Disputes – Lesson 6
This transcription was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Dispute, context, and the difference between academia and halakhic discussion
- The context of discovery and the context of justification
- The danger of a circumstantial explanation that eliminates disputes
- The example of migo and the gap between “in order to” and “why it is correct”
- Interpretive agenda, intellectual honesty, and the Torah-level–rabbinic distinction
- Practical ruling versus abstract Jewish law, responsa versus the Shulchan Arukh, and circumstantial considerations
- What enters the halakhic corpus: Isadore Twersky, the laws of interest, and science in Jewish law
- Circumstances as a trigger for discovering a method: Yitzhak Gilat and the view that the Sabbatical year nowadays is rabbinic
- Professional bias, law, and the principle of “this one chooses” as a metaphor for circumstantial pressure
- “It is a time to act for the Lord” and the continuity of enactments born from necessity
- Halakhic rulings in the Holocaust: the journal Oriyata, the Kovno Ghetto, and Rabbi Gibraltar
- The Chazon Ish, a flask of water, and defining theft as murder
- Adarbi, legumes on Passover, and payment to save a community as an extreme ruling
- Extreme situations as a context that reveals Jewish law: the burning elevator as an example
- Rabbi Shimon Shkop: civil law as the foundation of monetary prohibitions
- Who rules when the situation cannot be conveyed: studying with the questioner instead of deciding for him
- A transgression for the sake of Heaven, Yael wife of Hever the Kenite, and soldiers in the storm of battle
Summary
General Overview
The text presents a methodological distinction between academic research, which explains disputes and halakhic rulings through context, circumstances, and influences, and halakhic study and discussion, which places at the center the content of the position itself and how well it stands up to the sources and to reasoning. It argues that context may be correct as a historical explanation, but it is usually not relevant to halakhic discussion on the level of justification, and it warns against a deterministic view that erases disputes and turns Jewish law into nothing more than a product of circumstances. It proposes a more complex model in which circumstances are sometimes not the cause of the ruling but rather the trigger for discovering a new interpretive possibility that stands on its own even without dependence on distress, and in especially extreme cases the halakhic decision can rest on the internal understanding of someone actually inside the situation, which cannot be transferred from the outside.
Dispute, Context, and the Difference Between Academia and Halakhic Discussion
The text assumes that differences in worldview and in halakhic position between people and halakhic decisors stem in part from biography, place, the people around them, and the circumstances in which they acted. The academic approach tries to explain disputes through the question of why one position grew here and not there, who influenced whom, under whom they studied, and what the circumstances were. The halakhic-yeshiva approach asks what the decisor said, whether it is reasonable, and whether it fits the sources, and it does not focus on motivations or on the context that gave rise to the position.
The Context of Discovery and the Context of Justification
The text uses a distinction from the philosophy of science between the context of discovery, meaning what caused an idea to emerge, and the context of justification, meaning whether the idea meets the tests that justify it. It argues that halakhic discussion deals with the context of justification, and therefore even if it is true that circumstances influenced the formulation of a halakhic position, that is not the main halakhic question. It illustrates this through the dispute between the sages of France and the sages of Spain over sanctifying God’s name, and presents the possibility that differences in reality influenced them without that becoming relevant to the halakhic analysis of their interpretation of the Talmudic passages and the consequences of their views.
The Danger of a Circumstantial Explanation That Eliminates Disputes
The text suggests that if a halakhic ruling is explained only as a product of circumstances, one may reach the conclusion that there are no real disputes at all, only adjustments to different situations. It describes a position according to which a person should rule like the Tosafot if his situation resembles medieval France, and like Maimonides if his situation resembles Spain, and it goes even further and says that if Maimonides had lived in France he would have held like Tosafot, and vice versa. It argues that such an extreme view neutralizes the person and the halakhic outlook, and turns Jewish law into a result of circumstances alone.
The Example of Migo and the Gap Between “In Order To” and “Why It Is Correct”
The text mentions a university lecture on migo, such as “since it serves as a wall for the sukkah, it serves as a wall for the Sabbath,” and describes the Brisker ethos of dealing with the “what” and not the “why” in the psychological or goal-oriented sense. It describes the response of a researcher who explained the law as resulting from a need to make carrying into the sukkah easier and create continuity of private domain, and he rejects that explanation as irrelevant to him in the halakhic sense. He distinguishes between asking “why is this logical” in the sense of reasoning that justifies the law, and “what did they want to achieve” in the goal-oriented sense of agenda.
Interpretive Agenda, Intellectual Honesty, and the Torah-Level–Rabbinic Distinction
The text argues that researchers sometimes ask what agenda led a sage to choose a certain interpretation, whereas in the yeshiva study hall that question is irrelevant even if such an agenda exists. It emphasizes that in rabbinic laws, goal-oriented explanations of “in order to” are natural, because decrees are meant to prevent problems, but in Torah-level laws there is no justification for a goal-oriented “in order to” explanation; rather one looks for “because” in the sense of interpretive truth. It illustrates this with the possibility of explaining Rabbi Akiva’s interpretation in Sotah as a move intended so that a wife should not become repulsive to her husband, as opposed to the claim that the Torah did not intend something degrading and therefore this is the correct interpretation. It warns that an interpretation chosen only in order to reach a result, contrary to belief in its truth, is a lack of intellectual honesty.
Practical Ruling Versus Abstract Jewish Law, Responsa Versus the Shulchan Arukh, and Circumstantial Considerations
The text distinguishes between a book of responsa, which gives an answer to a particular case, and a code of Jewish law like the Shulchan Arukh, which deals with abstract principles and not with cases. It argues that a decisor dealing with an actual case must identify which theoretical law applies, and sometimes must also consider additional factors, including circumstantial ones, especially when there are several legitimate interpretive options. It states that circumstances can be legitimate at the stage of practical decision-making, but someone studying the topic as abstract Jewish law should focus on the interpretive considerations and not on the ruling that arose from a local context.
What Enters the Halakhic Corpus: Isadore Twersky, the Laws of Interest, and Science in Jewish Law
The text brings in Haym Soloveitchik the historian and his book on the laws of interest in the Middle Ages, and argues that at times decisors ruled directly against the Talmud because of practical constraints, but when the Shulchan Arukh absorbed the ruling it omitted the component that contradicted the Talmud. It explains that this is how it is determined what joins the halakhic corpus for future generations and what remains a local practical measure. It adds an example from studying Maimonides about how to deal with scientific findings, even if the science on which he relied was “Aristotelian fantasies,” because the issue is one of use and methodological development, not whether the scientific claim itself was correct.
Circumstances as a Trigger for Discovering a Method: Yitzhak Gilat and the View That the Sabbatical Year Nowadays Is Rabbinic
The text presents Chapters in the Development of Halakhah by Professor Yitzhak Gilat and the controversy surrounding it, and describes the claim that the distress following the destruction led people to search for a lenient option and arrive at the conclusion that the Sabbatical year nowadays is rabbinic. It argues that the criticism of the book stems from fear that it portrays the ruling as a dishonest invention made in order to be lenient, but he interprets Gilat as saying that the distress caused a creative search that led to the discovery of a genuine interpretive option. He states that distress can be “necessity is the mother of invention” without turning the ruling into fraud, as long as the thesis stands the tests of justification and holds up as a halakhic method.
Professional Bias, Law, and the Principle of “This One Chooses” as a Metaphor for Circumstantial Pressure
The text describes the experience of writing a meta-halakhic opinion in the Pri Nir affair involving tomato paste on Passover and concern about citric acid derived from wheat, and identifies in himself a tendency to look for arguments in favor of the side that hired him. It illustrates through psychiatrists and lawyers that in a legal system each side turns over every stone to find arguments in its own favor, as long as it does not knowingly falsify or omit facts, and the judge decides between the claims. It uses the example of “this one chooses” to illustrate that there is a legitimate tendency on the part of the sides involved, and emphasizes that a lone halakhic decisor must serve both as the voice of leniency and as the voice of stringency without a balancing system.
“It Is a Time to Act for the Lord” and the Continuity of Enactments Born from Necessity
The text raises the example of writing down the Oral Torah or writing a book of haftarot as permissions born from circumstances of need, and suggests that if the circumstances changed there might be room to challenge the permission. It proposes that the implicit subtext is that the practical need still exists today, and therefore “it is a time to act for the Lord” continues and is constantly renewed, but it warns against using such arguments merely to preserve a custom or avoid change when in truth something should be abolished.
Halakhic Rulings in the Holocaust: the Journal Oriyata, the Kovno Ghetto, and Rabbi Gibraltar
The text mentions an article he wrote that was published ahead of Holocaust Remembrance Day in a Holocaust volume of the journal Oriyata, expanding on an earlier article about monetary law in the Kovno Ghetto. It describes a series of articles in Yated Ne’eman by Rabbi Gibraltar about his father, who was a Torah scholar in the Kovno Ghetto alongside figures such as the Dvar Avraham, and it describes extreme halakhic positions attributed to his father. It presents the claim that in the ghetto there was no monetary law, so loans did not remain binding after the war, and that ownership of a coat was judged through the lens of saving life, to the point that taking a coat was defined not as theft but as murder, while after the wearer’s death there was no inheritance and the coat became ownerless.
The Chazon Ish, a Flask of Water, and Defining Theft as Murder
The text quotes the Chazon Ish about two people walking in the desert with a flask of water in the possession of one of them, and explains his claim that taking the water is not theft but murder, and is therefore forbidden even if one might have said that theft is permitted in a life-threatening situation. It presents this as a basis for understanding the logic of Rabbi Gibraltar’s distinction between taking from a living person and using what remained after his death. It describes the response of a dayan or decisor in monetary law who claimed that the construction “there is no monetary law” does not hold water, but the text itself rejects that criticism as incompatible with the option of “Jewish law born out of circumstances yet justified.”
Adarbi, Legumes on Passover, and Payment to Save a Community as an Extreme Ruling
The text describes Rabbi Adarbi in the Kovno Ghetto, who ruled that yeshiva students should not eat legumes on Passover on the assumption that “by the natural course of events” they would die anyway, and therefore there was room for a kind of spiritual gamble on the merit of stringency as an instrument of saving life. It describes his decision to require payment of a huge sum to free the Jews of Yanova, even though the Judenrat and others opposed it for fear of starvation and collapse, and notes that in practice many were saved. It presents these rulings as posing a dilemma about the relation between halakhic ruling as a response to reality and the discovery of genuine Jewish law in an extreme situation.
Extreme Situations as a Context That Reveals Jewish Law: the Burning Elevator as an Example
The text proposes an example of two people in a crashing, burning elevator, where one refuses to give the other a pen, and presents the intuition that in such circumstances the concept of ownership “expires” and no longer applies, even though on the face of it this would be theft. It argues that this is not merely a circumstantial compromise but a correct halakhic thesis for extreme situations, one that deserves to be written into the Shulchan Arukh as a clause for such cases. It presents this as an expansion from local responsa into Jewish law for future generations in a defined situation, and emphasizes that the prohibition of theft is not cancelled; rather, the underlying basis of ownership does not exist, and therefore there is no owner.
Rabbi Shimon Shkop: Civil Law as the Foundation of Monetary Prohibitions
The text uses Rabbi Shimon Shkop, who bases monetary prohibitions on civil law, meaning on a social-legal validation of property rights, and only after defining who the owner is does the prohibition “do not steal” apply. It argues that this conclusion leads to the claim that in a place where there is no enforcement, no institutions, and no effective meaning to ownership, the concept of ownership disintegrates and there is no monetary law. It illustrates this also with the claim that on a deserted island one cannot betroth a woman with money, and perhaps cannot effect betrothal at all, because ownership of money and mechanisms of acquisition depend on a society that defines and enforces them.
Who Rules When the Situation Cannot Be Conveyed: Studying with the Questioner Instead of Deciding for Him
The text argues that there are situations in which the decisor cannot issue a ruling because the situation cannot be described to him merely as dry facts, since its meaning and connotations require lived experience. It states that in such cases the decisor should clarify the halakhic principles together with the questioner and send him back to decide, because the questioner who lives the situation understands it better than anyone looking from the outside. It presents this not as humility but as an epistemic claim about the limits of understanding an extreme situation from afar.
A Transgression for the Sake of Heaven, Yael Wife of Hever the Kenite, and Soldiers in the Storm of Battle
The text offers an interpretation of “a transgression for the sake of Heaven” in tractate Nazir not as a formal halakhic override rule similar to a positive commandment overriding a prohibition, but as recognition that there are extreme situations in which the person inside the situation understands what is right better than any distant ruling could. It presents Yael wife of Hever the Kenite as someone who had to make an immediate decision with no possibility of consulting a halakhic decisor, and suggests that this is the depth of the Sages’ permission in exceptional circumstances. It connects this to situations of soldiers in the storm of battle, where Jewish law recognizes that the decision is born from living inside the situation—not merely after the fact, but as the correct model for extreme cases.
Full Transcript
[Rabbi Michael Abraham] Okay, last time I spoke a bit about how a dispute is formed, when it’s clear that things are not clear, but it seems that if there is a difference between people’s worldviews, then at least part of it stems from the context, from one kind of influence or another. After all, a person goes through a different biography, lives in a different place, is influenced by different people, and so he basically forms a different halakhic position. I spoke a little about how, from an academic perspective, people generally look for the influences of context. In other words, if we want to understand a dispute between two halakhic decisors or between two halakhic conceptions, then a researcher will often ask himself: why did this grow here and that grow there? What is the connection to the circumstances in which that decisor operated? Under whom did he study? Things of that sort. And I said that from the halakhic perspective, in halakhic discussion, those are not the kinds of questions that are asked. Rather, we ask: what did the decisor say? Not why did he say it, but what did he say? How reasonable is it? Does it fit the sources or not fit the sources? Usually this debate is presented as though the question is whether context has influence or not. In other words, academic research is supposedly more clear-eyed, aware that there are contextual influences, whereas the traditional yeshiva halakhic approach is supposedly naive—it doesn’t understand that there are various influences on the positions of halakhic decisors. And I said that I think that sometimes this is true. In other words, defensive halakhic discourse often entrenches itself in some position according to which these people are ministering angels and are not influenced by things—whatever it is—that surround them and happen in the world. I think that’s not correct, and there’s no need to go there for apologetic purposes. There’s no reason. Rather, yes, there are such influences one way or another, but the question that is relevant halakhically is still what the conception itself says, not where it came from. I brought the example of the sages of France and the sages of Spain regarding sanctifying God’s name, and I said that I can discuss their positions—what each one says, how each interprets the Talmudic passages, what follows from their conceptions—without any connection to the question of whether in fact they were concerned about deterioration during the Crusades, while the sages of Spain, who did not have that concern, ruled differently. It may be true, and it is certainly plausible that there were influences of one kind or another, but that is not relevant to the halakhic discussion. I think I mentioned the distinction between the context of discovery and the context of justification in connection with philosophy of science. There too, we examine a scientific theory not according to its source, or where it grew from, or how the idea arose in the mind of the scientist who conceived it—that’s what is called the context of discovery—but according to the context of justification, meaning the question whether it stands up to empirical testing or not, and it really doesn’t matter where it came from. So in our context, the circumstances are the context of discovery, and halakhic discussion deals with the context of justification. Okay? And therefore one need not argue over whether the research thesis is correct, that the circumstances generated the halakhic position. It may be true, but the methodological assumption is that this is not the important question in halakhic discussion. And I said that as a result of this, one could really take the scientific or academic explanation further and say: if so, then in fact there are no disputes at all. When I ask myself how I am supposed to act in situations that arise in the context of sanctifying God’s name, then I should ask myself whether my situation resembles the situation in which the French sages, the Tosafot, operated, or whether it resembles the situation that prevailed in Spain at the time. If it resembles what happened in France, I should rule like Tosafot; and if it resembles what happened in Spain, I should rule like Maimonides. And if we go even further, then we would also say that Maimonides himself—if he had lived in France—would have held like Tosafot, and if the Tosafot had lived in Spain, they would have held like Maimonides. Because if reality generates the halakhic position, then the person is neutralized. In other words, he is not relevant. The question is: what is the reality? Where did you grow up? Who influenced you? What are the circumstances in which you operate? And that’s all. So then it really makes no difference at all. Jewish law is then just a result of circumstances and does not express different conceptions—so there are no disputes. In every set of circumstances, the relevant Jewish law is the law that developed in those circumstances. Maybe I’ll just add one more remark that I didn’t get into last time; it came to me during today’s class. I thought this perhaps needs to round out the discussion a bit. In today’s class at the university, I spoke about matters of migo, like “since it serves as a wall for the sukkah, it serves as a wall for the Sabbath”—never mind the details. A certain discussion arose there about how to explain this sort of thing. I said that I would propose, like Rabbi Chaim, yes, that we ask only the “what” and not the “why”—the Brisker ethos. So I said I would try to describe how the Sages understood this principle of migo, and not why they understood it that way. Not why they understood it that way—even in the sense of why it makes sense, which is in fact a relevant question in halakhic or Talmudic discussion—but just let’s see what they do with it; in other words, how they understand this principle. And in the course of that, explanations came up that did seem to reflect how they understood it, but it was not clear what the logic behind them was. And there was some woman there who is doing a doctorate in Talmud, I think, or something like that, and, in the way of Talmud researchers, she said, yes, so presumably there were circumstances here—he wanted to achieve this, and perhaps he wanted to let people live properly in the sukkah. You have to make carrying easier for them. If this is not considered a wall for the Sabbath—that is, if it is not considered a private domain—then it would be impossible to take things from the house to the sukkah, because it would not be a private domain and the house is a private domain, so you wouldn’t be able to carry things out. Therefore they determined that whatever is valid for a sukkah also counts as a private domain. Yes, that’s the migo there, never mind the details of the passage. So I said—and then I got into this whole issue of contextual explanations or academic explanations as opposed to halakhic explanations. I told her: it may be that you’re right, that this was the reason, but it doesn’t interest me. It doesn’t interest me because, from my point of view, I want to understand this principle of migo, including perhaps also why it is correct, if I can manage to understand that—not only the “what,” in line with Brisker naivete, but also the “why”; only the “why” not in the sense of what I wanted to achieve, but “why” in the sense of why it is logical, meaning why it is correct. Give me a rationale. In other words, why define such a principle of migo? And here, in fact, this resonates even more strongly with what I said earlier. I told her that in the interpretive context generally, when the Sages interpret the Torah, the Talmud, the medieval authorities, whatever it may be, then again a researcher will very often ask himself—and this is a particular case of what I said earlier—why did he adopt this interpretation? What was he trying to achieve? What was bothering him? In other words, what agenda is he advancing? Yes, they accept judges with an agenda in the academic study hall. In the yeshiva study hall, no—they do not accept judges with an agenda, like Aharon Barak. In other words, we do not ask what the agenda was—
[Speaker B] —with a certain agenda.
[Rabbi Michael Abraham] Yes. We do not ask what the agenda of the sage was that led him to adopt this interpretation or that interpretation—not because he has no agenda, but because the question what the agenda was is not relevant. It is not relevant to the halakhic discussion, because I am not judging him by what he wanted to achieve; I want to understand the position he stated. Again: context of discovery versus context of justification. But here, notice—even if I ask what the circumstances were in which he operated, the question will not be what he wanted to achieve, but why perhaps under those circumstances it truly made sense to think this way. That may be a question I can ask, but not what were you trying to achieve. In other words, Jewish law—I told her there is a difference between Torah-level laws and rabbinic laws. In rabbinic laws, the reasons are usually reasons of “in order to,” purpose-driven reasons. In other words, they enacted a rabbinic decree in order to prevent one problem or another. That is what decrees are for. But that is exactly the difference between Torah-level law and rabbinic law. The prohibition of chadash—
[Speaker C] What? The prohibition of chadash in cold lands where—
[Rabbi Michael Abraham] No—
[Speaker C] —there would have been nothing to eat if they had observed the prohibition of chadash, so they ultimately ruled that the Jerusalem Talmud permitted it, whereas the decisors of Spain, the Land of Israel, Salonika, and so on, did not permit it.
[Rabbi Michael Abraham] So maybe in a moment I’ll come back to that. My claim was that in rabbinic laws, the explanations are generally explanations of “in order to.” We forbid this in order that such-and-such should not happen, or in order that something else should happen. That is the role of the Sages—to fence breaches, to prevent problems—and therefore the explanation is a teleological one. But in Torah-level laws, quite clearly, medieval authorities and later authorities assume that it was not done “in order to.” There is no “in order to.” It is “because,” not “in order to.” By “because” I mean: we say there is migo because in our view it is correct, not because I want you to succeed in carrying in the sukkah and to live properly in the sukkah. Rather, simply because I really think that if it is a wall for the sukkah, then it is also a wall for the Sabbath. Why? I don’t know—that’s a good question. One has to think about why. But if you find an explanation of why, excellent—that is an important explanation and worth thinking about. But the explanations I am looking for are not teleological explanations; they are not explanations of what I came to achieve, but explanations of why I think this is correct. Now regarding “why I think this is correct,” which is indeed a relevant question—even here, the researcher, not only will he ask “why” in the sense of “in order to,” meaning what did you want to achieve, but even when asking why it is correct, he will not ask in a conceptual sense why it is correct. Rather, he will ask himself: after all, there is a rationale on the side of the one who disagrees too. On both sides there is a rationale at the foundation of their position. They will ask themselves why Abaye adopted this rationale and Rava adopted that one—under whom did he study, what was the context, what was the… So there too, even if they are not asking the “in order to,” meaning the purpose, but the cause—even the cause can be asked in two ways. One can ask: what were the circumstances that caused me to adopt this conception rather than another? And one can ask: why is this conception logical and that conception logical?
[Speaker D] There’s an explicit passage in the Talmud, Rabbi Akiva with arranging her hair and applying eye makeup in Sotah, when a husband warns his wife. It says: in order that she should not become repulsive to her husband, I’ll interpret it differently.
[Rabbi Michael Abraham] Yes, but the question is whether it is in order that she should not become repulsive to her husband, or because I assume that the Torah probably did not prescribe something that would make a woman repulsive to her husband, and therefore I claim that this is not what the Torah said. Because that is exactly the difference—it’s a question of honesty. Because if, in my estimation, the Torah really did intend that she should not arrange her hair and should not apply eye makeup, and I—because I don’t want her to become repulsive to her husband—construct some far-fetched interpretation that I don’t really believe is correct, that is intellectual dishonesty. Now what will you tell me? You’ll say, okay, it’s unconscious; that is, he thought it made sense to interpret it that way. But I, as a researcher, when I ask why exactly Rabbi Akiva thought it made sense to interpret it that way—he was probably interested in women not becoming repulsive to their husbands, in strengthening marital life in the home, all sorts of things of that kind. You may be right, but that is no longer relevant to the halakhic discussion. In other words, in halakhic discussion I ask whether this interpretation is correct or not correct. Let’s look at parallel verses. Let’s examine the logic of the interpretation itself and the logic underlying the product of the interpretation, the Jewish law that emerges from that interpretation. I do not ask why Rabbi Akiva—what Rabbi Akiva’s agenda was—and a researcher will ask that. In other words, the point is that researchers also ask what you came to achieve, and not only why it is correct, and even when they ask why it is correct, very often—there are some who do ask, but very often—they do not ask why it is correct in the essential sense, what rationale lies at the basis of the matter, in what way Rava disagrees with Abaye, which is exactly a yeshiva conceptual question. In other words, what is the core point of dispute between Rava and Abaye? The researcher does not ask that. The researcher asks what caused… maybe a sophisticated researcher will indeed ask what the core point of dispute is, will conduct the yeshiva-style discussion like Haneshke, conduct the yeshiva-style discussion, and afterward ask himself: okay, but why did he adopt the law in terms of the person and he adopt the law in terms of the object? Because he studied under so-and-so and he studied under someone else, and over there the approach was such-and-such. That is already a question in the world of research. Again, it may be correct—I am not claiming that he is not right. I am only claiming that this is not a relevant question for halakhic discussion. That is the claim.
[Speaker D] There are other things too, especially when we’re talking about rulings—they often stem—
[Rabbi Michael Abraham] —from all kinds of… so that’s what Yossi commented on earlier, and now I’m getting to it. In other words, all this is about when we are interpreting or expounding the Talmud, the Torah, Scripture, or something like that. But after we do the interpretation, we also have to issue a halakhic ruling. I once spoke about the difference between a responsa book and a halakhic code, that a responsa book does not establish principled law but establishes law for a case. A case comes before him and they ask what the law is in such a case, what law applies in such a case. The Shulchan Arukh does not deal with cases; the Shulchan Arukh deals with laws. Therefore the move from the Shulchan Arukh to a practical ruling is far from simple. Because the Shulchan Arukh lays down certain principles, and one always has to understand to which circumstances it is relevant to apply which principles, and how. Okay? Therefore, what stands before a practical decisor—not someone who writes a halakhic book, which is the Shulchan Arukh, I’m talking about a decisor. The Shulchan Arukh is not a decisor. In other words, Rabbi Yosef Karo was a decisor, but when he wrote the Shulchan Arukh he was not functioning as a decisor; he was functioning as someone writing a halakhic code. Someone writing a halakhic code is establishing what is halakhically right and wrong. He is not talking about cases; he is talking about abstract situations. A case that comes before us now—the question is what do you do there? In what sense? First, which theoretical law fits this case—that’s one. Second, very often there are additional considerations beyond the theoretical law, where I’ll say: okay, even though the theoretical law says such-and-such, practically I think here one should act differently for all sorts of—
[Speaker D] —circumstances, or in a situation where there’s a clash between two laws, or a clash between—
[Rabbi Michael Abraham] —two laws, or even second-order considerations that are really almost like academic considerations. In other words, what the researcher asks himself. And it’s fine for a decisor to make that kind of consideration—or it depends how and depends when, not always—but in principle such a consideration can appear. And then the decisor says: look, for example, if on the interpretive plane I have two legitimate ways of understanding this law, and now I am facing a situation and I have to choose one of the two, and in principle a Torah-level doubt goes stringently, a rabbinic-level doubt leniently—I am in doubt between two options. But no: there are situations, and decisors do this all the time, where the circumstances—and that’s perfectly fine. It’s a consideration made by a decisor, and it’s a consideration on the table, a result of circumstances. And if a researcher asks himself that question, here I would certainly agree with him. Even in the ordinary case I may agree with him. But in a case where you are not asking why he wrote such-and-such in the Shulchan Arukh rather than something else, but rather why he ruled this way in a particular case and not another way—there it is clear that circumstances carry weight. But even there I argue that this is not the relevant conceptual discussion. It is a consideration the decisor can make. And the decisor who has to make a decision for a case can make it, and perhaps should make it. But if I ask myself what this decisor says regarding another case, where I am not there at all—not in those circumstances, not in that case, I’m talking about a different case or different circumstances—then what he did there is not interesting. What interests me are the interpretive considerations; in other words, what is halakhically correct. And if there are two open possibilities, then from my point of view that decisor really told me that two possibilities are open, even though he decided in favor of option A, because the reason he decided for option A was because of the circumstances that prevailed for him. That is not relevant to me. Here I am making exactly the same point I said the researchers make: if you hang it on circumstances, then the product is not a halakhic position, because it basically means that you did not establish a halakhic position of your own here. Anyone who had lived in those circumstances would have determined that. Now I am saying this on the practical halakhic level; I’m saying it in another context, because I am basically saying that if a decisor openly made a research-type decision—that is, a decision that stemmed from circumstances and not from halakhic interpretation, or also from circumstances—then when I study that decisor, I will not study that part. It does not interest me. It can interest me when I study practical rabbinic apprenticeship, how one rules Jewish law, because I need to see how one takes circumstances into account, and that too is an important halakhic lesson. But when I study the topic itself—not how to serve in practical halakhic decision-making—then it does not interest me. From my perspective, what is written there in the ruling is that two possibilities are legitimate. That is what I learn from that ruling, from that responsum that I am studying on that topic. I do not care about the bottom line, because the bottom line is a response to circumstances—and who cares? Different circumstances. Okay? So therefore, even though that decisor ruled A, from my perspective what that decisor is really saying is that A and B are both legitimate possibilities.
[Speaker E] Wasn’t that Rabbi Benny Lau’s claim regarding a non-Jew on the Sabbath? Regarding having a non-Jew operate something on the Sabbath? What the rabbi signed in that article, with Rabbi Rosenthal?
[Rabbi Michael Abraham] Exactly, exactly right. That is exactly it. Exactly—that was the argument there. Exactly. The claim is that even if you make such a decision, it is not relevant, it is not… Maybe I’ll illustrate this through something else. There’s—I may have mentioned this, I don’t remember anymore—Haym Soloveitchik the historian, yes, the son of—he wrote a book on Jewish law, economy, and self-image, I think that’s what it’s called, on the laws of interest in the Middle Ages. A Brisker—he’s a Brisker historian. So in one section—there are three sections there or something like that—in the middle section he makes a very interesting and very Brisker claim, but he claims that it stands up to the test of the facts. In other words, it’s not an a priori claim but an a posteriori claim. That is, he examined the halakhic sources. And what he claims is this: he looked at how the sages of Ashkenaz and the sages of Spain conducted themselves in the laws of interest, and how practical constraints influenced them. Exactly the seam I’m talking about here. So as a historian he is of course constantly examining responses to practical constraints, but in that historical book he writes—this is a history book by a Brisker—he writes there that sometimes they ruled halakhically in Torah-level laws flatly against the Talmud because, under certain circumstances, it could not be done אחרת, as with the laws of chadash. It simply could not be done otherwise in that place. But when the Shulchan Arukh took that ruling and wrote it into the Shulchan Arukh as law, this always dropped out. In other words, a ruling that goes against the Talmud will never appear in the Shulchan Arukh, even though the source on which the Shulchan Arukh relies ruled against the Talmud. Why? Exactly because of what I said here. The question is: what from the ruling actually joins the halakhic corpus? The considerations you made in the relevant place and time, with the “what ifs,” are considerations that do not interest abstract, pure Jewish law. Again, in practical rabbinic apprenticeship they do, because then you need to see how people maneuver and how far one may depart from the Talmud. So you can ask yourself, for example, if I ask myself how to relate to science, to scientific findings that contradict what is accepted in Jewish law—I can learn from how Maimonides did it, even though he was dealing with a different science and probably not a correct one at all, but that doesn’t matter to me. Because I’m not asking what Maimonides thought about the scientific question. I am asking—and this is a question of use, not of study—I’m asking how Maimonides deals with a scientific problem that contradicted the knowledge coming from Jewish law, the scientific knowledge on which Jewish law relies. And how far he allowed himself to incorporate his scientific knowledge into Jewish law. For that purpose I have no problem learning Maimonides’ rulings, even though they are based on silly science, Aristotelian fantasies. Okay? That doesn’t matter. There is a very important lesson here for us, one that we can apply to the science of our own time. So exactly the same applies here. When I deal with practical rabbinic apprenticeship, then yes, it is important to see how a decisor relates to the situation, how he responds to the situation from among the possibilities before him, how he chooses options, how he presents things, how he weighs how far to go against what is accepted or even against the Talmud in extreme cases and things like that. That is a question of practical use. But when I study the topic itself—not learning how to deal with reality and how to be a decisor—when I study the topic, none of this is of interest. When I study the topic, I ask: what is that decisor’s interpretation of the issue? That decisor’s interpretation of the issue is what he thinks is correct. What he decided to do in practice is already a matter of maneuvering within what is correct according to circumstances. That is already practical use.
[Speaker D] After all, in the Talmud there is Jewish law for all generations and Jewish law for its own time.
[Rabbi Michael Abraham] Right, and that’s why I say that what accumulates in Jewish law over the generations, into the corpus that gets passed on to later generations, is only the pure part. The whole part that emerges in coping with reality is important for practical use, but it won’t enter the Shulchan Arukh; that is, it’s not part of the Jewish law that I’m supposed to study when I study the halakhic topic. And that’s exactly the same thing I’m talking about here. And again, it’s not because it isn’t true. On the contrary, it is true. In responsa of this kind, it’s on the table. And there too, it’s the same thing. When I study the laws of new grain and you tell me that in the north they permitted it and in other places they didn’t permit it—that may be completely true, that’s a scholarly finding, and if that scholarly finding was made carefully and with proper rigor, then it’s a correct finding. There’s no problem with it, and there’s no need to argue with it either. The question is what that means for me. For me, I ask myself whether the one who permitted new grain had a halakhic basis for that. Not what motivations caused him to adopt that position. First of all, I ask how he arrived at it—was it a reasonable basis or an unreasonable basis? If it’s unreasonable, I’m not judging him. It may be that he chose an unreasonable option because he was in a very difficult situation and said, I’m relying on a strained opinion. But that doesn’t interest me. What interests me is what he thought as interpretation—does it hold water or not, or what he assumed was a reasonable or unreasonable interpretation. What he decided in practice—fine, that’s a result of the circumstances, that doesn’t interest me. Therefore, from my point of view, if he permitted new grain, I won’t permit new grain for myself. Because he permitted it because of the distress he was in, and that’s fine. I have no criticism of him, not necessarily at least. It could be that I do have criticism of that, but that’s not the point. It’s not because I criticize him, but because that’s not the halakhic part that I learn from his words. That’s the practical part; in practical apprenticeship to Torah scholars I’ll learn that. Fine. But in the halakhic part it doesn’t interest me. Unless—and this is an important point—unless the circumstances actually caused a new interpretation to appear. Meaning, when the decisor stood before circumstantial distress, before the hard facts he had to deal with, it gave him a halakhic idea which, once it arose, stands on its own. And it isn’t argued from need—well, I have no choice, this really isn’t all that logical, but I have no choice because there’s such distress here that I have to go down a strained path. That’s a legitimate consideration for a decisor, but I’m saying that as a learner it doesn’t interest me. But if he says to me: listen, the distress caused me to roll up my sleeves and search, to turn over every stone to see whether there was another interpretive option—and suddenly he found another interpretive option, and in fact found an option that even makes sense—then that’s perfectly fine. I don’t care that the distress was the reason he turned over the stones. Because after he turned over the stones he also found something underneath them. And after he found it, it can stand up to tests of justification, not only tests of discovery. So from my point of view, now I ask myself: this is a halakhic thesis that holds water, it fits the passages, no problem. If so, then there is such a halakhic approach, and now I can also adopt it and use it; everything is fine. Even though what caused this thesis to be discovered was the circumstances and the distress and the practical problems. But there the circumstances and the practical problems were not the reason for the ruling. They were the trigger that brought me to discover an option that is the reason for the ruling. And that option is a conceptual option, not connected to the circumstances, but without the circumstances I wouldn’t have looked for it and wouldn’t have found it. Now I’m remembering that I talked about this in the context of the book by Yitzhak Gilat, Chapters in the Development of Jewish Law. I said that this book aroused a lot of controversy and anger and all kinds of things like that. He was from Hebron, Professor Yitzhak Gilat from Bar-Ilan. He was a Hebron yeshiva man, a yeshiva student. And then he became a professor of Talmud and wrote some book about how Jewish law unfolds and develops and responds to circumstances, and everyone screamed at him. I was in Bnei Brak, I remember—what a heretic and apostate—and it was in the newspapers there. Of course I immediately bought the book because I understood there was something interesting there. And then when I read the book I suddenly saw that they simply hadn’t understood him, and this is exactly the point. They thought that, for example—he has a chapter there on the Sabbatical year in our times. He shows that the conclusion that the Sabbatical year in our times is rabbinic only arrived the moment the distress began after the Temple was destroyed and there was economic distress in the Land of Israel. Then they reached the conclusion that the Sabbatical year in our times is rabbinic and therefore one can be lenient regarding various acts. And he shows this through the archaeology of the passages; the early passages don’t raise such a possibility and later passages do, and he dates them and tries to show that the context was apparently some economic distress that developed there. But now the question is which of the two options he was saying there. One can say: okay, because of the distress, therefore we invented that the Sabbatical year in our times is rabbinic, and we said, okay, now we can be lenient, even though we don’t really think that’s true. That’s dishonesty. You can say: since it’s rabbinic, I permit aspects of the laws of the Sabbatical year, a rabbinic enactment because of distress; sometimes in certain circumstances you can do that. You can’t say that the biblical law is that the Sabbatical year in our times does not apply on a Torah level, that it is rabbinic—that this is the core law—not as a response to distress. To that criticism I agree. If that’s what he had been saying, I think it’s incorrect; that’s not a proper halakhic statement. But he didn’t say that. When you look there—and he was a yeshiva man too—what he said was that the distress caused the sages to look for interpretive and decisional options that previously had not been on the table. Nobody thought the Sabbatical year in our times would be rabbinic because there was no reason to check whether it depended on this or not. Now when you look for a reason to be lenient because you need one, because there is distress here—and that was the reason—I have no problem accepting that. But after that was the reason, why in the end did you decide this? You decided it because you truly have a real derivation that you are prepared to stand behind on its own merits. It is a correct argument, it comes from the verse, it comes from the derivation, whatever. You found something the previous generations hadn’t thought of. What caused you to find it? The distress. But the distress is not the reason why you rule that way. The distress is the reason why you looked for a halakhic mechanism, but the halakhic mechanism holds water on its own. Now there is logic in it, and one can rely on it even today. That already belongs to study, not use. Since now a new halakhic approach has been discovered, and since it was discovered as a halakhic approach—that the Sabbatical year in our times is rabbinic—that holds water, that’s true, at least according to certain views, and then I study it on its own terms without connection to the distress and all sorts of other things. Okay? And when you look at the book there you’ll see that he said that; he didn’t say the earlier version. And from his point of view the distress was not the reason for the ruling; the distress was the reason to look for an interpretive option that hadn’t existed before, because before there was no motivation to look for it, nobody had labored over it. When I sit—I know about myself that I sit in a place where I am someone’s advocate. I told about this once too—I’m supposed to go soon to testify in some court with a halakhic opinion. They asked me for a meta-halakhic opinion about some factory, Pri Nir, that produces tomato paste, and on Passover a few years ago it turned out that there was citric acid there, which is something that raises a concern of leavened food. They didn’t know—not the factory and not the rabbinate supervising it—but afterward it turned out that there had indeed been citric acid there with a concern of leaven, they produce it from wheat, never mind, there was some concern of leaven there. So there was a class action by customers who want compensation—they fed them leaven on Passover. And they asked me for an opinion about the damage caused according to the outlook of Jewish law or the Torah: what damage was caused to a person who ate such leaven when he didn’t know it was leaven and the one who supplied it also did so by mistake. Was damage caused? Is there grounds in tort? Okay? So they need an opinion. It isn’t halakhic—that’s not the right wording—it’s a meta-halakhic opinion, because this isn’t about damages; in the thought-world of Jewish law—not even that, it’s thought about Jewish law. Damage that isn’t called economic damage, damage that isn’t visible: you turned something into a prohibition, it’s forbidden to use, you lost it—but here they already ate it. That’s it, they ate tomato paste, everything is fine, they got the benefit from it, but still they ate something prohibited. The question is what damage there is to the person. Now never mind, I’m only saying that…
[Speaker G] Will they have to bring an offering? What? Will they have to bring an offering? Even if it was inadvertent?
[Rabbi Michael Abraham] Either yes or no, but I don’t think that…
[Speaker G] That also doesn’t—
[Rabbi Michael Abraham] That also probably isn’t a Torah-level prohibition. Never mind, they won’t have to bring an offering there. The point is only the prohibition. But never mind, I’m just giving that as background. What I mean to say is that suddenly I checked myself. After all, the one who approached me was Pri Nir’s lawyer, whom we know, and he asked me for such an opinion. Now I checked myself, just for interest’s sake, because I suddenly noticed that I was searching under the ground for reasons why there is no damage here, because I belong to a certain side. Now that’s it—it biases you, nothing will help. They expect such an opinion from you, and he also paid me for it; it’s work, and it wasn’t a small job, much bigger than I thought. So the man is paying me for an opinion for his side. What can I say… I told him in advance—I’ll write what I think; that is, I won’t write what you ordered. I told him that, I made it clear. But inside, I saw that I was searching, turning over every stone to bring more and more reasons why basically there is no—there’s nothing to do, that’s how it is. However psychologists explain it: people come to give opinions, or psychiatrists come to give opinions in court. The psychiatrists for the defense somehow arrive at the conclusion that it was an irresistible impulse, and the psychiatrists for the prosecution arrive at the conclusion that he was responsible for his actions and that it was really a decision. What happened? So you can say, fine, I took all kinds of psychiatrists and chose the ones who say what I say, but it doesn’t work that way. Ask people—it doesn’t work that way. The psychiatrist you hire is the psychiatrist who will testify in your favor. It almost never happens that you need to choose among them. Otherwise you could take a pool of psychiatrists, the prosecution and the defense together, pay them all, they’ll produce opinions, we’ll choose these opinions, you’ll choose those opinions. It doesn’t work that way. You take a psychiatrist who comes from your side and he’ll show you all the reasons in favor of your side, and he takes a psychiatrist for his side and he’ll show him all the reasons in favor of his side. And by the way, that’s not so terrible, as long as the psychiatrists aren’t lying, but are raising all the aspects on that side. There’s no final decision here—but they raise all the aspects for that side. Now the judge has to decide which side is more convincing to him, just like in a lawyer’s work. Yes, when we also once talked about this matter—that the one who mainly needs the lawyer is really the judge. Here it’s obvious, because the lawyers did the work for him. That is, the lawyer basically looks for all the legal arguments why his client is right, and the lawyer of the other side looks for all the legal arguments why the other side is right. And then he saves the judge from searching for all the reasons and sources and everything; you only need to check, between these two claims, who in your opinion is right. They do the searching and initial analysis and everything for you. Because each one is like the case of each side choosing one judge—in that Talmudic passage they really discuss this among the medieval authorities (Rishonim): this one chooses one judge for himself and that one chooses one judge for himself. Why do those two judges choose a third judge? Because each one has some tendency to go toward his side. And by the way, according to the Talmud that tendency is legitimate—not when it’s conscious. Meaning, you don’t omit things. If you omit things that are against you, you’re acting dishonestly, and that’s forbidden. But if you search, turn over every stone to look for arguments in favor of your side, but the argument is really a good argument, meaning it professionally holds water, then you are not betraying your role; that’s perfectly fine. The other side will do that, and the judge will have to decide which of the two sides is more convincing to him.
[Speaker D] A lawyer can even conceal things when his client admits that he murdered someone.
[Rabbi Michael Abraham] That’s something else, because facts that come to him from his conversation with the client—that’s attorney-client privilege, and that’s simply because of technical considerations, because otherwise it would be impossible to run the system. On the principled level, a lawyer is forbidden, I think, forbidden to conceal ordinary facts that are otherwise not within attorney-client privilege, no? I think so.
[Speaker F] By the way, in practice—you’re a lawyer, right? Yes. So in practice a judge doesn’t hear either a psychiatrist of one side or a psychiatrist of the other side, nor an appraiser of one side nor an appraiser of the other side; he brings in a psychiatrist or appraiser on his own behalf, and that’s it.
[Rabbi Michael Abraham] No, but the sides do bring their own psychiatrists.
[Speaker F] That’s just because in the end the court rules according to—maybe.
[Rabbi Michael Abraham] But I don’t know the practice. I’m saying that when you read about things, this is basically how it ought to be run. With lawyers it’s certainly like that—I know that, I’ve spoken to judges. With lawyers it’s definitely like that: the lawyers produce for you all the relevant arguments for both sides, they do the legal work. The judge doesn’t have the time or the strength, and also fears he’ll miss things, and anyone can miss things. When you have an interest, you usually won’t miss anything; that is, you work hard, you search for everything—that’s what they pay you for—you search for all the reasons in favor of your side. Now as long as you do that honestly, that’s fine; that is, the reasons are real reasons, you’re not inventing a source, you’re not forging sources or precedents, yes? We’re not talking about that. But you find all the precedents that fit your side, and that’s perfectly fine.
[Speaker B] If it’s extreme, then the judge also takes an expert.
[Rabbi Michael Abraham] Fine, that’s what he said earlier about a psychiatrist. But if it isn’t extreme—yes, no, but regarding legal matters he won’t take an expert; he himself is supposed to be a jurist, he’ll read the arguments and decide what he thinks. And that’s why I say that in the legal context it’s even more so. So on this too I brought my own example. I’m saying that in the end I saw that I have a bias; it’s clear to me that I have a bias. I said to myself: right, but fine, they have their experts; that’s what the discussion in court is for. They have their experts, and I’m writing things that I think are true. If other arguments are raised and they persuade me, I’ll say they’re right, that those are also correct arguments. I raise all the arguments that can help the side that actually hired me. And in that sense it’s fine; there’s someone balancing the matter. Now a decisor has no one balancing the matter—he is both sides. The decisor represents leniency and stringency; he represents the truth. Whether it comes out leniently or stringently, he has to do the job properly; he can’t—
[Speaker B] The decisor and the judge, yes, but the plaintiff and the defendant who come to the decisor—no, a decisor is not a religious court.
[Rabbi Michael Abraham] In a religious court, two sides come. A decisor is a case where someone comes with a chicken—is it kosher or non-kosher? There are no lawyers here. Now also, by the way, in religious courts today there are rabbinic advocates. But originally there was no such thing—what are rabbinic advocates? You tell me what you say and he’ll say what he says, and the judge will decide who is right. Even in the religious court, the use of rabbinic advocates many times is because the judges don’t have self-confidence; they think they’re missing things, so they want someone to do the work for them, even though today our rabbinic advocates won’t really do any work for you—
[Speaker B] Halakhically. Usually they don’t understand it, these rabbinic advocates. The side brings the rabbinic advocate, not the—
[Rabbi Michael Abraham] No, of course. But why does the system allow it? In the past it wasn’t like that, it wasn’t. You need to tell me what you want—you’re the litigant, you don’t need to make legal arguments. The law is me; I’m the legal expert, the judge. You tell me what you want, he’ll tell me what he wants, and we’ll issue a halakhic ruling as we understand it; we don’t need help. If a rabbinic advocate had come before Rashba, he would have thrown him down the stairs. What, I know Jewish law myself, don’t tell me the law. You tell me—bring the litigant, I don’t want to hear you. Bring the litigant—what do you want? You say there was a loan? Okay. And what do you say? You say there was no loan. What is your evidence? State your evidence. Okay, that’s it, go home, we’ll send you the answer by mail. That’s it, that’s all. There’s no need for someone to do the work for me with some legal and halakhic analysis and sources and all kinds of things—I know myself. Rashba knew himself; he didn’t need it. Today there’s some fear among judges that they’re missing things, so they also want lawyers to do some of the work for them. But that usually doesn’t happen—at least from the little I know, the rabbinic advocates are not in that league, they can’t really do halakhic work. These are people who learned a bit of the technique; for the most part they don’t really understand, though maybe some do. But anyway.
[Speaker B] Why did that decisor write the book they opposed about the Sabbatical year? Today the Sabbatical year—the Sabbatical year in our times, yes.
[Rabbi Michael Abraham] The Sabbatical year in our times is rabbinic.
[Speaker B] If the circumstances are such that they compel it, okay—
[Rabbi Michael Abraham] The fact that the Sabbatical year in our times is rabbinic remains with us; today we rule that the Sabbatical year in our times is rabbinic. Now if originally, when that was created, it was created only as a response to the situation, then you are basically presenting all the generations from that period—roughly from the destruction until today—as generations that are in effect following an incorrect halakhic approach. Because the Sabbatical year in our times is really Torah-level; they invented some strained method there, but that isn’t the real Jewish law. And today we are no longer in such straits, or at least some say we are not in such straits. So if that is so, why should one rely on it at all? If it really arose as a response to circumstances, you shouldn’t rely on it in different circumstances. Therefore they insist and argue: no, what are you talking about? This is a halakhic thesis that holds water on its own. But he too—and what I said is that he too said that. He only argued that they discovered it because necessity is the father of invention. Meaning, when you are in distress, you are more creative. But creativity doesn’t mean deception or dishonesty. Creativity means that I manage to think of options that otherwise I wouldn’t have thought of. I know about myself: if I hadn’t been a side in this matter, there are arguments I wouldn’t have thought of—in the case I was talking about. Because you search in that whole direction, and then you find all kinds of interesting arguments, which seem correct to me—again I’m saying, let the judge decide what he decides—but to me they seem correct. But I’m not sure I would have thought of them if I hadn’t had the interest to search and check more and check from here and there and think of another option. And I also see in other judgments—I’ve written a few judgments—that it’s obvious that when you have a position, you find more reasons in favor of that position, and that’s fine. Again I say, it’s fine, as long as the positions you found really hold water, as long as this belongs to the context of discovery and not the context of justification.
[Speaker B] What do you think the judge would decide? What?
[Rabbi Michael Abraham] No, I don’t need to think—I raise arguments, he’ll decide. By the way, in the first instance it’s the Arab judge in Nazareth handling it, an Arab judge. I wasn’t there, so I wasn’t in the game at all, but he showed me the judgments and, you know, this has been going on for years. When was the judgment? There hasn’t been one yet. It’s at the magistrate level, I don’t remember anymore, it’s something I did a long time ago, and now suddenly they invited me for questioning.
[Speaker H] That doesn’t make sense. Interesting, because at that level he also doesn’t hear them—not even the experts.
[Rabbi Michael Abraham] So maybe it’ll continue in some way. I don’t even remember exactly what happened there anymore; it was a long time ago, I’d need to look at it.
[Speaker D] There are laws that fall under “It is a time to act for the Lord; they have voided Your Torah.” For example, there’s a responsum about writing a haftarah book or reading from a haftarah book, which is forbidden because it isn’t a complete biblical book or something like that. So they say: and why did they permit it? Because it wasn’t possible to write a complete book for every synagogue.
[Rabbi Michael Abraham] But—
[Speaker D] Nowadays it seems to me that it is possible. Right.
[Rabbi Michael Abraham] So—
[Speaker D] It could be, if you’re saying according to the circumstances, that nowadays it would be forbidden to read from a haftarah book. Right.
[Rabbi Michael Abraham] So actually in this context it really is very similar, because here apparently we are relying on something that was done openly because of the circumstances, and nevertheless to this day we still write the Oral Torah. Now what lies, in my opinion, in the subtext of what we do today is the claim that even today it is correct to write the Oral Torah. It is not practical to go back to learning it orally, because otherwise we will again forget and once more it will be “It is a time to act for the Lord; they have voided Your Torah,” and so on. I’m talking about writing the Oral Torah. Once you already write it, then you also relate to books of Jewish law as part of the Oral Torah, and then it is already permitted to write things that are not only the original books in their original sense. Understand? And then “It is a time to act for the Lord” continues even today. Meaning, it is essentially renewed every moment. And that’s the point. Otherwise it really casts a great question mark over relying on this matter. Now it’s true that many times arguments of this kind come up only because we don’t want to abolish something that has been practiced for many years, and from that, in my opinion, one must be careful, because that really isn’t correct. Where something needs to be abolished, one should simply get up and abolish it. Meaning, sometimes one can abolish leniencies too, not only stringencies. Often changes are perceived as ways to be lenient. Changes can also go in a stringent direction, not only a lenient one. And the resistance to change, by the way, is both toward stringency and toward leniency. There is resistance to changes toward stringency too, because people understand that once you start changing, it can go in all directions—and Reform and all kinds of things like that. Therefore in certain respects there is also resistance to changes toward stringency. Even though many stringencies have often been added here. Okay. Now what I want is really to take the bottom line I spoke about: that there are certain circumstances that generate positions which in the end hold water on their own. Meaning, when someone is in a certain situation—a special situation, an extreme situation, whatever—he arrives at a certain halakhic conclusion or a certain halakhic position. But that position is not argued on the basis of what is called the defense of necessity, right? It is not argued on the basis of the need or distress that had to be solved. The distress only caused me to discover this option. Now that I discovered it, I am prepared to stand behind it even without any connection to the distress. Now I will rule this way even in a place without distress. It’s just that without the distress I wouldn’t have thought of this interpretive or decisional option. But once I had motivation, I checked and saw that there really is such an option and that it holds water, I believe in it. Now I will rule that way in other circumstances too. That is the difference between when the ruling is a ruling that constitutes a response to circumstances, in which case it is not supposed to be relevant to other cases, and when the circumstances were only the trigger that caused me to discover this way of thinking. But now this way of thinking is correct. And again, this is the context of discovery and the context of justification. When the circumstances constitute the context of discovery, I have no problem, as long as the product stands the tests of justification. Okay? As long as it holds water. Where do you see a clear example of this? This is an article I just wrote—it literally just came out before Holocaust Remembrance Day. In the journal Oryata, which is a Torah journal with Torah articles that comes out every so often, I don’t know exactly how often—they put out two volumes on the Holocaust. One volume already came out a few years ago, and the second one came out now. The editor there, who is a friend of mine, approached me because I had an article I wrote about monetary law in the Kovno ghetto. I once wrote it in Tzohar, and they asked me to expand it a bit and talk more about the principled aspects and publish it there, because it relates to halakhic rulings during the Holocaust. And there it wasn’t about the Holocaust itself, but about after the Holocaust or about what the Holocaust teaches us, not about things within the Holocaust itself. So I wrote it—I really did expand it a bit—and I wrote an article that touches directly on this point. My claim really, my basic claim, is that in the article about monetary law, it began with a series of articles in Yated Ne’eman, in the supplement of Yated Ne’eman. A Jew named Rabbi Gibraltar wrote a series of articles there about his father. His father was also called Rabbi Gibraltar; he was in the Kovno ghetto. He wasn’t in an official rabbinic role; he was a businessman, a merchant or something like that, but he was a Torah scholar, one of the rabbis of the ghetto. He and the author of Devar Avraham—there were several heavyweight Jews there. After the war he was a rabbi in Italy for a certain period, of course he died long ago. But his son wrote a series of articles about the ghetto during the Holocaust, about the Kovno ghetto and what happened there. Amazing things he wrote there. Most of it was history, but there were also parts that touched on how they issued halakhic rulings there. And there are some very difficult questions there about how they ruled—not only difficult for the decisors, the questions are difficult for us too when we come to study what they did: was it really justified, was it really a correct halakhic ruling or not? So, for example, his father’s approach, Rabbi Gibraltar the father, was that in the ghetto there is no monetary law. A very extreme approach: in the ghetto there is no monetary law. What does that mean? If someone borrowed money from me, the war ended, that’s it. Afterward he comes and wants to repay the loan, and Rabbi Gibraltar tells him: you owe nothing. The money I lent you wasn’t mine; there is no monetary law in the ghetto. You are exempt, you don’t need to return the money. That is, he rules in practice that ownership of money has no significance in the ghetto; there is no monetary law. For example, another case: people walked around—it was very cold there—with coats, and this was a matter of saving life. Especially since when you don’t have food to eat and you don’t have the protective fat that helps us somewhat in this matter, it’s much more dangerous; without a coat, you die. So now, therefore a coat is a matter of saving life. So Rabbi Gibraltar argues that taking a coat from someone is forbidden, even though there are no ownership laws in the ghetto. Why? Because it is murder, not theft. Something along these lines is written by the Chazon Ish about two people walking in the desert and one of them has a flask of water that is his, yes? The dispute between Ben Petura and Rabbi Akiva is whether both should drink and let neither see the death of his fellow—that is Ben Petura—or whether one should drink, “your life takes precedence over the life of your fellow,” as Rabbi Akiva says. Fine? Meaning, if the flask of water is yours, then you drink. And on this the Chazon Ish asks, and several commentators there ask, can I steal it from him? After all, theft in a case of life danger is permitted, so I’ll steal the flask of water from him. So the Chazon Ish writes: this is not theft, it is murder. Even though you are basically doing an act of theft, and the murder is only some indirect consequence that will happen secondarily—in the ordinary halakhic definitions this is indirect causation, it is not murder, it is theft. It is theft that through indirect causation can lead to loss of life. The Chazon Ish argues as Jewish law that in such a situation it is called murder, not theft. Therefore it is forbidden; you are forbidden to take the flask of water. You have to die—it is a case of be killed rather than transgress. He relies on Rashi’s position that there is also be killed rather than transgress regarding theft. But we talked about that. I’m speaking according to the position of most medieval authorities (Rishonim), for whom there is no be killed rather than transgress regarding theft. So he said the same thing there. But Rabbi Gibraltar says: what happens if a certain Jew dies? After all, he has a coat. So he said that anyone who sees the coat can take it; there is no inheritance. Meaning, the sons—even though they too will die without the coat, and that makes no difference—they do not take precedence over anyone else, because the coat did not belong to the deceased; he was merely wearing it. Meaning, it was not his in an ownership sense; it was in his use. So as long as he used it, if you take it from him you are murdering him. But once he dies and someone needs that coat, it is ownerless. Meaning, it does not pass by inheritance because it didn’t belong to the owner. Meaning, this is really a whole halakhic construction. And there only flashes appear; he didn’t give a full description of the matter. I also don’t know whether he had a full description of it. He described cases; it was a historical article, not a halakhic article. But within the things he says, a certain picture is really spread out—that Rabbi Gibraltar had an orderly, precise halakhic doctrine: when yes and when no, what yes and what no within the ghetto, in a completely insane world. Now there was a response article there by some Jew who deals with monetary law, some judge or decisor who really specializes in monetary law, who said: fine, inside the ghetto he probably didn’t have books and so on, so I’m not judging him, but it’s simply not correct, it doesn’t hold water, there’s no such thing—what do you mean there is no monetary law?
[Speaker I] There is always monetary law. What was his argument for why there isn’t monetary law?
[Rabbi Michael Abraham] He didn’t say. His son didn’t say. I don’t know what would have happened if I had asked him, but when the son wrote, he only told what his father did. He didn’t enter into—it wasn’t a halakhic discussion, it was historical, a historical description of what happened there. And there were astonishing things there, and halakhic questions at every step. There were the Jews of Yanova, in some town where they murdered everyone there, and there was some deal that was offered—an option that the Kovno Jews would pay an enormous sum to some Ukrainians there, I don’t know exactly what, as a bribe to release the Jews of Yanova. They themselves didn’t have enough money. And then the Jews of Yanova would be released and would join the Kovno ghetto, and of course then everyone would die of hunger, since there wasn’t enough food even for the ghetto Jews, and now add another whole community of people—there’s no way, everyone will die of hunger. Now not only that, I have to pay the money to free them and bring them to me, and by doing that I am basically almost certainly sentencing many people in the community to death, perhaps not all of them but many of them, including the Jews of Yanova themselves. And the question is whether this should be done, whether it is even permitted to do it, maybe it is forbidden to do it. An amazing halakhic question, fascinating even on the analytic level—I assume they themselves were not all that fascinated by it.
[Speaker B] No, but this approach arose from the fact that we are all going to die, sooner or later. Meaning, when you take a loan here—no, I didn’t understand. When one person takes a loan from another, the other one doesn’t have to repay the loan. Why? Because from the outset both know that both of them will die.
[Rabbi Michael Abraham] Fine, so let somebody repay it—what do you mean?
[Speaker B] No, because it’s like you know in advance—
[Rabbi Michael Abraham] There’s no—if my father—
[Speaker B] took a loan, I need to repay the loan.
[Rabbi Michael Abraham] No, from their point of view, as the way all the Jews thought—all the… No, no, I don’t think the argument was a factual one that everyone would die and therefore… because then that means there is ownership, and when they die there will be nobody to repay. Okay, fine, but for now there is ownership. Let’s see what happens. I don’t think that’s enough basis to say that already—
[Speaker B] I heard that that was the basis, that not—
[Rabbi Michael Abraham] I don’t know. I wasn’t left with that impression, but no, it doesn’t seem likely to me. In any case, there were all kinds of absolutely crazy questions there. By the way, Rabbi Adarbu—Avraham Kahana Shapira, Sender Kahana Shapira—who is somehow related to the name Adarbu, Kahana Shapira, meaning from Merkaz, maybe some uncle of his or something like that, I don’t remember. So he was basically the rabbi of the ghetto, really an astonishing figure. When you see what he did there, it’s unbelievable. An extraordinary personality. For example, he instructed the yeshiva students not to eat legumes on Passover. And that was a death sentence, it wasn’t—he instructed them because he told them: look, we’re going to die anyway, meaning nobody leaves here alive, so at least maybe the merit of this stringency in the laws of legumes will bring about a miracle to save us. Meaning, it was life danger in reverse. That is, I am allowed to endanger myself with mortal danger because maybe I will have a miraculous, merit-based salvation, since by the natural course I am certain to die. So the considerations of saving life move to the plane of spiritual merit. And that is how he ruled for them as Jewish law. That is, Rabbi Neuwirth brings this in the article there. In short, there are fascinating things there on the theoretical level too, and of course historically these are truly moving things. Now I wrote an article about this matter.
[Speaker J] So he had to be stringent about things during the Holocaust? The opposite—permit them.
[Rabbi Michael Abraham] Obviously. Jewish law says eat any prohibition—what’s pork? You can eat it—not legumes, obviously. But he says: all that is when you have a chance of remaining alive. But in a place where your chance of surviving is only through being stringent in Jewish law, maybe the Holy One, blessed be He, will do a miracle for you—there it flips. Meaning, there the stringency is actually the obligation of saving life—not because of the prohibition of legumes, but as a consideration of saving life, we will be stringent regarding legumes. And in short, that was the consideration. He said this as an actual halakhic ruling, meaning he forbade it, do you understand? Today we can say this as a nice homiletic idea, but he forbade the yeshiva students there to eat legumes; that is, he sentenced them to death, he said it as an actual halakhic ruling, it wasn’t a nice idea. Today I can say it as a nice idea—what do I care? I can say it for free, it costs me nothing. The man said it as an actual halakhic ruling, and he obliged them—he was the boss there, so once he said it, that’s what they did. He said it. He also ruled, by the way, that they would pay for the Jews of Yanova. They paid the money to free the Jews of Yanova, and all the Jews of Yanova joined them. And by the way, afterward many were saved, both from Yanova and from them. Even though it was clear there that this was suicide. The Judenrat objected, everyone objected, and Adarbu said: there’s no such thing, we are paying the money, period. I mean, there are truly hair-raising things there. Hair-raising. And to look at it halakhically is simply unbelievable. But on the other hand, one has to be careful here, because here the dilemma I spoke about earlier arises very strongly. The question is whether you issue a halakhic ruling because that’s what you think, or whether you issue a halakhic ruling as a response to circumstances. Then fine, I have no complaint in those circumstances. But the question is whether that teaches me anything for other circumstances in which I find myself. And that is not a simple question. Now I argued in the article that his criticism is not correct, from my point of view. From my point of view, the description of what happened there in the ghetto is testimony; it is not a position that I can now start debating whether it is right or not right. Why? Because I think that in circumstances so far removed from the world that I can understand, I have no way of knowing what is right there. It’s simply just talking into the air. The one who is inside the situation is the one who needs to decide what to do. And if he said it, then he is right, and now I need to ask myself why he is right. I can now take what he said and try, with halakhic tools, to decipher whether it holds water. It may be that it doesn’t, by the way. And if it doesn’t, I still say he was right. But then the ruling was probably correct only on the practical plane, on the plane of the ruling, of the responsum, and not on the plane of the Shulchan Arukh. Then it won’t enter the Shulchan Arukh. I argue that it should enter the Shulchan Arukh, because I argue that I did find a justification for this matter, and that’s what I wrote there in the article. And my argument was basically this: think of a situation in which there are—and this really seems to me a very interesting case between the two options I described earlier—two people in an elevator that has come loose, crashing to the ground, it’s on fire, they’ll die in a second, nobody will save them from there, they are certainly going to die. Fine? In a second, two seconds, they’re gone. Now both are in the crashing elevator, and one has a pen in his pocket—forgive the triviality. Okay? The other asks him, says to him: please give me the pen, I want to write a will, send some message, write some final thing. Why should I? It’s my pen, I don’t want to give it to you. Is that theft?
[Speaker D] Could you say this is like rescuing from a lion or a bear? What?
[Rabbi Michael Abraham] Rescuing from… but this is a trivial thing that is swept away by despair? No, because during those two seconds it’s still with me. Afterward it’ll be like something swept away by the sea; save it afterward.
[Speaker D] No, okay, in the circumstances of saving from the lion and the bear, even though the sheep still hasn’t been torn apart, since it’s going to be torn apart and I’m taking it…
[Rabbi Michael Abraham] But if right now it can still serve the other person, you can’t take it.
[Speaker D] Ah, because it serves him?
[Rabbi Michael Abraham] Obviously, because right now I’m the owner. So what if it’ll be torn apart afterward? Fine, it’ll be torn apart afterward. You can’t save something from a future loss at my expense when right now I have a right to use it. Okay. So he says, I don’t want to give you the pen. This pen is mine, I want to write with it now, or I don’t want to write with it, I just feel like putting it in my pocket, I like it, it’s very fashionable to walk around with a pen in your pocket. Okay? It’s my right, it’s my pen. On the face of it, that’s outright theft, right? Now, I don’t know, I haven’t been in that situation and I hope I never will be. But someone who is in that situation, I can absolutely understand that when he reads the situation, he says: forget the nonsense—there is no ownership in a situation like that. There is no ownership in a situation like that; ownership lapses. Now, what do you call that? Do you call it a response to extreme circumstances, or do you call it a halakhic thesis that really holds up? It’s a halakhic thesis that holds up for extreme circumstances. In such extreme circumstances, I claim this ought to be written in the Shulchan Arukh. The Shulchan Arukh should say that if someone is in circumstances like that burning elevator, there is no ownership. Huh? Also—
[Speaker G] Not despair. Why shouldn’t there be ownership?
[Rabbi Michael Abraham] Because it’s obvious that in a situation like that you don’t generate laws of ownership—it can’t be. It just doesn’t fit. That’s what I’m saying: when you’re inside the situation, you understand—it’s just not relevant, simply not relevant. Now afterward I also wrote a somewhat more orderly explanation with Rabbi Shimon Shkop, with laws of… with legal theory, where Rabbi Shimon Shkop says that the whole prohibition of “do not steal” and all monetary prohibitions are basically founded on what he calls legal norms—some sort of social recognition, a social stamp of approval, for acquisitions. Meaning, what belongs to whom and how ownership is transferred—the Torah does not determine all that. Society determines it, the legal system determines it. Once we’ve determined what belongs to whom and when, then the Torah comes and says: taking something that belongs to someone is the prohibition of theft. Okay? But the prohibition of theft presupposes some underlying framework of property law, and property law precedes Jewish law—it exists before Jewish law. Jewish law recognizes it de facto. And Rabbi Shimon has various proofs for this. I claim that if you adopt Rabbi Shimon’s perspective—which I completely agree with even on the halakhic level, regardless of the Holocaust—then the next step is basically to say what the Rabbi from Gibraltar said. I think that’s the justification. And once again, I don’t care right now whether that’s actually what he thought in practice, but that’s the intuition behind the thesis that says: I understand that in a situation like that, there are no monetary laws. We’re in the elevator, in two seconds we’re all dead—what does ownership of property even mean? It’s trivialities. What do you mean? It’s like when the Sages said regarding murder and your enemy: let him kill you rather than transgress. Where did they get that from? Pure reasoning. In such a situation it’s simply obvious—there’s no such thing, you’re not allowed to give up on this. Sometimes you’re in an extreme situation and you understand what is required of you in that situation—not because you have this source or that source, but because it’s clear to you that this is what Jewish law demands in such a situation. But that’s a privilege that exists only for someone who is inside the situation. Someone outside can think according to the accepted halakhic modes of thought, according to sources and lines of reasoning—how to plant this inside the halakhic battlefield, yes, how to insert it, how to integrate it into halakhic thinking. If I succeed, it joins the Shulchan Arukh. Why? Because his being inside that insane situation was the trigger through which he discovered this halakhic approach, one we otherwise would never have thought of. But once he discovered it, it is a correct and universal halakhic approach for extreme situations. And then the claim is that now there is a new halakhah: in very extreme situations there are no property laws, no ownership. Okay? It has become a universal halakhah; it’s no longer a response to one specific case. It moved from responsa into the Shulchan Arukh. Now it’s no longer responsa, no longer a ruling on a particular case. It’s part of the Shulchan Arukh. And not only part of the Shulchan Arukh that deals with circumstances of that sort.
[Speaker B] In practice, Jewish law doesn’t change—the acquisition changes. What? Jewish law doesn’t change; rather, the acquisition changes. If there’s no acquisition, if there’s no acquisition—exactly.
[Rabbi Michael Abraham] Meaning, the prohibition of theft remains exactly as it is, it’s just that nobody is an owner. So if you take it from him, you won’t be a thief. They didn’t abolish the prohibition of theft.
[Speaker B] Exactly what Rabbi Shimon Shkop said—that precisely, the underlying framework changed.
[Rabbi Michael Abraham] Why? Because in society, if indeed all the laws and concepts of ownership and “do not steal” are based on a legal determination by society, then what did society legally determine there in the ghetto? Any Ukrainian kid can shoot me in the head and take all my property. Do you understand? How can you say that in such a situation there is ownership? Ownership requires enforcement, requires institutions, requires religious courts, requires police acting as agents of the religious court to enforce the court’s decision. Without that, there is no ownership. Without an effective legal system, you can’t talk about ownership. For example, I claim that if there were a man and a woman on a deserted island, okay, you couldn’t betroth with money. Maybe you couldn’t betroth at all. Maybe you—
[Speaker D] You couldn’t betroth at all—that too I argued.
[Rabbi Michael Abraham] But first of all, you certainly couldn’t betroth with money. Because ownership of money—that money is neither mine nor hers. Ownership of money exists only where there is a society that defines ownership, what is permitted and forbidden, and how ownership is transferred. It requires society. For a lone individual there is no ownership over something on the island, even if he performs all the formal acts of acquisition—he lifts it up, and heaven and earth are the two witnesses, if you want witnesses too, though witnesses aren’t needed for an acquisition, okay?—and he acquires it, he still won’t be an owner. He won’t be an owner. If someone is born there afterward, he can take it from him. Why? Because ownership is a social legal institution. That’s what Rabbi Shimon Shkop teaches. And therefore he says that in a place where society is structured in such a way that the laws of ownership have no effective meaning at all, then there are no ownership laws. Then there are no ownership laws.
[Speaker D] You could say that in emergency situations society declares private property ownerless for the sake of the collective.
[Rabbi Michael Abraham] No, that’s a simpler argument in Jewish law. Meaning, if society decided—if a religious court were sitting there and declared it ownerless—then of course that would be possible.
[Speaker D] No, even without a religious court, you’re saying that because—
[Rabbi Michael Abraham] Because the whole situation means that this force simply doesn’t exist. So that’s basically saying it was rendered ownerless implicitly. But still, the court rendered it ownerless. It’s like the passage in Bava Metzia 47—there’s a very interesting Rashi there. Regarding misuse of consecrated property, right? That axe that became ordinary property—so who committed the misuse? It became ordinary property because of a rabbinic enactment. So who committed the misuse? They make some sort of calculation there. You can’t pin the misuse on anybody. Rashi says maybe the religious court committed the misuse—the court of that generation, which was responsible for the enactment of “what a religious court declares ownerless is ownerless.” Meaning, such a thing is not an acquisition. And who committed the misuse? Not the court that enacted the ordinance five hundred years ago, but the court of today. Because today’s court is basically the representative of that earlier court; it is now using the money that they ruled ownerless. And when you have the rule that what a religious court declares ownerless is ownerless, then that’s implicit ownerlessness. He says it’s implicit ownerlessness. But I’m talking about something else, much more fundamental. Meaning, the claim is not implicit ownerlessness. The concept itself doesn’t require being declared ownerless. There is no concept of ownership. You don’t need to declare anything ownerless at all. The concept of ownership collapses from within itself. It does not exist in such a situation. Now, if that really is the conception—and I show various implications there, and I also explain the Rabbi of Gibraltar’s various rulings in light of this conception—I claim it really holds up. Now that means we have basically added a clause to the Shulchan Arukh, but we added a clause to the Shulchan Arukh because the Rabbi of Gibraltar’s decision was not a concession to circumstances; rather, the circumstances led him to grasp what true Jewish law says in that situation. Meaning, he isn’t saying: in a case of great need we’ll waive the laws of ownership. If he were saying that, it wouldn’t belong in the Shulchan Arukh. Fine, so here I’m relying on strained positions, and because there’s distress I choose strained positions. No. I’m claiming that in such a situation, in principle, this is the law. It’s not an enactment. In principle there are no ownership laws. There simply aren’t. Not that I made a concession because of distress and therefore chose a difficult workaround. Rather, no—something new was revealed to me. People who were not in that situation don’t understand it, would never have come up with it. But once I discovered it, now it exists in the world. Just as the Tosafists, within the situation in which they lived, discovered an approach regarding sanctifying God’s name, and the Spanish sages did not discover that approach because they were not inside that situation. And maybe the opposite too—they discovered a situation of comfort that the French sages didn’t hit upon because they lived in a different situation. So what does that mean? That it’s just a response to the situation? No. The situation helped them notice that there was such an interpretive option, or another interpretive option. Once both discovered it, now we have two clauses in the Shulchan Arukh. We have two interpretive possibilities, and now for me as a halakhic decisor in different circumstances, at another time, there is the Tosafot approach and there is the Maimonides approach. Even though what generated them was some kind of distress. And why? Because the ruling was not a response to distress; rather, the ruling was discovered. The distress was the trigger to search, and the ruling was what I discovered when I searched. But now it holds up on its own; it is not dependent on the distress. In principle I would say this even without the distress, if it’s… In the case of the Holocaust it’s not like that, because the distress is a condition for applying the ruling itself as well, but in principle it could also have been without distress if I suddenly discovered something true about monetary law in general. Why are there no monetary laws in that context? Not because of the distress but for some other reason, though I discovered it because I was looking for a way to cancel monetary law. No problem—then I would write it into the Shulchan Arukh not only for cases of distress, because I discovered something that is genuinely true in those extreme circumstances that led me to discover this point. Now my claim basically is that we can broaden the canvas and say this: many times when we think about a halakhic situation, we are not inside the situation. And by the way, that is usually the position of a halakhic decisor. A person comes to ask a decisor what the law is; the decisor is not in the situation—the person is. The person has to describe the situation to the decisor, and the decisor has to tell him what Jewish law says about such a situation. But there are situations that you can’t really describe. Because part of the connotations, the context, what the situation means for me—those are not just dry facts. You have to experience it in order to understand the meaning of the matter. So if I manage somehow to describe it to the decisor and also convey the connotation and the significance of things, he can still rule. But if it’s a situation very far removed from the decisor’s world, then there’s a good chance I won’t be able to convey it to him. And then what happens is: the decisor is forbidden to rule in such a case. He has to tell the person: listen, let’s study the topic, I’ll teach you all the relevant halakhic principles, and you decide what to do. Because you are the only one who truly understands the situation; I cannot tell you what the law is. Not out of humility—I genuinely cannot issue a ruling. It’s a situation I cannot live. Without living the situation I cannot rule on it; I need to understand the meaning of the matter. This is not technical ruling. When you say there are no monetary laws, you have to understand what a person feels in such a situation. And again, what a person feels—not in order to take his feelings into account, I’m not talking about that; those would be considerations of responding to circumstances—but what a person feels because that is an indication of what is true. When people take money from one another with no fear at all, with nobody stopping them, you need to understand that there is no ownership. All the feelings of ownership, the whole meaning of ownership, simply do not exist. But you have to feel it, you have to experience it; without that you cannot understand the meaning of the matter. The experience here is objective, not subjective. Meaning, the claim is that anyone who was in that situation would experience the same thing. This isn’t a subjective experience where you experience it this way and I experience it another way, because otherwise this would not be halakhic ruling. And the claim of the person who is in the situation is that if you were there with me in this situation, you too would understand that I’m right. Do you understand? In other words, here you arrive at a new ruling. Okay? Now for example, there are rabbis of young communities who come to their teachers—say, their yeshiva head or some halakhic decisor, an older person, doesn’t matter—and they consult with him on various issues. A clear-eyed decisor has to understand that very often this young rabbi, with his young community, is dealing with a different reality that is unfamiliar to you. You don’t really understand how they think, how they relate to things, what things mean there. And in such a case, don’t tell him forbidden or permitted. It’s not right to do that. What you should do is clarify the topic with him, show him the different sides, teach him a bit how to think, open up different possibilities before him, and then send him on his way and let him decide what to do. Because you are the rabbi of the community, and you have to decide—you understand what’s happening there. Now I’m saying this in extreme cases, when the distance is great. Obviously a lot of the time, fine, you describe the situation to the decisor, you can explain the significance of the matter, and we can step into someone else’s shoes and understand. But when the situation is so extreme and so far from us, then it’s a mistake to give a bottom-line ruling. All you can do is tell the person: listen, I’ll study the topic with you, and you will have to decide. An extreme example of this, just in one sentence, is the issue of a transgression for the sake of Heaven in tractate Nazir. There, in standard halakhic thinking, yes, a transgression for the sake of Heaven—for example, Yael the wife of Heber the Kenite, who had relations with Sisera and then killed him. She gave him milk to drink and killed him. The Sages call that a transgression for the sake of Heaven. And what does that mean? If it’s saving life, because killing Sisera is what helped us win the war, then it’s not a transgression for the sake of Heaven—it’s saving life and it’s permitted. Or what, you’ll tell me it’s adultery? But adultery is not permitted in a case of saving life. Fine—so how does it help that it was saving life? Adultery isn’t helped by that; for that we say let him kill you rather than transgress. So what permission did she have to commit adultery? So that means, in plain terms—despite the fact that the accepted halakhic mode of thought is that a transgression for the sake of Heaven is basically a halakhic override rule. Look at many, many commentators: it’s like a positive commandment overrides a prohibition. Meaning, there are extreme situations in which one may commit a transgression. There I claim it can be defined that way too, but I think the more correct definition is that it is such a situation that only the person inside it understands what is right. So if Yael, wife of Heber the Kenite, who was there—not like the Gemara discussing it thousands of years later—but if Yael was there, and she understood the significance of the matter, and she understood that what she needed to do was this, then she should do it. Even though she was not a female Torah scholar, she didn’t understand Jewish law, and she had nobody to consult with either. He ended up in her house; she had to make decisions right then about what to do, and she couldn’t pick up the phone and call a halakhic decisor to ask what to do. So make the decision yourself. That’s what the Gemara is saying. And not because it is justified halakhically within the ordinary rules of Jewish law, but because there are situations in which the ordinary person—the one who is not a Torah scholar and nothing of the sort—if you are living inside the situation, that is better than the decisor who is far away. Make the decision yourself. Even though we are dealing with forbidden sexual relations and questions of the greatest halakhic severity. And that, I think, is the meaning of a transgression for the sake of Heaven. A transgression for the sake of Heaven—and therefore this really is said only in extreme situations. Situations in which there is an advantage to the one actually living through the situation; he understands it better than any decisor to whom it might be described, and therefore he is the one who has to make the decision. Now if he has time, then still—go consult, hear what the decisor says, hear the different sides, but in the end you decide; still hear from him, maybe you’re missing something in Jewish law. Fine. But if you don’t have time, make the decision yourself.
[Speaker B] And this could also include the issue of soldiers in the turmoil of battle.
[Rabbi Michael Abraham] Certainly, certainly. Every extreme situation—a person ultimately has to make decisions. If you have time, you can consult, everything’s fine, but in the end, in the situation you’re in, you have to make the decision. And Jewish law recognizes this; I’m saying, this is how Jewish law ought to function. It’s not some after-the-fact concession because there’s no choice and no one to ask and we’re not being strict. Because in exceptional situations—and I’m saying only there—in exceptional situations, the halakhic decisor is the one who is living the situation. And here this is an intermediate case for the distinctions I mentioned earlier, because the question is whether this is a response to extreme circumstances. The answer is yes, it is a response to extreme circumstances, but on the other hand the extreme circumstances here generate a genuine halakhic position. Meaning, this is a halakhic decision; it is not a concession, not a compromise. It is a genuine halakhic decision in those extreme circumstances. Therefore there is actually justification here, not just pressure of necessity, as it is called.