Topics in Halakhic Thought – Lesson 15
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Halakhic pluralism and halakhic monism
- Harmonism and “these and those are the words of the living God” in Gittin
- Applying harmonism in Jewish law: plain meaning and midrashic interpretation, and Hanshke
- Applying harmonism in damages: ownership and negligence, burden of proof, and inciting a dog
- Eruvin: a heavenly voice, “it is not in heaven,” and majority of wisdom versus majority of numbers
- The meaning of “the Jewish law follows Beit Hillel” and Rabbi Yosef Karo’s reading
Summary
General Overview
The question of dispute is tied to the question of halakhic truth, and Avi Sagi in his book These and Those proposes three directions for understanding the relationship between different opinions and truth: halakhic pluralism, which assumes multiple truths or the absence of one decisive truth; halakhic monism, which assumes one halakhic truth such that only one opinion hits the mark; and harmonism, which understands the opinions as different facets of a complex truth that joins into a whole. Examples are brought from the Talmud and from analytical Talmudic thinking showing how at times there are two legitimate options, how “these and those are the words of the living God” receives a cumulative, harmonistic interpretation, and how halakhic ruling, majority, and a heavenly voice are understood through the question of whether Jewish law seeks one truth or a social decision.
Halakhic pluralism and halakhic monism
Halakhic pluralism is defined as the principled view that there is no single halakhic truth, and every position built according to the rules and judgment is equally justified, so there is no essential distinction between right and wrong. Halakhic monism is defined as the view that there is a halakhic truth, and therefore only one opinion hits it while the others are mistaken, though that does not mean every question must have only one answer, because some questions can have more than one correct answer. Examples of “a positive commandment versus a positive commandment” and “one may act like this master or like that master” are presented as special cases in which two paths are acceptable, and the claim is that these are exceptions proving that generally one opinion is ruled as Jewish law. The text states that the possibility of “one may act like this master or like that master” does not require essential pluralism, because it concerns very specific questions within a system that usually decides.
Harmonism and “these and those are the words of the living God” in Gittin
Harmonism is presented as a type of monism that sees the different opinions as facets of a complex truth, and the Maharal and Rabbi Kook are presented as sources in which expressions of such an approach can be found. In the passage in tractate Gittin 6b, a dispute is brought between Rabbi Evyatar and Rabbi Yonatan regarding the concubine at Gibeah: whether there was “a fly” or “a hair.” Elijah, in the name of the Holy One, blessed be He, says: “My son Evyatar says this, My son Yonatan says that,” and then, “These and those are the words of the living God: he found a fly and did not mind; he found a hair and did mind.” A reading is proposed according to which his anger arose from the sum of the two events, so that the full truth includes both aspects, and each sage grasped only one partial aspect. The text argues that in the passage in Eruvin there is no explanation of the meaning of “these and those,” whereas in Gittin there appears an explanation that understands truth as a cumulative synthesis, complete only from the all-encompassing perspective of the Holy One, blessed be He.
Applying harmonism in Jewish law: plain meaning and midrashic interpretation, and Hanshke
David Hanshke is described as having written in 1977 in HaMaayan about the relationship between plain meaning and midrashic interpretation, presenting three conceptions, among them a conception according to which the truth is the midrash plus the plain meaning. An example is brought from “do not place a stumbling block before the blind,” via Minchat Chinukh, according to which the rabbinic interpretation of the Sages does not cancel the plain meaning, because “a verse does not depart from its plain meaning,” and therefore both the prohibition of physically tripping someone and the midrashically derived prohibitions of causing someone to sin and giving unfair advice all remain in force. Hanshke presents the example of “an eye for an eye,” where combining the plain meaning—taking out an eye—with the midrash—monetary compensation—makes it possible to understand an opinion in the Talmud according to which one pays “the value of the damager’s eye.” The text explains this as a logical composition that produces a third result out of two components. The parallel is emphasized by the analogy to the Gittin passage, where the joining of “the fly” and “the hair” is what generates the result.
Applying harmonism in damages: ownership and negligence, burden of proof, and inciting a dog
An analytical inquiry in Bava Kamma is presented regarding the basis of liability for damage caused by one’s property: between an explanation based on negligence in guarding and an explanation based on responsibility stemming from ownership itself. It is argued that in practice two agreed-upon conditions exist: that the damaging property belongs to the damager, and that there was negligence in guarding it. The dispute is over which is the “ground” and which is the “side condition,” with the main practical difference being the burden of proof. In the name of Rav Shmuel, a dispute is brought between Pnei Yehoshua and the Chazon Ish regarding the burden of proof when it is known that the ox caused damage and the dispute is whether proper guarding had been in place. Later it is argued that repeating this practical difference in the name of the Chazon Ish is inaccurate, because according to the text the Chazon Ish ties the burden of proof to the implausibility of the claim and to the presumption created by the very occurrence of the damage. The passage of “one who incites a dog” in Bava Kamma 25 is cited, and an opinion is described according to which even someone who incites his own dog against another person’s chicken is exempt. The text proposes explaining this through a model in which the liability rests on the ox or dog itself as a kind of monetary lien, and the owners bear the liability only as a transfer of that obligation when negligence justifies transferring it. Finally, a methodological conclusion is proposed: there is no need for a strict dichotomy of “either this or that”; rather, the two requirements can be seen as a harmonistic combination in which only the sum of ownership and negligence creates the liability. This resolves the data attributed to Pnei Yehoshua both with regard to the burden of proof and with regard to inciting.
Eruvin: a heavenly voice, “it is not in heaven,” and majority of wisdom versus majority of numbers
The passage in Eruvin is brought about the three years of dispute between Beit Shammai and Beit Hillel, the emergence of a heavenly voice that said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel,” and the Talmud’s question why the Jewish law was established like Beit Hillel, answered: “Because they were pleasant and humble, and they taught both their own statements and those of Beit Shammai, and not only that, but they taught Beit Shammai’s statements before their own.” The text raises the difficulty of “it is not in heaven” versus ruling by a heavenly voice, and proposes the answer that the dispute between Beit Shammai and Beit Hillel concerned the very rules of decision themselves, and in such a state it is impossible to decide with ordinary tools, so there is room to return to the “Giver of the Torah.” Tosafot is cited as explaining that the dispute concerns whether one follows the majority of wisdom or the majority of numbers, and the text connects this to the question of halakhic truth: monism leads to preferring the majority of wisdom, while pluralism leads to preferring the majority of numbers for the sake of uniformity. An analogy is presented to democracy, in which the majority is not a tool for uncovering truth but a mechanism for representing the public will, and it is said that this is likewise how one can understand preferring the majority of feet as deriving from an ethical consideration of rights rather than an intellectual consideration of truth.
The meaning of “the Jewish law follows Beit Hillel” and Rabbi Yosef Karo’s reading
The text argues that the combination of “these and those are the words of the living God” with “but the Jewish law follows Beit Hillel” seems like two contradictory statements, and that each of the approaches—pluralism and monism—must explain the part that does not fit with it. A pluralistic reading is presented according to which the Jewish law is fixed like Beit Hillel in order to create functional uniformity despite the absence of one halakhic truth. In contrast, the position of Rabbi Yosef Karo is presented from his rules of the Talmud, according to which “the Jewish law follows Beit Hillel” was established because Beit Hillel were right, since the method of hearing Beit Shammai’s words and weighing them before forming a position increases the likelihood of reaching the truth. The text concludes that according to this monistic reading, the meaning of “these and those are the words of the living God” requires renewed clarification, and the continuation of the explanation is postponed because the lecture stopped at that point.
Full Transcript
[Rabbi Michael Abraham] The question of dispute is also connected to the question of halakhic truth. When we have several opinions in Jewish law, then we need to examine what exactly the relationship is between them, and what the relationship is between each of them and the truth. On this issue, in principle, there’s a book by Avi Sagi called These and Those, and there he deals extensively with this whole topic, and he proposes three main directions to explain the relation to halakhic truth. One view is the pluralistic view, a view that says there are multiple halakhic truths. And when there is a dispute, basically everyone is right, or nobody is right—however you want to define it—but there isn’t someone who is right and someone else who is wrong. That’s the pluralistic view. Then there is the monistic view, which says that there is a halakhic truth, and therefore only one of the opinions hits it, while the other or others do not. In other words, one is right and the others are mistaken. Now here we need to clarify a certain point. When I speak about halakhic monism, that does not necessarily mean that in every halakhic question there is only one truth. In legal philosophy too, people deal with the question of legal truth, and there too there are discussions over whether there is one legal truth or not. But it’s pretty clear that there can be questions for which there is more than one correct answer. For example, we know that a positive commandment overrides a prohibition. What happens when you have one positive commandment against another positive commandment? “Act for the sake of Your name.” What happens when you have a positive commandment against a positive commandment? When you have one against another, basically that’s an evenly balanced clash, right? We have no way to decide in favor of one side. Usually we say passive omission is preferable, but let’s leave that aside for the moment, let’s ignore that for a second. So we have one positive commandment against another, neither one is preferable to the other. In that situation there is definitely room to say: do this or do that; both options are halakhically acceptable. That, for example, is a situation in which there can be two halakhically correct—or at least legitimate—answers.
In the Talmud we find, for example, “one may act like this master or like that master.” Regarding the afternoon prayer and the evening prayer, the dispute between Rabbi Yehuda and the Sages. And regarding “let the oath return to Sinai,” in tractate Shevuot, the dispute between Rav and Shmuel. There too the Talmud says, “one may act like this master or like that master,” meaning: do like this one, that’s fine; do like that one, that’s also fine. Meaning there is more than one halakhic truth. Does that necessarily mean we are dealing with a pluralistic conception of Jewish law? Pluralistic meaning a multiplicity of truths in Jewish law? Not necessarily. Why not? Because we are talking about very particular questions. After all, usually the halakhic rule is not “one may act like this master or like that master.” Usually we render a halakhic ruling; we say what one should do and what will not be accepted as Jewish law. In very specific cases the Talmud says, “one may act like this master or like that master.” So on the contrary, the exceptions prove the rule: that generally there is one halakhic truth; there are certain places where there can be more than one correct halakhic answer. But that does not mean that in principle there is no halakhic truth.
Halakhic pluralism says that on the principled level there is no halakhic truth. Everyone who works according to the rules, according to his judgment, is equally right; there is no right and wrong here. In that sense, the statement “one may act like this master or like that master” actually stands against that conception, because it says: true, there is one certain question for which we do not decide the Jewish law and we leave both possibilities as legitimate options. But that is one possibility—or sorry, one question. Usually in Jewish law it isn’t like that. Why? Because usually in Jewish law we rule. There is a halakhic opinion according to which one ought to act, and the other opinions will not be accepted as Jewish law. Therefore, when I speak about the dispute between halakhic pluralism and halakhic monism, I do not mean the question of whether every halakhic question has one answer. I think everyone can agree that not every halakhic question has one answer. The question is whether there are halakhic questions that do have one answer. The pluralist will say no, because every position regarding every question is equally justified. That is substantive pluralism. Therefore there will be no question for which there is one halakhic position. The conception of halakhic monism says that there are questions in Jewish law—probably most of them—for which there is one halakhic answer. That does not mean there are not others for which there is more than one halakhic answer.
So we said there is halakhic pluralism, there is halakhic monism, and then he talks there about harmonism. Harmonism means—this is really a kind of monism—that the Maharal and Rabbi Kook can be seen as expressing this kind of thing: it sees all the halakhic opinions as different facets of a complex truth. A good example of this can be brought from the Talmud in tractate Gittin. In tractate Gittin, in fact, the rule “these and those are the words of the living God,” which is the basic rule for relating to disputes, appears in the Talmud in two places: in Eruvin and in Gittin. In Eruvin it’s the dispute between Beit Hillel and Beit Shammai—not one particular dispute, but “for two and a half years Beit Hillel and Beit Shammai disagreed until a heavenly voice emerged and said: these and those are the words of the living God.” So that’s the dispute in Eruvin, Eruvin 13. In Gittin, on 6b, there’s an incident brought of a dispute between Rabbi Yonatan and Rabbi Evyatar regarding the concubine at Gibeah. What made her husband blow a fuse? What caused him, basically, to lose his temper? So the sages there disagreed over whether it was a fly or a hair. Did he find a fly in the soup, or a hair in that place? Fine, it doesn’t matter, there was some dispute over what exactly she did there that aroused his anger.
So the Talmud says there—maybe let’s look at the text. I’m sharing my screen. The Talmud in Gittin. Okay? “And furthermore, it was Rabbi Evyatar with whom his Master agreed, as it is written: ‘And his concubine played the harlot against him.’ Rabbi Evyatar said: he found a fly with her. Rabbi Yonatan said: he found a hair with her. And Rabbi Evyatar found Elijah.” He found Elijah the prophet. “He said to him: What is the Holy One, blessed be He, doing? He said to him: He is occupied with the episode of the concubine at Gibeah.” Right, He is occupied with the topic of the concubine at Gibeah. “And what is He saying?” What is the Holy One, blessed be He, saying? We have some dispute here, so let’s hear what He says and settle the matter. “He said to him: My son Evyatar says this, My son Yonatan says that.” Meaning, the Holy One, blessed be He, repeats the dispute between Rabbi Evyatar and Rabbi Yonatan. Rabbi Evyatar then says to Elijah: “Heaven forbid! Can there be uncertainty before Heaven?” Doesn’t the Holy One, blessed be He, know what happened there? By the way, this is a factual question—what was there? It’s not a halakhic question. In a factual question it’s even stronger that there ought to be one answer. What exactly was there, a hair or a fly? He said to him: “These and those are the words of the living God: he found a fly and did not mind; he found a hair and did mind.” There were both a fly and a hair there. But he found the fly and did not mind, and he found the hair and did mind.
Now only just now I notice this point. Look at the first line that’s highlighted for me on the page. “It was Rabbi Evyatar with whom his Master agreed.” Rabbi Evyatar is a great man. Why? Because the Holy One, blessed be He, agreed with him. Let’s see what Elijah says in the name of the Holy One, blessed be He: “These and those are the words of the living God: he found a fly and did not mind; he found a hair and did mind.” I remind you that Rabbi Evyatar said it was a fly, and Rabbi Yonatan said it was a hair. So with whom did the Holy One, blessed be He, agree?
[Speaker B] Seemingly with Rabbi Yonatan, right?
[Rabbi Michael Abraham] Seemingly Rabbi Yonatan, because the hair was what he found and got upset about. There was a fly there, but that didn’t upset him; it was the hair that he found and got upset about. So how does the Talmud say that Rabbi Evyatar is a great man because the Holy One, blessed be He, agreed with him? In my opinion, you need to read the Talmud differently. “He found a fly and did not mind; he found a hair and did mind” means that the anger arose from the sum of the two events. After he found the hair as well, that already made him blow a fuse. What is this, basically? Then it turns out that the Holy One, blessed be He, agreed both with Rabbi Evyatar and with Rabbi Yonatan. So that works out. Rabbi Evyatar is a great man because the Holy One, blessed be He, agreed with him—and also Rabbi Evyatar and Rabbi Yonatan. So what does that actually mean?
In the Talmud in tractate Eruvin, the explanation of the rule “these and those are the words of the living God” is not given. It only says “these and those are the words of the living God, but the Jewish law follows Beit Hillel,” but it doesn’t say what that means. What does “these and those are the words of the living God” mean? That both are right? That not both are right? What are we talking about? Here the explanation appears. The Talmud explains what the meaning of the statement “these and those are the words of the living God” is. What is the meaning? As I explained before, it’s a cumulative meaning. What in fact happened? Both a hair and a fly. So actually each side here, each of these sages, grasped one side of the overall truth, of the full truth. The full truth is the sum of all the opinions together. The anger that was aroused in that man was the result of the hair and the fly together. So if I take this as a sort of model case explaining the meaning of the expression “these and those are the words of the living God,” what this is really saying is harmonism. Because harmonism means there is harmony between the different opinions. What does harmony mean? Pluralism is not harmony, because pluralism doesn’t coordinate opinion A with opinion B; it says opinion A is right and opinion B is right too—or neither is right, it doesn’t matter—there is no right and wrong; that is not harmony. Monism says one is right and the other is wrong; that is also not harmony. Harmony means that the truth is both together. Both together combine, like the harmony of an orchestra, right? Both together join and create the whole called truth. Each one grasped only one particular facet, and perhaps in a certain sense we as human beings are always destined to grasp only one facet of the truth and not the whole truth. The entire whole, the complex truth in its fullness, can only be grasped by the Holy One, blessed be He, and it is really the synthesis of all the particular perspectives that human beings have.
That is basically what emerges from the Talmud here. In other words, the explanation of the rule “these and those are the words of the living God” means that these and those are part of the larger truth. Each of them is right, but not completely right. That is, each of them grasps a certain facet of the truth. The truth is the whole sum together. Okay, that is basically what emerges from the passage here in Gittin. So what does that mean, really? If I want to apply this to a halakhic question—here it’s an aggadic question, so the discussion doesn’t really arise: okay, so what should one actually do? Seemingly in a halakhic question, at the bottom line either you do this or you do that. Here, “these and those are the words of the living God” in the harmonistic sense doesn’t seem to apply. Here, seemingly, there is one statement: one is right and the other is wrong.
Notice, this is a little bit the opposite of the initial intuition, because the aggadic dispute we just read was actually about facts. What happened there in the story of the concubine at Gibeah? Precisely with regard to facts we would expect one to be right and the other to be wrong, because the facts were either this way or that way. It turns out not. It turns out that even in looking at the factual world, when there is a dispute, both sides can be right—or at least partially right. But on the halakhic plane, where on the one hand there aren’t really facts, but on the other hand there is a bottom line of what one does—in the sense of what one does, either I act like this opinion or I act like that opinion, okay? So therefore, seemingly, on the halakhic plane there is no room to understand the rule “these and those are the words of the living God” in that way. Guys, cameras on—there are still people here without cameras.
On the halakhic plane itself there is also room to make a similar move. I’ll bring maybe—I’ll bring—I’ll bring maybe one example or a few examples. I’ll bring one example first, and after that maybe another. One example is taken from a series of articles by David Hanshke from the Talmud department. When he was a young guy, nineteen years old, he wrote a series of articles in 1977 in HaMaayan, and there he discussed the relationship between plain meaning and midrashic interpretation. So he said there—what he said there—he brought several opinions about the relationship between plain meaning and midrashic interpretation. There is the view that he called apologetic, I think quite justifiably, which says that the midrash is the depth of the plain meaning. In other words, if you look very carefully at the plain meaning and compare to other places and take all the difficulties into account, basically the true interpretation of the verse is the midrashic interpretation. The plain meaning is the initial interpretation, but it doesn’t really stand up to in-depth examination. The midrash is the depth of the plain meaning. He calls this an apologetic conception, because usually that conception comes up when people want to defend the strangeness of the midrashic interpretation or its disconnect from the biblical wording. The wording says “an eye for an eye,” and the midrash says money. That doesn’t fit the plain meaning. But no, no—the midrash is the depth of the plain meaning. The initial plain meaning is not really the correct plain meaning if you take all the difficulties into account, the comparisons, other places, and so on and so forth. That’s one opinion.
A second opinion says there is a midrashic truth and a plain-sense truth in parallel. Both are truths, just in parallel. And I think you can see this in many other places too. This is, I think, the more accepted and more correct conception. But he proposes there a third conception, which is his own, and he demonstrates it with several examples, saying that the truth is the midrash plus the plain meaning—something like what I said about harmonism in “these and those are the words of the living God.” Take the midrash and the plain meaning as two interpretations of the verse. Now we ask ourselves who is right. So you can say they are both right in the sense that this is the midrashic truth and that is the plain-sense truth. But he argues that they are both right in the harmonistic sense. What does that mean? The halakhic truth is the combination of the midrash plus the plain meaning.
So look, I’ll give one small example and then a more interesting example. Regarding “do not place a stumbling block before the blind,” the Minchat Chinukh writes that the Sages derive from there that one may not cause a person to sin, right? They learn from “before the blind” that one may not cause a person to sin and may not give him unfair advice. What about tripping someone physically? Putting an obstacle there so he falls over it. The Minchat Chinukh claims there is no such prohibition. There is a verse, “do not place a stumbling block before the blind,” but no—the verse is interpreted as unfair advice and causing sin, and once the midrashic interpretation took the verse away from its plain meaning, then the prohibition of the plain meaning no longer exists. That sounds completely absurd—it can’t even be said. Obviously that is not right. Obviously the plain meaning also exists. “A verse does not depart from its plain meaning.” What does that mean? That if you learn the verse in a midrashic way, that does not remove it from its plain meaning. The plain-sense interpretation remains too. And therefore it is clear that there is also a prohibition against tripping a blind person, but there is also a prohibition against giving unfair advice and also against causing a person to sin. They all exist. In other words, all the prohibitions exist, and this is a bit parallel, if you like, to a kind of pluralism. It’s not exactly pluralism, because they are all actually correct. Not that this is right and that is right despite a dispute—there is no dispute. There is also this prohibition and this prohibition and this prohibition. There are simply three prohibitions. Okay?
But Hanshke argues something else. Let me give you an interesting implication of this. He wants to claim that the plain meaning and the midrash join together and create the full halakhah. Let’s take “an eye for an eye.” The plain meaning says: take out the eye of the damager, the one who injured. The midrash says: collect money from him, make him pay the value of his eye—compensation, tort damages. But there is an opinion in Jewish law that says one pays the value of the damager’s eye. By the way, that is not ruled as Jewish law, but there is such an opinion in the Talmud: that one pays the value of the damager’s eye, not the injured party’s eye. Where does that come from? What on earth is the idea—how is it connected to the verse—where does it come from at all? Hanshke says this is a combination of the midrash and the plain meaning. The plain meaning says you need to take out the eye of the damager in exchange for the eye of… the value of the eye that, as a damager, I ought to have had removed. Instead, they take money from me—not instead of his eye. The money replaces my eye, not his eye.
[Speaker B] Meaning the money is ransom and not compensation.
[Rabbi Michael Abraham] What? I can’t hear.
[Speaker B] That the money is ransom and not compensation.
[Rabbi Michael Abraham] Right. That is basically what comes out of this. I don’t want to get into it—it’s a complicated story—but yes, that is what comes out of it, basically.
[Speaker C] On the face of it, that makes a lot of sense.
[Rabbi Michael Abraham] Okay. On the face of it, it makes a lot of sense, I think. There’s a lot to discuss here—whether it does fit or doesn’t fit—but we won’t get into that now. It also isn’t ruled that way in Jewish law. But that is the opinion, the opinion in the Talmud that he discusses, and through it he shows the possibility of connecting the plain meaning with the midrash. Now notice: if only the plain meaning were written, “an eye for an eye,” then I would take out the eye of the damager. If only the midrash were written, money for an eye, what would I do? I would collect from him the value of the eye that he damaged, right? Tort damages. How can the Torah tell me that it expects me to extract the value of the damager’s eye? Only if it writes a verse that has a plain meaning saying to take out an eye, and a midrashic interpretation saying to replace the eye with money. The combination of those two gives a third outcome. You don’t take out the eye, you don’t pay the value of the injured party’s eye, but rather you pay the value of your own eye. That is the direct connection of the midrash with the plain meaning. You see why this is entirely parallel, on the logical level, to what we saw in the Talmud in Gittin. He found a fly and did not mind; he found a hair and did mind. The combination of the fly plus the hair is what gives the result.
Okay, that is the harmonistic parallel in the halakhic context. Let’s say there were one halakhic opinion—there was a halakhic opinion—to take out the eye of the damager, I’m muting here because there’s noise, to take out the eye of the damager, and there were another halakhic opinion to pay money. How do I connect the two opinions like the hair and the fly? You extract the value of the damager’s eye. That is basically the harmonistic connection between the plain meaning and the midrash. I’ll bring another example that isn’t connected to midrash, but really to two halakhic possibilities.
There is a well-known analytical inquiry in Bava Kamma—this is what runs through the whole tractate in the yeshivot—why does a person pay when his property caused damage? My ox gored someone else’s ox; I have to pay. Why do I have to pay? One possibility that appears in later authorities is: because I was negligent in guarding it. A second possibility that appears in later authorities is: because the ox is mine; I bear responsibility for what my ox does. If my ox did this, I have to pay—not because I was negligent in guarding it. Now of course everyone agrees that both requirements exist in the laws of damages. There has to be negligence in guarding, because without that they don’t collect money from me, and the ox that caused damage has to be mine. That is obvious. Nobody disputes that. The Rif even reads the first Mishnah in Bava Kamma that way: “The common feature among them is that they are your property and their guarding is upon you.” You have to guard it, and it has to be your property. Both things have to exist. The dispute is only in—meaning, it is obvious that if you were not negligent, you are exempt from paying. Or if the ox that caused damage is not your ox, you are exempt from paying. Everyone agrees that both requirements are necessary to obligate the damager. So what is the dispute about? The dispute is about which requirement is the essential one and which is a side condition. Is the obligating factor the very fact that my property caused damage, except that if I was not negligent then we exempt me from paying? Or no—the negligence in guarding is the tortious ground, the reason I have to pay. It’s just that if it is not my property, then I don’t have to guard it and so I’m exempt. So the dispute is not which parameter determines liability; both parameters are needed for liability. The dispute is over which of the two parameters is the tortious ground and which is only a side condition. Okay? That is the dispute.
Now the question arises: so what practical difference does it make? The obvious practical difference would have been if I was negligent with an ox that wasn’t mine, or if the ox is mine but I wasn’t negligent. As I said before, that isn’t a practical difference, because all sides agree there has to be both negligence and the ox has to be his. So what is the practical difference between these two sides? The truth is there are almost no practical differences, even though in yeshivot in every lecture you’ll hear ten of them. The main one is the burden of proof. That’s what Rav Shmuel brings, and everyone follows and repeats him—Shmuel Rozovsky. The Chazon Ish writes—or before the Chazon Ish. When my ox damages your ox, that is known; it is known that my ox was the one that caused the damage. The question is whether I was negligent in guarding it or not. The injured party demands that I pay him, and I say: what do you want? I guarded it properly; I’m exempt. On whom does the burden of proof lie? At the basic level, the one who wants to extract money from another bears the burden of proof. The injured party wants me to pay him; he is the claimant; let him bring proof that I was negligent. Right? He wants money—whoever seeks to extract from another bears the burden of proof.
It turns out there is a dispute over this between the Pnei Yehoshua and the Chazon Ish. The Pnei Yehoshua argues that indeed the burden of proof is on the injured party. The Chazon Ish argues that the burden of proof is on the damager. What is the dispute? Rav Shmuel explains, and many later authorities follow him, that the basis of the dispute is this very question. If you hold that the mere fact that it is your ox obligates you to pay, except that if you were not negligent in guarding it we exempt you, then clearly the burden of proof is on you. You are initially liable because your ox caused damage; that is known. You want to exempt yourself by claiming that you guarded it properly? Prove it. You are trying to get out of it. The claim against you already stands. About that we don’t say that whoever seeks to extract from another bears the burden of proof—on the contrary. You are first of all liable because your ox caused damage. You now want to exempt yourself from the obligation that rests on you? Prove that you guarded it properly. If negligence is an exempting claim, then the burden of proving that you were not negligent lies on you.
But if negligence is the ground that obligates, it isn’t an exempting argument—you are obligated because you were negligent—then the burden of proof is on the injured party. Let the injured party prove that I was negligent, because otherwise he has no cause of action at all. The only thing that gives him a right to sue me is my negligence. But who says I was negligent? I deny it. You want to claim that I was negligent and you are suing, you want money? Bring proof. Whoever seeks to extract from another bears the burden of proof. The Pnei Yehoshua, who argues that the burden of proof is on the injured party, as Rav Shmuel explains, understands that negligence in guarding is the obligating ground, and therefore as long as you have not proved that I was negligent, you have not established a claim—there is no claim here. You have to prove that I was negligent in order to get the money; the burden of proof is on you. The Chazon Ish, who argues that the burden of proof is on me, on the damager, apparently understands that negligence or lack of negligence is an exempting claim, and then if you want to exempt yourself by claiming that you guarded it properly, prove that you guarded it properly.
A side comment, not connected to us, but just for general knowledge. When you actually open the Chazon Ish you see that this is not what is written there; the opposite is written there. And you see all the later authorities repeating this practical difference, and “the Chazon Ish says this and the Pnei Yehoshua says that”—not true. Simply not true. Just a mistake. The Chazon Ish writes the opposite. The Chazon Ish writes that the burden of proof is on the damager because his claim is implausible. You claim that you guarded it properly? If you guarded it properly, how did the damage happen? The fact that damage happened indicates—or creates an indication—that you probably did not guard it properly. Now, it can happen, it can happen that you guarded it properly and nevertheless somehow it got out, but that’s rare. You want to claim that’s what happened? Bring proof. What is the Chazon Ish assuming? Clearly the Chazon Ish assumes—he too agrees with the Pnei Yehoshua—that negligence in guarding is what obligates. Because if negligence were an exempting claim, he wouldn’t have needed to arrive at the point that it’s a rare argument. He could simply say: the burden of proof is on the damager because the damager wants to exempt himself by claiming he wasn’t negligent. The Chazon Ish doesn’t say that. Why doesn’t he say that? Because he does not think negligence is an exempting claim; he argues that negligence is the ground of liability. So why don’t we say that whoever seeks to extract from another bears the burden of proof? After all, the injured party wants to extract money from me—let him prove that I was negligent.
From the Chazon Ish this is a big novelty. The Chazon Ish says: where your claim is implausible, the burden of proof comes back onto you even though you are the current possessor and he is the claimant. In other words, present possession is determined not only by the question of who is holding the money, but also by the quality of your claim. If your claim is not logical, not plausible, then the burden of proof can be on you even though you are the one holding the money. You can formulate it another way too. You can also say there is a presumption against you, and therefore the burden of proof is on you. In other words, the injured party has met the burden of proof. The burden of proof is on the injured party, and the injured party brought proof. What is the proof? That damage occurred. If damage occurred, apparently you did not guard it properly. There is a presumption that if you guard properly, damage does not occur. So there is a presumption against you. You want to argue against the presumption? Bring proof. That is also another possible formulation. Okay, but that is what the Chazon Ish says. But it’s less interesting, so I’ll close the parenthesis.
So the Pnei Yehoshua argues that negligence in guarding is the obligating ground, right? And therefore whoever seeks to extract from another bears the burden of proof. About the Chazon Ish I said it’s open, and I think the Chazon Ish too basically learns like the Pnei Yehoshua. And as for the Pnei Yehoshua, certainly one has to understand him as he understood—that negligence in guarding is the obligating factor. Now look at another passage. There is a passage on Bava Kamma 25 that speaks about one who incites a dog. Suppose I am Reuven, and I incite Shimon’s dog against Levi’s chicken. Okay? The question is whether Reuven is liable, and whether Shimon is liable. Notice what happened here. The owner—I said that you need two requirements: negligence in guarding and ownership, that it be your property, right? Here it splits apart. The one responsible for the problem is Reuven; he incited the dog. But whose dog is it? Shimon’s. So in fact neither of them fulfills both requirements. Reuven—the dog is not his. Shimon was not negligent in guarding it; Reuven simply came and incited the dog. So exempt. The Talmud says—there is a dispute in the Talmud—but one opinion says exempt. The inciter is exempt and the owner of the dog is also exempt.
Several later authorities write, including the Pnei Yehoshua, Ayelet HaShachar there, the Pnei Yehoshua and others, that even if a person incites his own dog against Levi’s chicken, he is exempt according to that opinion. Now Reuven and Shimon are the same person. I take my own dog—he isn’t here right now—and incite him against Levi’s chicken. They say that according to that opinion I am exempt. Even though I satisfy both requirements—notice that. I am also the owner and I am also the one negligent in guarding, not just negligent but I even played an active part in what happened; I incited it. And I am exempt? It’s unbelievable. If I didn’t guard my dog properly and my dog got out and caused damage, I’m liable, right? Now not only did I not guard it properly, I incited it—and I’m exempt? How can that be? It’s a real mystery. I haven’t seen an explanation for this in the later authorities. The only explanation that I think can even stand here is the following.
I want to argue that this conception assumes that the obligating factor in tort payments is ownership itself. Now I ask: so why, if I guarded it properly, am I exempt? After all, you don’t need negligence in guarding, right? I’m responsible for what my property does. So what difference does it make whether I guarded properly or not? I want to make the following claim. If my dog bites, then it has to pay. Not me—the dog. For example, the Talmud says: an ownerless ox that gores basically belongs to the injured party. Let’s say it’s an ownerless ox that gored; it belongs to the injured party. Now what if someone else comes and takes possession of the ox? After all, it’s ownerless. No—I take the ox and acquire it. That doesn’t work. Because it already belongs to the injured party. What does it mean that it belongs to the injured party? The payment obligation—the ox has no owner at all. So who has to pay for the damage it caused? The ox. The obligation is on the ox. Except that when the ox belongs to owners, they transfer the obligation from the ox to the owners. Why? It’s clear why. Because if you take the ox, you have also taken the owner’s money, because the ox belongs to the owner. There is no such thing as collecting from the ox in a way that doesn’t harm the owners. If you take the ox itself, you have also taken the owner’s property, right? So the Talmud says: they transfer this money onto the owners. But that is only if he was negligent. If he was not negligent, then why are you transferring the ox’s debt onto me? So what should we do—take the ox itself? Of course not. Taking the ox itself also takes my property. After all, you have no right to take my property; I’m not to blame. Therefore what happens is: he comes out exempt. The monetary obligation rests on the ox, but if I was not negligent in guarding it, they do not transfer the obligation onto me; and in any case they don’t take the ox, because taking the ox is itself transferring liability onto me, since I lose money—the ox is mine.
Now let’s go back to inciting the dog. Now you’ll see that this explains it perfectly. When I incite the dog, now I ask whether the dog is liable or exempt. Exempt. This wasn’t damage it did on its own—they incited it. An animal, if someone incites it, then it did that because that’s its nature. So you can’t impose liability on the dog because it was incited. But that’s true even if the dog is mine, because the discussion is not about me; the discussion is about the dog. And then what follows? That when I incite my own dog, you cannot impose liability on the dog, because it is not to blame—they incited it. So then there is also nothing to transfer onto me, because they don’t obligate me to pay for damage my property caused; they only transfer to me the obligation that rests on the dog or on the ox. But if no obligation arose on the dog, then there is nothing to transfer to me. Therefore I am exempt. If I was negligent in guarding and the dog got out and caused damage, I am liable. Why am I liable? Because first of all the dog is liable, because it caused damage on its own initiative—I did not incite it—so there is liability on the dog. And because I was negligent in guarding it, the obligation that rested on the dog is transferred onto me, and therefore they collect the money from me. But if I incited the dog, then seemingly I am even more guilty. How can it be that I am exempt? Obviously from my perspective I am more guilty, but the dog is exempt, because it was incited—what do you want from it? Once there is no liability on the dog, there is nothing to transfer onto me.
But notice what comes out of this. That same Pnei Yehoshua who says that when I incite my own dog I am exempt is basically saying that his conception of liability for tort payments is that ownership obligates, not negligence in guarding. Because if negligence in guarding is what obligates, then the obligation would be on me, not on the dog.
[Speaker B] So basically the owners are the animal’s insurance, according to the conception you’re presenting right now.
[Rabbi Michael Abraham] Responsibility—they take responsibility for their animal.
[Speaker B] He’s basically its insurance.
[Rabbi Michael Abraham] So what comes out, really? It comes out like this: the Pnei Yehoshua assumes that the obligation to pay for property damage is grounded in the fact that the dog or the ox that caused the damage belongs to me, not in negligence in guarding it. How does that fit with what we saw earlier regarding the burden of proof? Earlier we saw that regarding the burden of proof, the Pnei Yehoshua says the burden of proof is on the injured party, and there it’s clear that he assumes negligence in guarding is what creates the obligation. And here we see that he assumes ownership is what creates the obligation, not negligence in guarding. How does that fit? This is just an interesting lesson in general for yeshiva-style thinking. In yeshiva-style thinking, whenever we make a conceptual inquiry, we tend to treat it dichotomously: either this side is right or that side is right. Who says they can’t both be right? Maybe both are right. And “both are right” can be understood in two ways: in a pluralistic way and in a harmonistic way. Pluralistically means either negligence in guarding can obligate me, or ownership can obligate me. Either one of them can obligate me. Who says it has to be only one? Maybe either one can obligate. That’s one possibility. The second possibility says no, you need the combination of both in order to be liable. Neither one alone is sufficient, but the combination of the two has the same status—not that one is primary and the other is just a side condition. This combination as a whole is the tort basis. I explained before why: because you need the fact that it is my property in order to transfer the obligation to me, and you need there to be an obligation generated by the dog in the first place, and you need me to have been negligent in guarding it in order to transfer the obligation from the dog to me. And therefore the obligation on me is created as the sum of the two sides, the two sides in the inquiry: that my property caused damage, and that I did not guard it.
[Speaker C] At this stage it’s absurd that a situation gets created—what is this? It’s like you come, take an ox, say, “Kids, quiet for a second,” and you tell it, “Go plow,” and in the end you give it a hundred dollars. What does it mean for there to be an obligation on the ox? What does that even mean? It’s not a liable entity at all.
[Rabbi Michael Abraham] What do you mean, an obligation? “An obligation on the ox” means that a hundred shekels out of the ox belongs to the injured party. Not an obligation in the legal sense. The injured party is entitled to a hundred shekels from this ox, because it caused him damage. That makes sense.
[Speaker C] Fine, so why are you bringing the ox into this transaction? It’s between the injured party and the damager.
[Rabbi Michael Abraham] No, that’s exactly what I’m saying. What happens if the ox is ownerless and it damaged you? A hundred shekels out of the ox still belongs to you. Not because the ox has intelligence and makes decisions and stands trial—although we do know that just as the owner’s death sentence means the ox’s death sentence, the ox’s death is also judged by a panel of twenty-three, so sometimes it does stand trial. But that’s not the point. The point is that there’s some kind of lien here. A hundred shekels out of the ox belongs to you because it damaged you, that’s all.
[Speaker C] An ownerless ox? Yes. So all the— you could also just take the whole ox. Why do you need only part of it?
[Rabbi Michael Abraham] I said before, the practical difference is what happens if someone else takes possession of it first. It damaged you, and now someone comes and takes it—after all, it’s an ownerless ox. Now you come to the person holding the ox and say, “Listen, a hundred shekels out of this ox belong to me, and everything else you acquired, because it was ownerless.” Obviously, if nobody acquired it, you can take the whole ox for yourself—not as compensation, but because it’s ownerless, you can take it. But if someone else acquired it, that does make a practical difference, because a hundred shekels out of the ox still belong to you. Okay. So I want to say that it’s absolutely possible to explain the Pnei Yehoshua if we relate to these two sides in the tort framework in a harmonistic way, exactly like Alashak did with “an eye for an eye.” What does that mean? That what obligates is neither negligence in guarding by itself nor ownership by itself, but rather the sum of these two things together creates the obligation—only the sum of the two. If one of them is missing, there is no liability. And then there’s no contradiction at all. When I ask on whom the burden of proof lies, what would you say according to this harmonistic approach? On whom should the burden of proof lie? On the injured party. After all, as long as it hasn’t been proven that I was negligent in guarding, then one of the two components is missing, so you haven’t established a cause of action. You’re the one trying to extract money from someone else; as long as you haven’t proven that I was negligent, you have no claim, because in order to sue me you need both things: both ownership and negligence. So that fits with the Pnei Yehoshua regarding the burden of proof, and of course it also fits with the Pnei Yehoshua we saw regarding someone who incites an animal. There’s no contradiction. If I understand it in the harmonistic way, then the contradiction disappears. Both elements join together to produce the tort obligation. This is an example of applying “these and those” in its harmonistic sense to a question of Jewish law, not to a factual or aggadic question like in the Talmudic text in Gittin. And by the way, you can do this in many places—not everywhere, but in many places. You can combine the two views into one practical ruling, a halakhic ruling that integrates them both, like “an eye for an eye” as the monetary value of the damager’s eye. Okay? Good, let’s take a break here for a few minutes—until seven, say, four minutes—freshen up a bit, and we’ll come back for another half hour, okay? What do you mean, no break in the middle? You need to drink a cup of coffee, no? It’s allowed.
[Speaker C] For him.
[Speaker B] No, I need to understand the story.
[Rabbi Michael Abraham] Dvitzik?
[Speaker C] Itzik, how does this work? Were you following me? If it’s not mine, why would— an ox I happened to meet there that caused damage… He’s on break, he doesn’t hear you. No, no, he’s talking to me, not… oh, to him. How do you understand what kind of connection there is here at all?
[Speaker B] Look, he has a share in it corresponding to the amount of damage.
[Speaker C] But he has no share at all—it’s not mine in the first place. I saw an ox there that injured—
[Speaker B] That injured earlier, so that person already has from before the amount. He already has from before the hundred shekels. The picture is like this: the ox caused the damage when it was ownerless. It didn’t belong to the neighbor.
[Speaker C] It didn’t belong to the neighbor? The neighbor’s ox caused damage.
[Speaker B] No, the neighbor’s ox is something entirely different. If the neighbor’s ox caused damage, then you prove that he didn’t guard it, that he didn’t guard it and that it entered your garden because he didn’t guard it and didn’t close it in. Meaning, his case is only an ownerless ox?
[Speaker C] What ownerless ox?
[Speaker B] The ownerless ox—so once it’s ownerless, you can acquire the whole thing. You didn’t take it, and somebody else, for some reason, while you were thinking about it and consulting your wife, grabbed it. So now you come to him and say, “Pay me my hundred shekels. You only have nine hundred shekels out of this thing.” It’s simple.
[Speaker C] But I don’t understand how I—what is this thing, that it’s not mine and I— and that’s part of the obligation? What does that mean?
[Speaker B] No, it’s part of the ox’s obligation, so to speak. You are entitled to part of the value of the ox even though it’s ownerless. Now that it has an owner, you come to the owner and say, “Pay me that,” or “Take the ox, cut off a piece, and give it to me.” But that’s nonsense—he’ll just give the money, that’s all. We convert it into money. It’s a pretty simple matter.
[Speaker C] Yes, the question is—
[Speaker B] What’s more interesting is that in his view the owners basically become the insurance company of the animal.
[Speaker C] Of the ox, of the animal.
[Speaker B] And that’s fantastic. He’s the insurance. He’s basically the insurance.
[Speaker C] One of the lecturers gave an example regarding liabilities. He says, I take my ox, it plowed for someone, and I paid it a hundred dollars so it could eat. That has nothing to do with anything else, it doesn’t fit together. I don’t exactly understand—suppose afterward no one ever becomes its owner. So what then? Then basically, go look for your friends? There’s damage and no one to pay, unless—
[Speaker B] Unless you seize the ox. If you seize the—
[Speaker C] The ox. Unless you seize the ox.
[Speaker B] Exactly. Listen, in Haifa there are wild boars—so who exactly are we supposed to sue?
[Speaker C] How do you actually deal with that?
[Speaker B] That’s a whole story. No, it’s not written in the Torah.
[Speaker C] I see it on TV, it’s unbelievable. What, you really can’t do anything?
[Speaker B] No, there are animal and nature lovers—you’re not allowed to reduce their numbers.
[Speaker C] Go out into nature, for heaven’s sake. It’s ridiculous.
[Speaker B] It’s not ridiculous. It’s really not ridiculous.
[Speaker C] You know what it reminds me of? It reminds me of—
[Speaker B] Those people who don’t want to get married. A few weeks ago—actually a few months ago—I walked to the car and suddenly this huge one comes up and stands in front of my car.
[Speaker C] Look, honestly, all in all you’ve got a safari at home. Exactly.
[Speaker B] And it’s interesting—someone sent a picture from one of the streets near us: somebody put a mattress outside, and a boar lay down on the mattress and slept there.
[Speaker C] I think the municipality will eventually charge you higher property tax, because you’ve got the whole animal story around you too. On the contrary, they should give us a discount on property tax because of the damage from the boars. But the mayor brought you a safari into the city—why should you have to drive to the safari park in Ramat Gan?
[Speaker B] Right, we should be selling tickets.
[Speaker C] Yes, it really is interesting. Well, this is all very hypothetical, the whole story is hypothetical. It’s an interesting discussion, really very interesting, the way of thinking. It would be interesting to read that Alashak fellow and see how he actually approaches this problem. What’s his name, Shmuel Alashak? David Alashak. Interesting. Right. Have you heard Rabbi Michael Abraham before? I haven’t had much chance this year.
[Speaker B] No, this is the first—
[Speaker C] First time I’ve heard him.
[Speaker B] No, I heard this class, I heard it. This specific class? Since the beginning of the year, yes. This is the only one. He has something on the chapter “HaKones,” I just can’t get to it; I’ve got the laws of the Sabbath, after all there’s—
[Speaker C] Yes, yes.
[Speaker B] Yes, he’s also super interesting, this guy. Bagno, Bagno. Bagno! Yes, Bagno, Banjo—you turned him into Banjo.
[Speaker C] He’s excellent, Rabbi Bagno. Yes, yes, David Bagno is also very nice.
[Speaker B] Okay, let’s not disturb them.
[Speaker C] Let’s continue, okay. So—
[Rabbi Michael Abraham] I said that basically—and now I’m returning to the main line of thought—I said that with regard to the various disputes there can be three main conceptions. One conception is the pluralistic conception, which says that all the opinions are correct—or not correct—or that there is no halakhic truth. A second conception is a monistic conception, which says that there is halakhic truth, meaning one opinion is correct and the others are mistaken. And the harmonistic conception, which I tried to illustrate—how you do this both in aggadah and in Jewish law, how you create harmony among different opinions. Now in light of that, I want to read the Talmudic text in tractate Eruvin that speaks about—this too is a Talmudic text that talks about “these and those”—regarding the dispute between the House of Shammai and the House of Hillel. I’m sharing the screen again. Rabbi Abba said in the name of Shmuel: For three years the House of Shammai and the House of Hillel disagreed; these said, “The Jewish law is in accordance with us,” and those said, “The Jewish law is in accordance with us.” A heavenly voice went forth and said: “These and those are the words of the living God, but the Jewish law is in accordance with the House of Hillel.” And since these and those are the words of the living God, why did the House of Hillel merit that the Jewish law be established in accordance with them? Because they were pleasant and humble, and they would teach both their own words and the words of the House of Shammai. And not only that, but they would mention the words of the House of Shammai before their own. Then it brings that famous example with Rabbi Yohanan ben HaHoranit, where the House of Hillel actually taught the words of the House of Shammai. When you look at this Talmudic text, there are several difficulties here. I’ll start maybe with something less directly relevant to us. On the face of it, there’s a problem here with “It is not in heaven.” What does it mean that a heavenly voice comes out and says the Jewish law is in accordance with the House of Hillel? We know that we do not decide Jewish law based on a heavenly voice. The Talmudic text regarding the Oven of Akhnai says, “It is not in heaven”; we do not pay attention to a heavenly voice. So how did they rule here in accordance with the heavenly voice? That’s also the question Tosafot asks, and they give various answers, but I think there’s no need to reach those answers; there’s a much simpler answer. But in order to understand that answer, we need to go back and understand what exactly the dispute here was about. And I spoke about this a bit—just a moment—I spoke about it a bit in the previous semester when I talked about the historical development of disputes, yes, in Pirkei Avot, and we elaborated on this. A situation arose there—so here I’ll do it briefly—in which there were two schools that had positions on very many halakhic questions, different positions on very many halakhic questions, and in that sense this was a phenomenon that appeared for the first time in the history of Torah, of Jewish law. Namely, two schools emerged that learned the entire Torah differently and could not reach common ground, because apparently even the rules of discussion were not agreed upon by them. It was impossible to bring them to a vote. Tosafot writes—this is in a Talmudic text in Yevamot if I’m not mistaken, and Tosafot brings it here on page 6—that the House of Shammai claimed they were sharper, while the House of Hillel were more numerous. Statistics. There’s an intelligence pyramid—the more scholarly people are always fewer. Okay, so it’s obvious that if you count quantities, the greater quantity will always be of lower quality. Therefore, yes, in a certain borrowed sense, a kosher restaurant is always less tasty than a non-kosher restaurant. That’s a mathematical statement, not just an unfortunate phenomenon. If the kosher option were better than the non-kosher option, then the non-kosher place would have one less option. The non-kosher restaurant could serve the kosher one too; it doesn’t bother it to serve kosher. But if the non-kosher option is tastier, then the kosher restaurant can’t serve that. Therefore the non-kosher restaurant will always be at least as tasty as the kosher one, and more so. Okay? Fine, of course you can also factor in cost and various other things here, but in principle quantity always comes at the expense of quality. In any event, the dispute between the House of Shammai and the House of Hillel arose, or became sharpened, because the House of Shammai were sharper, more clever, more acute, and the House of Hillel were more numerous. Then the question could arise: if there’s a dispute between them, let them vote and follow the majority. Except that they had a dispute—as Tosafot explains—about whether one follows the majority of wisdom or the majority of numbers. Do you count heads or do you count feet? I once heard someone describe it that way. Is the determining factor the number of feet, or the quality of the heads? Now if that is the root of the dispute, how can you decide it? Hold a vote? In that vote too the House of Shammai will say you follow the heads, and the House of Hillel will say you follow the feet, and you won’t be able to decide that vote either, for exactly the same reason. Or in other words: when the dispute is about the rules of decision themselves, there is no way to decide it. Right? You decide disputes by means of decision rules. But if the dispute is about the decision rules themselves, then there’s no way to decide it. And then what happens is—in the Talmudic text in Bava Metzia there, with the Oven of Akhnai, where the Gemara said “It is not in heaven” and “we do not pay attention to a heavenly voice”—what did it mean? It meant that even if a heavenly voice comes out from heaven, what you are supposed to do is follow the halakhic decision rules. You have a dispute about the oven in that case, there are halakhic decision rules: hold a vote, follow the majority. Therefore even if heaven says like the minority, we don’t pay attention to it. Why? Because the Holy One, blessed be He, Himself expects us to decide disputes by means of the halakhic tools of decision, not by turning to Him in heaven. After the revelation at Mount Sinai, He finished His role in that respect. But in a place where I have no option of deciding the dispute by means of halakhic decision rules, because the dispute is about the rules of decision themselves—would we also say there, “It is not in heaven”? If it’s not in heaven, then where is it?
[Speaker B] There’s no other source.
[Rabbi Michael Abraham] Yes, after all, they tell me “It is not in heaven” when there is an option to decide it with the regular halakhic decision rules. Then they tell me: prefer the rules of decision over recourse to heaven, to a heavenly voice, and so on. But if I have no option to use the decision rules, the only way is to return to the Giver of the Torah and hear from Him what He says. And the dispute between the House of Shammai and the House of Hillel revolved around the decision rules themselves, so this is exactly a situation where we have no option of deciding it with decision rules.
[Speaker C] There’s no solution.
[Rabbi Michael Abraham] And therefore here it is certainly possible to resort to heaven. Here the rule of “It is not in heaven” does not apply. So there is no question and no need to look for answers. Okay, so that’s the foundation that tells us why there was a dispute here and why they resorted to heaven. And maybe I’ll say one more sentence about this. Basically, even in following the majority—whether one follows the majority of heads or the majority of feet—what does that depend on? What is the root of the dispute? The root of the dispute is the question whether there is halakhic truth, and then it would make sense to follow the majority of sages, the majority of wisdom, not the majority of people. There could be fools as numerous as those who left Egypt—they can’t outvote one scholar. Obviously what matters here is the level of wisdom, not how many feet are standing over there in the other camp. So if you’re seeking halakhic truth, if you’re a halakhic monist, then I would expect what determines it to be the majority of wisdom. But if you’re a halakhic pluralist and you say there is no halakhic truth, there is nothing here to decide and nothing to seek, then what? You just have to reach a bottom line somehow. Then presumably we’ll go after the majority of feet. The majority of people—it is more reasonable to follow them than the minority. If you’re looking for truth, then obviously you go after the wiser people. But if you’re looking for peace or uniformity, then certainly you go after the majority of people, not the majority of wisdom.
[Speaker C] So according to that, in the dispute between Rabbi Yehoshua and Rabbi Eliezer, you would follow Rabbi Eliezer, because that’s the majority of wisdom.
[Rabbi Michael Abraham] Right—if we were looking for the truth.
[Speaker C] In Rabbi Eliezer’s case, where he draws on the earlier generations before him, who in practice support his decision.
[Rabbi Michael Abraham] I’m saying: if we were looking for the truth, then common sense would say to go with Rabbi Eliezer.
[Speaker C] And if we go with the majority, with the people, the majority of feet—
[Rabbi Michael Abraham] But they ruled there that you go with the majority of feet. Why? On the face of it, what they were really saying is that what we are looking for is not the truth, but rather there is no halakhic truth—we are pluralists. Therefore you go after the majority of feet and not after the majority of heads.
[Speaker E] Is that truth an a priori truth, or a halakhic truth that takes place within the world?
[Rabbi Michael Abraham] No, no—an a priori truth. What do you mean, “within the world”? What’s the difference? There is no difference.
[Speaker E] No, because if it’s an a priori truth, then why not listen to the heavenly voice if I’m seeking the most correct thing?
[Rabbi Michael Abraham] Again, the heavenly voice tells me what should be done. Here too—what should be done? The heavenly voice tells me what to do, it tells me what the Jewish law is, what should be done here. The point is that, on the face of it, the dispute over who decides—majority of wisdom or majority of number, majority of people or majority of heads or majority of feet—is itself a dispute about monism versus pluralism. Because if you are a monist, you need to go after the majority of wisdom, because you need to discover what the halakhic truth is. But if you are a pluralist, then there is no halakhic truth, so what does logic say? Let’s follow the majority of people. If both sides are equally correct, then it makes a lot of sense to give the majority the power to decide.
[Speaker C] But the Holy One, blessed be He, said to him—the heavenly voice told him—to go after the majority, after Rabbi Eliezer.
[Rabbi Michael Abraham] We’ll get there, we’ll get there—in just a moment we’ll get to the heavenly voice. So basically the dispute between the House of Shammai and the House of Hillel itself reflects a dispute between monism and pluralism, apparently. Okay? Now, by the way, this dispute continues further. The Sefer HaChinukh brings Nachmanides and other views, that even in a court of three, if there is one sage and two ordinary people—one learned and understanding man and two ordinary people—there is a dispute, and the two ordinary people are against him, the Jewish law follows him, because he is the sage. Why should I care that there are two fools who think otherwise?
[Speaker C] Then why do you need them at all?
[Rabbi Michael Abraham] So that they challenge him, that they hear him, that they ask questions—but in the end, in the end, he should make the decision. And the opinion that was ultimately accepted in practical Jewish law is not like that, but rather that one follows the majority of feet. And this dispute continues deep into the period of the medieval authorities and even a bit into the later authorities. It didn’t end with the House of Shammai and the House of Hillel, but that’s just a parenthetical remark. For our purposes, think about this—again I’m opening a parenthesis. You know there’s the proposal of rule by philosophers; that’s Plato’s proposal for how to run a state or a society.
[Speaker B] He—
[Rabbi Michael Abraham] He says, let’s hand decision-making over to philosophers, meaning wise people. Or in other words, what kind of logic is there in democracy? Democracy means that everyone has the same weight. Everyone has one finger. All the fools in the world can outvote ten wise people, because there are always more fools. Right? So basically, when there is a dispute between a minority and a majority, we will always get the wrong decision, because we will always follow the majority. And my rule of thumb is that the majority is usually not right unless proven otherwise—and that’s the logical rule. Okay, so what is the logic of the democratic system? You know what, let’s not even give the decision to three wise people. Let’s weight each person’s vote together with his IQ. Do you know the joke—how does a member of parliament commit suicide? He jumps from his ego to his IQ. In any event, so let’s go and weight each person’s vote by his intelligence. Intelligent people will get more weight for their opinion, yes? That’s a softened Platonic proposal. We won’t give equal weight to everyone; rather, whoever is wiser will get more weight, because he’ll make better decisions, right? So why indeed don’t we do that in democracy? First, because the majority won’t let us—the majority are fools. But beyond that, why—
[Speaker D] In principle, Plato is not what interests you, right? Because the quality of the decision interests you less, because in practice the decision with all its consequences is what interests you—
[Rabbi Michael Abraham] Not the quality. I completely agree; I’m getting to that in a second. There are two possible answers that I’ve heard from people when I asked them this question. One answer says: how can you determine who is smarter and who is less smart? In political questions there may be someone with very sharp instincts and someone without them, even though the latter could be a genius in mathematics. In life it works differently. We have no way to determine who is smarter and who is less smart. That’s one answer. But you understand, that’s a technical issue. If we managed to find a measure that determines who is smarter in this kind of decision, then we could solve it, right? A second answer: it may be that the wise people who receive more power will misuse it. They’ll make decisions for their own benefit and not for the benefit of the whole public. So that is basically a concern about abuse of the Platonic algorithm. And again, that’s only a technical question. If everyone were righteous, then really you’d be telling me—look, for free—we should have given greater weight to the wise, greater weight to the opinion of the wise. And I claim that both of these answers may be correct, but they’re unnecessary. There is no question here. The question itself is incorrect; it is based on a mistake. The question is based on the assumption that I’m trying to arrive at the most correct decision. That the democratic method is intended to arrive at the most correct decision. Big mistake. The democratic method is intended to arrive at a decision that reflects what the public wants. It is not a method for getting correct decisions; it is a method for representing what the public wants. Now, if part of the public wants this and part wants that, you need to establish some mechanism, some process, that will create a position that best reflects the public’s view. You can’t reflect it fully because there are disputes within the public. So the majority is the obvious mechanism. Let’s go after the majority. That is the closest representation of what I can call public opinion. By the way, in mathematics—or really in mathematical economics—there is an entire field dealing with this question: how do you make collective decisions where there is disagreement? Shmuel Nitzan from the economics department wrote a book about this with the Open University press, at the Open University. A fascinating book, by the way. We once gave a conference together through the institute, and that gave me a chance to read the book, and we talked about these issues. That’s where I know some of this from. Condorcet’s theorem—there are all kinds of interesting theorems there. In any event, why am I saying this? Because the majority is only one mechanism. There can be other, better mechanisms. For example, if something is extremely important to the minority, while the majority thinks differently but it’s not critical for them, then in such a situation there is room to say that the minority should decide after all, and not the majority. So maybe you should weight how important it is to you, not only how many people want it. Or various other things—it doesn’t matter. Okay? So there are different ways to arrive at what the public wants when there are disagreements. But for our purposes, what matters is that in democracy the majority is not meant to achieve truth optimally; that is not its purpose. Following the majority is not the way to get to the truth. If anything, the way to get to the truth is to go against the majority. The point of following the majority is to represent public opinion. That follows not from a conception of truth, not from an intellectual consideration, but from an ethical, moral consideration, a consideration of rights. Every person has the right to determine how the society and state to which he belongs will be run. And in that respect there is no difference between a fool and a wise person; everyone has the same rights, and therefore everyone’s vote gets the same weight. Which means that in democracy the majority is not a tool for uncovering truth. Therefore of course in democracy you follow the majority of feet and not the majority of heads. If the goal were to attain the truth, as I said before, logic would say to give greater weight to the wise, greater weight to the opinion of the wise. That is exactly what Plato proposed. His mistake was that he did not understand the goal of the democratic order. The goal of the democratic order is not to arrive at the most correct decision, but to arrive at a decision that reflects public opinion. I’m only bringing this in order to sharpen the point I made: that the dispute between the House of Shammai and the House of Hillel over whether one follows the majority of wisdom or the majority of number is, apparently, a reflection of the dispute between monism and pluralism. If there is one halakhic truth, go after the wise, because their chance of getting closer to it is greater. But if there is no halakhic truth, then logic says to go after the majority of people, not the majority of the wise. If there is no truth and everyone is right, then certainly the majority has priority over the minority. Okay, one second—you were of the opinion of bringing—
[Speaker B] A halakhic democracy?
[Rabbi Michael Abraham] Is this talking about—
[Speaker B] Are we talking about a halakhic democracy?
[Rabbi Michael Abraham] No. In Jewish law we seek the truth.
[Speaker B] So how does that fit here with the House of Hillel and the House of Shammai?
[Rabbi Michael Abraham] One moment. Let’s go back now to the Talmudic text and explain it. First of all, I want to ask about what the heavenly voice says. The heavenly voice says: “These and those are the words of the living God, but the Jewish law is in accordance with the House of Hillel.” On the face of it, those are two contradictory statements. If everyone is right, then why is the Jewish law in accordance with the House of Hillel? If the Jewish law is in accordance with the House of Hillel, then not everyone is right. Or in other words, let’s formulate it this way: in the dispute between pluralists and monists, “these and those are the words of the living God” sounds like a pluralistic statement—everyone is right. But “the Jewish law is in accordance with the House of Hillel” sounds like a monistic statement—there is one truth, and that truth is like the House of Hillel. So it comes out that if a pluralist reads the words of the heavenly voice, he is comfortable with the first half, but he has to explain the second half: why is the Jewish law in accordance with the House of Hillel? But that’s not so terrible, right? How would he explain it? They establish the Jewish law in accordance with the House of Hillel in order to create some kind of uniformity so that we can function. But the truth is that really there is no halakhic truth; you just need to arrive at a bottom line, so they established the Jewish law in accordance with the House of Hillel. That’s what the pluralist would say. The monist understands that the Jewish law is in accordance with the House of Hillel because they are right, because that is the truth. But then he has to explain what “these and those are the words of the living God” means. That is what he has to explain. But let’s keep reading the Talmudic text. The Gemara itself gives a reason for why indeed “these and those are the words of the living God” and why the House of Hillel merited that the Jewish law be established in accordance with them. Not why “these and those”—“these and those” is a premise. Rather, why despite the fact that “these and those are the words of the living God,” was the Jewish law ruled in accordance with the House of Hillel? Why? Because they were pleasant and humble, and they taught both their own words and the words of the House of Shammai, and not only that but they mentioned the words of the House of Shammai before their own. On the face of it, this is a prize for good behavior. Right? They’re basically saying: they are polite people, they teach the words of the House of Shammai, they even put them first and give them respect, so let’s rule the Jewish law in accordance with them—a reward for good behavior. Now I ask you: if we are looking for halakhic truth, would you determine the law based on manners and etiquette as a prize for good behavior? If the reason for ruling like the House of Hillel is that it is a prize for good behavior, that means that basically we are pluralists. There is no halakhic truth. Okay, so how should we decide? We’ll decide according to where we want to attain educational value. If we give the House of Hillel the prize that the Jewish law follows them, we will educate the public to behave politely. So it would seem. But Rabbi Yosef Karo, in his book called Klalei HaGemara, a book of principles, writes there that the reason they ruled in accordance with the House of Hillel is because they were right. What does that mean? It means that someone who puts the words of the House of Shammai before his own words, and only afterward forms a position, his position will be more correct. It’s not a prize for good behavior because they were polite; it’s the better way to get to the truth. Because if you hear—there is a dispute here between two opinions, and you have your own position and the House of Shammai has theirs. The House of Shammai do not listen to the House of Hillel, they disregard them; they have their own position, and they also know they are sharper, so it is obvious to them that they are right. The House of Hillel are less sharp, but they are aware of that, and therefore they listen to the words of the House of Shammai, consider their view, and then formulate a position of their own. Rabbi Yosef Karo says that the Gemara here tells us—the heavenly voice tells us—that if the House of Hillel proceed in this way, then they are more right, not more polite. They have a better chance of getting closer to the truth, because they seriously weigh opposing views and only then formulate a position. It’s not a prize for good behavior; it’s a criterion for truth. So Rabbi Yosef Karo understands that when the heavenly voice said the Jewish law is in accordance with the House of Hillel, it was actually expressing a monistic position, not a pluralistic one. And therefore the reason is a reason that the House of Hillel are right, because they weigh the words of the House of Shammai before they weigh their own words. So how should we understand the first part? What does “these and those are the words of the living God” mean according to this? Then they are not the words of the living God—only the words of the House of Hillel are the words of the living God, because they are right. The House of Shammai are mistaken. So what does “these and those are the words of the living God” mean? Well, here—I need a bit of time to explain that, and I won’t manage it now. All right, I suggest we stop here, because the next section will take me a little more time than I have left. We’ll stop here, and again I apologize for the delay at the beginning. Next time I hope it will start on time, assuming they replace me on time over there in the study hall. Okay, any more questions or comments, if anyone wants, gladly.
[Speaker C] Were you convinced by this whole story? More power to you. All the best.
[Rabbi Michael Abraham] Goodbye. Bye.