Disputes: History and Essence – Rabbi Michael Avraham – Lesson 6

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

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

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[0:05] The context and its influence on halakhic dispute
[0:05] The source of the dispute and the context
[2:25] The sages of France and Spain regarding sanctification of God’s name
[5:07] The principle of migo and the Brisker ethos
[9:33] The difference between Torah-level laws and rabbinic laws
[13:12] Responsa books versus books of Jewish law
[16:35] The influence of circumstances on the decisions of halakhic decisors
[24:40] Reactions to the book by Yitzhak Gilat
[25:33] The context of economic distress and its halakhic implication
[27:51] A halakhic opinion on tomato paste on Passover
[27:51] Differences between a halakhic opinion and a meta-halakhic opinion
[30:25] The role of the lawyer and legal experts
[30:29] The role of psychiatrists in choosing a side
[32:09] Laws and arbitration in the religious courts
[35:22] The system of religious courts and rabbinical pleaders
[37:52] The Sabbatical year nowadays — rabbinic or Torah-level
[40:25] Writing down the Oral Torah in the modern era
[43:07] Writing about monetary law in the ghetto and the connection to the Holocaust
[44:24] Halakhic rulings in the Kovno ghetto — monetary law
[44:24] Monetary law in the ghetto — no ownership
[46:45] The Chazon Ish — theft or murder in a case of saving life
[50:15] Ownership of a loan in a situation of foreknown death
[51:22] Saving life and stringency in Jewish law regarding legumes during the Holocaust
[56:15] The burning elevator theory: no ownership in an extreme situation

Summary

General overview

The text draws a methodological distinction between an academic explanation of halakhic disputes, which attributes positions to life circumstances and contextual influences, and a halakhic discussion, which focuses on what the position itself is and whether it is justified in light of the sources and reasoning. It adopts the distinction between the context of discovery and the context of justification, and argues that circumstances can explain how a position came into being but do not determine its halakhic value. On that basis, it warns against reducing the very concept of dispute into nothing more than a product of circumstance, while acknowledging that sometimes distress serves as a trigger that leads to the discovery of a new interpretive possibility that stands on its own and joins the halakhic corpus.

Connection and context in halakhic dispute

The text states that differences in worldviews and halakhic positions arise, among other things, from biographical context, place, and a network of influence from people and surroundings. It presents the academic perspective as seeking the circumstances of the dispute’s formation, such as whom the halakhic decisor studied with and under what conditions he operated, in contrast to the halakhic perspective, which examines what the decisor said and how reasonable his words are and whether they fit the sources. It rejects the simplistic presentation according to which the yeshiva approach is “naive” and unaware of influences, and accepts that there are influences, but argues that the halakhically relevant question remains the content of the position, not its origin.

The context of discovery and the context of justification

The text uses the concepts “context of discovery” and “context of justification” from philosophy of science in order to formulate a parallel distinction in Jewish law. It states that the circumstances are the context of discovery, whereas the halakhic discussion deals with the context of justification — that is, whether the position stands up to the tests of sources, reasoning, and validity. It argues that there is no need to argue over whether the research thesis that circumstances generated a certain position is correct, because even if it is correct, that is not the central methodological question in halakhic discussion.

Reducing dispute to circumstantial dependence and its implications

The text describes a possible radicalization of circumstantial explanation to the point of claiming that in fact “there are no disputes,” because every ruling is a function of a particular reality. It illustrates this through sanctification of God’s name: if the situation resembles France, one should rule like the Tosafists, and if it resembles Spain, one should rule like Maimonides; it even suggests that those same sages would have exchanged positions had they lived in a different context. It presents this extreme as problematic because it neutralizes the personal halakhic position and turns it into nothing more than a circumstantial product.

Migo, the Brisker ethos, and “what” versus “why”

The text describes a university lecture on matters of migo, such as “since it serves as a wall for the sukkah, it serves as a wall for the Sabbath,” and sets this against the “Brisker ethos” of Rabbi Chaim, which asks “what” and not “why.” It describes an academic response that offers a functional-social explanation for the movement of the Talmudic passage, such as a desire to allow carrying in the sukkah by defining it as a private domain, and in contrast it states that even if the explanation is correct, it does not interest him in the halakhic discussion. He sharpens the point by saying that sometimes he also looks for “why,” but “why” in the sense of reasoning and why it is correct, not “why” in the sense of what they were trying to achieve.

Agenda in interpretation, Torah-level laws and rabbinic laws, and intellectual honesty

The text states that an interpretive scholar tends to ask what agenda the sage had, what bothered him, and what he sought to achieve, whereas in the yeshiva study hall the question of agenda is not relevant to the halakhic judgment of the content. It distinguishes between rabbinic laws, where purposive reasons of “in order to” are on the table as part of the role of a decree, and Torah-level laws, where the assumption is that the reason is “because” and not “in order to,” and the search is for reasoning that justifies the law. It brings the example of Rabbi Akiva, “so that she should not become repulsive to her husband,” and asks whether this is an interpretation that comes from the interpretive honesty of “because” or a purposive manipulation of “in order to,” presenting manipulation as a problem of intellectual dishonesty.

Responsa, the Shulchan Arukh, practical halakhic ruling, and circumstantial considerations

The text distinguishes between a responsa book, which decides law for a particular case, and a book of Jewish law such as the Shulchan Arukh, which formulates abstract principles rather than “cases.” It states that the move from abstract law to a practical halakhic ruling is not simple, because a halakhic decisor must fit principles to circumstances and sometimes weigh additional considerations, clashes between laws, or situations of distress and weakening. It argues that circumstantial considerations can be legitimate in a practical decision between two legitimate interpretive possibilities, but they do not define “what is halakhically correct” as an abstract structure taught for generations.

What joins the halakhic corpus and what falls away from it

The text brings Chaim Soloveitchik the historian and his book on the laws of interest in the Middle Ages in order to argue that sometimes Torah-level laws were actually ruled in direct contradiction to the Talmud because of practical necessity, but when the Shulchan Arukh fixed the law for future generations, the element of “against the Talmud” dropped out. It argues that the law for generations absorbs the “pure part” of the interpretation and justification, while the circumstantial coping remains as knowledge for use by Torah scholars, not as part of abstract law. It presents the study of Maimonides’ way of dealing with “science” as an example that one can learn method of use even when the scientific content itself is wrong.

The laws of new grain, distress, and the distinction between a circumstantial ruling and an interpretive discovery

The text describes how in cold regions, where people could not eat if they observed the prohibition of new grain, practical leniencies emerged, whereas in Spain, the Land of Israel, Salonika, and so on, they did not permit it. It states that the halakhic question, from his perspective, is whether permitting new grain has a reasonable interpretive basis, not what motivations or hardships pushed people to choose a strained option. It says that the element of responding to distress is not what he studies “as a halakhic position,” unless the distress served as a trigger for discovering a new interpretive option that stands up even without need.

Chapters in the development of Jewish law, the Sabbatical year nowadays, and the controversy

The text describes the book Chapters in the Development of Jewish Law by Professor Yitzhak Gilat and the controversies surrounding it, with a central example being the view that the Sabbatical year nowadays is rabbinic, which according to his description appeared together with economic distress after the destruction of the Temple. It states that the problem would be if one claimed that the sages “invented” the rabbinic status only in order to be lenient without believing it, but accepts the claim that the distress created motivation to turn over every stone and look for an interpretive mechanism that had not previously been on the table. It states that when such a mechanism is found and is justified through interpretation and reasoning, it enters the learning as a halakhic approach regardless of the circumstances that caused the search.

Bias, experts, lawyers, and a halakhic decisor who has no one balancing him

The text describes a personal experience of writing a meta-halakhic opinion for the Pri-Nir factory in a class-action suit over concern about leaven on Passover, and identifies a tendency to turn over every stone in favor of the side that approached him. It presents an analogy to psychiatrists and experts in court, and to lawyers, who present the best arguments for each side in order to help the judge decide, as long as they do not lie or knowingly omit things. It states that a halakhic decisor, unlike an adversarial system, has to be “both sides,” and has no external balancing mechanism, and therefore must seek professional truth with honesty.

“It is a time to act for the Lord” and the continuity of circumstantial leniencies

The text raises the example of “It is a time to act for the Lord; they have nullified Your Torah” in the context of writing down the Oral Torah and reading from books of haftarot, and presents the difficulty of how reliance on a circumstantial dispensation continues even when circumstances change. It suggests that the hidden assumption is that even today the same practical justification still exists, preventing a return to the state of oral learning. It adds that resistance to change exists both toward leniency and toward stringency, and that changes are not necessarily only leniencies.

Holocaust rulings, monetary law in the Kovno ghetto, and turning testimony into law

The text describes an article he wrote in the journal Oriyata toward Holocaust Remembrance Day, based on a series of articles in Yated Ne’eman by Rabbi Gibraltar about his father from the Kovno ghetto. It presents the extreme position of Rabbi Gibraltar’s father, according to which “in the ghetto there is no monetary law,” including a ruling that a borrower is not required to repay after the war because the money “was not mine,” together with the distinction that taking a coat from a living person is “murder” and not theft, inspired by the Chazon Ish regarding a flask of water. He also notes that there is no inheritance of the coat of someone who died, because the coat was not his in terms of ownership but only in his use, and therefore after his death it is ownerless.

The Dvar Avraham, legumes, and ruling as risk for the sake of spiritual efficacy

The text brings examples from the Kovno ghetto about Rabbi Sender Kahana Shapira, the Dvar Avraham, who ruled that yeshiva students should not eat legumes on Passover, reasoning that the chance of survival was miraculous and therefore added stringency might be a consideration of saving life in a spiritual or segulah sense. It also describes a ruling to pay in order to free the Jews of Yanova and bring them into the ghetto, despite the opposition of the Judenrat and fear of starvation, and describes these as hair-raising decisions made in actual halakhic practice.

Testimony from extreme situations and their halakhic justification

The text argues that someone who was inside an extreme situation like the Holocaust gives “testimony” about what is correct there, and someone outside cannot judge with the usual tools as though this were an ordinary argument. It states that one can try to integrate those rulings into the “halakhic vineyard” through justification and reasoning, and then they may become an approach that joins the corpus, but if they do not have such justification, they remain a circumstantial response that does not enter the Shulchan Arukh.

A burning elevator, collapse of ownership, and Rabbi Shimon Shkop

The text illustrates a principled claim through a scenario of two people in a burning elevator that is certainly about to crash, where one refuses to give the other a pen to write a will, and presents the intuition that in such a situation “there is no ownership” and ownership lapses. It grounds this in Rabbi Shimon Shkop, according to whom monetary prohibitions rest on a social-legal infrastructure of property law defined by society, and Jewish law prohibits theft only on top of that infrastructure. It argues that in a situation where there are no institutions, enforcement, and a system that sustains ownership, the concept of ownership “falls apart” and does not exist, as on a deserted island, and also as a framework for understanding the collapse of ownership in the ghetto. Thus the prohibition of theft remains in force, but does not apply because there are no owners.

Moving from responsa to the Shulchan Arukh in extreme situations

The text concludes that extreme circumstances can be a trigger for discovering a new halakhic approach that is “correct and universal for extreme situations,” and therefore worthy of entering the Shulchan Arukh as a section defining the law for such situations. It states that the decisive difference is between a ruling that is a “necessity defense” and is not taught for generations, and circumstances that caused the exposure of a form of reasoning that stands up in the context of justification even when detached from the motivations of the context.

Full Transcript

[Rabbi Michael Abraham] Okay, last time I spoke a bit about how a dispute comes into being, when it’s clear — or maybe not clear, but it seems that if there’s a difference between people’s worldviews, then at least part of it comes from context, from various kinds of influences. Every person goes through a different biography, lives in a different place, is influenced by different people, and therefore ends up forming a different halakhic position. I spoke a bit about how, from an academic perspective, people usually look for the influence of context. Meaning, if we want to understand a dispute between two halakhic decisors or between two halakhic outlooks, then a scholar will often ask himself why this grew here and that grew there, what connection it has to the circumstances in which that decisor operated, whom he studied with, or things of that kind. And I said that in the halakhic perspective, in halakhic discussion, those aren’t the kinds of questions we ask. 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? Usually this argument is presented as though… as though the question is whether context has influence or not. Meaning, academic research is supposedly more clear-eyed, more aware that there are contextual influences, and the traditional yeshiva approach — yes, the accepted halakhic one — is supposedly naive. Meaning, it doesn’t understand that different influences affect the positions of halakhic decisors. And I said that I think sometimes that’s true. Meaning, defensive halakhic discourse often entrenches itself in some position according to which these are ministering angels and they aren’t influenced by things — whatever — that happen in the world. I think that’s not true, and there’s no need to go there for apologetic purposes. There’s no reason for it. Rather, yes, there are various influences, but the halakhically relevant question is still what the outlook itself says, not where it came from. I gave the example of the sages of France and the sages of Spain regarding sanctification of God’s name, and I said that I can discuss their positions — what each one says, how he interprets the Talmudic passages, what follows from their outlooks — without any connection to the question of whether indeed the sages of France did this because they feared deterioration during the Crusades, while the sages of Spain, who did not fear that, ruled differently. It may be true; it’s entirely reasonable that there were such influences. But that isn’t relevant to the halakhic discussion. I think I mentioned the distinction between the context of discovery and the context of justification in the context of philosophy of science. There too, we examine a scientific theory not according to its source, or where it came from, or how it occurred to the scientist who came up with it — that’s what’s called the context of discovery — but according to the context of justification, meaning 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? Therefore there’s no need to argue over whether the research thesis is correct, that the circumstances generated the halakhic position. That may be true. But the methodological assumption is that this is not the important question in the halakhic discussion. And I said that from this, really… meaning, one could take the scientific or academic-research explanation further and say that if so, then in fact there are no disputes at all. When I ask myself how I’m supposed to behave in situations that arise in the context of sanctification of God’s name, I need to ask whether my situation resembles the one in which the sages of France, the Tosafot masters, operated, or whether it resembles the situation that prevailed in Spain at that time. If it resembles what happened in France, then I need to rule like Tosafot; and if it resembles what happened in Spain, then I need to rule like Maimonides. And if we go even further, then we’d say that even Maimonides himself, if he had lived in France, would have held like Tosafot, and if the Tosafot masters had lived in Spain, they would have held like Maimonides. Because if reality generates the halakhic position, then the individual is basically neutralized. Meaning, it’s irrelevant. 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 basically it doesn’t matter at all. Then Jewish law is a product of circumstances and doesn’t express different outlooks. So there are no disputes. Meaning, in every set of circumstances, the relevant Jewish law is the law that developed in those circumstances. Maybe I’ll just add one more point that I didn’t get into last time. It came up for me in today’s class, so I thought it might help round out the discussion a bit. In today’s class — we were talking at the university — I spoke about matters of migo, such as “since it serves as a wall for the sukkah, it serves as a wall for the Sabbath.” Doesn’t matter — a discussion came up there about how exactly to explain this kind of thing. I said that I’d suggest, like Rabbi Chaim, that we ask the what and not the why — the Brisker ethos. So I said I’d try to describe how the sages understood this principle of migo, not why they understood it that way. Not why they understood it that way even in the sense of why it’s logical — which is in fact a relevant question in halakhic or Talmudic discussion — but just: let’s see what they do with it. Meaning, how do they understand this principle? And in the course of that, explanations really did come up that seemed to reflect how they understood it, but it wasn’t clear what the logic behind them was. And there was someone there who, I think, is doing a doctorate in Talmud or something like that, and as Talmud researchers tend to do, she said: yes, so apparently there were circumstances — he wanted to achieve something, maybe he wanted to allow people to live properly in the sukkah, they have to be allowed to carry there, because if it isn’t considered a wall for the Sabbath, meaning it won’t count as a private domain, then you won’t be able to bring things out from the house into the sukkah, because it won’t be a private domain and the house is a private domain, so you can’t carry things out. So they determined that whatever is valid as a wall for the sukkah is also considered a private domain — that’s the migo there in the passage, doesn’t matter. So I said — and then I got into this issue of contextual explanations or academic explanations as opposed to halakhic explanations — maybe you’re right that that was the reason, but it doesn’t interest me. It doesn’t interest me because, for me, I want to understand this principle of migo, including perhaps why it is correct if I can figure that out — not just the what, in the Brisker naive sense, but also the why. But not “why” in the sense of what were they trying to achieve, rather “why” in the sense of why is it logical. Meaning, why is it correct? Give me a rationale. Meaning, why define such a principle of migo? And here this really echoes a bit more what I said earlier. I told her that in the whole interpretive context, when sages interpret the Torah, the Talmud, the medieval authorities (Rishonim), whatever it may be, then again a scholar will often ask himself — and this is just a particular case of what I said before — why did he adopt that interpretation? What was he trying to achieve? What was bothering him? Meaning, what agenda was he advancing? Yes, in the academic study hall they do accept judges with an agenda. In the yeshiva study hall, no — they don’t accept judges with an agenda like Aharon Barak. Meaning, we don’t ask questions about what the agenda was; scholars—

[Speaker B] with a particular agenda,

[Rabbi Michael Abraham] Yes, we don’t ask the question what the sage’s agenda was that led him to adopt one interpretation or another. Not because he doesn’t have an agenda, but because the question of what the agenda was is not relevant. It isn’t relevant to the halakhic discussion, because I’m 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 acted, the question won’t be what he wanted to achieve, but perhaps why under those circumstances it really makes sense to think that way. That may be a question I can ask. But not: what did you want to achieve? Meaning, Jewish law — I told her there’s a difference between Torah-level laws and rabbinic laws. In rabbinic laws, the reasons are usually reasons of “in order to,” purposive reasons. Meaning, they enacted a rabbinic decree in order to prevent such-and-such a problem. That’s on the table; that’s what decrees are for. But that’s exactly the difference between Torah-level law and rabbinic law.

[Speaker C] The prohibition of new grain — in the cold lands where there was nothing to eat if they kept the prohibition of new grain, the decisors who lived there eventually permitted it. In contrast, the decisors of Spain, the Land of Israel, Salonika, and so on, did not permit it.

[Rabbi Michael Abraham] So maybe in just 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 or that in order that such-and-such not happen, or in order that something else happen. That is the role of the sages, meaning to fence breaches, to prevent problems, and therefore the explanation is a purposive explanation. But in Torah-level laws, medieval authorities (Rishonim) and later authorities (Acharonim) clearly assume that this is not done “in order to.” There is no “in order to.” It’s “because,” not “in order to.” “Because” means: we say there is migo because, in our view, it is correct. Not because I want you to succeed in carrying things in the sukkah and living properly inside 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 — good question, you have to think why, and so on. But if you find an explanation, excellent — it’s an important explanation and worth thinking about. But the explanations I am looking for are not purposive explanations. They are not explanations of what I was trying to achieve, but explanations of why it is logical, meaning why it is true. Give me a rationale. Why do I think it is true? Now, even regarding that — why do I think it is true — which is indeed a relevant question, here too the scholar not only asks “why” in the sense of “in order to,” meaning what were you trying to achieve, but even with “why is it true,” he won’t ask in terms of reasoning why it is true. Rather, he’ll ask himself — after all, there is reasoning for the side that disagrees too. On both sides there is some rationale at the root of their position. And they’ll ask themselves why Abaye adopted this rationale and Rava adopted that one. Whom did he study with? What was the context? What was the situation? So there too they’re not really asking “in order to,” meaning the purpose or goal, but even the cause can be asked in two ways. One can ask what were the circumstances that caused me to adopt this view rather than that one, and one can ask why such-and-such a view is logically compelling and why another view is logically compelling.

[Speaker D] There is actually an explicit Talmudic text of Rabbi Akiva with blue eye paint and rouge, if I’m not mistaken — that a woman becomes repulsive to her husband. So he says, in order that she not become repulsive to her husband, I interpret it differently.

[Rabbi Michael Abraham] Yes, but the question is whether it is “in order that she not become repulsive to her husband,” or because I assume that the Torah presumably did not establish something that would make a woman repulsive to her husband, and therefore I argue that this is not what the Torah said. Because that’s exactly the difference. Because it’s a question of honesty. If, in my estimation, the Torah really did intend that she not use blue eye paint and rouge, and because I don’t want her to become repulsive to her husband I make up some far-fetched interpretation when I don’t really believe it’s true, that’s intellectual dishonesty. Now what will you say to me? You’ll say: fine, it wasn’t conscious. He thought it made sense to interpret it that way. But if I, as a scholar, ask why exactly Rabbi Akiva thought it made sense to interpret it that way, apparently he had an interest in women not becoming repulsive to their husbands, in strengthening the relationship at home, or things of that sort. Maybe you’re right, but that’s no longer relevant to the halakhic discussion. Meaning, in the halakhic discussion I ask whether this interpretation is correct or not. Let’s look at parallel verses, examine the logic of the interpretation itself and the logic underlying the product of that interpretation — the halakhah that emerges from it. I am not asking why Rabbi Akiva — what Rabbi Akiva’s agenda was. And a scholar will ask that. Meaning, the point is that scholars also ask what you were trying to achieve, not only why it’s correct. And even when they ask why it’s correct, they often don’t ask — at least some do, but often they don’t — why it’s correct in the substantive sense: what rationale underlies the matter? What is it that Rava disputes with Abaye? And that is precisely the classic yeshiva analytic question — what is the point of dispute between Rava and Abaye? The scholar doesn’t ask that. The scholar asks what caused it. Maybe a sophisticated scholar will also ask what the point of dispute is, and carry out the yeshiva-style discussion like a weapon. He’ll do the yeshiva discussion and afterwards ask himself: okay, but why did this one adopt that it’s a law in the person and that one adopt that it’s a law in the object? Because he studied under so-and-so, and he under someone else, and there the approach was such-and-such. That’s already a question in the world of research. Again, maybe it’s correct — I’m not claiming he’s wrong. I’m only claiming that it isn’t a relevant question for the halakhic discussion. That’s the claim.

[Speaker E] And there are those who talk about interpretations or principles, but when they talk about rulings, they often stem from all sorts of—

[Rabbi Michael Abraham] So that’s what Yossi commented on earlier. Now I’m getting to that. Meaning, all of this is in the question of when we do interpretation or exegesis — of the Talmud, of the Torah, of Scripture, something like that. But after we do the interpretation, we also have to decide the law. I once spoke about the difference between a responsa book and a book of Jewish law. A responsa book doesn’t establish a principled law; rather, it 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 doesn’t deal with cases. The Shulchan Arukh deals with laws. Therefore the transition from the Shulchan Arukh to a practical halakhic ruling is very 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, in practical ruling, what stands before a halakhic decisor — not someone writing a halakhic book; I’m talking about a decisor — is the Shulchan Arukh. The Shulchan Arukh is not a decisor. Meaning, Rabbi Yosef Karo was a decisor, but when he wrote the Shulchan Arukh he wasn’t functioning as a decisor. He was functioning as someone writing a book of Jewish law. Someone who writes a book of Jewish law is someone who determines what is halakhically correct and incorrect. He does not speak about cases; he speaks about abstract situations. A case that comes before me now — the question is what to do there. In what sense? First, which theoretical law is appropriate to this case — that’s one thing. Second, very often there are additional considerations beyond the theoretical law, so that I say, okay, although the theoretical law says such-and-such, in practice I think that here one needs to act differently because of various circumstances.

[Speaker B] Or when the case brings one to a situation where there is a clash between two laws.

[Rabbi Michael Abraham] Or a clash between two laws, or even second-order considerations that are really, so to speak, the kinds of considerations scholars talk about. Meaning, what the scholar asks himself. And it’s perfectly fine for a halakhic decisor to make such a consideration — depending on how and when, not always, but in principle such a consideration can appear. And then the decisor says: look, let’s say that on the interpretive plane I have two legitimate ways to interpret this law. Now I’m standing before a situation and I have to choose one of the two possibilities. In principle, a Torah-level doubt goes stringently, a rabbinic-level doubt leniently. I’m in doubt between two possibilities. But no — there are situations, and decisors do this all the time, where the circumstances say that here one must be stringent. For some reason there is some weakening here. Or the opposite: I’m afraid something will happen, and therefore here I need to be lenient. There is great distress — apropos of these things — so I need to be lenient. And that is perfectly fine. That’s a consideration a decisor makes, and it’s a consideration that is on the table as a result of circumstances. And if a scholar asks himself that question here, I will certainly agree with him. Even in the ordinary case, maybe I’ll agree with him. But in a case where you’re not talking about why he wrote this way and not another way in the Shulchan Arukh, but rather asking why he ruled this way and not another way in a particular case — there it is clear that circumstances carry weight. But even there I claim that this is not the relevant analytic discussion. It’s a consideration that the decisor can make, and you, as the decisor who has to make a decision in a case, can make and perhaps even should make. But when 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 other circumstances — then what he did there is not interesting. What interests me is what the interpretive considerations are, meaning what is halakhically correct. And if there are two open possibilities, then as far as I’m concerned that decisor has basically told me that both possibilities are open, even though he decided in favor of possibility A. Because the fact that he chose A was due to the circumstances that prevailed for him; that isn’t relevant to me. Here I’m making exactly the same move that I said scholars make: if you attribute it to circumstances, then the product is not a halakhic position. Because it basically means that you didn’t establish some halakhic position of your own here. Anyone who lived in those circumstances would have decided that. Now I’m saying this in practical halakhic terms. I’m saying it in another context, because I’m basically saying that if a decisor openly made a decision in the way a scholar would, in quotation marks — meaning he made a decision that stemmed from the circumstances and not from halakhic interpretation, or also from the circumstances — then as far as I’m concerned, when I study that decisor I won’t study that part. It doesn’t interest me. It may interest me when I’m learning practical rabbinic method, how one rules law, because I need to see how one takes circumstances into account. That too is an important halakhic lesson. But when I’m learning the topic itself, not how to use it for practical halakhic ruling, then it doesn’t interest me. For me, what that decisor wrote there means that there are two legitimate possibilities. That’s what I learn from that responsum that I’m studying on this issue. I don’t care about his bottom line, because his bottom line is a response to circumstances — it doesn’t matter, my circumstances are different. Okay? So from my point of view, although that decisor ruled A, what that decisor is actually telling me is that both A and B are legitimate possibilities.

[Speaker E] Was that Rabbi Binyamin Lau’s mistake regarding having a non-Jew operate something on the Sabbath? Regarding having a non-Jew operate something on the Sabbath — what the rabbi wrote in the article, the debate—

[Rabbi Michael Abraham] with Professor Rosenfeld?

[Speaker E] You can interpret the decisor’s role as that of an interpreter.

[Rabbi Michael Abraham] Exactly, exactly, right. That’s exactly — that was exactly the argument there. Exactly. That’s the claim: even if you accept such a decision, it isn’t relevant, it isn’t — maybe I’ll illustrate it through something else. There’s — maybe I mentioned this, I don’t remember anymore — there’s Chaim Soloveitchik the historian, the son of. He wrote a book on Jewish law, economy, and self-image — what’s it 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 or something like that — in the middle section he makes a very interesting and very Brisker claim, but he says it stands the test of the facts. Meaning, it’s not an a priori claim; it’s an a posteriori claim. Meaning, he checked the halakhic sources. And what he argues is this: he examined among the sages of Ashkenaz and the sages of Spain how they behaved with regard to the laws of interest, and how practical constraints affected them — right on the seam I’m talking about here. So as a historian he is of course constantly examining the response to practical constraints. But in this history book, he writes there — it’s a history book by a Brisker — he writes there that sometimes they ruled halakhah in Torah-level matters in direct contradiction to the Talmud. Because under certain circumstances it was impossible to do otherwise — apropos of the laws of new grain. In that place it was impossible to do otherwise. But when the Shulchan Arukh took that ruling and wrote it into the Shulchan Arukh as law, that element always drops out. Meaning, a ruling that is against the Talmud will never appear in the Shulchan Arukh, even though the source on which the Shulchan Arukh relies did rule against the Talmud. Why? Exactly because of what I said here. Meaning, the question is: what, from within the ruling, actually joins the halakhic corpus? The considerations you made in that relevant place and time are considerations that do not interest abstract, pure Jewish law. Again, in the practical training of Torah scholars, yes — there you need to see how one maneuvers and how far one may depart from the Talmud. So you can ask yourself, for example, when I ask how to relate to science, to scientific findings that contradict what is accepted in Jewish law, I can learn from the way Maimonides did it, even though he dealt with a different science and apparently one that was completely wrong. But that doesn’t matter to me. Because I’m not asking what Maimonides thought about the scientific question. I’m asking — this is a question of use, not of study — I’m asking how Maimonides deals with a scientific problem. In that respect I have no problem learning from Maimonides’ rulings even though they are based on silly science, Aristotelian fantasies. Okay? That isn’t important. There is a very important lesson there for us, which we will apply to the science of our own time. So exactly the same thing here. When I deal with practical rabbinic method, then yes, it’s important to see how a decisor relates to a situation, how he responds to the situation from among the options before him, how he chooses among possibilities, 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 use. But when I study the Talmudic topic — not how to relate to reality and how to be a halakhic decisor, but the topic itself — none of that interests me. When I study the topic, I ask what that decisor’s interpretation of the topic is. That decisor’s interpretation of the topic is what he thinks is correct. What he decided to do in practice already involves maneuvering within what is correct according to the circumstances. That is already practical use.

[Speaker D] Already in the Talmud there is law for the generations and law for its own time.

[Rabbi Michael Abraham] Right, and therefore 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 comes out of dealing with reality is important for practical use, but it won’t enter the Shulchan Arukh; meaning, it’s not part of the Jewish law that I’m supposed to study when I study the halakhic passage. And that’s exactly the same thing I’m going to talk about here. And again, it’s not because it isn’t correct. On the contrary, it is correct. 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 can be entirely true, that’s a historical finding, and if that historical finding was reached carefully and rigorously, 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. From my perspective, I ask myself whether the one who permitted new grain had a halakhic basis for it, 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 one. If it’s unreasonable, I’m not judging him. It could be that he chose an unreasonable option because he was in a very difficult situation and he said, I’m relying on a strained opinion. But that doesn’t interest me. What interests me is what he thought as an interpretation—whether it holds water or doesn’t hold water, or what he assumed was a reasonable or unreasonable interpretation. What he decided in practice is the result of circumstances; that doesn’t interest me. So from my perspective, if he permitted new grain, I will not permit new grain for myself. Because he permitted it due to the hardships he was facing there, and that’s fine—I don’t necessarily criticize him. There may even be criticism, but that’s not the point. It’s not because I criticize him, but because that’s not the halakhic part I learn from his words; it’s the practical part, and in apprenticing myself 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, and I spoke about this last time, and here I’m moving to the next part of the lesson, the circumstances actually caused a new interpretation to appear. Meaning, the decisor himself, when he stood facing the circumstantial distress, meaning the hard facts he had to deal with, that raised a halakhic idea for him which, once it came up, stands on its own. And it’s not justified by need—well, I have no choice, basically it’s not so logical but I have no choice because there’s such distress here that I have to go down a strained path. Those are agenda-considerations of a decisor, but I’m saying that doesn’t interest me as a learner. But if he tells me, listen, the distress caused me to roll up my sleeves and look—to turn over every stone to see whether there was another interpretive option—and suddenly he found another interpretive option, and he actually 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 the tests of justification and not only the tests of discovery. So from my perspective, now I ask myself: is this a halakhic thesis that holds water? Does it fit 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 hardships and the practical problems. But there, the circumstances and practical problems were not the reason for the ruling; they were the trigger that led me to discover an option that is the reason for the ruling. And that option is a conceptual option not connected to the circumstances; it’s only that without the circumstances I wouldn’t have looked for it and I wouldn’t have found it.

Now I remember that I spoke about this in the context of the book by Yitzhak Gilat, Chapters in the Development of Jewish Law. I said that this book stirred up 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 from Hebron, a yeshiva student type, and then he became a professor of Talmud and wrote a book about how Jewish law evolves and develops and responds to circumstances, and everyone screamed about it. I was in Bnei Brak, I remember—what a heretic and an apostate, and that was the atmosphere there. They thought, for example—he has a chapter on the Sabbatical year nowadays. He shows that once they reached the conclusion that the Sabbatical year nowadays is rabbinic, that only happened at the point when the hardship began after the destruction of the Temple and there was economic distress in the Land of Israel. Then they reached the conclusion that the Sabbatical year nowadays is rabbinic, and therefore one can be lenient in various ways. He shows this through the archaeology of the passages—that earlier passages don’t raise such a possibility and later passages do. And he dates them, and he tries to show that the context was apparently some economic distress that arose there. Now the question is which of two possibilities he was saying there. One could say, okay, because of the distress, therefore we invented that the Sabbatical year nowadays is rabbinic and said okay, now we can be lenient even though we don’t really think it’s true. That is dishonest. You can say: on a rabbinic level I permit the laws of the Sabbatical year. A rabbinic enactment because of hardships—sometimes, in certain circumstances, you can do that. But you cannot say that the Torah-level law is that the Sabbatical year nowadays does not apply, that it is rabbinic. That is the essence of the law, not just a response to hardship. On that criticism, I agree. If that’s what he had been saying, I think it would be wrong. That is not a correct halakhic statement. But he didn’t say that. When you look there—and he too was a yeshiva man—what he said was that the hardship caused the sages to look for interpretive and decisional options that previously hadn’t been on the table. Nobody thought the Sabbatical year nowadays would be rabbinic because there was no reason to examine whether it depended on this or not. Now when you are looking for grounds to be lenient because you need to—there is distress here—and that was the reason, I have no problem accepting that. But once that’s the reason, why did you ultimately decide that way? You decided that way because you actually have a real derivation. You’re willing to stand behind it on its own merits. It’s a correct reasoning; it comes out of the verse, it comes out of an exposition, whatever. You found something previous generations hadn’t thought of. What caused you to find it? The hardship. But the hardship is not the reason you rule that way. The hardship is the reason you looked for a halakhic mechanism, but the halakhic mechanism holds water on its own. Now there’s logic to it, and that can be relied on even today. That already belongs to study, not to use. Because now a new halakhic approach has been uncovered, and at this point I discuss it as a halakhic approach—the Sabbatical year nowadays is rabbinic. It holds water, it’s correct—at least according to certain views it’s correct—and then I study it on its own terms, without connection to the hardships and all sorts of other things. Okay? So when you look in the book there you’ll see that this is what he said; he did not say the previous version. And for him, the hardship was not the reason for the ruling; the hardship was the reason to look for an interpretive option that had not existed before, because before there was no motivation to look for it—they hadn’t labored over it.

I know this from myself, when I’m in a place where I’m acting as someone’s advocate. I also told this once before: I’m supposed to go soon to testify in some court, with a halakhic opinion and a meta-halakhic opinion, about a Pri Nir factory that makes tomato paste. And on Passover a few years ago, it turned out there was citric acid there, which is something that carries a suspicion of leaven. They didn’t know—the factory didn’t know, and the supervising rabbinate didn’t know—but afterward it turned out that there really was citric acid there with a suspicion of leaven, produced from wheat, doesn’t matter, there was some suspicion of leaven there. So there was a class-action suit by customers who want compensation. They fed them leaven on Passover. And they asked me for an opinion on the damage caused—according to the conception of Jewish law or the Torah, what damage is caused to a person who ate such leaven, when he didn’t know it was leaven, and the supplier who gave it to him also didn’t know it was leaven—was any damage caused? Is there a tort claim? Okay? So they need an opinion. It’s not halakhic, that’s not the right wording; it’s a meta-halakhic opinion. Jewish law doesn’t talk about damages like that. Jewish legal thought—even that’s not quite it; it’s more like Jewish thought. Imperceptible damage is economic; imperceptible damage means you turned something into a prohibited object, it can’t be used, so you lost it. But here they had already eaten it, so that’s not the issue. They ate tomato paste, everything’s fine, they got the benefit out of it. But still, they ate something forbidden. The question is what damage there is in that. Now never mind—I’m only saying this as background. What I meant to say is that I suddenly checked myself, because the one who approached me was Pri Nir’s lawyer, whom we know. So he asked me for such an opinion. Now I checked myself, just for the sake of it, because I suddenly noticed that I was digging under the ground for reasons why there is no damage here, because I belong to a certain side. And there’s no way around it—it biases you. They expect such an opinion from you; he also paid me for it. It was work; not a small amount of work, much more than I thought. So the person is paying me for an opinion for his side. What am I going to tell him? I told him in advance: listen, I’m going to write what I think. Meaning, I’m not going to write what you ordered. That’s what I told him—I made that clear. But inside myself I saw that I was trying to turn over every stone to bring more and more arguments for why there really isn’t damage here. And that’s just how it is. How do psychologists explain this? When psychologists come to give an opinion, or psychiatrists come to give an opinion in court—the psychiatrists for the defense somehow reach the conclusion that it was an irresistible impulse, and the psychiatrists for the prosecution reach the conclusion that he was responsible for his actions and that it was really a decision. What happened? So you can say, well, I chose—I took various psychiatrists and selected the ones who say what I say—but that’s not how it works. Usually people—it doesn’t work that way. The psychiatrist you hired is the psychiatrist who will testify in your favor. It almost never happens that you really have to choose among them. Otherwise, prosecution and defense could take a pool of psychiatrists together, pay all of them, they’d issue opinions, we’d choose these opinions and you’d choose those opinions. That’s not how it works. You take a psychiatrist who comes from your side, and he’ll show you all the arguments in favor of your side. And he takes a psychiatrist for his side, and he’ll show him all the arguments for his side. And by the way, that’s not so terrible. As long as the psychiatrists are not lying, but are raising all the points—there’s no clear-cut decision here—but they raise all the points for that side. Now the judge will have to decide which side is more convincing to him.

Like the work of a lawyer. Yes, we also talked once about this issue, that the person who most needs the lawyer is actually the judge. Right? It’s obvious. Because the lawyer does the work for him. Meaning, the lawyer basically looks for all the legal arguments for why his client is right, and the lawyer for the other side looks for all the legal arguments for why the other side is right. And then he saves the judge the effort of searching for all the reasons and sources and everything. You just have to check which of these two claims is right in your opinion. They do the searching and the initial analysis and everything for you. Because each one is like “this one chooses one judge and that one chooses one judge.” In the passages they really deal with this among the medieval authorities (Rishonim): this one chooses a judge for himself and that one chooses a judge for himself. Why do the 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—as long as it isn’t conscious. Meaning, you don’t omit things. If you omit things that go against you, you’re being dishonest. That’s forbidden. But if you search, turn over every stone to find arguments in favor of your side, and the argument really is a good one—meaning, it professionally holds water—you are not betraying your role. That’s perfectly fine. The other side will balance it, and the judge will have to decide which of the two sides is more convincing to him.

[Speaker D] Can a lawyer conceal it even if his client admits he committed the murder?

[Rabbi Michael Abraham] That’s something else, because facts that come to him from his conversation with the client are protected by attorney-client privilege, and that’s simply for technical reasons, because otherwise the system couldn’t function. On the principled level, I think a lawyer is not allowed to conceal facts that are just ordinary facts—outside attorney-client privilege, no? I think so.

[Speaker G] By the way, in practice—

[Rabbi Michael Abraham] Even the lawyer?

[Speaker G] Yes. In practice, a judge doesn’t listen either to the psychiatrist of one side or the psychiatrist of the other side, nor to the appraiser of one side or the appraiser of the other side. He brings in, on his own behalf, a psychiatrist or an appraiser, and that’s it.

[Rabbi Michael Abraham] No, the sides do bring their own psychiatrists—

[Speaker G] Just because in the end the court rules according to them.

[Rabbi Michael Abraham] Could be, but I don’t know the practice. I’m saying that when you read about these things, this is how it ought to work. Meaning, with lawyers it definitely works that way. That I know. I’ve spoken with judges. With lawyers it definitely works that way. The lawyers bring you all the relevant arguments for both sides; they do the legal work. The judge has neither the time nor the energy, and he—

[Speaker H] Also worries that he’ll—

[Rabbi Michael Abraham] Miss something, and you can always miss something. When you’re an interested party, you usually won’t miss it. Meaning, you work hard, you look for all the arguments in favor of your side. Now as long as you do it honestly, that’s fine; meaning, the arguments are real arguments. You’re not making things up, you’re not forging sources or precedents, right? We’re not talking about that. But you find all the precedents that fit your side, and that’s perfectly fine. But if it’s extreme, then the judge also brings in an expert. Fine, that’s what I said before about a psychiatrist. But if it’s not extreme—no, but regarding legal issues he won’t bring in an expert. He himself is supposed to be a jurist; he’ll read the arguments and decide what he thinks. And therefore I’m saying, in the legal context this is even more so.

So in this matter I brought my own example. I’m saying, in the end I saw that I have a bias. It’s clear to me that I have a bias. I told him that’s true, but okay—they have their experts. That’s what the court proceeding is for. They have their experts, and I write things that I think are correct. If they raise other arguments and they convince me, I’ll say they’re right too, that those are also correct arguments. I raise all the arguments that can help the side that essentially hired me. And in that sense that’s fine. Meaning, it’s not… there is someone here who balances the matter. Now a decisor has no one to balance it. He is both sides. The decisor is both sides. He represents leniency and he represents truth, whether that leads to leniency or stringency; he has to do the job properly. He can’t say: okay, I’m the attorney for leniency, the attorney for stringency. Okay?

[Speaker H] That’s true, but you have to investigate the facts. You have to investigate.

[Rabbi Michael Abraham] Yes, yes, of course. Now I said—now I’m going to be interrogated about it.

[Speaker H] A decisor is the judge, but the plaintiff and defendant are the ones who come to the decisor.

[Rabbi Michael Abraham] No, a decisor—being a decisor is not a court case. In a court case, two sides come. A decisor is a case where a chicken comes—is it kosher or non-kosher? There are no lawyers here. Now also, by the way, in rabbinical 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. He doesn’t—also in rabbinical courts, the reason they use rabbinic advocates today is often because the judges lack self-confidence. They’re afraid they’re missing things, so they want someone to do the work for them. Though the rabbinic advocates of today won’t really do any work for you.

[Speaker H] The side brings the rabbinic advocate, the side brings the rabbinic advocate, not the—

[Rabbi Michael Abraham] No, sure, but why does the system allow it? In the past it didn’t. It didn’t exist. You tell me what you want—you are a litigant, you don’t have to make legal arguments. The law is me. I’m the legal expert, the judge. You say what you want, he says what he wants, and we’ll issue a halakhic ruling based on what we understand. We don’t need help. If the Rashba had a rabbinic advocate come before him, he would have thrown him down the stairs. I know the law myself—don’t tell me the law. Bring me the litigant. I don’t want to hear you. Bring me the litigant. What do you want? You say there was a loan? Okay. And what do you say? That there was no loan. What evidence do you have? Tell me your evidence. Okay, that’s it, go home, we’ll send you the answer by mail. That’s it, that’s all. I don’t need someone to do my work for me with some legal and halakhic analysis and sources and all kinds of—I know that myself. The Rashba knew it; he didn’t need it. Today there is some fear among judges that they’re missing things, so they too want lawyers to do a bit 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 serious halakhic work. These are guys who learned a bit of the technique; for the most part they don’t really understand. But there are some who do.

[Speaker H] Anyway—but why did they oppose that man who wrote the book about the… today the seventh… the Sabbatical year—

[Rabbi Michael Abraham] Nowadays?

[Speaker H] If the circumstances are such that they require—

[Rabbi Michael Abraham] No, because if the Sabbatical year nowadays is rabbinic, that stays with us. Today we rule that the Sabbatical year nowadays is rabbinic. Now if originally, when that arose, it arose only as a response to the situation, then you are basically presenting all the generations from that period—from roughly the destruction of the Temple until today—as generations that are basically following an incorrect halakhic approach. Because the Sabbatical year nowadays is actually Torah-level, and there they invented some strained method, and that’s not the true law. But today we are no longer under that pressure, or at least some say that we are not under that pressure. If so, why on earth rely on it? If it truly emerged as a response to circumstances, you are not supposed to rely on it in different circumstances. And therefore they insist and argue: no, what are you talking about, this is a halakhic thesis that holds water in itself. But he finished—and what I said is that he said that too. He only argued that discovery comes from the… “having no choice” is the father of invention. Meaning, when you are in distress you are more creative. But creativity does not mean deception or dishonesty. Creativity means that I manage to think of options I otherwise would never have thought of. I know this from myself: if I had not been a party to this matter, there are arguments I would never have thought of, in the case I mentioned. Because you search in that whole direction and then you find all kinds of interesting arguments—correct arguments, in my view. Again, let the judge decide what he decides; in my view they are correct arguments. But I’m not sure I would have come up with 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 this in other judgments—I’ve written a few judgments—and I see that it’s clear that when you have a position, you find more justifications for that position, and that’s fine. Again, I say, that’s fine. As long as the positions you found really do hold water. As long as it relates to the context of discovery and not to the context of justification.

[Speaker H] Can you think what the judge would decide?

[Rabbi Michael Abraham] What? No, that’s his role. I don’t need to think; I raise arguments. Who will decide? I’m not—by the way, in the first instance it was an Arab judge. It’s being conducted in Nazareth. An Arab judge. I wasn’t there, so I wasn’t in the game at all, but he showed me the judgment, and it’s been going on for years.

[Speaker G] What was the ruling… what happened…

[Rabbi Michael Abraham] There wasn’t one; it’s in the magistrate’s court, in the instance… I don’t remember, this is something I did a long time ago, and now suddenly they summoned me for examination. It doesn’t make sense. Why? Because in an appellate instance they don’t hear witnesses. They don’t hear experts either. So maybe it dragged on in some… I don’t remember exactly what happened there already; it was a long time ago. I need to check again.

[Speaker D] There are laws that fall under “It is a time to act for the Lord; they have violated Your Torah.” For example, in Bava Kamma, about writing a haftarah book or reading from a haftarah book—it’s forbidden because it’s not a complete book or something like that. So they ask, why did they permit it? Because it wasn’t possible to write a complete book for every synagogue. But nowadays it seems to me that it is possible. Right. So apparently, if you say it depends on the circumstances, then nowadays there is a prohibition against reading from a haftarah book. Right.

[Rabbi Michael Abraham] So actually in that 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 write the Oral Torah. Now what is in the subtext, in my opinion, of what we do today, is the claim that even today it is correct to write the Oral Torah. It’s not practical to go back to learning it by heart; otherwise we’ll forget it again, and again it will be “It is a time to act for the Lord; they have violated Your Torah.” I’m talking about writing the Oral Torah. Once you’re already writing it, then treat the books of the Prophets as part of the Oral Torah too, and then it is already permitted to write things that are not only the books in their original sense. Understand? And then “It is a time to act for the Lord” continues even today. And actually it renews itself every moment. And that’s the point. Otherwise it really casts a very big question mark over relying on this matter. Now, it’s true that very often arguments of this sort arise only because we no longer want to cancel something that has been practiced for many years. And from that, in my opinion, one has to be careful, because that really is not right. In a place where something needs to be canceled, sometimes it has to be canceled. But sometimes one can cancel stringencies too, not only leniencies. Changes are usually perceived as ways of being lenient. Changes can also be stringent, not only lenient. And the aversion to changes applies both to stringency and to leniency. There is an aversion to changes toward stringency too, because people understand that once you begin to make changes, a door opens in every direction—to Reform and all sorts of things like that. And therefore in some respects there is also an aversion to changes toward stringency, even though many stringencies were added over time. Okay.

Now what I want to do is really to take the bottom line I spoke about: there are certain circumstances that generate positions which ultimately hold water on their own. Meaning, when someone is in a certain situation—a special situation, an extreme situation, whatever—he reaches a certain halakhic conclusion or a certain halakhic position. But that position is not justified by what’s called the defense of necessity. It is not justified by the need or the hardship that had to be solved. The hardship only caused me to discover this option. Now that I have discovered it, I’m willing to stand behind it even without connection to the hardship. Now I will rule this way even in a place where there is no hardship. Were it not for the hardship, I would not have thought of this interpretive or decisional option. But once I had the motivation, I checked and saw that there really is such an option and it holds water. I believe in it. Now I will rule this way in other circumstances as well. That is the difference between a ruling that is a response to circumstances—and then it is not supposed to be relevant to other cases—and a situation where 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 constituted the context of discovery, I have no problem, as long as the result stands up to 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 wrote that has just now come out for Holocaust Remembrance Day. There’s a journal called Oryaita, which is a Torah journal for scholarly Torah articles that has been coming out for quite some time. They put out two volumes on the Holocaust. One volume came out a few years ago, and the second has just come out now. The editor there, who is a friend of mine, approached me because I have an article I wrote about monetary law in the Kovno Ghetto. I wrote it once in Tzohar. And they asked me to expand it a bit and talk more about the principled aspects and publish it there, because it touches on halakhic ruling during the Holocaust. And there the discussion was not about the Holocaust itself, but about after the Holocaust, or what the Holocaust teaches us—not about things in the Holocaust itself. So I really wrote it, expanded it a bit, and wrote an article that bears directly on this point. My argument, basically—the basic argument in the article on monetary law—started from a series of articles in Yated Ne’eman, in its supplement, where a Jew named Rabbi Gibraltar wrote a series of articles about his father. His father was called Rabbi Gibraltar. He was in the Kovno Ghetto. He did not serve in a rabbinic role; he was a businessman, a merchant or something like that, but he was a Torah scholar. He was one of the rabbis of the ghetto. He and the Dvar Avraham—there were several really heavyweight Jews there. After the war he was a rabbi in Italy for a certain period; he died long ago. And his son wrote a series of articles about the ghetto and the Holocaust period—about Kovno Ghetto and what happened there. The things he wrote there were amazing. Most of it was historical, but there were parts that also touched on how they issued halakhic rulings there. And there are very difficult questions there about how they ruled—not just difficult for the decisors. The questions are difficult for us, when we come to study what they did: was it really justified? Was it really a correct halakhic ruling or not? For example, the approach of his father, Rabbi Gibraltar the father, was that in the ghetto there are no monetary laws. It was very extreme: in the ghetto there are no monetary laws. What does that mean? If someone borrowed money from me, the war ended, and afterward he comes and wants to repay the loan. So Rabbi Gibraltar told him: you don’t owe me anything. The money I gave you was not mine. There are no monetary laws in the ghetto. You are exempt. Do you want to return the money? That is an actual practical halakhic ruling: ownership of money in the ghetto has no meaning; there are no monetary laws. Another example: people walked around with coats—it was very cold there, and this was a matter of saving life. Especially when you have nothing to eat and don’t have the fat reserves that help us a bit in this area, it’s much more dangerous. Without a coat, you die. So therefore a coat is life-saving. 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. Just as the Hazon Ish writes about two people walking in the desert and one of them has a flask of water that belongs to him, right? The dispute between Ben Petora and Rabbi Akiva—should they both drink and not see one another die, that’s Ben Petora; and Rabbi Akiva says, “Your life takes precedence over your fellow’s life.” Fine? Meaning, if the flask of water is yours, then you drink. And on this the Hazon Ish asks, and several commentators ask there: can I steal it from him? Theft in a life-saving situation is permitted, so I’ll steal the flask of water from him. So the Hazon Ish writes: this is not theft, it is murder. Even though in principle you are performing an act of theft, and the murder is only some indirect causation, a result that will happen indirectly. Under the usual halakhic definitions, that is indirect causation; it is not murder. It is theft— theft that indirectly can lead to loss of life. The Hazon Ish argues as a matter of Jewish law that in such a situation this is called murder, not theft. And therefore it is forbidden—you are forbidden to take the flask of water; you have to die, “be killed rather than transgress.” It seems to me that according to Rashi’s view there is “be killed rather than transgress” even for theft, and we spoke about that. But according to the view of most medieval authorities, where that is not so—there is no “be killed rather than transgress” for theft. So he said the same thing there. But Rabbi Gibraltar says: what happens if a certain Jew dies and he has a coat? Then not everyone who sees the coat can just take it. There is no inheritance. Meaning, the sons—even though they will die without the coat, and that doesn’t matter—they do not take precedence over anyone else, because the coat did not belong to the deceased; he was just wearing it. Meaning, it was not his in terms of ownership, but only in his use. So as long as he was using it, if you took it from him, you were murdering him. But once he died and no longer needed it, this coat is ownerless. Meaning, it does not pass by inheritance because it did not belong to the owner. This is really an entire halakhic construction. There only flashes of it appear; he didn’t give a complete presentation of the matter. I also don’t know whether he himself had a full presentation of it. He described cases; it was a historical article, not a halakhic article. But within the things he says, a certain picture is spread out: Rabbi Gibraltar had a very ordered and precise halakhic doctrine—when yes and when no, what yes and what no—within the ghetto, in some completely insane world.

Now there was a response article there by some Jew who deals with monetary law, some judge or decisor who specializes in monetary law, and he said, okay, in the ghetto at that time he probably had no books and no resources, so I’m not judging him, but it’s not correct. It doesn’t hold water. There’s no such thing; there are always monetary laws.

[Speaker F] What was his argument for why there shouldn’t be monetary laws?

[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 recounted what his father did. He didn’t go into—it wasn’t a halakhic discussion, it was historical. It was a historical description of what happened there. And there are amazing things there, and halakhic questions at every single step. There were the Jews of Janova there. It was a town where they murdered everyone, and there was some offer proposed there—meaning, it was possible for the Jews of Kovno to pay an enormous fortune to some Ukrainians there, I don’t know exactly what, as a bribe so that they would release the Jews of Janova. They themselves did not have enough money for this. And then the Jews of Janova would be released and join the Kovno Ghetto, and of course then everyone would die of starvation because there wouldn’t be food even for the ghetto Jews, and now if you add another whole community of people, there’s no—it’s… everyone will die of starvation. Now not only that: I need to pay the money to release them and bring them to me, and by that I am essentially almost certainly sentencing many in the community to death, at least many in the community—maybe not all, but many in the community, including the Jews of Janova themselves. And the question is whether this should be done, whether it is even permitted, maybe it is forbidden. An amazing halakhic question, fascinating even on the analytical level. I assume they themselves did not find it all that fascinating.

[Speaker H] No, no, but that conception comes from the fact that we are all going to die sooner or later. Meaning, when you take a perspective—but—

[Rabbi Michael Abraham] Therefore it’s preferable that they do it.

[Speaker H] Since you’re going to die, then I know you won’t return it, meaning—

[Rabbi Michael Abraham] No, I didn’t understand.

[Speaker H] Because one takes a loan from another, and the second one doesn’t need to return the loan. Why? Because from the outset both know they’re both going to die. So what? My heirs will return it—what do you mean? No, as if you know in advance there are no heirs.

[Rabbi Michael Abraham] If my father took a loan, I have to return the loan.

[Speaker H] They—they think that all the Jews, all the—

[Rabbi Michael Abraham] No, no, I don’t think the claim was a factual claim that everyone will die and therefore—because then that means there is ownership, and when they die there won’t be anyone to return it. Okay, fine, but meanwhile there is ownership. Let’s see what happens. I don’t think that’s a sufficient basis to say that already now there is no ownership.

[Speaker H] That’s what I heard, that that’s the basis. I don’t know, I wasn’t impressed.

[Rabbi Michael Abraham] So, no, it doesn’t seem that way to me. In any event, there were all sorts of completely crazy questions there. By the way, Rabbi—the Dvar Avraham, yes? Rabbi Avraham Kahana Shapira, Sender Kahana Shapira, I think he was a relative of Rabbi Avraham Kahana Shapira from Merkaz HaRav, maybe his cousin or something like that, I don’t remember. So he was basically the rabbi of the ghetto. Truly an amazing 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. That is a death sentence—it’s not just… he gave them that ruling. Because he told them: look, we are going to die in any case. Meaning, no one gets out of here alive. So maybe at least the merit of this stringency in the laws of legumes will cause a miracle to save us. Meaning, it is saving life in reverse. I am allowed to put myself in mortal danger because maybe I will have some providential rescue, because by the natural course of things I am certainly going to die. So the saving-life considerations shift to the realm of the providential. That’s how he ruled for them, as Jewish law. Meaning, Rabbi Ephraim Oshry brings this there in the article. In short, there are fascinating things there on the analytical plane as well, and of course historically these are truly staggering things.

Now, I wrote an article on this issue.

[Speaker I] There they ruled in complete anguish in the Holocaust how to permit things.

[Rabbi Michael Abraham] Of course. Jewish law says: eat any prohibition. What do you mean, pork? You can eat it—not legumes. Obviously. But he says that all of this is when you have a chance of surviving. But in a place where your chance of surviving is only by being stringent in Jewish law, maybe the Holy One, blessed be He, will perform a miracle for you—there it flips. Meaning, there specifically the stringency becomes the obligation of saving life. Not because of the prohibition of legumes, but as a saving-life consideration we will be stringent regarding legumes. In short, that was his consideration. He said it as a practical ruling; he forbade it. Gentlemen, today we can say this as a nice sermon, but he forbade the yeshiva students there from eating legumes. Meaning, he imposed a death sentence on them. Meaning, he said this as practical Jewish law; these were not homiletic flourishes. Today I can say this as a nice thought—what do I care, I can say it for free, it costs me nothing. The man said it as practical Jewish law, meaning—and he had authority there. Meaning, once he said it, that’s what they did. He also ruled, by the way, that they should pay for the Jews of Janova. They paid the money to free the Jews of Janova, and all the Jews of Janova joined them, and later, many were saved—both Janova and they themselves. Even though it was obvious that this was suicide, the Judenrat opposed it, everyone opposed it. And the Dvar Avraham said: there is no such thing, we are paying the money, period. Meaning, there are things there that are really hair-raising. 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 forcefully: the question whether you issue a halakhic ruling because that is what you think, or whether you issue a halakhic ruling as a response to circumstances. And then that’s fine—I have no criticism of you in those circumstances. But the question is whether this teaches me anything for other circumstances in which I find myself. And that’s not a simple question.

Now, I argued in the article that his criticism was incorrect. As far as I’m concerned—I wrote it in Tzohar, not in Yated Ne’eman, of course—as far as I’m concerned, the description of what happened there in the ghetto is testimony. It’s not a position that I can now begin 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 just talking into the air. The one who is inside the situation is the one who has to decide what to do. And if he said this, then he is right. And now I have 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 could be that it doesn’t, by the way. And if not, I still say that he was right. But then apparently the ruling is a response to circumstances. To me that says nothing. Meaning, it won’t join the Shulchan Arukh, as I said earlier with Professor Haym Soloveitchik. But if the circumstances revealed to him… another halakhic option that I didn’t discover and no one else discovered, because we simply were never in such insane circumstances—but he, who had the “privilege,” in quotation marks, to be in those insane circumstances, discovered a halakhic option that otherwise we would never have thought of—now after he discovered it, that is an option that can join Jewish law, if I really do find some sensible justification for it, of course. That’s what it depends on. If I don’t find one, then maybe there is one and I didn’t find it, fine. But if I do find one, then I definitely don’t care that the circumstances were extreme, because the circumstances were only the trigger that generated this halakhic position. But now I claim that it holds water.

[Speaker J] Why doesn’t that leave open the possibility that he was mistaken? Theoretically there’s also a possibility he was wrong.

[Rabbi Michael Abraham] No, there is a possibility he was wrong, fine. I’m only saying that I begin with the assumption that he knows better than I do what is right to do in those circumstances. All I can do now is see what logic stands at the basis of his words—either I’ll manage to find it or I won’t. And if not, then apparently it was correct only on the practical plane, on the plane of the ruling, of the responsum, not on the plane of the Shulchan Arukh, and then it won’t enter the Shulchan Arukh. I argue that it should also 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 about a situation in which there are—and this really is, in my view, a very interesting state between the two options I described earlier—two people who are in an elevator that has detached, it is crashing to the floor, it’s on fire, they will die within a second, no one is going to rescue them from there. They are certainly going to die, okay? Within a second, two seconds, they’re gone. Now both of them are inside the crashing elevator, and one of them has a pen in his pocket—sorry for the triviality, okay? The other says to him, please give me the pen, I want to write a will. He has some way and something to write, some final note. No way—it’s my pen, I don’t want to give it to you. Is that theft?

[Speaker D] You could say this is like saving something from the lion and from the bear. Huh?

[Rabbi Michael Abraham] No, but that’s already like something swept away by the sea. But in those two seconds, it’s still mine. After that it’ll be something swept away by the sea; suggest that afterward.

[Speaker D] No, because with saving from the lion and from the bear, even though the sheep still hasn’t been torn apart, since it’s going to be torn apart and I take it, then that’s 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] Of course. Because right now I’m the owner. The fact that it’ll be torn apart afterward—fine, it’ll be torn apart afterward. You can’t save something from future destruction at my expense when right now I have a right to use it. Okay? I say: 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? That’s my right; it’s my pen. Seemingly that’s outright theft, right? Now, I don’t know—I wasn’t in that situation, and I hope I never will be. But someone who is inside that situation, I can absolutely understand that when he reads the situation, he says: forget the nonsense, there’s no ownership in a situation like that. There’s no ownership in a situation like that; ownership lapses. Now, what should you call it? Call it a response to extreme circumstances, or call it a halakhic thesis that really holds up? It’s a halakhic thesis that holds up for extreme circumstances, but in such extreme circumstances I claim this ought to be written in the Shulchan Arukh. The Shulchan Arukh ought to say that if someone is in circumstances like that burning elevator, there is no ownership. And then if

[Speaker E] If there’s no ownership, then there’s no theft either? What? Why shouldn’t there be ownership?

[Rabbi Michael Abraham] Because it’s obvious that in such a situation you don’t derive anything from the 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 that it simply doesn’t belong. It simply doesn’t belong. Now afterward I also wrote some more orderly reasoning, with Rabbi Shimon Shkop, with the jurisprudential theory, where Rabbi Shimon Shkop says that the whole “do not steal” prohibition and all monetary prohibitions are fundamentally based on what he calls the laws of justice, on some social recognition, some societal validation of acquisitions. Meaning, what belongs to whom, and how ownership is transferred, all that the Torah does not determine. Society determines it; the legal system determines it. Once we establish 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 several proofs for this. I argue that if you adopt this perspective of Rabbi Shimon—which I completely agree with even on the halakhic level independent of the Holocaust—then the next step is basically to say what Rabbi Gibraltar said. I think that’s the justification. And again, I don’t care right now whether that’s what he actually thought in practice, but that’s the intuition behind the thesis that says: I understand, in a situation like this there are no monetary laws; we’re in a burning elevator. In two more seconds we’re all dead. What does ownership of property even mean? It’s trivial nonsense. What do you mean? It’s like the Sages say about a shoelace: one must be killed rather than transgress. Where did they get that from? From reasoning. In such a situation it’s simply obvious that there’s no such thing as giving up on anything. Sometimes there are situations where, when you’re in an extreme circumstance, you understand what is demanded of you in that circumstance. It’s not because you have this source or that source; rather, it’s clear to you that this is what Jewish law requires. Someone on the outside can think according to the accepted halakhic modes of thought, according to sources and according to reasoning, and that’s all true. That’s why I said that from my perspective, a statement by someone who was inside a situation so far removed from me is testimony. It’s not something I argue with. I’m just trying to understand how to plant it within the halakhic vineyard, yes—how to bring it in, how to integrate it into halakhic thinking. If I succeed, it will join the Shulchan Arukh. Why? Because inside the insane situation he was in, that was the trigger through which he discovered this halakhic approach, something we otherwise would never have thought of. But once he discovered it, it becomes a correct and universal halakhic approach for extreme situations. And then the claim is that now there is a new halakha. In very extreme situations there are no property laws, no ownership. Okay? It becomes universal Jewish law; it’s no longer just a response to a particular case. It has moved from responsa to the Shulchan Arukh. Now it’s no longer responsa, no longer a ruling on a case. It’s part of the Shulchan Arukh—just a part of the Shulchan Arukh that deals with circumstances of this kind.

[Speaker H] In practice, the halakha doesn’t change; the acquisition changes. What? The halakha doesn’t change, rather the acquisition changes. The halakha still… if there’s no acquisition…

[Rabbi Michael Abraham] Exactly. Meaning, the prohibition of theft remains exactly as it is; it’s just that no one is the owner, so if you take it from him you won’t be a thief. They didn’t abolish the prohibition of theft.

[Speaker H] That’s what Rabbi Shimon Shkop said—that there is…

[Rabbi Michael Abraham] Exactly. The underlying structure changed. Why? Because in society… after all, if indeed all property law, the concepts of ownership and “do not steal,” are rooted in a legal determination of 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 state there is ownership? Ownership requires enforcement, requires institutions, requires religious courts, requires police, yes, agents of the court who enforce the court’s ruling. Without that there is no ownership. Without an effective legal system you can’t speak about ownership. For example, I claim that if there were a man and a woman on a deserted island, okay, you can’t effect betrothal with money.

[Speaker D] Maybe you can’t effect betrothal at all.

[Rabbi Michael Abraham] Maybe you can’t effect betrothal at all, yes—I argued that too. But in any case, you can’t effect betrothal with money. Because ownership of that money is neither mine nor hers. Ownership of money exists only in a place where there is a society that defines ownership and what is permitted and what is forbidden and how ownership is transferred; it requires society. For a solitary individual there is no ownership. A lone person has no ownership over anything on the island, even if he performs all the legal acts of acquisition—he lifts it up, and heaven and earth are two witnesses if you also want witnesses; you don’t need witnesses for acquisition, okay?—and he acquires it. He still won’t be the owner. He won’t be the owner. If afterward someone else is born, that person can take it from him. Why? Because ownership is a social legal institution. That’s what Rabbi Shimon Shkop teaches. Therefore he says: 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 society, in emergencies, expropriates private property for the sake of the collective.

[Rabbi Michael Abraham] No, that’s a simple claim in Jewish law. Meaning, if society decides—if a religious court were sitting there and declared it ownerless, then certainly that would be possible.

[Speaker D] No, even without a religious court, you’re saying that because this is

[Rabbi Michael Abraham] such an obvious situation, then basically that means it was rendered ownerless implicitly, but still the court expropriated it. It’s like the Talmud in tractate Bava Metzia on page 47—there Rashi has a very interesting comment: what is circumcised, yes, that same axe that became non-sacred—over what is the misuse of consecrated property there? It becomes non-sacred because of a rabbinic enactment, so who committed the misuse? They make some calculation there that you really can’t attribute the misuse to anyone. Rashi says maybe the court committed the misuse—the court of that generation, which is responsible for the enactment of “what a 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 the court of today is essentially the representative of that earlier court; it is now declaring ownerless the property that they legislated should be ownerless whenever the rule of court expropriation applies. So implicit ownerlessness—he says this is implicit ownerlessness—but I’m talking about something else, much more fundamental. Meaning, the claim is: it’s not implicit ownerlessness. No—the concept doesn’t need to be rendered ownerless; there is no concept of ownership, there’s no need to render it ownerless at all. The concept of ownership collapses from within itself. It doesn’t exist in such a situation. Now, if indeed this is the conception—and I show various implications there, and I also explain Rabbi Gibraltar’s various rulings in light of this conception—I argue that it really holds up. Now, that means that in effect we added a clause to the Shulchan Arukh, but we added a clause to the Shulchan Arukh because Rabbi Gibraltar’s decision was not a concession to circumstances; rather, the circumstances led him to grasp what the true halakha says in that situation. Meaning, he’s not saying that in a case of great need we will waive the laws of ownership. If that were what he was saying, 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 claim that in such a situation, this is truly the law from the outset. It’s not an enactment. From the outset there are no ownership laws; there simply aren’t. It’s not that I made a concession because of distress and so I went with a forced solution. Rather, there are none. Something new was revealed to me, something people who were not in that situation don’t understand and would never have come up with. But after I discovered it, now it exists in the world—just as the Tosafists, in the situation in which they lived, discovered an approach regarding sanctification of the divine name, the laws of sanctifying the divine name. And the sages of Spain didn’t discover that approach because they weren’t in that situation. Or maybe the reverse: they discovered a situation of comfort that the sages of France 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 is such a interpretive option, another interpretive option. Once both have discovered it, now we have two clauses in the Shulchan Arukh, both interpretive options, and now I as a halakhic decisor, in.

Disputes: History and Essence – Rabbi Michael Avraham – Lesson 6

Table of Contents

Summary

General overview

Connection and context in halakhic dispute

The context of discovery and the context of justification

Reducing dispute to circumstantial dependence and its implications

Migo, the Brisker ethos, and “what” versus “why”

Agenda in interpretation, Torah-level laws and rabbinic laws, and intellectual honesty

Responsa, the Shulchan Arukh, practical halakhic ruling, and circumstantial considerations

What joins the halakhic corpus and what falls away from it

The laws of new grain, distress, and the distinction between a circumstantial ruling and an interpretive discovery

Chapters in the development of Jewish law, the Sabbatical year nowadays, and the controversy

Bias, experts, lawyers, and a halakhic decisor who has no one balancing him

“It is a time to act for the Lord” and the continuity of circumstantial leniencies

Holocaust rulings, monetary law in the Kovno ghetto, and turning testimony into law

The Dvar Avraham, legumes, and ruling as risk for the sake of spiritual efficacy

Testimony from extreme situations and their halakhic justification

A burning elevator, collapse of ownership, and Rabbi Shimon Shkop

Moving from responsa to the Shulchan Arukh in extreme situations

Full Transcript

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Table of Contents

Summary

General overview

Connection and context in halakhic dispute

The context of discovery and the context of justification

Reducing dispute to circumstantial dependence and its implications

Migo, the Brisker ethos, and “what” versus “why”

Agenda in interpretation, Torah-level laws and rabbinic laws, and intellectual honesty

Responsa, the Shulchan Arukh, practical halakhic ruling, and circumstantial considerations

What joins the halakhic corpus and what falls away from it

The laws of new grain, distress, and the distinction between a circumstantial ruling and an interpretive discovery

Chapters in the development of Jewish law, the Sabbatical year nowadays, and the controversy

Bias, experts, lawyers, and a halakhic decisor who has no one balancing him

“It is a time to act for the Lord” and the continuity of circumstantial leniencies

Holocaust rulings, monetary law in the Kovno ghetto, and turning testimony into law

The Dvar Avraham, legumes, and ruling as risk for the sake of spiritual efficacy

Testimony from extreme situations and their halakhic justification

A burning elevator, collapse of ownership, and Rabbi Shimon Shkop

Moving from responsa to the Shulchan Arukh in extreme situations

Full Transcript

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