A Look at Torah and Torah Study – Lesson 6 – Rabbi Michael Abraham

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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The development of ideas and the ukimta in three Talmudic passages
The parallel to science and to a Platonic world
A casuistic case as a tool for conveying a rule
The thirty-nine categories of labor, an ox that gored, and the absence of holiness in cases
The question of why not formulate a rule, and the distinction between positivism and casuistry in law
The impossibility of running a world through rules alone, illustrated by Rabbi Tarfon, Rabbi Akiva, and Rabban Gamliel
Rules in Jewish law as a result of cases, and the critique of mechanical application
Doubt whether there is even a complete set of rules: epicycles and deferents, and conceptual revolutions
Rules of halakhic ruling, Ya’al Kagam, and Maimonides as an exception that illustrates the weakness of rules
“We do not derive from generalizations”: Bava Kamma and Kiddushin as a Talmudic justification for casuistry
The convergence of models in the legal world, and the parallel to Jewish law and the rules of the Shulchan Arukh
Rules of interpretation as a “grammar” created after the language, and the expansion of the hermeneutic principles
Wittgenstein, following a rule, and AI as casuistry
A halakhic decisor versus a learner, and the danger of leadership positivism
A critique of Haredi-Lithuanian leadership and its connection to the conception of Torah

Summary

General Overview

The text presents an approach according to which Torah and Jewish law unfold from abstract ideas into concrete formulations through cases, and therefore the phenomenon of ukimta is a natural tool whose purpose is to sharpen the case so as to reveal the general law hidden behind it. The speaker compares this to the way scientific laws are formulated in a pure Platonic world but applied in a complex world through laboratory conditions, and argues that the confusion in the Talmud stems from the fact that the formulation is casuistic rather than a formulation of a rule. He goes on to develop a distinction between casuistry and positivism in law, shows a Talmudic distrust of sweeping rules, and expands on the claim that rules are built from cases and not the other way around, with illustrations from Jewish law, language, and the development of rules of interpretation. He concludes with a sharp critique of halakhic-public leadership that operates like a positivism detached from the real world and without activating “common sense” in the move from the abstract to practice.

The Development of Ideas and the Ukimta in Three Talmudic Passages

The speaker presents a double unfolding of Torah: from abstract ideas to ideas that touch our world, and then from ideas that touch our world to a concrete formulation in the Written Torah, and places the ukimta as a phenomenon that expresses the transition from the abstract to the concrete. He illustrates this through three passages: the bound and sleeping slave who acquires a bill of divorce for his mistress, an egg laid on a Jewish holiday which is interpreted as a holiday following the Sabbath, and leaven on Passover that was charred during the permitted time and eaten during the prohibited time. He argues that the ukimtot seem “wild” because it appears that the amora inserts into a tannaitic or amoraic source details the original author “never dreamed of,” and asks how to understand this without treating it as an implausible kind of polite disagreement.

The Parallel to Science and to a Platonic World

The speaker argues that a scientific law does not deal with our world, but with an abstract Platonic world in which the law appears in its purity, whereas in our world many laws operate in a mixture and therefore no law appears in a clean and precise way. He illustrates this through Newton’s first law and explains that the formulation “every body on which no force acts” already assumes a reality with no friction, temperature, additional bodies, and the like, and therefore there is no expectation of seeing it in its purity in the real world. He argues that science does not rebel against “impractical realities” because the formulation there is abstract and general from the outset, whereas in the Talmud the formulation is a concrete case, and therefore the lack of precision invites ukimtot.

A Casuistic Case as a Tool for Conveying a Rule

The speaker formulates a basic claim: even when Jewish law presents a particular case, it means to convey a general law, and the case is a garment chosen to express a principle. He explains that ukimta is not the purpose of the discussion in the sense of “sharpening the case” for its own sake, but rather of sharpening the case so that it reflects in purity the general law intended by the source. He argues that since the goal is the general law, it does not matter that the case is described in a way that seems imprecise, and the amora allows himself to add details because in that way he hits the intention of the author, not because he is changing the text by way of disagreement.

The Thirty-Nine Categories of Labor, an Ox that Gored, and the Absence of Holiness in Cases

The speaker describes a hierarchy of abstraction: behind the thirty-nine categories of labor sits a general principle of the prohibition of creative activity on the Sabbath; the thirty-nine are different expressions of that idea; each primary category has derivative categories; and each derivative has applications until one reaches very specific cases. He argues that dealing with an ox that gored a cow is not meant to clarify “the law of an ox,” but to expose conceptions in the laws of damages and even more abstract ideas behind them, and therefore one could replace it with contemporary examples such as “a taxi that crashed into a car” without harming the depth. He says there is no “holiness” in oxen and cows, and that if these things were written today they would be formulated differently, and he identifies criticism of anachronism as a mistake in understanding the purpose of study.

The Question of Why Not Formulate a Rule, and the Distinction Between Positivism and Casuistry in Law

The speaker presents two conceptions for building a legal system: casuistry, which is based on cases and analogy, and positivism, which is based on a set of general laws and a judge as a machine of deduction. He says the Talmud resembles the British common-law model more, whereas the positivist model is identified with German law, and he emphasizes that in practice today there is no pure system of either one. He ties positivism to the tension around “judicial legislation” and to the controversy surrounding Aharon Barak, and adds an aside that public tension grows precisely when ideological proximity grows.

The Impossibility of Running a World Through Rules Alone, Illustrated by Rabbi Tarfon, Rabbi Akiva, and Rabban Gamliel

The speaker argues that positivism “doesn’t work” because a real case is not the mechanical derivative of general rules, and presents this as impractical in a world that has to function. He brings the Mishnah at the end of chapter 1 of tractate Makkot, where Rabbi Tarfon and Rabbi Akiva say, “If we had been on the Sanhedrin, no person would ever have been executed,” and Rabban Gamliel’s response, “They too would increase bloodshedders in Israel,” and interprets this as a confrontation between a theoretical-positivist model and the practical responsibility of governing a world. He parallels this to the relation between philosophers of science and scientists, and argues that legal theory chases after practice rather than directing it.

Rules in Jewish Law as a Result of Cases, and the Critique of Mechanical Application

The speaker argues that even in Jewish law this is not a matter of technical application of principles, but of an interplay between Torah knowledge, common sense, and a general structure built after the fact. He describes the extreme picture in which the halakhic decisor “decides what ought to be” and then builds a supporting construction, while stressing that this is an exaggerated description but points to a failure in the concept of “applying the rules.” He uses the example of grammar and poetic writing to argue that rules provide a theoretical structure, but language proceeds in its own rhythm, and one who clings to the rules will speak like a robot. He presents this distinction as foundational for understanding the preference for cases in the Talmud.

Doubt Whether There Is Even a Complete Set of Rules: Epicycles and Deferents, and Conceptual Revolutions

The speaker offers a radical possibility: perhaps there is no perfect system of rules that covers reality at all, and the rules are only an approximation we produce in order to think. He illustrates this through Ptolemaic astronomy and the addition of epicycles and deferents to save the aesthetic assumption that orbits are circular, until one arrives at the ellipse, which simplifies the picture. He adds that even an ellipse is exact only in a two-body problem in a “Platonic” world, and in a world of many bodies even that is only an approximation, and he presents this as a parable for the accumulation of sub-rules when the basic rule does not fit.

Rules of Halakhic Ruling, Ya’al Kagam, and Maimonides as an Exception That Illustrates the Weakness of Rules

The speaker brings the rule that in disputes between Abaye and Rava, the Jewish law follows Rava except for Ya’al Kagam, and presents it as raising a question about the source of the exceptions and about the very assumption that there is an a priori rule. He argues that the rule was created a posteriori as a summary of the outcome after ruling each case on its own merits, not as a binding principle in advance. He notes that Maimonides rules like Abaye in more cases than those six, such as in the law of “do not form factions” and “if he acted, it is ineffective,” and interprets this as an understanding that the rule is not a binding truth but a useful direction for someone who has no position of his own. He illustrates this through the parable about “follow the majority,” attributed to Rabbi Yonatan Eybeschutz, and formulates the principle that rules are meant for a place of doubt, not for a place where there is independent judgment.

“We Do Not Derive from Generalizations”: Bava Kamma and Kiddushin as a Talmudic Justification for Casuistry

The speaker points out that in Bava Kamma the Talmud asks, “What does the common denominator come to include?” and interprets the question itself as assuming that the cases are the stable basis and the rule requires justification, contrary to the intuition that prefers a sweeping rule. He brings the passage in Kiddushin about positive commandments bound by time and Rabbi Yochanan’s statement, “We do not derive from generalizations, even where ‘except’ is stated,” and emphasizes that the Talmud expresses distrust even of a rule that lists its exceptions. He presents this approach as a conscious choice of the Mishnah and Talmud, not as “primitiveness,” and connects it to the danger of distorting justice through positivist attachment to rules.

The Convergence of Models in the Legal World, and the Parallel to Jewish Law and the Rules of the Shulchan Arukh

The speaker argues that German law moved away from absolute positivism and British law added rules, because the practical world requires a combination. He presents the Nuremberg trials and the claim “we obeyed the law” as an example of the danger of positivism, which prevents criticism of the law and of its fit to the case. He describes a similar process in Jewish law, where at first there are cases and the rules are created over the generations, and identifies in attempts to reconcile exceptions through sub-rules a phenomenon parallel to “epicycles.” He attacks common rules about the Shulchan Arukh, such as automatic decisions based on “some say” and “anonymous opinion,” and says these rules were invented later and are not binding.

Rules of Interpretation as a “Grammar” Created After the Language, and the Expansion of the Hermeneutic Principles

The speaker argues that Moses “spoke the language of interpretation” but did not know the formulations of rules such as gezerah shavah, general-and-particular, and binyan av, and that the grammatical rules of that language were created after the language already existed. He describes a development of the hermeneutic principles from two to seven, to thirteen, and to thirty-two, while asserting that even thirty-two “doesn’t cover everything,” and so rules keep being added all the time. He uses this to sharpen the point that rules are crutches that assist thought, but one must not cling to them as the source of decision.

Wittgenstein, Following a Rule, and AI as Casuistry

The speaker brings Wittgenstein’s argument about following a rule through the example of number sequences, where one can always invent a regularity that justifies any continuation, and argues that instructing a rule always rests on an “and so on” that is socially agreed upon. He claims that rules are generated from examples and not the reverse, and that this is the strength of casuistic thinking. He presents AI as a clear model of learning from examples to produce the next example, without an explicit rule inside the system, and contrasts this with classical software, which operates according to rules and then solves cases. He uses this as a modern proof of the superiority of the casuistic approach adopted by the Talmud.

A Halakhic Decisor versus a Learner, and the Danger of Leadership Positivism

The speaker defines the halakhic decisor as aiming at a practical ruling in a case, and therefore for him the general idea is a means, whereas the learner uses cases as a means to arrive at abstract principles. He says that in life there is overlap between conceptual analysis and halakhic ruling, but warns against detached learning that produces brilliant theories that “don’t hold water,” and brings George Orwell’s line about “ideas so absurd that only intellectuals could believe them.” He quotes in the name of Rabbi Benny Lau the claim that transferring religious leadership to yeshiva heads creates practical detachment, because the criterion for success among students is coherence and brilliance rather than fit to the world.

A Critique of Haredi-Lithuanian Leadership and Its Connection to the Conception of Torah

The speaker points to the “Great Sages of the Generation channel of Degel HaTorah” on YouTube and describes the content there as an intellectual desecration of God’s name, arguing that the speakers are brilliant in a general lecture but “fools” when they are required to deal with reality. He says the problem is not political interests but a positivism that derives practical conclusions from abstract principles without the filter of “the Torah was not given to ministering angels” and without taking account of the complexities of the world. He concludes that such failure stems from not understanding what Torah is and what the passage is from the Platonic world of principles to the practical world, where ukimtot, a laboratory, and common sense are required.

Full Transcript

[Rabbi Michael Abraham] Okay, we started touching a bit on… that is, after I spoke about the unfolding of the abstract concept of Torah, a double unfolding: first, from abstract ideas to ideas that touch our world, and second, from ideas that touch our world to their concrete formulation, yes, in the Written Torah, let’s say. So after I talked about that unfolding, I tried to look at that same process from another angle, and we started dealing with the question of ukimtot. And I said that behind this riddle called ukimta there really sits a conception that expresses what I described earlier, this unfolding of abstract ideas into concrete cases in our world. And I illustrated it through three Talmudic passages. One passage is the bound and sleeping slave, yes, who acquires the bill of divorce for his mistress. The second passage is an egg laid on a Jewish holiday, which is interpreted as a holiday after the Sabbath—that’s an ukimta. And the third passage was about leaven on Passover that was charred during the permitted time, and then he wants to eat it during the prohibited time, and there too we’re basically talking about a pretty wild ukimta. Leaven that was charred before the time of prohibition and is eaten within the time of prohibition—about that it says that it is permitted. Yes, so there’s the question: obvious—obviously, leaven before the time of prohibition is permitted. And then the Talmud makes some kind of ukimta. And there too I said that this whole thing is very strange. Yaron, right? Yes. It’s very strange because we are basically inserting into the explicit source, whether a tannaitic source or an amoraic source, things that seemingly the author never dreamed of. Meaning, if he wanted to say that this is a bound and sleeping slave, he would have written that for us. If they want to say this is a holiday after the Sabbath, then let them write “a holiday after the Sabbath,” not “an egg laid on a holiday.” Or leaven that he charred before and then eats—then write that; why don’t you write it? In other words, there is something here that looks like, yes, a polite disagreement, or whatever you want to call it, but even that is an implausible explanation—this polite disagreement. So how are we supposed to understand these phenomena? So I said, after a long introduction in which I tried to show this in scientific contexts, and we saw there that a scientific law really doesn’t deal with our world; it deals with some abstract Platonic world that lacks many of the markers that appear in our world, and only there does that law actually appear in its purity, precisely. But that is really the only way we can describe things from our world, because in our world what happens is that many laws get mixed together, each one living on its own in its own Platonic world, and in our world they all operate mixed together. And therefore none of them appears in its purity, so it always looks to us like an approximation, imprecise, whatever, all kinds of things like that. But that doesn’t mean the laws aren’t completely precise—or at least they can be. We may always have made a mistake, but in principle those laws can be perfectly precise, and the fact that they do not appear in their purity in our world is because in our world there is a mixture of many laws. The world itself is simple; our world is simply complex, and each aspect of it is described by a pure law. But all those aspects together can interfere with one another. And I tried to show that this is completely parallel to the phenomenon of ukimta. Because if I say that every body on which no force acts moves at constant velocity in a straight line—yes, Newton’s first law in Newtonian mechanics—then immediately you’ll ask: yes, but there is always friction, there is always temperature, there are always all kinds of other disturbances. I said: yes, we’re talking about an abstract world where there is no friction, no temperature, no other bodies, nothing. There is one body moving there and that’s it, that’s all you know. One body and a coordinate system. The moment there is another body relative to which it moves, then they already exert force on one another—or a massless body, if you like. So in any case, you have to get to a situation that no one has ever seen, a Platonic situation. Okay? And for some reason, in the scientific context it doesn’t bother anyone that we’re dealing with impractical realities, making wild ukimtot, all kinds of things like that. Why? I think one of the reasons is that in the scientific world—I explained this—that in the scientific context one formulates… the law is formulated in a general way. That is, on the table we’re really talking about some principle that is a generalization, and therefore we do not expect it to appear in its purity in our world. Because when it’s phrased as “every body on which no force acts,” we already see that this is some abstract world, “continues moving at constant velocity in a straight line.” Okay? So the formulation from the outset is the formulation of some general law, of an abstraction, so there’s no problem. No one expects to see that law as such in our world. What happens in the Talmud, which creates all the confusion and difficulties and all that, is that the Talmud does not formulate this as a general law. The Talmud formulates it as a case. “An egg laid on a holiday may be eaten,” “may not be eaten.” Nobody is talking here about some general principle. And then people say, wait a second, but an egg laid on a holiday—what’s the problem? Why shouldn’t I be able to eat it? And then they start: a holiday after the Sabbath, Rabbah’s preparation principle, all kinds of things of that sort. In other words, because in the halakhic, Talmudic, halakhic world we talk about cases and not rules, the problem of ukimta arises in full force. Because if you want to talk to me about a case, then describe the case as it is. What are you doing? Say if they had said, “a certain body moves at constant velocity in a straight line.” Then I would say no, no—“a body on which no force acts,” I’m making an ukimta. If you tell me a private case, then state the law regarding that particular case correctly. You’re stating it incorrectly. If you tell me a general law, then I understand that it doesn’t deal with our world and it won’t be precise in our world. Then the question of ukimta doesn’t arise. The question that arises in the Talmud is not because we’re giving science special treatment. Sometimes that’s also true. Very often there are all kinds of writings that explain halakhic phenomena by means of, I don’t know, quantum theory. Okay? What have we gained? You’re explaining one thing I don’t understand by means of something else I understand even less. Somehow there’s this feeling that if it’s in science then it must be right, it doesn’t need explanation; but in Torah there’s something here that needs explanation. Ah, but if there’s a similar puzzle in science then everything is fine. What do you mean everything is fine? Now the problem is doubled: I don’t understand the science either, and I don’t understand the Torah either. How did that help me? So we have some kind of special treatment for the scientific context, I think maybe at an unconscious level. Okay? But in our case I think it’s not only that. The reason people object to the phenomenon of ukimta in the Torah, Talmudic context, and not in the scientific context, is really because the formulations are different formulations. And this is an important point that I want to dwell on today. The formulations in the halakhic context are casuistic formulations. Casuistic means based on cases, on instances. They don’t tell me a law; they tell me a case: in this case the law is such-and-such. In the scientific context, when they teach me a scientific law, they tell me the law—they tell me, here is a general law. Okay? Therefore there we don’t expect, there aren’t problems of precision and the need for ukimtot, whereas in the halakhic context there are. But you need to understand that this is only a difference of formulation. It’s only a difference of formulation. Jewish law too, when it brings a specific case, really intends to convey to me a general law—it just says it through the specific case. That is really my fundamental claim in this whole move. Okay? When we see a case in the Mishnah or the Talmud, our simple assumption should be—as the Talmud always assumes, and we are supposed to learn from that that probably we too should learn this way—that this case comes to represent a general law. They are not coming to tell me the law in one specific case. They simply are not—that is not the issue. Although ostensibly it looks like a discussion about one specific case—no, that’s not what it is. Meaning, that is why ukimta is accepted as something natural and self-evident—one second—because when you tell me, say, “an egg laid on a holiday may be eaten,” I say, wait a second, but obviously he is not coming to tell me the law about an egg laid on a holiday; he wants to tell me some principle. Right? So I say, but this law does not express the principle, because an egg laid on a holiday can indeed be eaten. So Beit Hillel say it may not be eaten? No, no—it’s talking about a holiday after the Sabbath. That’s an ukimta. It’s talking about a holiday after the Sabbath. But even the holiday after the Sabbath is not the point I came to teach. I came to teach a general idea—and today I’ll explain what it is—but I came to teach a general idea, and I express it through a case, and the ukimta only comes to sharpen the case. It comes to say: set up the case I’m talking about this way, and then you will understand the general law in its purity. But my purpose is not to talk about the case, and therefore I don’t care that the case is described imprecisely, because that’s not what I came to teach. I came to teach a general idea, and that is indeed described precisely even in the original wording. I’ll demonstrate that today, but that’s what I want to say. In other words, that is the fundamental principle, and that’s the explanation I am offering for the phenomenon of ukimta. So this basically means—and here I’m closing the circle already, so that you can see why this is connected to the general move, this discussion of ukimtot. Because basically what this means is exactly what I said in the first lessons: when we see a law appearing in the Mishnah, or an amoraic statement, or whatever it may be, from our point of view it is clear that they did not come to teach me that law at all. It’s a bit strange. He tells you a law: in such-and-such a case, the law is such-and-such. And now an amora comes and says: obviously you do not mean to tell me that, because that’s obvious—even before I read you, that’s obvious. That’s not what you came to teach me. So he says yes, but that law in itself is not correct, so I make an ukimta—what’s the problem? I’m the amora, not the tanna. Fine? The amora makes an ukimta—why? Because he is not trying to sharpen the case dealt with by the source, the case the author of the source dealt with. That is not the point. He is trying to explain to himself how one sees the general law the author intended through the case he chose in order to express that general principle. Okay? And therefore the amora allows himself to insert into the explicit source things the author did not put there, because he understands that this way he hits the author’s intention.

[Speaker B] But why doesn’t he just tell us the general principle directly?

[Rabbi Michael Abraham] That’s what I want to talk about today. So that’s what I want to talk about today. Yes, right. So that’s why I say that if I accept the set of assumptions I described here—that is, that Torah passed through processes of concretization, yes? From an abstract principle to a general principle, from a general principle to a verbal formulation and to concrete applications. Behind the concrete applications sit the ideas, the general ideas. And Torah, at least for us, is those general ideas—which themselves are really only a garment for what is more abstract, but we have no direct access to that. We can only approach it through the garment it wears in our world; that’s the Moses and the angels thing we saw. So from our point of view that is really Torah. Think about the fact that this is basically what we do all the time when we study Talmud. When we study Talmud, we take a passage that deals with a certain case and begin to think about the idea standing behind it. And if there is a dispute about that case, then there is also a principled, conceptual dispute here: how one understood something and how the other understood something. It’s not a question of this specific case. This is what we assume all the time when we study. We formulate general ideas, and then we test them in other cases. If it’s a general idea, it should fit many cases, not only the case before us. In other words, our assumption all the time—we may not always notice it, but our assumption all the time—is really that cases are nothing but expressions of general ideas. And when we study Torah, our goal is to penetrate through the cases and see through them what general ideas are expressed in those cases. Exactly like a scientist who takes certain cases, observes them in the laboratory or in life or whatever, and tries to understand what the general laws—laws of nature—are that stand behind these particular phenomena. Exactly the same thing. Okay?

[Speaker C] You rescued the ukimtot. What? You’re rescuing the ukimta; we always see the ukimta as forced.

[Rabbi Michael Abraham] Yes, exactly. The ukimta is an expansion, not a narrowing. The ukimta is an expansion. It narrows the case in order to understand the whole general law. I’ll demonstrate this and then it will be clearer, but that is basically the thesis.

[Speaker D] Now, yes? The thirty-nine categories of labor—is that the same thing as ukimta? Is that the same as what you’re…

[Rabbi Michael Abraham] It’s a kind of law, but it’s a law at a certain level. Above it there is a more fundamental law—this may be a dispute between Rashi and Tosafot Rid—but in the simple sense, behind the thirty-nine categories of labor there sits some general principle that on the Sabbath it is forbidden to do something—creative activity, if you like, or whatever—and the thirty-nine categories are different expressions of that abstract idea. Then the categories of labor have derivatives, for all the primary categories. And those derivatives have applications in various cases, each of which is an application of that derivative or that primary category. You see that this thing becomes more and more detailed, gets clothed in a more and more concrete garment, until in the end you reach very, very specific cases. But those cases merely express abstract general ideas, which are Torah. And therefore, if today we deal—I spoke about this—that if today we deal with an ox that gored a cow, none of us has seen either a cow or an ox except in the supermarket, yes, but…

[Speaker D] Maybe a taxi crashed into a car.

[Rabbi Michael Abraham] Yes, exactly. But that really doesn’t matter. Because what interests us is not truly what the law of an ox is. The law of the ox demonstrates conceptions in the laws of damages behind it, and maybe even more abstract ideas behind the laws of damages, and so on. You can keep abstracting as much as you go upward, and in conceptual study we try to climb to higher and higher levels of abstraction, and there we are already touching the things themselves. The medium through which these things are expressed—that’s the medium that prevailed in the Talmudic period, because that’s when it was written. So what? Through that we enter the world of abstract ideas, and that is as true today as it was then. But the fact that it is clothed in a different reality—fine, then it is clothed in a different reality. That is why there is also no holiness in those oxen and cows. Meaning, if this were written today, clearly it would be written differently. All those who are troubled by the fact that we study anachronistic things that do not belong to our world—that’s the same mistake. They think I want to know what the law is concerning an ox that gored a cow. I couldn’t care less what the law is concerning an ox that gored a cow. What interests me is what ideas, what conceptions, stand behind the law of an ox that gored the cow. I use the case in order to clarify the ideas. Once I understand the idea, I can apply it in a completely different reality. And the application may also be different—we talked about this last time too. The application may be completely different. If I understand the ideas correctly in my reality, it could be that the application will even be the opposite. Okay? Fine, so I’ll get to that too. In any event, that’s what I want to say. Now before I return to the three passages through which I illustrated the matter, and explain how I think one can explain the ukimta in those three passages in a way that is very clear and logical and natural, I really do want to answer your question. Because there’s one more thing I owe you an answer on if I’m right in these moves, and that is: if you want to teach me the abstract things, why do you formulate them in the form of specific cases? State the rule! Like in a mechanics book. In a mechanics book they state the rule. Why not in a law book? In a law book too—state the rule! What’s the problem? Why do you use a case? “An egg laid on a holiday.” Tell me the idea—I don’t know—preparation on a holiday, one should do such-and-such. What do I care about an egg laid on a holiday after the Sabbath? A very specific case. Where is the rule? Why don’t you write it? Okay. So here I really want to talk a bit about this issue, and it also touches the essence of our topic. It’s not only an introduction for the discussion of ukimtot—on the contrary. The discussion of ukimtot is serving me here precisely to illustrate through it the general idea. And here you’ll see the general idea. In the legal world there are really two conceptions—at least on the theoretical level—two conceptions of how a system of law, a legal system, should be built. Positivism and the casuistic approach. Okay? A casuistic conception is a conception built on cases—cases, therefore it’s casuistic—that says: what is the law in such-and-such a case, what is the law in such-and-such a case, and from there one tries, by way of analogy, to infer conclusions about other laws. This is basically common law, British law. And opposite that stands a positivist conception. Yes, this is a conception whose basis is essentially the claim that there is a set of general laws; the legislator’s role is to formulate the general laws, because he is the legislator; and the judge is basically a machine of deduction. In practice, he just has to take the general principles, have a case brought before him, apply the principles to the case, and say what the principles dictate about the case before him. That’s the basic conception in Germany, in the Bundeslaw, yes. And again, these are conceptions…

[Speaker B] Can AI do the work of a judge?

[Rabbi Michael Abraham] According to both. AI can do both. Old software could only do the German job; new software can do both—that is exactly the difference. But I want to sharpen the point for a moment. Look. In practice today no one already works in a pure way, neither casuistically nor positivistically. In English law there are already many more rules; in the Bundeslaw they already understand that the rules are not the whole picture. In practice there has been some convergence between these two things, but there are still two conceptions here, and it’s important to stand on the distinction between them and understand what each one says. In the end, in the world this never appears in a pure form—neither this nor that—but still there are two basic tendencies here that I want to dwell on a bit, because it is clear that the Talmud has a character much more similar to common law. The Talmud talks about cases, about instances, and you make analogy to other cases. The Talmud hardly ever sets rules. Here and there, but hardly ever. The Mishnah sets rules even less. The rules are created through the interpretations over the generations. The later the generation, the more rules there are. But at the base there are cases, not rules. Now in the simple conception, the claim would be that positivism is really what I would expect to be the legal conception. Why? Because positivism creates a very clear division between the legislative branch and the judicial branch. The legislative branch sets the rules; it does not deal with cases. It deals with rules, and the judge is supposed to apply to the case before him the rules established by the legislative branch. So there is a very clear division between the legislator and the applying judge, okay? Or between the scientific researcher and the technological person. Fine? Actually in the scientific context it’s similar. Now where the judge departs from that role—meaning, not only deriving in a logical, mechanical way the result for the case before him from the general laws—we encounter a problem called judicial legislation. Judicial legislation basically means that the judge here engaged in a kind of legislation under the guise of a ruling; he actually legislated, because his result is not a simple derivative of the words of the legislator, of the written law, and then criticism arises. What right does he even have to legislate? After all, he belongs to the judiciary and not the legislature; he is only supposed to derive, right? This is often conservatism, by the way—conservatism versus conservatism; it’s a conception that tends more toward positivism. And the, I don’t know what to call them, non-conservative judges—or whether these are liberals, though I don’t think that’s the right term. Often conservative judges are more liberal. Liberalism is conservatism in the original sense. What?

[Speaker B] That’s the issue with reasonableness.

[Rabbi Michael Abraham] That’s more a part of the matter, yes. But the claim is that the moment a judge inserts something of his own and not only tries to apply the law as it is to the case before him, then he is really functioning as a legislator and not as a judge—but he didn’t receive a mandate for that, he wasn’t elected. Yes, the controversy reached its height with Aharon Barak, around Aharon Barak and after him up to today. Today it has reached its peak, although I think the—let’s say, not militancy, but what the court allows itself—is less than what Aharon did.

[Speaker B] Activism.

[Rabbi Michael Abraham] Activism, yes, exactly. Today activism is a bit less than it was in the past, but the tension around it is much greater. By the way, this is generally true—the tension that exists today between parts of the public is inversely proportional to the ideological closeness between them. Meaning, we all agree, we all agree on almost everything today in the State of Israel. There are almost no disagreements—almost no disagreements on the substance, not about Bibi, but on the substance there are almost no disagreements. Almost everyone agrees on everything, and the closer we are, the stronger the wars become. So it’s dissonant. What? Yes, because you always need to fight. So if there’s nothing to fight about on the substance, you fight about the person. And we always need to fight, otherwise living in a world where there is nothing worth dying for, as the song says, yes, it’s boring. Fine. In any event, back to our matter. But there are still these two conceptions here—positivism versus casuistry—in this context, where the natural conception of law is positivist. There is a clear division between the legislator and the judge, and the judge only needs to apply. The problem is that it doesn’t work. It doesn’t work; in practice it cannot happen. That’s why even the Bundeslaw, I say, retreated. Why? Because the case that comes before you is never a simple derivative of the set of laws. That’s naive. In other words, it is impossible to establish a set of general laws that can be applied in a completely mechanical way to a private case that comes before you. No, simply no. It’s impossible; it’s impractical. Even if theoretically we might want this to be so in the abstract model, it could be that this really is the right model—but it’s not practical, and we live in a world that has to be dealt with, a practical world. And since that is so, yes, a nice expression of this is the Mishnah at the end of chapter 1 of tractate Makkot, where it says that Rabbi Tarfon and Rabbi Akiva say: “If we had been on the Sanhedrin, no person would ever have been executed.” Why? Because if you wanted to execute someone who committed adultery, you would ask the witnesses: did you see? Did you see “like a brush entering a tube”? Did you see the intercourse itself? Are you sure there was intercourse there? That never happens. Or with a murderer: did you see that there was no hole in the place of the sword? He thrust the sword into him and killed him, but maybe there had been a hole there beforehand. Did you see that there was no hole exactly where the sword entered?

[Speaker D] Yes, if so, that’s not good.

[Rabbi Michael Abraham] I don’t know whether it’s good or not good—one second, the Talmud…

[Speaker D] It turns out there are two judges…

[Rabbi Michael Abraham] Before whether it’s good or not good, first of all, what does it say here? So the Talmud says Rabbi Tarfon and Rabbi Akiva…

[Speaker D] In the matter…

[Speaker B] Wait—

[Rabbi Michael Abraham] Just wait. Rabbi Tarfon and Rabbi Akiva say that if we had been on the Sanhedrin, no person would ever have been executed. Yes. So what does Rabban Gamliel answer them? “They too…”

[Speaker B] “…would increase bloodshedders in Israel.”

[Rabbi Michael Abraham] Yes? Meaning, you increase bloodshedders in Israel if you protect everyone this much—but you can’t run the world like that. The difference is that Rabbi Akiva was the son of converts; he did not sit on the Sanhedrin. Rabban Gamliel was the head of the Sanhedrin. Rabbi Akiva was a legal scholar, meaning he sat there and spun out fine distinctions. Spun out fine distinctions. He’s a wonderful positivist. He says: according to the rules, you cannot execute anyone, because the rules say there must be two witnesses to the intercourse, there must be two witnesses that there was no hole there where the sword entered—those are the rules, and that’s true. Rabban Gamliel says to him: very nice. Take your rules home with you to the study hall and keep pilpul-ing there. Leave me the practical field. Otherwise I have to run the world here. In other words, you can’t run the world with your rules. Okay, that is basically what he says. Practical responsibility, says Rabban Gamliel, is on me. You cannot run the world in a positivist way. You cannot.

[Speaker D] In a theoretical way? Yes.

[Rabbi Michael Abraham] In other words, the rules are wonderful. Everything is logical, abstract, wonderful, really perfect, a glorious logical structure. Okay? Except that afterward there won’t be anyone left to talk about this logical structure, because we’ll all be dead. Meaning, this whole story can’t function. Okay? It can exist in jurisprudence classes at the university, but in life it doesn’t work that way. By the way, in science too it’s like that. People think law is something different; in science too it’s like that. There are all kinds of rules laid down by philosophers of science, and the scientists say, okay, you keep doing philosophy of science, we need to understand what physics is doing, right? So leave me alone with your guidelines. Yes, very often the philosophers chase after the scientists: the scientists do what they do, and then the philosophers come and explain why they did it and why it’s right to do it that way or wrong to do it that way. They’re always chasing after them. In other words, they never really give forward-looking instructions. Same thing here: jurisprudence follows actual legal practice, not the other way around. It’s not that they pave the road and show what should be done and then the judges come and apply it. It doesn’t work that way. It doesn’t work that way in any field. Practice is stronger. By the way, in Jewish law too, it’s like that. We think that when a halakhic decisor reaches a case—and here we’re really coming back to the heart of the matter—he basically scans the principles he learned; after all, he’s a Torah scholar, he knows them; he scans the principles and then applies them to the case. Nonsense. I mean, he looks at the case, and of course he already has the Torah knowledge inside him too, but he says to himself: what really ought to be here? And then he goes to the sources and tries to build the construction that will support what ought to be here. That’s an extreme in the other direction; I exaggerated a bit in that description, because there is some kind of interplay between the rules and the case and common sense, and in the end it’s some combination of the two. But it’s not true that this is just applying rules. That’s a big mistake. It doesn’t work that way anywhere—not in science, not in law, not in Jewish law, nowhere. On the other hand, rules are the only way we have to think systematically and work and understand. So I’m not rejecting the whole business of dealing with rules. I’m just saying you have to be careful when you take the rules and see them as the thing itself—apply the rules as is—that’s a mistake. Same thing in language, in speech. I mentioned this, Moses Koppel’s example, right? We have grammatical rules, and there are more exceptions than cases that obey the rule, right? That’s always what’s so frustrating on the matriculation exam, the Hebrew grammar exam—I don’t know, for me at least. What are all these rules worth? Every rule has a hundred thousand exceptions. So what good are all these rules? The answer is that the rules give some kind of tight, consistent theoretical structure and so on, but language conducts itself in its own ways. And there’s logic in what it does, because if you really go strictly by the rules, you speak in an awfully mechanical way. You won’t really be able to conduct a good intelligent conversation if you cling to the rules. A poet who writes by rules won’t produce a poem; he’ll produce a robot. Okay? Meaning, he has to bend the rules, phrase things in a way that doesn’t exactly fit the rules of grammar, and everyone understands that this is excellent phrasing. It’s very correct phrasing; that’s how it should be phrased. Okay? And therefore this game, this interplay between the rules—which have to be developed, because that’s how we think, that’s how we work, we have no other way, meaning we do have to work with rules, okay?—and checking them against reality, and seeing how this story actually works, from reality back to the rules, from the rules to generate reality. In the previous lecture, I think, I spoke about Kuhn in history and about Semmelweis. I think I brought those two examples regarding the interplay between the rules and the case, or the facts I collect in order to build the rules. So these two approaches, one theoretical and the other case-based, are ostensibly theoretically impossible, or at least very unreasonable on the theoretical level. On the practical level it’s obvious that some combination of them is needed. Okay? That’s obvious. But what I want to do is explain a little more what the idea behind casuistry is. It’s not just a practical question. What I’ve said until now—fine, going by rules doesn’t work because we have no way to formulate rules such that every case that comes before us will be a simple application of them, a simple deduction from the rules. That’s a practical problem. The question is whether it’s only a practical problem. I think not. This practical problem reflects something deeper. And that something basically says: is there even such a system of rules at all? Or are the rules an approximation that we—we use because we’re used to thinking with rules. So we use this approximation to describe reality, but reality itself may have no rule system at all. Not that we don’t know how to formulate it or that it’s too complicated. No—who says there even is such a system of rules? That is really the fundamental question. One second, if you’ll allow me, I have to—time-out on the couch,

[Speaker B] after that it’ll be easier. The rules are meant to make life easier for us, and that’s not true. Then you have a million exceptions, and then you’ve got something to keep busy with. All the… when you learn Talmud, it doesn’t work by the rules,

[Speaker D] it goes like this and this and this and twists itself around, and okay.

[Speaker B] Why? Because you…

[Speaker D] It brings you to the medieval authorities, it takes you back to the source, to the bottom of it all. Right. What do you think? Maimonides is going to explain to you exactly why—if it doesn’t work for you, check him—now he’s going to explain to you why. If you have yes and no, check

[Speaker B] him, and he’ll explain exactly why.

[Speaker D] Right, fine, there’s logic, and in Maimonides too there’s logic, and he’ll explain according to his logic; you don’t have to accept his logic.

[Speaker B] No, everyone has his own agenda and bends the rules according to his own agenda. If his agenda fits your agenda, you agree with him; if not, then you’re against him. But who can do such a thing?

[Speaker D] Also in a religious court, you have three against two, and each one will explain why he rules the way he rules, according to his logic. And also in the Supreme Court, right, and generally the two are against him, small, big, what are you talking about. And then again, the head of the court—

[Speaker B] right, so he’ll appoint the panel so it comes out with the final result.

[Speaker D] That’s another story, but it’s not…

[Speaker B] Right, you

[Speaker E] can

[Speaker D] say the same thing about our religious court too.

[Speaker B] I’m talking about the heavenly court; there there’s no politics. It’s simply… you know this from the Supreme Court, it’s an application…

[Speaker E] But what’s beautiful about the Tannaim is that it’s pure. There it’s

[Speaker B] not political interests.

[Speaker E] Wait, Ovadia, you took it to the place of agenda. Among the Tannaim they don’t have an agenda; they come from within a worldview. When there’s a dispute in the Talmud, everything in the end… what’s beautiful about it, what makes it so strong, is that each person has an agenda—it’s not an agenda, it’s a worldview. The disputes are over worldview, a different method, a different outlook. You can say that one is left-wing, right-wing, but it’s ideology.

[Speaker B] Obviously, Rabbi Yishmael and Rabbi Akiva are two different worlds,

[Speaker E] but it’s not a political agenda, it’s not an agenda of money, of politics.

[Speaker B] But who said it was money?

[Speaker E] Fine. No, I mean today—today it’s politics, everything is just… today everything is dirty with money and interests, there’s no agenda today of interests in the service of…

[Speaker B] What? Interests are also a matter of outlook.

[Speaker E] You see that the disputes are just fake; they’re not on a real basis. There isn’t a single dispute that’s real. And in the Talmud there isn’t any dispute… tell me, over what? Over what did they argue? In the end they all kill the Arabs. Like, in the end they all say the same thing. It’s not like suddenly, if now there were…

[Speaker D] I knew the “Arabs” would come in.

[Speaker E] No, if Bibi were there or not there, you’d see completely different conduct here. They’re all the same; they’re just doing here…

[Speaker D] Do you know why Sarah fired Bibi? No, why?

[Speaker B] Sarah wanted…

[Speaker H] No, Sarah fired the maid.

[Speaker C] No, Sarah wanted to do Black Friday in the United

[Speaker D] States—bigger, cheaper. Why is he flying on Friday? No, I thought she needed to do laundry. No, that’s all week. No, she needed to do laundry. I thought Monday is Cyber Monday.

[Speaker H] On Monday there’s

[Speaker D] Cyber Monday, everybody flew there, only champagne was left for space. The champagne ran out; nobody knows how much champagne they bought.

[Speaker H] There isn’t a single

[Speaker D] proof that someone gave it to her; she has to buy it. There’s the champagne…

[Speaker H] The main thing is that Deri was acquitted. That Bibi got him out of his house,

[Speaker D] it’s all politics, all because of the chair.

[Speaker H] Where does he live? No, what are you talking about? Up north. No, one of the millionaires in America—where is he from? Who is it? Deri? No, Gallant, Gallant. They got him out of there because they couldn’t guard him there. They were afraid that… yes, they removed Gallant.

[Speaker D] Gallant lives in Moshav Amikam. The Minister of Defense—they took him out of the house. That would make more sense; he lived there before they fired him. Guys, the Saturday-night crowd filed a complaint. Now they have too much time—what will they do on Saturday night?

[Speaker H] Exactly.

[Speaker B] I wish they’d leave me alone, because for me it’s nearby, near my house in Merkaz Horev, and they demonstrate every three years and we suffer; you can’t get out of the house. Come on, now you can’t—you’re already used to it,

[Speaker D] you can’t suffer anymore.

[Speaker B] You’re already used to it, you can’t. Suffer. You’re already used to it, you can’t.

[Speaker D] No, you don’t get used to it, I haven’t gotten used to anything.

[Speaker B] Now there’s a whole group from all political shades saying they want them to go to the sports arena and do it there. And who will want to pay?

[Speaker E] Yossi, who will want to pay?

[Speaker B] It’s turned into a happening, what a shame, every Saturday night.

[Speaker E] Suddenly there’s a demonstration; she gets ready for an hour, goes out, puts on makeup, gets dressed.

[Speaker B] All the old people there from Ahuzat… they’ve got nothing to do all week, so they think about what they’ll do

[Speaker E] on Saturday night.

[Speaker B] They plan the walk, and the flag, and the… polishing the noisemaker or something like that. They have no idea what they’re…

[Speaker E] Doesn’t matter, doesn’t matter.

[Speaker B] And there’s someone barking there and women screaming like slaughtered chickens. What do you say?

[Speaker C] Dogs, chickens?

[Speaker B] There was everything. Dogs, endless dogs.

[Speaker C] I think you have a somewhat biased opinion. Leave it.

[Speaker B] True, I told you I’m politicized, but

[Speaker C] you turned them into chickens and all that?

[Speaker B] Listen to them scream. If you won’t say it’s a rooster, maybe you’ll say it’s…

[Speaker C] There’s a whole Talmudic passage, you know, about who has to distance himself—from the harmed party or the damager. The damager, the damager. A person who has means can move apartments. They won’t move him. Sorry.

[Rabbi Michael Abraham] So the claim I wanted to make is that there’s a practical problem in the sense that even if there is some set of rules, it’s very complex, and it’s not at all certain that we can get to it. And consequently it’s also not clear that we can use the rules to deduce a conclusion in a deductive way about every case that comes before us. After that I wanted to suggest a more radical proposal, which basically says: who says there is such a set of rules? In the end these rules were created by us. We weren’t given rules at Sinai. These rules are generated by us, and therefore it may be that there really is no perfect set of rules that we are striving toward. Rather, we generate rules according to the cases that came to us, because that’s how we think. When we want to compare cases, we say they belong to the same rule or something like that. But that doesn’t really mean there is any such set of rules at all. It may be that in this context I want to talk about the… maybe before that there’s a nice illustration of this point, yes? It’s epicycles and deferents in Ptolemaic astronomy—the assumption there was, for aesthetic reasons, that the paths of the stars had to be circles, because that’s the most aesthetic, the cleanest, the most symmetrical, and so on. Now what do you do when the world is an ellipse,

[Speaker F] he didn’t hear that.

[Rabbi Michael Abraham] when in the world it doesn’t work that way? So what did they do? They said, fine, apparently we need to add epicycles and deferents. What does that mean? Let’s say there’s a star moving in an elliptical orbit around another star. No, it’s a circular orbit, but you add two more circles on the side—you see the ellipse being formed. But that doesn’t work either, because two circles like that don’t create an ellipse; they create some sort of thing like this. So you add another four little circles, and then it gets closer. But of course each of those also needs another eight little circles to complete it still more—you understand, it goes on to infinity. So in the end you need to add lots of epicycles and deferents to finally reach the real orbit—when the real orbit, by the way, isn’t an ellipse either. An elliptical orbit is the solution to a two-body problem, where there are only two bodies in the world, in some Platonic world of some kind. Our world has more bodies—certainly not. When there are two bodies, one of them moves around the other in an ellipse. But if there are more bodies, they also affect this body; it doesn’t move around only one body. They’re far away, so I can neglect it, I can say it’s a small effect, but in principle even the ellipse isn’t really exact. We know that in a two-body problem, if there were only two bodies in the world, then you’d get a clean ellipse. Yes, here you see the forced interpretation. Okay, and we also make forced interpretations; it’s not only the Greeks who made forced interpretations. But be that as it may—

[Speaker I] It also moves in a spiral.

[Rabbi Michael Abraham] What do you mean, a spiral?

[Speaker I] Like the whole body is moving forward.

[Rabbi Michael Abraham] No, it depends around what you’re… yes, it depends around what you’re revolving. If your center is moving, then yes. In any case, epicycles and deferents became a kind of metaphor for a mode of thought that is fixated on rigid principles and tries, by means of them, to explain all the facts it encounters. And then what you do is add more sub-rules, more epicycles and deferents and everything, because everything absolutely has to be circles. Until someone comes and says, wait—it’s not circles, it’s an ellipse. Boom. Suddenly everything is beautified, all the complexity disappears, and everything becomes terribly simple, even though an ellipse is less simple than a circle. But it’s obvious that it’s an ellipse and not an infinite collection of circles. Okay? So many times you need some conceptual revolution that simplifies the matter. The big question is whether there is such a revolution. In the case of the stars there was, but it’s not always like that. Sometimes we are captives of our rules. We’ll use rules and sub-rules and so on to explain everything, but in fact there won’t be a revolution that produces some rule that renders all the complexities unnecessary—because maybe there is no such rule. Meaning, I don’t know, but it may be that there is no such rule at all. And then we are forced to continue with our rules and add sub-rules and epicycles and deferents and all kinds of things of that sort. And I’ll bring examples of this also in the halakhic context. Look, for example, there is a rule in the Talmud that in disputes between Abaye and Rava, the Jewish law follows Rava except for six cases—despair without knowledge, conspiring witness, and all those things. Ya’al Kegam—that’s the acronym. Now first of all, this rule itself cries out for explanation. Where did these six exceptions come from? Meaning, if the Jewish law always follows Rava, why? Because he’s wiser? Because he hits the truth more accurately? Why exactly? So then why not always? Why in these six cases not? So that in itself already cries out for explanation. It means that the Sages apparently didn’t really determine a priori a rule that the Jewish law always follows Rava. Rather, in each dispute they ruled on its own merits.

[Speaker D] Each case on its own merits?

[Rabbi Michael Abraham] Yes. And afterward they saw—afterward they saw—that the picture that emerged de facto was that almost always the Jewish law followed Rava except for six cases, so they summarized that in the form of a rule. That’s an example of the rule being a result of thinking about the cases, rather than your thinking about the cases because you have a rule and then you apply it to the cases. Right? It’s pretty clear that this rule was not created in advance—Jewish law follows Rava except for six cases, and then I go to the cases and apply it. Right? Clearly, it was applied to the cases, and what came out was that the Jewish law follows Rava except for these six cases. Now since some rule emerged that tells me something defined about most cases, then it’s worth formulating it, even though it’s not really the true rule—but it’s worth formulating because it helps us. If it were really each case on its own merits, and every time something else, and you couldn’t establish any general pattern with a few exceptions, there would be no point in formulating a rule at all. But again, whether there is or isn’t a point in formulating a rule, in any event there is no such rule; we formulated it. The question is whether it makes sense to formulate it or not—fine. But this rule is just our formulation; it’s not the actual rule that we reached.

[Speaker B] What about Shmuel and Rav in monetary law?

[Rabbi Michael Abraham] Same thing, all the same thing.

[Speaker B] That too is from cases? Obviously.

[Rabbi Michael Abraham] I think so, yes.

[Speaker E] He couldn’t have formulated it if he didn’t know the rule.

[Rabbi Michael Abraham] No, it could be that this rule was created after they finished disputing, in the next generation, say. No, but it could be that this rule was created a priori, sweepingly. But after they died they already divided the… yes. He doesn’t know this rule while he’s alive, I understand, but even if he doesn’t know, it could still be that this rule is a priori. In the next generation they determined that in all disputes between Shmuel and Rav, the Jewish law follows Rav in matters of prohibition and Shmuel in monetary law. So that’s a priori. Let’s say. It could have been; I think not. In light of this rule of Ya’al Kegam and other things, it’s pretty clear to me that it doesn’t work that way. Now I’ll show you also—I’ll show you an illustration of this. After talking about the very establishment of the rule that the Jewish law follows Rava except for Ya’al Kegam, now let’s look at the application of the rule. Check Maimonides, and you’ll see that Maimonides rules like Abaye in other cases too, beyond the six. For example, in “do not form factions.” “Do not form factions”—here, whether it is forbidden to have two synagogues in one city or two religious courts in one city—Maimonides rules like Abaye, that it is forbidden. Rava says it is permitted. Now “do not form factions” is not Ya’al Kegam. The lamed of Ya’al Kegam is a crossbeam standing by itself; it is not “do not form factions.” Right? So how does Maimonides rule against the Talmud’s rule? Fine, but still, this is a dispute appearing in the Talmud, and even if it’s just a mnemonic rule, how does Maimonides rule like this?

[Speaker J] Only if someone else also disputed Rava, basically? What? Only if someone else also disputed him?

[Rabbi Michael Abraham] In the Talmud it appears as Abaye against Rava. And Maimonides—now there’s another example. For example, “if he did it, it is ineffective,” at the beginning of Temurah. According to a large number of Maimonides’ interpreters—there’s a bit of debate about this—a large number of them also say that Maimonides rules like Abaye there too. And that too is not part of Ya’al Kegam. “If he did it, it is ineffective” starts with aleph.

[Speaker B] So the question is about Maimonides. Why is the question on the Talmud?

[Rabbi Michael Abraham] The question is on Maimonides.

[Speaker B] Obviously I asked about Maimonides,

[Rabbi Michael Abraham] obviously I didn’t ask about the Talmud, I asked about Maimonides. So how does Maimonides rule like Abaye in other cases besides the six? And my answer to this is that even after they established the rule, this rule only tells you the direction. If you have a clear position that in a certain case it is appropriate to rule like Abaye because he is more logical, or for one reason or another, then rule like Abaye. The rule is not conceived as something that is truth—even though I see it as a summary rule. By the way, if I see it as a summary rule, that’s much stronger, because essentially the Talmud said: I went through all the cases; in all of them one must rule like Rava except for six. If it were an a priori rule—usually Jewish law follows Rava except for a few cases we collected—Maimonides says, fine, there are a few more cases. No. But I’m saying no—it’s an a posteriori rule, not an a priori one. It’s a rule after I went through the cases and checked how the Jewish law was ruled, and it came out that the Jewish law follows Rava except for six cases. Ostensibly, the Talmud already did the work; it went through all the cases. Now Maimonides comes and says that in two more cases he rules like Abaye. That is directly against the Talmud—much worse if this rule is a summary rule and not a guiding rule. Right? It’s directly against the Talmud. Maimonides apparently understood that this Talmudic rule, even after it summed everything up, is not a rule that obligates us. It’s a rule that gives us a direction of thought, some kind of framework. It’s a rule that tells us: if you have no other opinion and you’re looking how to decide the Jewish law, decide like Rava except for these six cases. If there is a case where it is clear to you that the Jewish law follows Abaye because he is right, then you are not in doubt, and you don’t need rules. Rules are meant to help you where you don’t know what to do, where you have no position of your own. If you have a position of your own, who needs rules? It’s like the well-known story about Rabbi Yonatan Eybeschutz—all the well-known stories about Rabbi Yonatan Eybeschutz—that a priest comes to him and says, why don’t you go after us? After all, it is written, “follow the majority.” The Christians are the majority, so why don’t you go after us? So he says: I follow the majority when I am in doubt. If I am not in doubt, I do not follow the majority. What do you mean? It’s not a joke; it’s a real answer. It’s a real answer. Meaning, when we find a piece of meat in the market and there are nine kosher stores and one non-kosher one, then the law

[Speaker B] is that in principle one may assume the piece is kosher.

[Rabbi Michael Abraham] Sorry, nine non-kosher and one

[Speaker B] kosher, then the piece is non-kosher.

[Rabbi Michael Abraham] What happens if there’s a piece of meat with a kosher seal on it? Do I follow the majority of stores and say it is non-kosher? No. Why not? Because it’s not a doubt. Right, because if I know what’s with the piece, I don’t need rules that tell me what to do. The rules speak to someone who has no position of his own, who doesn’t know the truth. Then go with the rules. Those are the rules. But rules are intended only for situations where I have no ability to form a position of my own. If I do have the ability to form a position of my own, then forget the rules. Maimonides says the same thing not only about the rule of majority but also about rules of halakhic decision. The rules of halakhic decision—that the Jewish law follows Rava except for Ya’al Kegam—were also said only for someone who has no position of his own. You have a dispute between Abaye and Rava; you have no clear view who is right—then go like Rava except for these six cases. But if you have a position of your own and it is clear to you that Abaye is right, then rule like Abaye. Same thing with the School of Hillel and the School of Shammai. In the first chapter of Beitzah we find several passages and several Amoraim who ruled like the School of Shammai against the School of Hillel. Where is the heavenly voice that said the Jewish law follows the School of Hillel everywhere? And the Talmud that says that the words of the School of Shammai in the place of the School of Hillel are not even Mishnah? Gone? Erased? So how do Amoraim allow themselves to rule like the School of Shammai in certain cases? Because that rule too is a rule said only when you have no position of your own. I would do what I think, and now the School of Shammai also agrees with me, so because of that it is now forbidden for me to do what I myself think I would have done without them? That’s not reasonable. It’s true that if I have no position of my own and there is a dispute between the School of Shammai and the School of Hillel, and I ask what the rule is, what should I do—I follow the School of Hillel. But all that was said only for someone who has no position of his own. Someone who has a position of his own should do what he thinks. Where do we see—yes? In the rule of

[Speaker K] the Talmud, didn’t we say that the Talmud sort of checked all the cases and saw that this is the truth, and therefore ruled accordingly? Yes.

[Rabbi Michael Abraham] And still Maimonides, even so—which really is far-reaching—even in such a rule that says they went over the cases—let’s say the School of Hillel and the School of Shammai really looks like an a priori rule, a sweeping rule, not that they checked the cases; a heavenly voice instructed them to rule like the School of Hillel. But even in cases of this kind, where ostensibly it’s a summary rule, Maimonides goes directly against the Talmud, as I said before. Yes. Because he understands that even the Talmud did not want to obligate me to go blindly. It said: know that if you have a position of your own, I don’t need to give you rules—do what you understand. If you don’t have a position of your own, then take this rule. That’s how Maimonides understands this rule. There would have been room to say that with this kind of rule I really should go with it, because it’s a summary rule, and the School of Hillel and the School of Shammai is something else. But Maimonides understands even those rules that way. Now I’ll bring you a source for Maimonides from the Talmud itself, where the Talmud itself says this. The Talmud itself says—in tractate Kiddushin, or let’s start with the Talmud in Bava Kamma. The Talmud says—I’m not quoting, it doesn’t matter, we don’t need the details—the Talmud says: “There are four primary categories of damages: the ox, the pit, the grazer, and the fire,” yes? The four primary categories of damages from the Mishnah at the beginning of Bava Kamma. “The grazer is not like the ox, and the ox is not like the grazer, and neither of them, which have living spirit, are like fire, which has no living spirit.” It creates a necessity argument among all of them. And in the end it concludes: “The common denominator among them is that their way is to cause damage, and they are your property”—that’s the Rif’s version—“and their guarding is upon you, and when they cause damage, the damager is obligated to pay compensation from the best of the land.” Fine? So basically the Talmud brings a few examples of damagers and then creates from them a rule, right? That anything that is your property, whose guarding is upon you, and whose way is to damage—when it damages, you have to pay from the best of the land. Now on page 6 the Talmud relates to this Mishnah and asks an amazing question that, when you think about it—we’re so used to it that we pass right over it, we don’t notice it at all. It asks an amazing question: “What does the common denominator come to include?”

[Speaker B] What do you mean, what does it come to include? You said—you just said it now.

[Rabbi Michael Abraham] No, I didn’t say it. There are four examples, and then they bring the rule that unites the four examples. I would ask: then why do you need the examples? Just state the rule. There is the sweeping rule, right? The general one. Why do you bring the examples? I would ask: “The four primary categories of damages”—what does that come to include? After all, you gave me the rule: anything whose way is to damage, that is your property, and whose guarding is upon you—when it damages, the damager is obligated to pay. The Mishnah should have written only that. Why does it begin with examples and then give me the rule afterward? But the Talmud asks the opposite. The Talmud asks: there are four examples—why do you need the rule? What do you need the rule for? From the examples, go figure it out, make an analogy, an analogy. A rule is the most solid thing, the most unequivocal, the clearest. On the contrary, I would ask about all the mishnayot: why are they casuistic? Why do they use cases? Give me the general formulation, the rule. Yes. But the Talmud says no—“What does the common denominator come to include?” Who needs the rule? We already have examples. And it’s so blatant that first of all it’s clear the Talmud is right with respect to the wording of the Mishnah, because in the formulations of the Mishnah, in fact the Mishnah generally speaks in terms of cases, not rules. So the Mishnah itself evidently prefers the formulation of cases over the formulation of rules. And therefore the Talmud says: wait, here the Mishnah also brings the rule. So the Talmud asks: why? Why does the Mishnah here bring the rule, since usually it suffices with cases? Fine? And there’s a certain conception here that basically says that the cases are the more correct formulation, the more accurate one. Even though it runs against intuition. Usually the rule seems terribly precise, whereas with cases—who knows? They’re cases, they’re examples, we’re not sure we’ll compare one matter to another properly, right? The rule is the safest thing. No. The Talmud assumes the cases are the safest thing. And if the rule is brought, it is to include something—that is, it’s not clear why it was brought. The Talmud clearly sees, and the Mishnah, and following it the Talmud, clearly see the advantage of the casuistic approach over the positivistic approach. Now look at another example of this, and that’s the Talmud in Kiddushin that I mentioned. “Which are positive commandments not caused by time? Mezuzah, parapet, returning a lost object, and sending away the mother bird.” It brings a few more examples of positive commandments not caused by time. The Talmud asks: “Is this really a rule? After all, matzah, rejoicing, and hakhel are positive commandments caused by time, and women are obligated in them.” There are positive commandments caused by time in which women are obligated, and you told me that the rule is that for every positive commandment caused by time, women are exempt. The Talmud says: why? But there are examples where they are obligated. “And what about Torah study, procreation, and redemption of the firstborn, which are not positive commandments caused by time, and yet women are exempt?” There are commandments not caused by time from which women are exempt. Rabbi Yohanan said: “One does not derive from general rules even where an exception is stated.” It says: here it is written, “Which are positive commandments not caused by time? Mezuzah, parapet, returning a lost object, and sending away the mother bird.” Fine?

[Speaker F] The Talmud asks: but there are exceptions?

[Rabbi Michael Abraham] All right, don’t make a big deal out of it. Meaning, so there are more exceptions—so what? What do I mean? Look, if the Talmud formulates something like the rule of Abaye and Rava—if the Talmud had said a general rule: all positive commandments not caused by time are binding on women. All right? And then the Talmud found an exception. Fine, they spoke generally, but there are a few exceptions. Fair enough. But if the Talmud says: all positive commandments not caused by time are binding on women except for A, B, C, and D. And now I say: I also find E. “We do not derive from general rules, even in a place where it says ‘except.’” In a place where they listed the exceptions, that’s the most precise wording possible. Not only did they give you the rule, they also listed the exceptions. And then they say: yes, but there are more exceptions. Fine, don’t make a fuss, there are more exceptions, so what? It doesn’t bother them. Meaning, the Talmud expresses such deep distrust of rules that even where we give a list of the exceptions, there can still be more exceptions. You understand that this is exactly what Maimonides did? The rule that the Jewish law follows Abaye only in YAL KAGAM is a rule stated with an exception, right? Except for YAL KAGAM. Maimonides says: even when you have the list of exceptions, fine, there are a few more exceptions. Why are you making such a big deal out of everything? I’m sure whoever said that was dying of laughter. Dying of laughter not in a cruel sense—in the genuine sense—as if he’s telling you this ironically. Be careful with rules. Even where the wording is as precise as it can be, don’t follow the rule like a blind man in a chimney. It’s not right to go with rules. Go with the cases, not with the rules. Go with the local logic, not with the general top-down logic. Bottom-up is much stronger than top-down. Top-down is the rules—that’s positivism. Bottom-up is casuistry, meaning: I have cases, and from them I try to understand the Jewish law, other cases, and maybe even formulate rules. What does that mean? It basically means that the Talmud is aware, the Talmud and the Mishnah are aware, that they are casuistic, and they’re saying yes, yes—it’s not accidental, it’s intentional. We have no trust in positivist thinking. We have no trust in a list of rules. It doesn’t work. Every rule you bring will always have exceptions; you won’t get anywhere with rules. It is much more correct, genuinely more correct—not as a compromise, genuinely more correct—to give cases. Even though with cases, who knows—maybe the rule is like this, maybe like that. Cases give me a kind of instinct, and they tell me much better what the Jewish law is really saying, even for a case not included in the list of cases. And if I give the rules and people cling positively to the rule, there’s a good chance of reaching a miscarriage of justice. There’s a good chance of reaching wrong conclusions. And therefore, unlike the German, Yekke-style thinking—“legal science,” as they called it in Germany—where everything is scientific, logical, moving top-down from rules to cases, that doesn’t work. By the way, that’s how the Germans reached what they reached in World War II. Because obviously, if that’s what the law says, then you have to do what the law says; we obeyed the laws, right? That was one of the central defense claims at the Nuremberg trials. What do you want? There was a law, and according to the law that was the outcome. We derived it positivistically from the law. There can be no criticism of the law itself. There cannot be a case where I do not apply this law because it can’t be that in this case this is how one should act. You understand that this is the same way of thinking? That’s why German law also realized it had gone too far and began moderating itself. And on the other side, British law realized it hadn’t gone far enough. Meaning, it basically says: look, we went with the cases, but you can’t do without rules. Meaning, if we go only with cases, then the law has no meaning. Then every court will do whatever it thinks about that case. There is no legal certainty, no ability to run a society in any orderly way, to impose certain values that society wants to impose. You do need some kind of law. You do need a legislature and rules and a framework within which the court operates. And in court, you talk about the case, you use common sense, but also the law and the system of rules. And so both sides move very close to each other, because neither side can function properly in the practical world. And in the halakhic context it happened in exactly the same way, but from the British side. What does that mean? At the base of everything were cases. In the beginning there were cases. The rules are created slowly over generations. Rules are formed after I make an analogy between cases, I try to abstract: what did I do here? I understand that there is some kind of rule here. Then I go to the next case and say: wait, but that rule doesn’t fit this case so well. Why doesn’t it fit? Because my common sense says that in this case one should act differently. So I create a sub-rule that says this rule isn’t right here; it’s right only in those cases. And now I’ve created a sub-rule. You see the epicycles and deferents? But here I’m not saying it critically. That’s how one has to operate; we have no other choice. Think of Abaye and Rava: when Maimonides rules like Abaye, his commentators celebrate. After all, that’s against the rule of YAL KAGAM. So what do they do? They create a sub-rule. And what does it say? That in disputes between Abaye and Rava, the Jewish law follows Rava—unless they were disputing within tannaitic disputes, in which case the Jewish law may follow Abaye in more cases besides YAL KAGAM. Where did that invention come from? Out of thin air, just made up. Because you have to formulate a sub-rule that explains the anomalies—that’s the epicycles and deferents. The anomalies didn’t come from there. Maimonides didn’t dream up that qualification saying that the Jewish law follows Rava only in their own disputes and not in disputes according to tannaitic positions. That’s false, okay? Maimonides simply understood that this rule was not a correct rule. But after Maimonides did something, we try to generate a rule that will track him. We talked about how philosophers of science track science, philosophers of law track jurists, philosophers of Jewish law—yes, the people of rules—track what the halakhic decisors do, not the other way around. It’s not that the decisors followed the rules; the rules follow the decisors. Okay? And so the real picture is that first of all we use common sense, we hold onto rules but we don’t ignore common sense, and then when there’s a case where we didn’t go with the rules, the rule-makers come and say there’s a qualification here, this rule isn’t right in these specific cases, there’s another sub-rule here. Okay? But even to that we must not become captive; here too we need to use common sense and see how to go on. Yes, like all those rules about the Shulchan Arukh—you know those rules? If he says ‘some say’ and afterward writes anonymously, then the Jewish law is like this? It’s all nonsense in tomato sauce. I don’t know who invented those rules. I’m not even talking about who said we have to follow the Shulchan Arukh; but even if we assume we do, the Shulchan Arukh never dreamed of these rules. These are rules invented afterward. Pure inventions. There is no reason whatsoever to follow these rules. Okay? So this is just a very stubborn attempt to force casuistic thinking about cases into a positivist picture in which everything works by rules—and it does not work by rules. If the Shulchan Arukh wanted to say something, he would have said it. He wouldn’t have left it to us to formulate rules afterward that just say when there’s a dispute and ‘some say’ and I don’t know what, all kinds of things of that sort. If he says ‘some say’ and ‘some say,’ then apparently he means there is room for both opinions, that’s all. All these rules about which opinion is the law and which isn’t are nonsense. Okay? Many times there are lots of practical implications too—we talked about this—lots of practical implications to understanding that these rules are not really the thing itself; they are only an approximation that we try to offer for results that came from common sense and not from rules, hopefully a sound common sense. I’ll maybe give—really, all of this was meant to show you that the Talmud sees the casuistic path as a better path; it’s not primitive thinking. Some think this is old primitive thinking—they still hadn’t realized that you can work with rules and logic and derive cases from the rules. No. There is a very deep statement here, and in my opinion a very correct one, that this supposedly primitive thinking is much stronger than supposedly modern thinking. And the world itself understands this today. Positivism hardly exists anymore; positivists belong in museums. Yes, the last one is a religious Supreme Court justice—what’s his name? Englard. Englard is, I think, one of the last positivists, still publishing books of Kelsen, who was a positivist thinker. Nobody is interested in that anymore. They teach it in law faculties, fine, but nobody cares about it on the practical level. The claim is basically that rules are a necessary evil—you can’t think without rules, you can’t make analogies without rules—but the rules come after you determine what is correct, and then one can come up with some rule that describes the conclusion you reached. You don’t work from the rules. Yes, when you talk about language—I spoke earlier about language—someone leaves an ulpan. In the ulpan you learn the rules of how to speak correctly. Okay? You go out into the street and you see all the Indians speaking however they like. It doesn’t fit the rules you learned, so you start correcting them. Wait, wait—but this is beged kefet at the beginning of a word, and predicate-subject, and I don’t know what, all kinds of things like that. And they die laughing. Who’s right? Obviously they are, not you. In many cases. Sometimes there are corruptions, but in many cases they’re right, not you. Language has its own rhythm. And the rules that were set are rules that came to describe more or less how the language functioned. Language did not develop according to the rules. The rules developed following the language. And if the language has its own rhythm and functions differently, throw those rules in the trash. But on the other hand, you can’t teach—at least not an adult—without rules. A child learns without rules. But an adult is hard to teach without rules. You teach him according to rules how to speak correctly—beged kefet and predicate-subject and I don’t know what, direct object, indirect object, and all that nonsense. So what is it then? Just a tool? No, it’s language, it’s also language, also music. I’m not talking about language—right, language is a tool. But still, even regarding language, you can teach it in a natural way and you can teach it through rules. All right? I’m saying the rules are an approximation made after the language already exists. Not that the language developed according to the rules. The fact is there are tons of exceptions. After a certain time, once they settle in, even the exceptions themselves get folded in—exactly. Yes, that was the book we studied for matriculation, I don’t know if it still applies. They brought the exceptions into—now the rule comes together with a list of exceptions. Fine, so leave me alone with the rules, and if I speak naturally, then the ulpan student needs to understand that he can’t do without the rules. With the rules he learns, because that’s how our minds work, okay? But afterward you start to understand the natural rhythm of the language—leave the rules alone, throw them in the trash, flow with it. The rules are a ladder you climb with to get out of the pit and up the tree—and then throw it away. Meaning, you need them, but in the end you have to remember that rules are only crutches. They are an aid that helps us think. But after that one must not cling to the rules. Someone who clings to rules doesn’t understand the language. Right.

[Speaker L] So basically one could also say that in the Written Torah, what we have when we study the Written Torah, there is a paradigm case where from the particular we learn it for all the particulars, and basically that too exists in the Written Torah.

[Rabbi Michael Abraham] The hermeneutical rules are also built in the same way. More than that, I’ll tell you this: the hermeneutical rules—well, we’ll talk about this later when we talk about tradition—but how were the hermeneutical rules themselves created? Do you really think Moses knew what verbal analogy was, what a general statement and a particular is, what a paradigm case from one verse or from two verses is? He never heard of those concepts in his life. And all the hermeneutical principles are a law given to Moses at Sinai—that is the agreed view of all the medieval authorities. A law given to Moses at Sinai that Moses himself never heard of.

[Speaker B] Never heard of.

[Rabbi Michael Abraham] Clearly, this is a law given to Moses at Sinai in the sense that Moses spoke the language of interpretation. That’s what it means. Again, I’m not making a historical claim; I’m saying what the Sages are telling us, all right? He spoke the language of interpretation. But the grammar rules of that language were created after the language already existed. It’s not that Moses received the rules and then began to speak. He spoke, and then little by little we conceptualized that language and tried to produce the grammar rules of that language, which are the hermeneutical principles. And they really do continue to develop: there were two, then seven, then thirteen, then thirty-two, and even the thirty-two don’t cover everything. There are more. Why? Because it’s like different infinitesimals. We keep adding more and more and more rules all the time, because we cannot work without rules. We need to work with rules, and that’s fine, but together with the rules, right next to the rules, we always need to pay attention to the cases. Because rules help us think correctly. But in the end, the answer comes from correct thinking, not from the rules. The rules are only an aid for generating correct thinking; they’re crutches that we use and we can’t do without them. I don’t think we should throw the rules in the trash. I do think we need to be careful not to cling to them. What do I mean? Doesn’t seem to me. Doesn’t seem to me. Maybe that rule which says there is no fundamental rule that covers all cases—maybe that’s a rule with no exception, maybe, I don’t know. Maybe that rule has no exception, I have no idea. In any case, I’ll give you another example perhaps. There is a very well-known philosopher, some say the most important of the twentieth century, Wittgenstein, who was Jewish from the wrong side of his ancestry, and the later Wittgenstein, in Philosophical Investigations—one of his famous arguments is called following a rule. Let’s do a little psychometric exercise, a psychometric question, okay? Complete the following series: three, five, seven, nine, one—

[Speaker B] Ten, everyone will say, each one will say—

[Rabbi Michael Abraham] Like this, if possible—

[Speaker B] What do you mean, nine?

[Rabbi Michael Abraham] Every one of those regularities could explain the series three, five, seven. But each such explanation will give you a different continuation. Now I’ll tell you, if you want, minus one over pi as the next term in the series—I’ll find a regularity for that too. No problem at all, right? For example, set a polynomial—exactly—a cubic polynomial; it has four coefficients: A plus BN plus CN squared plus DN cubed. A, B, C, D are four coefficients. Require that when N equals 1 it gives 3, when N equals 2 it gives 5, when N equals 3 it gives 7, and when N equals 4 it gives minus one over pi. Now solve it: four equations with four unknowns; you can find such A, B, C, D. After you find that, write: the rule is A, whatever you found, plus B times N plus C times N squared plus D times N cubed. If that’s the regularity, then in the series three, five, seven, the answer—the next number—has to be minus one over pi. That’s the correct answer. Now you understand that whatever number you put as the fourth number, I can find a rule that justifies it, right? On the psychometric exam they’ll fail you, of course, because the psychometric exam doesn’t test whether you’re talented; it tests whether you think conventionally. And if you think conventionally, you’re accepted. If you think outside the box, you have no business being at a university. By the way, that’s true, it’s true. Because someone who thinks outside the box—there’s no way to teach him. Because when I teach him, say, look, let’s teach you to count, for example. Okay? Suppose in university they taught counting—sometimes it’s a shame they don’t. One, two, three, four, five, six—you teach him to count. And what happens after ten? Eleven, twelve, twenty, one hundred, one hundred and one, one hundred and two, one hundred and twenty, one hundred and fifty, two hundred, one thousand, ten thousand—say we got to ten thousand. How far can we keep going? There’s a limit, right? We’re not going to devote a semester course to counting up to I don’t know what, ten million. Okay, so you get to a thousand, to ten thousand, I don’t know exactly where, and then comes the key word: etcetera. And etcetera means—we got up to ten thousand, etcetera, you understand the rest by yourself. But if he continues the etcetera the way he continued the minus one over pi, then after ten thousand you say to him: okay, what’s the next number? He says: pi squared divided by three. Again no problem; I can show you a regularity where you count from one to ten thousand and the next number is pi squared divided by three. There is such a regularity. Admittedly, that would require lots of coefficients and it’s complicated to solve the equation, but if that’s how his mind works, then he’ll tell you pi squared divided by three. That’s what he’ll say, and it’s a correct answer. So in short, you won’t be able to teach him to count. If his mind isn’t built like the normal mind of people, you can’t teach him to count. Therefore there’s no point accepting him to university if he doesn’t think conventionally.

[Speaker B] University is a filter for conventional thinkers.

[Rabbi Michael Abraham] Meaning, you can’t think differently. Within conventional thinking there are more talented and less talented people, all of that is true. There are talented and untalented people within the conventional world. But someone outside the conventional world simply has no place here.

[Speaker M] Not because he’s wrong or stupid, just because he won’t be able to function here; there’ll be no way to teach him. One of the insights that came to me once—that’s why all the inventors didn’t study at university. That’s why, you know, it’s a general rule. So I said, there are talented people within conventional thinking. Those outside conventional thinking may be very talented, but they have no way to communicate with us. They may have discovered wonderful things there, but I don’t know what to do with them.

[Rabbi Michael Abraham] No, that’s exactly what I’m saying. Once you think conventionally, within conventional thinking there is creativity, and there are more talented and less talented people, but all within the conventional framework. Meaning, someone who, after ten thousand, tells me the next number is pi squared over three—he’s not in the game. Not because he’s wrong, but because I have no way to talk to him. Afterward what, I’ll get with him to one hundred thousand? Then after one hundred thousand he’ll tell me it moves into complex numbers, I don’t know what.

[Speaker N] Meaning, I have no way to talk to him. When do you stop conventional thinking?

[Rabbi Michael Abraham] Then that means you’re creative within conventional thinking. You do understand the normal pattern in which human beings think, and within that you have the ability to be creative. That’s the point. But someone outside of that—we can only hospitalize him. But he may be a genius and may have discovered many interesting things, but he doesn’t communicate with us. Gershom Scholem once wrote—he brought some story from Agnon’s Book of Deeds. At the end of the first volume, he quotes a story there from Agnon’s Book of Deeds, where Agnon meets some mystic, somebody, the narrator meets some mystic there, and he says that everything that came out of his mouth I felt had really been inside me all along, except that I hadn’t identified it, I didn’t know how to formulate it. And Gershom Scholem says there that this is really the sign of who a significant mystic is. A significant mystic is not someone who reaches intuitions in mystical worlds, exalted worlds, the most exalted there are, but only if he knows how to formulate it in such a way that all of us will find it within ourselves—because then we understand what he said. He helped us formulate and conceptualize things that we couldn’t do on our own, but after he formulated it we find it within ourselves as well. So he has grasped something true from our perspective, something that advances us. There can be marvelous mystics who have perceptions in eternity and beyond, but we find none of it in ourselves, and then from our point of view they’re crazy, they should be institutionalized. We have nothing to do with them. Yes, perhaps—we have nothing to do with them. It doesn’t help us at all. Okay, so what am I saying essentially? That the system of rules does not really capture the truth, on the one hand. But on the other hand, we cannot function without rules. Yes, Wittgenstein’s conclusion in his argument about following a rule is that the rule—first of all, you can’t teach it. You can’t teach it, because when you teach the rule, say, the sequence n—one, two, three—or n squared—one, four, nine, sixteen, and so on, it doesn’t matter—how do you teach it? It always comes with an ‘etcetera,’ right? You say, you get to sixteen and so on. And the assumption in the ‘and so on’ is that we know how to continue. We have some illusion—mathematicians in particular have some illusion—that they can teach things top-down. Meaning, from above: give the rule and then we’ll find the particular cases. There is no such thing. Whenever you teach the rule, you will use ‘and so on.’ Always. It’s impossible. We have no way to transmit the rule directly. You demonstrate the rule through examples and then say ‘and so on,’ and that becomes the rule. But it becomes a rule only where all of us complete the ‘and so on’ in the same way. If we don’t complete it that way, there will be no way to work with rules. Meaning, contrary to what people think—that rules are the basis and from them we derive the particular cases—it’s the opposite. Rules are created out of the particular cases through this ‘and so on.’ And that is based on the assumption that all of us really will complete it in the same way. He claims this is a language game. He claims it is simply a consensual game and a happy accident that we all manage to play with the same rules. And somehow—whether by accident or not—that’s how we are built. He sees nothing truly real in this; it’s only a game. I’m not sure he’s right about that, but practically he is certainly right. Meaning, practically we learn the rules from cases, from examples. It’s not that the rules impose the answer on the examples; rather, the examples impose the rule.

[Speaker B] That’s the language model of AI—it knows how to predict the next example.

[Rabbi Michael Abraham] Right. AI, by the way, is essentially connected to what I’m saying now. Because AI is basically trained through examples, and the assumption is that it knows how to apply them to the next examples, without my giving it the rule at all. Unlike classic software, where you had to give it the rule and it would produce the answer, AI works from examples to the next example.

[Speaker B] And there isn’t—

[Rabbi Michael Abraham] A rule at all. Not only did I not give it the rule, you won’t find the rule inside the AI either. There is no rule. It simply tells you the answer in the next example. AI is the clearest example of casuistic thinking. You start from examples and move from there to the next example. Unlike classic software, where you had to tell it: if a case like this comes to you, then do this—if, yes, all the rules. What is that software? It basically means I give it rules, and the particular exercises I ask it later it will solve according to the rules I put into it in the program, in the algorithm. Okay? And this is the opposite. Right. So classic software is positivism, and AI is casuistry. And I think all of us today see just how much more powerful casuistry is than positivism. And it’s exactly the same thing. Exactly the same thing. The flourishing of AI today is nothing but a very powerful demonstration of the power of casuistic thinking. And therefore the Talmud prefers cases over rules. Like British law, as we saw, once again—it’s much stronger, much more precise, and it leads to far fewer errors than rule-based thinking. Clinging to rules is a necessary evil; we need to cling to rules, we can’t function without it. But one has to be careful about the degree of attachment. Meaning, the rules help us move forward, give us directions, but in the end we must not disconnect from the mother ship—from common sense. Meaning, the rules give us directions, but in the end we are supposed to activate common sense. Exactly like speaking a language. The rules of language give us direction, but in the end, someone who clings to the rules will speak like a robot. In the end you need to feel the rhythm of the language and understand when and how to speak in which way, okay? And then you know the language. Not when you have total control over all the grammatical and syntactic rules. Now, I’m basically coming back—here I’m closing that parenthesis, because up to this point what I wanted to show was why the Talmud prefers the formulation of cases over the formulation of rules, the Talmud’s casuistic approach. And if I return to the discussion of ukimtot, then what I’m basically saying is that ukimtot assume that even when a case comes before us, the Talmud or the Mishnah, the explicit text, is not coming to tell us what the Jewish law is in this case. It comes to express some more general idea. And we need to understand from the case what the general idea is. And if that’s so, then the case does not always express the idea in full—really, never. Meaning, the case never fully expresses the general idea, because that is exactly the point: the general idea always exists in the Platonic world, in the world where none of the complexities of our world exist. In the complexities of our world you will always need to add all sorts of things. Building a laboratory, I said—a laboratory case is basically an attempt to build a Platonic world within our complex world.

[Speaker B] Which is what an ukimta is, essentially?

[Rabbi Michael Abraham] Yes, exactly. The laboratory basically says: let’s remove the friction and the temperature and all the things that interfere, and let’s see what interests us as much as possible in its purest form, in the best approximation we can. In the Platonic world it appears entirely in its purity. When we want to measure it, we do it in our world. That’s why a laboratory has a role. That’s why there are always errors in an experiment. Why are there errors in an experiment? Not necessarily because the scientist is careless, but because our world is like that. In our world there is no pure situation; other factors will always appear and interfere. And not because the law is incorrect or imprecise—it may be perfectly precise. But there are other things that must also be taken into account in the practical world. In the Platonic world you would see that law in its purity; there it would work with complete precision. Now the claim is—maybe one more remark, since I’m probably not going to manage to move further—so one more remark: when, like the Talmud, we approach learning a topic or a particular case and discussing it, the question is what our goal is. The goal of the halakhic decisor is that a case comes before him and he needs to know what the Jewish law says about that case. The goal of the learner, unlike the decisor, is entirely different. For the learner, the cases are cases—examples, situations with which I rub up against reality in order to generate the picture of the abstract principles and, as much as possible, conceptualize them, and then I really do create even rules, but an abstract and general understanding. Therefore, for the learner the cases are a means. A means to know what the general idea is. For the decisor it is the opposite: the general idea is a means, because he needs to know what the Jewish law is in the case. Okay? Now it may be that in order to reach the general idea he will do analytic learning—it doesn’t matter—but that’s the work of a learner, not the work of a decisor. The decisor is supposed to take the principles—in theory I should separate these roles and say the scholar will create the abstract theoretical world, and the decisor is parallel to the legislator, so to speak, and the decisor will be like the judge. Meaning, he will take these general insights and say what they mean for the case before him. But as I have learned in life, it doesn’t work like that. In life there is judicial legislation among judges, and in life there is also analytic learning among decisors, thank God. Those who don’t have it—don’t go ask them questions. Okay? So there is analytic learning among decisors too. And it’s a shame there isn’t the same thing—practical ruling—among scholars. Scholars sometimes drift off into worlds completely detached from common sense, and then they produce a theory that isn’t worth much. Okay? Many times you can hear all kinds of detached statements from people who are super-learned and super-smart; when you hear what they say practically, it’s totally bizarre, completely detached from common sense. As George Orwell once said, there are absurdities so great that only intellectuals can utter them. And that is absolutely true, not a joke. Total nonsense you hear only from intellectuals. From a stupid person you’ll hear something where he missed something, or didn’t think it through, I don’t know. But things that are totally detached—you hear only from intellectuals. Meaning, sometimes they are captivated by their intellectual brilliance and abilities and arrive at things that are utterly absurd. I once heard this from Rabbi Beni Lau. He said that one of the troubles in religious leadership in recent generations is that it has been handed over to yeshiva heads. Because yeshiva heads—their abilities are analytic abilities; they build abstract intellectual structures, and the students, who still don’t have much practical experience, the students won’t say to them: listen, this doesn’t hold water, this doesn’t make sense. The student will examine the logical connection, the brilliance in the moves, whether something there is inconsistent, whether there is a contradiction or something like that. And to that the yeshiva head will answer him, and if he’s good then he’s a brilliant person, okay? But in the end, when the yeshiva head also has to say what one should do in the world, he’ll talk nonsense. Because it’s all very brilliant and very intellectually connected and coherent, all excellent—except for any connection to the world. To the world it has no connection whatsoever. And when leadership is leadership of that kind, the result is what we often see today. What we see is what we see today. Just look—I recommend it to you; there is a YouTube channel, I really do not recommend it, but only as a corrective experience. There is a YouTube channel called ‘The Channel of the Great Torah Leaders’ of Degel HaTorah.

[Speaker B] What is it called? ‘The Channel of the Great Torah Leaders.’ Only for those with strong hearts.

[Rabbi Michael Abraham] Since all—look, the speeches you hear there are straight from the horse’s mouth. Meaning, not through publicists, not through journalists and people like that. You hear the leading rabbis of Degel HaTorah, Lithuanian rabbis, in their own words, and what they say—your ears should be saved. Truly. I have never in my life seen a greater desecration of God’s name than what goes on in that channel. Not morally—intellectually. Intellectually these people are fools. Certified fools. Meaning, they are brilliant people, brilliant in giving, I don’t know, a general lecture. Truly smart people, very intelligent people. But when they approach something not written in the script of Rashi, meaning our world, something connected to life—

[Speaker D] Daily life, you—

[Rabbi Michael Abraham] You don’t understand where they live. These people live on Mars. Really. It is simply an insane desecration of God’s name what goes on there. And it’s a wonderful example of this disconnect between intellectual brilliance and the ability to build complex structures on the one hand, and the question of whether it holds water, whether it is connected to life, whether it is connected to practice. They are speaking about some detached Platonic world where I can say marvelous and coherent theories, but when you apply it to our world—where are the ukimtot? Meaning, where is the recognition that this speaks about a world where this complexity and that complexity and that one don’t exist? Our world is much more complicated.

[Speaker O] What’s the solution?

[Rabbi Michael Abraham] Yes, we need to raise people—honor to them in their place. We need intellectuals who will sit in a closed room and not say anything about the world. Maybe they can express an opinion, but certainly not a binding opinion. Certainly not an opinion that people then follow. Giving such people leadership status is a terrible mistake. To go consult with them—right? But it’s not only military conscription, understand; conscription is a small thing. All their directives, their halakhic directives—not the draft law, I’m talking about halakhic guidance. These people are fools. Truly fools, completely. I’m telling you. Foolish people.

[Speaker F] Okay, I know.

[Rabbi Michael Abraham] I was there, inside Bnei Brak, not from a distance, and I’m telling you—it’s unbelievable. And these are super-intellectual fools. Very smart people. It’s not a lack of intellectual ability. So what do you do?

[Speaker D] What—

[Speaker O] Do you do?

[Rabbi Michael Abraham] You don’t listen to them. You listen to their lectures. No—lectures are worth hearing. Wonderful lectures, they open possibilities for you, options, beautiful analysis, all good. But don’t receive practical guidance from them. No. Simply not, under any circumstances. Be very careful about that. And the mistake is the very mistake I’m talking about here. I’m not drifting into current events for nothing. It’s the same mistake. It’s the mistake that says: basically, we are positivists. All those people are positivists. They are positivists because they have some set of abstract principles, and from those they derive the conclusion for the case before them. And there is no filter there saying: wait, but what happens in the transition from the Platonic world to our world? The Torah was not given to ministering angels. The Torah has to be implemented here. And in our world there are many complexities. The question is what happens in that transition.

[Speaker O] Is that what the Sages meant by ‘make for yourself a rabbi’?

[Rabbi Michael Abraham] Make for yourself a rabbi, not make for yourself a yeshiva head. No, really. A yeshiva head—go learn from him how to analyze, how to do all sorts of things like that, but he is not a rabbi. He is not a rabbi who guides you on the practical plane. It is simply a crazy mistake. Now there are communities that place these people there—and that’s what comes out. And whatever they say, everybody has to do. Not just that someone chooses that rabbi to be his rabbi. It’s an entire public that follows, like the Pied Piper of Hamelin, after crazy people. Really, it’s unbelievable. And the mistake is the same mistake, because these are very smart people and great Torah scholars. So the point is not some lack of intellectual ability. It’s a failure to understand what Torah is. The mistake is in their positivism. It’s a mistake in the conception of Torah. That’s why all these lectures I’m giving—positivism versus casuistry—are very important practically too. This is not a philosophical discussion.

[Speaker D] Okay, good, yes, let’s continue.

A Look at Torah and Torah Study – Lesson 6 – Rabbi Michael Abraham

Table of Contents

Summary

General Overview

The Development of Ideas and the Ukimta in Three Talmudic Passages

The Parallel to Science and to a Platonic World

A Casuistic Case as a Tool for Conveying a Rule

The Thirty-Nine Categories of Labor, an Ox that Gored, and the Absence of Holiness in Cases

The Question of Why Not Formulate a Rule, and the Distinction Between Positivism and Casuistry in Law

The Impossibility of Running a World Through Rules Alone, Illustrated by Rabbi Tarfon, Rabbi Akiva, and Rabban Gamliel

Rules in Jewish Law as a Result of Cases, and the Critique of Mechanical Application

Doubt Whether There Is Even a Complete Set of Rules: Epicycles and Deferents, and Conceptual Revolutions

Rules of Halakhic Ruling, Ya’al Kagam, and Maimonides as an Exception That Illustrates the Weakness of Rules

“We Do Not Derive from Generalizations”: Bava Kamma and Kiddushin as a Talmudic Justification for Casuistry

The Convergence of Models in the Legal World, and the Parallel to Jewish Law and the Rules of the Shulchan Arukh

Rules of Interpretation as a “Grammar” Created After the Language, and the Expansion of the Hermeneutic Principles

Wittgenstein, Following a Rule, and AI as Casuistry

A Halakhic Decisor versus a Learner, and the Danger of Leadership Positivism

A Critique of Haredi-Lithuanian Leadership and Its Connection to the Conception of Torah

Full Transcript

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Table of Contents

Summary

General Overview

The Development of Ideas and the Ukimta in Three Talmudic Passages

The Parallel to Science and to a Platonic World

A Casuistic Case as a Tool for Conveying a Rule

The Thirty-Nine Categories of Labor, an Ox that Gored, and the Absence of Holiness in Cases

The Question of Why Not Formulate a Rule, and the Distinction Between Positivism and Casuistry in Law

The Impossibility of Running a World Through Rules Alone, Illustrated by Rabbi Tarfon, Rabbi Akiva, and Rabban Gamliel

Rules in Jewish Law as a Result of Cases, and the Critique of Mechanical Application

Doubt Whether There Is Even a Complete Set of Rules: Epicycles and Deferents, and Conceptual Revolutions

Rules of Halakhic Ruling, Ya’al Kagam, and Maimonides as an Exception That Illustrates the Weakness of Rules

“We Do Not Derive from Generalizations”: Bava Kamma and Kiddushin as a Talmudic Justification for Casuistry

The Convergence of Models in the Legal World, and the Parallel to Jewish Law and the Rules of the Shulchan Arukh

Rules of Interpretation as a “Grammar” Created After the Language, and the Expansion of the Hermeneutic Principles

Wittgenstein, Following a Rule, and AI as Casuistry

A Halakhic Decisor versus a Learner, and the Danger of Leadership Positivism

A Critique of Haredi-Lithuanian Leadership and Its Connection to the Conception of Torah

Full Transcript

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