The Role of Reasoning in Halakha, Lesson 1
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
- Opening: doubt in theft, “the burden of proof is on the claimant,” and the problem of a doubtful prohibition
- Certain claim versus uncertain claim, presumptive possession, and strong uncertainty versus weak uncertainty
- Rabbi Shimon Shkop’s foundation: the theory of law, reasoning, and the relation to “do not steal”
- Rejecting a mistaken understanding: not only property facts but also a legal prohibition
- Stealing from a non-Jew and the Torah-level force of the legal prohibition
- Why obey without a commandment: reasoning as the basis of command
- Reasoning as Torah-level law: the sources of “why do I need a verse? It is reasoning” and what they mean
- The difficulty vis-à-vis rabbinic law, Maimonides and Nachmanides, and Rabbi Elchanan Wasserman
- Different strengths of reasoning: a spectrum rather than a binary, and alteration on the Sabbath
- Bava Batra: meat and wine versus procreation, and “better that they remain unwitting than become deliberate sinners”
- Blessings over enjoyment: the Pnei Yehoshua versus the Tzelach
- Laws of Rebels in Maimonides: changing a Torah law versus changing a rabbinic enactment
- The nature of rabbinic law as legislation rather than interpretation: the example of selecting
Summary
General Overview
The text opens by clarifying the concept of reasoning and its status through the question of the Mahari Basan as presented by Rabbi Shimon Shkop: why, in a case of doubtful theft, do we rule leniently on the basis of monetary law, even though apparently this is a case of doubt regarding a Torah prohibition. It focuses the difficulty mainly on cases of certain claim versus uncertain claim, where even the current holder himself is unsure, and it proposes a principle according to which the laws of monetary jurisprudence are built on a “theory of law” that precedes the commandment. Therefore the rule “the burden of proof is on the claimant” is a legal reasoning that defines possession as permitted, and so there is no concern of “do not steal” in such a case. From this it develops a broader claim: according to Rabbi Shimon Shkop, reasoning is an extremely binding foundation, to the point that even the very obligation to obey the Torah’s command rests on reasoning. It then analyzes the rule that “reasoning is Torah-level law” and the difficulties this raises in relation to rabbinic law, and presents a dispute between the approaches of the Pnei Yehoshua and the Tzelach as to whether reasoning can generate Torah-level law even when it creates an entirely new law, such as blessings before enjoyment.
Opening: doubt in theft, “the burden of proof is on the claimant,” and the problem of a doubtful prohibition
The Mahari Basan asks why, in a case of doubtful theft, we rule leniently for the defendant by force of the rule “the burden of proof is on the claimant,” since apparently this is a doubt regarding the prohibition of “do not steal,” and a Torah-level doubt should be ruled stringently. The text argues that in the ordinary case the difficulty is weaker, because Reuven and Shimon know the truth and only the judges are in doubt, so the current holder is not required to “be stringent” because of the religious court’s doubt when he himself has no doubt. The text sharpens the point that the serious question arises mainly in cases of certain claim versus uncertain claim, where even the current holder himself does not know whether he repaid or not, and then it would seem there is room to be stringent out of concern for theft.
Certain claim versus uncertain claim, presumptive possession, and strong uncertainty versus weak uncertainty
The text brings the topic of certain claim versus uncertain claim and notes that Jewish law rules that a certain claim is not preferable enough to extract money from someone in possession merely on the basis of a claim, because a claim is not proof. The text raises the possibility of formulating the topic through the concept of “presumptive possession by claim,” following the Chazon Ish, such that the one in possession might actually be the claimant when he comes with a certain claim, and it connects this to the view that a certain claim is preferable. The text presents Tosafot’s distinction between a strong uncertainty, such as the claim of orphans who cannot know the facts, and a weak uncertainty that arouses suspicion when a person says, “I don’t remember,” and mentions a discussion among later authorities as to whether uncertainty counts as a claim at all.
Rabbi Shimon Shkop’s foundation: the theory of law, reasoning, and the relation to “do not steal”
Rabbi Shimon Shkop concludes with the principle that the laws of ownership, acquisition, and monetary law differ from other areas of Jewish law, because in many areas the command itself creates the prohibition, whereas in “do not steal” we are dealing with a legal prohibition that precedes the commandment, and the Torah merely gives it formal sanction. He grounds the rule “the burden of proof is on the claimant” as a legal principle that appears in the Talmud in the wording “why do I need a verse? It is reasoning,” together with the expression “whoever has a pain should go to the doctor,” and concludes that when the law permits the holder to retain the money in such a case, that possession is not prohibited by “do not steal,” because “do not steal” simply anchors what the theory of law already says. The text notes that one could argue with this, but that is Rabbi Shimon Shkop’s claim.
Rejecting a mistaken understanding: not only property facts but also a legal prohibition
The text describes a debate in which it was claimed that Rabbi Shimon Shkop distinguishes between a factual dimension of “whose money it is” and a normative Torah dimension of the prohibition against taking it, and that the theory of ownership precedes the Torah while the Torah merely forbids harming what has already been defined as another’s property. The text states that this is not what Rabbi Shimon Shkop means, and proves it from the fact that he asks, “And perhaps you will say: why obey the theory of law?”—a question that assumes there is an obligation to obey a binding legal dimension, not merely a definition of ownership. The text concludes that Rabbi Shimon Shkop assumes there is also a meta-halakhic prohibition against taking or damaging property that is not yours, and on top of that the Torah adds another layer through the prohibition of “do not steal,” so that in theft there are “two prohibitions”: a legal prohibition and a religious prohibition.
Stealing from a non-Jew and the Torah-level force of the legal prohibition
The text brings a dispute among medieval authorities (Rishonim) and later authorities (Acharonim) as to whether stealing from a non-Jew is prohibited by Torah law or only rabbinically, and argues in the name of Rabbi Shimon Shkop that even if one says “do not steal” does not apply here, there is still a legal prohibition of theft according to all views. The text formulates this by saying that “by Torah law it is forbidden to steal from a non-Jew” even according to the view that the prohibition of “do not steal” does not apply to a non-Jew, because the legal prohibition is binding and Jewish law views it as having Torah-level force. The text connects this also to the statement that “the decree of the Flood was sealed because of theft,” and to the discussion of the Noahide commandments and the obligation to establish laws, and concludes that the prohibition of theft, whether among non-Jews or by a Jew against a non-Jew, does not necessarily depend on its inclusion in “do not steal.”
Why obey without a commandment: reasoning as the basis of command
Rabbi Shimon Shkop asks why one should obey the theory of law if there is no explicit commandment about it, and answers that the obligation to obey the Torah’s own commandments itself rests on reasoning, and therefore reasoning obligates here as well. He formulates it by saying that the superiority of command over reasoning is not simple, because “the command too is built on reasoning,” and the text concludes from this that reasoning is “in a certain sense even more fundamental than Torah law.” The text weaves in a story about an interview for medical studies in the context of induced abortion in order to illustrate that presenting “the halakhic prohibition” as detached from morality and reasoning is mistaken, and it adds an analogy from Descartes’ cogito to show that the assumption that “the simple” stands opposite “the derived” can reverse itself, so that the mental foundation precedes the material one just as reasoning precedes command.
Reasoning as Torah-level law: the sources of “why do I need a verse? It is reasoning” and what they mean
The text explains that medieval authorities and later authorities formulate the rule that “reasoning is Torah-level law” from the Talmudic wording “why do I need a verse? It is reasoning,” and mentions Rabbi Kasher’s Mefane’ach Tzefunot on the Rogatchover as a place that gathers sources for this from the Or Zarua and other medieval authorities. The text states that if a law derived from reasoning had a lower status than one derived from a verse, the Talmud’s question “why do I need a verse?” would make no sense, and therefore the assumption is that reasoning is equal in status to a verse. The text adds that from Rabbi Shimon Shkop’s perspective, the very need to bring proofs from the Talmud is itself problematic, because even accepting the authority of the Talmud depends on a thought process of reasoning, and therefore reasoning is the foundation of all obligation.
The difficulty vis-à-vis rabbinic law, Maimonides and Nachmanides, and Rabbi Elchanan Wasserman
The text raises the difficulty that if “anything established by reasoning is Torah-level law,” then rabbinic enactments too should count as Torah-level law, since they also have logic behind them. It brings the dispute between Maimonides and Nachmanides over whether the force of rabbinic law rests on “do not turn aside,” and presents Nachmanides’ claim that if rabbinic law derived from “do not turn aside,” the differences in doubts and legal rules between rabbinic and Torah law would disappear. The text brings Rabbi Elchanan Wasserman’s question in Kovetz Divrei Sofrim, where he has trouble locating a source of authority for rabbinic law either in a verse or in reasoning, because either one would seem to generate Torah-level force, and it formulates the problem as an apparent refutation with no simple answer.
Different strengths of reasoning: a spectrum rather than a binary, and alteration on the Sabbath
The text proposes a solution through a distinction that there are “strong reasonings and weak reasonings,” and that there is a spectrum of strengths and force, both in terms of the clarity of the reasoning and the level of obligation it creates. It illustrates this through the concept of an unusual manner of performing labor on the Sabbath, where there is a continuum between labor done in its normal way, which is Torah-level, labor done in an altered way, which is rabbinic, and something very far removed from the original act, which is entirely permitted; therefore the question “how much alteration” is an inherent one. The text applies this to reasoning and says that an elementary reasoning can be one about which the Talmud says “why do I need a verse,” while a weaker reasoning can remain at the rabbinic level.
Bava Batra: meat and wine versus procreation, and “better that they remain unwitting than become deliberate sinners”
The text brings a passage from the end of Chazkat HaBatim in which it says, “By right it would be proper to decree” that one should not eat meat or drink wine after the destruction of the Temple, but concludes that “we do not impose a decree on the community unless most of the community can abide by it,” and from this it follows that as long as no decree was enacted, there is no prohibition. The text compares this to the continuation of the Talmud there regarding the decrees of the wicked kingdom, where it says, “By right it would be proper to decree… that one should not marry a woman and have children,” but concludes, “better that they remain unwitting than become deliberate sinners,” and emphasizes that this wording belongs to a case where there really is a prohibition, but it is not publicized so as not to turn people into deliberate transgressors. The text concludes from this that in the case of procreation, reasoning generates a strong prohibition even without an explicit rabbinic decree, unlike the case of meat and wine, where there is no prohibition without a decree, and it adds the homiletic remark that this would mean, so to speak, that all of us are descendants of the ignoramuses of that generation.
Blessings over enjoyment: the Pnei Yehoshua versus the Tzelach
The text brings the topic in tractate Berakhot that seeks a source for a blessing before eating and concludes with, “Rather, it is reasoning: it is forbidden to derive benefit from this world without a blessing,” and presents the Pnei Yehoshua’s difficulty that if reasoning is Torah-level law, it would follow that blessings over enjoyment are Torah-level, and then cases of doubt about blessings should be treated stringently. The text brings the Tzelach’s response, who argues that not every reasoning creates a Torah-level law, and draws a distinction between reasoning that interprets a law which already has a source in the Torah and reasoning that creates an entirely new law; interpretive reasoning is Torah-level because the verse is the source of force, but legislative reasoning that generates a new obligation is rabbinic. The text concludes that according to the Pnei Yehoshua, in a case of doubt whether to recite a blessing before eating, one should at least say a thanksgiving formula without the Divine Name and kingship in order to satisfy the Torah-level requirement, whereas according to the Tzelach the obligation itself is rabbinic, and therefore the rule of leniency in cases of doubtful blessings remains intact.
Laws of Rebels in Maimonides: changing a Torah law versus changing a rabbinic enactment
The text brings Maimonides’ statement at the beginning of chapter two of the Laws of Rebels, that to change an enactment of a religious court one needs a religious court “greater in wisdom and number,” whereas to change a Torah law it is enough to have a court that is not necessarily greater than its predecessor. It presents the Raavad’s objection from the issue of adorning the markets of Jerusalem with produce, where Rabban Yochanan ben Zakkai canceled an enactment after its reason had ceased, and raises the possibility that the Raavad assumes the decline of the generations and therefore finds it difficult to imagine a later court greater than an earlier one. The text suggests an explanation according to which, in Torah law, the dispute is about the interpretation of God’s will and the authority is that of the Torah rather than that of the previous court, whereas in rabbinic law a change means going against the authority of the earlier legislator, and therefore an advantage of “greater in wisdom and number” is required.
The nature of rabbinic law as legislation rather than interpretation: the example of selecting
The text explains, following the Tzelach’s approach, that even when the Sages add a boundary within an area governed by Torah law, if they do not claim that it is included in the verse but rather add a similar prohibition as an enactment, the result remains rabbinic. It illustrates this with the prohibition against selecting “food from waste,” which is considered a legislative extension beyond the Torah-level definition of “waste from food,” and therefore is not an interpretation of Torah law but an added prohibition. The text concludes that at the point of dispute, the Pnei Yehoshua sees reasoning as conferring Torah-level status even in a newly generated law, while the Tzelach limits “reasoning as Torah-level law” to interpretive reasoning that depends on a scriptural source.
Full Transcript
[Rabbi Michael Abraham] We’re starting a different topic now, and that is the status of reasoning. I wanted maybe to speak a bit more generally about the concept of reasoning, and then we’ll get into the question of its halakhic status. Rabbi Shimon Shkop opens Gate Five with the question of the Mahari Basan. The Mahari Basan asks why, in a case of doubtful theft, we rule leniently. Right? If there is a doubt, Reuven claims against Shimon, we’re in a state of uncertainty, and because of the doubt, the burden of proof is on the claimant. Or in another formulation: in monetary doubt, we rule leniently for the defendant. In monetary law it’s always lenient for this side and lenient for that side, but here it’s lenient for the defendant.
[Speaker B] What was the initial assumption—that it should be left aside until Elijah comes? Wait, wait.
[Rabbi Michael Abraham] So the question is: why do we in fact rule leniently? After all, apparently this is a doubt about the prohibition of “do not steal,” and in a Torah-level doubt we should be stringent. And on the face of it that’s problematic. Why is it problematic? For several reasons. First, what’s the alternative? The doubt cuts in both directions. So what do we do—leave it aside until Elijah comes, or split it, or I don’t know, some other solution? But it’s clear that the alternative is not that he should pay because of the doubt, because just as the other party cannot take it, so too he is not required to pay it back. So the doubt exists on both sides. Beyond that, in the ordinary case, this whole question isn’t really difficult at all. Because Reuven is claiming against Shimon, and Reuven and Shimon know the truth—except for the judges. So if Shimon knows that the truth is on his side and the law is that the burden of proof is on the claimant, then he leaves the money with himself. The fact that the judges are in doubt—fine, let them do what they want, but I’m leaving the money with me because I know it’s mine. I don’t need to be stringent because you’re in doubt. I’m not in doubt. Where does the question really arise? It arises in the case of certain claim versus uncertain claim. There’s a dispute in the Talmud whether in a case of certain claim and uncertain claim, the certain claim prevails or not. Of course we’re talking when there is someone in possession. But when there is no one in possession, then the certain claim prevails. Two people are holding onto some driftwood in the middle of the sea, one says, “It’s mine,” and the other says, “Maybe it’s mine.” Then the one who says it with certainty will win. That’s in Bava Batra, chapter three. But if someone claims against you, “You borrowed and didn’t repay me,” and I say, “Wait, I don’t know. Maybe I repaid, maybe I didn’t, I just don’t remember anymore.” Or, “I don’t know, maybe I borrowed, maybe I didn’t.” Every time it’s one of those two: “I don’t remember.” Certain claim versus uncertain claim is a topic in the Talmud. Does the certain claim prevail or not? In Jewish law we rule that the certain claim does not prevail. Meaning, you can’t extract money from someone in possession by claim alone. You need to bring proof. And a claim is not proof. You say it’s yours and he says maybe not, but you can’t extract from someone in possession without proof. There there would be room to ask this question. Because there, after all, even the defendant himself, who is holding the money, is in doubt. He himself is in doubt, not just the judges. There, if there is a prohibition of theft, a doubtful prohibition of theft should indeed require stringency. He should have to be stringent. So the question is really mainly in that kind of situation, or situations like it, not in the ordinary case. And then you also don’t have the problem of “let it lie until Elijah comes,” because he’s in doubt and the other one is not in doubt.
[Speaker C] And in terms of claim—in the previous situation you mentioned the Chazon Ish’s idea of possession through claim. You could say that here too: who is considered in possession at all? Maybe according to the Chazon Ish, the one in possession is actually the one in possession by claim—that is, the plaintiff.
[Rabbi Michael Abraham] Maybe the one who says that in certain claim versus uncertain claim the certain claim does prevail is simply saying that this isn’t considered extracting, because he’s in possession by claim. Maybe. That would depend. Tosafot in a few places distinguishes between a strong uncertainty and a weak uncertainty. A strong uncertainty is, for example, the uncertainty of orphans—they couldn’t know what the truth was. Their father was involved in the transaction, or it was a deposit with their father, or something like that. They can’t know what happened there, so when they say “maybe,” it doesn’t arouse suspicion. That’s a strong uncertainty—they can’t know. But there’s a weak uncertainty: a person comes and says, “You didn’t bring me the money, you didn’t pay me,” and I say, “I don’t remember whether I brought it or not.” “I don’t remember” is a weak uncertainty—that is, it arouses suspicion. And with a weak uncertainty there may be room to say that it’s a poor claim, whereas a strong uncertainty is a good claim, if it even counts as a claim at all. There’s also discussion among later authorities whether uncertainty is considered a claim at all. So that’s what he asks. He goes through various possibilities there for resolving it, and in the end what he says is that the laws of ownership, or acquisition, or monetary law in general, are different from other areas of Jewish law. In other areas of Jewish law, the halakhic command creates the prohibition. That is, the prohibition against pork exists because the Torah forbids eating pork. The Torah created that prohibition. With “do not steal,” it’s not like that. With “do not steal,” there is a prohibition called the theory of law, a legal prohibition that precedes even the Torah’s commandment, and the Torah gives it halakhic sanction by saying there is a prohibition of “do not steal.” But the laws of ownership—the fact that this thing belongs to me—and not only that, but even the fact that it is forbidden to take it from me or damage it, all of that exists before the Torah. The Torah comes and adds another halakhic layer to it, a Torah layer—I don’t know what to call it, because reasoning is also halakhic, and that’s exactly why I’m bringing up this whole issue—but it adds another layer, “do not steal,” a religious layer, let’s call it that. But there is also the legal prohibition, and Jewish law recognizes the legal prohibition as well. And therefore what? So now if I’m holding the money and someone claims against me in a case of certain claim versus uncertain claim, which we discussed before, then you’ll say: okay, I’m in doubt, so out of doubt I should be stringent, because doubtful theft is treated stringently? He says no. Since in the theory of law, the rule is that the burden of proof is on the claimant—that is a legal rule. In the Torah itself there is a verse, and then the Talmud says: why do I need a verse? It is reasoning. That is: whoever has the pain should go to the doctor. Meaning, I’m the one holding the money; if something hurts you and you want the religious court to extract the money from me, bring them proof, get them moving. So this is reasoning. And once there is reasoning, that means this is basically a legal matter. And once it’s a legal matter, then from a legal standpoint I’m permitted to hold this money. Since legally I’m allowed to hold it, such possession also won’t violate “do not steal,” because “do not steal” simply anchors what the theory of law says. But if the law says that in such a case I’m permitted to hold the thing, then I also don’t need to worry about “do not steal.” Okay, that’s his claim there. You can argue with it a bit, but that’s what he says. And then he asks the more interesting question. And that’s a question—well, maybe I should first add one more thing. I once had a debate with a friend. A lot of people think that Rabbi Shimon Shkop distinguishes between the, let’s call it, factual dimension—whose money it is—and the normative dimension—whether I’m allowed to take your money or damage your property. And according to their understanding, Rabbi Shimon Shkop’s claim is that the theory of ownership or acquisition law and the laws of acquisition precede the Torah. Meaning, the theory of law says what belongs to whom. But it does not say that I’m forbidden to take what belongs to you; it determines what belongs to whom. And then the Torah comes and says that if it belongs to so-and-so, then there is a prohibition against taking it from him or damaging it. Meaning, the normative dimension is entirely halakhic, entirely of the Torah. The legal dimension is just the meta-halakhic infrastructure. Meaning, of course you need to determine—one of Rabbi Shimon Shkop’s proofs is this: how do I know there is such a theory of law? Because the Torah says “do not steal.” And the Torah nowhere defines the laws of acquisition. Now, if you don’t define the laws of acquisition, you can’t apply the prohibition of “do not steal,” because “do not steal” means taking something that is the property of someone else.
[Speaker B] But the Sages do define it, so why—
[Rabbi Michael Abraham] The Sages define it, but the Torah does not define it.
[Speaker B] A halakhic reasoning through which they defined it, not from… right.
[Rabbi Michael Abraham] The Torah doesn’t define it, and since the Torah doesn’t define it, the proof from here is that the Torah assumes there is some prior definition on which it builds “do not steal.” And where does that definition come from? It’s a meta-halakhic matter, a legal matter of the laws of acquisition. There are certain acquisition laws that are indeed learned from the Torah; that’s not our issue right now. But many acquisition laws are not learned from the Torah. Bava Batra is a tractate much of which deals with acquisitions, and it’s known as a tractate without verses.
[Speaker E] Universal property laws? For the whole world and all time?
[Rabbi Michael Abraham] They don’t have to be, but they can be. Meaning, whatever society determines. It doesn’t have to be—
[Speaker E] Determines, or is it a moral principle?
[Rabbi Michael Abraham] No, so I think it’s what society determines. Situmta—that whole idea that whatever we establish is fine. So if a certain society sets property laws within the bounds of decency—not a society establishing Sodom and Gomorrah—but I determine that pulling effects acquisition and he determines that lifting effects acquisition, I don’t think there’s any problem with that. Meaning, as long as you establish something and stick to it and it sounds reasonable, meaning, it’s not… Now if the whole world establishes the same thing, fine, but if not, that’s also not terrible. The main thing is that there be some system that determines who owns what, that determines the laws of acquisition. So this very argument of Rabbi Shimon Shkop—that how can you apply “do not steal” if there are no prior laws of acquisition—it itself leads people to think that there really is a division, that the meta-halakhic facts are the theory of law—determining what belongs to whom—but the prohibition against taking what belongs to someone else is entirely Torah-based, entirely from “do not steal.” That’s not correct. It’s clear that Rabbi Shimon Shkop does not mean that. Maybe you think so, but Rabbi Shimon Shkop doesn’t mean that. How do I know? Because one of the questions at the beginning of the gate—I have several proofs for this—but one proof is that at the beginning of the gate, after he establishes this principle, he says: and perhaps you will say, why obey the theory of law? If there is no commandment from the Torah about it, what obligates me to obey it? Why should anyone demand that of me? Before I say what he answers, because he gives a very interesting answer—but what does that question imply? If the theory of law only determines what belongs to whom, then I’m not obeying the theory of law anywhere. I’m obeying “do not steal,” which tells me not to take what belongs to someone else. “Do not steal” is a commandment in the Torah, so what kind of question is this, why obey? Clearly Rabbi Shimon Shkop assumes that there is also a meta-halakhic prohibition against taking the money, not only a definition of which money belongs to whom and when, but also a legal prohibition against taking money that is not yours or damaging property that is not yours. On top of that, the Torah also adds a halakhic layer and says that there is also a prohibition of “do not steal.” But besides that there is also a meta-halakhic prohibition, a legal prohibition. And the legal dimension is not only a determination of meta-legal facts—that is, what belongs to whom—but there is also a prohibition. Meaning, when I take someone else’s money, I violate two prohibitions: a legal prohibition that existed even without “do not steal,” and the halakhic prohibition of “do not steal.” I really violated two prohibitions when I took someone’s money.
[Speaker F] In general law too there’s a prohibition against taking. That’s the legal prohibition.
[Rabbi Michael Abraham] What’s the difference between that and “do not steal”?
[Speaker F] That’s the legal prohibition.
[Rabbi Michael Abraham] There are two prohibitions: one is religious and one is legal. You violated two prohibitions. One of the implications, for example, is what happens with stealing from a non-Jew. There is a dispute among medieval and later authorities whether stealing from a non-Jew is forbidden by Torah law or permitted by Torah law—though forbidden rabbinically. But at the Torah level, the question is whether the prohibition of “do not steal” applies to a non-Jew as well. Rabbi Shimon Shkop claims that there is—Rabbi Shimon Shkop is standing before my eyes here, may the spirit of my teacher rest pleasantly; he truly is my teacher—anyway, he claims—
[Speaker D] That someone who violates one prohibition—what?
[Rabbi Michael Abraham] That one who steals from a non-Jew may not violate “do not steal,” but he does violate the legal prohibition according to all views. Meaning, therefore the whole debate is about the boundaries of “do not steal,” but there is no debate about whether it is permitted to steal from a non-Jew. By Torah law it is forbidden to steal from a non-Jew. And that’s a very interesting point. By Torah law? Yes, by Torah law. Meaning, what he says is that the status of this legal prohibition is not that of a rabbinic enactment; it has a status like a Torah prohibition. Jewish law sees this legal prohibition, whose basis is reasoning or social agreement or however you want to describe it, as a prohibition whose halakhic status or halakhic force is that of a Torah prohibition.
[Speaker E] Because the Torah is built on that, basically.
[Rabbi Michael Abraham] And then he says—up to this point I’ve explained his question.
[Speaker C] The decree of the Flood was sealed because of theft, so it has to be that way.
[Rabbi Michael Abraham] The decree of the Flood was sealed, and—
[Speaker C] And that was before there were seven Noahide commandments.
[Rabbi Michael Abraham] No, but among non-Jews themselves this is a Torah prohibition—it’s part of the obligation of laws. That’s one of the seven Noahide commandments. The obligation of laws. Theft is—
[Speaker G] The obligation of laws.
[Rabbi Michael Abraham] Why? The obligation of laws is to establish property law. Right, so theft too is part of that whole issue.
[Speaker G] Theft is independent; it’s like a limb from a living animal.
[Rabbi Michael Abraham] Is a limb from a living animal also laws? Okay, but I’m saying it’s part of the Noahide commandments.
[Speaker C] Yes, but the Noahide commandments—before the Flood there were no Noahide commandments? Or correct me if I’m wrong.
[Rabbi Michael Abraham] I don’t know, I don’t remember exactly the sequence people say, but simply speaking, “Noahide” means non-Jews. There are commandments that were actually given already to Adam. I don’t remember what was given to whom, really—that’s something I’d have to check. I don’t remember. I’m not even sure it’s clear; maybe according to some opinions it isn’t. In any case, non-Jew to non-Jew, certainly at least today, it’s clear that there is a Torah prohibition against theft. But a Jew stealing from a non-Jew—that’s the question, whether “do not steal” applies. But the fact that “do not steal” may not apply doesn’t mean you’re allowed to take it. By Torah law you are forbidden to take it, even according to the view that there is no prohibition of “do not steal,” because you are certainly no better than any non-Jew, who is forbidden to take from another non-Jew. We’ll return to that point later. In any case, his claim is that according to all views there is a prohibition with Torah-level force against taking a non-Jew’s property, even if you say it is not included in “do not steal.” And once again, that is an indication of what I said earlier: when he talks about the theory of law, he means also the prohibition against taking, not only the definition of what belongs to whom, the definition of ownership, but also the prohibition against taking. What does he answer to that? It’s no less interesting. Right, so he asks: then why command this thing? There’s no commandment for it in the Torah, so why obey it? And now we already understand that this really is bound up with obligation to obey. Meaning, I am forbidden to take—it’s not just a definition of what belongs to whom. And then he says, what do you mean? Like every good Jew, he answers a question with a question. So he says: and why obey what the Torah does command? Because reasoning says that if the Torah commands, then it should be observed, right? So reasoning also says that the theory of law should be observed. The same mouth that forbade is the mouth that permitted—the same mouth that forbade is the mouth that forbade. What superiority does command have over reasoning? The command too is built on reasoning. That’s basically what he’s saying here. And this is an important point, because it basically means that there is some status for reasoning—not only that it has the status of Torah law. In a certain sense it is even more fundamental than Torah law. The status of Torah law is built on reasoning. Meaning, when the Torah commands, there is reasoning that says that if the Torah commands, it should be obeyed. Fine? So that means the foundation is reasoning. If you ask me why obey reasoning, I don’t have an answer. But then I’ll ask you: and why obey the Torah? I once told about the friend of a friend—I’ve told this before—who went to an interview before medical school. Today he’s a veteran physician, but he went to an interview before medical school in Beersheba. They do these kinds of interviews, and they asked him: what would you do with induced abortion? If you’re a yeshiva graduate, studied in a hesder yeshiva, they speak to a religious person—what will happen when there’s an abortion case, what will you do? To check him, an ethical question. So he gave them an answer—I later met him for a moment once, I don’t really know him—and he told me it wasn’t exactly accurate but roughly. Doesn’t matter, the story could at least have happened. I tell it because it’s a beautiful story, a powerful one. He said to them: look, if you’re talking about the halakhic prohibition, I’ll sell the scalpel to a non-Jew. But if you’re talking about the moral prohibition, then tell me what you do with that. It’s really a marvelous answer. There’s this feeling as though abortion is some religious craziness of the religious people, like what’s the problem? The Torah calls it a human being, so what’s the issue? It’s some religious obsession that abortions are forbidden. And he reflected this back to them so beautifully. Right, so just as there too—you’re trying to ask me about the halakhic dimension as if it’s detached from reasoning or morality. But that’s not true. Reasoning is the basis also for the existence of the halakhic dimension. And to reasoning, you too are obligated, so what do you do with that? Here too he says: the question “why observe something that has no commandment attached to it” assumes that something which has a commandment attached to it is simpler than something that comes from reasoning. But that’s not true. It’s the opposite. The basis for obeying commandments is also reasoning. Meaning, reasoning is more fundamental than the command itself. It reminds me of something else I wrote in the prologue to my book The Science of Freedom. There I brought Descartes’ cogito argument: I think, therefore I exist. And I explained there—there are several epilogues there, and also in the prologue—I explained that people, materialists, claim there is no soul, no spirit, only body. Okay? Never mind, there are various formulations, some more foolish and some less, but let’s not get into those details. And what Descartes is really saying in the cogito, in principle, is that if you have no soul, then you don’t have a body either. Because what is it—how do you know that you have a body? What does it mean to know? Knowing is a mental process. Now, if the mental doesn’t exist, then you think that somehow the material world is more clearly existent than the spiritual, mental world. But that’s not true. Because knowing that something exists—knowledge is a mental process. Knowledge is something that exists in our mental dimension. And therefore, when Descartes begins his philosophical path, he starts by proving that he exists—and the “he” that exists is his thought, not his body. I think, therefore I exist. I think, therefore I exist. Right? Meaning, his claim is that the thinking entity exists. After that he gets to the idea that there is also a body, there is also physics and God—he also goes through God and various other things, weaker arguments. But what is interesting in the cogito is not the path but the order in which he proceeds. I don’t think his second step is worth very much philosophically. The first step is interesting. Whether it’s correct or not is another question, but it’s very interesting. How he proves his very own existence. But after that, when he moves on, I think it’s more doubtful. But the interesting point is the order: first you prove the existence of the thinking being, and only afterward can you go on and ask yourself whether bodies also exist—my body or bodies in general, the world itself. Since awareness that the thinking being exists precedes awareness that there is a world. Spirit—its existence is much more certain than matter, much more certain. People think materialism is simple. Once someone told me it’s like Ockham’s razor: matter, we all agree on; spirit, maybe yes maybe no; so why posit something extra beyond what you have to? Matter you have to posit, but spirit—exactly the opposite. Spirit I have to posit. Maybe spirit is deceiving me and really making me think there is matter, while in truth there is no matter. But as long as it is deceiving me, it still exists. That’s the cogito argument—that even if you think you’re not thinking, that itself is a thought. And since it is a thought, there is something that thinks.
[Speaker H] Same thing—what kind of illusion do we have?
[Rabbi Michael Abraham] Yes, but that doesn’t matter. As long as we have an illusion, there is someone who has an illusion. Even if all our thoughts are false, the very fact that we think is itself the basis for our existence. And that’s the point. And the beautiful point here, beyond the argument itself, is really the order he chooses. Meaning, he first proves the existence of the thinking being, against the whole scientific outlook that was beginning to develop in his time and that later moved very strongly in a materialist direction. He was, of course, one of the remnants of rationalism. To this very day, right? To this very day. Yes, yes, it’s a process that began there and in a certain sense continues to this day. Not a completely monotonic process, but yes. So he’s saying that many times we treat the more derived thing as though it were the simple thing, and the simple thing as though it needed explanation. So all these examples—I just wanted to bring parallel cases. Here too, with respect to reasoning, Rabbi Shimon Shkop says: you ask me, wait, why should I listen to reasoning, there’s no commandment about it. And he says to you: you assume that reasoning is something more derived than commandment, but it’s the opposite. The obligation to fulfill the commandment is itself based on reasoning. And that is indeed what led some already among the medieval authorities, and afterward among the later authorities, to establish that reasoning is Torah-level law. Meaning, something whose basis is reasoning, a halakhic innovation. Now I’ve moved into Jewish law proper.
[Speaker I] This already goes back to the medieval authorities. You keep saying here several times: why do I need a verse?
[Rabbi Michael Abraham] Correct, they prove it from what the Talmud says. The Talmud assumes it implicitly, and the medieval authorities conceptualize it, turn it into a rule. Medieval authorities and later authorities. At the beginning of Rabbi Kasher’s Mefane’ach Tzefunot on the Rogatchover—an encyclopedia on the Rogatchover—there’s a short pamphlet at the beginning, just two or three pages, no more than that, and there he discusses the principle that reasoning is Torah-level law. And there he brings all sorts of sources from the Or Zarua and various medieval authorities who say that reasoning is Torah-level law. And their proof is from the Talmud, because the Talmud really does—what Shmuel noted earlier—the Talmud in several places, and I mentioned this Talmudic passage before as well, one of the places where it says that the burden of proof is on the claimant, brings a verse, “the litigant shall approach them,” and then it says: why do I need a verse? It is reasoning. There is reasoning, so why do I need a verse? Now if the Talmud asks such a question, the assumption built into that question is that if there is reasoning, then the verse is superfluous. Now if the status of a law derived from reasoning is different from the status of a law derived from a verse, then there is no room for the Talmud’s question, “why do I need a verse? It is reasoning.” They brought the verse in order to tell you that the status of this law is a Torah-level status, the status of a law derived from a verse. Even if reasoning obligates—understand—even if reasoning obligates, if the status of what comes from reasoning is lower than what comes from a verse, then the Talmud’s question “why do I need a verse? It is reasoning” makes no sense. Because “why do I need a verse” means it’s equivalent. Meaning, if there is reasoning, the verse is redundant, because what comes from reasoning has the same status as what comes from a verse. Right? That is the Talmud’s assumption. Therefore the medieval authorities say that from here it is proven that something derived from reasoning has the status of Torah law. And this appears in several places in the Talmud in different formulations. “Why do I need a verse? It is reasoning” appears only two or three times or so. But in a number of places you can see that the Talmud treats reasoning as equivalent to a verse. And what I’m saying here is that beyond these proofs from the Talmud, the need for proofs is absurd. Because if there is a proof from the Talmud, then what do I care? The answer is: let’s ask Rabbi Shimon Shkop. So what if there’s a proof from the Talmud? I don’t agree with the Talmud. Unless there is reasoning. No matter—I reached some thought process that leads me to conclude that the Talmud has authority. Meaning that in the end, this too is my own conclusion, that the Talmud has authority, that what the Talmud says is binding. So if I rely on my own conclusions, then why do I need the Talmud for this? My conclusion is the infrastructure, or my reasoning is the infrastructure, for everything that obligates me. So this whole dependence on proofs from the Talmud is problematic according to Rabbi Shimon Shkop. Rabbi Shimon Shkop, he doesn’t really elaborate on this point, but his whole line of thought comes out to say that the appeal to the Talmud itself misses the whole point, throws out the baby with the bathwater. Because the idea that reasoning has a status like Torah law is built into the very concept of reasoning in relation to Torah law. You don’t need proofs for it. It’s a statement that is true a priori. It’s not a statement based on evidence.
[Speaker B] There is something here that really does require proof. Meaning, the first thought—even mine, when I heard this explanation of Rabbi Shimon Shkop—was that the assumption is that reasoning has binding force even though it wasn’t stated in the Torah. But I would not have thought to put it in as something that is part of the halakhic system; rather, as something separate. In that case it wouldn’t have the dimensions that actual Torah law has.
[Rabbi Michael Abraham] What kind of definitions? That one is obligated to do it? No. Let’s talk about punishment. For example, would there be punishment? About that we’ll talk later. I’ll still get to that.
[Speaker B] No, but the Talmud—every punishment can also have, I don’t know, some practical implications.
[Rabbi Michael Abraham] No, let’s check. I’m saying: halakhic practical implications like punishment—I’ll talk about those. Okay? Right now I’m talking about the very obligation to do it. Let’s leave the halakhic practical implications aside.
[Speaker B] So it could be that in the Talmudic sources there are also sources for that too. Once the Talmud says, “Why do I need a verse? It’s logical,” that implies not that there’s no practical implication here at all. Meaning, there are practical implications too that…
[Rabbi Michael Abraham] No, I understand, I understand. That was your previous comment. You’re saying that’s why they needed proofs from the Talmud—to say that the practical implications also exist, and not just the basic obligation to do it. I’ll get to that. So I’m saying: according to Rabbi Shimon Shkop, the need for proofs seems problematic on its face. Okay? Let’s leave the question of practical implications aside for now. Still, it seems to me that this principle, that logic is Torah-level, on its face requires clarification. Because let’s think for a moment about rabbinic enactments. The sages enacted something; that’s a rabbinic law, right? It’s not a Torah law. And when the sages enact something, there is presumably logic behind it. They don’t do it for nothing. Right? They want to achieve something. There’s a purpose—a decree, an enactment, whatever—there’s some rationale behind what they enact. So why isn’t that Torah-level? If everything based on logic is Torah-level, then this too should be Torah-level. Or if I broaden the discussion: there is a dispute between Maimonides and Nachmanides about where the authority of rabbinic laws comes from. The famous sources: Maimonides grounds it in “do not deviate.” Maimonides says that “do not deviate” gives the sages the power to enact or decree, and we are obligated to obey them. Then Nachmanides attacks him and says that if it comes from “do not deviate,” then all rabbinic laws effectively become Torah laws, so a doubt should be treated stringently, and so on. There should be no practical distinctions between rabbinic laws and Torah laws. Therefore Nachmanides says that “do not deviate” yields only the authority of the sages to interpret the Torah, to expound it through hermeneutics. But to enact decrees, rabbinic laws—that does not come from “do not deviate.” Okay? Then the question arises: so where does it come from according to Nachmanides? Where does the authority of the sages’ words come from according to Nachmanides? This is what Rabbi Wasserman asks in Kovetz Divrei Sofrim. And when he sharpens this question, he says: the question is much harder than it looks at first glance, because it is a question that on its face has no answer—there cannot be an answer. Why? Because if there is some other verse—not “do not deviate”—that still won’t help, right? Because it would still be Torah-level, and then Nachmanides’ attack on Maimonides would hit him just as hard. What difference does it make which verse it comes from? Bottom line, if there is a verse about it, then it should be a Torah law, where doubt is treated stringently, and so on; it doesn’t matter which verse. Okay? Now what will we say—that the basis is logic, not a verse? But logic too is Torah-level, says Rabbi Elchanan. So logic also receives Torah-level status, and doubt should be treated stringently. So it comes out that it can be neither a verse nor logic. What else could it be? So this is a question that on its face cannot have any answer at all. It’s much harder than just a question whose answer I don’t know. This is a refutation, not a question. It’s a question that on its face cannot have an answer. And that’s his claim. In the end he formulates something, but it’s not clear how that something meets the strict criteria that he himself set up—but that’s a different discussion. I think that in a simple way—here I printed sources for myself but they came out a bit garbled, so I won’t read them—there is, for example, the Shevut Yaakov, who writes in some context a very simple point: logic is not a monolithic thing. Meaning, it does not always appear in one uniform form. There are strong logical arguments and weak logical arguments. Obviously, even if logic obligates—if I have a logical reason that it is proper to do something—logic in itself means this is not some absolute necessity, not some incredibly basic thing such that it is impossible for you not to do it. But still, it is proper to do it, like reasoning that goes beyond the letter of the law, moral reasoning. Yes, there is the morality of not murdering—that is a basic thing. And there is the morality of helping another person, and other, more refined things. Okay, so here one can discuss how obligated I am, but it is proper to do it. Okay? It is not reasonable that every such logic would be a Torah law. Even if there is a legal issue in doing something and not only a moral issue in doing something—if the Torah does not command it, then perhaps there is such a value, but it is not a Torah commandment. So there are different levels. When you talk about logic, you have to be a little careful. There are levels, intensities, authority—different levels of force in logic. And this is a connection that comes up many times: concepts like logic, or concepts in general—we talked about this in one of the first classes—that we often grasp concepts in binary terms. Either there is logic or there isn’t. The sorites paradox and all those issues come in here. But in truth there is a continuum of degrees in how such a concept appears. Okay? And logic too has a continuum of degrees of appearance. Maybe let’s give another example: an unusual manner of performing labor. On the Sabbath, if one performs a prohibited labor in an unusual manner, then it is rabbinically forbidden. Okay. And in several places we see that when one performs the labor not in its normal way, then it is permitted—not rabbinically forbidden, but completely permitted. Then later authorities ask: wait a second, but an unusual manner is rabbinically forbidden, so why are you saying it is completely permitted? It’s rabbinically forbidden. And the answer in most cases is: it depends how unusual. Meaning, I don’t know, suppose I’m dancing a hora. Can we call that hunting in an unusual manner? True, there is no deer here, no rifle and no shooting, and overall I’m still moving with my legs. Meaning, this too is an action done with the legs like… The question is how unusual. If we take the degree of unusualness very far, we won’t call that hunting in an unusual manner, right? Meaning, it’s obvious that the concept of unusualness inherently contains different levels. That’s exactly what… It is built on the question of how far you are from the original act. Meaning, you are different from the original act, so immediately the question arises: how different? Therefore it is a naive conception that if I say I’m not doing the labor in its normal way, that means I’m not doing that labor at all. When I do it in the normal way but with my left hand, that is called an unusual manner. When I do something else entirely, then it’s not an unusual manner—it’s simply something else. And of course the question of where the line passes is a good question; one can discuss it. But this very way of relating to it—as though if it’s unusual then it isn’t rabbinically forbidden—that approach assumes that unusualness is always: if it’s unusual, then it’s unusual; there either is unusualness or there isn’t, there is no third option. But that cannot be. After all, it is obvious that there is a continuum between not unusual—which is Torah-forbidden—and something completely different, which is permitted, and something in the middle, which is similar but not entirely, and that is an unusual manner and is rabbinically forbidden. Now every case has to be discussed: where on this continuum is it located? Or where is the line that divides it into these three sections—where exactly do those lines run? That’s what has to be discussed. The same is true of the question of logic. Logic is also something like: okay, I have a logical reason to do this—but how strong is that logic? How clear is it that this must be done, or how severe is it? Sometimes that’s the question. There are several axes of intensity. One axis is how clear it is to me. Maybe it’s not clear to me; I tend to think there is logic in it but I’m not completely sure—maybe yes, maybe no. It can also be that the logic is clear, but the obligation is not such a strong obligation. A moral obligation, for elevated people perhaps, but not something basic for everyone. The obligation is more refined; it is less fundamental. That too is an axis. Meaning, on each of these axes there can be a whole range of levels of logic. And now I’m saying: if there is a logical argument that is utterly elementary—it cannot be otherwise—then “why do I need a verse? It is logical,” and it is Torah-level. Okay? But a logical argument that says, yes, there is some point here, but not certain, I don’t know, or not a major point, or I’m not totally sure there is a point to it, or something like that—then perhaps that would be rabbinic. Even though there is logic, there is a logical reason to listen to the sages; and let’s say that this logic is not logic of that fundamental strength—I’m only sketching here—it is not as basic a logic as not being a murderer. But still, there is sense in listening to the sages, so that there be unity, order, that things not become chaotic. So therefore it is a rabbinic law to listen to the sages, let’s say. I think that there he is right in Rabbi Elchanan’s question, because the logic of listening to the sages sounds like a fundamental logic to me; I don’t think it is a weak logic. Okay? It seems very much to me that the sages viewed it as weak logic in any event, even if someone disagreed with that, but as an interpretation of what the sages thought, I don’t think that is correct.
[Speaker B] What about the logic of obeying God, no? Observance of Torah is based on the logic that one must obey God.
[Rabbi Michael Abraham] No, that’s observance of the Torah. But there are logical principles that tell me: “Why do I need a verse? The burden of proof is on the one who seeks to extract property from another.” What about that logic? That’s Torah-level. I said: it isn’t written in the Torah because it is obvious to me that this is how one must act. I think that listening to the sages is the same kind of thing as “the burden of proof is on the claimant.” Okay? It’s not weak logic in that sense. I am really speaking about logical arguments that are a substitute for a command, not the logic of why to obey a command, but logic where there is no command—logic that itself is the source of the law. Okay?
[Speaker G] So you could make another distinction: there is a commandment to obey the words of the sages, and that is a positive commandment, and someone who says, “I’m not listening to the sages,” has neglected a positive commandment. But someone who transgressed and…
[Rabbi Michael Abraham] Again, I already spoke about this—that is in fact what I think there. Many later authorities say this; I didn’t invent it.
[Speaker B] Is that the explanation for Maimonides? Not the explanation for Nachmanides—for Maimonides?
[Rabbi Michael Abraham] I’m talking about Maimonides. Really? Yes. With Maimonides it’s one issue; with Nachmanides it’s another issue. Okay, so what I’m basically saying is that this question—how rabbinic laws, which in the end are also based on logic, why are they rabbinic and not Torah-level—is not such a difficult question. Fine. If the sages see something that is a fundamental thing, they really will say it is Torah-level. But if the sages say something is proper to do and they assign it halakhic prohibition—fine, but it is clear that here we have only a weaker kind of logic, and therefore the force is lower. Of course, then we still have to ask ourselves—and this still doesn’t fully solve the problem—why do the sages need to enact it at all? If logic obligates on its own, then the sages don’t need to enact it. Right? Even after the sages enact it, really I do it only because at the root of their enactment there is a logical reason. Fine, but that logic exists even without their enactment. So what? One could say that they merely enlighten me—pay attention, there is logic here, you ought to do this—but that is not the conception. In rabbinic law, you must obey because the sages enacted it. That’s the whole idea of the rebellious elder, for example, and all sorts of things like that. It’s about authority, not because you’re acting against logic. The enactment is not just that you did something wrong, but that you disobeyed the sages. Even though what you said earlier is really one hundred and eighty degrees the opposite, because what you said earlier was that only obedience is the point, and not that this is wrong under “do not deviate,” right? So the question still arises: why is a command needed? Maybe, by the way, this is Nachmanides’ view. This is the place to say that perhaps this already is Nachmanides’ conception: Nachmanides says there is no source in “do not deviate” for obeying rabbinic enactments, and therefore there really is no duty of obedience. All there is is a duty to act because there is logic that this is what should be done, the logic that led the sages to say it. But there isn’t really… Yes, this reminds me of a Talmudic passage at the end of the third chapter of Bava Batra, Chazkat HaBatim. The Talmud there at the end brings that there is… the Talmud there sort of plays with… literally near the end, the last lines of Chazkat HaBatim, page 60b—not the last lines, about a third of the page from above. “The rabbis taught…” Oh no, yes, it really is near the end. “It was taught: Rabbi Yishmael ben Elisha said: From the day the Temple was destroyed, strictly speaking it would have been proper for us to decree upon ourselves not to eat meat and not to drink wine.” What is that? Logic says not to eat meat and not to drink wine, but one does not impose a decree upon the community unless the community can endure it. Okay—but if so, even without decreeing it, that logic is binding. After all, there is logic here. So what difference does it make whether you decreed it? Logic is not binary.
[Speaker H] So if logic isn’t binary, there are stronger logical arguments.
[Rabbi Michael Abraham] So no, he says: fine, there is weaker logic, but this logic itself obligates anyway—so why? This is good proof that you can’t say that my obligation to obey the sages is simply because what they say is correct. Because if that were so, what difference would it make whether you decreed it or not? Bottom line, that really is the right thing to do—quite the opposite. So let the public know that there is some value in doing it, if someone missed it or didn’t think of it. Once you let the public know—after all, he is obligated anyway to do it. Okay? Rather, from here we see that obedience to the sages indeed has an element beyond the fact that what they say is also logically the right thing to do; there is also the duty of obedience. When they say—and here they say—since one does not impose a decree upon the community unless the community can endure it, therefore we do not decree this as a decree. But of course, anyone who understands the logic ought to do it even without the decree. But “do not deviate” would not apply to this. Okay? Because they didn’t decree it. The continuation is even more interesting. This is just an aside relevant to our topic, but the really interesting thing appears later. The Talmud says: “And from the day the wicked kingdom spread, which decrees harsh and evil decrees upon us, and prevents us from Torah and commandments, and does not let us enter the week of the son—or some say, the salvation of the son”—it doesn’t matter whether that means redemption of the firstborn or a shalom zachar; there are several explanations here—“strictly speaking it would have been proper for us to decree upon ourselves not to marry women and not to have children, with the result that the seed of Abraham our father would disappear on its own.” Right? Basically the same thing: it would have been proper not to engage in procreation, even though there is a Torah-level positive commandment.
[Speaker D] Why is there logic to do that? Not to drink wine and not to eat meat—that’s mourning, right?
[Rabbi Michael Abraham] But there is no point in bringing children into a world in which they cannot serve God, because they cannot perform commandments. That is basically the claim behind it here. There is no point—why bring them? There is no… This is a very interesting line of reasoning regarding the laws of procreation. Let’s not get into that here. It also touches on a question we once discussed: is life a means for commandments, or are commandments a means for life? This is apparently a dispute in the Talmud in Yoma about why saving a life overrides the Sabbath. We talked about this once. If saving a life overrides the Sabbath because “desecrate one Sabbath for him so that he may keep many Sabbaths,” then that means the whole basis for my being allowed to desecrate the Sabbath to save a person is because he will keep many Sabbaths. That is, life is a means to fulfill commandments. And the other explanation says: “and live by them, and not die by them.” Meaning, the commandments are basically intended so that I may live through them; but if observance of the commandments brings us to death, then we are exempt from the commandment. A completely opposite conception.
[Speaker C] So what about “be killed rather than transgress”? There are the three things where one must be killed rather than transgress.
[Rabbi Michael Abraham] No, no, I’m talking about things where that rule does not apply, like desecrating the Sabbath.
[Speaker C] And that exactly shows the contradiction to the idea that the commandments can’t be the means. Because if…
[Rabbi Michael Abraham] And those three, right—the ordinary commandments apart from those three. Those three are something else. In any case, so basically the logic also says that we should decree that one should not engage in procreation. And then what do they say? “Rather, leave Israel alone; it is better that they be inadvertent sinners than deliberate sinners.” Wait a second—what is the difference? Above they said: one does not impose a decree upon the community unless the community can endure it. And here they say: it is better that they be inadvertent sinners than deliberate sinners. What does that mean? It doesn’t belong here at all. “Better that they be inadvertent sinners than deliberate sinners” is an expression you use when there is a prohibition and people are violating it. Fine? And one must not inform them. If you inform them, there is a chance that now they will know and will be deliberate sinners and still not listen to you. If you do not inform them, they will continue doing it, so at least the transgression will only be inadvertent. The Shulchan Arukh rules that regarding rabbinic prohibitions one says this principle, “better that they be inadvertent than deliberate,” but not for Torah prohibitions. In the laws of Yom Kippur, on the eve of Yom Kippur, he discusses women who did not observe the added sanctity before Yom Kippur—whether to tell them or not. So it depends on whether it is rabbinic or Torah-level. In any case, here—if we did not decree the prohibition, then there is no prohibition, so what does “better that they be inadvertent than deliberate” mean? We are now discussing whether to decree a prohibition, right? So what does “better that they be inadvertent than deliberate” mean? It means there is a prohibition, and the question is whether to tell them about the existence of the prohibition, to inform the public of the prohibition—with the risk that I will turn them into deliberate sinners—or not to inform them, so that they remain inadvertent. But if I do not decree the prohibition and do not tell them, then they are not inadvertent sinners; they are not violating any prohibition at all. I didn’t decree it. There is no prohibition. What prohibition is there against procreation? There is no such prohibition. As long as the sages did not prohibit it or decree its suspension, there is a Torah-level positive commandment of procreation. And it may be that here they uprooted something from the Torah by passive omission. Fine. But as long as they did not uproot it, it remains a Torah-level positive commandment. How can one say that someone who does it is inadvertent? Someone who does it is not inadvertent in a prohibition—he didn’t violate any prohibition at all. So what is “better that they be inadvertent”? It should have said here too: one does not impose a decree upon the community unless the community can endure it. It should have repeated what was said two lines earlier. But no—here they say “better that they be inadvertent.” That is interesting. What we see here—and it’s true—is that here it is not because of the prohibition. Here we were supposed not to engage in procreation because of logic. There is no commandment of procreation in a place where you are bringing a child into a situation where he will not keep commandments. This very much recalls Hezekiah, right? “What business do you have with the secrets of the Merciful One?”—when he did not want to have a child because he feared the child would be sinful. Fine. And he is told: “What business do you have with the secrets of the Merciful One?” But there it is different, because there the child may have free choice; it isn’t deterministic. But here I already see that the wicked kingdom is already here, and it does not allow the fulfillment of commandments. So logic says that here there is no procreation. Not only is there no procreation, but it is forbidden to engage in procreation. Not only is the positive commandment nullified, but there is a prohibition, and that prohibition is Torah-level—not rabbinic. It’s just that the sages do not inform us of it, so that we will be inadvertent, because they do not expect us to live up to it.
[Speaker C] And did they themselves stand by it?
[Rabbi Michael Abraham] Ah, nice comment. That’s what I said is especially amusing. It turns out that we are all descendants of the ignoramuses of that generation. Right? Because the Torah scholars, who knew that it was forbidden to do this, of course were strict about it—even if the sages did not announce it, because after all this is Torah law, not a rabbinic enactment. So what happened? To the ignoramuses they did not tell this law, so as not to make them deliberate sinners; they remained inadvertent and kept bringing children into the world. So that means that all the children in the next generation were children of the ignoramuses. Why?
[Speaker B] Unless, maybe, only if all the Torah scholars accepted the sages’ ruling.
[Rabbi Michael Abraham] Fine, the yeshiva can discuss that homiletically.
[Speaker I] But it’s not certain that the entire next generation were ignoramuses. If this situation existed in other generations too, then in every generation the same story repeats itself.
[Rabbi Michael Abraham] No, one generation is enough. One generation in which this happened is enough to say that we are all descendants of the ignoramuses. Since in between there were Torah scholars too, but there—in that generation—we are all descendants of the ignoramuses who were there. So what? Suppose that… No, I’m just saying, it’s an interesting point.
[Speaker I] They were descendants of ignoramuses and became Torah scholars.
[Rabbi Michael Abraham] Could be. I didn’t say that the whole chain now has to remain ignoramuses.
[Speaker I] I didn’t claim that ignorance…
[Rabbi Michael Abraham] …and being a Torah scholar are genetic. But I admit it is interesting that we are all descendants—we’re not of such distinguished lineage—that we are all basically descendants of the ignoramuses of that generation.
[Speaker C] “Be careful with the children of the poor, for Torah will come from them.”
[Rabbi Michael Abraham] Yes, poor in Torah. Okay, now we’re already sailing into the realms of homily here. Fine. In any case, what I wanted to say here—this is just an anecdote—what I wanted to show is exactly this point: that the Talmud speaks differently about the prohibition of eating meat and drinking wine and about the prohibition of engaging in procreation. Regarding the prohibition of eating meat and drinking wine, they did not impose a decree upon the community unless most of the community can endure it. What does that mean? As long as they did not decree it, you can continue eating meat and drinking wine; there is no prohibition. Maybe it isn’t ideal, but there is no prohibition because they didn’t decree one, right? In contrast, regarding procreation, if you engage in procreation even though they didn’t decree anything and didn’t say anything, you have violated a Torah prohibition. It’s just that you violated it inadvertently because you didn’t know, or something like that—you violated it inadvertently, but you violated a Torah prohibition. And here the logic was strong enough to generate a prohibition even without the sages enacting it, right? As opposed to the logic of not eating meat and wine, where as long as the sages did not enact it, there is no prohibition involved. It may be less than ideal, but there is no prohibition. And that is logic not strong enough to obligate me. So I think this illustrates that there are different levels of strength in logic. Okay? There are logical arguments that generate a prohibition even without being formally enacted.
[Speaker I] What kind of kal va-chomer is there? “Din” usually means kal va-chomer.
[Rabbi Michael Abraham] No, I don’t think it’s kal va-chomer.
[Speaker I] “Din” is usually a term the Talmud uses—when the Talmud says “din hu,” also with meat and wine, it’s because the altar is no longer eating, right? That was earlier. Yes.
[Rabbi Michael Abraham] No, but I think “din hu” here means logic. Certainly according to Maimonides, for example. Maimonides says we do not derive punishments from “din” with all kinds of hermeneutical methods, not only kal va-chomer. He understands “from din” to mean from some sort of expansive logic, not specifically kal va-chomer. True, most medieval authorities and apparently the Talmudic passages are talking only about kal va-chomer, but I don’t think the concept of “din” everywhere means only kal va-chomer. Sometimes “it stands to reason that it should be so” means that logic says it should be so. I don’t think it must specifically be kal va-chomer. You could perhaps try to find a kal va-chomer there too, but I’m not sure that’s necessary. True, in the previous case they do indeed bring a kal va-chomer. In any event, I’m saying this is an illustration that there are different levels of logical force, and therefore even if we say that logic is something that obligates in itself even without a verse, that still does not mean that everything is Torah-level—that takes it too far. Okay, that is the general introduction. Now let’s continue. The Talmud in Berakhot discusses how we know that one must recite a blessing after food. Where does it come from? For afterward it says: “And you shall eat and be satisfied and bless.” You eat, are satisfied, and afterward you bless—that is the blessing after food. What about the blessing before food, what we call blessings of enjoyment? Where do we know that from? “Who creates the fruit of the tree,” “who brings forth bread from the earth,” or something like that. So the Talmud goes through several possibilities there, and in the end it reaches the conclusion that it is logic. The logic is: it is forbidden to derive benefit from this world without a blessing, and whoever derives benefit from this world without a blessing is as though he committed sacrilege. Therefore there is an obligation to recite a blessing before food. The Pnei Yehoshua asks about this—again, the sources here are garbled so I won’t read them; I’ll just say it orally—the Pnei Yehoshua asks: if so, it turns out that blessings before food are Torah-level, because logic is Torah-level. And one implication, for example, would be that in cases of doubt one should be stringent. So why do we say that in cases of doubt concerning blessings we rule leniently? In general we are used to the fact that the law of blessings of enjoyment is rabbinic law, not Torah law. In every context, not only in the laws of doubt—in every context it is considered rabbinic law. And the Talmud says in the end that it is learned from logic. So if you say logic is Torah-level, then how is this not Torah law? That is his question. And the Tzelach there on the spot, on that passage in Berakhot on page 35 I think, comments on him and says: I don’t understand what he wants. Where did we ever find that logic is Torah law? If there is no command, there is no Torah law. What does it mean that logic is Torah law? As though the Pnei Yehoshua is saying something absurd. And on the face of it, the Pnei Yehoshua is right, as we saw before. After all, the Talmud says: “Why do I need a verse? It is logical.” There are Talmudic passages saying that logic is Torah-level, just as I said earlier about Rabbi Shimon Shkop. It’s not a Talmudic passage—it is logic. There is a logical argument that logic obligates. So what does the Tzelach want? What kind of claim is that? It seems to me that what the Tzelach really wants to say is that one must distinguish between two types of use of logic—not two types of logical argument. There are logical arguments that serve us in creating a new law, and there are logical arguments that explain an existing law or add details or definitions to an existing law. “The burden of proof is on the claimant”—about that the Talmud says, “Why do I need a verse? It is logical.” The Tzelach knew that passage too. And still he says: how can the Pnei Yehoshua say logic is Torah-level? Does he not know that passage? Of course he knows it. But there the Talmud is introducing a detail in the laws of judicial procedure: the burden of proof is on the claimant. It says “judge your fellow justly”; it says there must be a legal system. Fine. So logic only tells us how to conduct the legal system correctly, such as the principle that the burden of proof is on the claimant. So that logic merely defines a law that has a source in the Torah. Interpretive logic is certainly Torah-level. We use interpretation for commandments all the time. We are constantly interpreting verses. Which Torah laws are explicitly written in the verse without interpretation? There is almost no such thing. Meaning, laws written in the Torah always pass through interpretation, and that interpretation is not rabbinic—it is Torah law, because interpretation shapes the Torah law; it tells us what the Torah law says. But that is, for example, the case of the burden of proof being on the claimant. What happens with blessings before food? There you are creating a completely new law; it is not written in the Torah at all. You are creating a new law: that one must bless before eating. Where did that come from? It came from logic. The Tzelach says: logic that creates a new law, not logic that interprets an existing law—to assume that this is Torah-level, for that you need a verse, if the law is to be Torah-level. Interpretive logic—there I have a verse that attaches the law to the Torah level; the logic only tells me what is included in the verse or what the verse means. But the source of authority, why I fulfill it, is not because of the logic; the source of authority is the verse. When I say, “The Lord your God you shall fear”—to include Torah scholars—then I derive from the word “et” the commandment of revering Torah scholars. Why must one revere Torah scholars? By whose authority? What obligates here? The sages who expounded it? Of course not. The sages said that the verse that wrote “The Lord your God you shall fear” intended also to tell us reverence for Torah scholars. Once the sages explained to us that this is included in the verse, now when I revere Torah scholars I do so because the verse obligates me. The source of authority is the verse. It is not the… it is not the… sages. But when I recite a blessing before food, there is no verse obligating me to do this. This is a law that emerged entirely from the sages’ logic. And if I do it, it is only because I am bound by the sages’ logic. They are the source of authority. About that the Tzelach says: why on earth would this be Torah law? Why should it be Torah law? Where did we ever find that this is Torah law? His claim, apparently, if I understand correctly, is that every place where it says “Why do I need a verse? It is logical,” refers only to such places where the logic interprets a law that has a Torah source. But if the logic creates a new law, then we do not say “Why do I need a verse? It is logical.” There is no such thing. Now it is clear that even in Berakhot the Talmud tries to find various sources, and in the end it says “rather, it is logic,” and it does not say that since it is logic, it has the same status as the source. Right—we did not find a Torah source, so it will be a rabbinic law. That is how everyone understands it, that blessings are rabbinic law. Why? The Talmud does not say, “Why do I need a verse? It is logical.” The Talmud brings a verse, then refutes the verse, but it does not ask of the verse: why do I need a verse? After all, there is logic. It does not ask that. Since there this is logic that creates a new law, if there were no such verse then the law would be rabbinic. So this is very important. If there is a verse, one must know that there is a verse; it is not a question of “Why do I need a verse? It is logical.” In this context I think it may be worth mentioning what Maimonides brings at the beginning of chapter 2 of the laws of rebels. Maimonides writes there that in order to change a rabbinic law established by a certain court, one needs a court greater in wisdom and number. But in order to change a Torah law, one does not. It does not need to be greater in wisdom and number; it just needs to be a court. There are two principles in the Talmud—there is a contradiction between passages, and the medieval authorities already discuss it. One passage in Eruvin and one in Beitzah, I think: one passage says that a matter established by a count requires another count to permit it. A matter enacted by a court requires a court to permit it. Another passage says that it requires a court greater in wisdom and number. It is not enough that there simply be a court. And Maimonides says: this one deals with rabbinic laws, and that one deals with Torah laws. A court is required in either case, but if it is rabbinic law then a greater court is required. If it is Torah law then any court can do it. The Great Court prohibited it; another court can permit it, even if it is smaller than its predecessor. Here there is a very interesting objection. Maimonides argues that even when the reason for the original enactment or decree has ceased, one still needs a court greater in wisdom and number to change it. And on this the Raavad comments—he cites the whole Talmud, doesn’t matter—but he comments that “adorning the markets of Jerusalem with fruits” is a difficulty for him. Because there Rabban Yohanan ben Zakkai permitted that matter after the Temple was destroyed and the pilgrimages ceased and the reason no longer existed, so he abolished the enactment of adorning the markets of Jerusalem with fruits. Inside the markets of Jerusalem they would decorate with fruits. So the Raavad says: here we see that a court that is not greater in wisdom and number can abolish an enactment of an earlier court if the reason has lapsed, and therefore Maimonides is not correct. What would Maimonides answer to that? Again, this is a parenthesis within a parenthesis. What would Maimonides answer?
[Speaker C] Rabban Yohanan was greater.
[Rabbi Michael Abraham] Yes, Rabban Yohanan ben Zakkai was not necessarily smaller. Why do you assume he was smaller? The Raavad assumes decline of the generations—that if he is later, then he is certainly smaller. But if that is your assumption, then he is saying it can never happen that a later court is greater in wisdom and number, because the very fact that it is later means it is smaller. So when would the law ever apply that a court greater in wisdom and number can overrule?
[Speaker B] And it’s not only because of decline of the generations. Apparently it’s simple logic that with Rabban Yohanan ben Zakkai, this was the remnant of the survivors after the destruction. Right—it stands to reason because, as it were, many sages were killed and only a few remained.
[Rabbi Michael Abraham] Who says he was greater than the earlier ones?
[Speaker B] And it wasn’t only him, it was the whole court. It’s not likely that only the greatest sages remained. What’s more likely? That the level also declined.
[Rabbi Michael Abraham] And are today’s sages necessarily smaller than the medieval authorities (Rishonim)? No. You can grow wiser over time—what do you mean? There were younger scholars who remained, and afterward they became greater sages.
[Speaker B] That’s a different story.
[Rabbi Michael Abraham] I’m saying in this context, Rabban Yohanan ben Zakkai as well. All the young scholars who were with him grew in Torah and became wiser and became greater sages. I don’t know…
[Speaker B] No, because it was only a short time after the destruction.
[Rabbi Michael Abraham] In a person’s lifetime, his whole active adult life—in that period generally—it’s thirty or forty years. So what? Fine, so thirty… Thirty years after the destruction too is possible. What—ten years, twenty years, I don’t know how much?
[Speaker B] A group grew there,
[Rabbi Michael Abraham] Meaning that Rabbi Akiva was there, the second generation after him, Rabbi Yehoshua, Rabbi Eliezer, Rabbi Akiva, Rabbi Elazar ben Azariah—you’ve got some pretty serious lions there. To say that they are necessarily smaller than the earlier ones—I don’t see any necessity for that. Fine, never mind, that’s just an anecdote. In any event, why am I bringing this? Because Maimonides—what is really the explanation of this matter? Why is it that for something rabbinic you need a court greater in wisdom and number, whereas for something Torah-level it is enough that there be a court, but it need not be greater in wisdom and number? Usually people understand this as some special enactment to strengthen the standing of the sages. The sages gave greater reinforcement to their own words than to Torah law. Rabbinic laws might be treated lightly because they have less force, so sometimes they reinforced rabbinic laws. It seems to me there may be something else there, and at one point I even had some proof of it; I need to remember it. The claim is that when you disagree with an earlier court about Torah law, then in fact you disagree with them about what the verse says. Right? So when I fulfill what the earlier court ruled, or what this court rules, I am actually fulfilling what the Holy One, blessed be He, said. Okay? So the later court that says that the verse says something different from what the earlier court said is not acting against the authority of the earlier court. It is interpreting differently what the Holy One, blessed be He, says. The authority to which we are now obeying is the authority of the Holy One, blessed be He, not the authority of the court. The court merely determines—it is the one that determines what the Holy One, blessed be He, wants from us, what is written in the verse. And even if the source, and even if it is…
[Speaker I] Mistaken—the source is Torah, the source is the word of God.
[Rabbi Michael Abraham] But with rabbinic law, when the later court changes a rabbinic law of an earlier court, then it is acting against the authority of the earlier court. We do this because that court established it. And for that you need to be greater than them in wisdom and number. You are acting against them. Fine, one can argue a bit about this notion of “acting against them,” because they are interpreters. But the source…
[Speaker I] But the source of authority.
[Rabbi Michael Abraham] And therefore I say: this is a demonstration of what I said earlier. When the Sages function as interpreters, then really they’re only telling me what is written in the verse. When the Sages legislate a new law, then that law is a product of the Sages. So if the Sages use reasoning to shape a Torah law, then in effect that law, which they shaped, is a law that I observe because the verse says it, not because the Sages said it. The Sages only told me what is written in the verse. But if the Sages create a new halakha, then I observe that law because the Sages established it. The Sages are not relying on a verse. It’s something completely different. The Tzelach says, therefore, that this is a rabbinic law that the Sages enacted, and then of course the question does not arise at all regarding all the enactments of the Sages: after all, there is reasoning behind them, so why do we say this is a rabbinic law? No, obviously, because these are enactments that introduce a new law; that is certainly a rabbinic law. This of course answers the question about the laws that the Sages innovated. There are seven such ones according to that approach. Maimonides, in the section on the first root, says that the Behag counts seven rabbinic commandments among the 613 commandments. These are seven novel commandments. There is ritual hand-washing, there is—I really don’t remember whether he counts blessings over enjoyment, because that also should be one of them—but there are several like these that are newly created commandments. Hanukkah and Purim are of course clear examples. Hanukkah and Purim are not decrees and fences around some Torah-level law; this is a new law that the Sages created on their own initiative, through their reasoning. Except for the view that says there is some obligation to give thanks and the Sages only established how to give thanks, but in the simple sense it is a novel law. And those things would be rabbinic law. There is still the question of what happens when they say that it is also forbidden to separate food from waste, not only waste from food. That is a rabbinic prohibition. Why? What is this? It is within the parameters of the labor of selecting. And nevertheless it is only a rabbinic law and not a Torah-level law. Here the Sages are seemingly interpreting a Torah-level law, and still the result is a rabbinic law. That is already more difficult. The claim is that here too it is a novel law. Because if the Sages were saying, this is included in the Torah’s labor of selecting, that would be interpretation. But the Sages say: no, no, no—the Torah’s labor of selecting is only waste from food. And we say, we add, food from waste as well; that is rabbinic selecting. So it is like a novel law. It doesn’t matter that it is an extension of the law of selecting, but that extension is not an interpretive extension; it is a legislative extension. I am not saying that this is included in what the Torah means in the prohibition against selecting; rather, I am adding another prohibition that resembles the original prohibition of selecting, and I am saying that it too is forbidden. Therefore it is a rabbinic prohibition according to the Tzelach. So basically this is where he comes out. If I summarize: according to the Pnei Yehoshua—maybe one more sentence and we’ll finish just the Pnei Yehoshua—the Pnei Yehoshua claims, however, that reasoning is Torah-level even with regard to newly created laws. Right, that is what comes out. To my mind it is very hard to say such a thing. Once I was sure he was right; today I am sure he is not right. That reasoning is Torah-level in the sense that even if it innovates genuinely new laws, it is still a Torah-level law. Then the question arises: so why, in a case of doubt, do we rule leniently? My claim is that according to the Pnei Yehoshua, what should come out is that if you are in doubt whether you made the blessing, then you should say, “Thank you very much, Holy One, for this apple that You gave me,” and then eat it. Because that way you have fulfilled the Torah-level requirement. And the rabbinic part is only the formula, meaning the mention of God’s name and kingship, meaning how one makes the blessing. That is a rabbinic law; in a case of doubt, don’t say that. But the Torah-level requirement you really do have to treat stringently. And the obligation to bless beforehand is, without the formal text, a Torah-level obligation. The Sages only established the format—how to bless. So in the Torah-level plane you really do have to be stringent, and that is a major practical difference. Meaning that even in a case of doubt, according to Torah law you are forbidden to eat if you have not said thank you very much to the Holy One. But to say God’s name and kingship—not that, because this is a rabbinic doubt and there is also the issue of uttering God’s name, and therefore that is not said. That is what comes out according to the Pnei Yehoshua. According to the Tzelach, no. Because according to the Tzelach, once the reasoning generates a novel law, when the Sages innovate a novel law, its status is rabbinic, not Torah-level.