Topics in the Philosophy of Halakha – Lesson 19

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[Rabbi Michael Abraham] It’s a category that deals with facts and connects them to the norm. That’s why I called it a bridge principle: it bridges this narrative to that narrative. Now the question is whether that really is what the dispute is about, and how do you decide it? How would we know why the Sages disqualified women from testimony? No, there are no clear explanations anywhere. So how do we decide? And if we can’t decide, then what do we do when we have no proof? Those are really the two questions, and they may sound technical, but they are the most important questions in these areas. If I could prove that the Sages disqualified women from testimony because of this, I don’t think even the conservatives would argue with me. Usually the objections are when I do this without proving it, based on reasoning or I don’t know, something like that. And then people say to me, wait, wait—for the sake of change, the burden of proof is on the one who wants to change things. That’s a little disturbing here. So they always say: the one proposing the change is at a disadvantage. What, bring proof that this really is the interpretation, bring proof for the midrash you’re proposing, right? After all, anyone can do whatever he wants. Now first of all I want to—I think I already noted this—I want to say that in principle, questions of this kind are clarified through a scholarly Talmudic discussion. I brought the example of the disqualification of a wicked person from testimony. The disqualification of a wicked person from testimony—there is a long discussion among later authorities and halakhic decisors whether that disqualification is because of suspicion of lying or because of an intrinsic personal disqualification. And they bring all kinds of proofs for it, from medieval authorities (Rishonim), from later authorities (Acharonim), and practical implications. Meaning, there is a lively scholarly discussion about this, and there are ways to resolve that question. So this is no different from—and notice that there too it has implications for midrashic conservatism. For example, if today I ask whether a Sabbath desecrator is disqualified from testimony today—a secular person—is he disqualified from testimony? Ostensibly, a Sabbath desecrator is disqualified from testimony. Someone could come with an argument from midrashic conservatism and say: the reason a Sabbath desecrator was disqualified from testimony was because he was wicked. So back then desecrating the Sabbath made you wicked, but today the secular person is like a captive infant, he isn’t wicked, even though he desecrates the Sabbath, so there’s no need to disqualify him from testimony. How do you test whether that argument is good or not? You have to see whether the disqualification of a Sabbath desecrator is an intrinsic personal disqualification, in which case you can’t make interpretations like that, or whether it’s suspicion of lying or something that can be rationalized, and then you can check whether that rationalization still exists today. So here’s an example of a truly parallel discussion, and people have no problem having it. There are halakhic decisors who write that today’s Sabbath desecrators are valid for testimony. And for some reason, when it comes to women, no one is willing to make such an argument. There that’s called Reform. Why? Simply because the status of women today is a political issue. So the conservatives too treat this as though it were one of the horns of the altar, right? They cling to the horns of the altar. But in fact this is a completely legitimate question that can be discussed, and there absolutely could be a conclusion that validates women for testimony today. There’s no problem with that; it’s not Reform and nothing of the sort. But of course the question still arises: how do you test it? How do you conduct the argument over the midrash? So as I said before, if we can bring proofs—from medieval authorities (Rishonim), later authorities (Acharonim), from the Talmudic texts, I don’t know from where—just as in any scholarly discussion, then we have proof. We’ve resolved the problem. Suppose we didn’t find proof. We have no proof. Then we have two options. Either to make a midrash and say that women were disqualified because of lack of education, or to take it with plain-text conservatism: women are disqualified, period. So today too women are disqualified; we don’t make midrashim. So what do we do now when I have no proof? I have no proof for the midrash proposed by the midrashic conservative. Am I then condemned to be a plain-text conservative? In short, on whom does the burden of proof lie? Does the midrashic conservative need to bring proof for his proposal, or דווקא the plain-text conservative—or maybe yes, maybe the plain-text conservative is the one in possession? Until now women were disqualified from testimony; the burden of proof is on the one who wants to change things. Whoever wants to validate women should bring proof. So there is room here to discuss who exactly has the presumptive status; what is the initial presumption. So indeed, yes, there is an existing situation, and the one who changes it is at a disadvantage: bring proof, bring proof. I want to argue that it’s not so simple. There is definitely room for that reasoning, but there is also room to question it. Why? Look, we know that women are disqualified from testimony. That is the datum in the Talmudic text. It’s data from the Talmudic text. We have two interpretive possibilities. One possibility—I spoke a bit about the reason of the verse last semester, I don’t remember anymore—there I made a similar argument. One possibility is to say that they are disqualified from testimony for reasons like they were not educated, not involved in economic life, everything I said before as the midrash, right? What’s the alternative? What’s the second option? That they are disqualified by an intrinsic personal disqualification. What does intrinsic personal disqualification mean? That they are disqualified for no reason. Or at least no reason that I understand. Okay? Those are the two possibilities between which I have to decide. Now I ask you: whenever someone raises a line of reasoning, you can always say to him, look, but maybe your reasoning isn’t correct. Now since there’s doubt, bring proof for your reasoning. Of course you’ll never succeed in bringing proof, because about your proof too I’ll ask: but who says the proof is good? Maybe not? Maybe there’s no explanation? You’re proposing an explanation, but maybe there is no explanation? Is that an argument? Is it an argument that maybe something has no explanation? If I didn’t find an explanation—fine, if it’s received, we accept it—that’s the Jewish law; I don’t know the explanation but I’ll observe it because that’s the Jewish law. But if I receive a law and I understand the explanation, there is an obvious explanation, and you tell me, look, but maybe it’s a law without explanation, maybe? Doubt does not override certainty. I have a reasonable explanation. Why go in the direction of maybe there is no explanation when I have a reasonable explanation? It’s simply illogical. Therefore I argue that there is definitely room to say that if you offer a reasonable explanation, and the other side doesn’t offer a reasonable explanation but only wonders whether there is an explanation or whether this explanation is right, then the burden of proof shifts to him. For what is reasoning? I have good reasoning. It may be wrong. Bring proof and I’ll back down. But if you don’t bring proof, why should I give up my reasoning? It’s good reasoning. You’re not offering another alternative. You’re not offering an alternative line of reasoning so that now we can wonder which one is correct; you’re only saying maybe this line of reasoning is not correct. And what does it mean, maybe this reasoning isn’t correct? About any reasoning you can say maybe this reasoning isn’t correct, without explaining why it isn’t correct, without finding a flaw, just some vague concern that maybe it isn’t correct. Where have we ever heard such a thing? There’s no such thing. There are places where the Talmud says, “Because we make analogies, should we act?” There it’s really because the reasoning is not completely solid, let’s say, not strong enough to rely on. But where I have good reasoning and you only have a concern that maybe it still isn’t correct—there is no room for such concern. I’m not just guessing by analogy; here I’m doing something very logical. Why give up something very logical in the name of some unfounded suspicion that maybe it’s wrong? Now I’ll say more than that. The additional assumption in favor of the plain-text conservatives is that at least there is a feeling that plain-text conservatism is the safe way. Midrashic conservatism—who knows, maybe you’re not right. There are costs. Therefore the burden of proof is on the one who proposes a midrash, yes, midrashic conservatism. He has to bring the proofs. The ordinary conservative is the one in possession, yes, the one who is right. Now if the midrashic conservative is right, then the plain-text conservative is wrong and acting improperly. It’s not that the plain-text conservative is playing it safe but maybe the midrashic conservative is also right. The midrashic conservative is not proposing a mere alternative; he is proposing an interpretation according to which plain-text conservatism is negligence. It is culpable conservatism. Whoever continues walking around in a swimsuit because he is a plain-text conservative—assuming that I am right in my midrash that what is required is to wear clothing suited to the weather, not a swimsuit—on that assumption, anyone who goes around in a swimsuit is a violator. He is not observing the Jewish law. It’s not that he’s perfectly fine and I’m also fine—that’s how people always perceive it. No. If midrashic conservatism is right, then the plain-text conservative is a violator. Let’s translate that into validating women for testimony. The plain-text conservative says we must disqualify women from testimony today because it isn’t certain that their disqualification was due to that reason. So what follows? Suppose I am right after all, and in fact today women ought to be valid for testimony because I have good reasoning. If I’m right, and you disqualify them from testimony, then you will render a false judgment. Two female witnesses come and say Reuven robbed Shimon, and you disqualify the women because women are invalid for testimony. What’s the result? The money stays with the robber. Whereas if I’m right, women are valid for testimony and you can rely on them. So to say that keeping women disqualified is playing it safe—that it’s a move with no costs? Absolutely not. The symmetry here is complete. According to the plain-text conservative, the midrashic conservative is wrong and is a robber if he removes money on the basis of women whom he validates for testimony. But if the midrashic conservative is right, then the plain-text conservative is a robber. It’s symmetrical. It’s not that the plain-text conservative is playing it safe and the midrashic conservative is proposing something for which he must bring proof. Every move has a cost. There is no simple path here that lets you play it safe. That is a mistake. I think the plain-text conservatives push this feeling very strongly, because it ensures that they always have the upper hand, but it’s simply a mistake; it isn’t true. So therefore I really have two claims against the situation where I have no proofs for my midrash. I have a midrash of midrashic conservatism, and opposite that there is the plain-text conservative who says, yes, but prove your midrash, who says you’re right? Two alternatives. Now what? The simple intuition says that the one proposing change is at a disadvantage, meaning we should continue with plain-text conservatism unless we manage to bring proofs. And I say that is wrong for two reasons. First reason: because to begin with the reasoning supports the midrashic conservative, because he offers a rationale to explain the disqualification of women from testimony. The other side only says maybe the reasoning is wrong; he doesn’t offer an alternative line of reasoning. So obviously the one who explains something has the upper hand. He is probably right unless you show that he’s wrong. What kind of skepticism is this—yes, but maybe you’re wrong? Maybe? Maybe not? The whole Talmud is full of reasoning; I could always say yes, but maybe the reasoning is wrong. Yes, we recite a blessing before eating. In tractate Berakhot 35 it says, why? Because anyone who benefits from this world without a blessing is as though he committed sacrilege. That’s reasoning. Yes, but maybe the reasoning is wrong? Maybe not? And you also permit me to recite a blessing on that basis, to utter God’s name in vain—you permit it, you require it. There are costs. How do you rely on that reasoning that one may not benefit from this world without a blessing? Maybe the reasoning is wrong? This is nonsense. If I have reasoning, excellent—that’s a good explanation. If you think there’s a bug in the reasoning, by all means raise your arguments and I’m willing to listen. But some vague skeptical move like, yes, but who says, maybe the reasoning isn’t right—that is not an argument anywhere. If you raised a line of reasoning, excellent, that’s a good explanation. I may have doubts, I can ask questions, raise arguments this way and that, but clearly the one who explains has the upper hand. That is the first reason. The second reason is that even if we were in a balanced situation—suppose there were no advantage to the one who explains with good reasoning over the one who merely wonders—then we are in a balanced situation. Even if it is balanced, who said we should go with plain-text conservatism? There is definitely room to say that we should choose the minimal cost. Choose the course with the minimal cost. What does that mean? Suppose the midrashic conservative is right and women are valid for testimony. By contrast, if the plain-text conservative is right and women are invalid for testimony, still I am not saying they are invalid because they lie or because what they say is untrue; rather, you may not rely on them. But at least the money I remove is removed lawfully. So one can say that the cost is smaller if I go against plain-text conservatism even if it is right. So in terms of which side has the lower halakhic cost, even on those grounds there may be an advantage to the midrashic conservative over the plain-text conservative. We know there is the Terumat HaDeshen and Noda B’Yehuda, who argue that in situations where there are only women, one must accept women’s testimony. Yes, like the well-known Agatha Christie book Murder at the Mikveh. Stop. Someone comes and murders a woman in the women’s mikveh. Anyone who wants to murder a woman—the best advice is, go into the mikveh after her and murder her there in front of all Israel. Why? Because everyone there is only women. Women are invalid for testimony. Not one of them will be able to testify that you murdered her, and everything is fine; you can proceed safely. So the Terumat HaDeshen and Noda B’Yehuda say that in such a case one accepts women’s testimony. One of them says by Torah law, the other says by rabbinic law; I think Terumat HaDeshen says by Torah law and Noda B’Yehuda says it is rabbinic. The claim is that we would execute a murderer on the basis of women’s testimony, though they are invalid for testimony by Torah law, because where it is impossible to receive testimony from men, you also accept testimony from women. By the way, that is an indication that women’s testimony is basically admissible; there is just an issue not to accept it, but it’s not that it isn’t true, because clearly when necessary we use it. So if I go back to the arguments I raised earlier in favor of midrashic conservatism, then I am essentially saying that the minimal cost is actually to go with midrashic conservatism. Because in any case, at least the money is either removed or retained lawfully. It may be that you are violating the Jewish law by relying on women’s testimony and one may not do that, but the money you took, you took lawfully. By contrast, if you go with the plain-text conservative on the assumption that he is not right, the cost is that you are a robber. So in terms of—and I’ve written this in a number of contexts, in a number of places—that very often the consideration that passive omission is preferable, which just tells you to stay with the existing situation, is not correct. That is merely an expression of a minimal-cost consideration. The real consideration should be minimal cost. If you have two options and you don’t know how to decide between them in Jewish law, choose the option whose halakhic cost, if mistaken, is smaller. And on that consideration there is definitely room to choose midrashic conservatism over plain-text conservatism. Now that is with respect to defining change, and therefore in principle the fact that someone proposes a change in Jewish law does not mean he is Reform. It does not necessarily mean he is Reform. It depends on the reasoning or the basis for the demand for change. If the basis is “I don’t feel like it, it doesn’t suit me,” then that’s Reform, that’s the people who wear Helly Karaly. But if the basis is a halakhic interpretation or a conservative midrash, if he proposes a conservative midrash, that is a legitimate claim. You can accept it, you can reject it, but it is a completely legitimate claim within the halakhic field. It must be discussed. As I said before, even if one cannot ultimately decide, there is certainly a side to going with it on grounds of minimal cost and the like. That is the first point. So think about it: today someone could come and say we need to restore women to testimony; what is written in the Talmudic text is outdated. He would immediately be classified as Reform, right? Heretic, Reform, corrupter of Israel, apostate, “what use are the rabbis to us,” “one lowers and does not raise,” and they’d shoot him in the head while he’s still young. But in fact classifying him as Reform is hasty. Because if he is offering a conservative midrash as a basis, then it is a completely legitimate halakhic argument. So it needs to be discussed—accepted, not accepted—but it is a fully legitimate argument in halakhic discourse. Therefore demands for changes in Jewish law are legitimate demands. The whole question is how you ground them and how you ultimately arrive at the decision. Just one additional remark—I don’t remember whether I said this last time—there is also a certain claim that we do not derive practical law from the reason of the verse. And here, when I decide that women are disqualified from testimony because of lack of education or lack of involvement in economic life, I have in effect made an exposition based on the reason of the verse. But that’s not true. Why? In my opinion it’s not true. Why? Because we do not derive practical law from the reason of the verse only regarding a law explicitly written in the verse. “Do not take a widow’s garment as collateral.” So it explicitly says: one may not take collateral from a widow. Then Rabbi Shimon comes and expounds the reason of the verse: only from a poor widow, but from a rich widow one may. And Rabbi Yehuda says no, we do not derive practical law from the reason of the verse. Why? Because it is a verse explicitly written. A verse explicitly written we do not interpret teleologically. We don’t go into reasons. We interpret it as it stands, as is. But in a law that emerges from midrash, and the disqualification of women from testimony emerges from a midrash—I spoke about this last time—“Then the two men who have the dispute shall stand before the Lord”; “the two men who have the dispute” are the litigants. What relevance is there to discussing here men and not women? The litigants? These are not the witnesses; they are the litigants. This is a midrash. So if it is a midrash, then reasoning is always involved in midrash. It is not true that a law that emerges from midrash may not be interpreted according to its reasons. On the contrary. It is desirable and reasonable to interpret it according to its reasons. And why? Because the original midrash itself was also based on deriving the reason of the verse. Every midrash is based on reasoning. I didn’t mention this last time: every midrash is based on reasoning. When I say, “The Lord your God you shall fear,” Rabbi Akiva comes and says this includes Torah scholars. The word “et” comes to include—include what? Torah scholars. The rules of exposition tell me that when there is the word “et” in a verse it comes to include something. But they do not tell me what it comes to include. Maybe it comes to include cats? Or I don’t know, chairs? No, you decided Torah scholars. Why? Because that is the most reasonable, or the least unreasonable if you prefer. So reasoning always underlies the exposition. The exposition, all the hermeneutic rules of Rabbi Ishmael, the thirteen rules of exposition, are all triggers to make an exposition. You have a general statement and a particular statement, you have something that was included in the general category and then singled out to teach, or all kinds of things of that type, or verbal analogy. All these are triggers. You see a similar word in two scriptural contexts, the same word in two scriptural contexts—that’s a trigger to make an exposition. But once there is the trigger, how do I make the exposition itself? I need to compare a slave to a woman—“to her, to her”—a verbal analogy. But in what respect am I comparing a slave to a woman? That one can enslave a woman like a slave? That a woman goes free after six years like a Hebrew slave? In what respect? That is what the reasoning tells me. Meaning the trigger always tells me to make an exposition, and the exposition itself I ultimately make according to what I understand. The reasoning is involved there. In this respect, laws that emerge from midrash are completely different from laws explicitly written in the verse. Laws explicitly written in the verse—I know what the law is; I don’t need to interpret, so people say we do not derive practical law from the reason of the verse. But laws that I derive through exposition—the expositor who created the law created it on the basis of reasoning. So I’m not supposed to interpret that because I don’t resort to reasoning or to the reason of the verse? But the whole law was created on the basis of reasoning. Or in other words, if I translate this to the disqualification of a woman, when the Sages came and disqualified women from testimony, they did not disqualify women from testimony because they expounded “men and not women,” but because their reasoning told them that women should be disqualified from testimony. They anchored this in a verse and expounded “men and not women.” The proof is that everywhere else in the Torah when it says “men,” we do not expound that as excluding women—on the contrary. Everywhere it says “men,” Scripture equates woman to man for all punishments in the Torah. “Men” because the Torah speaks in common language. No one excludes women from that. “Men” means men and women; the following notices address both men and women, Equal Employment Opportunity Law. In biblical interpretation too there is an Equal Opportunity Law. When it says “men,” it means both men and women. You don’t exclude women from that. So why here did they exclude? Because they had a rationale to disqualify a woman from testimony. So it is based on reasoning. In a place where that reasoning no longer exists, as I argued there in my conservative midrash, who says that this disqualification is still in force? Therefore this claim that we do not derive practical law from the reason of the verse, I think, is irrelevant to this type of law—to laws that emerge from midrashim, that are not explicitly written in the Torah. If a law emerges from a midrash, then I am also allowed to expound the midrash. The original expositor also made a midrash here. If the law is written explicitly in the Torah, then perhaps I do not derive practical law from the reason of the verse—unless there is a trigger. When there is a trigger, then it is really a midrashic trigger, a trigger from exposition. Therefore I say all these things are not—they should not prevent accepting the argument, the midrashic argument, the argument for change, an argument of midrashic conservatism for change. It is not correct to dismiss everything outright as Reform. Here the Reform movement won in this context, because they caused the rabbinic establishment to treat every proposal for change and reject it outright simply because it is Reform. But that is a victory for the Reform movement because it is simply not true. There is no reason to do it that way. And of course that is only when it is conscious and only when the issues are sensitive. In non-sensitive issues, and when it isn’t conscious, people do this at every turn, of course—no need to mention it. Like validating Sabbath desecrators for testimony, like many, many examples I have of this, where people absolutely make these midrashim without batting an eye. But regarding the status of women it becomes some kind of issue, a war against the modern world and the Reform movement and so on. There they dig in their heels, and there every argument for change becomes a Reform argument. Nonsense. You can accept the argument or not accept it—that’s a different discussion—but to deny the legitimacy of the argument is demagoguery. There is nothing wrong with this argument; it is a completely legitimate argument. There is of course a background concern of okay, so where do you draw the line? Anything under the sun, basically, you can overturn with some conservative midrash like this. I don’t know, the prohibition of mixed species. So maybe the prohibition of mixed species applies only in places where people often plant vineyard mixtures, vineyards next to fields. But if it’s a rare thing, then the prohibition was not said there. I’ve nullified the prohibition of vineyard mixtures. Meat and milk is only where many people eat meat, but where few eat meat, then not. Interest is only where there are no banks, or I don’t know, all kinds of things like that. So of course I can scatter Jewish law in every direction and leave not a remnant standing. So there is an understandable concern here about accepting arguments of this kind. And I just want to say that I understand the concern, but such a concern can stand only where the person opposite you does not raise a logical argument for his position. But if the interpretation he proposes is a logical interpretation, then yes indeed, there is no limit. As far as I’m concerned, let every interpretation cancel the prohibition of interest and mixed species, erase the entire Shulchan Arukh. If you have good reasons, then erase it. I’m not afraid of anything. If the reasons are not good, then I won’t accept it—not because I am conservative, but because I wasn’t persuaded by your reasons. Therefore all this slippery-slope talk is basically a lack of trust in reason. Think rationally: if this reasoning is correct, excellent. If it isn’t correct, don’t accept it. But why reject all reasoning, both the correct and the incorrect, because maybe we won’t reject incorrect reasoning? And I already spoke about the famous saying of David Enoch from Jerusalem, a philosopher from Jerusalem, who says that there is a slippery slope in the use of slippery-slope arguments. People use them too intensively. And one has to be careful, because a slippery-slope argument, by definition, puts the one who raises it at a disadvantage. Always. Why? Because what is a slippery-slope argument? A slippery-slope argument basically says: you’re right, but we won’t do it because I’m concerned that something else problematic will happen. In other words, what you’re saying—I agree with you, but nevertheless we won’t do it even though it is correct. So your hand is on the bottom. You have to convince me not to do it, because after all you also agree that this is the right thing. There is room for slippery-slope arguments, but you understand that the burden of proof is on the one who raises the slippery-slope argument, not on the other side. Because the one who raises the slippery-slope argument is essentially calling on me to act in a way that is not correct. You need justification in order to act incorrectly. When you say it’s a slippery slope, you are basically saying that what I’m saying is right; you just fear that in the future we will end up acting wrongly. But if it’s right, then that is what should be done. Unless you have a good justification for why here one should not act this way even though it is correct—why one should not act correctly. Fine, if you have a good justification one can hear such an argument, but then your hand is on the bottom. Somehow today the feeling is the opposite: slippery slope, obvious. Anyone raises an argument—ah, slippery slope—immediately they stop him. What slippery slope? If he is right, then you should do what he says, because he is right. Afterward you can think what to do about slippery slopes. In extreme cases it may even really be right not to do the thing even though it is correct, because of concern over a slippery slope, but that is not some simple argument. It is a very problematic argument, the slippery-slope argument. I’m trying—you understand that in the last hour I have basically shattered pretty much all the rabbits in the conservatives’ hat or sleeve. Because all these arguments are exactly the arguments conservatives always raise. They almost never raise arguments for why you are wrong. Because if they raise arguments for why I am wrong, that isn’t conservatism, that’s an argument. I think I’m right and you think I’m wrong—that’s not called conservatism. Someone presenting a conservative argument says: I’m not willing to do what you say because I am conservative. Because I think we should continue the current situation, not because you are wrong. Now what does that have to be based on? All the arguments I’ve brought until now—I brought several and several—none of them hold water. Conservatism is a flawed approach. I wrote this regarding Jewish law—I’m speaking now about Jewish law, where you might not expect such a statement—that conservatism everywhere, but especially in Jewish law, is a flawed approach. It has a place in certain cases if someone brings good justification for it. Since a conservative always tells me: you’re right, but don’t do it because it’s a change from what was. So you are essentially telling me we should do what is not right or not do what is right, so your hand is on the bottom. The moment you present yourself as conservative, your hand is on the bottom. In order for us to accept what you say, there must be very good justification. But the burden of proof is on you. That is a very important point that people miss. By the way, this is true in both directions. It is also true for revolutionaries. Because revolutionaries and conservatives are equal in one thing: they do not discuss the issue substantively. They don’t discuss whether the reasoning is correct or not. One is conservative, so he won’t accept it because it departs from what is accepted, and the other will accept it because it departs from what is accepted. What is common to the conservative and the revolutionary is that they do not accept or reject the reasoning because it is correct, but one because he wants to be revolutionary and the other because he wants to be conservative. Both of these approaches are flawed. You are supposed to judge things on their merits—either it is correct or it is not correct, check. Not according to some a priori attitude of whether you want to be conservative or whether you want to be innovative. A halakhic decisor is not supposed to make decisions through a consideration such as: I want to be conservative, I want to be innovative, I want to be original, I want to be this or that. All those considerations are irrelevant. The decisor should make a decision according to what seems correct to him. I once said—there was some panel in Gush with two yeshiva heads who were discussing these matters. And among other things some kind of realization dawned on me there, and I said to them that I think the question whether a certain decisor is conservative or innovative is a question irrelevant to Jewish law. It is a question that scholars of Jewish law, academics, should ask. I am supposed to decide according to what seems right to me. Let the academic scholar come and examine my rulings and say whether I am conservative, innovative, fossilized, original—whatever you want. That is his job. Not because he is wrong; I’m not claiming the statements are incorrect. Only that these statements do not belong to halakhic discourse; they belong to the discourse of academic research or research about Jewish law, not to Jewish law itself. A decisor who makes a decision because he wants to be conservative or because he wants to be innovative is betraying his role. Because he is making a decision not because this is right or that is not right, but because he wants to be conservative or wants to be innovative. Who cares what you want to be? Take pills if you want to be one thing or another. You need to make decisions according to what you think. If you think this is right, approve it; if you think this is not right, reject it. No problem. Let the scholars come afterward and characterize you. It may be that you are conservative, it may be that you are innovative, anything can be true. If those scholars are doing good work, then fine—maybe indeed the characterization they offer of that particular decisor is correct. But it is not relevant; it is interesting in research discourse. At the next academic conference held about that decisor, you can argue over whether he is conservative or innovative. The decisor himself should not care about this in the slightest. He should do what he thinks, and it doesn’t matter whether it comes out conservative or innovative or I don’t know what, whatever you like, Yekum Purkan. I don’t care. Those are irrelevant considerations. Jewish law must be decided on the basis of relevant considerations. And when Jewish law is decided on the basis of irrelevant considerations—and sometimes that happens—it requires very strong justification. Rabbinic decrees, by the way, are a good example of that. Rabbinic decrees are decrees that in effect prohibit what is permitted, and therefore they go against the law. But where there is a slippery slope or concerns, in rabbinic decrees there is room to introduce non-substantive considerations, where substantively it’s poultry with milk. Poultry with milk is permitted; only meat with milk is forbidden. True, but the Torah said that they have authority to do this. So the Sages can make considerations of slippery slopes, of fences, but all those considerations are in fact non-substantive considerations. Therefore at the first level of discussion you should not be resorting to them at all. First of all you need to discuss whether this is permitted or forbidden. After that, if someone raises non-substantive arguments, in extreme cases I might accept them. And by the way, even then, only if I am sitting on the Sanhedrin. If I am not sitting on the Sanhedrin, then this too is an approach—maybe I’ll speak about it later, but one sentence because it connects here—all sorts of halakhic decisors forbid things because it might lead to who knows what. In questions of the status of women in the synagogue, for example—Shira Hadasha and all these discussions: may a woman give a Torah talk in the synagogue, receive an aliyah in the synagogue, serve as prayer leader, or things of that sort, a woman saying Kaddish, and all sorts of questions of that kind—you can see it every day, decisors saying it is forbidden because if you permit this, then what will happen next? Slippery slope. So first of all, even if they are right, who appointed them? Are they the Sanhedrin? Can you forbid something that is permitted? If it is permitted, then it is permitted. If you think it ought to be forbidden, go convene a Sanhedrin and enact a regulation or decree that it is forbidden. Can you do that? If you can, do it. If you can’t, then with all due respect to your personal opinion, your personal opinion does not turn something into something forbidden. After all, if you think—for example they forbid riding bicycles on the Sabbath lest one come to repair them. That has no basis. It has no basis. That statement is unfounded. Why? Because the concern lest one come to repair them is a concern that can underlie a decree or a fence. But who can establish decrees or fences? Only the Sanhedrin. I can say: in my opinion, it is worthwhile for you to refrain from riding a bicycle because you may come to repair it. I cannot tell you that it is forbidden, because it is not forbidden. So long as an authorized Sanhedrin has not established that it is forbidden, it is not forbidden. Even if it is very correct to forbid it, even if it is very desirable to forbid it. I’m saying this even without disputing the consideration itself. But still, that consideration does not mean it is forbidden; it means it ought to be forbidden. Okay, I also agree it ought to be forbidden, but “ought to be” is not yet “forbidden.” If everything that ought to be forbidden were forbidden, there would be no need for the religious court and the Sanhedrin and the authority of the Sages, because everything that ought to be forbidden would already be forbidden. And every day decisors say, wait a second, this can’t be, this ought to be forbidden, therefore it is forbidden. What does that mean? That is ignorance. So what if it ought to be forbidden? If it ought to be forbidden, then seat a Sanhedrin to forbid it. You can say only one thing: as a decisor, you can tell me either that it falls into a Torah-level category or that it falls into a rabbinic category that was established by the Sanhedrin. If it falls into neither, then be quiet. All you can say is: I recommend that you not do it. No problem, that’s perfectly fine. You cannot say it is forbidden, because it is not forbidden; you are lying. And decisors write this, do this all the time. In my eyes it is scandalous. And this is part of that same conservatism, that same claim as if the burden of proof is always on the one who wants to permit, always on the one who wants to change. What suddenly? First of all, as I already said, the burden of proof is always on the one who wants to forbid. That’s first of all. Why? Because anything is permitted unless it is forbidden. Do you know the principle of legality? The principle of legality in legal philosophy—what does it say? That for the citizen, as long as something has not been forbidden, it is permitted. For the government, as long as something has not been permitted, it is forbidden. Since every action of government affects citizens, in order to allow it to take that action, there must be a legal basis. If you have no legal basis, you cannot take that action. But for the citizen, everything is permitted unless the law forbids it. I’m not talking about harming someone else, but his own actions, okay? In Jewish law it is the same. Everything is permitted unless there is a source that forbids it. A source that forbids means either a Torah-level law or a rabbinic law. What is a rabbinic law? Something established by the Great Court. That’s it. That is rabbinic law. If the local rabbi, if the leading halakhic decisor of the generation, or whoever, thinks it is proper to forbid, good for him—so he thinks it is proper to forbid. That still does not turn it into something forbidden. Perhaps one can establish regulations for a particular community if you are the local authority. One can establish a certain custom that it is proper to act this way, and after people act this way—female cantor. Even if it is true that tomorrow morning she will become a female cantor, and even if it is true that it is forbidden for her to become a female cantor—two assumptions I’m not sure of. Why? Because you cannot establish decrees on your own. You are not the Sanhedrin. Even if you are right that this may lead to that, all you can say is: “I recommend that you not do this because it may lead to such-and-such,” and we will consider whether to accept the recommendation or not. You cannot say “it is forbidden,” because it is not forbidden. That is a lie. This brings me to the next stage. This is the question of authority. Until now I’ve spoken about the definition of change, about the legitimacy of change, but very often in discussions about change the question of authority also comes up. Who has the authority to make an interpretation like the one I presented earlier? And that brings us back, yes, to Yitzhak’s question from before. In Torah-level laws it is easier. In rabbinic laws authority is needed in order to make a change, in order to make an interpretation. And that is what I want to get into now. If you’ll allow me, today I won’t take a break in the middle; I’ll finish a bit earlier. I simply need to leave a little earlier, so I don’t want to take the break because of that. Okay? So I hope you’ll hold up even though it’s Zoom. So I want to read Maimonides, two chapters from the Laws of Rebels, which are basically the systematic basis for authority, for the concepts of halakhic authority. Chapters 1 and 2 of the Laws of Rebels. I spoke a bit last semester about the concept of authority and distinguished there between substantive authority and formal authority. And I said that formal authority is the authority of a person or institution by virtue of being what it is. For example, the Knesset, when it legislates a law, that binds me simply because the Knesset legislated it—not because it is just, not because they are the wisest, but because the Knesset is the institution authorized to legislate. That is formal authority. Okay? The Sanhedrin is formal authority. Substantive authority is like the authority of a doctor; it is the authority of an expert. If he says something, then he is probably right. It’s not that I am obligated to accept what he says because he has authority, but it is worth accepting what he says because he is probably right. So I called that substantive authority. Of course the term authority doesn’t really fit there, but since people mix the two things together, I say it that way. Why? What’s the point? The point is, for example, when I speak about the authority of rulings in the Talmudic text. We do not dispute the Talmudic text, right? It is accepted by all halakhic decisors that one does not dispute the Talmudic text. The Talmudic text has authority. What kind of authority is that? Very often people tend to think, or explain, that the authority of the Talmudic text is substantive authority, because they were such supremely holy people who never erred, and all of them had divine inspiration, so we cannot dispute them. I do not accept that. I do not accept the assumptions, nor the conclusion. They made mistakes more than once. In scientific areas one can see that they made mistakes, and therefore I can also assume that in the halakhic realm they too could err. The authority of the Talmudic text is formal authority, not substantive authority. We may not dispute the Talmudic text because we accepted its authority upon ourselves. And the authority of the Sanhedrin comes from “do not deviate”; it is authority granted from above. The authority of the Talmudic text is authority granted from below, from the public. The public accepted it upon itself, and thereby the authority of the Talmudic text was created, because after all in the Talmudic period there were no ordained judges and there was no Sanhedrin there. The question is how the authority arises there; the authority is because we accepted it from below. I spoke about all this last semester. When I talk here about authority at the moment, I am focusing on formal authority, not substantive authority. Experts in Jewish law exist today too, of course. Formal authority belongs only to the Sanhedrin; today there is none. And let’s look at Maimonides, Laws of Rebels. “The Great Court in Jerusalem are the root of the Oral Torah, and they are the pillars of instruction, and from them law and judgment go out to all Israel. On them the Torah is securely founded.” What does that mean, the Torah is securely founded? It means the Torah stands securely on them, it leans on them, yes, not “promised” in the sense of “I promised you,” but “to stand securely” means to lean on something. On them the Torah stands, as it says: “According to the Torah that they teach you”—this is a positive commandment. “And everyone who believes in Moses our teacher and his Torah is obligated to base the practice of religion on them and rely on them.” Okay? That is the Great Court in Jerusalem. Law 2: “Whoever does not act according to their instruction violates a prohibition.” Meaning, here it says “According to the Torah that they teach you”—that is a positive commandment—and here it says about it, as it says: “Do not deviate from anything they tell you, right or left,” and one receives lashes for it. What is given as a warning for a capital offense by the religious court, etc. What do we see in Maimonides? Maybe let’s continue a bit more in law 2. I’m skipping the rebellious elder for the moment. “Whether things they learned from oral tradition, and they are the Oral Torah; whether things they learned from their own understanding through one of the methods by which the Torah is expounded, and it seems to them that this matter is so; and whether things they enacted as a fence for the Torah according to what the time requires, and these are decrees, enactments, and customs—regarding each and every one of these three things there is a positive commandment to listen to them, and one who violates any one of them violates a prohibition. As it says, ‘According to the Torah that they teach you’—these are the enactments and decrees and customs by which they instruct the public in order to strengthen the religion and repair the world. ‘And according to the judgment that they tell you’—these are things they derive through legal reasoning by one of the methods by which the Torah is expounded. ‘And from anything they tell you’—this is the tradition received from one person from another.” All right? Up to here for our purposes at the moment. So what is Maimonides basically saying? First, Maimonides says that “do not deviate” gives authority to the Great Court in all areas. What does that mean? Both to interpret the Torah and to legislate enactments, decrees, and customs. Nachmanides disagrees with him on this point. Nachmanides argues that the authority of the Sages by virtue of “do not deviate” is only to interpret, not to legislate. And here there is an important point. The question arises: what is the difference between a Torah-level law and a rabbinic law? Does anyone want to suggest? Maybe we discussed this last semester; I don’t remember anymore. What is the difference between a Torah-level law and a rabbinic law? What defines a law as Torah-level or rabbinic? Does anyone want to suggest?

[Speaker C] If it’s written, and there’s an interpretation, and people interpret it, then it’s not that it’s a decree—it’s Torah-level.

[Rabbi Michael Abraham] Okay, very close, I think. A lot of times people answer this question chronologically, on a timeline. The laws that were given to Moses at Sinai are Torah-level laws, and laws that developed over the generations are rabbinic laws. That’s a mistake. There are Torah-level laws that come into being today, and there are rabbinic laws that were instituted by Moses our teacher. The seven blessings that Moses instituted, for example, and Sabbaths. The difference between Torah-level and rabbinic is not on the timeline, but in the question of what exactly the Sages are doing. Are the Sages functioning here as interpreters or as legislators? If the Sages are interpreting, then the result is a Torah-level law, because a Torah-level law is what is written in the Torah or what the Sages interpreted from the verses of the Torah. The result is a Torah-level law. If the Sages are legislating, then the result is a rabbinic law, because this is a new law that the Sages established; it is not an interpretation of a verse. A decree, an ordinance, a custom, and so on—all of these are rabbinic laws. According to Maimonides, “do not deviate” gives authority to the Sages both to legislate and to interpret. According to Nachmanides, “do not deviate” gives authority to the Sages only to interpret, not to legislate. And his claim is a famous one: if “do not deviate” also gave authority to legislate, then it would turn out that anyone who violates a rabbinic prohibition has violated the Torah-level prohibition of “do not deviate.” Someone who ate poultry with milk would have violated a Torah-level prohibition, not a rabbinic one. So why do we rule leniently in a case of doubt? After all, someone who violates the prohibition of poultry with milk is violating legislation of the Sages, who forbade poultry with milk—a decree, right? But that draws its force from “do not deviate.” So in essence, someone who eats poultry with milk has violated “do not deviate,” has violated a Torah-level law. So in a case of doubt it ought to be stringent—why is a rabbinic-level doubt treated leniently? That’s Nachmanides’ question. Maimonides has answers to this; he isn’t troubled by it. But that is Nachmanides’ argument. Nachmanides claims that the verse “do not deviate” gives binding force to the Sages to interpret, not to legislate. So where do the Sages get authority to legislate? A fascinating question, which Nachmanides doesn’t really answer.

[Speaker C] We won’t get into that here.

[Rabbi Michael Abraham] In any case, with Maimonides, that’s one novelty of Maimonides: that the authority of the Sages is both to interpret and to legislate. He’s speaking here also about ordinances and decrees and everything, including legislation and not only interpretation. A second point of Maimonides—and this is not really a novelty of Maimonides, it’s the plain meaning of the Torah and everyone agrees with it except Sefer HaChinukh—is that “do not deviate” was said only about the Sanhedrin. Only about the Sanhedrin. The Great Court in Jerusalem is the pillar of the Oral Torah, and about it it says “do not deviate” and “according to what they instruct you,” both the positive commandment and the prohibition. No sage in the world has authority if he is not the Sanhedrin. None. Everything else is made up. That’s it—the only institution that… the only institution that has authority in Jewish law is the Sanhedrin, formal authority. Substantive authority is something else. Substantive authority means a halakhic expert—if he tells you something, he’s probably right, and every sage has that. Any sage who is a halakhic expert has substantive authority. If he says something and he is an expert, then he is probably right, and then maybe it’s worth listening to him because I want to do what Jewish law says. But that doesn’t mean I am obligated to obey him. If for some reason I decide that I think he is wrong and I don’t listen to him, nothing happened; I have no obligation to obey him. In the Sanhedrin, even if I think they are not right, I am obligated to obey them. Without getting into someone who errs regarding the commandment to listen to the words of the Sages—a topic at the beginning of Horayot—but in principle, that is the meaning of formal authority. So Maimonides says that formal authority was given only to the Sanhedrin. Not to any other institution and not to any other person. There may perhaps be a local rabbinic authority, who has authority over the members of his community, but that is authority from below. Not because of “do not deviate,” but because they gave him the authority to decide for them. Authority from below. But authority from above, where someone can demand that I fulfill something because he said so—nobody in the world has that, only the Sanhedrin.

[Speaker D] So now this is the background to the issue of authority in Jewish law. Now I want to move to chapter 2 in Maimonides, and there we already enter into changes and the limits of authority when we come to change laws.

[Rabbi Michael Abraham] So let’s take a look—at least start. Laws of chapter 2, law 1: If a great court interpreted one of the hermeneutic principles in a way that seemed correct to them, and ruled accordingly, and then another court arose after them and saw another rationale to overturn it, then it overturns it and rules according to what seems correct in its own eyes, as it says, “to the judge who will be in those days”—you are obligated to follow only the court of your own generation. Maimonides says: earlier generations have no authority. The fact that you came before me does not make you authoritative for me. Any court in any generation can change the laws established by courts of earlier generations. We’re talking about the Great Court. All the discussions here are only about the Great Court, only the Sanhedrin, because only they have authority at all, and only regarding them is there something to discuss. Other courts—there is nothing to discuss, because they have no authority, and therefore no authority is needed in order to change what they established. So for example, look, take an example: if something is written in Rashba, that doesn’t mean it is forbidden. Rashba is not the Sanhedrin. It’s irrelevant. Rather, what? If Rashba interprets something in the Talmud, then perhaps one could argue that since he is an expert, his interpretation is probably more correct than mine, and therefore it is forbidden. But if Rashba says something from his own reasoning, that does not bind in any way. And if I don’t agree that his interpretation of the Talmud is the correct interpretation, then I can interpret the Talmud differently and act against what is written in Rashba. Just to sharpen what I said before. In any case, why here does he speak about a great court that interpreted one of the hermeneutic principles? Can only the Great Court make use of the hermeneutic principles? Can’t a private individual use the hermeneutic principles? In Maimonides it’s quite clear that yes. Anyone can use the hermeneutic principles, of course if he knows how to do so. Today we’ve somewhat lost the understanding of how to make use of the hermeneutic principles, but on the conceptual level, anyone who knows how to use the hermeneutic principles also has the ability to do so; there’s no limitation. So what is unique about the Great Court? That when the Great Court uses a hermeneutic principle, the result of that binds everyone. I too can make interpretations. If I interpret a verse in the Torah—say, “The Lord your God shall you fear”—and I expound it to include Torah scholars, then I myself will have to fear Torah scholars, because that interpretation binds me: I made the interpretation, I believe in it, so it binds me. But it doesn’t bind you. If you do not agree with that interpretation, you won’t have to observe it. But if the Great Court made an interpretation, then the result of that interpretation binds everyone. Therefore those who say that only the Great Court can use the hermeneutic principles are mistaken. I’ve already seen people write that and bring proof from this Maimonides. It’s not correct. Everyone can, and should, use the hermeneutic principles, as long as he knows how to use them, of course—not just casually. But the difference between the Great Court and a private individual, or a court that is not the Great Court, is that what they derive through the hermeneutic principles does not bind others; it binds only themselves. In the case of the Great Court, it binds everyone. And the Great Court—it binds everyone. Okay. In any case, what does Maimonides write here? That there is no advantage to being earlier in time. A later court can change whatever it wants from the rulings of an earlier court, contrary to all this talk about the decline of the generations and so on. That does not contradict the decline of the generations. Why? Because the decline of the generations only says—even if I accept it—that earlier generations were greater, were more expert. But as I said before, formal authority does not depend on greatness, on greatness in Torah. Even if you are greater than me in Torah, that still does not give you formal authority. At most it means that it is worth my while to listen to what you say because you are probably right. But if I decide not to, I have violated no prohibition. I have no obligation to listen to you. Logic says I should listen to you because you are an expert. Okay? So even if we accept the thesis of the decline of the generations, that earlier courts were greater than later courts, that thesis does not mean that one cannot disagree with the medieval authorities (Rishonim). It only means that before you disagree with them, think carefully, because they were great. And therefore it does not contradict what Maimonides says here, that in principle there is no barrier to any court disagreeing with earlier courts. In law 2, Maimonides writes something that apparently contradicts this. Law 2: A court that decreed a decree or enacted an ordinance or established a custom, and the matter spread throughout all Israel—something is going on here with the sound… yes—and the matter spread throughout all Israel, and another court arose after them and wished to nullify the words of the first and uproot that ordinance and that decree and that custom, it cannot do so unless it is greater than the first in wisdom and in number. Let me stop here for a moment. What do you mean? How does that fit with the previous law? Here it says that a later court cannot disagree with an earlier court unless it is greater in wisdom and number. Above, there was no such condition. Any court can disagree with an earlier court with no limitation. “And another court arose after them and saw another rationale to overturn it, then it overturns and rules.” Why doesn’t it need to be greater in wisdom and number than the earlier one? The answer is—well then why here does it? Here the Kesef Mishneh explains—and it is quite clear that this is Maimonides’ intention—someone here is opening the microphone and making noise… I mute it and then it comes back again, I don’t know why. Pay attention. Okay, in any case, what is the relation between the laws? So the Kesef Mishneh explains: law 1 deals with Torah-level laws, and law 2 deals with rabbinic laws. You can see it: “A court that decreed a decree or enacted an ordinance or established a custom,” and above, what was he talking about? “A court that interpreted one of the hermeneutic principles,” or “it seemed to them that the law was such.” Those are Torah-level laws. Law 2 speaks about rabbinic laws: decrees, ordinances, customs. In other words, the first is interpretation, the second is legislation. Interpretation is Torah-level law; legislation is rabbinic law. There is a difference. In Torah-level laws, a court can nullify the words of an earlier court even if it is not greater in wisdom and number.

[Speaker D] In rabbinic laws, no. Only if you are greater in wisdom and number than the earlier ones can you nullify them. Why is that?

[Rabbi Michael Abraham] So sometimes people say that the Sages strengthened their own words more than those of the Torah. In rabbinic laws they were more stringent than in Torah-level laws. I don’t think that’s the story here. The point is this: if a court legislated—that is, rabbinic laws, in law 2—the court legislates a new law, the prohibition of poultry with milk, a decree lest one come to eat meat with milk. When I come to disagree with them, I am basically coming out against them. I am saying: you determined that poultry with milk is forbidden; I want to uproot that and say it is permitted. In order to disagree with them, I need to be greater than them in wisdom and number. But in laws that are interpretations of the Torah, I am not disagreeing with them. They interpreted the Torah one way; I interpret the Torah another way. The binding interpretation for our generation is the interpretation of the court of our own generation—“to the judge who will be in those days.” I am not disagreeing with the first court, because the law was not created by the first court. The first court only exposed that it exists in the verse. So if I do not agree that it exists in the verse, then it doesn’t bind him. In laws that the first court legislated, if I come to uproot them, then I am opposing it. In order to oppose it, I need to be greater than it in wisdom and number. Where does this distinction come from in Maimonides? Where did he learn this distinction? It starts from a contradiction between two Talmudic passages. There is one passage—in Eruvin and in Beitzah—there is one passage where it says that something established by a quorum requires another quorum to permit it. “Quorum” means it was established by the Great Court of seventy-one. It requires another quorum to permit it: something established by the Great Court can be nullified only by another great court. That’s one passage. And in another passage it says that it has to be greater in wisdom and number than the earlier one. The medieval authorities (Rishonim) disagreed about how to reconcile the two passages; there is a contradiction between the two passages. In one passage it says that any Great Court, any Sanhedrin, can nullify the words of another Sanhedrin, and in another passage it says that this is only if it is greater in wisdom and number. The medieval authorities (Rishonim) disagreed about this. But Maimonides—and this is also stated in Ritva—says: one passage deals with Torah-level laws, and there one needs a Sanhedrin, but it does not need to be greater in wisdom and number than the previous Sanhedrin; and the other passage, which requires greatness in wisdom and number, deals with rabbinic laws, and there it does need to be greater in wisdom and number. That is the source for Maimonides’ words. In any case, that is what Maimonides says. Maimonides says: for Torah-level laws, there has to be a court; an individual cannot nullify a Torah-level law established by the Sanhedrin, but a later Sanhedrin can. Something established by a quorum requires another quorum to permit it—but only another quorum; there are no further requirements for that other quorum, only that it also be a Sanhedrin. In rabbinic laws, the nullifying court, the later court, must be greater in wisdom and number than the first court. By the way, this itself shows you a little that the decline of the generations is not a necessary reality. It could be that a later court is greater in wisdom and number than the earlier court. Okay, as I told you, I need to finish a few minutes earlier today, so I’ll stop here, with your permission, and I’ll continue this topic of changes in the next lecture. I hope we’ll finish it then. Changes and authority, yes, I’m doing that together. Okay, goodbye.