Types of Interpretation, Lecture 11

[Rabbi Michael Abraham] Okay, so today is the last meeting, and I want to wrap up this topic of interpretation and implications and so on. And I want to talk about a topic that sort of came up for me over the last year or two, it seems to me: first-order ruling and second-order ruling. The truth is, in the meantime I wrote about it in Makor Rishon, still nothing fully organized, but that too will come at some point. It sounds pretty organized. No, of course—but I mean professionally, with sources to illustrate, to make it into more of an analytical article, not journalism. So I want to talk a bit about… touch on this issue. The truth is, it really still isn’t fully organized in my mind. Meaning, the intuition is very clear, but it needs to be defined better. I’ll tell you where the points are that I’m still unsure about, and if anyone else has a comment I’d be happy to hear it. All right, basically I’ll bring… I’ll maybe start with an example. That was what I wrote the first article about in Makor Rishon. There was this response there in Makor Rishon—there was a ruling by the rabbis of Beit Hillel about an orphan daughter saying Kaddish. Whether a girl or a woman whose father died, or something like that, can say Kaddish. So they brought that responsum and this responsum, and what the custom was there and what the custom was here, and true, in some places they didn’t do it, but there’s a basis for it, and this one permits and that one permitted, and so on. I wrote an angry response—though I softened it afterward. I don’t always write too angrily, you always have to soften it later. Because this thing really set me off. It set me off because there was no discussion there of the issue itself. I mean, just the method of the questioner in Responsa Tzintzenet HaMan—he mentioned that his grandmother said Kaddish, I don’t know where, I’m just making something up. Okay, so what? Whom did he mention, that his grandmother said Kaddish? I mean, he also brought the view of the questioner in the responsa of I don’t know what, Mas’at Binyamin. Is that how you begin a responsum? Is that how you write one? Please explain to me what prohibitions and commandments are relevant to the matter. Meaning, what are the halakhic sources, what are we dealing with, what prohibition is on the table that needs clarification, or what commandment on the other side. Now, after you’ve laid out the clauses—each one of them—is there a prohibition here? Is there not? Is there a commandment here? Is there not? Bring sources, discuss, reasoning; in the end cover the different clauses and then summarize. You can add further sources to show that they too ruled this way or ruled that way—fine, you can bring that afterward as illustration, various sources that said this or that. But how can you write a responsum that is entirely “this one wrote this and that one wrote that”? Nadav once called it a zoo. Meaning, you put this one in this cage and that one in that cage, and now you’ve got a zoo. That’s not how you rule Jewish law. Tell me what we’re talking about. What prohibition is there here? Start with the list of prohibitions raised by those who forbid it. Forget whether you agree. What do we need to discuss? That’s how a responsum starts. When you begin—that’s just a lesson for anyone who comes to write a halakhic responsum. Once, when I did some kind of course for people on how to write a halakhic responsum, we did some exercises on this. It’s not a simple task. You have to take the question, break it down into its halakhic components, see what halakhic aspects are involved—commandments or prohibitions, rabbinic, Torah-level, whatever, from all angles—what’s on the table, what is even relevant, for and against. And then go through them one by one and clarify each one, and then gather back together everything you came out with, all the bottom lines regarding all these clauses, and arrive at a conclusion. But the first thing is to identify what we’re talking about. Now, I asked there: what are we talking about? What prohibition is there in an orphan daughter saying Kaddish? There isn’t one, there’s nothing to bring. The only thing you can bring is the issue of a woman’s voice being considered erotic impropriety. That’s the only halakhic issue I know of, other than “they weren’t accustomed” and “they were accustomed.” The “they weren’t accustomed” and “they were accustomed” are irrelevant considerations. Meaning—what?

[Speaker A] There’s the concept of the dignity of the congregation that’s mentioned. What?

[Rabbi Michael Abraham] The dignity of the congregation is about being called up to the Torah. What does that have to do with Kaddish? In being called up to the Torah, the Talmud says it’s because of the dignity of the congregation.

[Speaker A] The point is that there is—there’s what’s accepted, and these exceptions are something…

[Rabbi Michael Abraham] No, but I didn’t see that mentioned in this context. And in my opinion it doesn’t belong here at all. In being called up to the Torah, it says that a woman should not be called up because of the dignity of the congregation. After all, a woman counts toward the quorum of the seven readers—that’s a Mishnah, right? But the Talmud says she should not be called up because of the dignity of the congregation, because if she knows and in the congregation there were men who don’t know, it’s like an embarrassment—the men, who are supposed to be enlightened in learning and so on, don’t know, and the woman does know, so it harms the congregation’s dignity. Okay, today I don’t think that’s relevant at all. No, there’s no such thing.

[Speaker C] The one who went up used to do the reading.

[Rabbi Michael Abraham] Yes, yes, yes. So I’m saying, there I understand it. But in Kaddish—what? What does that have to do with the dignity of the congregation? What do you need to know there? Fine, I don’t know. In any case, I said, okay, but even if it were relevant, no problem—say so, and start clarifying what the dignity of the congregation means, whether it does belong here or doesn’t, what its sources are, where it comes from—no problem, then that too is a clause. I don’t know of any clause that came up there besides a woman’s voice being considered erotic impropriety. Where is that written?

[Speaker C] This issue of a woman’s voice being erotic impropriety? Talmud. It’s right there in the Talmud.

[Rabbi Michael Abraham] Yes. A handbreadth of a woman is erotic impropriety, a woman’s voice is erotic impropriety.

[Speaker C] In the context of Jewish law or in the context of some aggadah?

[Rabbi Michael Abraham] No, no—Jewish law, Jewish law. But again, it’s in the context of—

[Speaker D] singing, or in the context of speaking?

[Rabbi Michael Abraham] It doesn’t say. So there are major disputes. By the time you get to the Shulchan Arukh it already comes out as singing, and that’s how we practice today. In the Talmud it doesn’t say. There are those who want to claim that a woman’s voice being erotic impropriety applies even to speech. Meaning, there should be some kind of separation—you can’t hear women talking. Fine, that’s not accepted. There’s another question whether it applies only in matters of sanctity or more generally. What is accepted today regarding a woman’s voice being erotic impropriety—when a woman sings—is not limited to reciting Shema, but there is a prohibition on hearing a woman sing. Fine, but that’s a contradiction between two passages—not important—one in Berakhot and… there’s… that’s a whole story in itself, we won’t get into it here. But I’m saying, there is the issue of a woman’s voice being erotic impropriety. That’s the only clause I know in this context. No problem—it’s worth clarifying, fine. But that’s how you begin. Say: what’s on the table? I’m saying, we want to discuss whether a woman can say Kaddish or cannot say Kaddish. On the table is, on the one hand, a woman’s voice being erotic impropriety. On the other hand, she’s an orphan daughter, she wants to say Kaddish for her father, especially when there are no sons. That’s mainly what this is about, though not only. Even when there are sons she wants to say Kaddish. Okay? Now that’s the question. So let’s start clarifying what the obligation to say Kaddish is, who is obligated to say Kaddish, whether someone not obligated is allowed to say Kaddish. Fine—that’s the discussion on the obligation. On the other side, we need to discuss whether the prohibition of a woman’s voice being erotic impropriety applies here, and bring the boundaries of the prohibition and the Talmudic passages and the decisors and the medieval and later authorities, and in the end reach some conclusion. I have no problem—come to the conclusion that she may not. But conduct the discussion that way. You can’t say that in Responsa Tzintzenet HaMan it brings that over there they once saw some woman who said Kaddish in the synagogue, and here too it’s mentioned that they said Kaddish, and therefore apparently there were those who nevertheless permitted it, and so it is permitted. That’s how that responsum looked. What kind of thing is that? I would say—and I ended there by saying this too—I would write this responsum in one line. There is no reason to forbid it, and therefore it is permitted. That’s all. No need to bring any source, no need to… why do you need to bring a source when there is no clause to discuss? Do I need to bring Responsa Tzintzenet HaMan about what? If I had a halakhic question, I would bring that Tzintzenet HaMan forbids it, permits it, whatever. There is no halakhic clause, so what are you talking about? What are you discussing? Anything that is not forbidden is permitted. In order to forbid, you need a source.

[Speaker C] Because it wasn’t accepted.

[Rabbi Michael Abraham] What? I know—that’s one of the confusing things. I’ll come back to it a bit. But I once heard this from the previous rebbe of Klausenburg. He said that if it weren’t written that it is permitted to cut challah on the Sabbath, he would forbid that too. For him, anything that isn’t explicitly permitted is forbidden. Meaning, only if it is written that it is permitted is it permitted. Fine—and he wasn’t an ignoramus, he knew how to learn. It’s not that… huh?

[Speaker C] Every novelty is forbidden.

[Rabbi Michael Abraham] Yes, exactly. He knew how to learn, but he was that kind of Hasid, never mind. But obviously that’s not correct. Of course. Anything that is not forbidden is permitted. You need a source with an orderly clause saying why it is forbidden. And even if there were a Rashba who says it is forbidden, it would still be permitted. Because the Rashba has to tell me why it is forbidden. Is it forbidden because of commandment 519, or because of a rabbinic prohibition, an enactment—what does “forbidden” mean? People say “forbidden” because it seems to them that it’s forbidden. You can say it’s not appropriate. “Forbidden” requires a source. Meaning, you need a rabbinic prohibition, a Torah-level prohibition, a commandment of this kind, a prohibition of that kind—you need a source. You can’t invent prohibitions. The Holy One, blessed be He, is the source of prohibitions—or a competent religious court that enacted an enactment or decree. No problem, that too is a prohibition. That’s all. There is no other source of prohibition. So anything that does not rely on one of those sources is permitted. No need to bring any… no need even to discuss. Whoever forbids should bring clauses, and then I’ll start discussing whether I agree or disagree. But nobody brings any clauses. Everybody argues whether it is permitted or not permitted, and it’s not clear what the argument is even about. Fine. This is an example that brings to absurdity this phenomenon that I called second-order ruling. Second-order ruling—and I’m trying to define it for myself, and the definition still isn’t fully sharp, even though the intuition is very clear. Like I said in the series about definitions, I’m still looking for the extreme poles, because clearly all of us are in the middle, and I’m talking about proportions. I’m not talking about which pole to be in, whether to be on the right side or the left side, but I need those two sides in their pure form in order to define well the possible mixtures in the middle. Okay? And that I still haven’t fully sharpened for myself. I’m about to work on it more, so help me. I’ll try to tell you how I currently understand it. Basically, the point is this: second-order ruling means that I am essentially looking for what the decisors say. When I come to decide a halakhic question, I look for what the decisors say. First-order ruling means I look for whether it is permitted or forbidden. Seemingly that’s the same thing, no? What difference does it make? Assuming the decisors didn’t make things up, fine. It’s true that whatever is not written in the decisors won’t be forbidden, and if the decisors write that it’s forbidden then usually it will be forbidden—though from my perspective I’m also willing to disagree with them. But never mind—even someone who is not willing to disagree with them, this distinction still exists even if you’re not willing to disagree with the decisors, in my opinion. Because there is still something here that is—

[Speaker C] not only that, first of all it’s a completely different mindset. First of all, in most cases there’s a dispute among the decisors.

[Rabbi Michael Abraham] Yes, fine, that’s not a problem for me. But still—even when you rule a dispute among the—

[Speaker C] decisors, you need to go back to the first order.

[Rabbi Michael Abraham] No, no—when you—

[Speaker C] rule between the decisors, what’s the problem?

[Rabbi Michael Abraham] go after the majority, for example—that’s exactly second-order. Responsa of Rabbi Ovadia seem, on the face of it, like second-order ruling. I had an argument about that with someone this week. I don’t think he was a fully second-order decisor. He was sort of… because Rabbi Ovadia always quotes, after all—“and so wrote this one, and so wrote that one,” and he brings dozens of sources and so on. But he channels the material to the place he decided to channel it. He wasn’t a second-order decisor in the simple sense. He uses a lot of sources, he takes them into account. It’s not that he—yes, he relies on close readings—but he steers the responsum toward where he thinks it should go. He isn’t just some parrot counting sources and going with the majority, the way his image may make it seem.

[Speaker A] Wouldn’t it be correct to say—or is it impossible to say—that relative to the Written Torah, the Mishnah is second order? Relative to the Mishnah, the Talmud is second order? Relative to the Talmud, the medieval authorities are second order?

[Rabbi Michael Abraham] It is correct to say that, but the question is what that means for the order. I’ll get to that in a moment—that’s one of the problems I’m unsure about.

[Speaker C] Like we’ve said many times, the sealing of the Talmud is first order.

[Rabbi Michael Abraham] Yes, so I’ll get to that—we accepted them. That will be the question, and that’s partly an answer, but not entirely. I’ll come back to it later, okay? These are the things I’m still unsure about. But I’m saying, I’m trying to illustrate it here. Here it’s very striking in the example of the orphan daughter saying Kaddish. Because here there’s no clause. Meaning, you can’t bring me responsa as long as you haven’t defined what the discussion is about. Meaning, what prohibition and what commandment—what are we discussing? Is there a prohibition or not? Is there a commandment or not? You have to define for me what the prohibition is that’s under discussion and what the commandment is that’s under discussion, and then we’ll discuss whether there is or isn’t one, and bring sources, all fine. So here it’s an extreme case, which is why in my mind it’s close to the left pole, the one that says second-order ruling in the most enthusiastic sense, I would say—or the most problematic. Because this is basically second order without there being any first order. In most cases the second order comes where there is a first order. Meaning, there are clauses, prohibitions or commandments, that need to be discussed—but instead of discussing them, you discuss what the decisors say about them, or what medieval or later authorities say about them, and not the things themselves. That’s a subtler distinction; I’ll get to it in a moment. Here, in the case of the orphan daughter saying Kaddish, it’s much better for me in terms of definition because it’s completely pure. It’s a pure method. Meaning, here there is nothing to discuss at all, and you’re just bringing the decisors with no subject to discuss. Not that there is a subject to discuss but you don’t start with it and start only with what was said about it. Okay? That’s a subtler kind of second order. Here it’s second order without any first order. Yes.

[Speaker E] But if you rely on a responsum that itself rules by means of analysis, it analyzes everything, then all you’re really doing is relying on it as a precedent, because you’re saying, why do I need to discuss this when that respondent already did all the work for me?

[Rabbi Michael Abraham] That’s a possibility. I’ll get to that later as well. It’s a possibility. I’m not inclined to it, but I’m willing to accept someone for whom that’s the method—that’s fine. Okay, so that’s not what happened there. They mentioned that the questioner noted that his mother said Kaddish. It wasn’t that there was some discussion there and they said, look at the discussion there, we won’t enter it again. No problem—that’s legitimate. Fine, so this is basically… it seems to me that the principled definition, again, applying it or seeing it in the field is harder. The principled definition, in my opinion, is more or less something like this: first-order ruling means asking whether there is a prohibition or not, or what the Holy One, blessed be He, wants, what the Torah says; and second-order ruling means what the decisors say. Now as I said before, in the case of the orphan daughter saying Kaddish this distinction is simple, because there the Holy One, blessed be He, has nothing to say on this matter—only the decisors do. Usually when I’m unsure, and it’s harder to define, it’s because the Holy One, blessed be He, does have something to say on the matter, and I will use the decisors to clarify what His view is. So here it’s a bit more delicate. Okay. Let me maybe give you another example. When I dealt, for example, with annulment of marriage, there in the religious court where I sat, I saw some rulings that had been written and so on, and again, that really set me off. Not all the rulings are like that, but quite a few are. They immediately start on the third floor. Meaning, in this ruling we found that he annulled a marriage on such-and-such grounds, and there some medieval authority said one should annul a marriage on such-and-such grounds. Nobody mentions the Talmudic passages. Nobody mentions what the problem is in annulling a marriage, what the constraints are, what has to be checked. Then we’ll see the medieval and later authorities and clarify. There’s no definition of what’s on the table. What, in fact—if I were writing there exactly what I wanted, with no attempt at least to persuade the reader, then basically I would say: look, it’s completely obvious that on that basis the woman did not consent, and therefore the marriage is void, that’s all. After all, every contract clearly depends on the consent of the parties. Now if there is an indication that one of the parties, had they had the full information, would not have agreed, then it is simply obvious—everyone agrees—the contract is void. Okay, that’s all. And now I can say: now a question arises—okay, how much “would not want”? After all, not every silly thing the woman doesn’t like nullifies the marriage; it has to be a substantial defect in the contract, not some little blip or other. Fine. And now there would be room to bring medieval and later authorities and responsa to see what intensity of distress allows me to say that the woman would not have agreed to that—

[Speaker C] what counts as something substantial?

[Rabbi Michael Abraham] Yes, exactly. What counts as substantial. Because that really is a question that is somewhat quantitative. Meaning, you need to get some sense, and here there is a lot of logic in seeing what medieval authorities say, what later authorities say, how people usually think about this in the halakhic world. I can say that someone might say, I don’t care what everyone says, I think this is a substantial defect—and that too is okay in my eyes. But here I would definitely also do that—I would look around a bit, because it’s hard to draw the line. Exactly where? From what point? After all, not every little thing that a woman suddenly says voids the marriage—or the man, by the way. Marriage can be void also from the man’s side, even though they always talk about the woman’s side—especially now, after the ban of Rabbeinu Gershom, when a woman too can object to a divorce, so you can annul marriage also for men denied a get, not only for women denied a get. There are men denied a get too, by the way, roughly in the same number. I heard on the radio some time ago someone—I don’t know the statistics from the rabbinate—someone being interviewed, actually when I was coming back from here.

[Speaker C] You also heard it on the radio, so probably not—

[Rabbi Michael Abraham] Could be. On this program I always listen to when I come back from here, by Wiesner, on Reshet Bet. He interviewed someone there—I don’t remember who anymore—who said that the number of men denied a get is more or less like the number of women denied a get, the same order of magnitude. I don’t know exact numbers, it’s the same order of magnitude. Because everyone hangs this on the fact that divorce can be against the woman’s will—but that no longer exists today. True, it’s still different because a man can, say, marry another woman in addition to his wife with permission. What? With permission—but even without permission he’s not violating a religious prohibition, meaning the rabbinate won’t recognize it. Okay, even if it will recognize it—if he betroths her properly, what can she do? He betrothed her.

[Speaker D] No, that’s a violation of the law.

[Rabbi Michael Abraham] A violation of civil law, not of religion. Fine, okay. Nobody does anything with—

[Speaker F] that. You get around it easily because he doesn’t— You can get around it, let her be a common-law wife. The law recognizes all the rights of a common-law wife, and through that Israel—

[Speaker D] became a state that recognizes within the law—

[Speaker F] But that’s—

[Speaker D] law, so they’re violating the law.

[Rabbi Michael Abraham] Yes, obviously plenty of people violate the law. They also run red lights and kill people—they violate the law.

[Rabbi Michael Abraham] In Rosh HaAyin too there are many who violate this law by marrying several women. Yes. And nobody enforces it. Nobody cares.

[Speaker F] In my part of north Tel Aviv there are people who are married to one woman and betroth another woman here in Tel Aviv.

[Rabbi Michael Abraham] Yes, that’s Elimelech. That’s Elimelech’s argument, that there is de facto bigamy. The law recognizes bigamy because a common-law wife is essentially a gateway to bigamy. You have a wife, and you can live with another woman, and legally both are treated as partners—

[Speaker D] and they get the same rights and obligations—

[Speaker F] and vice versa, and the married woman has less than the common-law wife.

[Rabbi Michael Abraham] Fine. In any case, what I’m saying is, here too this is another example. Here too there is a clause that needs discussion. The clause is whether there are substantial grounds here to void the contract. But here too one can distinguish fairly easily between first order and second order. Basically I would say: let’s do statistics. That’s actually what I suggested to women’s organizations that I was somewhat in touch with. I said: once and for all, do a proper survey, and then nobody will be able to feed you nonsense. Use a proper polling institute, with rabbinic consultation, because you need to know how to ask the question—what exact question to ask. Have them go through a broad population. Break down the populations—it doesn’t matter, by types: Religious Zionist, conservative, Haredi, secular, whatever. More or less get some kind of picture. What is a woman willing to accept when she gets married? What things that may be discovered in the future, in her eyes, still do not interfere with her intent, and what things do? Just ask women. That’s all. After all, that’s what we’re looking for. What, what—it’s ultimately a factual question, okay? Now individually—no, fine, you can’t do that. A woman will always tell you, when she wants a divorce, that to this she would not have agreed when she got married. Of course—because she wants you to annul the marriage. So you need to do something that’s a survey, so you go after the majority. After all, we always follow presumptions, we follow the majority. We want to know what the reasonable woman thinks. If the reasonable woman would not have married on that basis, then you can assume that this woman too is a reasonable woman and she too would not have married on that basis.

[Speaker D] Okay? The reasonable person is the judge. Yes.

[Rabbi Michael Abraham] So I’m saying: first of all, do a survey. Reach some kind of conclusion about what the data are. Then you can come with it to the decisors and say, listen, friends, this is what we’re looking for, you can’t deny it. This is what Jewish law says. Meaning, if the woman would not have married on that basis, the marriage is void—that’s explicit law. So what is there to discuss about whether Maharam of Rothenburg wrote this, or Rashi wrote that, or Tosafot wrote something else? I’m not interested in what Maharam of Rothenburg’s wife thought. I’m interested in what the woman today who comes to the religious court thinks, or what women like her who live today in our society think. Why should it matter what it was back then?

[Speaker C] Differences. What, an eighteen-year-old girl won’t marry someone with bad breath? Okay. But a thirty-eight-year-old—

[Rabbi Michael Abraham] No problem. So now you need to decide: when she got married, would she have married on that basis or not? That’s all. If she married at thirty, or she married at eighteen, then do a survey across age as well. Segment it by age too. In principle you can do everything. I’m saying again, you only need to show—you don’t have to show every possible ground, you can’t imagine all the grounds that may arise—but you can show that there are certain levels of grounds such that it is agreed women are not willing to marry under those conditions. You can see today in our time—something that wasn’t true once—that there are women who are extremely selective and don’t marry until age thirty, forty, and sometimes get stuck for life because of it. What is that? If it were really like in the Talmud, “better to dwell as two,” where a woman is willing to accept anything just to have a partner—that’s the Talmud’s assumption. That is plainly not true today. Factually. It has nothing to do with Reform and nothing to do with anything; it’s an assessment of reality. So why do I need to bring Maharam of Rothenburg, who tells me that if the husband is an apostate then the woman doesn’t want him, and if the husband has boils then she does want him? That was then! Suppose it was true then—even he didn’t do a survey, after all. He had an impression, that’s what he had. I’m even willing to do a survey, to do something more serious than Maharam of Rothenburg. But about people today, not people of the eleventh century. Why is that relevant at all? Again, that’s a very problematic example of second-order ruling. Now here, that really is a far-reaching step. I can understand those who won’t simply say, fine, the woman wouldn’t have agreed, the marriage is totally void. You can’t… the heart doesn’t let you annul marriage so lightly. After all, first of all it’s a matter of life and death in terms of halakhic force, but beyond halakhic force, we just don’t want marriage to become some sort of contract that can be taken apart casually. Like any contract. Yes. No, but I mean marriage more than that, because it really is something… I can understand the concern. So okay, bring a few precedents. But first and foremost, bring the principled point. That principled point is not connected to any precedent, any medieval authority, any later authority, any anything. It’s a simple logical point: a contract where there was no intent on that basis is void. Why? That’s all. Say that first. I said that there, very timidly, at the end—after I brought all the medieval and later authorities and analyzed the passages and showed that this is so—I wrote at the end: were I not afraid, I would say even without all this, on that basis she definitely would not have… The guy ran off the next morning. They got married at night, got married at night, went to the hotel, and in the middle of the hotel stay he already went off to his mother. The next morning she looked for him, and he was already in the United States.

[Speaker C] With all the money. With all the money, yes.

[Rabbi Michael Abraham] No, but when you do a survey, say—say you get to a point where some woman—

[Speaker C] says, like, women say that with a mentally ill man, let’s say, only two percent would say they’re willing to remain married. So what? But now a woman comes to you and you find a husband who is like that. Do you know whether this woman in this case happens to be one of those two percent or not?

[Rabbi Michael Abraham] It’s always like that. We go after the majority. What do you mean? What happens in every contract? In every contract—someone sold his property with the intention of going up to the Land of Israel, a Talmudic passage in Kiddushin 50. Someone sold his property because he was about to immigrate to the Land of Israel; he was in Babylonia, okay? Something went wrong and he didn’t go. He goes to the buyers and says, friends, I sold you my fields—that’s my livelihood—because I thought I was going to the Land of Israel. I need it. I didn’t go. Things got messed up. On that basis I didn’t sell. Okay? So now who says? There’s surely some one percent who would have sold in any case and started a new business. Maybe he simply wanted to sell and start a new business here too. Fine—but the reasonable person is not like that. The assumption in Jewish law is that even in serious matters we follow the majority. Even in capital matters, by the way—Rabbi Shimon Shkop discusses this at length—we follow the majority. Even in capital cases.

[Speaker C] Also in cases of possible mamzer status.

[Rabbi Michael Abraham] Even something like doubtful mamzer status—there’s basically no problem there. A doubtful mamzer isn’t a mamzer; on the Torah level, if I remember correctly, a doubtful mamzer is not a mamzer. With mamzer status, doubts are actually the easiest area. But I’m saying, the Talmud is full of things like this. The Talmud is full of cases where you assess what a reasonable person would say—whether on that basis he would have voided something—and if a person says, listen, I didn’t mean to enter into a contract on that basis, if that’s what a reasonable person would say, we accept the claim. Now it could be that he belongs to the unreasonable minority. Fine. But it’s a reasonable claim, and we accept it. These are Talmudic passages; this isn’t really a matter for debate. Not because there’s no minority that’s different, but because we follow the majority. That’s the halakhic rule. You—say you have a piece of meat, you know, you have a pot here, in principle according to the Talmudic law, okay? You have a pot with a hundred pieces of meat: fifty-one of them are beef, forty-nine are pork. You may eat the whole pot. We follow the majority.

[Speaker F] But nobody does that.

[Rabbi Michael Abraham] People don’t do that; there’s also a rabbinic prohibition, never mind, I’m not getting into that now. But from the standpoint of Torah law, you could eat everything—we follow the majority. Here there’s even certainly prohibited meat. There, maybe you belong to the minority; here the prohibition is established. “Established prohibition” means there is definitely prohibited meat in the mixture. There, maybe he belongs to the minority, but most likely he doesn’t—he belongs to the majority—and then there’s no problem. Here there was definitely a problem when I ate all the pieces. Okay? So fine, that’s another example showing, again—and you can see this in the rulings of the religious courts, and it drives me crazy every time—that in the end the halakhic clarification is not a large part of the ruling. Very often you need to clarify the facts. And when they clarify the facts, they bring medieval authorities (Rishonim) and later authorities (Acharonim) in order to clarify reality. It’s like Tosafot writes—I think in Sukkah somewhere—Tosafot writes that there are many stars in the sky, because it says, “like the stars of heaven in multitude.” It’s an explicit verse, so who can deny that there are many stars in the sky? It doesn’t even occur to him to look up and see there are many stars—why do you need a verse? Fine, that’s Tosafot. In general, I think they had that kind of method. But when you’re clarifying reality, then look at reality, not at the medieval and later authorities. Again, that’s second-order ruling. Fine, so this is a first attempt at characterization. There are actually, I think, if I go at slightly higher resolution, two nuances, both of which I’d call second order. First of all, there’s this automatic reliance on precedents without dealing with the substance of the matter. Sometimes without dealing with it at all; sometimes I write out the issue and then immediately bring the medieval authorities. And the second type is that even when I use precedents, I use them literally. I don’t think about the meaning of what was said and whether it applies here, and make the proper variation because the situation I’m dealing with is a bit different from the one he dealt with, even though I’m following him. But the application is simplistic. Meaning, okay, he said permitted, he said forbidden. Wait—look what kind of women there were in his time; maybe he thought that… So you can follow him, but still enter a little into the context in which he spoke, into the meaning, and not just take it literally. If the husband is an apostate, then the betrothal is not void because Maharam of Rothenburg wrote that way. But Maharam of Rothenburg—let’s see what happened there. Was there an issue of apostasy? Wasn’t there? Were they all religious? If the woman is secular too, and the husband is an apostate, is she unwilling to be betrothed to him? I don’t know—many women don’t care whether the husband is an apostate. Okay? It depends—derive from it and from itself, but establish it in its proper place. In other words, you take the source and apply it literally to the case. So even when you use precedents, you can do it in two ways: first order and second order. You can use what’s written and try to understand what stands behind what’s written, what his understanding is, even if I want to go with Maharam of Rothenburg himself. But I need to understand what he said—not literally what he said, but what.

[Speaker E] And is that kind of analysis also legitimate—or are you saying to do it also with Talmud and Mishnah? That I should check what the circumstances were in the Talmud in that period? Of course, yes. But nobody does that.

[Rabbi Michael Abraham] I don’t know if nobody, but few people do, yes.

[Speaker F] The presumption that a person does not repay a debt before its due date—that was true in the time of the Talmud. Today, the moment my salary comes in and I go into my bank instructions and cancel the overdraft, that presumption no longer exists.

[Rabbi Michael Abraham] Yes, people have actually addressed that. To a certain extent they more or less agree in cases like that. It’s only when it starts getting into the area of a married woman that people start getting weak in the knees. Meaning, they aren’t willing to make decisions on their own, to make decisions on their own. Fine. Actually, notice this is a very interesting point. I started thinking about this here when the website started going up and I started getting a lot of questions. It’s already beginning to wear me out—much more than the correspondence before. And many times I answer briefly. Then I remember the criticism of SMS responsa. Rabbi Aviner or Rabbi Cherlow, people like that, who answer loads of questions. I really see them that way—with Rabbi Cherlow I know him, Rabbi Aviner I don’t—but I see him all the time with the phone, all the time.

[Speaker C] Sending answers on that thing.

[Rabbi Michael Abraham] Yes, fine. SMS responsa are totally dismissed. But I’m saying, Rabbi Cherlow sits there—I’ve sat with him many times—he’s on the phone all the time. Meaning, he’s talking, and while he’s talking he’s answering SMS responsa. So there’s a lot of criticism of this—why don’t you bring sources, there’s no orderly discussion. I’m completely in favor of SMS responsa. What? HaGashash? Underdos? They have some skit making fun of it?

[Speaker F] Okay. Properly, as it should be.

[Rabbi Michael Abraham] So I’m saying, my criticism is the opposite. I’m completely in favor of SMS responsa. Not SMS responsa specifically in the sense of actual text messages, but short responsa like that. Why? Because basically SMS responsa often don’t bring the sources; they think for themselves. They simply tell you whether it’s permitted or forbidden without bringing you the responsum of Tzinzat HaMan, who also wrote this way, and that other one wrote that way too—why do you need all that? The criticism of SMS responsa—not always, but sometimes—is a criticism based on the assumption that a halakhic ruling cannot exist without bringing all the precedents and sources. Why not? Why should I care whether a hundred responsa wrote this way or the opposite way? I clarify the issue, I reach a conclusion whether it’s permitted or forbidden. If it’s permitted or forbidden—well, now there are a hundred and one responsa, including mine. People sometimes say to me, where is that written? I tell them: here, now—I wrote it to you, now it’s written. What difference does it make whether it was written or not? People have this kind of sanctity of the written word: because someone wrote it, now it’s written. It doesn’t matter who wrote it, or what he wrote—that doesn’t matter at all. It’s written. Oral Torah. Yes. After Rabbi Yehudah HaNasi permitted writing, there is no more Oral Torah. If it isn’t written, it doesn’t count. So actually, notice that what I’m talking about here is in some senses—not completely, because obviously there is value in entering the sources and the Talmudic passages and clarifying and seeing what’s being discussed. It’s not random; I’m not against reliance on sources as such, or skipping the stage of analysis. I’m not against using sources. But often this criticism of SMS responsa is just that—you can’t really do it any other way there. And I think that’s a great blessing. There are lots of people for whom that accessibility is very important. They can ask the rabbi a question easily; otherwise they wouldn’t ask. What do they need now—to search around for an answer from Noda B’Yehuda, to have someone explain to them what this position is and what that position is, and Torah-level and rabbinic-level and what exactly…? He wants to know whether the pot is permitted or forbidden. That’s all. Why are you confusing him with all this stuff now? These armchair critics who don’t like SMS responsa. In my eyes there’s actually something very positive in it, because it basically means that you need to rule in a first-order way. Now, of course, you can do second-order SMS responsa. You know that this is what the Mishnah Berurah wrote, and you write “permitted.” You don’t write it, you don’t bring the Mishnah Berurah—but it doesn’t have to be that way, but…

[Speaker C] No, there are many who write, “Yes, permitted,” and in parentheses “see…” and so on.

[Rabbi Michael Abraham] Ah, okay, I’m not sufficiently versed in the genre. But I’m saying at the principled level, at the principled level, this criticism… there is room for it, but often this criticism comes from that place where a person expects second-order rulings. And with that I do not agree. With that criticism I do not agree. Fine. Now actually the questions or problems begin, because as Ido pointed out earlier, there’s no such thing as a completely first-order ruling. If someone asks me whether something is permitted or forbidden, then what? Is it okay to look at the Torah? And at the Talmud? Meaning, if I don’t want to discuss precedents and just say what is permitted, how do I know what’s permitted and forbidden? What, am I the Holy One, blessed be He? How do I know? Obviously you begin from somewhere. And the answer—that was Ido’s question—and the answer is Shmuel’s answer, the answer I’ve been giving so far. What is it? In my view there is a difference—and this is an important point. There is a difference—and I already gained something from this class because this became clearer to me now, meaning in preparing for this class—there is a difference between whether you relate to a source that has canonical authority, and whether you relate to a source that does not have canonical authority. That’s the point. Meaning, the Torah has authority, to the extent that it says anything at all, because it is so dependent on interpretation that it’s a little hard to treat the Torah as really any clear source of information. But say the Talmud, okay? Since the Talmud has authority—meaning, one does not dispute the Talmud halakhically—then certainly relating to the Talmud is not called second order. When I say that you have to list for me what prohibitions are involved, which commandments and transgressions and prohibitions are involved—where are you going to take the prohibitions and commandments and transgressions from? From the Holy One, blessed be He? You’ll call God and ask Him what’s going on here? He already said what He said. Now what do you need to do? Take the sources that have authority—meaning those you cannot dispute, those that are authoritative. Okay? Those sources, in my estimation—and here there is some disagreement—in my personal estimation, that’s the Talmud, and the Torah of course but that’s not interesting, and Mishnah and Talmud. That’s it. Everything else—the medieval authorities—has significance, but not absolute authority. They have significance; you need to understand how they interpreted the Talmud; there’s some value there. But basically the first-order sources are the Talmud. And maybe the Sages more broadly, but mainly the Talmud—even other rabbinic sources are not really binding, like the Tosefta or midrashim; they’re not as binding as the Talmud. Okay? So that. In my view, looking at the Talmud is not called second order. When I enumerate every expression in the Torah, say regarding holiness. The Talmud writes that; it isn’t written in the Torah. So maybe that too is second order? On the principled level, true—as Ido said—relative to the Torah, the Talmud is second order. But I’m saying: relative to me, once we’ve decided that the Talmud has authority that one does not dispute, then for me that’s first order. I don’t have the privilege of not dealing with the Talmud; that is not up to me. What the Talmud says is the law. Now I can only discuss what the interpretation of the law is; if there is a dispute in the Talmud, how do we rule—that’s already another set of questions. In those questions there is no authority that can decide in a way that cannot be disputed. And therefore there I expect the person to form a position on his own. You need to decide. Now I have no problem—decide that if you see that the Rif and the Rosh and Maimonides and all the medieval authorities decided one way, you say: I cannot decide otherwise. Fine, no problem. Bring them and say that you decided that way. But first of all, begin with the fact that there is a dispute in the Talmud. There are two sides here, and this is the question that needs clarification. And now clarify it. Now here there are different approaches. I take a more autonomous approach. I think the person—the halakhic decisor—has to decide for himself. He can be helped by the medieval and later authorities, but in the end the obligation is on him to decide.

[Speaker C] That depends on the level—how qualified he is.

[Rabbi Michael Abraham] We’ll talk about who is qualified. For now let’s talk about a decisor who is qualified. I’ll also try to define that later.

[Speaker C] I hope—what that means, qualified.

[Rabbi Michael Abraham] “Knows himself”—that’s a very delicate question. There’s a decisor who has decided something about himself. It’s not “knows himself.” That’s not an objective question. It’s a question of how you think, how you feel. Whether you have self-confidence or not—that’s what it depends on. There could be a decisor who is a tremendous genius, knows everything, but doesn’t have the self-confidence; he doesn’t trust himself. So how would you relate to such a person? It’s not someone who knows himself; it’s an ideological decision about how to relate to oneself.

[Speaker C] I’m not talking about…

[Rabbi Michael Abraham] A decision—so that’s what I’m talking about. Someone who has spent five years in yeshiva—wonderful, all due respect, yes, but… I’ll get later to the question of who is qualified. But right now I’m talking about clear, established decisors where there is no question that they are qualified. Okay? For the moment, for the sake of discussion. Okay? Even they do the same thing, and there it isn’t justified. But fine. I’m saying, here there are disagreements, and it’s also a matter of degree. Even I don’t totally ignore what the medieval authorities say. I’m only saying: okay, but in the end, if I have a very clear position, I’ll follow a minority—maybe even a negligible minority—if I’m extremely convinced. It’s a bit a matter of smell, intuition. You need to know how this business works. Others trust themselves less, and if all the medieval authorities say something, they won’t allow themselves to disagree. If there’s an overwhelming majority, they also won’t allow themselves. Legitimate. I have no problem with that. Define yourself, bring the positions of the medieval authorities, and say what you think. For me that’s half first-order.

[Speaker C] Since the medieval authorities, it’s already almost a thousand years. Okay, already a thousand years.

[Rabbi Michael Abraham] No, it depends which medieval authorities. The end of the period of the medieval authorities is the sixteenth century.

[Speaker C] Okay, the end of the period of the medieval authorities is five or six hundred years. In five or six hundred years there were countless decisors. Was there any decisor who ruled in a first-order way? Obviously. Like who, for example?

[Rabbi Michael Abraham] Noda B’Yehuda, for example. Yes. Maharshal. Although he declares it more than he actually does it—we once talked about Maharshal. Yes, there are those who rule first-order. Not to mention the Vilna Gaon, of course. The Rogatchover, and people like that who were really—yes, there are, there are. It’s a matter of degree. You know what? Even Rabbi Shlomo Zalman was somewhat of a first-order decisor.

[Speaker C] Some would say Rabbi Moshe Feinstein.

[Rabbi Michael Abraham] Rabbi Moshe Feinstein too, right. To a large extent. And again I’m saying, it’s a matter of degree. I’m setting up the two poles, but everyone is somewhere in the middle. I’m only saying one should move closer to the first order. I think they were relatively close. Rabbi Moshe Feinstein, Rabbi Shlomo Zalman—they write this. Rabbi Moshe Feinstein writes this. I don’t look at all the decisors. The Mishnah Berurah didn’t deal with that at all—he sometimes cites it. He wasn’t—he was from the generation that ruled with Arukh HaShulchan. Arukh HaShulchan was the book in Lithuania, not Mishnah Berurah; they didn’t use it. The one who gave the Mishnah Berurah its authority was the Chazon Ish—there’s a lot of irony there. There’s a letter of the Chazon Ish where he says that the words of the Mishnah Berurah are like the words of the Sanhedrin sitting in the Chamber of Hewn Stone. And that was basically the stamp that gave the Mishnah Berurah the halakhic status it has today. And it’s very strange, because you know that today there are even editions of the Mishnah Berurah with notes from the Chazon Ish in which he disagrees with the Mishnah Berurah. So he is a rebellious elder, of course, because if the Mishnah Berurah is the Sanhedrin and he disagrees with it, then he’s a rebellious elder. Only people take that statement, once again—

[Speaker C] He had some kind of agenda to create order.

[Rabbi Michael Abraham] Obviously. No, that’s exactly what I said—taking it literally. When he said it came out like a Sanhedrin from the Chamber of Hewn Stone, he meant: treat the Mishnah Berurah seriously. Does that mean you can’t disagree with it? Of course you can disagree with it. You don’t have to take it literally. It’s not—even when you rely on someone, certainly not when you’re talking about a letter and not some carefully weighed ruling where every word is measured and you write exactly what you think. So therefore it seems to me that this is one of the questions that really troubles me, because very often it’s hard to define when you are ruling in a first-order way and when in a second-order way. All in all, when you clarify a Talmudic topic, obviously you will deal with Maimonides, the Rif, Rashba, Ritva, the medieval authorities, the later authorities. That’s how one learns a Talmudic topic; I’m the last person who would argue with that. I do it that way too. But… that too takes part in the process. And still there is a difference. It’s no longer black and white, but by intuition you can see the difference. In the end, are you forming a position about what the Talmud says in your opinion—even though “your opinion” includes all the medieval and later authorities you saw, fine—but after everything you’ve seen, do you ask yourself what you think the Talmud says? And that’s what you say: that is the Jewish law. Or do you say: no, the Rif said this and Maimonides said that, and the Jewish law is that we follow the Rif against Maimonides or Maimonides against the Rif, and therefore I rule this way. You don’t ask at all what the Talmud says; for you, you’re dealing with such rules. And that brings us into the question of rules, which is also very important in this context of first order and second order.

[Speaker C] The Shulchan Arukh more or less did that, right? He took three and ruled by majority.

[Rabbi Michael Abraham] That’s part of it, although he too deviates from it, you know. But broadly speaking, yes. Right. But that’s interesting, because he himself also deviates from it. There are cases where he rules against two, meaning in favor of one out of the three, against two—several cases that I know. Meaning he too didn’t go with it blindly, like a battering ram—like Rabbi Ovadia. Meaning, often you try to convey a message or posture of ruling by precedents, but you’re not really entirely like that. That ideology is very important to you, and you present it that way and push it, but in practice, if you’re a person of stature, then you’re not entirely attached to it. In the end, when something seems absurd, you won’t rule that way even though two out of the three say it—if it seems absurd to you, whatever. Therefore the question of first order and second order cannot be detached from the question of which sources have canonical status. Even though these seem like independent questions, they aren’t. One depends on the other. Because if you take this autonomous approach, which says that no source has canonical status except maybe the Talmud—which is my opinion—then of course it’s easier for me to define what first order and second order are. First order is someone who reaches a conclusion about what the Talmud says, and that’s what he rules. And he doesn’t care that he reaches that conclusion about the Talmud together with the Rif and Maimonides and Rabbi Akiva Eiger and everyone else—but in the end he says: in my view this is what the Talmud says, and therefore I rule this way. And I don’t care if most of the medieval authorities or most of the later authorities said otherwise—that doesn’t matter. And if someone counts medieval and later authorities and follows technical rules and so on, then he rules in a second-order way. So for me it’s easy to define the difference between first order and second order because my view on the question of what is a canonical text is sharp: the Talmud is a canonical text and everything else is not. Again, even that isn’t completely sharp, and everything else is a little bit. You can’t ignore Maimonides, but he’s not absolute either. Meaning, okay, there is weight to the fact that Maimonides says something, that Shulchan Arukh says something, but not absolute weight. Meaning it still leaves discretion, although one certainly has to take it into account if it is written in Maimonides and in Shulchan Arukh.

[Speaker C] If there’s a dispute about what’s written?

[Rabbi Michael Abraham] Never mind, then I’ll rule in that dispute. No—both opinions are inside the canonical text. The canonicity of the text means that anyone who says like one of those two opinions is within the framework, because it is an opinion from within the canonical corpus.

[Speaker C] Even a rejected view?

[Rabbi Michael Abraham] What? Rejected by whom? That’s exactly it. No—if the Talmud itself says no, then no, because then the Talmud determined that no. But in a place where the Talmud leaves two opinions and only the decisors decide, then from the Talmud’s perspective both opinions remain possible.

[Speaker C] No, and if there is a tanna who already rejected his opinion?

[Rabbi Michael Abraham] If it was rejected, then the Talmud rejected it—so what can you do?

[Speaker C] Then the canonical text…

[Rabbi Michael Abraham] Said that this is no longer a legitimate opinion.

[Speaker C] And where is the canonical text of Mishnah and Talmud?

[Rabbi Michael Abraham] What? No, of course not—Jewish law follows the later authority. Even within the Talmud itself, Jewish law follows the later authority.

[Speaker C] Until where? How far? Until Abaye and Rava? No—until the Talmud; after the Talmud, no.

[Rabbi Michael Abraham] From the perspective of the Talmud—nothing. After the Talmud there is no Jewish law at all. I don’t care whether we follow the later authority or not the later authority—there is no such institution at all after the Talmud, and no person whose word is “the Jewish law.” Therefore the question of whether we follow the later authority after the Talmud has no meaning at all. That’s my opinion. Those who also treat the medieval authorities as a canonical source—meaning, what the medieval authorities say is binding—again, there are disputes there too, just as there were disputes in the Talmud, but still they see canonicity in medieval literature as well—they really can ask whether within the literature of the medieval authorities the rule of following the later authority continues. From my perspective that question is meaningless, because there is no such thing as Jewish law like one of the medieval authorities, so what does “later authority” even mean? I don’t work with rules there at all. There I decide. So I don’t need rules to tell me. Only in a canonical sphere do I need a rule that tells me what the canonical thing is, what canonical conclusion arises from here. Okay? So within the Talmud, rules have significance. Beyond the Talmud, they do not. Now what about rules that the medieval authorities establish regarding the Talmud? In my view one need not relate to them. One doesn’t have to. Unless they prove it from the Talmud, in which case I understand that this rule actually already appeared in the Talmud. The fact that Maimonides or the Rif merely formulated it—that’s fine, not important—but they exposed to me that this is what the Talmud understands. Then it’s fine. For me, the medieval and later authorities are tools for understanding the Talmud. And you can go through all of them—it doesn’t matter, it’s worth going through all of them. But they are only tools to understand what the Talmud says, because for me the law is the Talmud. By contrast, those who think the medieval authorities are also canonical text—there are some who say that even the great later decisors are canonical. Meaning one may not disagree with them. Only if they disagree with one another, then either maybe you can perhaps form your own view, according to the bolder among them, or you go with majority rules or doubt rules or things like that, for the less bold. But still you are working in some way under constraints. And for me the medieval and later authorities are not constraints at all. They are an influence, they are sources of inspiration, but they are not a constraint.

[Speaker D] They’re not like today, where there’s statute law and then there’s case law that the court…

[Rabbi Michael Abraham] So I’m saying—the law, yes, it determines. The case law depends whose. The Supreme Court. The Supreme Court. Ordinary courts, no.

[Speaker D] No. Fine.

[Rabbi Michael Abraham] So I’m saying the Supreme Court, for me, is the Talmud.

[Speaker D] No, the Talmud is the case law. No, the law is the Torah. What’s written in the Torah, which as we said is not clear.

[Rabbi Michael Abraham] Fine, so the question is how you make the analogy. If you want to make an analogy, then I would say the Torah is the law and the Talmud is the Supreme Court. So it’s only a question of how you make the analogy. Fine, it’s not… But it doesn’t matter, because here that’s what they…

[Speaker F] Think of themselves.

[Speaker C] Here that’s what they…

[Rabbi Michael Abraham] Yes, they think they’re the Torah, not the Talmud. Yes.

[Speaker C] There’s that Talmud in Bava Kamma… except for YAL KGM, I don’t remember whether the Talmud rules that explicitly. But in the Talmud it’s… that’s Abaye and Rava… is that also canonical? The Talmud?

[Rabbi Michael Abraham] Of course, of course—it’s in the Talmud. The Talmud itself says, “And the Jewish law is in a case of unconscious despair,” the Talmud says, “the Jewish law follows Abaye in YAL KGM.” And not only in unconscious despair—in all of them. In a side-post standing on its own, in all the… up to conspiring witnesses. So that’s a rule in the Talmud. Rules in the Talmud are part of the Talmud. By the way, even there I assume—and we once discussed the attitude toward rules—even the rules in the Talmud have to be treated cautiously. When the Talmud itself formulates a rule, it does not mean that you should follow it blindly, like a battering ram. It’s a rule, but sometimes there are exceptions to the rule. We’ve discussed attitudes to rules more than once. Yes, I just remembered the Talmud in Kiddushin which says that one does not derive from general rules even in a case where an exception was stated. Yes, there the Talmud brings all positive commandments dependent on time, from which women are exempt, except for three or four, I don’t remember, that the Talmud brings there. Then the Talmud brings Hakhel—women are obligated in Hakhel too even though it is time-dependent. Fine: one does not derive from general rules even where an exception was stated. What does that mean? The Talmud says, if there is a rule that all positive commandments dependent on time women are exempt from—fine, they made a generalization, but obviously there are several exceptions, they just didn’t go into detail. But where an exception is also stated, that’s a case where the formulation of the rule is very exact. They said: all positive commandments dependent on time women are exempt from, except for A, B, C, and D. They already listed everything. Even that you don’t take seriously? Now I bring you another exception, a fifth one. Fine, don’t make a fuss—one does not derive from general rules even where an exception was stated. What does that really mean? It basically means that the Talmud does not take itself—its own rules—too seriously. Rules are something that gives you direction, but where it is clear that not, then not—don’t get too excited about the rules. There are places, by the way, where the Jewish law follows Abaye other than YAL KGM—even major medieval authorities say so. In Temurah there—if someone acted, it is ineffective. There’s a dispute about Maimonides whether he ruled like Abaye or like Rava. And that is not one of the six cases of YAL KGM. So then they start spinning pilpul and rule upon rule: in places where Abaye and Rava disagree within the view of tannaim, there too maybe the Jewish law could follow Abaye; only in their independent disputes is it YAL KGM. That’s what some of the rule-makers say. That’s an invention without root or branch. Maybe they’re right and maybe not. Where did that invention come from? In order to reconcile? To reconcile—so instead of reconciling, reconcile differently, or rule differently. That’s what I’m saying. So if you can define sub-rules on top of those rules—fine, so can I. Therefore even the rules of the Talmud need to be treated with limited confidence. Yes, I brought this Mishnah that we discussed about rules—I brought the Mishnah at the beginning of Bava Kamma. The Mishnah says: there are four primary categories of damages: the ox, the pit, the grazer, and the fire. This one is not like that one, all the details, and then it says: the common denominator among them is that their way is to cause damage, they are your property, and their safeguarding is upon you, and when they damage, the damager is liable to pay compensation for damages from the best of his land. So on that the Talmud asks on page 6: what does the common denominator come to include? I always die laughing when I see that Talmud. For once there is a Mishnah that behaves like a human being and gives me the rule and not just a few examples. Give the rule! Then I can work. Why are you giving me a few examples? For once the Mishnah brings, after the examples, the rule too, yes? That’s the rule: your property and its safeguarding is upon you, and when it damages you have to pay. Wonderful. So the Talmud asks… what does this rule come to include? The common denominator—what does it come to include? What, for once they gave you the rule and you ask why you need it? The opposite—if anything, ask why you need the examples. They gave the rule, so why do you need the examples? That too has an answer. Meaning, the Talmud disparages rules—it’s hard to say otherwise. Even its own rules. Fine, rules, rules—okay, but what about someone who places his fellow’s animal on his fellow’s grain? Is he liable? The Talmud at the beginning of HaKones says he is. But does it have to be your property? It isn’t your property. I take my friend’s animal and place it on another friend’s grain—this animal isn’t mine at all, so why am I liable to pay? Liable to pay, the Talmud says. That goes against the Mishnah. The Mishnah says: your property and its safeguarding is upon you. This isn’t my property. So there’s a dispute there among the medieval authorities—Rashba and Tosafot disagree there—whether this is a case of a person causing damage, and then it doesn’t need to be his property, because if I place the animal there, it’s basically as if I caused the damage with my own hands. Or not—it’s still property that causes damage, but yes, it’s like my property; I take it and place it there, so it’s like my property because the responsibility is on me. Fine, so what does that show? That basically you are using common sense and not the rules. I completely agree with the common sense here; that’s perfectly fine. The Jewish law is very logical. But it does not fit the rule of the Mishnah literally. That only means that the rule of the Mishnah gives you the framework, but you need to know how to maneuver with it, because it’s a rule with limited force. Okay? So that too is part of the issue. Second-order ruling always clings to the rules. First-order ruling tries to understand what it means. For example, the Chazon Ish was a completely first-order decisor. I think the most first-order person I know among the decisors of the last generation is the Chazon Ish. Completely first order. The man did what he wanted—well, not what he wanted, what he understood. Meaning, if he understood something to be correct, then that was the Jewish law. Against medieval authorities, against later authorities; he explains the Talmud, he understands the logic, he bends the rules only in order to say that here this rule doesn’t apply because it really makes no sense to apply it here. He was really the clearest first-order figure I know. The greatest conservative of them all. Right? We’ve talked about there being two kinds of Chazon-Ishniks: those who always follow the Chazon Ish, and those who do what they think, the way the Chazon Ish did what he thought. Gedaliah Nadel, yes. Gedaliah Nadel was a real Chazon-Ishnik. He really did what the Chazon Ish did, not what the Chazon Ish wrote. And that’s exactly the point: all those who do what the Chazon Ish wrote are the opposite of the Chazon Ish, because they rule in a second-order way, whereas his whole essence—he wrote this too, not only acted this way—he wrote in section 3 of Yoreh De’ah the rules of decision-making, and in section 150 he repeats it too, and the Chazon Ish writes there that a person needs to follow the angel of intellect—yes? The intellect is an angel that leads a person, and that is what he should follow. He writes that a person must decide for himself. I don’t remember whether I heard this from Rabbi Yogev or whether it’s just a story I heard—I think I heard it from Rabbi Yogev once. He learned in chavruta with Gedaliah Nadel in the 1950s, I think, or even before that, maybe the 1940s. He learned with Gedaliah Nadel in chavruta, and at the end of the week they would go to the Chazon Ish to ask him things that had come up for them during the week. I don’t remember whether he told it, but I heard this story from somewhere—maybe from him—that once Gedaliah Nadel came to the Chazon Ish and asked him—he had some difficulties with something the Chazon Ish had written somewhere. Difficulties on the Chazon Ish himself, not on others. So the Chazon Ish said: Gedaliah, if you think differently, then do what you think—what’s the problem? Meaning, what do you want from me? You’re arguing with me in reasoning. This is my reasoning, and you have different reasoning, so do what you think—what’s the problem? The Chazon Ish also writes in a letter: it is not my way to enter debates, because in any case people do not accept. Whoever wants to accept will accept, and whoever does not want to, will not. The Chazon Ish was very much like that, and that’s one of the beautiful things about him. Until today I’ve had a hard time with him, because he’s not analytic, he’s not yeshivish, he’s not Brisker. There’s that anti-book, yes. The foundational book, after all, is Rabbi Chaim’s novellae—Rabbi Chaim on Maimonides, and at the end with the Chazon Ish’s notes. And that’s the main book that basically marks the distinction between Rabbi Chaim’s juristic way of thinking—he’s a paradigmatic second-order decisor, I’ll speak about that in a moment—and the Chazon Ish, who is first order. In my opinion that’s the center of the whole business. Because the Chazon Ish didn’t just happen to write glosses on Rabbi Chaim’s book; he did it exactly on those points where he disagreed with Rabbi Chaim’s way of relating to things. They were two poles. Now I’ll try to explain this a little. Basically, where does second-order ruling come from? Why do I call Rabbi Chaim a second-order decisor? You’ll see in a moment. Where does second-order ruling come from? When you ask the decisor, the narrative is basically: who am I, I’m insignificant; the generations are in decline; what are we compared to the great medieval and later authorities. Ruling? And the rabbi of Brisk…

[Speaker C] He wasn’t a decisor.

[Rabbi Michael Abraham] He did rule in principle; I’ll tell the story in a second. Fine, it’s a well-known story.

[Speaker C] Exactly—they sent them to the city rabbi…

[Rabbi Michael Abraham] Yes, to Rav Simcha Zelig, the judge. Or he sent a question to Rabbi Yitzchak Elchanan, with the famous story: “There are no questions.” Yes, that’s exactly the point—that’s how he ruled. Therefore he’s a second-order decisor. He was the city rabbi, and that’s how he answered questions—that’s exactly second order. I don’t understand why they paid him a salary. All he had to do was rule for them, not send them to Rabbi Yitzchak Elchanan or to Simcha Zelig. Fine. I wrote about this in a book—not a book, an article in a volume on the rabbi that came out at Bar-Ilan. They asked me for an article, so I wrote there—your brother-in-law, right. They asked me for an article on the figure of the rabbi, so I wrote there about Rabbi Meir Simcha, the Or Sameach, and the Rogatchover, because both of them were rabbis in Dvinsk.

[Speaker C] At the same time?

[Rabbi Michael Abraham] At the same time, yes. And the Or Sameach for the opponents of Hasidism, the Lithuanians, and the Rogatchover for the Hasidim. The Rogatchover came from Chabad circles.

[Speaker C] The Rogatchover was Hasidic? How does that fit? He came from a Chabad background.

[Rabbi Michael Abraham] I never understood him. He wasn’t anybody’s Hasid, but he came from a Chabad home. And they were really complete opposites. Rabbi Meir Simcha had such a warm countenance, an enormous Torah scholar, yes, I mean, he was warm and welcoming, hugging people, talking with them, and it was a pleasure—people really say it was a pleasure to talk to him. And with the Rogatchover, you couldn’t talk to him. If he came to prayer, and if the cantor dragged things out even a little—no, no, no, he had to get back to learning already. He had no time for the nonsense of that cantor. And then as soon as he finished praying, he had already folded up his tefillin, he ran home, he didn’t talk to anyone. If someone asked him a question, he said, I don’t have time. Meaning, he was the rabbi, he got a salary, he was a rabbi who was supposed to issue halakhic rulings. I brought that story specifically to explain the character of the Rogatchover. And I argued there—and here I’m digressing a bit—I argued there that in the mentality of that period, today it’s a bit less so I think, much less actually, because a community did not support a rabbi in order for him to answer questions. It supported a rabbi in order to be its kollel. Meaning, there is a rabbi whom we have the honor of supporting. In other words, now a community—Aishishok, all kinds of little towns like that, I don’t know—there are twenty householders there, and they take someone of a caliber who simply has nothing to do with them. Lions. The Chafetz Chaim was in Radin, though they didn’t pay him a salary, never mind. What is this little puddle? Meaning, this was a person head and shoulders above, people in a league that is hard to imagine, sitting in some little town with a few dozen Jews, wagon drivers who can barely read and write. And these weren’t Hasidic rebbes making tishes for them with wine and herring. These were scholars who sat and learned. Giants in learning. So why were they chasing after them at all? What for? Because they wanted to support them. They weren’t supporting them as public servants. They saw themselves as servants of the rabbi. And that’s a mentality that doesn’t exist today, and in my opinion that’s a bit of a shame. Because there’s something to it. Today people see the rabbi as a service provider. And justifiably—they pay him, they want service. That’s very understandable. But they don’t think about the fact—and this is really relevant to our own times—they don’t think about the fact that for such people to grow, someone has to support them. And the contribution of a small community for generations, if it supports a person like that and enables the Rogatchover to produce what he produced—that is a historic contribution to Torah, contributed by some community of wagon drivers who didn’t need the Rogatchover and didn’t understand him; he opened his mouth and they didn’t understand a word he said. But their contribution is beyond price to the history of Torah and of Jewish law. And that is what they had before their eyes. They looked for a rabbi such that they would have the merit of supporting him, that they would have the honor of supporting him. Now, true, there’s also an element of prestige in this: our rabbi is the superstar, so that brings honor to the community. But there’s something here that is very… today we send the avrekhim, the guys who are learning, to get maybe two hundred dollars from the Ministry of Religious Affairs or I don’t know exactly what, plus a little more that the heads of the yeshivot raise, and we expect them to grow in Torah and by age fifty to be giants whom everyone looks to for light. You can’t work that way. These people—and the most talented among them, I’m not talking about the ones who are just sitting there, I’m talking about the people who really should be sitting there—they sit there and they have to improvise. So he becomes a kosher supervisor here—Yossi knows one like that personally—he becomes a kosher supervisor here, a school rabbi there, a community rabbi here; he has to improvise in order to make a bit of a living. And because of that he doesn’t grow, or doesn’t grow enough. And that’s a loss for all of us. We place this mission on these young guys and don’t give them the resources or the tools for how to do it; we give them these ridiculous two hundred dollars. And I’m saying that this mentality is very badly lacking. That’s what they had there. There were no kollels there. Kollel is a new invention. There were a few—Lithuania had a few kollels starting up—but not many. There were no kollels. The kollel was that the community supported the rabbi, supported a yeshiva for him too, by the way; the community also supported a yeshiva for him, sometimes with boys from the town and sometimes boys who came from outside—if it was a great rabbi then boys came from outside. And the community supported him and supported a yeshiva for him, and all of it because they needed him. And because they understood that this was their contribution to Torah. To Torah in general—a historic contribution. Whoever supports a figure of that stature is making a historic contribution. And therefore the conception of a service provider is of course good enough for a third-rate rabbi. Like most rabbis are. A third-rate rabbi—you take him, he’ll give you answers, he knows the Mishnah Berurah, he’ll give you answers, everything’s fine, no problem. And that’s perfectly okay; it’s a package deal and everything is fine. But there are those whom you need to support not so that they’ll give you answers—let them not give you answers, let them sit and learn all day at home and be unpleasant. But what they write will be an asset for generations. Or what they produce will be an asset for generations. And today there’s no awareness that these people need to be supported; we throw them to the dogs. I look at my son—I have some personal stake in this. My son has now left the yeshiva in Merkaz—not now, a few months ago. And he’s very suited for it; really, he could have grown tremendously. It was clear to me that with my connections he wasn’t going to get anywhere, and in order to become a judge in a religious court or something like that, you have to be Deri, Deri’s brother, Deri’s brother-in-law, or Deri’s nephew. Or Deri’s friend in the coalition, it doesn’t matter, but otherwise you won’t get anywhere. And that’s it—he has no employment horizon, so he left. Now never mind, I’m not speaking on the personal plane; it just sharpened for me even more something I’ve been thinking for years. I once told about this—in Yeruham I once spoke with one of the year-groups in the yeshiva, when they were young, before they’d gone out into life, before they were working and all that. They were young kids then; they could make decisions and then try to stick to them. I said: take it upon yourselves to support two people from the class, the two most suitable. Give them your tithe money. A tithe from thirty guys—which altogether, the people of Yeruham I assume will make a decent living in the future, they’re talented guys, they’ll have a reasonable economic status—that’s three good salaries, right? A tithe from thirty guys is three good salaries. Support two, not three. Fine? Support two. Give them a good salary, like what you earn as an accountant, lawyer, scientist, whatever. Why? Because it’s important that he grow too, and not start dragging his feet and becoming a school rabbi, a kosher supervisor, and all kinds of things like that. Let him grow. Choose two, no more. So from that class, ten stayed in the yeshiva, or maybe even more—usually more stay, I don’t remember, but around that. Of course none of them did it in the end; even as kids they weren’t willing to commit to such a thing. They didn’t do it in the end. And those ten—not necessarily they were the suitable ones. Those ten too will drag their feet looking for a livelihood and so on; probably none of them will really grow, and that’s that. Of those ten, eight should have left the yeshiva and not stayed, because they’re not suited for it. The two who are suited—or three or four or five, doesn’t matter, a few—those who are suited should have stayed, and you should pay them a good salary. What happens today is that everyone is a parasite, or is seen as a parasite, and justifiably so, because most of the people who remain really shouldn’t remain, and there’s no need to support them. I thought of proposing a package deal—I’m wandering a bit. I thought of proposing a package deal; no one would agree to it. A package deal to cut the yeshiva budget to half of what they study now—of what is given now. But distribute it to one-fiftieth of the people who receive it today. Out of every fifty, choose one, and support only him. Fine? Or whatever, ten—okay? One out of ten, not one out of fifty. Yeshivot would close. What? Right, yeshivot would close. Unless someone can support himself and wants to remain, that’s fine, but who needs to remain long-term—I don’t mean yeshiva, yeshivot are fine, I’m not talking about yeshivot, I’m talking about kollels, those who remain for the long term. Yeshivot are a training period; that’s something else. Those who remain for the long term. Then the state won’t see them as parasites, because these are really talented people,

[Speaker C] Talented people—everyone understands that in every field they need to be cultivated.

[Rabbi Michael Abraham] And the rest will enter the workforce. And the rest will enter the workforce and bring money in. It’s net profit. You’ll save half the sum, they’ll benefit because they’re not wasting away in yeshiva when they’re not suited for yeshiva, the economy will benefit, and Torah will benefit, and everyone will benefit. The economy will gain twice over: not only does it spend only half, it also has another eight people contributing because they’re working and they’ll contribute.

[Speaker C] Who will decide who the two are? Will the head of Yeshivat Dorot Yisrael say in each class who the two are?

[Rabbi Michael Abraham] Right. Or a committee.

[Speaker D] Who knows who? The pressures on him would be unbelievable.

[Speaker C] He knows who. Believe me, he knows who.

[Rabbi Michael Abraham] Let there be a committee, and nobody knows who sits

[Speaker D] on it.

[Speaker C] Like

[Rabbi Michael Abraham] is done in many places.

[Speaker D] It’s hypothetical. Wait, again, again, Dani, it’s hypothetical—the Haredim won’t agree.

[Rabbi Michael Abraham] Exactly. Why won’t they agree? Because the yeshivot, the quantity of yeshivot and all the rest, provides a livelihood for the heads of the yeshivot and also for the avrekhim, and it keeps them poor so that they remain under control. There are many, many interests surrounding the issue. But this—this is simply not a zero-sum game. It is profit only for all sides. Everybody only gains. There is no loser here. But nobody will accept it. It’s a kind of market failure. It’s something everyone would profit from and no one will accept. So I’m telling you: in a market failure, the government has to intervene. Meaning, this is not a place where you let the invisible hand run things. Deri will intervene. Deri will intervene, exactly. Okay, in any event I just want to finish with some important remark that I didn’t manage to get to. So I said—I started saying that second-order halakhic ruling is attributed to smallness and the decline of the generations and so on. But in truth it doesn’t come from there. And that’s why I say that Rabbi Chaim—Rabbi Chaim was not small; Rabbi Chaim was a giant. And he issued second-order rulings for a different reason. He lost the ability to decide. That’s the well-known myth about Rabbi Chaim, right? He had a question and he sent it to Rabbi Yitzchak Elchanan of Kovno, the greatest halakhic decisor of that period, and said to him: answer me yes or no, without reasons. Because if you raise a reason, I’ll bring you ten reasons against it. Because he knew he was sharper than him. And he wanted Jewish law. And that is exactly second-order ruling. Because I’m saying: you issue the ruling, tell me whether this is forbidden or permitted. It has nothing to do with my reasoning. My reasoning—I’ll go on learning that in the yeshiva in the morning, but the Jewish law I’ll take from him, or from the Mishnah Berurah, or from the Shulchan Arukh, or from Maimonides. It doesn’t matter; on the conceptual level this is second order. But it is second order not because Rabbi Chaim thought there was a decline of the generations and that he was lesser. Maybe he said that—I don’t believe him. He didn’t think that. He was a very sharp man and knew his own worth very well. Heaven forbid that he belittled himself; otherwise he would not have done what he did. Many criticized him for what he did. He had enough self-confidence in what he was doing. He lost the ability to decide; even if he had wanted to decide, he wouldn’t have succeeded. Once you have strong analytical ability—meaning, if you can take a dispute among medieval authorities (Rishonim) or a dispute among halakhic decisors and show how each one fits with all the Talmudic passages and all the medieval authorities (Rishonim), and build some complex structure—

[Speaker C] Give me any case and tell me what you think the law will be, and I’ll explain to you why it’s like that.

[Rabbi Michael Abraham] Exactly. If you—and that is what Rabbi Chaim began to develop, or continued to develop, and to this day this is the yeshiva analytical skill: there’s a dispute between Maimonides and Rashba. I will reconcile each of them with all the Talmudic passages. I’ll build a magnificent structure that explains Rashba—not in the sense of the pilpul I spoke about in the previous lecture, a real structure. And a structure that explains Maimonides. And neither of them will be difficult from anywhere. Except that now—so who is right? If both of them work, then who is right? Every yeshiva lecture shows how both sides fit with every source, and that is exactly why a rosh yeshiva is prevented from issuing rulings. He cannot rule. And that is why such a division developed between roshei yeshiva and halakhic decisors. Beni Lau once wrote—I brought this up recently—that one of the disasters of the generation—two lectures and the Rabbi mentioned Maimonides and that’s already… yes—that Beni Lau said one of the disasters of the generation is that its leaders are not rabbis but roshei yeshiva. And by the way, he was not talking about this aspect. He was talking about another aspect. He said that roshei yeshiva shave themselves on eighteen- and twenty-year-old boys. Meaning, that’s the feedback they get. So the eighteen- and twenty-year-old boys test intellectual brilliance. They test consistency. If you line things up from here and from here, they’ll challenge you, and if they’re talented then they… it’s a serious challenge. But they won’t tell you: look, this doesn’t make sense. And that’s what a householder of thirty, forty, fifty will tell you—a person who has already seen things in life. He’ll say: look, this doesn’t make sense. Something here isn’t straight. That is feedback that a halakhic decisor has to receive. Then you can be a decisor, because there is common sense in halakhic ruling. Someone who is analytical is brilliant, and he cannot decide. And then they build this theory of the decline of the generations and we have become smaller and so on. Why do I say it’s a theory? Even someone who really believes there is a decline of the generations—I assume almost everyone believes that—it doesn’t matter, because the decline of the generations is not supposed to prevent you from issuing rulings. That’s the Rosh in tractate Sanhedrin, chapter 4, siman 6. He elaborates there on this matter, and he begins first of all by saying that there is no authority outside the Talmud. This is the approach I mentioned earlier; it is the Rosh there who writes this. Not true—not the Geonim, not anybody. Only the Talmud. After the Talmud, one may disagree with everyone. And after that he also says that a person must issue rulings himself. A person has to issue rulings himself, and not because I am as great as they are. He assumes there is a decline of the generations, but “Yiftach in his generation is like Samuel in his generation.” Meaning, you have to issue rulings—you live in this generation, you are the one who has to issue rulings for this generation, both because you know the reality and simply because you have to rule according to what you think, even if that other person is greater than you. Therefore the decline of the generations—even if you accept the assumption that there is a decline of the generations—that still does not mean you need to rely on precedents. And in order to rely on precedents, you have to say there is a decline of the generations: first, a factual assumption; second, a normative assumption, that the greatest person is the one who has to issue the ruling. I don’t agree with either assumption. Personally, I don’t agree with either assumption. But I’m saying: even if you accept one of them, that’s enough. And therefore I think there is something here very similar to postmodernism. Post… postmodernism is this multiplicity of truths. Everybody is right, like Rabbi Chaim—the Rashba is right and Maimonides is right, everybody is equally right. Where does that come from? In the postmodern world too, it seems to me, it comes from a place that looks somewhat opposite to postmodernism, but it’s not opposite when you think about it—from excessive logicism. Meaning, people who examine things only through consistency. Meaning, if you assumed assumptions, assumptions—as I wrote in my most recent article.

[Speaker C] No, your latest book.

[Rabbi Michael Abraham] In the latest column on the website.

[Speaker C] I know, but the book… yes. Right. Meaning, someone who… someone who…

[Rabbi Michael Abraham] Meaning, I can judge only consistency—whether you drew the conclusion correctly from the assumptions. I cannot judge assumptions. Now, if you reach that conclusion and you are a perfect logician and you check each person for logical consistency, then on the face of it you seem very exacting about truth and falsehood, right? But in truth you have many truths, because it depends on your basic assumptions. From each basic assumption a different conclusion follows. So in fact analytical ability and adherence to logic produce, in a kind of reverse twist, a multiplicity of truths or an inability to decide. Because he is right according to his method and he is right according to his method, and then I’m postmodern and Rabbi Chaim was postmodern. There are many truths. Whoever wants to know what the Jewish law is has to ask a halakhic decisor. He has to ask someone who does not have analytical ability like his, and has not lost the ability to decide, and who says: this is the law. Now Rabbi Chaim knows that if he gives him the reasons, he’ll be able to refute them in ten ways. That doesn’t matter. Either because it doesn’t matter, because you need to find some answer and everybody is right; or because Rabbi Chaim also understands that Rabbi Yitzchak Elchanan is right in terms of Jewish law. Because he has common sense. With all Rabbi Chaim’s intricate conceptual structures, common sense carries more weight for Jewish law. And I tend toward the second possibility. But I’m saying there is a narrative here of the decline of the generations that covers over a process rooted in the logical plane. We lost the ability to decide because we know how to explain everything within its own system, and so now we have lost the ability to determine who is right. And I think that is what generates second-order halakhic ruling. Second-order halakhic ruling is basically: I don’t know how to decide who is right. So what do I do? If everyone says the same thing, then there’s no problem. If there is a dispute, I follow the majority, rules like that—and all of it only so long as I avoid the issue itself. Namely, to say what I think about the issue itself. Now I’m saying this is not deterministic. It’s a correlation, not a necessity. One can develop analytical ability and not lose the ability to decide—at least not… it makes it harder. It makes it harder, but it’s possible. People somehow take it too extremely. Part of it is ideology. Meaning, if you… that’s why it’s a combination of ideology and analytical ability, and analytical ideology. You can have analytical ability, but in the end you still say: okay, this is the Rashba’s structure, this is Maimonides’ structure, I’ve finished the analytical operation, now I ask: which makes more sense? Which sounds more reasonable to me? I am willing to ask that question too, even though it is not an analytical question. And then I’ll say: Rashba seems more reasonable to me, so I rule like him. And that means my ideology is not analytical. I have analytical ability, but my ideology is not analytical. I am willing to judge things not only on the basis of consistency—both were consistent—but also by which one makes more sense to me. Or maybe I’m mistaken, but that’s what I think. Okay? And I think that is the deep point of first order and second order. The willingness to decide. Because that is what is missing in second-order halakhic decisors: they are not willing to decide. That is the problem. That’s where it begins. Okay.