she gave them the apartment now—in other words, basically the apartment was already given. She is not saying, when you honor me then you’ll get the apartment. The apartment is yours. If you don’t honor me properly, I want to stop this. But a resolutory condition by its essence is a condition that terminates from the moment it is fulfilled. In other words, as long as she lives with them, everything is fine. The moment they start giving her a hard time, now it terminates. But what does it mean that now it terminates? She already gave them that money a week earlier; they could already have spent it and gone home. What does it mean that it terminates from now on? During that week it was theirs. Well, during that week, or whatever, during those years, it was theirs. Fine, it was theirs, they spent it, and that’s it. A resolutory condition has no meaning in circumstances like these. What is a resolutory condition? You can’t terminate that gift from now onward. If you decide that until now it was theirs, then it’s theirs. Therefore in this case the court was somewhat conflicted, and the conclusion in the end was—Aharon Barak of course pulled this stunt there—and he says, no, this is a resolutory condition retroactively. In other words, it terminates, but it terminates backward. There was also an option, by the way, to define this as a resolutory condition going forward, and then obligate them only to give her compensation. To give her compensation for the fact that she is not living with them from that point onward. Say, estimate her life expectancy, say, and how much housing is worth, and give some compensation. That is the simple conception of a resolutory condition. Fine? But Barak wanted to go further in her favor. So what did he do? He decided that this was a retroactive resolutory condition. And what is a retroactive resolutory condition? There is no such thing. There is no such mechanism in the legal world, at least not in the simple one. Fine, so he created it. So what if you created it? What does that conception actually mean? When we look—and I keep discovering this over and over again—when we look at law, law thinks teleologically, in terms of purpose. The question is: what do I want to achieve? And if I want to achieve that thing, I will build a device that achieves that thing. Law does not work according to logical rules, according to mechanistic patterns or some mechanistic mechanisms. Jewish law, as it were, would say: wait a second, if the resolutory condition is defined this way, then it is a resolutory condition. There’s nothing to be done. You very much want to return the gift to her—you want that—but if this condition is a resolutory condition, then that is the fact. You can’t argue with facts. In the legal world there are no facts. The legislator and the judge can basically do whatever they want, provided the goal is proper or whatever. For example, retroactive legislation. Retroactive legislation is basically something utterly invalid; everyone agrees; it contradicts many fundamental things. There’s a whole list of reasons why retroactive legislation is clearly unacceptable. Because you can’t legislate from today onward a law that will apply to a week ago, when the person who acted a week ago did not know about it at all. So what? It’s simply a legal scandal. Dictatorial regimes make frequent use of retroactive legislation. They simply decide whatever they want in order to impose whatever they want to impose on the citizens in any period they choose. No problem: today they legislate that what you did yesterday was prohibited, and they put you in prison. That’s it. But that doesn’t really work. Now, first of all, I saw something very interesting there. First of all, I saw that in all the literature, at least what I went through—and I went through summary materials, not internal specialist materials, but the people who write summaries are presumed to know all the relevant sources—it turns out that nowhere in all the literature does the following very simple argument arise: how can retroactive legislation be valid if the legislation is the cause of the law? After all, the law is valid because it was enacted, right? The enactment is the reason for the law’s application, for the law’s validity. Right? Now, how can it be that the cause appears after the effect? There is no law. Factually. It’s not a question of fairness, whether it’s okay, whether it’s proper. I’m saying factually there is a problem here. There is no law, because it has not been enacted. The cause cannot appear after the effect. This question arises nowhere, including among the greatest formalists. There are various formal tricks that try to give more and more explanations for why retroactive legislation is ineffective, but this explanation, this argument—I did not find it. Not that they raised it and rejected it. It was never raised. It never arose anywhere. That’s a pretty amazing thing. I know—the first thing I thought of was exactly that, immediately. Because that is the form of halakhic / of Jewish law thinking. I’m of course used to halakhic / of Jewish law thinking. Halakhic / of Jewish law thinking is mechanistic thinking. In other words, if the mechanism establishes a certain principle, then that principle is supposed to work everywhere. It doesn’t matter whether you like it or don’t like it. That’s how it works. You are subject to the facts, to the halakhic mechanism, and that is what dictates the result. By contrast, the judge builds the mechanism in order to reach the result he wants to reach. The mechanisms are instruments in his hands, as Aharon Barak writes in this context, I think—or in a somewhat related context, no, he says it in the context of breach of contract, but it’s the same for conditions—that these legal instruments are the handmaid of the law and not its mistress. In other words, he builds the instruments to achieve the legal result, and not the reverse. Fine. I know—let me give another example, one I was literally dealing with today. Yes, there is the law of selection. What is the law of selection? Suppose I say: a sage is about to arrive in the area. That is a topic in Eruvin 36. A sage is about to arrive in the area, not the city, fine. And I am in some place on the Sabbath and I want to go hear him. He’s going to speak; I want to hear him. But I don’t know whether he will arrive on the east side or the west side, in any event outside the boundary. So I need to place an eruv for the Sabbath boundary. Fine. That has to be placed at twilight, but the sage will arrive on Sabbath morning, the class is after prayers. Fine. I don’t know on which side he will arrive. What do I do? I put down two eruvs at twilight—an eruv at twilight—one eruv in the east and one eruv in the west, and I say: if the sage comes to the east, my eruv will be to the east, and if he comes to the west, my eruv will be to the west. Fine. The Talmud says this depends on the question whether there is selection or there is no selection—whether the sage’s arrival in the east or west can clarify retroactively that at twilight the eruv had already taken effect in that direction or not. This is a dispute in the Talmud, a disagreement in the Talmud. But look: the very same thing can be done in a way about which there would be no dispute at all. You can place two eruvs—it is hinted at in Nachmanides there, I think; later authorities (Acharonim) say it somewhat more explicitly—you can place two eruvs and stipulate a condition on each eruv. On the eastward eruv I say: this will be my eruv if the sage comes, and if he does not come, this will not be my eruv. Then I go to the western eruv and say: this eruv will be an eruv if the sage comes to the west, and if he does not come to the west, this will not be an eruv. I made two conditions on two eruvs. An eruv with a condition certainly can be placed, and a condition works according to all opinions; there is no dispute about condition, the dispute is about selection. There is no dispute about condition. So basically, huh?

[Speaker B] Even now on Friday?

[Rabbi Michael Abraham] Yes, there is no dispute at all about condition. A condition certainly works; it is a completely accepted halakhic mechanism. The dispute is only in the context of selection. In the context of selection there is a dispute whether there is selection or there is no selection. But I can achieve this very same result through another mechanism, through a mechanism of two conditions; I achieve that result without any dispute. And if I produce the very same result by means of selection, then there is a dispute whether it works or does not work. In the legal world, as far as I understand at least, such a thing cannot exist. Such a thing cannot exist. In other words, if this result is possible, if this is what you intended, say in the context of contracts, if this is what you intended, then you did it. Everything else is simply what you intended—that’s all. If it is clear to us that this is what you intended, that’s perfectly fine. If by chance this is something illegal, I don’t know, something that cannot be done, then it doesn’t matter by what mechanism you do it; then it cannot be done in any case. There is no such thing as something you can do with one mechanism but cannot do, that exact same thing, with a second mechanism. Of course there can be secondary consequences to two mechanisms. But there cannot be a situation where two mechanisms are completely equivalent, with exactly the same result, and only in this way can you do it, while in that way you cannot do it. That can exist only in Jewish law. Why can it exist only in Jewish law? Because Jewish law operates according to mechanisms; the mechanisms dictate the result. The thinking is causal thinking. That is, if the cause exists, the result appears. In the legal world the thinking is teleological. If I want to achieve this result, then I will achieve it, no matter by what mechanism. Why are these things important for our purposes? Because what this means, basically—and maybe one could bring many more proofs, this is something well known—in practice, contemporary legal thinking at least does not like conceptual thinking. That is, logical conceptual thinking. In other words, there is an aversion to this kind of conceptual mechanical thinking. Law does not work with these mechanical mechanisms. Law can use mechanisms to achieve results. Yes, retroactive legislation for example. So if it is done to a proper degree and for a proper purpose and when it does not contradict the values of the State of Israel, then retroactive legislation can also be done. For example, the law for the punishment of Nazis and their collaborators is retroactive legislation. They legislated it after ’48—I don’t remember exactly when—and the offenses by virtue of which people are judged under it are offenses committed five years earlier, when the people who committed them at the time didn’t even have that law in existence. So how can you judge him on the basis of a law that didn’t exist? Fine. So why? Because it serves a proper purpose and so on, so it can be done. In Jewish law there is no such thing as a proper purpose. If it can’t be done, it can’t be done. What do I care whether the purpose is proper or not?

[Speaker B] The acts that were done are crimes by every human definition. The law only gives you authority to judge them, because he’ll come and say, you have no authority, you’re another state.

[Rabbi Michael Abraham] Fine, it’s still retroactive legislation.

[Speaker B] Yes, but it’s not—the Nazi criminal—

[Rabbi Michael Abraham] No, he didn’t know. He didn’t know that the State of Israel would judge him; he was counting on escaping to Antarctica. Fine, never mind, there are other examples, it doesn’t matter. I’m just giving an example that happened to come to mind. The point is that in mechanistic thinking there is no such thing as proper purposes and the right measure. Either it works or it doesn’t work. In the legal world there is no such thing as works or doesn’t work. It depends whether it is fitting or not fitting, whether it is proportional. Proportionality is a terribly popular word today, and that is exactly what it reflects. Proportionality basically means that every law, or every rule, every law, every rule is a rule with limited liability; you can deviate from it if it is done proportionately. Why? Because the thinking is not causal thinking, it is teleological thinking. Now, what stands behind these things? What stands behind these things in practice is that in the legal system there are no rules. The legal system has gone more and more—or at least now there’s a bit of retreat after the era of Aharon Barak—but it went more and more in the direction that there are no rules. In other words, you do what is reasonable, what is right, what is just, good faith, whatever you want.

[Speaker B] Which very quickly comes down to what seems right to the judge—not necessarily bad, but what seems right.

[Rabbi Michael Abraham] It’s out in the open; he’s the judge. I once heard from someone, I heard some time ago, that when you sign a contract with someone from a foreign country, there are many countries where it is accepted—or even written somewhere, I don’t know exactly what—that if the contract is with someone from the State of Israel, then litigation over the contract will take place in the courts of that other country and not in Israel. Why? Because in Israel, what you wrote in the contract means nothing. It’s not what is written in the contract but what the judge says about the contract. Because there is this new doctrine that basically you evaluate the contract by reasonableness, the intentions of the parties, good faith—not by what is written. Now this sounds very just and very nice, but it has costs, and not simple costs—heavy costs. I don’t care, I’m not here right now to criticize; I’m here to describe. In other words, the point is that the thinking is not mechanistic thinking. You can write whatever you want; we will do what is right. And in the halakhic world it is not like that. In the halakhic world the thinking is mechanistic thinking. What cannot be done cannot be done, even if it is done in the proper measure. What does that actually mean? It basically means that in halakhic thinking the halakhic details are results of general laws. Here I connect back to what I said earlier. The general laws are the halakhic mechanisms, and those mechanisms dictate all the details. In other words, once you understand the mechanisms, you know what the result is in every situation. By contrast, in non-mechanistic thinking, in teleological thinking, there you basically have some collection of details that do not connect. Try now to make generalizations out of legal rulings in a legal system of this sort. You will get nowhere. There is no generalization. Because you cannot build a general law that weaves together all these individual rulings, because they do not operate according to general laws. They operate according to local decisions. Again I say, this is not criticism, these are worldviews. These are two worldviews. I’m describing. And in such a place, to make generalizations from a collection of rulings really sounds simply ridiculous. Therefore I feel this every day when I speak with people, trying to consult a bit with jurists about our subjects—I get nowhere. You cannot build a logical model of anything. No wonder almost nobody deals with the logic of law. After all, this is one of the most amazing things there is. If I asked you to rank fields of study according to the dominance of the logical component in them, law would rank fairly high. I’m not talking about exact science, I mean among the fields that are not exact science, and certainly not mathematics—law, I think, would rank quite high. Right? And amazingly, I really look—I know some people, I ask people—people do not study the logic of law. There is no such thing. No such animal, no such field. It’s not that there isn’t enough work in the field; there is no field. It’s amazing. Today people do the logic of everything that moves: the logic of pages, the logic of bookcases, the logic of speech, the logic of whatever you want. But the logic of law is almost impossible to find. There are a few local works here and there, but it has still not crystallized as a field. Why? Because the thinking there—again, this is a description, I’m not accusing anyone—the thinking there is thinking that does not move from particulars or from the general to particulars. So too the researcher who now takes the particulars, or the legal rulings or the laws, and tries somehow to create generalizations from them, will not succeed. Because it does not come from general laws, so you will not succeed in building general laws from the particulars. Why in science do we succeed in building general laws? Because in science the individual events really do come out of the general laws. That is what generated those events. So now if a scientist is talented, then he can take the individual cases and try to extract from them, or generalize from them, and arrive at the general laws, because there really are general laws in the background. Right? The same in Torah, the same in science, and everywhere like that. In law, no. Law is a collection of local principles. Look, this wording is somewhat extreme, of course. There are a few principles here and there, but each one—again—proportionality and limited liability. There are no principles that cannot be crossed. There simply are none. And therefore you cannot produce a system of rules. Once people used to speak of the science of law. It was very common to speak that way, especially among various German scholars who were very fond of this idea. Today there is no such thing. It is no longer even the appearance of a science.

[Speaker B] There are theoretical works, Hohfeldian rights and the like.

[Rabbi Michael Abraham] But there are no logical works. The theoretical works are some kind of phenomenology or another. One of the things that really amazed me was when I dealt a little with interpretation some years ago—the interpretation of Jewish law and the interpretation of law—and I tried, again, to make some kind of comparison. And there is Aharon Barak’s book Interpretation in Law, and you see that it is a collection of phenomenological rules. No descent to the philosophical root of the matters at all—that is, where does this come from? What is the justification? There are no justifications. In other words, it is classification: this is called this, this is called that, this is one approach, that is another approach. It’s a kind of—my friend calls it a zoo. That is, you take each animal there in its own cage. It classifies them somehow, in some way. A huge work that requires a lot of talent—I’m not belittling it—I’m only saying that it is really amazing to discover the total absence of philosophical work. What is called today philosophy of law, yes, legal theory—when you ask jurists about that, they say philosophers deal with it. Those philosophers are jurists; they are not really philosophers. The actual philosophers—very few of them deal with law. And that is one of the problems of this field, and perhaps a result and perhaps a cause of what I said earlier, I don’t know. There is no coherent theoretical system standing behind this whole thing. People try to create local generalizations, but not really.

[Speaker B] Haven’t you read Chaim Perelman’s book Legal Logic?

[Rabbi Michael Abraham] Yes, right. Read it and see what’s there, and then you’ll understand on your own. In any case, Dworkin brings this in order to show that the assumption that seems so simple to us—that behind every detail stands a system of rules, both in Jewish law and in science—is not trivial at all. There are those who think that ideologically it is not right to do this, because in many places this subordination to mechanical rules comes at the expense of justice. Because in one local case or another, the mechanical nature of it forces you to reach a certain result, but your feeling is that this case is exceptional; here justice says that something else ought to be done. So the legal system really does allow itself to act according to local justice even if that harms the general principles. Okay? And in Jewish law, that is not the case—again, fundamentally speaking. Of course, a judge has a role in knowing what to do beyond the letter of the law, or where a religious court can use its authority to act beyond the rigid halakhic rules. I’m speaking on the purely halakhic level, the pure level. There, it’s all mechanical; there’s no place for the local, for the particular thing, for local justice. And then the same distress arises that Rabbi Kook feels—that somehow the details contradict, either contradict his rules or contradict his sense of justice, it doesn’t matter; something here creates distress. And then he says: try to understand the idea behind the rules, the general principles—sorry, not the particular ones, the general principles. And when you see the fit between the details and the general principles, then that distress will disappear, or at least lessen. Because then you’ll see… that there really is some logic behind these things. It’s not just some immoral and unjustified act, period. There is something here, there are costs. There are, of course, costs at the expense of local justice. But there are also good reasons for it, once you uncover those rules. All right, let’s move on to the third passage, as much as time allows. “An excess of fine distinctions, even in the inclination toward matters of holiness and reverence, of carefulness in the commandments and all their characteristics, harms true piety and the wholeness of truth.” Sometimes petty precision over the tiniest detail interferes with piety and the wholeness of truth. Even though to us it seems almost the opposite—to be extremely exacting about the details—but very often the involvement in details comes at the expense of true piety. Rabbi Kook says: “There is no falsehood that does not contain a bit of truth; except that as long as that bit is not clarified and openly established and identified in its proper place, the power of falsehood spreads over everything. And on the other hand, the more those who fight falsehood try to deny the bit of truth that it contains, the more they thereby strengthen the power of falsehood.” What is he basically saying? That there is no falsehood without some handful of truth in it. And therefore there are two tendencies. Those who want to fight falsehood sometimes deny the truth in order to paint a black-and-white picture: this is falsehood and all evil; one must fight it and destroy it. The opposite tendency is always to see the kernel of truth and ignore the fact that it is really wrapped in many layers of falsehood. And what Rabbi Kook is actually proposing is to do neither this nor that, but rather to expose the truth out of the falsehood and understand: this is truth and this is falsehood. You don’t have to enter into a dichotomous picture—either it’s all falsehood or it’s all truth. Each thing has to be put in its proper place. These things, as far as I at least understand, relate to his first sentence. About what? That “an excess of fine distinctions, even in the inclination toward matters of holiness and reverence, harms true piety.” That’s a sentence that can really upset a lot of people. Briskers, and all those attached to every detail of the commandments, will certainly be outraged. What do you mean? That is true piety! Not only does it not interfere, it is true piety—that’s the definition. Okay? This exactness in the details. Others, of course, identify with it very strongly and say, what do you mean, obviously, this excessive piousness is a distortion and a crookedness. And what Rabbi Kook says is: look, there’s something mixed in here. And you have to know that there is a true dimension in this, in that it really does contradict true piety. It’s not right to ignore that; there’s something true here. But there is also a lot of falsehood here. And what has to be done is to separate each thing out in order to understand, to sift the truth out from the falsehood. And then he says: “Indeed, the world needs a proper preparation before it will be fit for clear truth to be revealed within it, until it becomes possible to say of the bit of truth found within the falsehood, indeed so it is, and to mark it properly, so that the darkness of falsehood may take its share and not confuse the world with its false claims, spreading further and further at the expense of the little truth found within it. This exists in every bad opinion in the world, in every foolish and impure belief, in every ugliness and in every idolatry.” This is a very fundamental thesis of Rabbi Kook: that there is nothing that does not have some true root, some true point within it. Things do not arise for no reason. If they came into being, there is something in them that can be learned from, something true. And it is not right to throw it all away as a package deal. “In this profession the world goes and is illuminated, goes and becomes fit for the contents of truth to be revealed to it as they are, in their place and their value. The criticism that is increasingly multiplying has indeed not yet reached its goal, but it aspires to it. For the hand of the Rock of all worlds is extended in this, to draw out lights from darkness, to clarify freely and expansively the small side of falsehood that must be found within the great and abundant truth.” Here, of course, it’s the opposite: there is truth, but within it there is also a certain bit of falsehood. “And the spark of truth that is revealed within the depth of the darkness of falsehood, with all kinds of mixtures. And this preparation itself comes into the world by way of ongoing development, through great sufferings—physical sufferings and especially spiritual sufferings, the sufferings of clarifying light from darkness and separating darkness from light. It goes and brings the complete repair to the world, for whose full revelation the Jewish people are prepared,” and so on. Up to this point, all of this is basically methodological introduction. He said one first sentence about what he is going to discuss: whether the fine distinctions contradict true piety or not. And he is already hinting to us here, in the methodological introduction, what the direction is. He is basically saying: there is something true in it, and there is also something problematic in it. And one has to know what is true in it and what is not true in this claim itself, that there is a contradiction between the fine distinctions and the generality. Then he continues: “The opposition to lawfulness in general found an echo in such a church”—that is, of course, the Christian church there—“which began to be built from… they had managed to nurse from the breasts of Israel, and they rose up against it as adversaries and enemies.” They take that very point that they nursed from us and use it in order to become our adversaries and enemies. And what is the point? The point is opposition to lawfulness. Now, this opposition to lawfulness, in my view, operates on two planes here. First, this I already spoke about—the separation of Christianity from Judaism: against what background did it really happen? Religiosity versus normativity. Yes, the attachment to laws—that is, let’s say, the Jewish thesis, at least in the period of early Christianity this was already definitely crystallized, the period of the Pharisees. And Christianity, of course, struggles against this whole matter. So this is hatred of lawfulness in one sense—that is, there is hatred of laws here. They don’t want laws; we are morality, emotion, experience—not laws. But I think there is also, behind this, hatred of laws in the second sense. Not only in the sense of law as binding, but also in the sense of law as something general. Meaning, the claim is that there really are no general principles. This rejection of Jewish law did not stem only from the fact that we don’t want to observe commandments, but also from the fact that we are unwilling to accept that this collection of details has any meaning, that they draw their force from general laws. No—it’s a collection of details, and anyone who deals with that is doing something superfluous, and something that contradicts true piety—that’s his first sentence here. And therefore they basically throw it out. So notice: this is the use of the term “law” in both of its meanings. They reject the binding because they also reject the general. And I think not for nothing that today’s legal system, what I mentioned earlier, is like this. Today’s legal system, in my view, draws from roots that are not Jewish, this aspect of the legal system. It draws from non-Jewish roots, from roots that oppose lawfulness, that oppose general principles. It’s a collection of details. We are unwilling to recognize that these details come from some law or laws of a general kind. So the opposition here is, first, to laws as binding. They don’t want Jewish law. In the Christian world there are almost no practical things, binding laws in the practical sense. But there is also opposition to lawfulness in the sense of generality. Meaning, in the sense of seeing the details as a collection of general principles. And of course, one depends on the other, because once you don’t see it as the result of general laws, then you also don’t see it as something binding. Because we already said that the binding and the general are the same thing. It is general because it is binding. That is why it is general. So rejecting laws as binding is also rejecting laws as generalizations, as general principles. “And so the matter went on and on, the threads were woven and arranged, a great special fabric of the screen separating between Israel and the new nations that received their influence through those individuals. From this there arose and came into being results”—I don’t know, there’s probably some unclear point here—“through several other racial, social, and economic causes that gathered around it, until the suppressed and terrible hatred between them and Israel found an established place and a broad nest. But the content is built on hatred of lawfulness, stored deep within this peak that arose and conquered an entire world; this is Christianity in general. It certainly did not remain in its position”—that is, he says it could not stay in the position of being against laws altogether—“and it was compelled to abandon the primary principles of despising laws. It is impossible to run a society without laws. Once it entered into the realm of the popular life of large collectives”—once large groups of Christians were formed—“individual people can allow themselves to work without rules, without general principles. But once it became something large and broad, it had to adopt some sort of laws. And they had to become entangled in religious laws as a tactic of faith, and in unstable state laws. But the poison of despising laws in relation to Israel, sanctified specifically through written law and judgment, remained and was fixed.” This is an interesting point, and I think it is connected to what I said before, because here it’s really not entirely clear what he means. After they created laws, then why does he think the poison of despising laws still remained? And where do you see that? I think you see it in what I said before: legal systems create laws, but they are laws only in the binding sense, not in the general sense. Meaning, there is the despising of laws in the sense that we do not see these things as some sort of binding, necessary, general principles, but rather—fine, there’s no choice, somehow life has to be organized, so we’ll organize

[Speaker B] them with some sort of set of behaviors, one way or another.

[Rabbi Michael Abraham] But these are not really laws that bind. Because they just arrange life for us. It’s an expression of a will to receive. Yes, or alternatively. And it’s not something that is true in any real sense.

[Speaker B] We agreed so that—, you said local, but—

[Rabbi Michael Abraham] True in the conventional sense, but we have some convention, we all agreed on this matter, and you can’t run life without making agreements. So we make some agreement, and now it binds. Okay, but that binding does not come from the fact that there is some truly binding divine law here. Of course not. It’s a collection of details that we set up for ourselves so that we can live in some kind of way. Again, to live morally, to live justly—that’s not… the goals are proper goals, but notice the conception. The conception is that our goal is basically to make life just, moral, organized properly. That’s all. The Jewish conception, by contrast, is love of the laws. Meaning, these details are not only a means of arranging life. Otherwise, it really would have been enough to have a collection of local instructions for every situation—what should be done and what is forbidden to do. But with us it doesn’t work that way. It comes from some system of general principles that have to operate throughout all areas of reality. Why? It does not always organize life in the best way. So what? True, but it’s true. So what if it doesn’t organize life in the best way? That is the truth. The divine law—we said that the more general it is, the broader the law is, the closer it is to the Holy One, blessed be He. That is the truth; truth comes from there. So it must be done because it is true, not because it is useful or because it solves some local problem for me here or there. On the contrary, even if it creates a local problem, in principle I still must do it. Why? Because it is true. So this means an opposite conception of the legal system, and that may be the meaning of what he writes here. Then he continues—I’ll try to finish, but I won’t come back to this again, you’re invited afterward to read it—the continuation is basically what he wrote in the previous paragraph, that in fact the details are what create the laws in a more complete way. And the more one enters into the details and creates a symbiosis with the laws, and tries to see how one governs the other and the other derives from the first, then one increasingly discovers the meaning of the laws as some sort of coming closer to the Holy One, blessed be He—and again, laws in both senses: the sense of the binding and the sense of the general.

[Speaker B] Okay. But the Rabbi defines it for us as rules; he defines it—

[Rabbi Michael Abraham] In relation to the concept of studying aggadic literature within the Torah, right? That aggadic literature is basically the general principles and Jewish law is the details.

[Speaker B] I’m not sure that’s exactly what he meant; the Rabbi arranges it in a much more technical way, as a rule that says these are really laws and rules different from one another in the spiritual sense here. Broadly speaking, it doesn’t matter—in the end everything here is true. The point is that an example the guys today would know how to connect to is more relevant than the situation that was created here.

[Speaker A] That’s it. Thank you very much. Recording number three of Rabbi Michael Abraham, Shevat 5771, February 10, 2010. A lesson on Perplexities of the Generation. Thank you.