Tractate Sotah, Chapter 5, Lesson 8 — Rabbi Michael Abraham

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[Rabbi Michael Abraham] So then you know what the transgression is. This is a doubt, this is a doubt, this is that. If both sides are prohibited, then it’s not… There are medieval authorities (Rishonim) for whom, according to your reasoning, this is refuted, but Rabbi Akiva Eiger thought otherwise, so it’s not a question against him. Now he says: but from the fact that Scripture treated it as certain, meaning that even if she is pure she is prohibited by a positive commandment, then there is no longer any “either way,” and no lashes are administered. It comes out strange, right? If Scripture made it into a certainty, that actually comes out lenient, not stringent. Why? Because if Scripture made it certain, then she is prohibited in any case, right? Say it’s because of a prohibition inferred from a positive commandment according to Tosafot, right? So she is prohibited in any case; even if she was not slept with, she is prohibited. And if so, it doesn’t matter—but the oath does not take effect on him. The oath does not take effect on him, so for a prohibition inferred from a positive commandment you don’t get lashes, and for the oath you also won’t get lashes because it doesn’t take effect. So in a case like this you actually can’t administer lashes. And it turns out that the side on which we go stringently actually comes out leniently. And when they tell us that we should treat the doubt as a certainty, here that actually comes out lenient instead of stringent. Because an oath does not take effect on… one prohibition cannot take effect on another prohibition. There is already a prohibition here, a prohibition inferred from a positive commandment, so the oath cannot take effect on it. Okay?

What is he assuming? I don’t agree with him. He assumes that when I speak about a definite prohibition—what Tosafot says—he places the Tosafot we just saw on one side of the inquiry: is this a doubtful prohibition or a definite prohibition? Definite. He says that Tosafot introduced the novelty here that the Torah said a suspected sotah is like a certainty. What practical difference does that make? Because if we had thought it was only a doubt, then if he had sworn, we would administer lashes to him either way. The Torah innovated that it is certain, and therefore if he swears, you can’t administer lashes. That’s the practical difference. Right. In other words, he understands Tosafot to mean that Tosafot introduced the idea that this is like certainty. Rabbi Chaim brought this Tosafot as the basis for the view that says it is not certainty, that it is doubt.

Now why? Because really these are exactly the two readings we saw in Tosafot in the previous class. Because Tosafot is phrased as though it is certain on the one hand. On the other hand, what does that certainty mean? That certainty means treating the doubt as if it were certain. In other words, to be stringent in the laws of doubt, and therefore, for example, no lashes are administered. Okay? It’s basically only a prohibition inferred from a positive commandment. It’s not that you’re saying there is here a definite full prohibition. Okay? So really when… when Rabbi Akiva Eiger says here this practical difference, then I would say on the side that it is certain, he says then yes, lashes are administered. Why are lashes administered? Because if it is certain, then in any case there is a prohibition, whether she was slept with or whether she wasn’t. I don’t think that’s correct. Because as I said before, the certainty according to Tosafot is not some new prohibition that is a newly invented definite prohibition, but rather treating the doubt—maybe she was slept with—as if it were certain. Let’s see whether there is doubt. In other words, you begin the discussion as though there is a doubt. After you reached the conclusion that there is a doubt, we treat it as certain. But it is not a new prohibition. He assumes that Tosafot is speaking here about a new prohibition. There is a prohibition inferred from a positive commandment, so in any case she is forbidden, period. Tosafot does not say that. Tosafot says: you have a doubt. Right? If you have a doubt, you need to relate to it as certain. That is the prohibition inferred from a positive commandment.

That’s why, for example, Rabbi Elyashiv argues that a woman who is not in a situation of doubt would not have this prohibition. Right? That goes against Rabbi Akiva Eiger. Rabbi Akiva Eiger, when he read Tosafot, read it literally—literally, and incorrectly in my opinion. Meaning, he read Tosafot as seeing this prohibition as a newly created prohibition, a prohibition inferred from a positive commandment. But no—Tosafot says that this is an instruction to treat the doubt as though it were certain. But the status is still doubt. The only question is: what do we do with the doubt? It’s an instruction to see it as certain.

Fine, but if fundamentally we are indeed dealing here with doubt, then the “either way” with regard to lashes still stands, even on the side that says it’s certain. Because there is no side that says it’s certain; even the side of certainty is speaking about doubt. And then there is no practical difference. In other words, according to the way Rabbi Elyashiv read Tosafot—and I agree with him, according to what I think is the correct reading of Tosafot—Rabbi Akiva Eiger is not right. That is not a practical difference. In any case, lashes are not administered. Rabbi Akiva Eiger read Tosafot the way I read it at first in the previous class, the way one reads it literally: that basically he is talking about a new prohibition—there is here a prohibition inferred from a positive commandment, perhaps due to the warning and seclusion. In other words, simply because she secluded herself, irrespective of the concern that maybe she was slept with. Okay? But in Tosafot it’s pretty clear that this isn’t right. Tosafot brings proof from here that we treat the doubt as certainty. In other words, this is not a new prohibition inferred from a positive commandment, but rather we regard her as though she had been slept with. No—not that, sorry, not that we see her as though she had been slept with, but rather we relate… there is a prohibition inferred from a positive commandment that tells you to treat the doubt as though it were certain—as though she really had been slept with. Therefore, according to Tosafot, lashes are also not administered. Okay?

He brings another practical difference after that: and also a practical difference even without prior warning, regarding one who was not warned—if… after she drank and was found pure, and he had sworn. We are still talking about someone, that same person who swore not to have relations with her. Afterwards she drank and was found pure, so it became clear that she had not been slept with. Okay? Is she forbidden to him because of the oath? In a case where it did take effect, such as “benefit from my marital relations is forbidden to me” or something like that. What? Why did she drink? If she drank—why? He swore beforehand not to have relations with her before she drank; she was in the status of a sotah, and he swore not to have relations with her. Wait, without any condition? What condition? You mean he swore—he swore not to have relations with her, yes. Never again? Why then did she drink? She drinks in order to find out whether she secluded herself. He swore not to have relations with her; that’s unrelated. She drinks because she has to drink, because she is a sotah, and he swore not to have relations with her, okay? Now she drank and it turned out she was pure. If it turned out she was pure, why doesn’t he divorce her? Let him divorce her—what difference does it make? Let him divorce her—why is that relevant? No, is it related to the ketubah? No, his oath is not related to the ketubah. If she was found pure, then everything is fine, she has her ketubah and everything is fine. But he swore before that, yes? He swore before that, okay? And now it turns out she is pure, okay?

So he says that if she is prohibited only because of doubt, then since it was revealed that she had been pure, the vow takes effect retroactively. If it was only a doubt—maybe she was slept with, maybe she wasn’t—then after she drank, the matter is clarified retroactively that she was pure. So if she was pure, then the oath takes effect, right? Because an oath takes effect; there is no existing prohibition on her. So if the oath takes effect, then he is forbidden to have relations with her because of the oath, right? But if she is prohibited with certainty, then even though she was found pure, still up to now she was under a positive-commandment prohibition, and one prohibition cannot take effect on another prohibition, because this was not hanging in suspension, since at the moment the oath left his mouth it did not take effect, as the Shakh wrote.

Again, he assumes the same assumption as in the previous practical difference, and basically assumes that on the side of certainty, the doubt has been removed—there is no doubt, she was slept with, we simply know she was slept with—that is what he calls certainty. Okay? But if we know she was slept with, how does that fit with the fact that she drank and emerged clean? It can’t. So it is obvious that on the factual level we remain in doubt—not just remain in doubt; we have a law to relate to it as though it were certain, but that does not remove the situation from being one of doubt. Therefore, even the side in Tosafot that says it is like certainty comes to teach us that a doubtful sotah is like certainty; it is not saying this is not from the laws of doubt, but rather that there is a prohibition inferred from a positive commandment to treat it as though it were certain. But if you are not in doubt, then you are not in doubt. The whole calculation is always made by way of a calculation of doubt—in other words, when you calculate what is forbidden and what is permitted, you do it as though this is a state of doubt, not a state of certainty.

That is probably the move of one side in Tosafot, where even on the side of certainty we exempt just as on the first side. Right, it’s not a practical difference, yes—also according to the side of certainty it is the same. By the way, on the side of double doubt, then maybe there would have been a move here that since fundamentally this is still a state of doubt, there would be a double doubt here. Someone could hold there is no double doubt because this is certainty; the first side is certainty. But no—fundamentally this is still a state of doubt; upon that doubtful state there is the first doubt, and on top of that perhaps another doubt—that would be the double doubt. But the first doubt does not exist, because you treat it as though it were certain. Fine, it exists fundamentally; and with double doubt suddenly the certainty here does function as though this is not doubt. No, then you are returning to what I said before. That’s why I said that in my opinion the double doubt is not the practical difference, because in the end, what? In what sense did you say that it is not a justification? I said that it is not reasonable to say—exactly what you are saying—that we treat as certain a state of doubt when I already have another doubt on top of it. Because if I already have another doubt on top of it, then the basic state I am talking about is a state of double doubt, not a state of one doubt. And who said that in such a case too we say to treat it as certain? You separate the doubts and say, with respect to that doubt I treat it as certain, and now I have another doubt, so that’s one doubt. I say no—let’s first see that this is double doubt, and now let’s see whether even with double doubt they told you to treat it as certain—which is basically what you are saying. A legal certainty, as though it were a factual certainty, and therefore yes, right—even though she is pure, we treat it as certain. Right, there is a prohibition even though she is pure, and I say no: on the side that she is pure there is no prohibition, even on the side of the inquiry that says this doubt is like certainty. That isn’t the point.

Rabbi Chaim says later there: and on this depends the dispute between the two versions in Tosafot. Until now we have seen Tosafot in Sotah, right? In Tosafot in the first chapter of Yevamot, however, he holds that the husband receives lashes if he had relations with her on the road in the case of a doubtful sotah, because the doubt is like certainty. In contrast to Tosafot in Sotah, which we saw says the doubt is like certainty but lashes are not administered, Tosafot in Yevamot says the doubt is like certainty and therefore lashes are administered. That is, Tosafot in Yevamot holds that the rule of doubtful sotah being like certainty means that we establish her as certainly having been slept with, and therefore lashes are administered just as for a definite sotah. But Tosafot in Sotah holds that the rule that doubt is like certainty does not mean we establish her as certainly having been slept with, but only that she has the laws of certainty. And that is for the matters stated in the passage—but regarding the prohibition of “he may not… after she has become defiled,” that was not said in that passage.

Yes, if it isn’t certainty but only doubt, then with doubt we go stringently regarding those matters that appear there—the three things: terumah, a kohen, what we saw, the three things—but not regarding lashes, because the issue of the prohibition of “after she has become defiled” does not appear in that derivation. If you say that it is as though she certainly had been slept with, then it is not limited to those three things; it applies to everything, in every respect, and therefore you also administer lashes to the husband who had relations with her. By the way, you administer lashes to him not because of the prohibition inferred from a positive commandment of “after she has become defiled”; you administer lashes to him not because of “and she became defiled,” but because of the regular prohibition of “he may not, after she has become defiled.” That is the regular prohibition of one who has relations with a married woman who committed adultery. Tosafot there says that this sotah who secluded herself, from our perspective, is a woman who committed adultery. In other words, if the husband had relations with her, he receives lashes like with a woman who committed adultery. That’s certainty. Okay.

By the way, according to this—let me just ask you now parenthetically—what if the woman knows she was not slept with? Can she have marital relations with her husband? I think the woman is permitted to have relations with him even on the side that says this is certainty. She is allowed to be with him even on the side that says certainty. Why? Because what does Tosafot say here? Tosafot says here that this is the novelty in the case of a doubtful sotah: that in a doubtful sotah the prohibition of “after she has become defiled” applies. The prohibition of “after she has become defiled” is not a prohibition on warning and seclusion; it is a prohibition on a woman who was slept with. The verse “after she has become defiled” was said about a woman who was slept with, not about a sotah. The novelty in sotah is that even if she only secluded herself, we view her as though she had been slept with. Right?

Now, it is obvious that if the woman knows she was not slept with, you cannot tell her: we view you as though you had been slept with. I spoke about this: there is no scriptural decree that says it is now night when it is known that now it is day. There can be a scriptural decree that says: relate to it as though it is night, or something like that. But you cannot say to a woman: there is a scriptural decree that you were slept with when I know I was not slept with. She knows she was not slept with. Therefore here it is even stronger. Here I claim that in Tosafot this goes—it really is certainty, even with regard to lashes; that is, absolute certainty. And even here I argue that it all begins from the state of doubt. And if the woman is not in doubt, then she is permitted to be with him. Completely unrelated. Since this entire prohibition of “after she has become defiled” is the prohibition for which you receive lashes. What is the prohibition for which you receive lashes? It is not the prohibition of having relations with a woman who secluded herself, but the prohibition of having relations with a woman who was slept with. “After she has become defiled” is a verse speaking about a woman who was slept with—that is the prohibition. But if she knows she was not slept with, how can you say there is on her a prohibition of a woman who was slept with? She was not slept with.

If you were saying that this is a new legal status—there is a prohibition concerning a woman who secluded herself after warning, regardless of the question of what happened in practice, whether she was slept with or not—then I could understand. In the end he would not receive lashes, because it is a prohibition inferred from a positive commandment, but if it had been a full prohibition then he would receive lashes. But if the prohibition is a prohibition on a woman who was slept with—“after she has become defiled” is after all the prohibition on a woman who was slept with. You are only telling me: husband, you don’t know, so treat it as though she certainly was slept with, and if you have relations with her you will receive lashes. Fine. But she—if she knows she was not slept with—you cannot say there is a scriptural decree that you were indeed slept with. I was not slept with. What do you mean? I know I was not. But this is not a legal status; it is a question whether she was slept with or not. How can there be a prohibition on a woman having relations because she was slept with when in fact she was not slept with?

I brought the Gemara in Sanhedrin regarding conspiring witnesses. Right, Abaye and Rava there, the dispute over conspiring witnesses, and afterwards a dispute among the medieval authorities (Rishonim) whether it is a scriptural decree. Rava’s view is that it is a scriptural decree, but that’s the ayin of the mnemonic Ya’al Kegam—the Jewish law follows Abaye there. But the question is whether in Abaye’s view this too is a scriptural decree. Maimonides says yes, the Tur says no. In any event, I asked: what do you mean, a scriptural decree? It cannot be a scriptural decree in the simple sense. A scriptural decree in the simple sense would mean this: two first witnesses come and say Reuven murdered. Two second witnesses come and say, “You were with us in such-and-such a place.” Okay? That means that in truth Reuven did not murder. Now, from the standpoint of truth this is two against two. It’s just that there is a scriptural decree to believe the latter two and not the first two. Right? That is the simple conception of a scriptural decree. In other words, if not for the scriptural decree, this is two against two. The scriptural decree says: true, this is two against two, but I decree that we believe the latter two and not the first two. It decrees that you must believe the latter two and not believe the first two.

Fine, but what you are then saying is that we will kill the first witnesses by force of a scriptural decree even though they in fact told the truth, or at least it is doubtful whether they told the truth. There is no such thing; it cannot be. The Torah cannot say to kill them for being liars—false witnesses, a false witness testified against his fellow, and therefore we kill him, right? But he is not a false witness; in terms of reality he told the truth. There is only a scriptural decree to view him as though he were a liar. So what is this scriptural decree? But he told the truth. And now you are going to kill this witness for being a liar even though in truth he is a truth-teller? There is no such thing, obviously not. There must also be some reasoning behind why the latter two are more credible than the first two, and the Gemara merely says that this reasoning by itself might not be enough to decide between two sets of witnesses, two against two. Who says that if you have some reasoning in favor of one side that is enough to decide? The scriptural decree says yes, that is enough. But that scriptural decree does not come without reasoning or in place of reasoning. It takes a reasoning and says: that reasoning is good enough, you can rely on it. If there were no reasoning, there would not be such a scriptural decree. There is no such thing.

And I gave you the example, right, of relatives who come and refute two witnesses. Fine? There is a scriptural decree not to accept testimony of relatives, right? In principle the relatives are credible, only there is a scriptural decree not to accept their testimony. Now since we do not accept their testimony, the first witnesses were not refuted. So if the first witnesses were not refuted, that means Reuven murdered, so we will kill Reuven. When in truth the refuting witnesses—the relatives—are speaking truthfully, and therefore it is clear that he did not murder. So I will kill him for being a murderer even though in truth he did not murder? There is no such thing in the world, what do you mean? There is no scriptural decree that says to kill an innocent person because he murdered when he did not murder—when in truth he did not murder. That cannot be. There are no scriptural decrees like that. Do you understand? A scriptural decree can innovate law; it cannot innovate reality. If he did not murder, then he did not murder.

Suppose there are invalid witnesses and a get, so then she… and suppose she then went and became a married woman, so we would not kill him. That’s unrelated, because with witnesses, their status is constitutive; the get is simply not a get. What does that have to do with it? Not because they are not credible. Obviously here yes, because… Obviously, it is not because they are not credible; the get is not a get. What does that have to do with it? You need valid witnesses in order for the get to be a get; it is not because they are credible. It is not a question of credibility. If there were a credibility problem here, obviously we would not kill him. If I know that in truth he does not deserve to die, there is no religious court that would kill him. Unless compelled, and so on. Right.

Why do we believe the refuting witnesses if we didn’t have the whip over those… what? Say that again? How do we believe the refuting witnesses? With all due respect to the whip, I am not going to kill witnesses who told the truth, or a murderer who did not murder. That is all a judicial mistake. No, it is not a judicial mistake; it is a mistake that I know I am making. Again, mistakes always happen; I cannot control mistakes. Here I am talking about a case where I know I am wrong and I am going to kill him anyway. There is no such thing.

There is some reasoning in Tosafot or in Even HaEzer that says that if there is a defect in kiddushin, and a case came before him, and they told him this couple and that one was a relative, he did not suspect the kiddushin, even though one of the witnesses was a relative, because we know there was kiddushin—that is, there was a crowd. He brings there the phrase galleries, or that there was a crowd… There wasn’t a large crowd there… No, that’s something else. There the question is whether this witness invalidates under the rule “a relative or invalid was found among them.” Obviously—what do you mean by galleries? Galleries means there is another valid witness in his place, so why shouldn’t there be kiddushin? When there is one valid witness and one invalid witness, then the invalid one comes from elsewhere. But he has the crowd, right? That is always the whole issue in kiddushin. So what do you need the galleries for? There was some formulation there that if there was a large crowd… So what? Then there is public knowledge. Again, not related; it’s still the same thing. You are just saying they are not witnesses in the sense of two witnesses, but the crowd constitutes witnesses. Like “the witnesses of seclusion are the witnesses of intercourse.” What is that? We didn’t see the intercourse, but if we treat it that way, presumptions are like witnesses. If it is established publicly as such, then it is like witnesses. That is not what I am talking about here; that is something else. He is not relying on the invalid witness. If the invalid witness had not been there, it would still have been the same. If the invalid witness had not been there at all, it would still have been the same.

Because of our reasoning that emerges from reality, we assume something… That is what I said before: categorically and halakhically, we execute and stone on the basis of presumptions. In other words, if, say, it is known that I am my father’s son, and now a witness comes and says, “You are not your father’s son, you are a mamzer,” I brush him aside. Why? Are there two witnesses against him? Why don’t I… There is one witness. Why? Because there is no place whatsoever to take him seriously. Yes, because we know I am my father’s son. So the authority says to you that you are a mamzer. The reality is that you are a mamzer. That is the reality, that you are a mamzer. What do you mean? But if you are a mamzer, then you are a mamzer—what do you mean? What is legal authority? Why? The truth is that you are a mamzer in reality. But there is a process of legal clarification here. No, you are a mamzer if your mother committed adultery and you were born from that. That whole process is only to clarify under the laws of evidence; it is unrelated. But if I know I am a mamzer, then I am a mamzer. What does that have to do with the laws of evidence? But in the Torah there is a judicial process. But it is unrelated. Again, the clarifications are for someone who does not know; someone who knows, knows. This is only in the laws of evidence; it is not substantive law. It is not like witnesses to kiddushin. Witnesses regarding mamzerut are not like witnesses to kiddushin; they are not witnesses for the existence of the matter, but witnesses for clarification. Only in matters of forbidden sexual relationships, to clarify, you need two witnesses. That’s it. Okay.

But there is also a rule that relatives are not valid. Fine, according to your approach they too are called valid, because we have a clarification here basically. For clarifications, certainly. So if two related witnesses come and say that someone is a mamzer? Of course, of course. That’s what Maimonides writes regarding what I said before, regarding monetary law: that in monetary law too, even if two related witnesses come, or even without witnesses at all, if it appears to you that this is the truth, then this is the truth. Because in monetary law what matters is the question of what is true. It doesn’t matter; the laws of evidence are only there to clarify what is true. So if I don’t know what is true, then there are rules: there are two witnesses, they need to be valid witnesses, everything is fine. If I know what is true, then I don’t care about all the laws of evidence.

As I mentioned when I sat on panels that annulled kiddushin—I happened to sit twice on panels that annulled kiddushin. So I discussed this with Rabbi Rafi Stern, who of course did not agree, but we talked a bit about the matter. And he said something true—he opened my eyes to a point I had not really thought about—that this act is not an act at all; it is not a judicial act at all. We simply told her that she is not married, that’s all. We revealed to her the reality that she is not married. It’s not “the rabbis uprooted his kiddushin”; I’m not the leading sage of the generation, I haven’t reached that level of megalomania. I mean that when I annul kiddushin, I do not uproot kiddushin. To annul kiddushin means that on such terms she never consented. Say he ran away on the first night and didn’t come at all—one of the cases—he never came to the hotel after the wedding; he was simply abroad because he had secretly flown away with another woman. So in a case like that, she certainly did not consent on such terms, so there was no kiddushin. Fine? Without getting into whether one agrees or not, that was the reasoning. Okay?

Now if that is the reasoning, what does it actually mean? If on such terms she did not consent, that means that in truth there never was kiddushin. We do not need to annul the kiddushin. This is not a judicial act. I simply told her the reality she did not know. She didn’t know she wasn’t married, so I reveal to her that she isn’t married, because she doesn’t know Jewish law. But this is not a judicial act; it is the act of a halakhic decisor, not the act of a judge. The halakhic decisor simply tells you whether something is forbidden or permitted; he does not apply a legal status making it forbidden or permitted. It either is forbidden or it is permitted; the halakhic decisor only reveals that to you if you don’t know. A judge applies laws. A judge actually determines a law that perhaps, without his determining it, doesn’t even exist—in criminal law. In civil law too, a judge is really like a halakhic decisor. In civil law too, a judge basically just has to reveal to you what the law is. After all, if you borrowed, it is obvious that you are obligated to repay, even if the judge did not say that you have to repay, right? We go to religious court only because there is no agreement between us and I am not repaying, but he knows I am lying so he takes me to religious court. But obviously the obligation to repay was not created because we came to court and they ruled that I am liable. The obligation to repay was created by the fact that I borrowed. If I borrowed, I must repay. Right? In contrast, liability for lashes and liability for death, for example, do not exist until the religious court determines them. That is Rabbi Akiva Eiger in Makkot on page 5. Rabbi Akiva Eiger there comments on Tosafot—it doesn’t matter—and says there that as long as the court has not imposed on you liability for lashes or death, that liability does not exist. Not that the court has not yet revealed that there is liability, but that it does not exist.

By the way, in the ordination controversy—did you read it? I don’t know. In the ordination controversy in the 16th century there was the dispute between Rabbi Yaakov Beirav and the Maharalbach. Why did they want to renew ordination? In order to administer lashes to forced converts and help them be released from karet. Because those liable to karet who receive lashes are exempted from their karet. But for that you need ordained judges. Why? After all, he is liable for lashes—give him lashes and everything is fine; what’s the problem? If it is not lashes administered by ordained judges, then he is not liable for those lashes, and if he is not liable for those lashes and you gave him lashes, it will not release him from karet. It has to be a punishment imposed on you by religious court and carried out. And if the punishment was not imposed on you by religious court, then you are not liable for it. If a person intentionally desecrated the Sabbath in the presence of witnesses and prior warning, should he jump off the roof today? There is no ordained court; no one will kill him. Should he jump off the roof? He is seemingly liable for death; there is just nobody to carry it out. No. If there is nobody to carry it out, then he is not liable for death at all. In other words, without the court imposing it, you are not liable for death.

Fine, so that is one side of presumption. But the average person has a presumption. What presumption? But if he is a mamzer, then he has no presumption, because from birth he is a mamzer. There is no stage at which he was not a mamzer and only now the question arose. What presumption is there? There is no presumption whatsoever. If they say he is a mamzer, then he is a mamzer from birth. What presumption does he have? Yes, obviously, but that is something that can be clarified. If you say that a woman committed adultery and she previously had a presumption of fitness, then you say she has a presumption and now because of the doubt I continue with the presumption. But if I am right that he is a mamzer, then he was always a mamzer. There is no presumption here. Because who knows what the truth was? Nobody knows, so we follow the witnesses. No, then we follow the witnesses, fine—but the rules do not say there is a presumption here; there is no presumption. There is no presumption. What there is here are presumptions of the other kind. If he is established in public as fit—not because of an original presumption. Right? Not a presumption that he had the status of fit and now you want to remove him from it. Rather because of a presumption that he is not a mamzer. The fact that the public sees him as not being a mamzer—once the public sees him as not being a mamzer, that functions like a presumption. That is what they are talking about when they say that we stone and burn on the basis of presumptions. It is not an original presumption.

Now in the Gemara in Yevamot 11: Rav Yehuda said in the name of Rav: the co-wife of a sotah is prohibited; “defilement” is written regarding her as with forbidden sexual relationships. Yes, there the subject is levirate marriage. Now one woman and another one—Rachel and Leah are married to Jacob. Fine? Rachel became a sotah—warning and seclusion and so on. Now Leah is her co-wife. Then Jacob dies childless. A real Greek tragedy. Jacob dies childless, and now the two of them fall before Esau for levirate marriage. Fine? Jacob’s brother. Okay? Esau was a Jewish apostate, right? That’s what the Gemara says. So they fall before Esau for levirate marriage. Fine? Since Rachel committed adultery, then the co-wife of a sotah—her co-wife is forbidden to the yavam as his brother’s wife because there is no obligation of levirate marriage. Once she committed adultery, she is prohibited to the husband, and if she is prohibited to the husband then there is no obligation of levirate marriage for the yavam. Her co-wife is the same. That is what the Gemara says.

The Gemara asks: Rav Ashi objected—if she entered seclusion with him and stayed with him for the time sufficient for defilement, she is forbidden to her household, forbidden to eat terumah, and if he dies she performs chalitzah and does not enter levirate marriage. So what do we see? That a sotah does perform chalitzah. You say that a sotah is entirely exempt—she needs no chalitzah, no levirate marriage, nothing; she is prohibited to the yavam. Rav said to you: I told you about a definite sotah, and you bring me a doubtful sotah? Above, when it says she entered seclusion with him and stayed with him for the time sufficient for defilement, it means she was actually slept with. Actually slept with; this is not a sotah of warning and seclusion where we are in doubt whether she was slept with. This is a definite sotah. It is not the concept of the sotah passage that we know. It is a definite sotah. We are speaking about the sotah passage of warning and seclusion—that one indeed performs chalitzah and does not enter levirate marriage. But a definite sotah neither performs chalitzah nor enters levirate marriage; nothing. Fine?

The Gemara asks: what is different about a definite sotah? What is the reason? Because “defilement” is written about her. With a doubtful sotah too, “defilement” is written about her. Why with a definite sotah do we say she is not subject to levirate marriage? Because “defilement” was written regarding her. If she is defiled to her husband, then she is not subject to levirate marriage. About a doubtful sotah too it says “and she became defiled.” Everything in the sotah passage—the “and she became defiled” that we know. So the Gemara says: as it was taught, Rabbi Yosei ben Kifar says in the name of Rabbi Elazar: one who remarries his divorced wife after she married someone else is prohibited if she was previously married, but if she had only been betrothed she is permitted, because it says “after she has become defiled.” And the Sages say both this one and that one are prohibited. So how do I interpret “after she has become defiled”? To include a sotah who secluded herself. So you see that “has become defiled,” the language of defilement, also refers to a sotah who secluded herself, also to a doubtful sotah. And what is “she secluded herself”? The Gemara says: she was slept with. No, it is not doubt; it is certainty. “She secluded herself” means she was slept with. Fine—above too, “she entered seclusion with him and stayed with him for the time sufficient for defilement”—that also meant she was slept with. As we already spoke about above, that is a strained interpretation. And why call her “she secluded herself”? They used a refined expression. They did not want to say “she was slept with,” so they said “she secluded herself.”

The Gemara says: if it means she was actually slept with, then there is nothing novel here; defilement is explicitly written about her. You don’t need “after she has become defiled” to make a big issue of it; it says there explicitly that she became defiled: “and she secluded herself and she became defiled.” Rather, it is to establish a prohibition on her. And Rabbi Yosei ben Kifar—does he not have the prohibition regarding a sotah? Even if she committed adultery too, what is the reason? “Marriage” and “wifehood” are written about her. In short, for our purposes the details are less important; for our purposes the question is what the law is with a doubtful sotah. Is a doubtful sotah prohibited to her husband or not prohibited to her husband? What do you mean prohibited to her husband—she is prohibited to her husband in any case. But the question is whether she is exempt from chalitzah and levirate marriage. Okay, so that is the dispute.

Now Maimonides rules: a woman who committed adultery under her husband willingly and with witnesses, and he died before divorcing her and she fell before the yavam, she is exempt from both chalitzah and levirate marriage. So that is when she really committed adultery—we know it; there are two witnesses. And likewise her co-wife, as though she were a forbidden relation to the yavam, because “defilement” is written regarding her as with forbidden sexual relationships. But a sotah whose husband died before making her drink the bitter waters, or who is not fit to drink but rather fit only for divorce, she performs chalitzah and does not enter levirate marriage. And if she had a co-wife, her co-wife is permitted and may either perform chalitzah or enter levirate marriage. The co-wife may even enter levirate marriage, but the woman herself also performs chalitzah—yes, she does perform chalitzah. What does that mean? That a doubtful sotah is not like a definite sotah. A definite sotah is exempt from chalitzah and levirate marriage; a doubtful sotah is not. Ostensibly that really fits the view that a doubtful sotah is doubt, not certainty. There is a difference between a doubtful sotah and a married woman who was definitely slept with, in our inquiry, right? What creates the distinction between a doubtful sotah and a definite sotah is basically a tannaitic dispute, but Maimonides rules like the tanna who says there is a difference between a doubtful sotah and a definite sotah. In other words, regarding a doubtful sotah, it was not newly taught that she is like certainty. Now someone who says that she is like certainty will say that a doubtful sotah also neither performs chalitzah nor enters levirate marriage, right?

Notice—and this is very interesting—because it comes out from here that again, as above, when they tell me that I should treat this doubt as though it were certainty, the implication is lenient, not stringent. She does not need chalitzah or levirate marriage; she is permitted to the general public without that too, right? So he says that it’s not that this is the laws of doubt. I am just reinforcing the point: notice that when I say you should treat the doubt as certainty, I did not say here that this is the laws of doubt, okay? I see her as though she certainly had been slept with, period—not from the laws of doubt. So if that is the case, even if the implication is lenient, we will follow that leniency too. If you say this is from the laws of doubt and there is a novelty that in the laws of doubt one has to go stringently, then I would not draw lenient consequences. But the novelty here is not that one has to go stringently; the novelty is that it is like certainty. Certainty for what purpose? Both for leniency and for stringency; it doesn’t matter. Okay? In other words, the novelty is not that we go stringently, but that it is like certainty. And here is the practical difference that Tosafot was looking for. Why do we need to say that with a doubtful sotah we go stringently? After all, a Torah-level doubt is treated stringently in general. Right? That is what Tosafot asked. And what did he answer? To tell you that it is like certainty. What novelty is there in saying it is like certainty? Here is the practical difference: in the Gemara itself there is a practical difference, that even where the practical difference is lenient, we still go leniently. If this had been from the laws of doubt where we go stringently, then we would not have permitted her to marry others without chalitzah. We would not have allowed levirate marriage, but at least chalitzah she should do, right? If you tell me it is as though she certainly had been slept with—not from the laws of stringency but because it is like certainty—then I go that way even in a lenient direction, because she certainly was slept with. So if she certainly was slept with, then she is prohibited to the yavam, so she neither performs chalitzah nor enters levirate marriage. That is really the practical difference for what Tosafot introduced there in Sotah.

In the Shulchan Arukh we will soon see whether it is really the same thing. The Shulchan Arukh writes: one whose wife committed adultery under him—that same law—with witnesses and willingly, and he died childless and she fell before his brother, her status is like that of a forbidden relation, and she and her co-wife are exempt from chalitzah. But if it is doubtful whether she committed adultery, she performs chalitzah and does not enter levirate marriage, and her co-wife either performs chalitzah or enters levirate marriage. Like Maimonides, right? With one difference. What? Like Maimonides. No, Maimonides says “and does not enter levirate marriage,” while the Shulchan Arukh says “or.” No, Maimonides says the co-wife may perform chalitzah or enter levirate marriage. They both say that; it is the same thing. The difference is—I don’t know, this is just my instinct, I’m not sure it’s real—that in the Shulchan Arukh he does not speak about a sotah after warning and seclusion. He says: one where it is doubtful whether she committed adultery. This is not the regular laws of sotah. If there is a woman where it is doubtful whether she committed adultery or not committed adultery. The doubt of warning and seclusion is the sotah passage; it has its own separate passage with all the rules there. The Shulchan Arukh does not—look how Maimonides writes it. Maimonides writes: but a sotah whose husband died before he made her drink the bitter waters, or who is not fit to drink but only fit for divorce. He is speaking about a sotah from the sotah passage, okay? The Shulchan Arukh speaks about a woman where it is doubtful whether she committed adultery.

Now maybe she is not—I’m not sure; usually I think they interpret him like that, but I’m not sure that is correct, especially in light of what I have been telling you for several classes, namely that I think in sotah there is something stronger than an ordinary doubt of defilement, because she has already damaged the marriage. Therefore this is a doubt of defilement and not just a doubt of prohibition; she has already damaged the marriage, because she secluded herself after the warning. But a woman where it is simply doubtful whether she committed adultery—if she did not commit adultery, then nothing happened, she did not damage the marriage. Why should you remove her from the status of a married woman? So it need not be the same. Again, in the usual way people read the Shulchan Arukh, everyone I have seen reads him like Maimonides. I am not one hundred percent sure that is right. Again, because everyone does not accept what I keep repeating: that warning and seclusion create a state that is itself problematic, even before the question—before the concern—that this creates that she was slept with. The very fact that she secluded herself after warning is itself a problem. Fine?

The Rema there brings that the Raavad disagrees—not Raavad, I mean in the glosses; there is no gloss on this Maimonides. So he says as follows: and there are those who say that even if she definitely committed adultery she still requires chalitzah, and the same applies to her co-wife. He is speaking about someone who definitely committed adultery, not a sotah. Right? What is the law of such a woman? In the Shulchan Arukh and in Maimonides they wrote: neither chalitzah nor levirate marriage—she is prohibited, right? He says no: even one who definitely committed adultery still requires chalitzah. Levirate marriage is forbidden to her, but she still requires chalitzah. Fine? And the same applies to her co-wife, and one should be stringent. So according to the Raavad it comes out that even one who definitely committed adultery performs chalitzah. Then we return to a situation where there is no difference between a doubtful sotah and a definite sotah. True, in both cases she performs chalitzah and does not enter levirate marriage, but there is no difference between doubt and certainty. So one can still say that the rule is that we treat doubt as though it were certainty, because it is the same law. The law of doubt and the law of certainty are the same law; it’s just that in this case she also performs chalitzah. And why? Because I think that according to the Raavad this is really from the laws of doubt; it is not a certain prohibition. In the laws of doubt, you go stringently. The rule is that with a doubtful sotah you go stringently. Not that the rule is that with a doubtful sotah you see her as though she certainly had been slept with. With a doubtful sotah you go stringently. Fine?

Fine, but if you go stringently then you will not permit her without chalitzah. If you say it is as though she certainly had been slept with, then you would permit her without chalitzah even though that is a lenient practical difference. They didn’t tell you to go stringently; they told you to see her as though she certainly had been slept with. But according to the Raavad they tell you to go stringently; they do not tell you to see it as though she certainly had been slept with. And here you have another implication of these two conceptions: do I see her as certainly having been slept with, or do I say that with doubt we go stringently? The implication is what happens with practical differences that are lenient. If we see her as though she certainly had been slept with, that includes lenient practical differences. If they tell me no, with this doubt always go stringently, fine, then I will not permit her without chalitzah; I will always go stringently. Fine?

Now Tosafot there in Yevamot writes as follows: “the co-wife of a sotah is prohibited”—not literally prohibited, for she is even exempt from chalitzah, as explained in the commentary. And that is specifically with a definite sotah. But a doubtful sotah requires chalitzah. Again, like Maimonides, right? A doubtful sotah requires chalitzah, as brought immediately afterward. Here “doubtful sotah” means the regular doubtful sotah of the sotah passage, not “doubtful whether she committed adultery,” right? That is clear. In the Gemara itself there, they are speaking about a doubtful sotah. As brought immediately afterward, for the verse “and she secluded herself and she became defiled” refers to one who was definitely slept with, as concluded later on. But regarding a doubtful sotah, defilement is not written about her. And if you say: but we learned, “if she entered with him into a secluded place, she is prohibited to her household and prohibited to terumah,” and we expound in the chapter “Just as,” three times it says “and she became defiled”: one for the husband, one for the adulterer, and one for terumah. One can say that Scripture prohibited her only because of doubt—perhaps she was slept with and became defiled; and really defilement is written only about one who was definitely slept with. Defilement is not written there, but they prohibited her because of the doubt that perhaps she was slept with. And that is not a status of defilement; in other words, it does not prohibit her from entering levirate marriage.

And if you say—Tosafot continues—since defilement was written there only about certainty, written there only about certainty and not about the regular sotah, why then is she prohibited to her household and to terumah? One can say that Scripture made doubt like certainty, as stated in the chapter “Just as”: if she became defiled, why does she drink? And if she did not become defiled, why do we make her drink? Scripture teaches you that doubt is prohibited like certainty. And therefore a doubtful sotah requires chalitzah, because Scripture made doubt like certainty only to be stringent, not to be lenient by exempting her without chalitzah. Right? You see that he is basically saying that this is from the laws of doubt, and the rule that a doubtful sotah is treated stringently is a rule telling me to be stringent, not that it tells me she certainly had been slept with. If it tells me she certainly had been slept with, then there are also lenient practical differences. But if it tells me “go stringently,” then only practical differences toward stringency, not practical differences toward leniency. So I will not permit her without chalitzah.

Tosafot there in Yevamot on the second side, however—this is the second Tosafot Rabbi Chaim brings—“what does ‘and she secluded herself’ mean? She was slept with.” And if you say: since no prohibition was written regarding a doubtful sotah, why does it say in Sotah that if her husband had relations with her on the road he receives lashes? He assumes that a husband who had relations with a doubtful sotah receives lashes. Tosafot in Sotah explicitly said no, right? That it is a prohibition inferred from a positive commandment and therefore he does not receive lashes. And one can say that Scripture made doubt like certainty for stringency. Here this is indeed a source from which one sees that the doubt here is really certainty, as though she certainly had been slept with. Because here it is even a practical difference regarding lashes. Tosafot in Sotah also says that they made the doubt like certainty. But he says that they made the doubt like certainty only regarding the implications, because as a matter of fact he says lashes are not administered. Fine? Therefore I said that this expression itself—“they made the doubt like certainty”—can itself be interpreted in several ways; from that wording alone one can learn nothing. But from the implications we can see it.

Now, in practice, I don’t think there are just three possibilities for understanding the rule that a doubtful sotah is treated stringently. One possibility is that they gave us an instruction to be stringent. A second possibility is that we really view her as certainly having been slept with, and then the prohibition of “after she has become defiled” would apply to her, including lashes, just like a woman who was slept with. And a third possibility—not a practical difference, a third possibility—is that this is a prohibition inferred from a positive commandment. Now, is that prohibition inferred from a positive commandment something newly created or not? There are two shades within that possibility. Tosafot says it is not newly created, but only a prohibition inferred from a positive commandment to treat doubt as certainty. But one can read it as Rabbi Akiva Eiger read it: then it is a newly created prohibition inferred from a positive commandment—not to treat doubt as certainty, but rather there is a prohibition inferred from a positive commandment apparently on warning and seclusion, not even because of the concern of intercourse; the very fact that there was warning and seclusion creates a prohibition inferred from a positive commandment. Okay, so really there are three possibilities and not two. Okay, yes, and this itself has two shades in that middle option.

Now Maimonides in the laws of divorce says: and included in this prohibition is that any woman who committed adultery under her husband becomes prohibited to her husband, and one receives lashes for violating that with her, as it says “after she has become defiled,” and “she became defiled,” unless she was the wife of an Israelite and was raped. Therefore any woman who became prohibited to her husband through warning and seclusion—if he had relations with her, they give him disciplinary lashes. On the contrary, disciplinary lashes, not biblical lashes. Why? Because it is not certainty; therefore they do not administer biblical lashes. Against Tosafot. Tosafot says that one really does administer lashes to one who had relations with a sotah, right? Maimonides says no—one does not administer biblical lashes, only disciplinary lashes.

Now Maimonides and Tosafot may each follow their own approach. Why? Because Maimonides holds that a Torah-level doubt is treated stringently only rabbinically, but on the Torah level a Torah-level doubt is treated leniently. So the question why they said that in the case of a doubtful sotah one should be stringent does not arise. It is obvious: they came to tell you that here one indeed must be stringent, because with ordinary doubts one need not be stringent on the Torah level. So in the case of a doubtful sotah there is no question why the Torah said to be stringent; without the Torah saying so, I would not be stringent. Therefore Maimonides does not need to say that the novelty here is that we treat the doubt as certainty. He does not need to get there. The novelty is that we go stringently—that is the novelty. But Tosafot, who says that Torah-level doubt is generally treated stringently, not only in sotah, asks this explicitly—it is not speculation; Tosafot himself asks it—so why do we need a novelty in sotah that one goes stringently? In any case, we would have gone stringently. Rather it must be in order to say that we view the doubt as certainty. There has to be some greater innovation than merely going stringently in cases of doubt. According to Maimonides, no. So Tosafot is consistent with his approach and Maimonides is consistent with his approach. Fine?

Rabbi Chaim indeed says this: and behold, Maimonides in chapter 11 of the laws of divorce holds that with a doubtful sotah one does not administer lashes, and it is clear that he holds that the rule is not that we establish her as certainly having been slept with. And according to this one can resolve—it doesn’t matter, there he already ruled on this in Naziriteship and so on, which is no longer relevant for us, those are other questions. But Maimonides follows his approach and Tosafot follows his approach, and here I close the circle. This is really it: I began with an introduction to the laws of doubt. We saw that there is a dispute whether doubt is treated stringently or leniently. Then Rabbi Chaim’s inquiry: whether the novelty in a doubtful sotah is that the doubt is grasped as certainty, or whether the novelty is that one goes stringently. According to Tosafot there is nothing novel in saying that here we go stringently; with every doubt we go stringently. You have to say that the novelty is that the doubt is like certainty. According to Maimonides, the novelty is that one goes stringently, because generally we would go leniently, because in general a Torah-level doubt is treated leniently.

Within Tosafot’s own approach there is room for hesitation. When we say that we regard this doubt as certainty, what does that mean? That one actually even receives lashes? That is Tosafot in Yevamot. Tosafot in Sotah says no—it is a prohibition inferred from a positive commandment; one does not receive lashes. In other words, it does not truly become a full prohibition about someone who was slept with, but rather it is viewed as someone certainly slept with on the level of a prohibition inferred from a positive commandment, not on the level of a full prohibition. Not really that she was slept with; it is only a halakhic instruction. And even within this Tosafot we saw two possibilities: Rabbi Elyashiv and Rabbi Akiva Eiger, those two possibilities. Does Tosafot mean that this is an independent prohibition on warning and seclusion in itself—as it seems from Rabbi Akiva Eiger’s reading—and Rabbi Elyashiv, and I think he is right, says that Tosafot means that the prohibition inferred from a positive commandment comes to tell you to be stringent with doubt as though it were certainty. But if you violated the prohibition, you did not violate a full prohibition. In other words, the prohibition inferred from a positive commandment basically comes to turn the doubt into certainty, but on a somewhat lower level—not on the level of something for which lashes are administered. Fine? I think that is the plain meaning in Tosafot.

Good, so we have a few minutes left, and you wanted something on Hanukkah, so I’ll tell you something about Hanukkah. There is a lot to say about Hanukkah. What? We’re not learning next week? What, Thursday and Sunday? Thursday and Sunday next week we’re not learning. Thursday and Sunday? At the university? From the last Thursday and Sunday. Do we learn Monday? The last Sunday. Monday is the eighth day, but there are no candles. Candles are only Sunday evening. Ah, no candles. But here too, how do you stop at four? It matters for courses from four o’clock. Because every Hanukkah we finish at four anyway. Every Hanukkah, four.

Look at Maimonides, the laws of Megillah and Hanukkah, beginning of chapter 3: In the Second Temple era, when Greece ruled, they issued decrees against Israel and abolished their religion, and did not allow them to engage in Torah and commandments, and they stretched out their hand against their property and their daughters, and entered the Sanctuary and made breaches in it and defiled the pure things, and Israel was greatly distressed because of them and they oppressed them severely, until the God of our fathers had mercy on them and saved them from their hand and rescued them, and the sons of the Hasmoneans, the High Priests, overcame them and killed them and saved Israel from their hand, and they established a king from among the priests, and sovereignty returned to Israel for more than two hundred years until the second destruction.

Yes, that is a bit of an allusion to Nachmanides—not that Maimonides is alluding to Nachmanides, but still, it is fitting, because Nachmanides says that it was a sin to establish a king from among the priests. Because it says “the scepter shall not depart from Judah”; the king must be from the house of David, and the priests are from the tribe of Levi. It is forbidden to appoint a king from among the priests. He brings a dispute in the Jerusalem Talmud: one opinion says it is because “the scepter shall not depart from Judah,” and another opinion says there is a juxtaposition: “the Levitical priests shall have no portion…” and immediately afterward the passage of the king. And from that juxtaposition of the passage of the king to the passage of the priests, we see that it is forbidden to appoint a king from among the priests. And the claim is that when you appoint a king from among the priests, you violate two prohibitions: first, that he is not from the house of David; and second, that there is a special prohibition against a king from among the priests. He must not be from among the priests.

And why not? By the way, this is a very current and important lesson for our times, because there is separation of powers. There is separation of powers. Meaning, the priest’s role is to serve in the Temple; he should not run the state. A very practical point regarding the Council of Torah Sages. Let the Council of Torah Sages run its own home with its four books, its four cubits of books. They should not issue instructions about how to run ordinary life. It is not right to function that way. But one can elaborate a great deal on that. In any case, Maimonides here says the opposite: this is a celebration—they established a king from among the priests, and sovereignty returned to Israel for more than two hundred years. That in itself does not prove that he disagrees with Nachmanides. It may be that establishing a king from among the priests is very bad, but still, we were saved, we won the war, sovereignty returned to Israel—that is what we celebrate. That too is a practical point.

There is also a general claim that the tribe of Judah retained the crown of kingship, so it is not… What? He was from the house of David through his mother? I don’t know, but if he was from the house of David through his mother, that is not a claim—that’s what the Gemara says. Not regarding Hanukkah; maybe that’s why tractate Hanukkah was not brought. Okay. In any event, I am saying that in principle it is not certain that Maimonides disagrees with Nachmanides on this issue. It may be that he says it is very bad that they established a king from among the priests, but in practice sovereignty returned to Israel for more than two hundred years, we were victorious, and praise and thanksgiving to the Holy One, blessed be He, are due. Okay? That too is a practical point for today, everything is relevant. Why? Because among us too there is a dispute surrounding Zionism. Fine? Meaning, Zionism did this, did that, look what the state looks like, and therefore I do not say Hallel on Independence Day. Right? Because look what the state looks like. What the state looks like is our fault, not God’s fault. In other words, if He gave us these things, then we need to thank Him for that. The fact that we messed up and created a state that is run in an improper way—okay, then we need repentance. God did not appoint Ben-Gurion to be the first prime minister; we appointed him. So that does not detract from our obligation to thank the Holy One, blessed be He, for what He did for us. Assuming that He did—I’m not entering into the other theological approaches now, right? That’s another discussion. Fine, so that’s a second current point.

Now halakhah 2: And when Israel prevailed over their enemies and destroyed them, it was on the twenty-fifth of Kislev, and they entered the Sanctuary and found no pure oil in the Temple except for one flask, and there was enough in it to light only for one day, and they lit from it the lamps of the Temple arrangement for eight days until they crushed olives and produced oil. Fine, until here the story. And because of this, halakhah 3: and because of this the Sages of that generation enacted that these eight days, beginning from the night of the twenty-fifth of Kislev, should be days of joy and Hallel, and they light lamps in the evening at the entrances of the houses every night of the eight nights in order to display and reveal the miracle. And these days are called Hanukkah, and they are forbidden for eulogy and fasting like the days of Purim, and the lighting of the lamps on them is a commandment of the Sages like the reading of the Megillah.

First of all, there is the famous question, right—the dispute between Beit Shammai and Beit Hillel whether one decreases and goes down or increases and goes up. What did their parents do? What did their parents do? Didn’t you see how they lit at home? What did your father light at home? Everyone did whatever was convenient. What do you mean, whatever was convenient? But the dispute begins between Beit Shammai and Beit Hillel. So what was the previous generation doing? What was the previous generation doing? There was a class here about the tradition of how to light the… what… where from… okay. And also with tefillin—Rashi and Rabbenu Tam—so what did the previous generation do? Decrease and go down or increase and go up? You saw at home; every year they light, no? Where did this dispute come from? Maybe it was something new: we want to begin something new based on… I think more than that. One could have said, yes, I think differently from my parents and therefore I… but here it is harder, because this is an enactment. What do you mean “I think differently”? The question is: what was the enactment of the Hasmoneans? You are not changing the enactment now. What was… what was this enactment? What was the enactment? Look what your father did. No, the parents were different.

So I claim that Maimonides answers this as follows. Maimonides says they did not light multiple lamps before Beit Shammai and Beit Hillel. They lit one lamp—not that they did not light at all. This whole matter of the zealous and the most zealous observance was created by Beit Shammai and Beit Hillel. It may be that this was created as part of the desire to magnify the miracle of the flask of oil. We return to those scholars you mentioned earlier: after they went into exile, after the destruction of the Temple, and we were no longer in the business of military victories—that was no longer our theme—we returned to the pure flask of oil, to the spiritual issue, and focused on it. Therefore in earlier sources the flask of oil does not appear so much, and only in later sources does it appear, because the claim is that Hanukkah underwent a certain reshaping. After they had already gone into exile, and we no longer had a state or anything, what was there to celebrate in a victory that had already dissipated and passed from the world? You celebrate a more spiritual miracle, right? You are already focused on Torah and not on the state, and so on—spiritual matters.

So what happens? I claim that as part of that process, Beit Shammai and Beit Hillel, who mostly came after—after the destruction—they began to shape their own lamp-lighting. Before that they may have lit one lamp per household, if at all. Fine? And afterwards they decided to institute the most zealous form. And now there is a dispute about how to do it: Beit Shammai think one way, Beit Hillel say another—bulls of the festival, whatever, that is already the dispute. But the enactment was made in the days of Beit Shammai and Beit Hillel; this is not a dispute over what was before. They are arguing about what to do now.

Look at Maimonides: “And because of this the Sages of that generation enacted”—which generation? The generation of the victory, the generation of the victory—“that these eight days, beginning from the night of the twenty-fifth of Kislev, should be days of joy and Hallel, and they light lamps in them in the evening at the entrances of the houses every night of the eight nights to display and reveal the miracle. And these days are called Hanukkah, and they are forbidden for eulogy and fasting like the days of Purim, and the lighting of the lamps on them is a commandment of the Sages like the reading of the Megillah.” Why does he return at the end and say, “and the lighting of the lamps on them is a commandment of the Sages”? I know that already. The Sages of that generation enacted it, didn’t they? What didn’t I understand? The Sages of that generation enacted it, right? “They light in them.” So what is he adding at the end by saying “and the lighting of the lamps on them is a commandment of the Sages”? Obviously—you said the Sages enacted it.

Look at his wording: “the Sages of that generation enacted that these eight days, beginning from the night of the twenty-fifth of Kislev, should be days of joy and Hallel, and they light lamps in them.” Not part of the enactment. The enactment was days of joy and Hallel. And we also light lamps on them. Why? Because in the days of Beit Shammai and Beit Hillel they added lamp-lighting too. Then Maimonides says at the end: and know that the lighting of the lamps, although it is something that was not in the original enactment, is still a commandment of the Sages like the reading of the Megillah. There were no lamps at all, or there was one? Maybe there was one, maybe there were none at all—I don’t know; Maimonides is a bit unclear here. But I think there are several hints in Maimonides here that this was in fact not an ancient enactment at all. It was a later enactment, and then the question simply does not arise why Beit Shammai and Beit Hillel are arguing over what their father did. He did nothing; he lit one lamp. They decided to expand it. Why? Perhaps because of the destruction or something like that.

And about this Maimonides says: the Sages of that generation enacted days of joy and Hallel, and “they light lamps in them”—not “days of joy and Hallel and that they should light lamps,” but “days of joy and Hallel,” period. And we light lamps in them. Why? Because of the enactment of Beit Shammai and Beit Hillel. Therefore Maimonides says at the end, and know that this later addition is also an enactment of the Sages, a commandment of the Sages, like the reading of the Megillah. It is part of that original enactment. It is a commandment of the Sages. Okay.

I think that’s enough. One could elaborate on many more things here, but thank you very much. Thank you. How joyful that is. Wait. Rafi. Rafael, sorry. Rafael is looking for a study partner. Is there anyone here looking for a study partner or who wants to learn? He also needs a little help with Hebrew. So if someone can, if it suits someone, or someone wants to learn with a study partner. In short, let’s leave it at that. If anyone wants to, please contact me and I’ll pass it along, okay? Think about it. Okay.