Doubt and Probability—in Halacha, in Thought, and in General—Lesson 8

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] the mother is presumed fit and the daughter is presumed disqualified. And therefore there are those who want to say that the mother’s presumption helps the daughter. Others argue no, the mother’s presumption does not help the daughter. So then how—after all, in the Talmudic text itself it says that the daughter is fit. So they explain that the daughter is fit because the mother’s presumption is considered the daughter’s own presumption. It’s not that because we ruled about the mother, that ruling is also valid regarding the daughter; rather, since the daughter is an extension of her mother, the daughter is a continuation of her mother, so the presumption that exists regarding her mother is considered an original presumption for the daughter as well. And that’s the difference in the law. Meaning, it’s not to say that the mother’s presumption helps the daughter, but rather that the mother’s presumption is also the daughter’s presumption. To say that the mother’s presumption helps the daughter means that the daughter has no presumption, but once we ruled, by force of the presumption, what the mother’s status is, the daughter’s status automatically follows from that. That is called the mother’s presumption helping the daughter. What’s the dispute here? Usually people say that the dispute is over whether presumption is a rule of decision or a rule of conduct. If it is a rule of decision, then that basically means that the conclusion after applying this rule—the original presumption of the mother—the conclusion is that we have determined reality. Meaning, in reality, the man who had relations with her was fit. Fine, if we determined reality, then obviously the daughter is also fit, because we determined that her father was fit. Meaning, if in reality he was fit, then obviously the daughter is fit too. And if the rule regarding the mother resolved the doubt, that means that our conclusion now is that the man who had relations with the mother was fit, then obviously the daughter is fit too. So the view that says the mother’s presumption helps the daughter is a view that says that presumption is a clarifying rule. On the other hand, one who says that the mother’s presumption does not help the daughter—then why is the daughter fit? Because the mother’s presumption is also the daughter’s presumption. Not that it helps the daughter, but that it is considered to apply to the daughter herself too; she has a presumption and therefore she is fit. So he apparently understands that this is a rule of conduct and not a rule of decision. And that’s how, usually, this is explained. In Shema’ata there’s a contradiction about this; in one place he explains it this way, in another place he explains it differently. Sha’arei Yosher talks about this, and all the later authorities, and in yeshiva lectures and so on, it’s always the question whether following a presumption is a rule of decision or a rule of conduct. But here another nuance comes up. Suppose it is a rule of decision. The rule of decision—after all, if you ask me factually what I think, factually, was the man fit or not, the one who had relations with her—I have no idea. The fact that the mother has a presumption of fitness says nothing about the identity of the man. It’s not that we truly, logically, factually clarified that the man was fit. Even statistically—say eighty percent—not even that; it remains fifty-fifty, assuming it was fifty-fifty, yes? We talked about the fact that fifty-fifty sometimes comes from knowledge—say fifty percent of the people around are fit and fifty percent of the people in the area are unfit—so that is a doubt arising from knowledge. We can also have a negative doubt, a doubt arising from lack of knowledge: I don’t know anything about the people around. So out of doubt I say there are two possibilities, either they are fit or they aren’t, so I treat the situation as doubtful; that’s called a negative doubt. But in both cases I am in a state of doubt. Now the mother has a presumption, a presumption of fitness. Presumption of fitness does not mean that she is a righteous woman and not a transgressor, yes? You have to understand that. Presumption of fitness means a presumption that her status was that she was fit to marry into the priesthood. It’s a status presumption. It is not a presumption saying she is not a transgressor. There is no transgression here. If a disqualified priest had relations with her, that is no greater transgression than if an ordinary man had relations with her. Relations with an unmarried woman are not such a great transgression, but in any case, relations with a disqualified priest are no more severe than relations with a fit man. There is no connection at all. And we are not talking here—the presumption is not a presumption saying that this woman is not a transgressor. That’s not the point. The point is that this is a status presumption. If until now her status was that she was fit for the priesthood, and now a doubt arose, then the halakhic rule says that we continue to treat her as fit for the priesthood. And in order to remove her from her presumption of fitness for the priesthood, you need evidence. It is not enough that a doubt arises. So if we really understand it this way, how can we understand that this presumption, the original presumption, is a rule of decision? After all, it’s obvious that this did not change the statistics regarding the identity of the man, right? The fact that she was fit for the priesthood until today says nothing about what kind of man this was. Assuming there are fifty percent fit men and fifty percent disqualified men in the area, then we remain at fifty-fifty. And it did not really resolve the doubt. So how can one say that because a decision regarding the mother was made, then obviously that also helps the daughter? Because if the man is fit then the daughter is fit too. What do you mean? And then we say, why is that so? Because there is a rule, because the rule of original presumption is a rule of decision and not a rule of conduct. But it is not a rule of decision. Obviously not. It is not a statistical rule. Right? It is obvious that this is halakhic doctrine; it is not a clarifying rule. So how can one say that it is a clarifying rule? So this can be understood in two ways; maybe it’s not even two ways, maybe one way. We can say: we are not willing for our conduct to be self-contradictory. Meaning, true, it is a rule of conduct, I don’t know what happened regarding the man, but I cannot assume about the man stringently that he is fit and stringently that he is disqualified. And therefore I have to make a decision. And since the mother has a presumption, then regarding the mother we are supposed to decide that he is fit; automatically regarding the daughter too, even though she has no presumption, we will decide that her father was fit. Because we are not going to issue a halakhic ruling that is self-contradictory, a degradation of the religious court, or things like that—people will laugh at this court. What do you mean, you validate the mother and invalidate the daughter? It’s the same man. So how can that be? So for various reasons we are not inclined to issue halakhic instructions that are self-contradictory. Even though from the standpoint of the laws of doubt, that is actually what should have happened here. Okay? And therefore, if we have a decision regarding the mother, and regarding the daughter we do not have an opposite decision, only a concern, then obviously the decision regarding the mother is the determining one, and it will drag along with it the decision regarding the daughter too. And then it turns out that de facto we treat this rule as a clarifying rule. But it’s not because it really clarifies. It clarifies nothing. Rather, simply because we are not willing to act self-contradictorily, so Jewish law itself tells us that even though this rule is a rule of conduct, we treat it as a clarifying rule. Okay? Just a second, just one second. Hello? Mom? Hello? Hi, I’m in the middle of a lecture, I’ll call you back. I’m in the middle of a lecture, I’ll call you back. Bye. Sorry, it’s just that my mother has been looking for me a lot and I got worried. Okay. So this rule, this example, shows us that there are actually three kinds of rules and not two. There are clarifying rules, there are rules of conduct, and there are rules of conduct that Jewish law tells us to treat as clarifying rules. They do not really clarify, meaning this is not statistics, but still the halakhic instruction is to see it as though it were not a halakhic rule but a statistical rule or a factual rule. As though. Okay? And that has implications, for example, for the derivatives, what we said earlier. So for example, regarding a single witness too, one could say Maimonides’ view—that maybe in truth a single witness does not clarify reality, but the Torah tells us that the credibility of a single witness in matters of prohibition is something we regard as credibility. Meaning that for us the doubt is resolved, not because if I had to bet now on something, I’m not sure I’d bet on more than fifty-fifty that this piece is not pork. But Jewish law tells us that even though this is a rule of conduct, you should treat this rule as though it were a clarifying rule. And therefore sometimes there will be rules that are clarifying rules but still not statistical. Rather, it is only a halakhic instruction to view them as clarifying rules, and it is not statistics. And this is an important point because I think many later authorities got tangled up with these things. Now, as I said earlier, maybe I’ll bring one or two more examples of this, of this nuance of rules of conduct that function as clarification and actual rules of clarification. There are for example many rules, many rules of decision. In monetary law there are very many, in fact, yes? Judicial discretion, whoever is stronger prevails, the burden of proof rests on the claimant, let it remain unresolved until Elijah comes. Lots and lots of rules, each in different circumstances. Tosafot at the beginning of Bava Metzia talks about this, and in the third chapter of Bava Batra and elsewhere. One of the rules is—in the third chapter of Bava Batra it appears—whoever is stronger prevails. Yes, in that case of the boat, there is a boat floating there on the water and two people on the shore, each one claims that the boat is his. Reuven claims it’s his and Shimon claims it’s his. In such a situation neither of them is in possession, because the boat is over there, so the Talmudic text says that in such a situation, whoever is stronger prevails. Meaning, the religious court basically says to them: fight; whoever wins gets the boat. We are not issuing a halakhic ruling here as to who the boat belongs to. There is a long discussion among the later authorities whether this is a ruling or a withdrawal. Does the court tell them, the ruling is whoever is stronger prevails, or is it a withdrawal, meaning the court tells them, do whatever you want, we have nothing to say in such a matter. There is no presumption, there is no evidence one way or the other. We have nothing to say; Jewish law has nothing to say in this domain. Don’t come to court; do whatever you want. They do not have to fight; rather, we are not intervening—that’s the point. So the practical difference, for example, that the medieval and later authorities bring, mainly the later authorities, is the question: after they fought and someone grabbed the boat, can the other go back and fight him and grab it from him again? So if it is the court’s withdrawal, then the court says: we have nothing to say in this matter. So if it is a withdrawal, he grabbed it; I’ll come back and grab it from him. Meaning, the fact that he grabbed it says nothing; the court only says do whatever you want, we have nothing to say. So I can grab it from the one who grabbed it. But if I say that this is a ruling of whoever is stronger prevails, then the court ruled that once you prevailed, the boat is yours. And when it is yours, I cannot come and grab it from you. So here, for example, is a practical difference whether the rule of whoever is stronger prevails is a clarifying rule or a rule of conduct. Now it is obvious that even if I say it is a clarifying rule, it is not really statistical clarification. It is not that after you grabbed the boat, sorry, after you grabbed this boat, sorry, it was truly clarified factually that it is yours. Of course not. The doubt remains as it was, still fifty-fifty. But Jewish law tells us that there is a rule that whoever grabbed it, grabbed it, and it is his. So we see this as a clarifying rule, but it is not really clarification. So here is another example of a rule that is ostensibly clarifying according to certain approaches, but it is not statistical; it is not a clarification of the facts themselves. For example, one reason here why this thing is defined as a clarifying rule could be so that the fight doesn’t continue forever. If they keep fighting and grabbing from each other, there is no end to it. So we need to say, okay, fight once, whoever wins, that’s it, story over. So that is a good legal reason to define this rule as a clarifying rule even though it did not really clarify reality for us. Therefore this is a rule that halakhically is defined as clarifying, according to that side. It is only interesting to say that the Rosh—and there are contradictions in the Rosh about this—but the Rosh, there is a responsum of the Rosh and there is the Rosh there on Bava Batra in the third chapter, and the Rosh on Bava Batra says that he also has a logical explanation for this rule. Why? He claims that the one who wins the boat is usually the one who is more determined to win it, the one who struggles more determinedly and decisively to win the boat, and usually the one whose boat it is fights harder. And therefore the Rosh’s claim—and this is an innovative claim, and the later authorities discuss it a lot—is that the Rosh is actually claiming not only that this is a rule of conduct functioning as clarification. It is truly clarifying. Meaning, if you won, then there is a decent chance that you really are the owner. Not one hundred percent of course, but we have grounds for saying that you are the owner because you won. Of course one practical difference would be if one is a thug, a tough guy, and the other is just weak, and the first one won. Then that is no indication that it is his; it only indicates that he is much more of a thug. But where they are more or less of equal physical strength, or equal cunning, or I don’t know, whatever is needed to win such a struggle, and one of them wins, the Rosh says that this is evidence that it is his. So the Rosh turns this rule from conduct functioning as clarification into actual clarification. Now I’ll use this example to present another nuance. What do we do in a situation where one of them really is a thug? So will the law be different? That there we will not say whoever is stronger prevails? Because there is no evidence: the fact that he won is because he is a thug, not because he was more determined; the other one had no chance. I assume that the Rosh too would still say whoever is stronger prevails. Why? Because we do not make distinctions. You cannot make a different rule for every case that comes before you. If this is the rule, then this is the rule. And this is another example of another mechanism that is important to recognize regarding rules of doubt and rules generally: many of the rules have some basic logic in them, some basic factual or statistical logic, but after we set this rule, now we already apply it disconnected from its original logic. Meaning, it has become a rule that stands on its own: whoever is stronger prevails. You ask why I chose this rule and did not say draw lots? Because this rule has a certain advantage. In many cases it really can give us an indication of who the boat really belongs to. Okay? So I choose that option. That does not mean that every time such a thing comes before me, if one grabbed it, I really assume he is the owner. No. There are situations in which I absolutely would not assume that. Okay? But still that will be the rule. So again, this is an interesting mechanism that says this rule is not really clarifying, even though at its base we adopted it because there is some clarifying logic underlying it. It’s just that once I decided this is the rule in such cases, then I apply it in all cases of this kind. And not always does the basic logic exist, but since in any event I need to decide on some rule and I have no way of clarifying reality, I say okay, then let’s use this rule all the time. There is very clear and compelling legal logic in that. But notice. Rabbi, you started with basketball; it’s like a golden goal in soccer. Like what? A golden goal in soccer. What does that mean? I’m not familiar. It means that if there is extra time and there is no decision and they don’t want to keep playing and so on, then whoever scores the first goal wins. Okay. That’s not proof that this is the better team, but maybe more determined? Right, although I think there there is even proof that it is the better team. Meaning, first of all it scored a goal, so first of all it is better. After all, even if they had finished extra time and it had won, who says that in the second extra time the other side would not have scored? Why do you decide to stop here? Meaning, whoever scored a goal, as of now, based on the present data, is better. It could be that afterward it would turn out to be a mistake, but based on the data now, if I had to decide in light of the current data, it really is better. So I’m not sure that’s a good example. There is, you know, deciding by penalty kicks for example—that’s an Israeli invention. You know. It was adopted all over the world: when there’s a tie, they decide by penalty kicks. That’s the invention of an Israeli. No, that I know. Why is it an Israeli invention? It’s true; it was simply an Israeli who was a member of the Olympic committee or FIFA, I don’t know where, and he proposed the idea and since then it was adopted, I don’t know, maybe in the 1970s. I read about it not long ago when he died. So in the eulogies they wrote that he was the master of this teaching. Okay. Well, not pleasant to say that we learned something in the lecture. Yes, exactly. So I return to our topic: basically you can see that the whole system of rules is a fairly complex system. Meaning, this simple division into clarifying rules and rules of conduct is a very crude division. And I think that very often when you see books by later authorities discussing this, they completely ignore these nuances. Rule of decision, rule of conduct, practical difference—it really is not simple. Meaning, there can be a situation where it is a rule of decision, but Jewish law instructed us to treat it as a rule of decision even though it does not really decide. And therefore it is conduct that decides; it’s not—you want to call it not a rule of decision but let’s perhaps call it a rule of conduct, a rule of clarification, and a rule of decision. Okay? A rule of clarification means that this is really statistics. A rule of conduct means there is nothing—no decision, no statistics, nothing—but that is how one must act. And a rule of decision means: this is indeed conduct, but this conduct tells me to relate now as though the matter has been decided, meaning as though this were clarification. So perhaps we should use the terms decision, conduct, and clarification. Okay? And here, yes. Rabbi, regarding this whoever-is-stronger-prevails thing, it always bothered me—what do you mean, the court sees people fighting and says do whatever you want? And how can one accept such a forceful mode of conduct and give it some kind of stamp that it’s legitimate? But I thought whoever is stronger prevails means that the discussion never started at all. Two people are standing in the street arguing over who owns Microsoft. One says it belongs to me, one says it belongs to me. There is absolutely no indication or logic at all that Microsoft belongs to either of them. But they say, now the court is going to start getting involved and litigating—it’s huge sums, billions—who does it belong to? The case never began at all. That is what is written here. That is what is written here. So it is not because of the court’s conduct at all, it is not even their conduct. No, that is what is called withdrawal; that is the approach I mentioned earlier as withdrawal. The court withdraws; it says this is not a legal matter, the law has nothing to say about it. I don’t know what to do with this. Actually, where there is a monetary connection, we do not say whoever is stronger prevails? No, it is not because we don’t know what to do. The discussion never started. The fact that both of you are muttering something and saying—are we really going to start jumping and standing on our heads because—? I said, the addition I just made is this. In a place where there is a monetary connection—monetary connection means that there is some tie of both parties to the boat, they are still equal, I don’t know who is right and I have nothing to do, I have no way to decide. But both of them have some connection. For example, in the case of two people holding a cloak, okay? Both are holding the cloak. There the court will not withdraw. There they say: divide it. Why? Exactly because of your reasoning. Because here the court cannot say, look, you have no connection whatsoever, you want to sell Microsoft—what do you have to do with Microsoft? Meaning, here they have a clear connection to the object, just that both have one. So I do not know how to decide. So here a halakhic decision must be made. But in the case of that boat, yes, that boat in the river, there it is like two people coming in off the street and wanting, as you said, to buy Microsoft. Or yes, a bridge—you know the famous expression, I have a bridge to sell you, the Brooklyn Bridge. Meaning, lots of Jews sell each other the Brooklyn Bridge. It has become an expression in the language. Yes, if someone buys some line they’re feeding him, they say, you’re buying that line? I have a bridge to sell you. Give me a million dollars, I’ll sell you the Brooklyn Bridge. That reminds me of a joke from a friend of mine. He told me that two people, two Jews, meet on the Brooklyn Bridge, and one sells the other the bridge for a million dollars. So the second says to him, do you have a pen? I need to write a check. He writes the check, gives him the check for the million dollars, and leaves. So the other says to him, tell me, are you serious? Or someone says to him, are you really serious? The bridge isn’t his; he can’t sell you the bridge. So he shows him the pen and says, what, and the pen is nothing? He took the pen, meaning he profited by the pen. Okay. Fine. So these rules basically—so we have a rule of decision, a rule of conduct, and a rule of clarification. And I added another nuance: sometimes there are rules that begin as a rule of clarification, like whoever is stronger prevails according to the Rosh. Meaning, the basic logic of this rule is statistical logic, meaning it clarifies the facts. But we apply it in much broader contexts where that statistical consideration is no longer present, but since it has been accepted that this is the rule and we have nothing else more sensible to do, we already say, well, then let’s use this rule in all kinds of these cases. And then that basically means that this is a rule whose beginning is in clarification and whose end is in conduct. Okay? It begins—the idea begins as an idea of clarification and ends as conduct. So this is just to get a bit of an impression of the variety of the rules and of the fact that the schematic division into clarification and conduct is too crude a division. Meaning, there are much finer issues. Now statistics of course all belong to the rules of clarification, but not all rules of clarification belong to statistics. There are rules that are clarifying, but only because Jewish law tells us they are clarifying, and not because there is any statistic that clarifies the matter. So I mentioned earlier several examples of such rules: we saw whoever is stronger prevails, we saw a single witness, two witnesses—which is more the law of evidence than rules of decision. We saw original presumption, yes, there is a prior presumption or an original presumption, there is majority, we talked about majority, there is possession, judicial discretion, the burden of proof rests on the claimant, doubt, double doubt, passive omission is preferable, let it remain unresolved until Elijah comes. There are many, many such rules, because the doctrine of doubts is a very diverse doctrine in Jewish law. There are two kinds of doubts. Two principal kinds. One kind of doubt is doubt about reality, and the second is doubt about the law. In many of these rules, they are rules that deal with both kinds of doubt. Yes, for example there are also the rules that a Torah-level doubt is treated stringently and a rabbinic-level doubt leniently; these are maybe the most, most common rules, and these rules—and many other rules too—deal both with legal doubt and with factual doubt. Say a Torah-level doubt is treated stringently: there can be a situation where I don’t know whether this is pork or not. And since I don’t know whether this is pork or not, a doubt in reality, I don’t know what this meat is, and I am in doubt regarding the Torah prohibition of eating pork, a Torah-level doubt is treated stringently. There can be a situation where my doubt is a halakhic doubt, meaning the question is whether this pig is considered pig for purposes of the Torah prohibition of pork, or whether it is a wild pig, so it is not connected to pig, it is something else, and it does not carry the Torah prohibition of pork. Fine? So in that case my doubt is not factual doubt but halakhic doubt. I do not know whether Jewish law prohibits this or does not prohibit it. Here too we say a Torah-level doubt is treated stringently. Meaning, the rules of decision in cases of doubt handle both factual doubts and halakhic doubts. All the analysis I have done until now was when I apply the rules of doubt to factual doubts, because there there is room to discuss whether the rule resolved the doubt or whether the rule only tells me what to do given a state of doubt. But if my doubt is a halakhic doubt and not a factual one, then in that situation at least there are later authorities who want to argue that regarding halakhic doubts, clarifying rules are not relevant, because where there is halakhic doubt it is obvious that both sides remain as two sides; there is no way to resolve that. You have rules for what to do if you are in a state of doubt. In factual doubts we have tools to decide even the factual doubt, to know what reality is. But in halakhic doubts it is the question of what the Holy One, blessed be He, wants; I have no way to decide that. There are opinions this way with reasons this way, and opinions that way with reasons that way. So if I am uncertain, I apply rules, but the rules can never clarify who is right. Therefore, for example, Rabbi Akiva Eiger somewhere said—actually the opposite—if the rules of conduct say what to do according to Jewish law, then that is what God wants, so in the end He did decide. No, you are right, but that is what God wants on the plane of conduct. But the question is: what was His original will from the standpoint of Jewish law? Which of the halakhic positions is right? That is the question. But if our goal, as the rabbi said, is to know what God wants, and in the end we know with absolute certainty what He wants because that is the rule of conduct, then the problem has been solved. No, we do not know whether this pig is forbidden or permitted; that question remains doubtful. We know that even though we do not know whether it is forbidden or permitted, we may not eat it. We may not—I’ll put it to you in an extreme way—we may not eat it because of the laws of doubt, not because of the prohibition of pork. The prohibition of pork remains doubtful; I do not know whether the prohibition of pork applies here or not, and that is the doubt that remains. And the rules of doubt do not resolve that doubt. True, they give me an instruction what to do; the instruction what to do does indeed tell me what the Torah tells me to do, that is true, but it does not solve my halakhic doubt. The halakhic doubt remains as it was, both sides. Therefore Rabbi Akiva Eiger, for example, wants to argue that if I have a legal doubt, a halakhic doubt, then even a double doubt will also be treated stringently, even though in a factual doubt a double doubt is treated leniently. But in a halakhic doubt, no, because in a halakhic doubt the first doubt is indeed decided but it does not really decide the doubt; it remains as it was. So if you add another doubt, it is like one doubt, not two doubts. And therefore a double doubt will be treated stringently and not leniently. That is a possible implication; there are disputes about it. But we see that when we talk about a legal doubt, a doubt in Jewish law, we also apply the rules, but there the tendency, at least the accepted one, is that all the rules are rules of conduct; there are no rules of decision. There is room to discuss—and we will still talk about this exception—following the majority. May I ask a question? Yes. First, isn’t this the dispute in the Oven of Akhnai? And second, if there is a rule of conduct, then if there is an option, with great effort, to solve it probabilistically, is there an obligation to exert oneself after the decisive solution? It seems obvious that yes; the authorities say that even in a rabbinic doubt, which is treated leniently, where it is possible to clarify the doubt one may not be lenient. And what is the logic of that? If you can clarify the doubt, then it is not really a situation of doubt, so the rules of doubt do not apply here. Meaning, for—no, the question is how much you have to spend, how much a court has to spend, that is already another question. It could be that in a place where it is very, very hard to clarify and so on, such a thing is not expected of you. There are already different statements and different cases among the later authorities. For example, Rabbi Shlomo Zalman writes in Minchat Shlomo—he says there, what if you are eating an apple and you have a doubt whether there is a worm inside. In principle, you could take it for an X-ray, I don’t know exactly what, and see whether there is a worm inside. Are you obligated to do that? Or not—you say I ate, I already ate, what can you do now? No, no, I didn’t eat. I am taking the apple now and asking whether I am allowed to eat it. Maybe there is a worm inside. Now this is even a Torah-level doubt, not merely rabbinic, a prohibition against eating creeping things. But my ability to clarify is problematic because you need to go to who knows what special equipment, pay, take professionals, all kinds of things like that. The question is whether such a thing is called a situation where you can clarify. Okay? So that is the question. He says no, that is not called that you can clarify. Anyway, this dispute between conduct and decision—isn’t that the Oven of Akhnai? There? That no matter—so asks the questioner—you know, in truth it really is pork or not pork; the truth doesn’t matter. What counts is the halakhic decision and not what the heavenly voice says. No, that is a related point but not the same point. There the discussion is different. The question is: the Holy One, blessed be He, sent out a heavenly voice and said what the correct law is, and somehow the Sages made a decision against the correct law. So one can learn from there that many times Jewish law tells us to do something even though we know that factually it is not correct, and Jewish law tells us nevertheless to do it. What that shows is that there are such things as rules of conduct, but it does not mean that there are no rules of decision. Meaning, perhaps from there you can show that rules of conduct are possible. Meaning, there can be a situation where even though you have not resolved the facts, Jewish law will tell you what to do. More than that: there can be a situation where you know the facts and Jewish law will tell you to do the opposite, which is even stronger. But that does not mean that all the rules are like that. Meaning, there may be rules that really do clarify. Okay? It only shows the lack of dependence between the plane of truth and the plane of conduct—that there is such a thing as the plane of conduct. That can be proven from there, yes, that I agree with. I continued with the point that even in a legal doubt, a halakhic doubt, the authorities may speak of clarifying rules, and this is for example in following the majority. In a court, or the majority of authorities, or something like that. When we follow the majority, then for example Sefer HaChinukh writes that we follow the majority because usually the majority is right. Meaning, if there is a dispute in court, two against one, then again, there is no certainty in anything, but if I have to decide whom to follow, there is a greater chance that the two are right than that the one is right, and therefore I follow the two. So here ostensibly this is a legal doubt. Meaning, there are two who hold one halakhic argument and one who holds another halakhic argument. So their dispute is a dispute in Jewish law, and we decide it by majority. But Sefer HaChinukh claims that this majority decision is a clarifying decision; it is not a decision of conduct, it is a clarifying decision. And therefore, for example, one of the implications—Sefer HaChinukh himself says one of the implications is what happens if that one is much smarter than the two who disagree with him. Sefer HaChinukh says that in such a case we would not follow the majority. Why? Because the whole reason we follow the majority is that they are more likely to be right, and here it is clear that if there is one Torah scholar, even if standing opposite him are ignoramuses as numerous as those who came out of Egypt—that is Sefer HaChinukh’s language, yes—six hundred thousand ignoramuses, what difference does it make? One wise person is probably more correct than all the ignoramuses in the world, apropos the wisdom of crowds. Yes, that is Sefer HaChinukh’s attitude. So how does that fit with the Oven of Akhnai? After all, that Rabbi Eliezer could, first, be smarter, but he also has support from Someone even smarter, and despite all that they say that the—there the rule is that the support is irrelevant. We are judging here on earth, and on earth there was a majority against him. No, but if Rabbi Eliezer had had another fifty IQ points, Sefer HaChinukh says that really they should have ruled like him. And God cannot add another fifty IQ points? He’s not worth even fifty IQ points? He can join, only he is not counted. Not because He doesn’t have the IQ. No, but not as part of the dispute; He is not even a side in the dispute. But He is some kind of evidence that Rabbi Eliezer has this special IQ. That is inadmissible evidence. That is the point—not because it isn’t true, but because it is not admissible. That is the point. There is evidence that we do not accept in Jewish law not because we question its reliability, but because it is inadmissible. For example, according to Sefer HaChinukh, suppose a woman came—completely disqualified as a witness—and yet she is a researcher, the number one person in the world in IQ analysis, and she testifies that one side in the Sages’ dispute is the smartest in the world. That’s his wisdom, obviously. So here too, why is God less than some woman? God is not a human being. God is a transcendent entity; it is not in heaven. We do not pay attention to data coming from heaven not because it is not true, but because heaven does not play in this field. Even as expert testimony? Nothing. None of it. Heaven does not play on the halakhic field. That is the claim of “it is not in heaven.” “It is not in heaven” does not mean that the Holy One, blessed be He, is not right. Rather, the claim is that the Holy One, blessed be He, is not relevant to the halakhic discussion; we do not pay attention to a heavenly voice. There are many kinds of testimony that we know in Jewish law are inadmissible, not that they lack reliability. A person cannot incriminate himself. There is no reliability greater than a person testifying about himself that he is a criminal. But it is not admissible. We do not accept that testimony. It is a problem of admissibility, not a problem of reliability. Okay? So here too there is a problem of admissibility with things that come from heaven. Heaven does not play a role on the field, in the halakhic arena. I once wrote an article about this regarding the status of dreams in Jewish law. Because usually the medieval and later authorities explain why we do not pay attention to dreams in Jewish law. There are passages in Nedarim and in Sanhedrin and in other places because dreams speak falsehood and one cannot have grain without chaff, and who knows—a dream is not reliable. But in Maimonides I have good evidence that we do not pay attention to dreams even where it is clear that they are reliable. I tested them and saw that the dream knows what it is talking about. Meaning, I checked the data it gave me and it turned out to be reliable. And still I do not pay attention to what the dream told me from a halakhic standpoint. And my claim was that this is like “it is not in heaven.” Meaning that according to Maimonides, the dream—what you bring from the dream—does not play on the halakhic field. Meaning, not because it is unreliable, not because it is untrue. It is true, it is reality; what the dream showed you is probably correct. But in Jewish law I do not take into account testimony of that kind, evidence of that kind, because it does not play on the halakhic field. That is basically the claim. Now one of the implications of this distinction between rules of clarification and rules of conduct is, for example, transitivity. I once saw this in Rabbi Elchanan Wasserman in Kovetz Shiurim; he brings—I no longer remember the example, I’d have to look there—but he brings that there is a Talmudic passage in Eruvin on page 28, around page 28 there, with many many rules. Rav Nachman—the law follows Rav Nachman in monetary law, Rab in matters of prohibition, Shmuel in monetary law, Ya’al Kagam for Rava. But there it is mainly tannaim, not amoraim. So there are all sorts of rules there: Rabbi Yosei against his colleagues, Rabbi Akiva against his colleagues, Rabbi Yosei against his peer, all sorts of things of that kind. Rabbi Yosei and Rabbi Shimon—the law follows Rabbi Shimon, all sorts of such rules. So the Talmudic text brings many many rules there. And Rabbi Elchanan shows—he brings three rules—something non-transitive. Meaning, Rabbi Yosei and Rabbi Shimon, the law follows Rabbi Shimon; Rabbi Shimon and Rabbi Yehuda, the law follows Rabbi Yehuda; Rabbi Yehuda and Rabbi Yosei, the law follows Rabbi Yosei. I’m just saying this offhand; I don’t remember the exact names right now, but some of the Sages there really are Rabbi Shimon, Rabbi Yehuda, and Rabbi Yosei. I don’t remember the exact example, but that is the logic. Meaning, he brings an example of three rules that are not transitive. How can that be? The answer he gives—that is, he says: if the decision were really because Rabbi Shimon is wiser than Rabbi Yosei and therefore the law follows him, then it should have been transitive. The law follows Rabbi Shimon is a rule of conduct and not a clarifying rule. And rules of conduct do not have to be transitive, because rules of conduct do not stem from the fact that the truth is more with him than with the other. So it does not have to be transitive. There are different considerations, and those considerations can sometimes produce a non-transitive circle. So this, for example, is a practical difference for rules that are not clarifying rules but rules of conduct. Because rules of conduct do not need to satisfy the order-relations of—transitivity means, a transitive relation is a relation such that if it exists between A and B and between B and C, then it also exists between A and C. Transitive means it passes through; transient means it passes. Meaning, the relation passes from A to B, from B to C, so it also passes from A to C. Okay? This is a property of relations. For example, being the son of is not a transitive relation. Because if Reuven is the son of Shimon and Shimon is the son of Levi, then Reuven is not the son of Levi; he is Levi’s grandson. Okay? But—and being smarter than, ostensibly that is a transitive relation. If Reuven is smarter than Shimon and Shimon is smarter than Levi, then Reuven is smarter than Levi. Okay? So there are relations. Now the question is whether the rules are transitive rules. So usually the accepted view is that rules of clarification ought to be transitive. Because if this is more correct than that, and that is more correct than that, then obviously that one is more correct than this one. But if these are rules of conduct, then they do not have to be transitive. Now, sometimes there is a situation where—and there are interesting statistical paradoxes here—but there can be a situation where it is a rule of clarification and still it is not transitive. For example, Rabbi Shimon is right in more cases than Rabbi Yosei. And Rabbi Yehuda is right in more cases than Rabbi Shimon, but in a dispute between Rabbi Yehuda and Rabbi Yosei, Rabbi Yosei will be right in more cases. And that can happen statistically. One can define the groups in such a way; there are all sorts of statistical paradoxes equivalent to this paradox, and then that means that yes, this is indeed a clarifying rule. But it is still not transitive. And why? Because this rule is of the last type I mentioned. It is not—because it is not true that Rabbi Shimon is always right compared to Rabbi Yosei. And always Rabbi Yehuda compared to Rabbi Shimon. If it were always, then ostensibly it should also hold transitively. Rather, in most cases it is so. Now what does it mean that in most cases it is so? That this is a rule that begins with a certain logic, but after we establish this logic, now I apply it across the board, always. Like whoever is stronger prevails, as we saw. Okay? Now if that is really the case, then although the logic of the rule is at base a clarifying logic, since afterward I broaden it and turn it into a rule of conduct, then afterward it will not be transitive. Because at the level of clarification it is only on a certain subset of cases. It is not that he really is always more correct than the other Sage. And therefore there can be a situation where even a rule that has what we might call a clarifying root will not be transitive. Okay, I’ll stop here if there are comments or questions. That’s it? Okay. So, Sabbath peace, and good news. Amen, thank you, Sabbath peace.