Conceptual Analysis – Lesson 15

[Rabbi Michael Abraham] Last time I began, or made, a distinction between learning by means of a common denominator and a kind of learning that on the face of it looks similar, but when you look at it a bit more precisely, you see that it’s different and even the opposite. And I called that conceptual construction. The common denominator, basically, if I want to summarize the difference between these two things: with a common denominator, let’s say I have two source cases, and each of them has different characteristics and identical characteristics — meaning, they have shared characteristics, and each also has separate characteristics that the other one doesn’t have. Now the question is: there’s a law that applies in both of them. Regarding what additional contexts can I derive that law? So with a common denominator, I basically derive that law for all the cases in which the characteristics shared by the two primary cases are present. That’s why it’s called the common denominator: the shared characteristics that exist in both source case A and source case B, I assume are what are responsible for the law I’m dealing with, and therefore anything that has those characteristics will also have the law I’m discussing. I said that this is actually very similar to scientific generalization. With the examples involving gravitation, it’s very much like scientific generalization. That’s the common denominator.

In conceptual construction, the mechanism or inference works the other way around. There I specifically relate to the differing characteristics of the two source cases A and B, take the characteristics unique to A, the characteristics unique to B, put them together, and that creates a halakhic context that has the characteristics of both those things together, and the claim is that the law that exists in both source cases will also exist there. It’s really the opposite. Meaning, if the common denominator is an intersection between the sets of characteristics of the two source cases, conceptual construction is a union of the characteristics of the two source cases. And here I brought an example of this, from Rabbi Menashe of Ilya, regarding the Jerusalem Talmud, also brought by the Rema as Jewish law, about one who spits on the Sabbath. Rabbi Menashe of Ilya explains that he is liable because of winnowing and throwing together. I said there are some who emend the text, but he says no emendation of the text — it’s winnowing and throwing together. You spit four cubits in the public domain, but the force you invest in the spitting itself cannot carry the saliva a distance of four cubits. You need the help of the wind. Therefore the claim is that we derive this basically from winnowing and throwing together.

Now the question is whether we derive this from the common denominator of winnowing and throwing. It’s pretty clear that we don’t, because they have no common denominator. What is shared by the labor of winnowing, which is really one of the separating labors — separating waste from food — and the labor of throwing, which is to move something four cubits in the public domain or throw something four cubits in the public domain? They have nothing in common. Therefore my claim was that this is conceptual construction and not a common denominator, and basically it works like this: from throwing I derive regarding spitting that in spitting too I move something four cubits in the public domain, and therefore I would be liable because of throwing. Except that with throwing there is no assistance from the wind. My own force is what sends the object a distance of four cubits. With spitting, we said the wind helps me take it four cubits, and without the wind it wouldn’t have gone that distance, so there is a refutation here. Meaning, you can’t really derive it from throwing, because with throwing there is no help from the wind, so maybe only there are you liable, because there you did everything, but in a place where the wind took part in your action, maybe you would not be liable. So that is a refutation.

Then I say: winnowing proves otherwise. What do I mean? There, the separation is done with the help of the wind, and nevertheless one is liable. So what do we see? That assistance from the wind is not something that exempts me. Even if there is assistance from the wind, I am liable. Therefore I derive also with regard to spitting that although there is assistance from the wind there, you are still liable; the assistance of the wind does not exempt. So what happens here is not a common denominator, as I said — winnowing and throwing have no common denominator. On the contrary, it is the differing sides, conceptual construction. What are the differing sides? From throwing, I take the characteristics of the essence of the labor. What is the essence of the labor? That I move an object four cubits in the public domain. That too is what I do when I spit; in that sense it is similar. But I take a characteristic from winnowing, which is in general a labor of separation and has nothing to do with spitting — meaning, there is nothing to derive there regarding the essence of the labor. From there I take the characteristic that wind is involved, and I say: once there is involvement of the wind and I see that it does not exempt, then also in spitting, although there is involvement of the wind, spitting is basically throwing with wind involved. And I say that from winnowing I learn that the involvement of the wind does not exempt. Therefore winnowing and throwing together teach me. But the “together” here is not an intersection but a union. I take the characteristics of throwing — namely moving something four cubits in the public domain — together with the special characteristics of winnowing — namely the involvement of wind — take them together, and I say that together they create a concept for which one is liable. Therefore there, clearly, it is conceptual construction and not a common denominator.

But notice why, on the face of it, this now looks completely different — what room is there to get confused at all? Look, it’s not so simple. Let me now present to you the derivation from winnowing and throwing to spitting, and you’ll see that I can present it in a way very, very similar to the way the common denominator works. So let’s begin. I want to derive — I want to ask about the law of one who spits: is one who spits liable? I say: throwing proves it. Just as one who throws moves something four cubits in the public domain, so too one who spits moves something four cubits in the public domain and is liable. And then one says: no — what about throwing, where the wind is not involved there, whereas in spitting the wind is involved? I say: winnowing proves otherwise — what? That in winnowing the wind is involved and nevertheless I am liable; that does not exempt. One then says: yes, but what about winnowing, where it involves separating food from waste? That does not exist in throwing — in spitting, sorry. And then I say: throwing proves otherwise, for in throwing it is not a labor of separation but a labor of moving something four cubits in the public domain. And here I stop.

So you see that the process, the halakhic mechanism or halakhic inference, is really formulated like a common denominator. Meaning, I derive from source A, I say: no, source A has a refutation, source B proves otherwise. No, source B also has a refutation, and then I take both together and derive from both. The difference only arises at the end. This whole initial process exists in both types of derivation. I try one, it gets refuted; try the second, it too gets refuted; and then I combine the two. That stage — “then I combine the two” — is the stage where conceptual construction branches off from the common denominator. In conceptual construction, taking the two means making a union of the two: a characteristic of this one plus a characteristic of that one, and fusing them. Okay? To make a common denominator is to take their intersection. That is where the difference arises, but the formulation is very similar.

And we saw this in the dispute between the Rosh and the great authorities in tractate Bava Kamma, where we saw that they derive one’s stone, knife, and load that fell from the top of the roof, came to rest, and caused damage, as a case of pit; they derive it from pit. But here, after all, the wind was involved in making them fall from the roof, whereas in digging a pit the wind is not involved — that is done by the person alone, exactly like our case. So then we say: yes, fire proves otherwise, because with fire there is involvement of wind, and nevertheless one is liable to pay; there is no exemption because of that. Then I say: yes, but what about fire, whose way is to move and damage, or something like that, whereas one’s stone, knife, and load are not naturally apt to move and damage. So I say: pit proves otherwise — and the law returns. Exactly the same structure.

Now, we saw that indeed some of the great authorities understand this as a common denominator, as the Talmud itself formulates it: “the common denominator between them is that they are your property and their safeguarding is upon you.” The Talmud asks, “The common denominator comes to include what?” and gives the answer: one’s stone, knife, and load. It says this is an example of a common denominator; that is the straightforward reading of the Talmud. But the Rosh, as we saw, learns that this is not a common denominator; it is conceptual construction. Basically, one’s stone, knife, and load is a subcategory of pit. Fire only comes to say that the help of the wind does not exempt — that’s all. But after I have learned that, I go back to comparing it to pit; it is really similar to pit, it’s the same thing.

[Speaker B] Rabbi, sorry — why? The Rabbi said that basically if a person spits, spits, then there’s the issue of four cubits in the public domain, so it’s like throwing. After that the Rabbi said that it’s not separating, because from separating I say that the wind helps him. Why not say that in separating, someone who spits is also separating waste from something? After all, spitting is a person expelling waste, so it’s really…

[Rabbi Michael Abraham] Right, there are some who wanted to derive it that way, and on that we saw that the later authorities (Acharonim) object, that it can’t be, since with saliva I may be scattering droplets of saliva, but there is no food and waste here. There’s nothing I want and something I don’t want, so therefore this is not really among the labors of separation.

[Speaker B] No, I mean, I don’t want the saliva because it’s waste; I want to remove the waste from myself. True, it’s not exactly that food remains, but I removed waste.

[Rabbi Michael Abraham] No, but then it’s not connected at all. So what does that have to do with throwing?

[Speaker B] Not with throwing — with selecting, a kind of selecting.

[Rabbi Michael Abraham] No, this is simply because of winnowing. You’re suggesting something else. So what — “winnowing” means separating the saliva out from the person? It’s not a mixture; the saliva and the person are not mixed together. No, because basically it’s just a mixture. No, I don’t think it falls under the regular categories of selecting, because they don’t derive it from the law of selecting; they derive it from the law of winnowing, not from the law of selecting. Now it’s true that winnowing belongs to the family of separating labors, but it is not the labor of selecting; it is the labor of winnowing. I don’t think it’s possible. In any case, though, I’m explaining Rabbi Menashe of Ilya, so there’s no point arguing — Rabbi Menashe of Ilya certainly learned it that way. So I’m talking about him right now; let’s leave aside for a moment whether there is another possible option or not.

Now, my claim basically is that the dispute between the Rosh and the great authorities in Bava Kamma is exactly over the question whether to interpret this as a common denominator or as conceptual construction. And indeed I showed you there in the language of the Talmud that the Talmud presents the whole move like a common denominator. Meaning: pit proves otherwise — but what about pit, which has such-and-such? Fire proves otherwise — what about fire, which has such-and-such? And the law returns. And here the Talmud stops. The Talmud does not say: “and the law returns — the common denominator between the two is that they are such-and-such, so too this one, which is such-and-such, will have the same law.” None of that appears in the Talmud. What appears are the words “and the law returns,” and it stops there. And I think that can definitely be a hint that in fact this is not a derivation of common denominator. You can’t complete it; there really is no common denominator between fire and pit. At that point they do not derive it from the common denominator; they derive it from the differing sides altogether. Therefore “and the law returns” means that the two source cases together come and teach about the subcategory, but that “together” is not a togetherness of common denominator; it is a togetherness of conceptual construction. “And the law returns” means I combine the two source cases in order to derive from them together, but not through the intersection of a common denominator, rather through the union of conceptual construction. Therefore it stops with “and the law returns.” That’s it. There’s no whole concluding sentence that always appears in common-denominator derivations: “the common denominator between them is that they are such-and-such and such-and-such; so too this one, which is such-and-such and such-and-such, the law will be such-and-such.” None of that appears here. So therefore even in the language of the Talmud you can see a hint to the Rosh’s approach. Did someone want to comment?

[Speaker B] No, so this would be like another interpretive principle by which the Torah is expounded?

[Rabbi Michael Abraham] Correct, yes. That’s my claim. It’s another interpretive principle by which the Torah is expounded, and it is basically a logical principle, but the Torah is also expounded by means of it. The fact that it doesn’t appear in Rabbi Ishmael’s list of principles is not difficult; there are plenty of other principles that don’t appear there.

[Speaker B] With Abba Shaul there were fewer than thirteen principles, seven or something like that? Do you hear? I’m saying, with Abba Shaul there were fewer than thirteen principles, seven…

[Rabbi Michael Abraham] Not Rabbi Ishmael — Hillel the Elder. Hillel the Elder had seven principles, yes, in the Tosefta of Sanhedrin. There were seven principles, but I spoke about this and also wrote about it — it’s not… He had everything; he just grouped them into categories, the resolution was coarser. That’s all. The three principles of general and particular in Rabbi Ishmael were only one or two for Hillel the Elder. Okay.

[Speaker C] Why? Could you explain once simply how the derivation of… I understand the derivation of the common denominator, but I don’t understand the derivation of conceptual construction. How exactly did they derive — how is the derivation itself done? The common denominator I understand — you compare one thing to another. But here, with conceptual construction, how does the derivation take shape?

[Rabbi Michael Abraham] What do you mean? I don’t understand the question. How — how?

[Speaker C] From winnowing and throwing they derived to spitting — like, what is the process? What is the process of conceptual construction? The process… taking two concepts, taking two concepts…

[Rabbi Michael Abraham] And I fuse them. Meaning, I take a characteristic of this one, a characteristic of that one, and combine them. It’s synthesis, not analysis. The common denominator is analysis. Here what I am doing is synthesis. I synthesize two things, like chemical synthesis. I take the special characteristics of this one, the special characteristics of that one, connect them together, and create a third concept.

[Speaker C] No, but what would cause me to connect them? Why not just connect any random thing with any other thing?

[Rabbi Michael Abraham] Connect any thing with any other thing.

[Speaker C] No, so why is that a derivation at all? I don’t understand.

[Rabbi Michael Abraham] If you see that in two source cases, in two halakhic contexts, there is law X — in context A and in context B there is law X — and now context A has certain characteristics that context B does not have, and context B has certain characteristics that context A does not have, what does that mean? It means that if there will be something that has the characteristics both of A and of B, apparently the same law will apply there too. Because it’s not the missing characteristics — these added characteristics — since we see that even with those characteristics the law applies. There is a lot of logic in this; by the way, we do this in life too. It’s not something illogical.

[Speaker C] Rabbi, let’s see if I understood the conceptual analysis the Rabbi is saying. What I understand, Rabbi, is that if we have matter A and B, let’s say A and B, and we have C — if C has properties that are in A and in B, then we derive the law of A and B onto C. Is that what you mean?

[Rabbi Michael Abraham] Yes. If there is a law that exists both in A and in B, and I want to derive from both of them together to C, it can be done either by way of a common denominator or by way of conceptual construction.

[Speaker C] Yes, but when the Rabbi says conceptual construction, does he mean taking a property found in A and found in B, and if it exists in C, then I can derive the Jewish law from it?

[Rabbi Michael Abraham] If both of them exist in C, then yes — then C is the third concept. Like we saw with spitting, throwing, and winnowing.

[Speaker C] I just don’t remember, Rabbi, that’s why I’m asking — I don’t remember what we did yesterday.

[Rabbi Michael Abraham] No, with throwing and winnowing, that’s what I explained now: I take the involvement of the wind from winnowing, I take moving four cubits in the public domain from throwing, and I connect them together. What comes out? Moving four cubits in the public domain by means of the wind — which is exactly spitting. Ah, I understand. Okay? That is exactly spitting. We simply made a synthesis of concepts. It’s like synthesizing a substance in a laboratory. What I’m doing is synthesizing a concept. I take certain characteristics of concept A, other characteristics of concept B, combine them, and create concept C.

[Speaker C] Wait, I’m saying: I saw that throwing creates liability, I saw that wind creates liability, so now if I have an action involving throwing plus wind…

[Rabbi Michael Abraham] Wind doesn’t exempt — not that wind creates liability; wind doesn’t exempt.

[Speaker C] Ah, if I come with the claim that maybe because wind is involved it should exempt, then the second one teaches me that wind doesn’t exempt.

[Rabbi Michael Abraham] Correct. Okay? So that’s basically the point: we take two concepts, synthesize them together, fuse them, and create from them a third concept. We’re not looking for a common denominator as in the common-denominator method; rather, this is fusion. Maybe I’ll bring one more example or two of this matter of fusion. For example, there’s Maimonides — one second, let’s open it for a moment and then I’ll share — in the Laws of the Service of Yom Kippur.

[Speaker C] Rabbi, is there also in the laws of a slave, regarding betrothal of a woman without giving her money? Again?

[Rabbi Michael Abraham] Regarding betrothal of a woman without…

[Speaker C] Where she received the money and he gave the money to someone else.

[Rabbi Michael Abraham] Yes — a Canaanite slave and the law of a guarantor. Fine, we’ll get to that too; I also hope I’ll get to that. There too there is the same issue. Wait, one second, I’ll move this thing here. Okay, I can’t find it right now, but I’ll tell you — again, I can’t find it right now, but I’ll tell you orally. Maimonides writes in the Laws of the Service of Yom Kippur that, as you know, the rule is that the Yom Kippur service is performed by the High Priest. Meaning, Temple service on ordinary days is performed by an ordinary priest, but on Yom Kippur the service is performed by the High Priest. What happens with the additional Sabbath offerings? Suppose Yom Kippur falls on the Sabbath, so besides the offerings of the day, of Yom Kippur, they also bring the Sabbath offerings, the additional Sabbath offerings, like every Sabbath. Must those additional offerings be offered by the High Priest? Maimonides says yes. Maimonides rules that even the additional Sabbath offerings are done by the High Priest. And people are astonished by him. First, they don’t understand where he got this from — what the source is — but even conceptually, these are offerings of a regular day, not of Yom Kippur. On ordinary Sabbaths, the one who serves is an ordinary priest, not the High Priest. So why should the additional Sabbath offerings that are brought on Yom Kippur that falls on the Sabbath be done by the High Priest?

The Or Sameach — this is a famous Or Sameach — wants to derive from here that if a person eats on Yom Kippur that falls on the Sabbath, a sick person who needs to eat on Yom Kippur that falls on the Sabbath, he does not need to recite kiddush. A very clever point. The later authorities disagree over the question of what happens with a sick person who eats on Yom Kippur. He is allowed to eat; in fact it is a commandment for him to eat; he has to eat to stay alive. So obviously he may not fast and he has to eat. Fine. So if he has to eat, let’s say it’s Yom Kippur that falls on the Sabbath, should he recite kiddush? He’s eating on the Sabbath. The question is whether he needs to recite kiddush or not. There are later authorities who want to argue that even on Yom Kippur that does not fall on the Sabbath, one should recite kiddush — the kiddush of Yom Kippur. True, ordinarily we don’t do this because people fast on Yom Kippur, but someone who doesn’t fast, in principle, would also need to recite the kiddush of Yom Kippur; it too is a festival. But most halakhic decisors say no. But Yom Kippur that falls on the Sabbath is a dispute among the later authorities. There are later authorities who want to argue that on Yom Kippur that falls on the Sabbath one should recite kiddush, and there are those who argue that one should not.

[Speaker B] According to Maimonides, who says that even standard offerings are offered by the High Priest on Yom Kippur, then everything turns into something else altogether already; it’s not made up of two things.

[Rabbi Michael Abraham] So he says — the Or Sameach derives from this ruling of Maimonides about the additional Sabbath offerings on Yom Kippur, regarding someone who eats on Yom Kippur that falls on the Sabbath, whether he should recite kiddush. And the question is really: what’s the connection? So apparently the point is this. He explains it, although it’s a bit hard to understand exactly what he means. I think this is what he means. The claim is that usually when we see Yom Kippur falling on the Sabbath, we understand that there are basically two aspects here, or two different days somehow glued one on top of the other. We have Yom Kippur and Sabbath, and somehow they just happen to coincide on the same day. And how do we analyze such a situation? As always, it’s like two laws, right? In conceptual learning, how do we analyze two laws? From the perspective of Yom Kippur it is like this, and from the perspective of Sabbath it is like that, right? According to that view, the additional Sabbath offerings are brought by an ordinary priest, and the additional Yom Kippur offerings are by the High Priest. The Or Sameach says: if Maimonides says that even the additional Sabbath offerings are brought by the High Priest, that means Maimonides does not view this as a combination of two days, Yom Kippur and Sabbath. He says that it is a day of a third type. Meaning, Yom Kippur and Sabbath are fused together and become a day of a third type, called Yom Kippur that falls on the Sabbath. That is the name of the day, but it is not a combination of Yom Kippur and Sabbath; it is a fusion — a day of a third type.

Then the claim is that if laws apply — say, the laws of Yom Kippur apply on this day — for example regarding eating on the Sabbath or regarding kiddush, the issue of eating and the issue of kiddush, then the aspect of Sabbath does not exist. It’s not that there are two laws here, an aspect of Yom Kippur and an aspect of Sabbath. There are no “aspects.” There is only one aspect to this day, and that aspect is the combination of Sabbath and Yom Kippur together — a fusion. And if that is so, then there is no such thing as bringing the additional Sabbath offerings by an ordinary priest, because that assumes there is a Sabbath plus Yom Kippur and you treat each component separately. But the claim is that there are no two components here; these two components are a chemical combination. They have been fused and become a substance of a third type, or a festival of an additional type, called Yom Kippur that falls on the Sabbath. It is a day of a third type, and on that day there is no kiddush and one does not eat, because all the laws of Yom Kippur are there, just like ordinary Yom Kippur, so the Sabbath is erased. And if the Sabbath is erased, then even someone who eats because he is sick does not need to recite kiddush, because there is no Sabbath here. On this day there is no Sabbath aspect, nothing at all. It is Yom Kippur that falls on the Sabbath; for this purpose it is Yom Kippur, period. The aspect of Sabbath does not exist. Therefore, he says, the High Priest also performs the additional Sabbath offerings, because even the additional Sabbath offerings are not offerings of Sabbath; they are offerings of Yom Kippur that falls on the Sabbath. Or Sabbath that falls on Yom Kippur, if you like. Therefore the one who performs them, the one who performs the service — all the service of that day — is the High Priest.

[Speaker B] And isn’t that Jewish law 1 in chapter 2? Can’t hear? Isn’t it Jewish law 1 in chapter 2?

[Rabbi Michael Abraham] Maybe yes, it doesn’t matter, I just didn’t find it right now.

[Speaker B] In any case, hello, okay, in any case…

[Rabbi Michael Abraham] So regarding a sick person, he says the same thing: a sick person who eats on Yom Kippur that falls on the Sabbath — basically there is no Sabbath aspect here, therefore there is no reason whatsoever for him to recite kiddush. It is Yom Kippur that falls on the Sabbath; on that day one does not eat and there is no kiddush. Someone who is sick, of course, eats, but there is no kiddush, as on ordinary Yom Kippur. There is no difference between Yom Kippur that falls on the Sabbath and ordinary Yom Kippur. Of course, someone who says that even on ordinary Yom Kippur, not on the Sabbath, a sick person recites kiddush — then on Yom Kippur that falls on the Sabbath he would also recite kiddush. But the Or Sameach assumes not. On ordinary Yom Kippur, obviously not; he is only discussing Yom Kippur that falls on the Sabbath. He says: if on ordinary Yom Kippur not, then on Yom Kippur that falls on the Sabbath it is like ordinary Yom Kippur — there is no difference at all.

[Speaker B] But the basis of kiddush is “For in six days the Lord made the heavens and the earth,” so if it doesn’t fall on the Sabbath, then over what would he recite kiddush? After all, kiddush singles out the seventh day.

[Rabbi Michael Abraham] What kiddush do you recite on a Jewish holiday? What? What kiddush do you recite on a Jewish holiday? Passover.

[Speaker B] From that side, yes. Of course. The kiddush of a Jewish holiday.

[Speaker C] Rabbi, Rabbi, yes. But if we fused Sabbath and Yom Kippur, then where are the elements of Sabbath? What do you mean? Then it has to contain both components, doesn’t it?

[Rabbi Michael Abraham] Correct. A third type.

[Speaker C] In a third type we can say — I don’t know. No, but why are the elements of Yom Kippur stronger than the elements of Sabbath?

[Rabbi Michael Abraham] That’s unrelated. That’s a question you can ask in any case, even without this novelty of the Or Sameach. You can ask: so why do we fast on this day? Why doesn’t Sabbath prevail, so that we would eat on that day? Why does Yom Kippur prevail here? That’s another question; it’s unrelated to this discussion. But once you decide what the law is that applies on this day, now there is only that. It erased the second component. How do we decide which is the dominant component of the two? That’s another discussion that can be had independently of the Or Sameach. But once we have decided who the dominant component is, then it is the only component there is. It didn’t merely push away the other component; it eliminated it. It’s not “pushed aside”; it’s “entirely permitted” — yes? There is no Sabbath here at all; it is only Yom Kippur.

So the claim, basically, is that here too there is a fusion of concepts. Yom Kippur and Sabbath are two concepts that appear in the Torah. When Yom Kippur falls on the Sabbath, the Torah does not say what should be done. We decide that. Then the sages come and say: Yom Kippur that falls on the Sabbath, for us, is a festival of a third type. How do we learn its laws? I don’t know; it’s not written in the Torah. So I have no choice — what I do is learn it from ordinary Yom Kippur and ordinary Sabbath and make some sort of synthesis of the laws. No matter how one does it, even without this novelty. But after I have made the synthesis of the laws, I already know what laws apply, so only those laws apply. The aspect that does not apply disappears; it is not here. Because in the end, these are laws not of Yom Kippur and not of Sabbath; these are the laws of Yom Kippur that falls on the Sabbath. That is what the Rogatchover calls an “amalgamated composition” as opposed to a “neighboring composition.” Yes? The Rogatchover really speaks about synthesis of concepts, and he says there are two ways to do synthesis of concepts. A neighboring composition means that the two things are present one next to the other, residing alongside each other, but each still stands on its own. Each remains distinct, still defined, even when there is a mixture. The difference between a mixture and a compound. Okay, so this is really a mixture. An amalgamated composition is where the components are blended into each other. They merge and basically become something else. Now you can no longer see that there are two components here; they have disappeared. They have already produced a third thing. And he brings many, many implications from this. It is a pair of concepts that runs throughout the Rogatchover’s thought in a great many topics. And among other things, this topic of combining days. Here this is the delight of Sabbath and Jewish holiday, in the speed they were…

[Speaker B] Could he give an example — could the Rabbi give an example of a neighboring composition? Of a neighboring mixture? Could the Rabbi give us an example of a neighboring composition that is not amalgamated?

[Rabbi Michael Abraham] Half-slave and half-free person, for example.

[Speaker B] Half-slave…

[Rabbi Michael Abraham] And half-free person. Or an androgynous person. Then we basically discuss from the aspect of the slave in him and from the aspect of the free person in him. So the law that controls will always be the dominant law, either of slave or of free person.

[Speaker B] How do you determine what is dominant?

[Rabbi Michael Abraham] It depends. Usually it’s whatever is more stringent that is dominant.

[Speaker B] I understand.

[Rabbi Michael Abraham] I once wrote an article in which I argue that this is not always the case. It’s not always stringency that determines it. The question is whether it is a law of presence or a law of absence. A law of absence is never dominant. It is recessive. In any event, the claim of the Or Sameach is that basically I am fusing here two concepts and creating a third concept, just like the conceptual construction I was talking about, except that he does it without all the pilpul here and pilpul there. It could have been formulated here too, but of course it doesn’t need to be; it is self-evident.

Maybe I’ll bring you another example of this matter, and this time really from the Rogatchover himself. In the responsa of the Rogatchover, Tzafnat Paneach, in siman 2, he discusses the question of what happens on a Jewish holiday that falls on the Sabbath. A Jewish holiday that falls on the Sabbath — as you know, on a Jewish holiday labors necessary for food preparation are permitted. It is permitted to cook. On the Sabbath it is forbidden to cook. What happens on a Jewish holiday that falls on the Sabbath? So the bottom line, of course, is that it is forbidden to cook, right? That’s obvious. Why? Sabbath. Because of the Sabbath aspect in it, right? That is in the neighboring-composition view. From the Sabbath aspect in it, it is forbidden to cook. From the Jewish holiday aspect in it, it is permitted to cook. But “permitted” is a law of absence; it is not a positive law. On the Sabbath there is a prohibition on cooking; a prohibition is a positive law.

[Speaker B] You’re not obligated to cook.

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker B] You’re not obligated to cook on a Jewish holiday.

[Rabbi Michael Abraham] Right, that’s only the absence of a law. The fact that it is permitted to cook is not itself a law; it is the absence of a law. In Jewish law generally, prohibitions are law; permissions are not law, they are the absence of law. Okay? Therefore the rule always is that everything is permitted until proven forbidden — and not the opposite, as many people think. Everything is permitted. Whoever wants to forbid something bears the burden of proof, because things are, first of all, permitted. If you want to impose a law here — and a prohibition is always a law — then you have to bring proof that this law really exists here.

In any event, now what happens, says the Rogatchover, if someone violated the Jewish law and cooked on this Jewish holiday that fell on the Sabbath? So of course he violated the prohibition of Sabbath, liable to stoning and all that. Did he also violate the prohibition of the Jewish holiday?

[Speaker B] On a Jewish holiday it’s permitted — what prohibition is there here? On a Jewish holiday it’s permitted; there is no prohibition on a Jewish holiday.

[Rabbi Michael Abraham] Correct. So the Rogatchover claims that — if I remember correctly — the Rogatchover claims that he also violates the prohibition of the Jewish holiday.

[Speaker B] And what is the amalgamated view? Like, does one layer over the other?

[Rabbi Michael Abraham] That once the Sabbath blends with the Jewish holiday, then basically that permission of the Jewish holiday to cook is no longer there. So consequently, from the side of the Jewish holiday too, it is forbidden to cook here, not only from the side of the Sabbath. It is no longer a Jewish holiday and Sabbath connected in a neighboring way; they are already blended into one another. So there is no longer, even from the side of the Jewish holiday in it, permission to cook.

You can explain this in a less philosophical way and say as follows: after all, why do we permit cooking on a Jewish holiday? We permit cooking on a Jewish holiday so that you can enjoy the delight of the festival, right? Now on Sabbath there is no reason to permit it, because from the side of the Sabbath in it, in any case, you will be forbidden to cook and you will have to prepare everything before the holiday. Right? So if that’s the case, there is no reason to permit even the prohibitions of the Jewish holiday. After all, on a Jewish holiday too, the thirty-nine labors were forbidden; it’s just that there is a permission for food-preparation labors. But in a place where, from the side of the Sabbath, in any case, it is impossible to make use of that permission, then we also do not say the permission — there is no reason to permit it. What help is there in permitting it if that permission does not actually allow you to cook? So if it does not actually allow you to cook, then why permit it? It remains forbidden. So it is forbidden both from the side of Sabbath and from the side of the Jewish holiday, he claims.

Again, the logic is very similar — a composition of days. It depends, of course, on how one understands the permission for food-preparation labor. According to Nachmanides, for example, who says that this was never prohibited at all, then it is harder to say such a thing. But the common views are that it was prohibited, except that it is permitted for food-preparation needs. And if so, then it is easier to say what the Avnei Nezer says. In any event, these are also two examples of fusing concepts, or creating a third concept by fusing the two parent concepts.

Now I want to enter a different topic and demonstrate this a bit more fully with another conceptual construction. And you’ll see how beautifully it solves things — various later authorities rack their brains and their heads and don’t understand what is going on in this topic, and you’ll see how beautifully it settles down when one understands the concept — not the concept, the mechanism — of conceptual construction. So I’ll share here my article, where the relevant sources appear.

There is a Mishnah in tractate Shevuot. Rabbi Meir says: “There are things that are in the ground and yet are not like the ground, and the sages do not agree with him. How so? ‘I entrusted you with ten laden vines,’ and the other says, ‘There were only five.’ Rabbi Meir obligates an oath, and the sages say: ‘Anything attached to the ground is like the ground.’” What are we dealing with? A short introduction. In Jewish law there is a collection of various kinds of oaths. They are divided into three categories. There are Torah oaths, there are Mishnah oaths — rabbinic oaths that appear in the Mishnah, enactments of the sages — and there is the Talmudic oath, that is the oath of inducement, which does not even appear in the Mishnah, only in the Talmud, and is associated with Rav Nachman. Doesn’t matter; that’s the third type.

Right now I’m talking about Torah-level oaths. There are three Torah-level oaths: the oath of partial admission, the oath of bailees, and the oath triggered by one witness. What does that mean? If one witness comes against me saying that I owe so-and-so money, in principle “a matter stands on the testimony of two witnesses.” One witness is not enough; you need two witnesses to extract money from me. Okay? But if there is one witness here and not two, true, he cannot extract the money, but it obligates me to swear. I have to swear that I do not owe the money; without that I cannot exempt myself. One witness obligates an oath. That is a Torah law, the oath of one witness.

Besides that, there is the oath of partial admission. That is the second type of Torah oath, an oath of the Torah. What does that mean? When someone claims one hundred shekels from me and I deny everything, saying: none of this ever happened, leave me alone — then of course I am exempt; “the burden of proof rests on the one seeking to extract from another.” Let him bring proof. What happens if I say: true, I borrowed from you, but I borrowed only fifty, not a hundred? He claims one hundred and I say I borrowed only fifty. In that situation, the Talmud derives from the verse, “that he says: this is it.” From that verse they derive that there is an oath: that person who admits part of the claim, who admits fifty out of the hundred, must swear that he does not owe the rest of the hundred — the remaining fifty. So that is the oath of partial admission.

And there is the oath of bailees. The oath of bailees is when I deposited a certain item with someone, something happened to that item, and the person — let’s say an unpaid bailee — the item was stolen or lost. For theft and loss, a paid bailee is liable, but an unpaid bailee is exempt. So the unpaid bailee claims: it was stolen or lost, and so he is exempt. But he is not exempt for nothing. In order to exempt himself, he has to swear the oath of bailees; he must swear that he did not lay a hand on it, and so forth, that it was stolen or lost. Exactly what he has to swear is disputed and is a complicated matter; it doesn’t matter. He has to swear the oath of bailees. That is the third Torah oath. Okay? Three oaths, three… three oaths that are Torah oaths: the oath of one witness, the oath of partial admission, and the oath of bailees.

I return to the Mishnah. The Mishnah deals with the following case. A person deposited with another person ten laden vines. “Laden” means full of grapes, full of fruit. Now he comes and says to him: fine, return the vines to me. And the other says: what do you want? You deposited only five with me. Not ten vines — you deposited five vines with me. So there is something unclear here. Is this the oath of partial admission or the oath of bailees? On the face of it, this is the oath of partial admission. He claims ten vines and I admit five. On the other hand, clearly this is litigation between a depositor and a bailee. So is this the oath of bailees or the oath of partial admission? Let’s see in a moment.

In any event, Rabbi Meir and the sages disagree about this. Rabbi Meir obligates an oath, and the sages say: “Anything attached to the ground is like the ground.” What does that mean? The rule says that with things attached to the ground, or with land itself, one does not swear. Oaths are not taken concerning land. Fine, there is such a rule — it doesn’t matter whether it is derived from general-particular-general — but there is a rule that even when there is partial admission regarding land, you are exempt from swearing. Here too, with the oath of bailees regarding land, you are exempt from swearing. There are no oaths concerning land.

[Speaker B] Rabbi, does he admit that he received only five — five vines — or only five laden vines and another five unladen?

[Rabbi Michael Abraham] No, he says only five, for purposes of the discussion. It doesn’t make much difference, but for purposes of the discussion, only five.

[Speaker B] Because if he admits to five laden and five that he received unladen, then maybe here we already have movable property, things here going forward.