Topics in Halakhic Thought – Lecture 5

[Rabbi Michael Abraham] Okay, let’s begin. Last time I spoke about authority with respect to facts and with respect to norms, and what that implies for authority in Jewish law versus authority in matters of thought. I said that in most contexts, matters of thought are connected to facts, even though these aren’t facts you can observe directly with the senses, but they’re still facts. Meaning, either it’s true or it isn’t true, unlike Jewish law, where there can be several opinions and you can also expect a person to do something even though he thinks that’s not the right way to act. Say, for example, if the Sanhedrin says it’s forbidden to perform some act on the Sabbath and I think it’s permitted, there’s no logical defect in requiring me not to do it even though I think it’s permitted, because the Sanhedrin has authority. But if I think the Messiah will not come and the Sanhedrin decides that the Messiah will come, you can’t expect me, by virtue of the Sanhedrin’s formal authority, to obey and think that the Messiah will come. Because if I don’t think that, then I don’t think that. What can I do? Meaning, even if I really want to fulfill it, I have no way to do that. So my claim was that on the conceptual level, formal authority cannot exist with respect to factual questions, and most questions of thought are of that kind. At the end of the lecture, since we got a bit into questions of autonomy in halakhic ruling, we talked about authority in the halakhic context. I said that in the halakhic context, of course, you can talk about both formal authority and substantive authority, and I spoke a bit about authorities in the halakhic realm. And the claim was that in the halakhic realm, as I said before, you can talk both about formal authority and substantive authority, but formal authority of course depends on the question of to whom it was given. Meaning, you can talk about formal authority, but that doesn’t mean there actually is formal authority. It obviously depends on what its source is. So in the context of rabbinic authority in Jewish law, the source is the verses in the Torah, “do not deviate” and “you shall act according to what they instruct you,” but those verses give authority only to the Sanhedrin. To the ordained sages and the Sanhedrin, because the ordained sages derive their authority from the Sanhedrin. Therefore, any court or any sages who are not ordained, anyone who is not the Sanhedrin, “do not deviate” doesn’t apply to them. Again, where there is a Sanhedrin and the Sanhedrin appointed a lower-level court, a city court or a local court of three or something like that, then there’s room to speak about “do not deviate” even regarding the smaller court, because it receives its authority from a source that does have the authority of “do not deviate,” namely the Sanhedrin. So it can delegate that to lower courts in the hierarchy as well. But someone who is not acting by virtue of the Sanhedrin—a judge who isn’t ordained, or a court that isn’t the Sanhedrin—has no formal authority, and all he can have is substantive authority. I said there is an exception, because there can be formal authority that comes from below. Authority from above was given only to the Sanhedrin. But there is formal authority that comes from below, meaning, for example, a community that accepts a rabbi upon itself gives the rabbi formal authority. Meaning, the rabbi must be listened to because we accepted his authority upon ourselves. That doesn’t mean that someone who doesn’t listen to him violates “do not deviate.” It means he violates contract law, in a certain sense. Meaning, it’s a kind of communal contract by which we accept the authority of the rabbi upon ourselves, and by force of that contract he now has authority. But he has authority in the formal sense. Meaning, I do what he says not because he’s an expert, or not only because he’s an expert. I do it because he’s the rabbi. In that sense it’s formal authority, but it’s formal authority that comes from below. Okay? Beyond that, every Torah scholar has substantive authority. Meaning, a Torah scholar, as an expert—like a physician who is an expert in medicine—a Torah scholar is an expert in Jewish law, and therefore he has authority that is substantive authority. What does that mean? There is no obligation to listen to him, but it makes sense to listen to him because he is probably right. If he is an expert, then what he says is probably correct, and therefore it makes sense to listen to him. But of course, that already becomes a matter of judgment. To decide whether that makes sense in my eyes or not, whether this person is a Torah scholar or not in my opinion. Whether, even though he is a Torah scholar, I still think that here he made a mistake. In the context of formal authority there is no room for such considerations, because even if the Knesset or the Sanhedrin made a mistake, their authority still stands. It doesn’t matter. Not because I’m necessarily wrong when I said they erred. I may be right; they really may have erred, but that doesn’t matter. Formal authority derives not from your being right but from your being who you are. By contrast, with substantive authority, it depends on whether I’m persuaded that you’re right. I might not be persuaded that you’re right either because I don’t think you’re such a great expert, or because even though you are an expert, in this specific topic I’m very, very convinced that you made a mistake. And by the way, that can happen in medicine too. A physician may come along who is much more expert than I am in medicine and tell me to take a certain medication or undergo a certain treatment for an illness he diagnosed in me. I checked online, I consulted, whatever, and I reached the conclusion that I’m sure he’s wrong. There’s no doubt that he’s a great expert physician, much greater than I am, and still I won’t listen to him if I’m sufficiently convinced that he’s wrong. There’s no obligation to listen to him; there’s reason to listen to him because he’s right. So where I’ve reached the conclusion that he isn’t right, I won’t listen to him. That’s the difference between formal authority and substantive authority. And that’s how it is in Jewish law too. Even the greatest Torah scholar imaginable has no authority in the formal sense. All he has, at most, is substantive authority. Meaning, he is probably, probably right. And in that sense there is reason to listen to him. But if I’ve reached the conclusion that I’m sure he is mistaken, then I won’t listen to him even so, since the authority is substantive and not formal. In the end I got to more far-reaching claims, and I wanted to argue that the whole matter of substantive authority in Jewish law is limited. We read the words of the Rosh in Sanhedrin, in the fourth chapter, and there the Rosh talks about the authority of earlier generations, previous generations. And of course, when we talk about the authority of previous generations, we’re talking only about substantive authority. A body that isn’t the Sanhedrin has no formal authority. The fact that a sage lived five hundred years before me doesn’t turn him into an authority-holder. Chronology determines nothing here. Even if you accept decline of the generations—putting aside for the moment what you think about decline of the generations, whether the generations really decline or not—even if the generations decline, that changes nothing. No sage has formal authority from anywhere except the Sanhedrin. You can say that if the generations decline, or if Maimonides was such a great genius, then he has substantive authority. Substantive authority in the sense that he’s probably right. Not because I’m obligated to obey him, but because it makes sense to obey him because he’s probably right. But here, as I said, there’s room to argue that in certain places I say: yes, with all due respect to Maimonides, I’ve concluded that in this topic he erred. And then I won’t listen to him. Because there is no obligation to listen to him; it’s only because he’s right. So here it needs to be weighed. There are situations where even the greatest sage can err, even the greatest expert can err, and then I won’t listen to him. More than that, I said at the end—I also mentioned the Maharal and started speaking a bit about autonomy in halakhic ruling. Now before we move on, my claim was that autonomous halakhic ruling also has value. I brought an example—I don’t remember if I brought this example then; if not, I’ll bring it now—from the Talmud in Eruvin about Rabbi Meir. The Talmud says that his colleagues did not rule the halakhah in accordance with Rabbi Meir because they could not get to the depth of his reasoning. And on the face of it, that’s a paradoxical statement. Because if he was such a genius that you couldn’t get to the depth of his reasoning, that should be a reason to rule in accordance with him, not a reason not to rule in accordance with him. If I come to him with a chicken and he tells me, this chicken is non-kosher. Fine. Now I don’t see why, because according to my logic and the laws of treifot that I know, this chicken is kosher. So if Rabbi Meir is someone such a genius that his colleagues can’t get to the depth of his reasoning, then apparently I missed something, and he’s probably right: the chicken is non-kosher. So why is the fact that he’s such a genius that they can’t get to the depth of his reasoning a reason not to rule like him? The answer, it seems to me, is obvious here—I don’t remember if I discussed this last time—the obvious answer here is that one does not rule like him because a person must rule according to the considerations that he understands, even if he doesn’t hit the truth. And this is an important point—notice, it’s not trivial. Because here, say I’m arguing with Rabbi Meir. So here I didn’t understand what he’s saying and I disagree with him. Now take me aside and ask me: okay, but who would you bet is right between the two of you? I’ll tell you: obviously Rabbi Meir. After all, if I disagree with him and I didn’t understand what he’s saying, then apparently I missed something. He’s such a great genius that clearly if I disagree with him, I missed something—but really he’s right. I have a friend who says that anyone who answers a question of Rabbi Akiva Eiger probably has two mistakes. Rabbi Akiva Eiger, who asked the question on the Talmud, has one mistake—he didn’t understand something in the Talmud. And if you solved his question, then you probably have two mistakes that canceled each other out. It can’t be that you have zero mistakes if Rabbi Akiva Eiger has one. Meaning, at best you got to the answer because you made another mistake. Right? So if I disagree with Rabbi Meir—or an even number, if you’re going to make mistakes, in short, make an even number of mistakes, that’s the recommendation. Then at least you have a chance of getting to the right answer. In any case, for our purposes, what I really want to claim is that if I disagree with Rabbi Meir, then I probably missed something. But even I myself would tell you that Rabbi Meir is probably the one who is right. I don’t understand why, but even I myself understand the gap in Torah stature between us, and therefore I myself tell you that Rabbi Meir is right. And despite that, I act as I think, and I do not rule the halakhah in accordance with him. Notice—not someone else says Rabbi Meir is probably right. I myself say Rabbi Meir is probably right. So ostensibly, from the standpoint of substantive authority, I should have listened to him, because if I’m looking for who is right, what the truth will be, then I should do what is true. But no: I don’t rule the halakhah in accordance with him because I can’t get to the depth of his reasoning. And why? Here I brought the Maharal—now I remember, yes, I did speak about the Maharal—that the Maharal in Netiv HaTorah chapter 15 says that someone who rules halakhah not מתוך the reasoning and understanding he has of the topic, but because some book says what it says, is like a sorcerer. “Sorcerer” here means a magician. Meaning, halakhic ruling is not magic. Halakhic ruling is supposed to be based on the logic that the decisor himself—the one issuing the ruling—understands. And you have to rule in light of the considerations that seem correct to you. And again, even if you yourself know that you probably made a mistake, because Rabbi Meir disagrees with you and he’s such a great genius, so apparently even though these are the considerations that seem right to you, you yourself understand that you probably erred. In that sense it’s not like with the physician. Because with the physician, if I conclude that he’s such a genius, and if I become convinced that he’s wrong, but in the end the mistake is still mine, then I would listen to him. In medicine there is no value in being autonomous; in medicine the value is staying alive. And if, in the bottom line, my assessment is that the physician is right, even if I don’t understand why, I’ll listen to him. But in Jewish law it’s not like that. In Jewish law, if I reach a different conclusion, I disagree with Rabbi Meir—and again, I myself think Rabbi Meir is right, so in medicine I would certainly listen to him—in Jewish law, I don’t. In Jewish law, I’m supposed to rule according to what seems right to me. That’s what the Rosh wrote, whom we read there at length, the Rosh in Sanhedrin. That’s what the Maharal writes in chapter 15 of Netiv HaTorah. The Maharal says more than that. The Maharal says that before the Holy One blessed be He, someone who rules from his own mind and from his own understanding of the sources, even if he errs, is preferable to someone who rules only because some halakhic book says something, even if he is right. Meaning, if I now desecrate the Sabbath because in my opinion this is not considered desecrating the Sabbath—I think, say, that hunting on the Sabbath is permitted, okay? Now a great sage comes and tells me, look, it’s forbidden to hunt on the Sabbath, okay? Now a third person comes and says, that sage said it’s forbidden to hunt on the Sabbath, so I won’t hunt on the Sabbath—and he is indeed right, because it is forbidden to hunt on the Sabbath. But I came to the conclusion that hunting on the Sabbath is permitted, and I did what I think. The Maharal says: I desecrated the Sabbath, a capital offense, and I am preferable in the eyes of the Holy One blessed be He to that other person who didn’t hunt on the Sabbath not because of his own understanding but because that great sage said it was forbidden. Meaning, the value of autonomy overrides the value of truth. That’s basically what is written there. And therefore a person must rule according to what seems right to him, not according to what is written in halakhic books—even though the Shulchan Arukh and Rabbi Meir and Maimonides and whoever you want, obviously their smallest finger is thicker than my loins. Meaning, it’s obvious to me that they’re greater than I am. And I rule as I think not because I really believe this is the truth. I understand that, in terms of pure truth, they are probably right. But I have an obligation to rule autonomously. And to rule autonomously means to decide according to the considerations that I understand to be correct considerations, even though I myself, on a second-order level, understand that I’m probably mistaken, even though these seem to me to be the correct considerations. In medicine, that would reverse the decision. In Jewish law, it doesn’t. That is the autonomous approach to halakhic ruling. Now I just want to complete this discussion, because we started it last time.

[Speaker B] Sorry, is the Maharal’s view a minority view, or is it the view of a significant part of the decisors?

[Rabbi Michael Abraham] I said last time that it’s a question of degree. Everybody agrees with this to some extent; the question is against whom, and how far—that’s a question of degree. There’s a historical process in which, in the period of the medieval authorities (Rishonim), certainly among the Spanish Rishonim, they had a Maharal-like approach of autonomous halakhic ruling. And little by little, through the generations, up to the Shulchan Arukh, let’s say—Terumat HaDeshen, it seems to me, was really some kind of milestone in that process—and after that the Shulchan Arukh and the Rema and the commentaries, and little by little halakhic ruling became more and more precedent-based. Ruling that relies on precedent, like the Shulchan Arukh. And the question what to do now, as I said before, ostensibly one could say that the question of what to do now is itself disputed. So what should we do? The question whether to rule autonomously or not rule autonomously is itself subject to dispute. So what am I supposed to do—rule autonomously about it, or rely on precedents regarding whether to rule autonomously or not? I didn’t understand how brave you are, Rabbi.

[Speaker C] I apologize that my camera isn’t on, I just can’t turn it on.

[Rabbi Michael Abraham] Okay, actually, since you mentioned it, anyone who can, I’d ask to turn it on, unless there are special reasons, then you can leave it off, but in principle cameras are supposed to be on, okay? I said it depends how brave you are—if you do it, if you’re

[Speaker C] sufficiently

[Speaker D] autonomous or not.

[Rabbi Michael Abraham] Fine,

[Speaker D] that’s the question.

[Rabbi Michael Abraham] What’s incumbent on you—that’s not a question of whether you’re brave. You don’t need to be brave for this. I’m not doing it because I think I’m right; I’m doing it because I’m required to do it, so it’s not a question of courage. It’s a question of taking risks that maybe you’re wrong. I’m not taking risks.

[Speaker C] Someone who grew up—no, I’m talking about courage from the place of someone who grew up in, at least I can speak for myself, in classic Religious Zionism—so to do something that is, to rely on my own judgment in a halakhic matter that in the end actually becomes practice, there’s fear that goes along with it, and that’s why I’m saying it takes courage. Meaning, at least in my experience—and I think other people here share this experience—there’s some kind of fear that accompanies it.

[Rabbi Michael Abraham] Fine, courage or no courage, it doesn’t matter. In any case, I think this is what people need to do, this is what they are supposed to do. A person should rule according to the considerations that seem right to him, but—and here I said there is a but, which I’ll get to in a moment. But before that, I just want—because these things somehow sound radical for some reason.

[Speaker E] But Rabbi, how do you explain the gaps between the medieval authorities (Rishonim) and the later authorities (Acharonim)? I mean, this change that happened?

[Rabbi Michael Abraham] There are no explanations. That’s just how it developed.

[Speaker E] The later authorities created a precedent that you’re not allowed to create precedents.

[Rabbi Michael Abraham] Yes, right. And the medieval authorities were precedent-breaking. Like the conservatives—you know the story, the joke about… well, it’s not really a joke. Rabbi Noach Milakhovich was some Hasidic rebbe. Noach Milakhovich and someone else from Milakhovich, father and son—I don’t remember what the other one was called anymore. When the son took the chair of the admor after his father passed away, he changed some of his father’s customs. So they said to him: how can you change the holy customs of our court? So he said to them: I’m changing? I’m doing exactly what my father did. Just as he changed his father’s customs, I’m also changing his father’s customs. Meaning, I’m sticking to my father’s tradition. Or if you want a parallel line from the Lithuanian camp, then it’s something I often say—yes, literally “common in my mouth”—that there are two kinds of Hazon Ish followers. There are Hazon Ish followers who do everything written in the books of the Hazon Ish; they follow the path of the Hazon Ish. Those are toy Hazon Ish followers. But there are real Hazon Ish followers. The real Hazon Ish followers do what they themselves think, just as the Hazon Ish did what he himself thought. By the way, that’s also what the Hazon Ish instructed. In this case it’s not a joke. The Hazon Ish instructed people to give rulings autonomously. It’s written in his books. Meaning, this isn’t just a nice line. So someone who really wants to be a Hazon Ish follower has to do what he himself thinks. You know, the real Hazon Ish followers are Rav Gedaliah Nadel—those are the real Hazon Ish followers—and the toy Hazon Ish followers are the ones who do what’s written in the Hazon Ish. I know—I heard, I think Rabbi Yogel once told me—he was a study partner of Rav Gedaliah Nadel, who was the rosh yeshiva in the Midrasha. So they learned together, maybe in the 1940s, I don’t remember, something like that. They learned as a pair, and every weekend they would go to the Hazon Ish to discuss the questions that came up, and so on. I think I heard this from him once; I’m not one hundred percent sure. Not certain, but that’s roughly how I remember it. So Gedaliah came to the Hazon Ish and said, listen, we saw such-and-such in the book, I have a difficulty with it, it doesn’t look right to me. So he said: what do you want, Gedaliah? Do what you think. What do you want from me? If you don’t think like me, then do what you think. That’s what you’re supposed to do. And it’s also written in the books, in Yoreh De’ah, in siman 242, and also in siman 3, I think. And in the Hazon Ish there’s a discussion of the ways of giving rulings and so on; there he says a person should conduct himself and rule according to what seems right to him. By the way, that’s what the Hazon Ish himself did. He has a letter—you know, they always quote it—where he says that the words of the Chafetz Chaim are like a ruling that came out of the Chamber of Hewn Stone. After all, who gave the Mishnah Berurah its status? In Lithuania it was the Arukh HaShulchan; it wasn’t the Mishnah Berurah. The Mishnah Berurah had no special status in Lithuania. The Mishnah Berurah got its status in the Land of Israel. And the one who gave it that status was the Hazon Ish. And the Hazon Ish basically said that the Mishnah Berurah is like words that came out of the Chamber of Hewn Stone. Okay? Now, you know those editions of Mishnah Berurah with the Hazon Ish’s notes. There’s such an edition, in all the places where the Hazon Ish disagrees with the Mishnah Berurah. There are many such places. Okay? The issue of setting something in place, and all the less famous matters. So what is that? Is the Hazon Ish a rebellious elder? After all, if the Mishnah Berurah is a ruling from the Chamber of Hewn Stone, then anyone who disagrees with it is a rebellious elder. That tells you that a letter is a letter, and what one actually does, one has to actually do. Meaning, don’t quote letters too much. In the end, the Hazon Ish ruled the way he thought; that’s what it means. And he isn’t authorized to appoint the Chafetz Chaim to the Sanhedrin in the Chamber of Hewn Stone. Meaning, he still hasn’t replaced the Holy One, blessed be He. You know the joke about Rabbi Shach? I see I’m in a joking mood today. There’s a joke about Rabbi Shach—Rabbi Shach, it’s a late hour, so people are waking up a little—during the period of his great fights with the Lubavitcher Rebbe, right? So the joke says that the Rebbe once called Rabbi Shach and spoke to him, and Rabbi Shach said to him: listen, do you really think you’re the Messiah? And on what basis? What made you think that? So the Lubavitcher Rebbe says to him: what do you mean? The Holy One, blessed be He, revealed Himself to me and told me that I’m the Messiah. So Rabbi Shach says to him: I don’t remember saying such a thing. Anyway, let’s get back to our topic. The point is that there is value in autonomous halakhic ruling, and this is very well grounded in the tradition, even though the dosage of this definitely decreases over the generations. So let me show you a few relevant sources that I collected here in an article I once wrote about this. I’ll actually share it with you. Here—I’ll start with a passage that somehow didn’t make it into the article; I don’t know why they left it out. Responsa of the Ri”d, siman 62. Right? This is Tosafot Ri”d. “At the beginning of everything, I respond to my master concerning what you wrote to me, that I should not disagree with the great rabbi, our teacher Rabbi Yitzhak of blessed memory. Heaven forbid that I should do such a thing, and it never entered my mind to dispute him. And what am I considered—one flea, as the translation has it—compared to his disciple?” Right—even not compared to him, but compared to his disciple I’m a flea. “How much less so to speak after the king.” Right? What business do I have speaking after the king? “But this is with me.” Yes, but still, this is my policy. You know how it is: after “were I not afraid,” the correct thing always comes. “But this is with me: anything that does not seem right in my eyes—even if Joshua son of Nun said it, I would not obey him.” That’s from the Talmud in Hullin. “And I refrain not from speaking about it as appears to me according to the smallness of my intellect. And I apply to myself this verse: ‘I will speak of Your testimonies before kings and I will not be ashamed.’ And the witness in heaven is faithful forever, that even in a place where it seems to me that I have spoken well regarding any of the words of our early rabbis of blessed memory, heaven forbid that my heart should become haughty to say, ‘My wisdom stood by me.’” It’s not that I’m such a great genius, greater than all the medieval authorities. “Rather I judge myself by a parable that I heard from the philosophers… I heard from the wise among the philosophers, that they asked the greatest of them and said to him: surely we admit that the earlier ones were wiser and more insightful than us, yes? And yet we admit that we speak about them and contradict their words in many places, and the truth is with us. How can this be? How are we so small compared to the earlier ones, and yet still able to refute what they say? He answered them and said: who sees farther, the dwarf or the giant?” Right, the known parable. “Clearly the giant, whose eyes stand in a higher place than the dwarf’s. And if you place the dwarf on the giant’s neck, who sees farther? Clearly the dwarf, whose eyes are now higher than the giant’s eyes. So are we—dwarfs riding on the necks of giants. Because we have seen their wisdom and draw upon it, and through their wisdom we have become wise enough to say all that we say—not because we are greater than them. And with this we come to say that we should indeed speak about the words of our early rabbis, especially in places where we see that this one disagrees with that one, and this one forbids while that one permits. Upon whom shall we rely? Can we weigh mountains in a scale and hills in a balance, and say that this one is greater than that one, so that we nullify the words of one because of the other? Rather, we have nothing but to investigate their words, for these and those are the words of the living God, and to analyze and delve, by force of their words, to where the law inclines. For thus did the sages of the Mishnah and the Talmud. The later ones never refrained from speaking about the earlier ones, from deciding between them, and from overturning their words. And many mishnayot were overturned by the amoraim, saying that the Jewish law is not in accordance with them. And wisdom is greater than the wise man, and there is no wise man who is free of errors, for wisdom is not complete and perfect except with God alone.”

Now here there’s a certain double meaning—a double meaning both with a k and with a q. On the one hand, the reasoning of Tosafot Ri”d is a reasoning that apparently doesn’t say what I’m saying. Tosafot Ri”d says that Jewish law follows the later authorities—halakhah follows the later ones. But why? Not because of the value of autonomy, but because the later ones saw the words of the earlier ones, and the earlier ones did not see the words of the later ones. So it turns out that the decision made by the later authority is a decision that takes into account the considerations of the earlier authority as well, and therefore most likely the later authority is the one who is correct. So the fact that we rule like the later authority is true: the later one isn’t greater than the earlier one, but still, like a dwarf on the shoulders of a giant, he sees farther. And then that really means that when I myself issue a halakhic ruling, and even if I disagree with Maimonides or Rashba or whoever it may be, it isn’t because of a duty of autonomy. It’s still because of the value of truth. The claim is simply that I, as someone who comes later, despite my smallness—despite the fact that I’m a dwarf—hit the truth more accurately than the earlier authorities. So on the one hand he says: rule the way you understand, even though they were great geniuses, because even great geniuses still didn’t hear your arguments, while you did hear theirs. But understand that this by itself is not enough. Think about Rabbi Meir, whose colleagues could not fully grasp his reasoning, and therefore they did not rule in accordance with him. Now what is the claim here—that if Rabbi Meir heard me, he would change his mind? If he heard me, then he would explain to me where I’m wrong. So why is that a reason to rule not like him but like what I think? Therefore it seems to me that behind the words of Tosafot Ri”d, although once again on the surface such a reason doesn’t appear, behind his words there is something else written. It says that there is value in ruling autonomously, that a person should rule according to what he thinks even if he is mistaken. In the Maharal this is certainly written, and it is also written in the Rosh. Because if you remember, when we read the Rosh I showed you that the Rosh says that we rule—the obligation upon us is to rule as we understand, because Jephthah in his generation is like Samuel in his generation. What does that reasoning mean? Jephthah was not greater than Samuel; obviously Samuel was on the level of Moses and Aaron, and Samuel was greater than Jephthah. So what does it mean that Jephthah in his generation is like Samuel in his generation? It means that for the generation of Jephthah, the one who determines the Jewish law is Jephthah, even though he is smaller than Samuel, because there is value in ruling according to what I myself understand, not relying on someone earlier even if he is wiser than me. That is already the value of autonomy. In both the Rosh and the Maharal you see the value of autonomy. In Tosafot Ri”d he reaches the same conclusion—that you should follow the later authority—but from the standpoint of truth, not from the standpoint of autonomy. That’s the parable of the dwarf on the shoulders of a giant. Okay? Now let me show you a few more sources. Look, for example—wait, I haven’t shared yet.

[Speaker E] But Rabbi, even “Jephthah in his generation is like Samuel in his generation”—Jephthah in the end was the leading sage of his generation, so that’s why you can say he disagreed with…

[Rabbi Michael Abraham] Fine, but why did Jephthah allow himself to disagree with Samuel?

[Speaker E] Again, it could be that the leading sages of each generation can disagree with any…

[Rabbi Michael Abraham] Anything is possible, but it could also be not. Where does this distinction come from? If Jephthah can allow himself to disagree with Samuel, that means there is value in autonomous halakhic ruling. Where does that value stop—only with the leading sage of the generation? Where does that come from?

[Speaker E] With someone who has in fact encompassed the topics…

[Rabbi Michael Abraham] No, wait, then you’re no longer talking about the leading sage of the generation. In a moment I’ll qualify what I’m saying; we’ll get to that in just a second. So Maharshal says—I’m now going to bring you a few sources so you can see that these things are very well rooted in the tradition, even among the later authorities, not only among the medieval ones. So in Yam Shel Shlomo—I already told you in the introduction when we read the Maharal, I told you that the Maharal and Yam Shel Shlomo, Maharshal, and the Maharal’s brother, were among the leading fighters against the Shulchan Arukh. Because the Shulchan Arukh was basically the one that embedded the conception of precedent-based ruling, since he writes in the introduction that he follows the majority among the three pillars of halakhic ruling: the Rif, the Rosh, and Maimonides. Okay? And in fact a lot of criticism was directed against him, like that of Maharshal, the Maharal, and the Maharal’s brother, who wrote a book about it, Vikuach Mayim Hayim, Rabbi Chaim ben Betzalel. They argued that there is no such thing; you have to rule according to the considerations that seem right to you. What do I care what Maimonides and the Rosh and the Rif said? Not because you’re greater than them, but because there is an obligation of autonomous halakhic ruling, as we read in the Maharal. Now let’s read this in Maharshal. They all write this, each in his own place: the Maharal writes it in Netivot Olam, Maharshal writes it in the introduction to Bava Kamma. But clearly behind all this stands the principled polemic against the Shulchan Arukh that historically was led by the Maharal and the Maharshal. “For since the days of Ravina and Rav Ashi there has been no accepted tradition to rule like one of the geonim or one of the later authorities; rather, whoever’s words prove fit, being founded on a decisive demonstration according to the Babylonian Talmud and the Jerusalem Talmud and the Tosefta in a place where there is no decision in the Talmud.” And that’s it. After the Talmud, no one has authority—rather, whoever’s words prove fit, whoever I decide is right. Who am I to put my head between the mountains? That’s it. After Ravina and Rav Ashi there is no acceptance. What does it mean that there is no acceptance to rule? Ravina and Rav Ashi were accepted by us; after all, they didn’t have classic ordination, and there is no “do not deviate,” but we accepted upon ourselves the authority of the Talmud. So there is an acceptance to rule there, and there you cannot disagree with Ravina and Rav Ashi. But if there is a post-Talmudic sage—one of the geonim, one of the medieval authorities, and so on—and it seems to me like the words of a different sage, or it seems to me against him, then I need to act against him, to rule against him. Because there is no formal authority, only substantive authority, and even substantive authority is limited by the value of autonomy. There is value in ruling as I myself understand. The same in Hullin, siman 42, in the first chapter of Hullin, Maharshal discusses there the matter of the pinching of the sin-offering bird. And he says there: “If we merit the rebuilding of the Temple, I hope that I have merited to hit upon the Jewish law,” meaning that I merited to aim at the halakhic truth. “And although Maimonides was great in Torah, and also the SeMaG brought proof to his words, and the Raavad also did not object to him”—in short, I came out against all the greatest medieval authorities—“nevertheless I will not show favoritism in Torah, and I examined it as far as my hand could reach.” So that means there is a value of autonomous halakhic ruling. Wait—tell me, how are you?

[Speaker F] That’s the greatest of all, right?

[Rabbi Michael Abraham] I can’t hear. What?

[Speaker F] Are you traveling first to Jerusalem? Every day?

[Rabbi Michael Abraham] Who is that over there?

[Speaker F] Oh, just kidding… you’re traveling with Itai, Itai. Ah, that’s it. This Midrasha is unbelievable.

[Speaker B] Someone is talking there.

[Rabbi Michael Abraham] Yes. Just mute everyone, Rabbi. Okay. Let’s now look at another source. See Maharshal in the first chapter of Bava Kamma, siman 5. There he’s already discussing something worse: a problem that was not decided in the Talmud itself. Not a dispute among medieval authorities—a dispute among amoraim. Okay? What do you do with a dispute among amoraim? The authority of the Talmud we did accept. Maharshal says as follows: “And although the Talmud does not decide, I have come to decide. In the case of teiku, where a problem was left closed in the Talmud and was not resolved, no gaon in the world has permission to resolve it from a Mishnah or a baraita or by reasoning,” because that would be like… But there are many problems stated in the Talmud that were not resolved, yet it doesn’t say about them “refutation,” and it doesn’t say “teiku.” If there were one sage, even in our own time—the sixteenth century—who brought proof to resolve it, he would have permission, and we would follow him. Because since “teiku” was not said, then the matter remains in doubt until its resolution becomes clarified to you. And even when there is a dispute among amoraim, I can bring proof in favor of Rabbi Shimon against Rabbi Yehuda, and then I’ll rule like Rabbi Shimon. Who am I to decide a dispute among tannaim? By means of proofs. Now think what we generally do when learning Talmud. We study, say, a dispute among medieval authorities—Maimonides and Rashba. Now I have proof from the Talmud against Maimonides—what do I do with that? Of course, I build some conceptual structure to explain how Maimonides nevertheless fits with the Talmud, right? I think never in my life have I heard in a class that someone brought proof from the Talmud against Maimonides and therefore ruled like Rashba. I’ve never seen such a thing. If there is a difficulty from the Talmud on Maimonides, then it requires analysis—but what does that have to do with practical halakhic ruling? In practical halakhic ruling there is Maimonides and Rashba, and now there are the laws of doubt and we discuss according to the laws of doubt. Maharshal says: what are you talking about? If there is a dispute among amoraim—not medieval authorities—a dispute among amoraim and tannaim that was not decided, if the Talmud labeled it “teiku” or “refutation,” then the Talmud said: here there is no permission to decide. But if it didn’t label it “teiku” or “refutation,” it left the dispute open—and the overwhelming majority of disputes in the Talmud were not decided. In very few places does the Talmud itself decide the Jewish law. In most places the dispute remains open. There is this opinion and that opinion, and that’s it. Difficulties here, difficulties there, and everything remains open. What do you do in that situation? Maharshal says: I can bring proofs against Abaye and rule like Rava, or against Rabbi Shimon and rule like Rabbi Yehuda. Good Lord, there’s a difficulty on you from the Talmud if you do that. If there’s such proof against Rabbi Yehuda, why didn’t the Talmud bring it? If there’s proof from a Mishnah or from a baraita against Rabbi Yehuda—or you know what, leave Mishnah and baraita aside, because of tannaim—but against amoraim, fine? There’s a dispute between Rav and Shmuel, I brought proof from a Mishnah or a baraita against Rav and I want to rule like Shmuel. Now I say: the Talmud itself analyzed the dispute between Rav and Shmuel, so why didn’t the Talmud bring this proof against Rav, against Shmuel? Obviously—that was always brought as a difficulty against me, right? When I bring proof from the Talmud against Rav—from a Mishnah, sorry, against Rav—and the Talmud itself didn’t bring that proof, that’s a difficulty on you. Maharshal says: not a difficulty and not nonsense. If I have a Mishnah against Rav, I rule like Shmuel. That’s all. Why? Am I wiser than the Talmud? Didn’t the Talmud think there was proof from there? No, I’m not wiser than the Talmud. But since the Jewish law was not decided, there is a value of autonomy: I rule according to what I understand. Not because I’m wiser, but because I have an obligation to rule according to the considerations that I understand. And if that’s what I understand, then that’s what I do. Unless the Talmud decided. Then it’s like the Sanhedrin in the sense that we have no permission to disagree—again, from below—but there is still formal authority. And if the Talmud established “teiku” or “refutation,” then that’s it. Then the laws of doubt apply. But if the dispute remains open, that’s not a case of laws of doubt. I think I brought in the previous class that story with Rabbi Yonatan Eybeschutz, where the priest tells him: in the end you never follow us, even though we are the majority. So he says to him: I follow the majority where I have a doubt; if I have no doubt, I do not follow the majority. Now I’m saying the other side of the coin: the rule of following the majority, or the rule that a Torah-level doubt is treated stringently, is a rule stated for situations of doubt. But if I’m not in doubt, why should I act stringently out of doubt? There’s a dispute between Maimonides and Rashba. I’m convinced that Maimonides is right. Why should I then apply the stringency of Torah-level doubt? I’m not in doubt. If I’m in doubt, I need to follow the laws of doubt. But if I think like Maimonides, then I’m not in doubt. Why should I activate the laws of doubt here? That’s what Maharshal says. Even when there is a dispute among amoraim or tannaim that was not decided in the Talmud, Maharshal says: I am not in doubt. If I were in doubt and had no leaning to one side, then I would go with the laws of doubt. But I would go with the laws of doubt not because there is a dispute among amoraim. I would go with the laws of doubt because I myself am in doubt. And someone who is in doubt has to follow the laws of doubt. But if I am not in doubt—if I reached the conclusion that Abaye is right and not Rava—then I will rule like Abaye. Because I’m not in doubt, so why should I impose stringency because of Torah-level doubt? The rule that a Torah-level doubt is treated stringently was said to someone who is in doubt. I am not in doubt. Does the fact that Abaye and Rava disagree mean that I am in doubt?

[Speaker C] Can I ask a question? Yes. According to what’s being said here, given that now I’m in a situation that doesn’t allow…

[Rabbi Michael Abraham] I didn’t understand. So all you’re saying is that if you have no way of investigating, then you want to go like one of the books. One hundred percent—that’s how it is. I’m speaking from a situation where you have a view. No, but I’m saying—

[Speaker C] I have a view, but I haven’t now grounded it on the fact that I know the topic in a…

[Rabbi Michael Abraham] Your view doesn’t interest anyone. That isn’t called having a view. I can also have a view about string theory in sixty-four dimensions, but I haven’t studied it and haven’t examined the issue—so is that called having a view? That’s not called having a view. If I studied and examined the issue and I’m someone qualified in the matter, then I have a view.

[Speaker C] Okay, that’s exactly what I asked. I got an answer, thank you.

[Rabbi Michael Abraham] Yes. I’ll get to that. I said it earlier too; I’ll still get to it. I’ll qualify the radicalness of these things a bit. In any case, that’s basically my claim: that there is value in autonomous halakhic ruling. Let’s just read a few more things and then we’ll go out for a few minutes’ break. Let’s see. So we read Maharshal. Now look, for example, at another case: Rabbi Yaakov Emden in She’elat Ya’avetz, eighteenth century. So this is already continuing one hundred fifty, two hundred years after Maharshal, something like that. “Even toward those a thousand times greater than I am, I will not show favoritism in Torah. Regarding an error I say: here there is an error; regarding an oversight: an oversight. And I heard from my master and father, the gaon”—that is the Hakham Tzvi, yes, the father of Rabbi Yaakov Emden of blessed memory—“in the name of the author of Helkat Mehokek of blessed memory, that a person is not permitted to issue rulings until he has the power to uproot and erase a paragraph from the Shulchan Arukh. And the saying of Maimonides is known, that in matters of halakhic ruling, even the power of prophets is no stronger than that of the sage; rather, we follow either the majority of numbers or the strength of the proofs, according to what appears before the eyes of the sage. And thus was always the practice of the sages of the generations: they do not pay attention to the balance of a decision by an earlier or later composition when faced with decisive arguments.” If you have good considerations and good reasoning, or good proofs, precedents don’t interest me. I have a position, and that’s what I’m going to do. The same can be seen in Takfo Kohen. In Takfo Kohen, siman 79, of the Shakh of course—in the pamphlet Takfo Kohen of the Shakh—in siman 79 he wants to argue that in a dispute among great authorities, seizure is effective. Even if you say that in a case of teiku it is not effective, in a dispute among great authorities it is effective. What is a dispute among great authorities? I have a dispute among medieval authorities. Fine? Now the question is whether seizure is effective. So he says like this: in teiku, since it can never be clarified, because no person can resolve it, since it already rose to the status of teiku from the time of the sealing of the Talmud, therefore the doubt was born immediately at the time of the sealing of the Talmud, and any seizure is called seizure after the birth of the doubt. What is he saying? When there is teiku in the Talmud between two opinions or two sides, no one can decide, right? Because the Talmud established that here one cannot decide. So the doubt was fixed with the sealing of the Talmud. Now I want to seize—there is a legal case between me and someone else and I want to seize from him. Okay? The Shakh says: you cannot seize, because that is seizure after the doubt was born. The doubt was born in Babylonia in the sixth century, when the Talmud was sealed. You want to seize today in the twenty-first century. That is seizure after the doubt was born. Therefore there are views that in teiku, seizure is not effective. That’s how the Shakh explains it. But what happens in a dispute among great authorities? A dispute among great authorities means a dispute among amoraim, even amoraim, that was not decided as teiku. Certainly also a dispute among medieval authorities. But in a dispute among great authorities, the Shakh says, “for the judge has the power to decide from the Talmud or the halakhic decisors, even by his own reasoning, like one of them.” There is a dispute between Maimonides and Rashba. Today a judge sits down. When was the doubt born? Was the doubt born when Maimonides and Rashba disagreed? Rashba was later, so was the doubt born in the thirteenth or fourteenth century when Rashba disagreed with Maimonides?

[Speaker G] Presumably not. No.

[Rabbi Michael Abraham] The doubt was born in the twenty-first century, when the judge sits on the case and sees Maimonides and sees Rashba and has no decision. Because if he had a decision, then he would do what he himself decides; that wouldn’t be called being in doubt. If he has no decision, then he is in doubt. So what created the doubt? The disagreement of Maimonides and Rashba? Not at all. If I had a view, then despite the fact that Maimonides and Rashba disagree, it would not be a situation of doubt. This situation is defined as doubt because I am uncertain, not because Maimonides and Rashba disagreed. So when was the doubt born? In the twenty-first century. If so, seizure is effective, because the seizure is before the doubt was born. It’s not like teiku. Right: “It follows that the doubt is not born until the time the case comes before the judge and he has no power to decide. And this distinction appears to me clear and true.” He brings proof for this from a responsum of Mahari ben Lev as well, in siman 86, and elsewhere. There are more sources I can bring you, yes? There is Chut HaMeshulash by Rabbi Chaim of Volozhin. He says: “Indeed, concerning Torah, about which it is written ‘truth,’ surely our eyes are directed only toward the truth. And I was already warned of this from the mouth of my teacher, the holy one of Israel”—that is the Vilna Gaon—“not to show favoritism in halakhic ruling,” and so on. Not to accept rulings from someone else just because of who they are, “and not to show favoritism in halakhic ruling even to the determinations of our rabbis, the authors of the Shulchan Arukh.” If it seems otherwise to me, I disagree with them—the Rema and the Shulchan Arukh. By the way, in the printed edition of course they omitted this addition. That’s part of the policy of openness to all existing opinions. In any case, this appears in manuscript.

[Speaker H] What? What you quoted appears in manuscript?

[Rabbi Michael Abraham] Yes, in editions that had not yet gone through the censorship. Yes, I still saw it. In any case, the claim is basically that there is a very well-founded tradition that allows us—not allows us, but instructs us—to rule according to what seems right to us. True, the dosage of these things keeps diminishing. By the way, there’s also a Shakh like this in siman 63, se’if katan 126; he also writes the same thing. He brings there that all the medieval authorities go against him, but that doesn’t interest him because he has a position and they are simply wrong. That’s all. And not because he is greater than them, but simply because there is an obligation of autonomous halakhic ruling. Okay, we’ll stop here for a few minutes. We’ve gone a little past half the class, but let’s take a few minutes to refresh—four minutes, let’s say. We’ll come back at seven. Okay? Wash your face, get a cup of coffee, and we’ll come back at seven. Okay, we’re back, friends—come back in. Fine, open cameras if you don’t have some special constraint. Okay, I’ll continue. In this matter, beyond one source or another, the discussion really probably begins around statements in the Talmud. In a few places, and especially in two places, the Talmud says: “Since no halakhah was stated neither like this master nor like that master, if one acted like this master, he acted, and if one acted like that master, he acted.” For example, regarding an oath—it doesn’t matter—one case is about an oath, where the oath returns to Sinai, and the other source is about the afternoon prayer and the evening prayer, Rabbi Yehuda and the Rabbis, there regarding plag haminhah. And the Talmud says this, apparently: “Since no halakhah was stated neither like this master nor like that master, if one acted like this master, he acted; if one acted like that master, he acted.” What does that mean? Since no halakhic ruling was stated—meaning, no ruling was said like one side—then you can act like this one and you can act like that one. How do I decide whom to follow? Just by lottery? One could understand it that way—as a lottery. Meaning, it doesn’t matter, because if Jewish law was not decided, that means both are right, so whatever you do, you’re covered. That’s one possibility. Another possibility: you can do what you think, because the Jewish law was not ruled, so you should examine it yourself, come to your own conclusion, and that’s how you should act. Regarding shuda de-dayyanei, which is one of the rules discussed concerning halakhic ruling in cases of monetary doubt—halakhic ruling in cases of doubt—there is a dispute, Rashi and Rabbeinu Tam as is known, about what shuda de-dayyanei means: whether the judge just does whatever he feels like, or whether the judge may decide according to his own judgment. That’s not the same thing. He rules for the one who seems right to him, even if there are no formal rules of evidence in the usual sense. So similarly, this matter of “no halakhah was stated… if one acted like this master, he acted” can be understood in that way. But on the face of it there are medieval authorities who understand that this was said only in those two places in the Talmud, and not for nothing, because only there were we given the possibility to act this way or that way. They of course understand “if one acted like this master, he acted” to mean: do what you want, because both are right. There is a dispute among medieval authorities also regarding Rabbi Yehuda and the Rabbis there in Berakhot. So if you understand it that way, then it’s very likely that in a place where “no halakhah was stated neither like this master nor like that master” is true in a general sense, it’s not certain that both are right. There are places where the Talmud itself reached the conclusion that you can rely on both sides, and then it told you: do what you want. But if I understand that “no halakhah was stated neither like this master nor like that master, therefore if one acted like this master, he acted” means that you are actually supposed to decide for yourself—not to do whatever you want, but to decide for yourself what seems correct—because the Talmud didn’t rule, so it remained open. If that is the understanding, then there is no reason to distinguish and see this as a rule that applies only to those two specific places. It is basically a general principle that says that as long as the Jewish law was not decided, you are supposed to rule as you understand it. And the wording of this rule itself is phrased this way: “Every place where no halakhah was stated neither like this master nor like that master…” What does that sentence mean? Every place where no halakhah was said like one side or like the other. And that’s an all-encompassing rule; it’s not about two particular places. Every place where no halakhah was said like one side or the other—if one acted like this master, he acted, and if one acted like that master, he acted. It’s phrased like a sweeping rule. Now Tosafot—let’s actually start with Rashbam.

[Speaker F] The Talmud in Bava Batra

[Rabbi Michael Abraham] On page 62, the Talmud discusses there—never mind, something in the laws of sales. So the Talmud says: it was stated this way and it was stated that way—”the judges’ discretion.” That’s what the Talmud says: the ruling is judges’ discretion. Rashbam says there on the spot: when the Talmud rules “judges’ discretion,” that means the judges throw it where they will; since we are in doubt, we don’t know what the Jewish law is, we’ll apply judges’ discretion. And it all depends on the circumstances, as the judges observe and recognize whether the seller is generous or stingy. Meaning, they evaluate in that specific case which litigant is right—not a general halakhic ruling. But Rashbam says: in other places where we are in doubt between two formulations as to which side the Jewish law follows, we do not say “judges’ discretion” unless it is explicitly stated, as it is here. If there’s a place where no Jewish law was stated at all, but the Talmud did not say “use judges’ discretion” and simply left two opinions without deciding, then one does not apply judges’ discretion unless it is explicitly stated—like here. So what does one do instead? The burden of proof rests on the claimant. Meaning, if no Jewish law was decided, then the laws of doubt apply: the burden of proof rests on the claimant. Tosafot says there in the same place: even though generally, everywhere, we say that the burden of proof rests on the claimant and we leave the money in the possession of its current owner—whether we are in doubt about the facts, what actually happened, which is doubt about reality, or whether he is in doubt about the law, which is doubt about what the correct law is—still, here it seemed proper to the Sages to use judges’ discretion. In most places the rule is that if we do not decide, then the burden of proof rests on the claimant, but here it seemed proper to the Sages to use judges’ discretion. Tosafot continues—I’m skipping a bit—in all these cases it seemed proper to the Sages that they should divide it. There are other places where the Jewish law was not decided, so the Sages determine that it should be split. And where the Talmud does not explain anything—in places where the Talmud does not say “judges’ discretion” and also does not say “they divide,” it simply leaves two opinions and does not decide between them—what do we do there? Tosafot says: we can say that the burden of proof rests on the claimant. And where no Jewish law was stated, neither like this master nor like that master, and the judge thinks one of them is correct and acts accordingly—what he did is valid. Tosafot says that “the burden of proof rests on the claimant” is true when no Jewish law was stated and you have no position of your own. But if it seems to the judge that one side is right, then he should act—or at least it is legitimate for him to act—according to what he thinks. What he did is valid. Tosafot’s wording is a bit mild. He doesn’t say the judge must rule according to what he thinks, like we saw in the Rosh, in the Maharal, and others. Rather he says: but still, if he acted, it’s valid; if he acted according to his view, that is completely fine. He is not required to follow the laws of doubt. For that is what it says in the chapter “All Who Swear,” and that’s the passage in Shevuot that I mentioned: now that no Jewish law was stated, neither like this master nor like that master, one who acted like this one acted validly, and one who acted like that one acted validly. So what does Tosafot understand? That this is a sweeping rule. After all, he applies it here to the passage in Bava Batra even though it was said in Shevuot. Tosafot says: everywhere that no Jewish law was stated, neither like this master nor like that master, and the judge thinks one side is right—acting like that side is valid. What does that mean? Do what you think, not whatever you feel like; decide for yourself. Okay? And that is against Rashbam. And if the judge himself is uncertain which side the Jewish law follows, then the burden of proof rests on the claimant. Tosafot says: if you have no position, then the burden of proof rests on the claimant. But why does the burden of proof rest on the claimant? Not because there is a dispute in the Talmud, but because I have no position. Just as the Shakh wrote. So there’s a dispute in the Talmud—so what? There’s a dispute in the Talmud and no Jewish law was stated, so I will decide the dispute and then there will be Jewish law. If I have no position of my own and I have not decided the dispute, then the laws of doubt apply. They apply not because there is a dispute, but because I have no position—I am in doubt. So there’s a dispute—what of it? If I am not in doubt, then there are no laws of doubt here. The laws of doubt exist only if I am in doubt. That’s what Tosafot is saying. Meaning that basically the rule Tosafot establishes is that “acting like that side is valid” is a sweeping rule, everywhere—not only in places where this principle was explicitly stated, but everywhere. That’s the rule: everywhere that no Jewish law was decided, then acting like one side is valid.

Look at the wording of the Rosh, where one might have learned otherwise, and I think that would be a mistake. What does the Rosh write on that same passage in Bava Batra? Where the Talmud does not explain and does not issue a halakhic ruling, a judge may not extract money on the basis of doubt. The judge cannot take money out because of doubt, since no Jewish law was decided. Seemingly that is against Tosafot, right? And the judge should not say: since no Jewish law was ruled one way or the other, I’ll do whatever I want. If he does that, that is false judgment. Rather, he should leave the money in its current presumption and not extract money on the basis of doubt. Seemingly he goes against Tosafot, but that’s not true. After all, the Rosh himself, as we saw in Sanhedrin, says like Tosafot, right? That if no Jewish law was decided, you decide for yourself. What he is saying here is: do not extract money out of doubt. Meaning, if you have no position of your own, don’t say: “acting like one side is valid,” I’ll just do whatever comes into my head. Since no Jewish law was decided, I have no position of my own, so anything goes—judges’ discretion, just do whatever you want. The Rosh says: no. If no Jewish law was decided—in places where it does not say “judges’ discretion”—the rule is that the burden of proof rests on the claimant. But if you do have a position and you have decided in accordance with one side, about that the Rosh said nothing. There obviously you decide as you think and extract money accordingly; that is not called extracting money out of doubt. That is extracting money with certainty, because I have a position—I am not in doubt. Everything the Rosh says here applies only to a situation where the judge has no position of his own. So then we are left with the dispute and I am in doubt; out of doubt one does not extract money, and the rule is that the burden of proof rests on the claimant. But if I have a position, then of course I have to rule according to my position.

By the way, this is an important point in many other contexts, because there are many rules of halakhic ruling, and as is well known, decisors deviate from those rules all the time. For example, let me give you an example—even a very striking one on this issue. There is a dispute—there is a rule of decision in disputes between Abaye and Rava. One second. Yes. In disputes between Abaye and Rava, the rule is that the Jewish law follows Rava except for Ya’al Kegam—an acronym for six passages. In several places Maimonides rules otherwise. In the passage on “do not form factions,” he rules like Abaye. In the passage on “even if one acted, it is ineffective,” according to many of his interpreters he rules like Abaye. And more. Beyond those six. Now understand, this goes very far. Because the Talmud established a rule that also has exceptions. Meaning, think about it: in tractate Kiddushin the Talmud says: one does not derive from general rules, even where an exception was stated. Yes—even in a place where there is a rule and several exceptions are listed, one still does not follow the rule automatically. What does that mean? Think, for example, if the Talmud said: all positive commandments that are time-bound—women are exempt from them. And now you find a time-bound commandment for which there is evidence that women are obligated. So what do you do with the rule? Fine, the rule said something general, but there can be exceptions here and there. If there is evidence, then the exception is an exception. But what if there is a rule saying: all positive commandments that are time-bound, women are exempt—except A, B, C, and D. In a place where an exception was stated. Right? Now I found E, which is time-bound and women are obligated. That should be impossible, right? Why? Because if you tell me the rule is a general rule but it has exceptions, fine—maybe there are exceptions that weren’t listed. But here the exceptions were listed. You were told there are four exceptions, and now I found a fifth. Then you made a mistake. The Talmud says no: you found a fifth? Fine. Then the fifth is also an exception. Don’t make a big deal out of everything. One does not derive from general rules, even where an exception was stated. Meaning even where the rule is precise, even there we do not derive from general rules. Okay? So what do we do with “the Jewish law follows Abaye in Ya’al Kegam”? That’s a rule where an exception was stated, right? The Jewish law follows Rava except for Ya’al Kegam. There are six exceptions in which the Jewish law follows Abaye. Suddenly I see that Maimonides rules in additional places like Abaye. Now this is a rule where an exception was stated. Meaning it’s a precise rule. It tells you what the exceptions are. How do you allow yourself to make more exceptions? He’s following the Talmud—what do you want from him? Right. He’s following…

What’s the idea? I’ll tell you the idea. With rules of halakhic ruling, it’s even simpler—even without that Talmudic principle there. Why? The question is how we relate to rules of halakhic ruling. Do rules of halakhic ruling mean: this is how one must rule? Or are rules of halakhic ruling rules of conduct in situations of doubt? When you have a dispute between Abaye and Rava—okay? Fine, if the Talmud specifically ruled like Rava, then fine, the Talmud ruled like Rava and that’s that. But if the Talmud did not rule specifically in a certain passage like Rava, and instead established a principle: the Jewish law follows Rava except for Ya’al Kegam, where the Jewish law follows Abaye—or that the Jewish law follows Rav in ritual prohibitions and Shmuel in monetary law, right? Or Rav Nachman similarly, that the Jewish law follows him in monetary law, and so on—what is the meaning of these rules? Do these rules really come to tell me how I am supposed to rule? Or do these rules tell me what the default is? Meaning: if you have a position of your own, decide on your own. If you do not have a position of your own, then the rule is this: follow Rava, except in Ya’al Kegam, where you follow Abaye. And this rule does not tell me what to rule; rather, it gives me an outlet for situations in which I have no position of my own. It is one of the rules of doubt. And if it is one of the rules of doubt, then it applies only where I am in doubt. But if I have a position and I am not in doubt, then I don’t need rules. What sense does it make to apply rules of doubt where I am not in doubt? Like Rabbi Yonatan Eybeschutz in Kometz…

Therefore, Maimonides probably understands—because, as you know, in the books of rules they invented all kinds of sub-rules in order to reconcile this. So they say it may be that one can rule like Abaye in a case where the dispute between Abaye and Rava is itself a dispute rooted in a tannaitic dispute. Meaning, Abaye and Rava disagreed within an earlier dispute of the tannaim, so one can rule like Abaye in additional cases. Only in their direct disputes was the rule stated of “except for Ya’al Kegam.” Where did that invention come from? God knows. It’s an ad hoc invention just to somehow explain why Maimonides ruled like Abaye in more places than the six, or why other decisors did. It has neither root nor branch. And there’s no need for it. Because I think what Maimonides meant is that the rule that we rule like Abaye only in those six places is a rule stated to a judge who wants to rely on Talmudic precedent. He has no position of his own. So they tell him: if you want to rely on someone, rely on Rava. In those six places, rely on Abaye. In monetary law rely on Shmuel, in ritual prohibitions rely on Rav. But if you have a position of your own, and no Jewish law was stated in the Talmud, no specific halakhic ruling was reached in that passage, then do what you think. Reach your own conclusion and act on it. That’s all.

You know, for example, there is no greater ruling than the ruling in the dispute between Beit Shammai and Beit Hillel. Right? The words of Beit Shammai in a place where they oppose Beit Hillel are not even considered a teaching. It doesn’t count at all. One cannot rely on it even in pressing circumstances. Right? There are places in the Talmud where the amoraim ruled like Beit Shammai. Quite a few, by the way. At the beginning of tractate Beitzah there is a whole series in the Mishnah there of disputes… disputes between Beit Hillel and Beit Shammai, and in several places the Jewish law is ruled like Beit Shammai—by amoraim. The heavenly voice had already gone forth in Yavneh that the Jewish law follows Beit Hillel, and then they established that the words of Beit Shammai in a place where they oppose Beit Hillel are not considered a teaching. Remember the story with Rabbi Tarfon: you would have deserved liability yourself for acting according to Beit Shammai—for being stringent like Beit Shammai. It is forbidden even to be stringent like Beit Shammai when according to Beit Hillel you are not violating anything at all; you are just being stringent. Right? You sat in the sukkah in a way that, according to Beit Hillel too, is also fine—or yes, you leaned in order to recite the Shema according to Beit Shammai. So they say to him: what’s the problem? According to Beit Hillel too it is permitted to lean while reciting Shema; you’re just not required to lean, but it is permitted. So I want to fulfill my obligation according to Beit Shammai as well, and therefore I lean during Shema. And they say to him: you would have deserved liability for being stringent according to Beit Shammai. Because it is forbidden to act like Beit Shammai even stringently. The words of Beit Shammai in a place where they oppose Beit Hillel are not considered a teaching. So how can that be? And this was established already in the period of the tannaim. So I don’t understand—how can it be that the amoraim rule in several passages like Beit Shammai against Beit Hillel? It’s absolutely astonishing. By the way, I don’t remember ever seeing anyone address this at all, even though it’s an obvious question. I don’t know—surely there must be—but at least I don’t remember ever seeing anyone discuss it. The answer that I think is simple. The ruling of the heavenly voice is a ruling for someone who has no position. Someone who has no position and wants a high tree to hang from—right, “one who wants to be hanged should hang from a tall tree.” When you are looking for precedent to rely on—not to decide the Jewish law as you understand it—then you need to rely on Beit Hillel. That is what the heavenly voice decided. This is a ruling in the laws of doubt. But if you have a position—you think like Beit Shammai? Then do what you think. Because you are not acting like Beit Shammai; you are doing what you think. If you are relying on someone, you may not rely on Beit Shammai; you must rely on Beit Hillel. But when I decide, I am not relying on Beit Shammai—I am doing what I think. What, I’m forbidden to do what I think just because Beit Shammai also think like me? After all, I have to rule as I think in any case; that is the basic rule. Now, Beit Shammai also happen to think like me—so now I’m not allowed to do what I think because I have support from Beit Shammai? That’s absurd.

For someone who is merely traditionalist, yes, “from Beit Shammai”—he may not act like Beit Shammai. But Beit Shammai themselves acted according to their own view and Beit Hillel acted according to theirs. Why? Because Beit Shammai think what they think. To them the heavenly voice did not say: do what Beit Hillel say. The heavenly voice addressed those who have no position of their own. The whole Talmud in Eruvin that talks about taking the leniencies of both and the leniencies of both makes you wicked, and taking the stringencies of both and the stringencies of both makes you foolish—what is all that about? It’s about someone who doesn’t decide Jewish law for himself but relies on others. If you rely on someone, be consistent. Don’t take the leniencies of both, and don’t take the stringencies of both either. Be consistent and choose yourself a rabbi. But what should one really do? If you have a position, do what you think. If that leads you to be stringent like Beit Hillel and stringent like Beit Shammai each time because that really is what you think, you are not foolish. That is what you should do. Someone who relies on Beit Shammai and relies on Beit Hillel and each time goes for the stricter opinion—or each time for the more lenient opinion—is behaving improperly. But if someone rules what he thinks, and it happens to come out like Beit Hillel or like Beit Shammai, and always strictly—there is no problem with that. Or always leniently—there is no problem with that, because that is what he thinks. He is not relying on anyone, he is not choosing.

You know, my son once wanted to make the reverse responsa project. The regular responsa project is: you want to know what the Rashba says on a certain passage—whether he permits or prohibits. That’s the regular responsa project. The reverse responsa project says: I want to know who is more stringent in this passage, or who is more lenient in this passage—give me the results. And someone who is always looking for the leniencies of both sides, in every passage he reaches he looks for who is lenient and follows him. That person is wicked. Why is he wicked? He is wicked because he is not ruling according to his own view; he is relying on someone else. If you rely on someone, be consistent. Don’t go lenient every single time by choosing whoever is convenient for you. But if you rule according to your own judgment, and it comes out lenient here and lenient there, excellent—that is your opinion, that is what you ought to do. Obviously. That’s not what is being discussed. We are talking only about someone who uses precedent-based decision making. That’s something else. With precedents there are rules about which precedents one uses: Rava except for Ya’al Kegam, Beit Hillel rather than Beit Shammai, don’t take the leniencies of both or the stringencies of both. These are all just rules about which precedent to choose. But if you have a position, why go to precedents? Do what you think.

Now here I really come to the qualification that I already said earlier I would give. The main source for this issue is in the Rosh, which we already read last time; I’ll just emphasize one point written there.

[Speaker E] Rabbi, in any case what comes out here is a kind of problem—that the halakhic system is actually a bit anarchic here, right? Meaning there will be a rabbi who…

[Rabbi Michael Abraham] Jewish law is anarchic, correct.

[Speaker E] So that creates problems.

[Rabbi Michael Abraham] Meaning, let’s say there’s a judge who drives his car and causes some damage—

[Speaker E] to someone—but he says, according to my reasoning in the passage this is permitted. He can’t judge himself.

[Rabbi Michael Abraham] He’ll have to go to a religious court. He can’t judge himself. And the religious court will rule as it decides. Tell me, are today’s rabbinical courts consistent? Forget me—today it’s all precedents. Are today’s courts consistent? Aren’t there different opinions and the courts decide each time according to the opinion that seems right to them? Of course there are. But you—

[Speaker E] don’t know where they’ll take you,

[Rabbi Michael Abraham] suddenly they’ll take you to Beit Shammai,

[Speaker E] suddenly… And today you know where they’ll take you?

[Rabbi Michael Abraham] In life you never know. Not only do you not know where they’ll take you, you also don’t know according to whom they’ll rule. That too you don’t know. But besides that, they don’t judge according to Jewish law at all. Before you go to litigation, you sign that you agree to accept their compromise. And then they do whatever they want altogether. They aren’t even bound by halakhic ruling.

[Speaker E] I’m not talking about the practical reality today; I’m talking about the theoretical reality where you go to a religious court.

[Rabbi Michael Abraham] So I’m saying: you’re so troubled by the theoretical reality. What do you do with the practical reality? You manage to function in the practical reality, so in the theoretical reality I’ll also manage to function. There’s no problem with it. And if the Sanhedrin sees that in some specific matter an uniform standard has to be set, then maybe. So it will set it, and then it will be binding—”do not deviate.” But so long as no Jewish law was stated, the Sanhedrin did not determine it, there is no “do not deviate,” there is no halakhic ruling, so a judge does what he understands. Where did this crooked idea come from, that Jewish law has to be uniform? People think that when the Messiah comes and the Sanhedrin returns and all their life’s dream comes true, all disputes will be decided and Jewish law will become uniform again. I’m moving to Australia if that happens.

[Speaker G] I’m guessing that’s an interpretation of “do not form factions,” no?

[Rabbi Michael Abraham] Yes, but what is “do not form factions”? That’s something completely different. That’s customs. What does that have to do with this? In halakhic rulings, everyone does what he thinks—what does that have to do with “do not form factions”?

[Speaker G] I mean that it’s an understanding of how one ought to do it, yes.

[Rabbi Michael Abraham] A mistaken understanding. And the point is that the Sanhedrin’s role is not to make Jewish law uniform. What they have to do is: if there are points where uniformity has to be established so that people can live together, that’s what they do, and they issue a halakhic ruling. And in all the places where there is no problem with people doing different things according to their understanding, the Sanhedrin will not hammer things down. It seems obvious to me that that’s what would happen there. In Rabbi Yosei’s place they ate poultry with milk—so what? Where was the Sanhedrin? Why didn’t they smash their heads in there? Because they didn’t care. What’s the problem? You eat poultry with milk and there they won’t eat poultry with milk. As long as we can get along and everyone knows what the other one eats, then everything is fine. What’s the issue? In a place where people can’t marry each other, or where they can’t get along, and the Sanhedrin sees that some problem is arising, then they will establish a fixed standard. That’s all. And only where it’s needed. Where did this strange idea come from that Jewish law has to be cut and dried and uniform, and there can’t be different opinions? It’s a crazy idea. Why force everyone to act according to what they do not think?

[Speaker E] It’s not necessarily the same thing. There may be an orderly method—an orderly method of ruling—not necessarily one that brings you to one specific final outcome. But it gives you rules, as it were, rules of the format, what you might call rules of the…

[Rabbi Michael Abraham] I don’t understand, but different judges can reach different conclusions.

[Speaker E] Yes, because there are disputes in which it is legitimate to decide one way, whereas… So what’s the problem?

[Rabbi Michael Abraham] That’s what I’m saying.

[Speaker E] No, because if we already go back to Beit Shammai and Beit Hillel, then we’re collapsing things backward…

[Rabbi Michael Abraham] If there was a Sanhedrin that had ruled, then one could not rule like Beit Shammai because of “do not deviate.” I’m not talking about a place where Jewish law was determined. Or even where the Talmud established “teiku” or a conclusive refutation—then one cannot decide otherwise. Then the laws of doubt apply. But in a place they left open, there is no problem. Every judge can rule. We saw all the sources that say this. More than that: why does the Talmud leave things open? It could, even when it has no conclusion, establish teiku. Why didn’t it establish teiku in all unresolved passages? Because it itself really left them open. In places where it decided to fix matters, then it fixed them with teiku. That’s all. And once it fixed them, truly there is no permission to disagree. From the very fact that passages in the Talmud itself end in different ways, it seems that the Talmud itself understood it this way.

I’ll just finish with a quotation from the Rosh—a passage we already read, but just notice one important point for our purposes. “Where two great authorities disagreed in a halakhic ruling”—I remind you, this is the Rosh speaking about the obligation to rule autonomously—”where two great authorities disagreed in a halakhic ruling, the judge should not say”—notice this—even two great authorities in his own generation. “The judge should not say: I will rule whichever way I please; if he does so, this is false judgment. Rather, if he is a great sage, well trained and understanding, and knows how to decide in accordance with one of them on the basis of clear and correct proofs, he has permission to do so.” Meaning, if he has a position of his own—I wasn’t talking about that, that’s obvious, like the previous Rosh we saw. What the Rosh is saying here is that you cannot do whatever you want just because there are two opinions. The question is: what do you think? If you have no position, then the laws of doubt apply: the burden of proof rests on the claimant. He says: “And even if another sage had ruled on a similar matter, the sage may refute his words with proofs and disagree with him, as I wrote above—how much more so if he has support from one of the disputants.” Even if there is no dispute—if everyone is against me—but I have a position against them, I can rule according to my own view; all the more so if my predecessors already disagreed and I am merely deciding between them. “And if not, then he may not extract money out of doubt.” That is the important point. And here you see another expression: “Yiftach in his generation is like Samuel in his generation.” “You have only the judge who is in your days.” That is what he says. “But if their words are not upright in his eyes, and he brings proofs for his accepted view to the people of his generation against the great authorities of earlier times—Yiftach in his generation is like Samuel in his generation.” What does that mean? The Rosh says here—and this is the point on which I’ll end, the qualification I’m making at the end—that everything I said here applies to someone who is fit for it. Not every child, or even every yeshiva student, can make decisions against all the great authorities of the generation, the great medieval authorities, the great later authorities, and determine the Jewish law because that’s what seems right to him—because there is an obligation of autonomy. No. The obligation of autonomy is for someone who is fit for it. Someone who can decide on the basis of proofs. But notice: someone who is fit for it does not mean that he is the greatest authority of the generation, and certainly not that he has to be on the level of the Rashba and Maimonides if he wants to decide between them. That is not what “fit for it” means. About that he says: Yiftach in his generation is like Samuel in his generation. If you reach the level of skill where, from your perspective, you know how to decide the Jewish law—you wouldn’t be considered mistaken by your own lights—then decide the Jewish law yourself. Even if you are ten times smaller than the greatest of the great, the greatest authorities of this generation, and certainly than Maimonides and the Rashba—that doesn’t matter. You need to be fit for it.

It’s like the story about Rav Zusha, who said that when he gets to heaven, if they ask him why he was not Moses our teacher, he’ll manage with that question. But if they ask him why he was not Zusha, with that he won’t manage. And my claim basically—someone once asked me what the criterion is for being fit for it, after I wrote the article. Or actually before, because it appears in the article. So I said that my criterion is something I know in myself. Say, when I started learning, I had certain views. I learned the passage, and I had a certain view—this seemed to me to be the right conclusion. By the way, while learning one should also reach conclusions. Most people don’t do that. I reached a certain conclusion, and it seemed to me that that was the correct conclusion. I came back to that passage a year, two years, three years later, and the opposite seemed right to me. A different opinion was right—what was I thinking before? Slowly, over the years, I felt that… This doesn’t mean I’m right, because maybe I’m mistaken and the great authorities know better than I do. It means that I am already me, and I am already formed. That the position I articulate really is my position, and not some intermediate position that will shift along the way. Once I am already formed, that is called being fit for it. I do not have to reach the level of Moses our teacher, or Maimonides, or even Rabbi Ovadia. I need to be myself. Once I am myself, I am required to rule on my own. Whoever has not reached that stage truly should not do this. Only if he knows how to argue from proofs against the other views, to bring evidence against the other views, then he can rule and must rule according to his own opinion. That is what the Rosh says, and I think that is his criterion for being fit for it. Okay. That was the qualification—a short qualification after this long discussion. But a significant qualification.

[Speaker G] Yes. Can I ask a question? Yes. So based on what you said, how should we understand, say, the disputes referred to in “when the students of Shammai and Hillel increased, and they had not served their teachers sufficiently”?

[Speaker B] Yes. So? What’s the question?

[Speaker G] So I’m asking—it sounds, okay, at least in the explanation one usually hears, or at least the one I usually heard about how to understand this—they say that dispute began, or really arose, from the students’ inability to reach a sufficient level. It sounds like dispute is really an undesirable thing, at least according to that explanation.

[Rabbi Michael Abraham] Desirable or not—there’s been a lot written about that, and in Maimonides there are contradictions on it, and Rabbi Yitzchak Hutner talks about it in his book on Hanukkah; it’s worth reading in Pachad Yitzchak. And there he talks about that contradiction—that on the one hand it is presented as something post facto and regrettable, while on the other hand it is often understood as “these and those are the words of the living God,” and there is a certain glorification of the phenomenon of dispute. He says it’s not a contradiction. Many times something arises in a crooked way, but what arises is something positive. People often argue about Zionism: if Zionism succeeded, that means the Haredim were wrong. Not necessarily. And the reverse is also not true. The fact that something succeeds does not mean it is right, and the fact that something does not succeed does not mean it is not right—sorry. Those are two different things. Something can come as the result of something problematic, but the result itself can still be positive. That doesn’t prove anything.

There are many such things in Maimonides. In Maimonides, in the Laws of Lender and Borrower, chapter 4 I think—no, in the Laws of Hiring—Maimonides brings a ruling against the Talmud. He rules that a guardian who properly guarded an object and the object caused damage—or guarded a cow and the cow caused damage—the guardian is exempt and the owner is liable. The Talmud says explicitly that if I handed it to a guardian and he guarded it properly, that exempts me. Maimonides writes that the owner is liable. The Maggid Mishneh there suggests a rather strained explanation. And other later authorities suggest explanations too. Rav Chaim has an approach on it and more. In the Kesef Mishneh on the Mishneh Torah there appears there a responsum of Rabbi Abraham son of Maimonides, who says in the name of his father that this is a scribal error. It’s simply that a “no” got switched with a “yes.” He ruled like the Talmud; he did not rule against the Talmud. That’s all. Now Rav Chaim saw the Kesef Mishneh, and the Maggid Mishneh was before him, but even so, when Rav Chaim saw Maimonides he also saw the Kesef Mishneh, and nevertheless he reconciled Maimonides. And other later authorities also reconciled Maimonides. What does that mean—that there is no such halakhic position? Once you have reconciled Maimonides with the Talmud and this is reasoning you stand behind, then why should I care that Maimonides himself did not say it? We have here a Talmudic sage stating a reasoning, and that reasoning fits with the Talmud, and he is prepared to rule that way in Jewish law. Why should I care that it was born as the result of a scribal mistake in Maimonides? Now I will discuss whether I agree with Rav Chaim or not, whether I accept what he says or not accept it. But that position is a legitimate halakhic position. I don’t care that it was born through a mistake. Same thing here. The fact that something was born through an error does not mean that the thing itself is invalid. And more than that: even if it is invalid, still, now there is a dispute—what do we do? There is still a question of what to do. And it may be that even if this phenomenon is invalid, the obligation on me is still to rule autonomously. Even if everyone would have preferred that there be no disputes, in practice there are disputes. And if in practice there are disputes, one can still tell me that the principle is to rule autonomously. Once there is already a dispute, rule autonomously. I see no difficulty at all from that Talmudic statement.

[Speaker G] So if I try to trace backward, I’d say that the situation that existed before the disputes of Beit Shammai and Beit Hillel really emerged was that there were still disputes; they just weren’t expressed in the form we know today maybe. That’s the question…

[Rabbi Michael Abraham] In that very place. The Talmud describes in Chagigah that the first dispute to arise was between the two Yoseis of the pairs, about laying hands on sacrifices on a Jewish holiday. That was the first dispute that arose, during the turmoil of the Greeks. Rabbi Yitzchak Hutner also discusses this there in Pachad Yitzchak on Hanukkah—you can see it there. But I think it’s quite clear that there were disputes earlier too; they were just decided. How were they decided? Either people were persuaded, or there was a Sanhedrin that ruled and there is “do not deviate,” fine. But I’m saying that in a situation where there is a dispute and no halakhic ruling, there you need to decide autonomously. Whether that is good or not good one can debate—I think it is good too—but it doesn’t matter. At the moment, even if dispute is bad, the fact is that there are disputes. So what should be done now is a question that exists regardless. Thank you very much. Anyone else? Okay, then we’ll part in peace. See you next week.