Halachic Thought – 5783 – Lesson 21
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The distinction between a Reform approach and midrashic conservatism
- Conservative midrash, changing facts, and the “bridge principle”
- Resolving a dispute through conceptual Talmudic evidence
- Sensitivity around women’s status and the automatic reaction against discussion
- The definition of a “wicked person” and the distinction between transgression, inadvertence, and halakhic dispute
- The claim that there is no actual “plain-text conservatism” in practice, and sharpening the real point of difference
- The authority of medieval authorities (Rishonim) and the difficulty with always demanding proof
- Critique of “passive omission is preferable”: weighing cost and weighing logic
- The example of an abandoned infant and the claim that there are situations with no safe stringency
- “Maybe you’re mistaken” versus “I have no doubt,” and the parable from Rabbi Yonatan Eybeschutz about following the majority
- The Chazon Ish on an “implausible claim” and shifting the burden of proof
- Interpreting “we do not expound the reason of the verse” through the wording of the verse versus its purpose
- Meiri and “bounded by the norms of the nations” as conservative midrash without explicit proofs
- A confrontation with the reading that identifies Meiri as claiming that Christians are not idolaters
- Compatibility with Maimonides and the Talmud in Bava Kamma 38a: the sanction stems from failure to observe the seven commandments
- Summary of the position of midrashic conservatism through Meiri
Summary
General Overview
The text distinguishes between a Reformer or heretic and midrashic conservatism, and argues that the difference between them is not in the act itself but in the reasoning that connects the act to the continuation of tradition through midrash. The text presents a halakhic example of validating women as witnesses in order to show that conservative midrash requires not only a factual change but also a “bridge principle” that links facts to norm, and that disputes about Jewish law are usually disputes about the midrash rather than about the facts. The text argues that when there is no decisive proof, one cannot simply “play it safe” through passive omission is preferable, because there are costs in both directions, and it proposes that both the cost consideration and the logic consideration shift the burden of proof onto the one who claims “maybe there is another reason” without offering a refutation or an alternative. The text presents Meiri as a clear example of midrashic conservatism without explicit proofs, through his claim that many laws regarding gentiles do not apply to “nations bounded by the ways of religion” and “bounded by the norms of the nations,” and explains that the underlying principle is moral quality rather than the cancellation of the definition of idolatry.
The distinction between a Reform approach and midrashic conservatism
The text states that a heretic or Reformer changes behavior without explaining how the change continues the tradition, like a person who puts on a parka “because he’s cold” without any traditional justification. The text states that a midrashic conservative may make the exact same practical change, but remains committed to tradition and therefore explains that the new act is an updated application of the original principle, like moving from a bathing suit to clothing suited to the weather. The text argues that conservatism cannot be identified by the act itself, but by the presence of a midrash that explains the fit with tradition and allows legitimate interpretive debate within commitment to Jewish law.
Conservative midrash, changing facts, and the “bridge principle”
The text uses the example of validating women as witnesses and presents a conservative midrash according to which the Talmudic disqualification of women stemmed from lack of education or lack of involvement in social and economic life, and therefore a change in reality requires a change in the application of Jewish law. The text states that pointing to a factual change is not enough without the “bridge principle” that formulates the normative assumption connecting facts to law. The text states that someone who disagrees is not necessarily less conservative, but may instead offer a different midrash, such as an inherent disqualification or a scriptural decree, and the debate focuses on the assumptions of the midrash rather than on the facts.
Resolving a dispute through conceptual Talmudic evidence
The text brings the example of the disqualification of a wicked person from testimony and presents a dispute as to whether the disqualification stems from suspicion of lying or from an inherent personal disqualification, and explains how one brings evidence from halakhic structures such as testimony regarding a woman and the leniencies there. The text argues that if a wicked person is disqualified because of concern for lying, there is no logic in accepting him in testimony to permit a woman to remarry, whereas if the disqualification is formal, one may be lenient in such testimony just as one is lenient with formal disqualifications. The text suggests that even in the disqualification of women, one can bring evidence from testimony regarding a woman to decide whether the issue is reliability or admissibility, and presents this as a normal mode of conceptual discussion that does not make the proposal “Reform.”
Sensitivity around women’s status and the automatic reaction against discussion
The text argues that with midrashic proposals in certain areas, such as the status of women, halakhic discussion is quickly blocked by labels like “Reform” and “set aside out of disgust,” whereas similar arguments in other fields are accepted for discussion. The text states that blocking the discussion carries “heavy costs,” not only moral ones but halakhic ones as well, because if the correct ruling is to validate, then disqualifying leads to a “distorted judgment” and runs against “Justice, justice shall you pursue” and “Judge your fellow with righteousness.”
The definition of a “wicked person” and the distinction between transgression, inadvertence, and halakhic dispute
The text presents the definition of a wicked person as someone who intentionally violates a prohibition punishable by lashes, and not someone who sinned inadvertently or someone who simply does not know, and it raises the discussion of someone like a captured child raised without knowledge. The text states that someone who acts according to his halakhic position is not a wicked person even if others prohibit it, and that a well-grounded dispute does not turn one side into “wicked people,” just as with the School of Hillel and the School of Shammai. The text distinguishes between an open dispute and a binding ruling such as a decision of the Sanhedrin, in which case someone who continues against the ruling enters a different category.
The claim that there is no actual “plain-text conservatism” in practice, and sharpening the real point of difference
The text argues that there is no true plain-text conservative in the world, because everyone adjusts Jewish law to reality to some degree, and therefore the distinction is not whether one is willing to consider reality but how one decides. The text locates the decisive difference in cases where there is no evidence: a midrashic conservative is willing to adopt a reasonable midrash even without decisive proof, whereas a simplistic conservative insists on leaving the law as it was until proofs are brought. The text argues that where there is evidence from the Talmud, medieval authorities (Rishonim), or later authorities (Acharonim), everyone will accept it, and so the real dispute is over the legitimacy of midrash in the absence of proof.
The authority of medieval authorities (Rishonim) and the difficulty with always demanding proof
The text argues that the demand to bring proof for a midrash is inconsistent, because many of the proofs are themselves statements of medieval authorities (Rishonim) such as Ran, and that authority himself adopted a reading without prior proof, simply out of his understanding of the passage. The text rejects the idea of “informal authority” as a substantive solution to the question of how an interpretation is accepted without proof, and argues that what is really being recognized is the rational work of human judgment and understanding of the Talmud. The text presents the tension between a view of “scriptural decree” and “we do not expound the reason of the verse” and an interpretive proposal that offers a reason linking the law to reality.
Critique of “passive omission is preferable”: weighing cost and weighing logic
The text presents the simple claim that “whoever wants to change must bring proof” and the reliance on the prior presumption, but argues that this is not precise because here there is no option to “play it safe.” The text argues that both directions carry a cost: validating when it is forbidden is a violation of the Torah’s will, and disqualifying when it is permitted is also a violation of the Torah’s will and also issues a distorted judgment. The text argues that the cost consideration may make the tendency toward simplistic conservatism unjustified, and that the logic consideration requires not accepting “maybe there is another reason” unless an alternative or a refutation is actually proposed.
The example of an abandoned infant and the claim that there are situations with no safe stringency
The text brings the passage of an abandoned infant in Ketubot and the question in a fifty-fifty case, and shows situations where the laws of doubt do not provide a solution of “stringency” because each side creates a different prohibition. The text brings the example of Torah study, where a Jew is obligated and a gentile is forbidden, and argues that in such a case there is no way to “play it safe,” and one must therefore decide without hiding behind the rules of doubt. The text uses this to argue that in disputes about midrash where there is no evidence, there is no built-in advantage to simply preserving the current state.
“Maybe you’re mistaken” versus “I have no doubt,” and the parable from Rabbi Yonatan Eybeschutz about following the majority
The text argues that saying “maybe you’re not right” is not enough to reject a reasonable explanation when there is no alternative, and formulates the point that the burden of proof shifts onto the one raising the doubt. The text cites, in the name of Rabbi Yonatan Eybeschutz, a reply to a priest about “follow the majority,” according to which one follows the majority only when there is doubt, and if there is no doubt there is no need for the rule at all. The text illustrates this with the law of majority in shops and a piece of meat with a seal, and concludes that rules of doubt are meant for a situation of real doubt, not for creating artificial doubt.
The Chazon Ish on an “implausible claim” and shifting the burden of proof
The text brings the dispute attributed to Pnei Yehoshua and Chazon Ish about who bears the burden of proof when a person’s property causes damage and he claims he guarded it properly. The text argues that the common yeshiva explanation ties this to an investigation into whether liability stems from negligence or from ownership itself, but says this is not accurate according to Chazon Ish himself. The text cites Chazon Ish’s idea that an implausible claim weakens the presumption of possession and shifts the burden of proof, and applies this to the dispute over midrash: the one who offers a reasonable explanation holds the position unless a refutation or an alternative is presented.
Interpreting “we do not expound the reason of the verse” through the wording of the verse versus its purpose
The text argues that “we do not expound the reason of the verse” is said only about things explicitly written in the verse, not about laws that emerge from rabbinic exposition. The text raises a difficulty from the verse “He shall not multiply wives for himself, lest his heart turn away,” where the reason is written, and asks why we do not then say that it is permitted to multiply righteous wives. The text suggests an explanation according to which, when the purpose leads to a conclusion that does not fit the wording of the verse, the assumption is that the reason or its application has been missed, because the verse is correctly worded; whereas when the explanation fits the wording, there is no obstacle to a purposive interpretation.
Meiri and “bounded by the norms of the nations” as conservative midrash without explicit proofs
The text presents Meiri as claiming that many laws regarding gentiles do not apply to the gentiles of his time because they are “bounded by the norms of the nations” and “from the nations bounded by the ways of religion,” and formulates this as “like a full Jew for these matters” regarding lost property, mistaken payment, and other such matters. The text cites Bava Kamma 113b in Meiri, where he distinguishes between idol worshippers who are not bounded by the ways of religion and nations bounded by the ways of religion, and notes that in the absence of desecration of God’s name there is no obligation to return lost property or mistaken payment, whereas where there is desecration of God’s name one is obligated. The text argues that Meiri repeats this principle in dozens of places throughout his novellae rather than as a one-time general declaration, and therefore it is not reasonable to say this was written merely out of fear of the censor, but rather as a systematic view.
A confrontation with the reading that identifies Meiri as claiming that Christians are not idolaters
The text describes modern criticism, including the claim that Meiri wrote this because of censorship, and argues that the repeated and scattered structure of his remarks does not fit that explanation. The text cites Yaakov Katz, who asks why Meiri does not then permit ritual objects or intermarriage, and describes attempts at psychologizing explanations. The text offers a solution according to which Meiri is not claiming that Christians are not idolaters, but rather that they are enlightened idolaters with moral refinement, and therefore interpersonal laws depend on their morality while ritual prohibitions remain in place because they are tied to idolatry itself.
Compatibility with Maimonides and the Talmud in Bava Kamma 38a: the sanction stems from failure to observe the seven commandments
The text explains that Meiri does not need to present himself as disagreeing with Maimonides, because Maimonides too ties monetary discrimination against gentiles to the absence of “human traits” and not necessarily to the definition of idolatry. The text quotes Maimonides’ commentary to the Mishnah on Bava Kamma 37b, which compares someone lacking human traits to an animal that may be slaughtered, and presents this as the reasoning that one who does not stand within human norms is not included in the category of human being. The text cites Bava Kamma 38a, “He arose and permitted their property to Israel,” because they did not observe the seven Noahide commandments, and concludes that when the nations do observe moral norms, the basis for permitting their property falls away.
Summary of the position of midrashic conservatism through Meiri
The text states that Meiri performs a classic move of midrashic conservatism across many laws without bringing explicit proofs that those laws depended on the moral quality of gentiles and not only on their cultic status. The text explains that Meiri acts מתוך a reasonable proposal and places the burden of proof on the one who opposes it, in line with the principles the text develops regarding logic, cost, and the impossibility of hiding behind “passive omission is preferable.” The text concludes that Meiri demonstrates how a midrashic conservative adopts a reasonable midrash even without proof, and puts the opposition to the test of offering an alternative or bringing evidence.
Full Transcript
[Rabbi Michael Abraham] Good. Last time we discussed the issue of changes in Jewish law, and I want to continue that line of thought a bit—we were in the middle of it. I distinguished there between a few possible attitudes toward a given tradition. Jewish law is the example, but the discussion is actually a more general conceptual one. Among the different approaches, what matters for us right now are two: the Reform one and midrashic conservatism. Okay? Or a Reform heretic—I’m not getting into that distinction right now—versus midrashic conservatism. And I said that the difference is, if we go back to the bathing-suit example, that in the case of a heretic or a Reformer or something like that, he puts on a parka because he’s cold. He doesn’t explain what our forefathers meant and why now it should be applied differently. He’s cold, and that’s it. But the midrashic conservative also puts on a parka. In terms of behavior it looks similar, but his reasoning is different. The reasoning is that he says our forefathers actually wore bathing suits because that was the clothing suited to the weather. For us, when we’re in a cold region, the clothing suited to the weather is a coat. So that’s why I wear a coat. What’s the difference? After all, both of them are wearing a coat. The difference is that the second one explains why wearing the coat is actually the continuation of the tradition we received from our forefathers. He is committed to that tradition, and therefore he has to explain why what he’s doing fits the tradition, continues the tradition. In contrast, the heretic or the Reformer or someone who isn’t committed—he won’t explain what our forefathers did and why now it’s different. I’m cold, so I put on a parka. He doesn’t bother explaining why what he does continues what his ancestors did. Which means he isn’t committed to it. Not fully committed to it. Yes, we talked about some small differences, but that’s less important for our purposes here. So in the end, if I want to examine whether someone is conservative or not, I can’t examine that through what he does. Because what he does doesn’t necessarily indicate whether he is conservative or not conservative. The question is how he justifies what he does. Meaning, if he brings a midrash—what I called a midrash, meaning this explanation I just mentioned, yes, clothing suited to the weather—then he is conservative. You can agree with the midrash, you can disagree with the midrash, but in principle he has a conservative approach, he is committed to tradition. Because the fact is that he explains why what he does, in his view, fits the tradition. You can say that in your opinion it doesn’t, fine. But from his perspective—and this is like any dispute—there’s a dispute between interpretations, and that’s a dispute. But if someone argues with me, I’m not going to say he isn’t committed to Jewish law; he simply disagrees with me about the interpretation of Jewish law or what Jewish law says. Okay, there are lots of disputes. But it’s clear that as long as you present a midrash, as long as you explain why what you do fits Jewish law, you are committed to Jewish law. Okay? As opposed to someone who doesn’t bother explaining. He just says, okay, it doesn’t suit me now, so that’s it, I’m not doing it. So the important point here is the existence of the midrash. And the midrash is basically the indication that we’re dealing with a conservative, even though he may be making changes that seem to us, on the face of it, Reformist, heretical, or however you want to describe it.
Now I want to talk about the significance of this midrash. Yes? When I say you need to wear a coat because our tradition is that one should wear clothing suited to the weather. Or, if we go back to the halakhic example, I used the halakhic example of validating women as witnesses. Yes, someone raises a conservative midrash and says that the reason the Talmud disqualified women from testimony was that in its time women were not educated or were not involved in social and economic life and so on, and therefore it was hard to rely on their testimony. And I said that simply pointing to that factual change is not enough by itself; you have to add the bridge principle, remember? The principle that tells us: if the facts are such-and-such, then the law is such-and-such. Or in this case, I need to add the principle that says the disqualification of women stemmed from the fact that they were not educated, or were not involved in economic life. Okay? And now I say, fine, that was then, today they are involved, and therefore today they should be validated as witnesses. That’s already a complete argument. You can disagree with its assumptions. Someone can come and say, that’s not true, I don’t think they were disqualified because of that, but rather because there is some kind of inherent disqualification in women. Fine. Okay. A claim. We have a dispute. Okay? But the dispute doesn’t mean that one of us is not conservative. We have a dispute, just as there are interpretive disputes in Jewish law in general. Okay? So I’m basically engaging in conservative midrash, just like with the bathing suits. I’m saying, what the Talmud disqualified was not really women; it disqualified groups that were not involved, that lacked education, were not involved in the economy. Back then that was women; today women are not such a group. Therefore today they are not disqualified. Now there are always exceptions, of course. Even then there were women who were involved, and today there are women who are not involved, and men too. Fine, but Jewish law speaks about the group in general. There are always exceptional cases and one has to discuss what to do with them. In principle, when I explain a law, I explain it regarding the group in general. That’s how legal systems work. Legal systems work with sweeping rules. And there are special cases that need to be discussed on their own merits, whether yes or no, but that doesn’t matter right now. Okay? So in general I think it was true that women in the past were not educated and not involved in life, and today they are. Generally speaking that is certainly true. So there is room for an interpretive midrash, a conservative midrash of this kind. Okay?
What does someone who opposes this change say? Now this is very clear: he obviously won’t oppose the factual description that women in the past were not educated and that women today are educated. Those are facts; it’s hard to argue with them. Okay? So what is he arguing about? We can plainly see that if he is arguing, then clearly there is something else here beyond the facts. What is that additional thing? The bridge principle, or the conservative midrash, right? He says: I don’t think women were disqualified because of lack of education or because they were not involved in the economy. I think it’s a disqualification for other reasons, I don’t know—women are light-minded, I don’t know what, or there’s no explanation, but something else. A scriptural decree, a reason I don’t understand, don’t know, no reason, doesn’t matter right now, each according to his own approach. And then there is a dispute here. And notice where the dispute centers: on the conservative midrash. That’s where the dispute is. Usually the dispute is not over the facts. Many times people argue over the facts just because they don’t understand that you don’t have to argue over the facts in order to be conservative. So he insists on being conservative and therefore argues with me about the facts. But you have to explain to him: you can argue with me without arguing about the facts. Argue with me about my normative assumption, not about the facts. And let’s conduct the debate there.
Now, how do you do that? I think I talked about this—I don’t remember if I did—but if so, I brought the example of the disqualification of a wicked person from testimony. There’s a discussion among the halakhic decisors about why a wicked person is disqualified from testimony. Some say it is because of concern for lying. I don’t trust him—he is wicked, so he may also lie. Okay? I don’t trust him, and therefore he is a disqualified witness. Another possibility: inherent personal disqualification. There is no concern for lying, or even if there is no concern for lying, the wicked person is categorically disqualified. A scriptural decree, no matter for what reason, but not because of the reliability of his testimony. Okay? That’s a dispute, and there are proponents on both sides. Later authorities (Acharonim) discuss it; even some medieval authorities (Rishonim) do, but the later authorities even more.
This dispute is conducted in exactly the same way any halakhic or conceptual Talmudic dispute is conducted. What do you do? You bring proofs. For example, some bring proof that if, say, I find in one of the medieval authorities (Rishonim) that a wicked person is valid for testimony regarding a woman. Testimony regarding a woman means permitting an agunah to remarry—someone says her husband died, so she can remarry. So the Sages were very lenient regarding testimony about a woman. For example, one witness is enough; you don’t need a valid witness, unlike the basic law that “by the mouth of two witnesses a matter shall stand.” A matter of forbidden sexual status, like a monetary matter, normally requires two witnesses. Okay? But in testimony regarding a woman, because of the distress, because of the presumption that she checks carefully before remarrying, whatever, for various reasons like that, the Sages were lenient and allowed the testimony of one witness, and even a disqualified witness—a woman, anything. What about a wicked witness? Is a wicked witness also acceptable?
[Speaker B] A wicked witness is already a different category, because we’re concerned about his reliability.
[Rabbi Michael Abraham] And that’s exactly the question. If a wicked person is disqualified because of concern for lying and we don’t believe what he says, then there is no room to be lenient and accept the testimony of a wicked person in testimony regarding a woman. Because he says the husband died, but maybe the husband didn’t die. If he’s suspected of lying, there’s no room for leniency when it comes to concern about lying. In contrast, if it is an inherent personal disqualification, then it’s a formal disqualification. In principle we do accept what he says, at least simply speaking. Okay? So what? There is only a formal disqualification, that the Torah says we do not accept a wicked person as a witness. Let’s say we don’t want to give such a person that status. A witness is someone whom you receive in religious court, you hear him, you record his words in the protocol, you issue a halakhic ruling based on what he said. That’s a certain honor you give a person. It could be that we don’t want to give that kind of status to wicked people. For example—just throwing out another possibility. Okay, and then it has nothing to do with the admissibility of his testimony. Now if it’s an inherent personal disqualification, then there is room to say that in testimony regarding a woman, because of the distress, we are lenient. After all, we do believe what he says; it’s just forbidden to accept it. So in testimony regarding a woman they were lenient and waived the formal disqualifications. But if it is concern for lying, then it’s not reasonable that in testimony regarding a woman they were lenient about that. If her husband didn’t die, I don’t want her to remarry. All due respect to the distress—her husband has to die in order for her to remarry. Okay? You can argue about that too, by the way, but never mind. I’m bringing this as an example of the kinds of proofs later authorities bring regarding whether the disqualification of a wicked person is due to concern for lying or an inherent personal disqualification.
In the same way, I could discuss the disqualification of a woman. For example, in testimony to permit a woman to remarry, they also accept the testimony of a woman. If a woman comes and says another woman’s husband died, she is believed. So that is, for example, proof that a woman’s testimony is not a problem of reliability—it’s a problem of admissibility. The testimony is inadmissible, not that I don’t believe her. And therefore, if there is room to be lenient or a need to be lenient, then I waive it because it is only a formal problem. Okay? So for example, if someone brings that proof, then there you have it: he has succeeded in showing that the simplistic conservative is right and the midrashic conservative is wrong. Okay? Because I have proofs that the disqualification of women is not because they are unreliable. True, people today are more reliable than they once were, but even back then they weren’t disqualified because of unreliability—after all, in testimony regarding a woman, we did accept them. So if that’s the case, then today too there should be no difference from what was before, because the difference regarding education or economic involvement is irrelevant to the disqualification of women. So again, that is just an example—you can argue about it too—but it’s an example of a proof one can bring to decide this question. It’s an ordinary conceptual question, the kind we discuss in advanced Talmud classes, in analytical study, and you can decide it just as we decide other questions. There is nothing especially problematic here. You can say one way, you can say another, bring proofs, we’ll discuss it, we won’t agree, we’ll vote, whatever—just like any halakhic dispute. There is no reason to panic over this kind of dispute, that’s what I want to say.
Even if the simplistic conservative is right, the midrashic conservative is not Reform. The midrashic conservative is offering a different interpretive proposal. You can accept it, you can reject it, we’ll bring proofs, everything is fine, we’ll conduct a discussion, either we’ll be persuaded or we won’t be persuaded—there is no illegitimate claim here. Everything is fine. Just as someone who says a wicked person is disqualified from testimony because of concern for lying can, for example, say today that wicked people today—wicked meaning Sabbath desecrators—are not suspected of lying, because they are good people; they do not do what they don’t believe in. They don’t believe in Sabbath observance, but they do believe in telling the truth. So because he desecrates the Sabbath, does that mean he will also lie? Why should it? In fact many halakhic decisors on this issue really do say exactly that, even in practice—that wicked people today, their testimony can be accepted, and that there is no concern for lying in this case. Okay? So of course you are assuming that a wicked person is suspected of lying. You can argue about that. But I’m saying: an argument of that sort appears among halakhic decisors in various contexts. But try, just for a second, to raise it with regard to women’s testimony—no discussion will take place. Immediately it’s “Reform,” “set aside out of disgust.” That’s obvious. No discussion will happen. Because the status of women is a very sensitive issue today, and many of the disputes vis-à-vis Reformers or liberals or however you want to call them revolve around the status of women. And then the halakhic decisors suddenly adopted this kind of automatic negative stance—they won’t discuss the proposal on its merits. And I think that’s wrong. As I said in the previous lecture, it comes with heavy costs. If it’s true that a woman should be validated as a witness, there are very heavy costs if you do not accept her. You are issuing a distorted judgment, an incorrect judgment. And that is a halakhic cost, not just a moral cost or a cost in women’s equality or something like that—which are also costs—but I’m saying there is a halakhic cost here. “Justice, justice shall you pursue,” “Judge your fellow with righteousness”—you are actually judging a case in a way that is not just.
[Speaker B] Yes, questions? The question is also what counts as a wicked person—meaning, what was the definition of a wicked person once, and what is it today?
[Rabbi Michael Abraham] The definition of a wicked person is someone who violates a prohibition punishable by lashes.
[Speaker B] So everyone, at some
[Rabbi Michael Abraham] point in their life, has violated or will violate—no.
[Speaker B] Everyone? Someone who violates a prohibition punishable by lashes. Yes, please.
[Rabbi Michael Abraham] No, I don’t think so—certainly not intentionally and deliberately. Someone who sins inadvertently is not a wicked person. We’re talking about someone whose heart is coarse regarding these transgressions, not someone who happened to stumble once.
[Speaker B] And someone who doesn’t know, for example—is that intentional or inadvertent?
[Rabbi Michael Abraham] Someone who doesn’t know? Obviously inadvertent. The question is whether it’s inadvertent or even less than that, like a captured child raised without knowledge—that’s part of the discussion. Yes.
[Speaker B] If we said that sometimes something is permitted according to your position and forbidden according to someone else’s—if I ate a certain part of meat that is forbidden according to your position,
[Rabbi Michael Abraham] then I’m not a wicked person?
[Speaker B] Of course not.
[Rabbi Michael Abraham] Of course I can say that. You are not a wicked person if you eat something that according to your position is permitted. According to your halakhic position, not according to your position because Jewish law doesn’t interest you. According to my halakhic position. Fine—then you have a different interpretation in Jewish law. Does that make you wicked? Of course not.
[Speaker B] Even if it’s against many opinions that are very well established? So what?
[Rabbi Michael Abraham] What, did the School of Hillel think the School of Shammai were wicked? Or the other way around? No. They had a different approach, or they were mistaken, that’s all fine—but the fact that I think he is mistaken doesn’t mean he is wicked. Yes. If, say, there were a ruling of the Sanhedrin that decided this dispute and established the Jewish law, and someone continued to do it, that’s something else. Because then you have to understand that the law has been decided and you can no longer act according to your own view. As long as it has not been decided, there are two opinions here. How can I determine that you are wicked just because I think one thing in Jewish law and you think otherwise? So you can’t define him as—
[Speaker B] a rebellious elder?
[Rabbi Michael Abraham] That’s the significance of a ruling. That question is closed. That’s it—it has been decided.
Now the more interesting question: as I said in the previous lecture too, there is really no such thing as plain-text conservatism. There isn’t. No one in the world is really a plain-text conservative. The greatest Haredim, the greatest conservatives—they are midrashic conservatives. There is no one who does not make considerations about adapting Jewish law to reality. Always. Some do it more, some less, more radically, less radically—it’s a matter of degree. But broadly speaking, everyone makes those kinds of considerations. So there is really no such thing as a plain conservative. But I want to sharpen where the difference still does lie.
I am basically making a conservative midrash. Let’s go back to the example of validating women as witnesses; I’ll use that. So I propose a midrash that says that what the Torah disqualified—what the Sages disqualified women from testimony for, from the Torah, but the Sages disqualified women from testimony—it was because they were not educated. And I say “educated” for short; you can add involvement in life and so forth. They were not educated. Now today they are educated, and therefore I claim that today this law should change. Someone comes along and says to me: no, what are you talking about? Women are disqualified by an inherent personal disqualification, not because of concern for lying. Okay, so now we have two interpretive proposals, right? Wearing a bathing suit, or wearing clothing suited to the weather. Two proposals. And suppose I were to find proofs that women were disqualified because their testimony was unreliable or inadmissible. The simplistic conservative says inadmissible. The midrashic conservative says unreliable, and therefore today, when it is reliable, it can be accepted. The simplistic conservative says it is inadmissible, period. It has nothing to do with concerns or whether she tells the truth or not, and therefore it remains inadmissible today as well. So the dispute is over whether it is a problem of admissibility or a problem of reliability, if we use today’s legal terminology.
Now the question is how we decide that dispute. It’s not just a question of how we decide the dispute—how I prove to him that I’m right, or how he proves to me that he’s right. The question is how I myself adopt such an interpretation, not in a dispute with someone else. How do I decide that women were disqualified from testimony because of that? How did I arrive at that conclusion? For myself, even before I persuade someone else. After all, I too am not just making things up because I feel like it. I have to think it through, arrive at my conclusions, and then present a position. So how did I myself arrive at this conclusion? How do I know? So I say: if I have proofs from the Talmud, of the kind I mentioned earlier—for example, if we find medieval authorities (Rishonim) saying that a woman is valid for testimony regarding a woman, that a woman can say another woman’s husband died and thereby permit her to remarry—then that is proof that a woman’s testimony is not a problem of reliability but a problem of admissibility, for example. Or someone will say that a woman is not valid for testimony regarding a woman, and that would be proof that it’s a reliability problem and not an admissibility problem. It doesn’t matter. But let’s bring proof.
Now if we bring proof, nobody is going to argue with us. They may argue about the proof—but again, let’s say I had a good, decisive proof, then no simplistic conservative would argue with me. As I said before, there is no one who is really a simplistic conservative. The whole question is whether you persuade him…
[Speaker B] …
[Rabbi Michael Abraham] in your midrash. If he accepts the midrash, because he too makes such midrashim in places where he has been persuaded. The whole question is whether you persuade him. Now if I bring him proof from the Talmud, from the medieval authorities—that’s how Jewish law works—there is no one who won’t accept that. That is not what distinguishes a simplistic conservative from a midrashic conservative. The big question is—and this is the important point—what happens if there are no proofs? There is now a dispute, whether one is a simplistic conservative or a midrashic conservative, but there are no proofs. None at all—we found no proofs either way. What do you do in such a case? Now ostensibly—yes.
[Speaker B] I think maybe the question here is how we assume why they ruled that way in the first place. Meaning, we assume they were rational people who looked at the situation and ruled.
[Rabbi Michael Abraham] No, it’s written in the Torah. You can say that they expounded it from the Torah, and therefore they didn’t decide it on their own.
[Speaker B] Relative to the situation, they looked for where they could find support in the Torah one way or another so that they could rule here, so really we’re doing the same process they did.
[Rabbi Michael Abraham] No, but I’m saying that for them, what they did may not have begun from reasoning. That’s what the simplistic conservative will claim. They learned the verse in the Torah, “the two men who have the dispute shall stand before the Lord,” and they expounded “men” and not women, and therefore ruled women out as witnesses not because of any logic behind it.
[Speaker B] But they also assumed that the Torah that God gave was given to ordinary human beings who live in this world. Meaning, he assumes, he builds it on the basis of human considerations and not on the basis of—
[Rabbi Michael Abraham] Not at all! They read the verse and they learn “men” and not women. That’s all. And therefore the Holy One, blessed be He, disqualified women, just as the Holy One, blessed be He, wants priests to serve in the Temple and not Israelites. Why? I have no idea. And that’s what He wants. Okay? I’m not going to say that once priests served and today Israelites can also serve. I have no reason to make a midrash. Why? What changed from then to now? The fact that I don’t understand something doesn’t mean it isn’t correct. So I don’t understand—not everything I understand. The question is what happens when I do offer a proposal that contains understanding. I offer a proposal to understand why the Torah disqualified women. Why? Because they were not educated. Someone else says to me: what are you talking about? The Torah disqualified women and not men, I don’t know why. A scriptural decree. “We do not expound the reason of the verse” at all, right? We talked last time about the fact that for midrashic derivations this doesn’t even really apply. But never mind—that is what the simplistic conservative claims. How do we decide such a thing? Here lies the difference between a midrashic conservative and a simplistic conservative. Not when there are proofs. When there are proofs, everyone accepts them. There is no one who does not accept midrashim of this kind when we have proofs from the Talmud, from the medieval authorities, from the later authorities. Everyone will accept that. But I’m asking: what happens when there are no proofs?
Now this is an interesting point, because think for a moment. Suppose I brought you a proof—suppose I found, I don’t know, that Ran writes that a wicked person is valid for testimony regarding a woman. Okay? Let’s assume that. Then I have proof from Ran that the whole disqualification of a wicked person is not because of concern for lying—it’s an inherent personal disqualification.
[Speaker B] But who did Ran get it from? Exactly—and then ask him about it, back and back and back.
[Rabbi Michael Abraham] Exactly. And the question is: okay, very nice, so I have a proof. But how did Ran himself adopt that interpretation? Now he doesn’t bring proofs from the Geonim, from whoever, not even from the Talmud—he simply read the Talmud that way. So in fact he himself made a conservative midrash without proofs. But when I make a conservative midrash, people ask me: bring me proof. But notice that the proof I bring you comes from someone who himself made a conservative midrash without proof. So this demand that there must always be proof, in my view, simply doesn’t hold water at all. So how does it work nonetheless?
[Speaker B] Maybe we relate to these authorities as authorities.
[Rabbi Michael Abraham] What do you mean, authority? Was Ran the Sanhedrin?
[Speaker B] Informal authority. Some kind of authority.
[Rabbi Michael Abraham] There is no authority at all. He is an interpreter, an important medieval authority, all fine, but there is no authority. What is this, the Sanhedrin?
[Speaker B] It’s our psychology.
[Rabbi Michael Abraham] Psychology doesn’t interest me. I’m asking about the substance.
[Speaker B] If the two of us agree that he has some authority.
[Rabbi Michael Abraham] We don’t agree. Obviously—but why agree? Where does that authority come from? So now I agree that I have authority. Leave Ran aside—I’m saying I have authority, and therefore I understand it this way and I rule this way. You think I don’t have authority? Don’t accept it, no problem. And I think I do. You can’t—it doesn’t hold water. If you tell me, look, this is the Sanhedrin—the Torah says “do not deviate,” the Torah gives them authority—that’s perfectly fine. But Ran was not the Sanhedrin. He lived, I don’t know, more than a thousand years after there was a Sanhedrin. So what are you bringing from him? What can you learn from him? He himself made that midrash without proofs. So how can you say that in order to make such a midrash you always have to bring proofs? Even the proofs I bring you come from someone who did it without proofs.
[Speaker B] Here the rational element enters—the human judgment that basically seeks some kind of rationalism behind the ruling, the Talmudic one. Meaning, we’re not only looking directly against the verse, but there is some sort of human rationale that enters the picture and rules according to the situation. Okay, fine, I didn’t understand that. What? Meaning that when I don’t find proofs, then what—I try to enter into the Talmud and say… So here, that’s my proposal.
[Rabbi Michael Abraham] My proposal is that the Talmud was speaking about a certain reality, and the reality today has changed. The simplistic conservative stands opposite me and says, not true. Now I’m asking how to decide. Or how I myself arrived at the conclusion that this is my position. Maybe the simplistic conservative is really right. How, why, on what basis did I arrive at the midrashic conservative position in this context? That’s my question.
[Speaker B] Yes. And the only problem, in order to solve all—
[Rabbi Michael Abraham] No, no, I’m not here to solve anything. I’m not here to solve anything. I’m asking what the truth is. You judge according to—
[Speaker B] plain common sense, and whoever goes against that has to bring proof.
[Rabbi Michael Abraham] Ah, we talked about that—I already don’t remember if I—
[Speaker B] You brought it up.
[Rabbi Michael Abraham] Ah, fine. Okay. So what I really want to say is two things. On the face of it, the simple rule is: passive omission is preferable. Right? Whoever wants to change things is at a disadvantage. All kinds of expressions of that sort. A doubt does not override a certainty. You can bring all kinds of sayings like that, and they all basically mean something very similar. There’s no doubt… no, there’s an existing state of affairs. There’s an existing state of affairs. You want to change it? Whoever wants to change it has to bring proof. Right? If you didn’t bring proof, we remain with the original presumption, as the Talmud says everywhere. Okay? On the face of it, that’s a very strong argument. Meaning, if I don’t have proofs for my midrashic-conservative interpretation, then the situation should stay as it was. Whoever wants to change it, the burden of proof is on him. That’s the simple view. But it’s not precise. This is actually just a column I’m writing now for the website, and I’m in the middle of it, so I hadn’t remembered this. Yes. There are two important points to take into account here. One is the point of logic, and the second is the point of cost.
Meaning, when you say passive omission is preferable, what you’re really telling me is: choose the less risky option. Play it safe. But here, in this case, there is no playing it safe. As I said. If we validate women as witnesses and the truth is that they are not permitted to serve as witnesses, then of course we have gone against the will of the Torah, we validated a disqualified witness. If women really should be valid as witnesses and we disqualify them, then we have issued a distorted judgment. Right? So there are costs in both directions. And once there are costs in both directions, you can’t tell me, come on, play it safe. On the contrary, check where the heavier cost lies.
Now if women are disqualified as witnesses and you validated them, what’s the cost? The cost is that you violated the will of the Torah. Because the Torah wanted you not to accept a woman’s testimony, and you did accept it. Right? If the truth is that a woman is valid as a witness and you do not accept her, the risk taken by the simplistic conservative—what’s the problem here? Two things. First, he is not fulfilling the will of the Torah. Because the Torah says women are valid as witnesses. Like I said, someone who wears a swimsuit might be considered a sinner according to the midrashic conservative. Okay? But here there’s another problem. You’re issuing a distorted judgment.
So if I had to compare these two costs, I think the cost of the simplistic conservative is heavier than the cost of the midrashic conservative, if he is mistaken. It’s always a question of who is mistaken, I don’t know. But on the assumption that the midrashic conservative is right and the simplistic one is wrong, the cost is heavier than if we do as the midrashic conservative says and we’re wrong. Because at least the judgment itself does not come out distorted. After all, I know the woman is trustworthy in her testimony. Maybe from the standpoint of Jewish law I’m not allowed to accept her, but what I ruled is still a true judgment. Because the woman is trustworthy. Factually I know the woman is trustworthy. Okay? All you can say is: fine, but maybe there’s some other reason why the Torah said not to accept her testimony even though she is trustworthy. And that is what I violated. So that’s not good, because I violated the will of the Torah. But if the opposite is true, then first I violated the will of the Torah, and second I issued a distorted judgment. Because I ruled in a way that I know is untrue. הרי I know—I have a woman’s testimony that so-and-so murdered someone. And if I believe her, then I say: that’s the truth, he murdered. And now I’m going to let him go free. So that’s why I think the consideration of cost is the first consideration that arises here.
The second consideration is the consideration of logic. What I basically want to say is this: those who say passive omission is always preferable—the smell of that statement is, let’s play it safe. Come on, forget it, you want to change things, who knows, maybe you’re wrong, maybe you’re… okay. So I say there’s no such thing as safe here, because if you don’t change things, maybe you’re wrong too. There’s a dispute here over who is right and who is wrong. It’s not that the person who continues as things were is playing it safe, while the person who changes things may be right or may be wrong. If the midrashic conservative is right, then the simplistic conservative is wrong. Meaning, this is a zero-sum game. It can’t be that both are right. If the midrashic conservative is right, the simplistic conservative is wrong. Okay, so there’s no such thing here as playing it safe. You have to make decisions.
By the way, you see this in cases of doubt, for example. There’s a case like this—there’s a Talmudic passage, it’s a yeshiva joke. The Talmud in Ketubot discusses someone who finds an abandoned baby. You find a baby lying in the street—what do you do with him? Is he Jewish, is he non-Jewish? How do you raise him, what do you do? Is he obligated in the commandments? Does he need conversion? What do you do? So the Talmud says it depends on the majority of the residents in that place. If most of the residents there are non-Jews, then he has the status of a non-Jew; if most of the residents there are Jews, he has the status of a Jew. The Talmud asks: what about an even split? If it’s fifty-fifty? Let them divide him? So the Talmud says: it’s a doubt; each time we’ll go according to the laws of doubt.
So in the yeshivot they always ask: what should he do about Torah study? After all, in every case of doubt there’s always a stricter side and a more lenient side, so go with the stricter side. Say, is he allowed to eat pork? No, because there is a possibility he is Jewish. If he’s a non-Jew, it’s permitted; if he’s a Jew, it’s forbidden. So go with the stricter side and don’t let him eat pork, right? All kinds of things like that—so in short, you go stringently. But there are questions where there is no stringency. What about Torah study? As a Jew he is obligated; as a non-Jew it is forbidden to him. Not just that he’s not obligated—if it were only that he wasn’t obligated, then fine, let him study Torah. But no: as a non-Jew, it is prohibited. So what do you do? Here there is no such thing as going with the stricter side, or in other words, there is no such thing as playing it safe in this kind of question.
Not every question has one path that is safe and another that is doubtful, so then I say a doubt does not override a certainty. No. Sometimes every path has a cost; no path is safe. And then you have to weigh things and ask yourself which cost is heavier. I don’t know. I think that on the assumption that a woman is valid as a witness and you disqualify her, in my eyes that seems like the heavier cost. I don’t know, maybe there’s something hidden that I’m not aware of, but on the face of it that seems to me the heavier cost. Fine, that’s one discussion.
But beyond that I’m saying: what you said earlier—after all, I’m proposing a logical explanation for why the Torah disqualified women as witnesses. Okay, the logical explanation is that they were not educated. Someone else comes and tells me: look, but maybe you’re not right. And he doesn’t offer another explanation. If he offered another explanation that was also logical, then fine, I have a doubt as to which explanation is correct. But he doesn’t offer another explanation. He only says maybe your explanation isn’t right. So what if my explanation may not be right? Maybe not and maybe yes—what exactly do you want me to do with that?
Every time I propose some logical explanation in Jewish law or in learning, someone can always come and say yes, but maybe your explanation isn’t right. If you don’t show me what’s wrong with it, or you don’t offer me an alternative that could also serve as an explanation so that there really is a question as to which explanation is right—and you don’t offer an alternative, you just ask this skeptical question, maybe it’s not right? So maybe it’s not right. Fine, maybe. The burden of proof is on you. Okay? Therefore the solution of passive omission is preferable, and whoever changes things is at a disadvantage and has to bring proofs—that is not correct in this case. It’s a mistake both in terms of cost and in terms of logic.
I propose a logical thesis. You, opposing me, do not propose another thesis. Fine, but maybe it’s not right. You may be right, but it seems logical to me. I have no reason to assume it’s not right, so why should I enter into doubt? What, am I required to force myself into doubt? If I have no doubt, I have no doubt. Like the story about Rabbi Yonatan Eybeschutz that I once told, where a priest came to him and said: why don’t you follow us? After all, we are the majority, and it says in the Torah, incline after the majority—the Christians, right? So he answered: where I am in doubt, I follow the majority; where I have no doubt, I do not follow the majority. That’s actually a serious answer, it’s not a joke.
Yes—if I have a piece of meat in the market, and there are nine kosher stores and one non-kosher store, then the law in principle is that it is kosher, right? Or if there are nine non-kosher stores and one kosher store, then in principle it is non-kosher, right? Now suppose I found a piece of meat with a premium kosher seal on it, and in the city there are nine non-kosher stores and one kosher store—what’s the law? Obviously it’s kosher. Why? But most of the stores are non-kosher. Because I have no doubt. When I have a doubt, I go after the majority. If I have no doubt, I don’t need rules. What do you do in a case of doubt if you don’t have a doubt? Now if I have a logical explanation, and you ask me why aren’t you in doubt—why should I be in doubt? Offer me another explanation. Explain what’s wrong with my explanation. That’s all. Fine, then we have to discuss it. But just to ask, what if you’re not right—fine, maybe I’m not right. What exactly do you want me to do with that? A judge has only what his eyes can see.
The Hazon Ish in a number of places—but one place I remember now has a very interesting novelty. We spoke about this issue of the presumption that a person does not… no, actually not that, though that also comes up—but he talks about property that caused damage. Listen, there is a dispute among later authorities, an analytical investigation among later authorities—or a dispute—about why I have to pay when my property caused damage. Do I have to pay because I was negligent in guarding it, as a punishment or sanction for not guarding it properly, and therefore I have to pay? Or not: do I have to pay because my property caused damage—I am responsible for what my property did. If I guarded it properly, they exempt me. The cause of liability in damages is not the failure to guard, but the very fact that it is my property. If I guarded it properly, they exempt me because I was under compulsion. Okay? Those are the two sides.
What is the practical difference? They always say the practical difference is the dispute between the Pnei Yehoshua and the Hazon Ish on the question of who bears the burden of proof. What does that mean? Say my animal damaged your animal. And it’s clear—there are witnesses, they saw my animal damage your animal. But I claim that I guarded it properly, and I am exempt because I was under compulsion. And you claim that I did not. You may even claim it only as uncertainty, because you generally can’t know how I guarded my animal—you’re somewhere else, and suddenly my animal appears there and damages you. But you don’t know whether I guarded it. Still, suppose you claim that I did not guard it properly. Fine? Or even if you saw and make a definite claim that I didn’t guard it properly. And now we have a dispute whether I guarded it properly or not. Who has to prove? Who pays if there is no evidence?
On the face of it, the one seeking to extract money from another bears the burden of proof. You want me to pay you, so you are the one extracting—bring proof that I didn’t guard it properly. The Pnei Yehoshua and the Hazon Ish disagree about this. The Pnei Yehoshua claims that indeed you have to bring the proof. And the Hazon Ish claims that I have to bring proof that I did guard it. Do you have to prove that I didn’t guard it, or do I have to prove that I did guard it? Usually people tie this dispute to the analysis I mentioned before. Why? Because if the basis of liability is that I was negligent in guarding, then as long as you haven’t proven that there is any basis of liability at all—that I was negligent in guarding—there is no liability, so obviously you have to bring the proof. Because if I wasn’t negligent in guarding, then there is no reason to obligate me at all. If you want to extract money from me, bring proof that I was negligent.
But if the basis of liability is the very fact that my property caused damage, and if I guarded it properly then I’ll be exempt—fine? First of all, it’s known that my animal caused the damage, so first of all I am liable. But I want to exempt myself with the claim that I guarded it properly. So bring proof that you guarded it properly. The burden of proof is on me. So on the face of it, the Hazon Ish holds that what creates liability is the very fact that my property caused damage, and the Pnei Yehoshua holds that what creates liability is negligence in guarding. Every opening lecture in Bava Kamma in the yeshivot, you’ll hear this practical difference with this analysis, always.
It’s not true. It’s simply not true. Everyone who brings this practical difference has not read the Hazon Ish. And I too used to bring this practical difference all the time like everyone else, repeating it like a parrot, until the rosh yeshiva in Yeruham, Rabbi Blumentzweig, came to me and said: tell me, have you read the Hazon Ish? He showed me that the Hazon Ish says it’s not so. The Hazon Ish says: why is the burden of proof on me? Because what I am claiming is implausible. I say that I guarded it properly and nevertheless the animal caused damage—that is implausible. It can happen, but it’s implausible. That’s the whole point of guarding. The point of guarding is that if you guard, damage probably won’t happen. Right? If you say you guarded it and nevertheless the animal caused damage, that is implausible.
Now, is that implausibility enough to extract money from me? Aren’t you the one extracting, and therefore you should bring proof? The answer is yes. The Hazon Ish says that if I make an implausible claim, I stop being the one in possession. Just as there is no presumption without a claim—or possession, you can’t be considered in possession if you have no claim—you also can’t be considered in possession if you have a poor claim. And therefore the other party becomes the one in possession, and the burden of proof is on you. If you bring proof that you guarded properly, no problem—you’ll be exempt.
What does that actually mean? It means that when you make an implausible claim, even if you are in possession, you have lost your advantage. The other side gets the advantage. That is exactly what I’m saying here. I am offering a plausible explanation for why women are disqualified as witnesses: because they were not educated. Then someone comes and says: yes, but maybe not, maybe there’s some other—I don’t know—some other reason, no reason, I don’t know exactly, something else. Okay? On whom is the burden of proof? I offer a plausible explanation. He offers maybe. He doesn’t offer anything; he just says maybe there’s something else. Bring proof.
Just as this changes possession in monetary law, it also changes the original presumption. I said earlier that there is an original presumption, and whoever wants to change it has to bring proof. One witness or whatever—bring some kind of evidence so we can change the presumption. I say no: in a place where the claim that things did not change is implausible, the burden of proof is on the one who says it did not change, not on the one who says it did. Okay? Therefore this instinct that says that if there are no proofs for my midrashic-conservative interpretation, then passive omission is preferable, or whoever changes things is at a disadvantage—that is incorrect.
Okay, so now here, this is what will distinguish between a midrashic conservative and a simplistic conservative. The difference is not where I have proofs for my midrashic-conservative reading. Every conservative accepts those proofs. Everyone agrees that if there is proof from the medieval authorities (Rishonim), or from the Talmud, or whatever it may be, then we will change Jewish law if there is proof from the Talmud and the medieval authorities. The big dispute is when there is no proof. And the midrashic conservative claims that despite the absence of proofs, if I offer a logical proposal and you have no refutation of it and do not propose an alternative, then I am right until you bring proof otherwise. That is the midrashic conservative. The simplistic conservative insists and says no—even so, you have to bring proof; otherwise we must leave the law as it was.
You already understand that once it is presented this way, simplistic conservatism is really an illogical position. Why should we remain as we are when I offer a logical explanation and you offer no alternative and no refutation of my explanation? Why assume that someone who offers a logical explanation might not be right? What does that mean, might not be right? We always work with our reason, right? Maybe I’m not right. In order to say I’m not right, you need to bring a refutation, something illogical in what I’m saying. Explain to me what is illogical, or offer me an alternative explanation. Who says this explanation is right? Here’s another explanation that could also work. That’s perfectly fine. But you can’t tell me: I’m offering a logical explanation, you have no other explanation, you don’t want to refute mine, but maybe it’s not right, so bring proof.
There’s a well-known thesis in the name of the Vilna Gaon, yes, about hidden reasons—that we do not change laws even if we reached a conclusion from the reason, because there are other hidden reasons we do not know. In my view, that is vulnerable to the exact same attack. Prove that there are hidden reasons. Who said there are? I don’t understand the logic of that. It’s like explaining the view that one does not derive law from the reason of a verse. Do you know what that means? When I read a verse—as I spoke about last time—when I read a verse, we do not interpret it teleologically, what today in legal language would be called purposively. We do not say the verse comes to achieve something, and therefore in this situation where it doesn’t achieve that, the law doesn’t apply, or applies differently, or something like that. We don’t go by the reasons. Okay?
For example: “Do not take a widow’s garment as a pledge.” If it’s forbidden to take collateral from a widow—a widow borrowed money from me, and the Torah forbids me to take collateral from her, okay? Now there is a dispute between Rabbi Shimon and Rabbi Yehuda as to whether we derive law from the reason of the verse. What does that mean? It could be that we would say: from a rich widow you may take collateral, from a poor widow you may not, because we have compassion on her. No—we do not derive law from the reason of the verse. If the Torah said widow, then widow means widow. It doesn’t matter; the reason of the verse, or your reasons, are not relevant. We do not derive law from the reason of the verse.
Most commentators explain why we do not derive law from the reason of the verse: because maybe you’re wrong. How do you know? How do you know that’s the reason for the verse? Maybe there’s another reason. But you understand that this is exactly what is illogical, exactly as I just said. After all, I’m offering you a logical explanation. We have compassion on the widow because she is miserable, she has no money. Right? In the case of many widows, it’s a difficult situation; they have no husband to support them, certainly in earlier times when women weren’t supporting themselves, they were in a difficult situation—that’s obvious. Now I don’t know whether that is the Torah’s reason or not, but first of all it is a very logical reason. You claim there is something else? Then you bring the proof, not me. I am offering a logical explanation.
Or to put it differently: the reason we do not derive law from the reason of the verse is because maybe I am wrong—and maybe I am right. Why leave the law as you think it is? Don’t you fear that maybe you are wrong? Why is there only a fear that maybe I am wrong? After all, if I am right, then you are wrong. If you are right, then I am wrong. It’s completely symmetrical. And there is some tendency to think—you can see it in the medieval and later authorities—and it is simply not logical, that whoever continues the present state is not mistaken. The one who changes things, who knows, maybe he is right, maybe not; a doubt does not override a certainty. There is nothing to that. If the proposal for change is correct, then the proposal to preserve is wrong. And vice versa. It’s either this or that. Okay? Therefore my claim is that midrashic conservatism is a much more logical approach. Much more logical not only in the interpretation it offers of the verse, but also in how it relates that interpretation to the alternative of maybe there is, maybe it’s not right, maybe there’s another reason. It is much more logical than simplistic conservatism. But here most people are simplistic conservatives.
[Speaker B] So what really seems right to you regarding not deriving law from the reason of the verse? What is the explanation?
[Rabbi Michael Abraham] I wrote an article about it. I can tell you briefly, I’ll tell you. First of all, that principle is said only about things explicitly written in the verse. So anything that comes from an interpretive derivation is not relevant at all, because otherwise it would contradict what I’m saying now. Not deriving law from the reason of the verse means you can’t make a conservative midrash, because that itself would be deriving law from the reason of the verse. When things are written explicitly in the Torah, then indeed we do not derive law from the reason of the verse, although the Rosh writes that where the reason is self-evident, then yes, we do derive law from it—the Rosh on Bava Metzia 94, Tosafot HaRosh.
I argued that first of all one can bring proofs from Maimonides, who learns the Mishnah in Sanhedrin 21, that we do not derive law from the reason of the verse even where the reason is explicitly written in the verse. For example: “He shall not have too many wives, lest his heart turn aside.” There the reason for the prohibition on the king to have many wives is explicitly written in the verse. So there there is no mistake—the Torah itself says what the reason is. Why, then, do we not derive law from the reason of the verse? Suppose he marries many righteous women who will not turn his heart aside. The Talmud brings that as the practical difference. Okay? So what’s the problem? They won’t turn his heart aside, everything is fine. You can’t tell me maybe I’m wrong, because the Torah itself said that is the reason. So why don’t we derive law from the reason of the verse in that case?
I want to claim: when do you derive law from the reason of the verse? When the wording of the verse leads to one conclusion, and the purpose you understand in the verse leads to another conclusion. Then the question is whether to derive law from the reason of the verse and change the conclusion, or not. Right? The Talmud says that if the wording of the verse—the conclusion that emerges from it—does not fit the conclusion of your interpretation, then your interpretation is probably just wrong. Because the verse is formulated correctly. The Holy One, blessed be He, knows how to formulate verses. If He formulated the verse in a certain way, from which the conclusion emerges—“Do not take a widow’s garment as a pledge,” period, any widow—and then you suddenly make some interpretation that no, no, only a poor widow, not a rich widow, then why didn’t the verse say so? If the verse says one thing, and the reason leads you to a different conclusion, apparently you did not arrive at the correct reason.
Now for example in the context of “He shall not have too many wives, lest his heart turn aside,” it’s very simple. My claim is that even if he marries many righteous women like Abigail, they too will turn his heart aside. Because the turning aside of the heart is not because the woman is wicked; it’s because anyone who is constantly occupied with women instead of with important matters will have his heart turned aside. What turns his heart aside is the very multiplicity of wives; it doesn’t matter what kind of wives they are. Now you see, if so, then the reason that they will turn his heart aside is a correct reason. I have no fear that maybe the reason is wrong. But if there is a mismatch between what I explain and what is written in the verse, then apparently I did not apply the reason correctly, or did not understand it, or the reason I presented is probably not right, because the wording of the verse clearly says otherwise. But if it fits the wording of the verse, there is no problem in deriving law from the reason of the verse.
[Speaker B] So why does the Talmud bring as a practical difference the case that if he marries many righteous women, it would be permitted?
[Rabbi Michael Abraham] There are those who indeed do not derive law from the reason of the verse even there. But the halakhic ruling is that in such a case we do not derive law from the reason of the verse because—not as I explain it—not because the reason is wrong, but because someone who derives law from the reason of the verse will make a mistake. He will permit the king to marry many righteous women, and that is not correct. The verse says: “He shall not have too many wives, lest his heart turn aside.” Many wives will turn the heart aside. Okay? “Lest his heart turn aside” is not an incorrect reason; it is a correct reason. You’re just not interpreting it properly, not applying it properly—that’s the point. There’s no fear here that the reason itself is wrong.
So in any case, even where the reason is not written in the Torah, it is certainly possible that the reason you should not derive law from is not because the reason you thought of is wrong, but because perhaps you are not applying it correctly. Fine. You have to check the wording of the verse: does it fit the wording of the verse or not? That can be discussed. That’s already a dilemma, okay? And in a place where there are two possibilities that both fit the wording of the verse, and one of them is more logical—you know what I’m saying now—then certainly we should interpret it according to the more logical one. Both fit the wording of the text. So if that one is more logical, then apparently I should interpret it that way. But if the wording of the text says one thing, while the logic or the purpose says something else, then why is the wording of the text written so crookedly? Why wasn’t the verse formulated properly? So then we do not derive law from the reason of the verse; apparently you missed something. Okay?
Okay, now I want us to move for a moment to a topic where you can see this discussion we just had in a very, very nice way. Meiri, in many places, writes about many laws that the Torah imposes regarding non-Jews that these do not apply to the non-Jews of his time. Because they are bound by the norms of the nations. They behave in a moral, humane, reasonable way. Therefore all the laws we find in the Talmud—Torah-level laws, not only rabbinic ones—all the laws that speak about non-Jews, not returning their lost objects, avoiding repayment of their loans, whatever you want, not saving their lives on the Sabbath, all such things—all of it is null and void, says Meiri. Not because of a decree, not because of desecration of God’s name, not the things people always say. No. He says it is nullified; those laws do not exist with regard to the non-Jews of his time. That is what he writes.
Now this is a classic move of midrashic conservatism. More than that—as I’ll show later—Meiri nowhere brings proofs for his midrashic-conservative reading. He makes a conservative midrash without proofs. Yes, and we know what the conservative midrash is. The conservative midrash says that the attitude the Torah commanded regarding non-Jews was dealing with the non-Jews of those times, who were corrupt in their behavior and character. The non-Jews of today are not corrupt, and therefore today it is different. You see? This is exactly the kind of conservative midrash I’m talking about. But nowhere will you find proof for this midrash. More than that, Meiri says this about so many laws that for each one you would have had to bring proof that there too it applies only to corrupt non-Jews, and that this law too applies only to corrupt non-Jews, and every place—nothing. Nowhere does he bring it. Certainly not for each of the laws. Meaning that Meiri is making here a classic move of midrashic conservatism without proofs for his midrash.
And in fact people today really clash over this Meiri in a very intense way. I wrote an article about this Meiri, and through that I also tried to show what midrashic conservatism means. But everyone responded immediately: what are you talking about? He wrote that because of the censor. Yes, so they wouldn’t persecute him over how he related to non-Jews and so on. That was the accepted explanation in the past. Indeed, in different books people would often write that all the laws regarding non-Jews refer to the ancient non-Jews who were wicked, and the non-Jews of today are all righteous—because they feared the censor, feared the Christians who might murder them, or the Muslims, not that it matters—mainly Christians. So there are such things; it’s not far-fetched. There are indeed such cases in many books, written out of fear of the censor, okay?
But in this specific case it doesn’t seem that it was written because of fear of the censor, for several indications. Maybe the main indication is this: Meiri did not write it on the first page of his book, some manuscript whose whereabouts no one knew and which was found only a hundred and fifty years ago or something like that. Meiri was not available to all the later authorities. So usually when someone writes something like this, he writes on the first page of his book in large letters: all the things written in this book about non-Jews refer only to the non-Jews of old, not to the righteous non-Jews of today. Right? So that anyone—after all, no one opens a book and reads all the tiny Rashi script in every topic, right? You look at the first page, and on the first page there’s a big notice: don’t worry, if in the course of the book you happen to see some problematic law regarding non-Jews, don’t worry, it’s not about you, it’s about the non-Jews of old. Okay?
In Meiri it’s not written like that. In every single topic, in the tiny Rashi letters, every place, he writes: and know that wherever this attitude toward non-Jews is stated, it refers only to the ancient non-Jews who were not bound by the norms of the nations, and so on and so forth. And he repeats this in dozens of places, not in one big notice. Did the censor read all of Meiri’s novellae on the whole Talmud? If you want to say this was because of the censor, write it in large letters on the first page. Why stick it into your novellae? Who is reading that there anyway? And against that background—rather, he insists that every place there is some reference to non-Jews, he repeats it. He doesn’t say, as we explained here, as we explained there. He repeats the principle itself in dozens of places. It is very implausible that this was written only out of fear of the censor. It seems very clear that Meiri had some systematic method here.
I’ll give you an example. You see? Oh, now he’s recovered. In Bava Kamma 113b Meiri writes as follows: “It follows that even idolaters who are not bound by the ways of religion may not be robbed, and if a Jew was sold to him” — that is, a Jewish slave was sold to him — “it is forbidden to remove him from his possession without redemption.” Right? You must pay for the slave; you can’t just smuggle him out, that’s theft. Okay? “And likewise it is forbidden to avoid repaying his loan.” Everything the sages said about a non-Jew—no, not true, doesn’t exist. “Nevertheless, a person is not obligated to go looking for his lost object in order to return it to him, and moreover one who found his lost object is not obligated to return it, because a found object is in part an acquisition, and returning it is an act of piety, and we are not bound to acts of piety toward one who lacks understanding.” Okay? “And similarly, his error”—if a non-Jew made an error, that too is permitted. “And similarly his error, if he erred on his own, not due to any trick or effort of the Jew, but made a mistake on his own, one is not required to correct it. In any case, if it became known to him, he must return it, because of desecration of God’s name. And similarly even with a lost object, in any situation where withholding it would cause desecration of God’s name, one returns it.” Up to here this is the law regarding ordinary non-Jews. Notice: idolaters who are not bound by the ways of religion.
Next paragraph: “However, anyone from the nations who is bound by the ways of religion and worships God in some manner, even though his faith is far from ours, is not included in this. Rather, for these matters he is like a full Jew, both regarding lost objects and regarding error and regarding all other matters, with no distinction whatsoever.” Fine? Meiri is basically saying that everything discussed above is about ordinary non-Jews, and even there, by the way, he is already stringent against the old Talmudic attitude—he says that many of the things the sages said are not true even for ordinary non-Jews who are not bound by religious norms. It is forbidden to rob them and forbidden to avoid repaying their loans. What belongs to them belongs to them. A lost object no longer belongs to them, so that is just an act of piety; one may refrain from returning it, unless there is desecration of God’s name, in which case that’s different. But all that is about non-Jews who are not bound by the ways of religion. But non-Jews who are bound by the ways of religion and worship God in some way—I don’t know, they have some kind of religion, far or near, doesn’t matter—they are not in this category. They are like full Jews in every respect. And not only with regard to lost objects and mistakes, which he discusses here, but regarding all other matters with no distinction whatsoever. Like full Jews. Okay? That is an example of Meiri’s systematic claim, and it recurs in many other places.
As I said, Meiri is speaking here about some principled novelty. Among some of the medieval authorities you can find isolated laws that are suspended in practice. For example in Tosafot, in Avodah Zarah, and in “Eizehu Neshekh” in Bava Metzia, in a number of places Tosafot for example permits selling an animal to a non-Jew on the day of his festival, even though the Talmud says it is forbidden. Rabbeinu Tam says: “We all practice leniently.” He says that apparently in our times what the sages prohibited was because there were many Jews concentrated in one place, in the Land of Israel or Babylonia when they were still concentrated there. In the time of Tosafot, the Jews were already scattered. So what happens? If you don’t sell the animal to a non-Jew, you can’t just sell it to a Jew—you’ll be stuck with it. But if you’re five Jews in some village or some region and there’s no one else around, and now you’re not selling animals to non-Jews, what are you going to do? Be stuck with the… no, “do not place a stumbling block” is even Torah-level, maybe not Torah-level, but for this the Torah didn’t prohibit it. That’s what Tosafot says. So you find such explanations—or lending with interest to a non-Jew, all kinds of things like that, in “Eizehu Neshekh.”
But Yaakov Katz wrote an article about this, and he says all those arguments are after-the-fact arguments. Once Jews had already begun to be lenient in a certain law, Tosafot comes and finds merit for them. Okay, fine, one can be lenient here. There’s no principled method in Tosafot that uproots the law in principle. It’s all just a permit because there is no choice, or something like that. With Meiri, he doesn’t say, people have practiced this way so I’m finding explanations for it. No. He says one ought to act this way, and there is no difference whatsoever between Jew and non-Jew in every respect. By the way, in Yoma he writes this also regarding saving a non-Jewish life by violating the Sabbath at a Torah level. Not because of desecration of God’s name, appearances, hostility, or all those concepts people bring today in order to apologize or at least to come out looking human. No. Meiri says there is a complete obligation to save life at the cost of violating the Sabbath, just as with a Jew. There is no difference between non-Jew and Jew. Life is life.
And what about back then? After all, the plain sense of the Talmud says otherwise: one does not violate the Sabbath for a non-Jew. The plain sense in the Talmud. Because the non-Jews back then were not bound by the norms of the nations. They were not human beings. Okay? So this is really a midrash, a conservative midrash. And as I said earlier, that conservative midrash is not backed in Meiri by any proof. Meiri does not bring proofs for his midrash. He does not bring proofs that the prohibition against avoiding repayment of a loan, theft, returning lost objects—all of them are based on the moral level of the non-Jew. Who said so? Or on whether they are not idolaters, it doesn’t matter, various things like that. Nowhere does he write a proof for it. He simply offers a logical explanation and says: now, whoever says this explanation is not right—let him bring the proof. That is exactly the midrashic conservatism I’m talking about. You adopt a conservative midrash without having proofs for it.
Now Yaakov Katz, in his article—he was a historian from the Hebrew University, dealt a lot with the history of Jewish law, a real yeshiva guy in the sources—went and interpreted… logically. So he asks: but there are places where Meiri was not lenient. For example, objects used in non-Jewish worship, and of course marriage with non-Jews—that is not permitted, even though the non-Jews of his time were bound by the norms of the nations. Now Yaakov Katz struggles with how to explain this—why Meiri didn’t take his permissive position all the way through. Regarding intermarriage, that’s obvious: marrying them has nothing to do with their moral level. But what about their ritual objects? If they are not idolaters, then their ritual objects should not be forbidden. So the ritual objects should not be prohibited for benefit.
[Speaker B] They aren’t idolaters, up to a certain point.
[Rabbi Michael Abraham] What does up to a certain point mean? That—
[Speaker B] Meaning—
[Rabbi Michael Abraham] Meaning in their religious belief, or not? It could be—
[Speaker B] that the question is, in Zoroastrianism for example, let’s take the Orthodox. So we say that in matters of belief… in matters of practice they are civilized and so on and so forth. But why?
[Rabbi Michael Abraham] What is called half an idolater? Is it idolatry or not?
[Speaker B] Because the very fact that we disqualify their ritual objects means that we are recognizing that their worship is not—he is not an idolater? He is. It is idolatry. So if he is indeed an idolater, then why—
[Rabbi Michael Abraham] are you lenient about avoiding repayment of his loan and all the other things?
[Speaker B] An idolater in part, in religious matters, sort of in part.
[Rabbi Michael Abraham] That is called an idol worshiper. Idol worship. Idol worship is not about whether he returns a lost item or not. Idol worship is about the character of his religious worship. Usually, when people study the Meiri, they understand that the Meiri’s innovation is that the gentiles of his time were simply no longer idol worshipers. By the way, these are Christians; he lived in Provence. He’s talking about Christians in fourteenth-century France, in Provence. No—the claim is, and that’s how people usually interpret him, that the Christians, at least those of his time, were not idol worshipers, and therefore the whole issue is permitted. But then Yaakov Katz quite rightly asks: if so, why doesn’t he permit benefit from their ritual objects? And then he starts giving psychological explanations—that he couldn’t go so far, that it was psychologically difficult for him, and he invents all kinds of explanations. The simple answer, of course, is that everyone is mistaken. The Meiri does not say they are not idol worshipers. Of course they are idol worshipers. So why are their ritual objects forbidden? Because they are idol worshipers. But they are enlightened idol worshipers. Human beings, who behave like human beings. The fact that they commit the sin of idol worship in the religious sense does not mean they do not behave like human beings. They do behave like human beings. But they are violators through idol worship. So everything connected to human treatment toward them—returning lost property, voiding their loan, benefiting from a gentile’s mistake, all these things, saving his life on the Sabbath, and so on—all that is nullified, because they are decent people. All those things depend on the question of whether they are decent people. Their ritual objects you cannot permit, because that is idol worship. What does that have to do with their being decent people? The prohibition on ritual objects is because they are used for idol worship. It has nothing to do with whether the person is morally good. The Meiri’s great innovation is in the Jewish law, not because he claims that the Christians of his time were not idol worshipers. His innovation, by the way, is even greater: the Christians of his time are idol worshipers, but contrary to the picture one might get from the Hebrew Bible (Tanakh) or from the Talmud, from the sages, it is not true that an idol worshiper is always a corrupt person. That is what the Meiri is innovating. A person can be an idol worshiper in terms of his religious worldview and his religious practice, yet not be a corrupt person. He can behave properly. That separation is what the Meiri introduced—not that they are not idol worshipers. Now there’s no difficulty anymore, no objections at all. Clearly their ritual objects would not be permitted, because that is idol worship. On the other hand, all the other leniencies pose no problem. Those leniencies are not based on the claim that they are not idol worshipers, but on the fact that they are people who behave in a reasonably human way. Some more, some less; among Jews too there are some more and some less; but in general they behave humanely. That is what the Meiri innovated, and then all the objections to him fall away. There is a first objection—yes, what I said earlier. Katz himself asks: why doesn’t the Meiri use his principle to permit benefit from Christian ritual objects? As I’m saying, of course there is no problem, because it has nothing to do with his principle. They are idol worshipers, just enlightened ones. Second, the Meiri says nothing at all about deviating from Maimonides’ path. The Meiri follows Maimonides all the time. At the beginning of every topic / passage, Maimonides’ Commentary on the Mishnah appears in the Meiri, right? You know this. At the beginning of every topic / passage in the Meiri, it starts with Maimonides’ Commentary on the Mishnah. Everywhere that the Meiri sometimes disagrees with Maimonides, he writes, ‘the great codifiers’—that’s what he calls Maimonides. ‘The great codifiers wrote thus’; ‘the great commentators’ is Rashi; ‘the great codifiers’ is Maimonides. ‘The great codifiers wrote thus, but it seems to me otherwise,’ or that someone else wrote otherwise, and he discusses it. In all these places, dozens and dozens of them, he says nothing at all about having departed from Maimonides’ path—Maimonides, who says that Christians are idol worshipers. And this is explicit: Muslims are not, but Christians are. So why does the Meiri nowhere remark that he has departed from Maimonides’ path on this issue? He is allowed to; sometimes he does. But when he does, he says so. And here this is a principled view of Maimonides, repeated in dozens of places, and nowhere does the Meiri note that he has departed from Maimonides’ path. According to the way I explain it, there is no problem at all: he has not departed from Maimonides’ path in the least. This is Maimonides’ path. He says they are idol worshipers—that is clear. I am only arguing—and perhaps in Maimonides’ time they were still corrupt as well—but the Meiri says: the gentiles I know around me behave in a reasonably human way. This is not a general claim about all Christians; it is a claim about the Christians he knew. Now we can discuss the Christians we know; that doesn’t matter. But on the principled level, he really does not need to note that he is departing from Maimonides, because he did not depart from Maimonides. The Meiri also nowhere writes very clearly that Christianity is not idol worship. On the contrary. He writes in several places: they have a religion that is indeed very far from ours, and it appears to be idol worship, but they have a religion. Now you have to understand that in his time morality went together with religion. There was no such thing as a moral secular person like there is today. Someone moral was a person committed to the principles of his religion. And the Christian religion also obligates moral principles, and therefore they have a religion, and therefore they behave in a human way. That does not mean their religion is not idol worship. That is why he says: they have a religion, only it is very far from ours. Fine—but they have a religion. So what? Yes, every idol worshiper has a religion. True, but he behaves in a human way. Not every idol worshiper, but there can be an idol worshiper who behaves in a human way. The Talmudic language, or even the biblical language, is ‘law.’ ‘And the law was given in Shushan the capital,’ right? ‘The drinking was according to the law, with no compulsion.’ ‘Religion’ there means law. Meaning that once there is religion, people conduct themselves according to laws, they keep certain moral principles. That is what he means. I don’t think he intends to say ‘religious’ in the sense we speak today. Back then, it all went together. It used to be obvious that you had to be religious, to believe in God, in order to be a moral person; today that is no longer true. But then to say this and to say that was the same thing. Therefore the fact that the Meiri nowhere writes that Christianity is not idol worship, but every time says they are restrained by the civilized norms of the nations—what does ‘restrained by the civilized norms of the nations’ mean? Just literally: they behave in a human way. That is what ‘restrained by the civilized norms’ means. What does that have to do with religiosity? It has nothing to do with religious belief, nor with the question whether you worship idols or not. The question is whether you behave like a human being. The way human beings behave—‘restrained by the civilized norms of the nations’—that is his phrase, repeated everywhere. And in fact, from a logical standpoint too, the prohibition—for example, the prohibition on returning their lost property—why should that stem from their being idol worshipers? How is that different from their being adulterers? Or murderers? Why should idol worship specifically determine it? Logically too, it makes much more sense to tie it to whether they behave like human beings, and not to whether they worship idols or not. For the sages and in the Hebrew Bible (Tanakh), it was obvious that these went together. Meaning, someone who worships idols is also not a decent human being. He sacrifices his children to Molech, I don’t know, defecates before Peor, does ugly things of one kind or another. It all went together. The Meiri says: fine, but it does not have to go together. And then, when it doesn’t go together, you have to ask yourself: ah, so what the sages prohibited there—was it because of the religious aspect, that they are idol worshipers, or because of the moral aspect, that they do not behave like human beings? The Meiri says: it is because of the moral aspect. Look at Maimonides on Bava Kamma 37b. He explains there why we discriminate between gentiles and Jews. For example, when there is a legal case between a Jew and a gentile, we follow whichever law benefits the Jew more. We follow Jewish law if that works better for the Jew, and the gentile’s law if that works better for the Jew. Maimonides asks: what is this? What kind of behavior is that?
[Speaker B] Shall I be like one of old?
[Rabbi Michael Abraham] So he says as follows: ‘Shall I be like one of old?’ was not said about a crooked judgment—there is no such thing. ‘And do not wonder at this matter, and do not let it trouble you,’ says Maimonides in the Commentary on the Mishnah, ‘just as it should not trouble you that animals are slaughtered even though they have not sinned. For one who does not possess human moral qualities is not included among human beings in the true sense, but the whole purpose of his existence is for the sake of man.’ One who does not behave like a human being is not a human being. He does not deserve human rights. He is like an animal; he exists for the sake of human beings. So you mistreat him as you slaughter animals. What does that explanation say? You see that the Meiri is really following Maimonides—not only is he not disagreeing with Maimonides. This is what Maimonides says: that all the sanctions and discrimination and improper treatment of gentiles that we recognize in Jewish law are because they do not behave like human beings. That is what the Meiri says. Why should he say he disagrees with Maimonides? He does not disagree with Maimonides. What the Meiri claims is only that this is not connected to their being idol worshipers. By the way, the Talmud in Bava Kamma 37 says this explicitly. The Talmud says—37? 37. Here, bring the… The Mishnah on 37b: ‘If an ox belonging to a Jew gored an ox belonging to a Canaanite’—the end of the Mishnah—‘he is exempt. And if an ox belonging to a Canaanite gored an ox belonging to a Jew, whether harmless or forewarned, he pays full damages.’ If a Jew damages a gentile, he is exempt; if a gentile damages a Jew, he is liable. Okay, that’s nice. Justice, so to speak. ‘Judge your fellow with righteousness’—but not someone who is not your fellow. So the Talmud here: ‘If an ox belonging to a Jew gored an ox belonging to a Canaanite, he is exempt’—on 38a. ‘If an ox belonging to a Jew gored an ox belonging to a Canaanite, he is exempt.’ They said: ‘Whichever way you look at it: if “his fellow” is meant precisely, then when a Canaanite gores a Jew’s ox he too should be exempt. And if “his fellow” is not meant precisely, then even when a Jew’s ox gores a Canaanite’s, he should be liable.’ Why is there a difference here? Rabbi Abbahu said: Scripture says, ‘He stood and measured the earth; He saw and released the nations.’ He saw the seven Noahide commandments that the descendants of Noah accepted upon themselves; since they did not fulfill them, He arose and permitted their property to Israel. It is not talking about idol worship. Because they did not keep their seven Noahide commandments, the Holy One, blessed be He, permitted their property to Israel. That is what Maimonides is talking about. What does this mean? That if suddenly they return and do fulfill the seven Noahide commandments—and again, the seven Noahide commandments not necessarily in the religious sense but in the moral sense, meaning they do not steal, they behave normally, morally—then the permission regarding their property no longer exists. That is what Maimonides says, and that is the conclusion the Meiri draws. Yes, Rabbi Yohanan repeats this—it doesn’t matter; also later in the Talmud. So this is written explicitly in the Talmud; Maimonides just sharpens the point. So what does that mean, really? Look, for example, here in Avodah Zarah 26a the Meiri writes: ‘That is to say, with regard to idol worshipers it was stated only where those peoples were not restrained by the ways of religion, and on the contrary, every transgression and every ugliness was pleasing in their eyes. And the chief of the philosophers already said: kill the one who has no reason.’ The chief of the philosophers did not mean to say that if someone is secular you should kill him. ‘One who has no reason’ means one who does not act according to laws. Okay? ‘But anyone who is among the worshipers of divinity’—divinity, but again here in this sense it is not religious worship; even though he is not part of “religion,” here it already does mean religion in the religious sense, meaning he is an idol worshiper, but he belongs to divinity, meaning he has his own divinity, and therefore he upholds morality—‘is certainly not included in this law, Heaven forbid.’ Okay. The same thing there on 26a. On 26b: ‘And it has already been explained that these matters were said concerning those times when those nations were idol worshipers and were defiled in their deeds and ugly in their character traits, as in the matter stated in part: “Like the practice of the land of Egypt in which you dwelled, you shall not do, and like the practice of the land of Canaan,” etc. But other nations, who are restrained by the ways of religion and who are free of the ugliness of these character traits—and on the contrary, they punish such behavior’—they even punish people who behave that way—‘there is no doubt that these matters have no place with regard to them at all, as we have explained.’ This is not some apologetic for the censor. He writes this in his own novellae on Bava Kamma 37b. What censor got there? Okay. ‘And this has already been repeated many times in our words.’ He himself says: I have already written this many times; in every topic / passage I write this. Why? ‘So that you should not need the many forced explanations that you find in the novellae and in Tosafot unnecessarily.’ He says it explicitly: I am writing this to you so that it should not even occur to you to think otherwise. This is not for the censor, because if it were for the censor he would write it once in big letters on the first page. Rather, it is clear that this is a whole outlook in the Meiri. Was the Meiri the head of the religious court then?
[Speaker B] I don’t know.
[Rabbi Michael Abraham] It seems to me that in those days everyone was head of the religious court, I think. Okay. And I have—at the end of the article there is an article here, maybe I’ll upload it to the site—I brought several places from later authorities (Acharonim) or from commentators on the Meiri where you can also see this nuance, not only the issue of idol worship. For example, Rabbi Kook: ‘The main point is like the view of the Meiri, that all nations who are restrained by proper norms between man and his fellow man are already considered resident aliens in all the obligations of religion.’ He does not get into the question at all of whether they are idol worshipers or not. By the way, this is an innovation in the laws of the resident alien, a major innovation, a well-known innovation of Rabbi Kook, because usually a resident alien is a gentile who must accept this before three—before three judges, before a Jewish religious court; he must accept upon himself the seven Noahide commandments and live in the Land of Israel. And Rabbi Kook writes that, for our purposes, a resident alien is any gentile who behaves reasonably, normally, who fulfills the obligations between man and his fellow man. The same thing—yes, Rabbi Aviner writes, there are several, several, several such formulations here; there is also in Be’er HaGolah on the Shulchan Arukh, there are a few formulations—you’ll be able to see them in the article. All right, we’ll stop here. This Meiri is an example of what I called conservative midrash, but it’s very important to note that the Meiri does not bring proof for his conservative midrash. That is an important point. The Meiri nowhere brings proof—and he applies this across all the laws, he cancels them all one after another—and nowhere does he bring proof that this law depended on the moral quality of the gentiles and not on their idol worship. So how can he do such a thing? Because he is a conservative midrashist. A conservative midrashist who offers a sensible midrash is not troubled by the question: maybe you’re wrong. I do not need to bring proofs. Even if I have no proof, it makes sense. Whoever thinks this is not correct should get up and bring proof. Okay? Good.