Doubt and Probability—in Halakha, in Thought, and in General—Lesson 10
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Table of Contents
- The stages of working through doubt
- Types of doubt and the position regarding a dispute among major authorities
- Intuition versus emotion and the connection to determining doubt
- The three kinds of rules in a situation of doubt
- Presumption: does the mother’s presumption help the daughter?
- Nullification by majority and dividing an animal into two halves
- Impurity in a private domain and majority: does majority clarify or guide conduct?
- One witness is believed in prohibitions according to Maimonides
- Majority and proximity in the case of the heifer whose neck is broken, and priority among types of rules
- Reasoning, legal reasoning, and “the burden of proof rests on the claimant”
- Migo: probabilistic evidence versus migo as the force of a claim
- The purpose of the laws of doubt, nullification by majority, and something that will later become permitted
Summary
General Overview
The overall move is divided into laying out the map of possibilities, determining when we are actually in a situation of doubt, and then the principles that tell us what to do in a situation of doubt. The emphasis is that you must not skip the stage of deciding that there really is a doubt before applying the rules of doubt. The rule of following the majority applies only when there is no other knowledge, and the example of Rabbi Yehonatan Eybeshitz versus the priest clarifies that majority is relevant only under doubt. A distinction is proposed between factual doubt, legal doubt, and the challenge to the very existence of a dispute among major authorities as an independent category, because a dispute among halakhic decisors does not create doubt if the person himself has a position. Later, the types of rules in doubt are defined: clarifying rules, conduct rules, and decision rules, and examples are brought from presumption, impurity, majority, and the rule that one witness is believed in prohibitions. Finally, it is argued that the laws of doubt are mainly meant to enable leniency and functioning, not to introduce new stringencies, and legal reasoning, migo, and something that will later become permitted are discussed.
The Stages of Working Through Doubt
The first part lays out the map of possibilities and what the Jewish-law crossroads is, and the second part determines when there really is no decision and therefore the situation is defined as doubt. The third stage gives principles for what to do after it has been decided that we are in a state of doubt, and the quick leap to applying rules of doubt without first determining that there is doubt is presented as problematic. The story about Rabbi Yehonatan Eybeshitz and the priest establishes that the commandment “follow the majority” is activated only when one is in doubt, and not when there is prior knowledge or a prior decision. The example of a piece of meat in the market, where there are nine non-kosher shops and one kosher shop, shows that following the majority applies only when the nature of the piece is unknown, whereas a piece with a kosher seal does not enter the framework of doubt and therefore is not subject to the rule of majority.
Types of Doubt and the Position Regarding a Dispute Among Major Authorities
A distinction is made between factual doubt, legal doubt when we do not know what the law is independently of a dispute among halakhic decisors, and a dispute among major authorities when there is disagreement among central decisors and it therefore seems that there is doubt about whom to follow. It is argued in an article on autonomy in halakhic ruling that there is no independent category of a dispute among major authorities, because a disagreement between Maimonides and Rashba does not create doubt if a person has a clear position. Doubt exists only when the person himself has no position after examining the passage, and then he acts according to the rules of doubt; the fact that in that case there also happens to be a disagreement among medieval authorities (Rishonim) is not the cause of the doubt but only a side effect.
Intuition versus Emotion and the Connection to Determining Doubt
A question is raised about two people who know the same data and have heard Maimonides and Rashba, where one feels certain and the other remains doubtful, and the importance of an unarticulated tool that leads to decision is established. It is argued that the term “emotion” is misleading, because emotions in the emotional sense are not claims about the world and are not tested as true or false, whereas deciding a passage or a mathematical problem is a claim that can be tested. The example of solving a mathematical problem by a friend who says “it’s eight” out of a “feeling” is used to define this as intuition, that is, direct perception of truth without an explicit argumentative process. Daniel Kahneman’s framework of System 1 and System 2 is brought in as two systems of thought, not systems of emotion, and it is said that language itself can blur distinctions, with mention of Whorf and the influence of language on thought.
The Three Kinds of Rules in a Situation of Doubt
Clarifying rules are defined as rules that determine which possibility is correct; conduct rules are rules that instruct how to act even though the doubt remains in place and both possibilities remain equally weighted; and decision rules are described as a kind of conduct rule that obligates us to treat the outcome as if it were a clarification even though there is no factual clarification. Examples of conduct rules include “in a Torah-level doubt one must be stringent” and “in a rabbinic-level doubt one may be lenient,” where there is no decision of truth but an instruction for behavior. Decision rules are described as conduct that creates a halakhic attitude of “as if the matter has been decided,” so that the doubt not only remains but is considered no longer to arise in later laws.
Presumption: Does the Mother’s Presumption Help the Daughter?
A discussion is brought from tractate Ketubot about whether the mother’s presumption of fitness helps when a doubt arose after intercourse with an unknown man, and whether the mother remains fit to marry a priest by virtue of her original presumption even though the doubt about the man remains. Regarding the daughter, it is argued that apparently she has no presumption, because her very birth emerges from the doubt, and therefore one might have said she should be forbidden to a priest on the basis of stringency in a Torah-level doubt. In practice the daughter is fit, and it is said that there are two explanations among the medieval and later authorities, and even an internal contradiction in Shema‘ateta: one explanation says that the mother’s presumption helps the daughter by virtue of “a son is like his father’s leg” and “the fetus is like its mother’s thigh,” in analogy to ben paku‘a; the second explanation says that the mother’s presumption does not help the daughter, but the mother’s validation functions as a decision rule that halakhically decides the man’s status as fit, and therefore the daughter is fit. The distinction between “clarification” and “conduct” is presented through the question whether there can be conduct only for the mother without projecting it onto the daughter, and it is said that there is no contradiction in the mother being fit to marry a priest while the daughter could have been disqualified, because a conduct rule does not establish factual truth.
Nullification by Majority and Dividing an Animal into Two Halves
An example is brought from the Brisker sages of a non-kosher animal that was cut into two halves, where one half fell into a mixture and was nullified by majority while the other half did not, and the difficulty is that apparently one cannot validate half an animal and declare the other half non-kosher when it is the same animal. The discussion is presented as illustrating that there is tension between assigning a partial legal status and the conception that a decision “applies on all its sides,” and the topic is noted as broad and containing many examples and questions among the later authorities.
Impurity in a Private Domain and Majority: Does Majority Clarify or Guide Conduct?
The rule is presented that a doubt about impurity in a public domain is pure and in a private domain is impure even when many doubts are piled up, and a case is examined in which there is a majority toward leniency within a private domain. If majority is a clarifying rule, then it removes the case from the category of doubt and therefore the rule of doubt regarding impurity in a private domain does not apply, and the result is pure. If majority is a conduct rule, then the case remains doubtful and the specific rule of impurity in a private domain overrides and renders it impure, and it is said that there is a dispute among the medieval and later authorities on this matter. It is argued that a specific rule for impurity can override a general rule like majority only when the case is still defined as doubtful, whereas a clarifying rule cancels the relevance of conduct rules because there is no longer any doubt.
One Witness Is Believed in Prohibitions According to Maimonides
A law is brought that matters of forbidden sexual relations and monetary law require two witnesses, but in prohibitions one witness is believed to establish that a piece is pork, even though lashes require two witnesses to the act. Maimonides rules that if one witness established that the piece was pork and two witnesses testify that he ate it, he receives lashes, because one witness in prohibitions is considered a clarifier and not merely a conduct rule. The explanation is that after the clarification by one witness, the object is defined as pork, and then the two witnesses to the eating create testimony of two witnesses that he ate pork, even though the first link was only one witness.
Majority and Proximity in the Case of the Heifer Whose Neck Is Broken, and Priority Among Types of Rules
The law of proximity in the case of the heifer whose neck is broken is brought, when a corpse is found between cities, and a case is discussed of proximity to one city versus a majority of residents in another city, with discussion in the Talmud in tractate Bava Batra over which prevails. It is argued that the decision also depends on the character of the rules: if majority is a clarifying rule and proximity is a conduct rule, then the majority resolves the doubt and proximity is no longer relevant as a rule for doubt. The distinction is presented as a principled consequence: clarifying rules override conduct rules because they remove the case from the category of doubt.
Reasoning, Legal Reasoning, and “The Burden of Proof Rests on the Claimant”
It is argued that clarifying rules can emerge from logic such as statistics, but conduct rules can also emerge from reasoning that is not probabilistic but rather “legal reasoning.” The rule “the burden of proof rests on the claimant” is defined as a conduct rule that does not prove that the one in possession is right, and the Talmud in Bava Kamma brings the verse “the one who has a claim shall approach them,” but concludes “why do I need a verse? It is reasoning.” The justification is the management of a legal system in which the burden of proof is on the plaintiff, for reasons of legal structure, efficiency, and filtering claims, without claiming that the statistical truth is necessarily with the possessor.
Migo: Probabilistic Evidence versus Migo as the Force of a Claim
Ordinary migo is presented as the probabilistic reasoning of “why would he lie,” where a weaker claim is believed because he could have made a stronger claim. Migo in the case of brazenness is described as a situation where there is no evidence, because a person does not brazenly deny his creditor to his face, and therefore refraining from a stronger claim does not indicate truth, and yet it is said that according to some medieval authorities it still helps, for example to exempt him from an oath. From here a distinction is brought from later authorities to “migo as the force of a claim” or “force of credibility,” where we grant the legal force of the stronger claim even without an evidentiary component. It is argued that this is a kind of legal reasoning that does not stem only from legal efficiency but from what is considered “simply correct” within the halakhic structure.
The Purpose of the Laws of Doubt, Nullification by Majority, and Something That Will Later Become Permitted
The question is raised why we do not always act stringently in every doubt as we would with danger of poison, and it is brought in the name of Albertal that this allows us to function, because stringency over every tiny doubt would paralyze life. A framework is presented in which the Torah “has pity on the property of the Jewish people,” and therefore allows nullification by majority so as not to cause major financial loss in order to avoid a small prohibition, and it is said that the laws of doubt come mainly to teach when one may be lenient, not the stringency itself. A dispute is brought regarding spiritual dulling in a case where one performed an act that is halakhically permitted by virtue of the rules of doubt, and it is said that some later authorities hold that where there is no halakhic transgression there is no spiritual dulling. The law of “something that will later become permitted” is explained as a stringency when one can wait until there is full permission, such as muktzeh after the Sabbath or leavened food after Passover, and the rationale “instead of eating it in prohibition, eat it in permission” shows that even where there are doubtful permissions and nullification by majority, they are viewed as a permission that still has a problematic aspect if it can be avoided by waiting. In conclusion it is said that even according to positions like that of the Rosh, which allow eating everything in a case of nullification, still, when there is a possibility of permission without resorting to the law of nullification, they would say to wait; and the framework remains that the laws of doubt are meant to enable living and functioning while minimizing loss, and not merely to establish stringencies.
Full Transcript
[Rabbi Michael Abraham] So we’re dealing with doubt and probability, and as I said, the overall move is divided into two or three parts. The first part is to put the map of possibilities on the table: what possibilities stand before us, what the crossroads looks like. The second stage is deciding that we really are in a situation of doubt, that we have no ruling as to which is the correct option among the options before us. And then, after we’ve reached the conclusion that we are in a state of doubt, we come to the third stage, which is deciding the doubt, or giving instruction about what to do in a state of doubt. And the first two parts I basically already finished, including the lectures given on Fridays. I more or less finished them last time, summarized and finished. So now we basically have the map and the guidance for when and how we decide that the situation we’re in is indeed a situation of doubt. Now we come to the third stage. The third stage is principles that instruct us what to do if we are in a state of doubt. And I spoke about the fact that people have a tendency to apply those principles while skipping the stage where they have to decide that they really are in a state of doubt. That’s the story I mentioned—I don’t remember if here, but in previous lectures—the story about Rabbi Yehonatan Eybeshitz. A priest came to him and said: why don’t you follow us? After all, we’re the majority, and it says in the Torah, “follow the majority.” So Rabbi Yehonatan Eybeshitz said to him: we follow the majority when we’re in a state of doubt. If I’m not in a state of doubt, I don’t activate the rule of following the majority. Now, people often tell that as a joke, but it’s actually a completely serious principle. Meaning, if I find a piece of meat in the market and there are nine non-kosher shops here and one kosher shop, then in principle I’m supposed to follow the majority and treat that piece as a non-kosher piece. But if that piece has a kosher seal on it, then even though there are nine non-kosher shops and one kosher shop, it’s obvious that as far as I’m concerned that piece is kosher. Why? After all, there’s a rule that says you have to follow the majority. The answer is: you follow the majority only if I’m in a state of doubt. If there’s a piece here and I don’t know what it is, then I declare the situation to be doubtful, and now following the majority is one of the rules that tells me what to do when I’m in a doubtful state. But first of all I have to make the decision that I am indeed in doubt, and only then do I search for or use the guiding rules for what to do in cases of doubt. But if I’m not in a state of doubt, then all those rules are irrelevant. And therefore this very quick jump to using rules of doubt is very problematic. Another example of this point—I didn’t mention it last time, but I think I mentioned it in the Friday series—is that many times, in situations of doubt, we distinguish between several kinds of doubtful situations. There is factual doubt, legal doubt, and a dispute among major authorities. Factual doubt is when we don’t know the facts; legal doubt is when we don’t know what the law is; and a dispute among major authorities is when there is disagreement among major halakhic decisors about that law, so I basically have a doubt which decisor to follow. What’s the difference between that and the previous kind of doubt? The previous kind, legal doubt, is a doubt in which I’m uncertain whether the law is this way or that way, not because there’s some dispute among decisors. So my claim—and I have an article about this, on autonomy in halakhic ruling—is that I don’t accept at all the existence of that third doubt. Meaning, there is no such thing as that third category, a dispute among major authorities. Suppose Maimonides and Rashba disagree with each other. That doesn’t mean that I’m in a state of doubt; it depends on whether I have a position. Meaning, if I have a position of my own, then I’m not in a state of doubt, so why should I go stringently if it’s Torah-level or something like that? If I’m not in doubt, I don’t activate the rules of doubt. If I decide that I’m in doubt—meaning I enter the passage and it’s also not clear to me how one should act—then I’ll act according to the rules of doubt. But I’ll act here according to the rules of doubt because I decided that I’m in doubt, not because Rashba and Maimonides disagree with each other. It just so happens that Maimonides and Rashba also disagree in this passage, but that’s not the reason I’m doubtful. I’m doubtful because I myself have no position, I haven’t reached a clear position on this passage, and therefore I’m doubtful. Not because there is a dispute among medieval authorities. Therefore I don’t accept this category of a dispute among major authorities at all. It’s not relevant. It’s relevant only if I myself am in a state of doubt, and then it isn’t a dispute among major authorities but just ordinary legal doubt. So that’s another example of the importance—just a second—that’s another example of the importance of this distinction I made: before I run to check which rules of doubt to use, or what the rules of doubt say in a given situation, I first have to go through a stage in which I decide that I really am in a situation of doubt. And that decision is very important. If I haven’t made that decision, there’s no point in running to the rules of doubt. Yes.
[Speaker C] Rabbi, suppose there are two people. Both of them went through the passage and know all the sides, and they also heard the views of Maimonides and Rashba. Now, the first one went through the data exactly like the second, he knows exactly the same facts, and he feels this is the right thing, he has complete autonomy and he arrived at it on his own, he’s convinced it’s right. The Rabbi says that with him it makes no sense to talk about a dispute among major authorities. The second one knows exactly the same data, heard it, understood it deeply, and inwardly his mind is unsettled, unsettled; he doesn’t know. And then he hears Maimonides and Rashba and he’s in doubt, and the Rabbi agrees that he’s in doubt. What’s the difference between them? What are they feeling? What are they feeling—there’s nothing to know here, both of them know everything, but they feel something different in the heart. We all know what that feeling of certainty or uncertainty is. So that’s a classic example of how critical emotion is.
[Rabbi Michael Abraham] You know, I assume you can already predict what I’m going to answer.
[Speaker C] The Rabbi will call it by another name, call it intuition, call it by some other name. Exactly. But the Rabbi has visited down in the basement of the emotions; he knew how to say that this comes from the intuition wing.
[Rabbi Michael Abraham] If I visit the basement of emotions, I won’t find anything there. I visit the basements of the soul, not the basements of emotions.
[Speaker C] But Rabbi, we don’t really know what’s there. We know that it’s not something cognitive, meaning it’s not factual, it’s not—
[Rabbi Michael Abraham] It’s completely cognitive. It’s a tool by means of which I decide what is correct.
[Speaker C] But both of them know the same data.
[Rabbi Michael Abraham] So what? It’s not only the data that determine things. There’s also judgment, the weight you give to all the data and all the arguments and considerations, and in the end you come to a decision.
[Speaker C] According to your feeling. No!
[Rabbi Michael Abraham] According to your intuition. That’s not just changing the name. Again, we keep coming back to this, but it’s not just changing the name. Emotion means that there isn’t really a genuine claim here that this is true in my eyes; rather, this is how I decided because I feel that way. Arbitrarily. It’s not even a decision at all, it’s a lottery. Simply because I’m built in such a way that I feel this and not that. And I claim: no, it’s a decision. Meaning, it’s something—I’ll maybe bring an example that sharpens the point when I distinguish between intuition and emotion. What the two share is that I don’t have some explicit arguments that lead me to the conclusion. Sometimes people call that conclusion one I reached by emotion, and sometimes they call it intuition. But I’ll give you an example that illustrates the matter. I’ve already given it several times in the past. Suppose I’m working on some very complicated mathematical problem. And I sit and calculate and check and work for half a year, and the result is eight. I got to eight. Some friend comes along, looks at my page like this, all the calculations and everything, and says: ah, that’s the problem you want to solve? Yes, it’s eight, obviously. On the spot. I’m sweating blood for half a year to solve this problem, and he comes and says: ah, it’s eight, that’s obvious. So I ask him: how did you get that? How do you know? He says: I had a feeling. Meaning, emotion. Now you understand that the term emotion here is not a good term, it’s a misleading term. Why? Because if you’re talking about emotion in the same sense as emotions proper—like I love, hate, fear, I don’t know, frustration, all kinds of emotions of that sort—those emotions are not claims about the world. They’re some expression of an inner psychological state that exists within me. I’m reporting to you some psychological state that exists within me. But you understand that when he says that the solution to this problem is eight, he is making a claim about the world. Meaning: plug eight into the problem and see that eight solves it. Meaning, the fact that this comes to me from emotion—from what perhaps Shmuel would call emotion, and I would call intuition—it doesn’t matter where it comes from; the fact is that the result is a result that can be tested. Look and see, it’s a true result. That’s not the same thing as saying I love someone, or I’m afraid of someone. I’m afraid and you’re not afraid because we’re just built differently. There’s no dispute here. It’s not that there’s an argument over what I feel. I love someone, you don’t love him—that’s not a dispute. Therefore emotions are not a basis for claims about the world. The fact that I feel something is at most a report on a psychological state that prevails within me. It is not a claim about the world. And therefore I say that many times we use the expression “I have a feeling that it’s this way,” “I feel that it’s this way,” but we don’t really mean emotion. Not in the sense of emotional states. We mean intuition. Now again, I don’t care what you call it, I just want to say: there are two things here. One I call emotion, the other I call intuition. What’s important to me is to say that these are two different things. What you call them—call them Reuven and Shimon, it doesn’t matter. Okay? And my claim is that intuition is a tool for arriving at truth, even though it isn’t based on some explicit argument with premises, a logical process, and a conclusion. Rather, it is some kind of direct seeing and direct grasp of the truth. Daniel Kahneman’s System 1 and not System 2. Yes, the system that works in some instinctive, automatic way, and not in a recursive way—step by step, logical inferences, and the like. But both System 1 and System 2 are systems of thought, not of feeling. The product is a claim that I make and claim is true. It has to be tested in terms of truth or falsehood. Emotions I do not test in terms of truth or falsehood. And therefore I think that this terminology, which refers to this thing as emotion, is misleading terminology, unsuccessful terminology, and it itself creates confusion. It stems from confusion and creates confusion. Because the moment we use the same term for two things, we immediately tend to identify the two things with each other. But these are two different things. And therefore it is very worthwhile to attach two different terms to them. Yes, you know, I also spoke in the past about Whorf. Whorf was a language researcher—he learned it on his own, he was a kind of autodidact—but he wrote very central things, and people deal with them in the field of language research. And his main concern was the influence of language on thought. And the claim is that limitations of language can interfere with our ability to think correctly. Yes, if the Eskimos have 30 terms for snow, then when they look at the snow they really do see that these are two different kinds of snow. If I get there, it all looks like snow to me. Now, it’s not only that I don’t have enough linguistic richness, but as a result I also won’t discern that these are really two different phenomena. It will all look the same to me. Meaning, language in this case hinders thought. And therefore I think terminology matters. Even though you can define terminology however you like, the main thing is that we agree on the relevant term. But what is important to do is to distinguish between different phenomena and assign them different terms. Which terms? That’s already a matter of convention. But they need to be different terms. And I claim that people use the same term for two different phenomena. They call both intuition and emotion “emotion.” And that’s a shame, it’s confusing, it’s a mistake, and it’s not worth doing. And I think I gave a good example that there really are two such things. That intuition of the brilliant friend who came and told me the result is eight—that’s intuition, not emotion. Right? Because in fact you can check and see that the result is correct. That’s why I call it intuition. Emotion is something I do not judge in terms of right and wrong. You feel something.
[Speaker C] Why? It’s not always like that. Rabbi, it’s not always like that. In morality, emotion as I now understand it—certainly when I’m convinced that one ought to do A and it would be a crime to do B—I’m convinced a hundred percent, even more than by logic.
[Rabbi Michael Abraham] Then I’ll answer you that that’s intuition.
[Speaker C] Fine, this is kind of a semantic argument, but…
[Rabbi Michael Abraham] No, it’s not a semantic argument. That’s what I’m saying. You insist on using the term emotion for two different phenomena, and that’s a shame. True, it is semantic, but it’s confusing semantics, and I very strongly recommend not using it. Because you notice that you’re using the same term for two phenomena that even you agree are different.
[Speaker C] No, but that’s because I’m a positivist. I mean, what do you mean? I haven’t been in the storage rooms, in the basements of emotion. I only know that it’s something you can’t point to with your finger and say, look, do one plus one and you get two. When I’m convinced that murder is forbidden, I have no explanation, I have no argument for it, I’m convinced that murder is forbidden. I can’t do logic here, but I’m a hundred percent convinced that it’s true. So to say that this is emotion and not intuition—I don’t know, I haven’t been there.
[Rabbi Michael Abraham] Fine. What I’m saying… but excuse me, don’t skip over the last sentence. The last sentence is the only important one. Now explain to me why you call that thing emotion.
[Speaker C] Because it’s something that I can’t… it’s not science, it’s not a fact I can point to.
[Rabbi Michael Abraham] No, no, I understand what it’s not. I’m asking what it is. Obviously both emotion and intuition are things you can’t ground in an argument. Agreed. That’s what they share. But they also differ from each other. And if I say that since they also differ from each other, it’s a shame to use the same term. It’s like saying let’s describe human beings as animals. They also have limbs, breathing, blood, and so on, so they’re animals. But there’s a difference between a human being and an animal, and therefore it’s better to use different terms even though there is a similar dimension.
[Speaker C] And here it’s the same thing. Let’s say when there is AI in another five hundred years, it’ll be perfect AI, right? It’ll be able to do everything we do, but it won’t have emotion. It won’t have emotion, that’s what I believe. Nothing. And it also won’t have intuition. It won’t have intuition. So there’s some other thing there that exists in it—it’s not…
[Rabbi Michael Abraham] I have no idea, but what does that say about the relation between emotion and intuition?
[Speaker C] That they’re in the same room. I don’t know…
[Rabbi Michael Abraham] They’re in the same room, but they’re two things, two things that are in the same room. So why call them by the same name? It only creates confusion.
[Speaker C] So if, say, we were to say that there are two kinds—then I agree. There’s one kind of emotion where I eat a whipped-cream cake and it tastes good to me; I’m not claiming that I’m right and someone else is wrong. Fine. But when I say murder is forbidden, I’m convinced that the other person who says it’s permitted is wrong.
[Rabbi Michael Abraham] Right. So why use the same term? So… okay… no, it’s very important, because each time you challenge me only because of the term. Once you understand that these are two different things, all your challenges fall away.
[Speaker C] No, because it’s not a challenge as a narrative, but
[Rabbi Michael Abraham] it’s
[Speaker C] something unique in me, that without what I can’t point to—and it’s not something that exists in the world—
[Rabbi Michael Abraham] No, no, what do I care whether it exists
[Speaker C] in the world or not?
[Rabbi Michael Abraham] You’re claiming that this is a claim about the world, right? You’re claiming that it is objectively true. You demand that others also recognize that it is true. Right. Fine, so that’s not emotion. Why use the same term?
[Speaker C] But why isn’t it emotion? Does the fact that I say others should also think that mean it isn’t emotion?
[Rabbi Michael Abraham] Then call it emotion, call it whatever you want, but you understand that you’re using confusing terminology. You’re calling two different things by the same name. Why? Why insist on that?
[Speaker C] Because it belongs to the realm of the psyche, not the realm of matter.
[Rabbi Michael Abraham] Everything belongs to the realm of the psyche. What?
[Speaker C] Logic is part of the psyche?
[Rabbi Michael Abraham] There are so many things you can’t point to. If everything you can’t point to you’re going to call emotion, then I don’t know—then the idea of a triangle is also emotion. You can’t point to it. Again, I’m saying, for the most part it is
[Speaker C] emotion because you can’t point to it. Again, the robot will do all the logic of the theory of logic that ever existed in humanity, but it won’t have emotion, it won’t have either intuition or emotion. So that’s something else. It’s something that doesn’t exist in—
[Rabbi Michael Abraham] Fine, again. It won’t have intuition or emotion, so what does that say? That intuition and emotion are the same thing?
[Speaker C] But it will have logic. It’ll be perfect at logic. So what? So that means it belongs to the same arena.
[Rabbi Michael Abraham] But I repeat again, for the fifth time: it belongs to the same arena, but they are two wings of the same arena.
[Speaker C] That I agree with, there is—
[Speaker D] Emotion…
[Rabbi Michael Abraham] A human being and an animal also belong to the same arena. They’re both living things. They both have limbs, blood, and everything. So are you going to call a human being an animal? So what if they belong to the same arena? Within that same arena there are two different parts, so you need to assign each one a different term. Why confuse them?
[Speaker B] Seems to me we’ve exhausted this.
[Rabbi Michael Abraham] Okay, let’s continue. Good. So the principle is that first you have to decide, and only then apply the principles of doubt. Now let’s address the principles of doubt themselves. These principles are divided into several kinds. There are—I divided them into three kinds, actually. One kind is resolution of the doubt. Meaning, choosing the position of the correct option from among the options on the map. The second kind is conduct rules, that’s what they usually call them in the yeshivot. There are decision rules or evidence, and conduct. Conduct rules mean: I don’t decide what the correct option is, but I still have a halakhic rule that tells me which option to follow. Not because it is true, but because that is what one should do in a situation of doubt. Okay? Passive omission is preferable, a positive commandment overrides a prohibition, all kinds of decisions of that sort—these are not decisions that tell me which of the two options is correct, but what to do when I don’t know which one is correct. For example, in a Torah-level doubt one must be stringent, or in a rabbinic-level doubt one may be lenient. In both cases I remain in doubt. The doubt is not resolved, not decided. Both possibilities remain, and neither is more correct than the other, and still there is a rule that says: choose the more stringent option, if it is a Torah-level doubt. Choose the more stringent option. One must be stringent. That rule did not resolve the doubt, rather it instructs me, it gives me the conduct rule for what I need to do given that I’m in doubt. So there are decision rules and conduct rules. Okay? But there are also rules that are basically—what should I call them?—they are basically conduct rules, but conduct rules that tell me: treat this as if the matter has been decided. Even though it’s a conduct rule. So part of the conduct is to view the doubt as if it has been decided. Yes, I called this—the terminology is—there are clarifying rules, deciding rules, and conduct rules. Clarifying rules are rules that tell me which option is correct. Conduct rules are rules that tell me that all the options remain equally weighted, but still the halakhic instruction is to go with option X, okay? With that option. That is a conduct rule. A decision rule is basically a conduct rule, but the conduct rule tells me: relate to me as if I were a clarifying rule. As if the matter has been decided. Maybe I did still give this example in the last Friday lecture I gave. There is a rule discussed by the medieval and later authorities, beginning already in passages in tractate Ketubot: does the mother’s presumption help the daughter? Meaning, a man had relations with some woman, and a daughter was born from that relation. Now the question is whether that daughter is fit for priesthood, and whether the mother is fit for priesthood. So if the person who had relations with her is a disqualified priest, a mamzer, or whatever, then he disqualifies her from priesthood. But if he is a fit person, then no, she is not disqualified from priesthood. Now the question whether the mother is disqualified from priesthood is decided by presumption. Since before this relation the mother had a presumption of fitness—fitness for priesthood, that is—then this relation aroused a doubt because we don’t know who the man was who had relations with her, whether he was fit or not. But in a state of doubt we follow the original presumption. The original presumption is that she is fit, so as far as we are concerned we continue to treat her as fit. That rule is of course a conduct rule. Right? It’s not a clarifying rule. The fact that she was fit up to the stage of this relation doesn’t prove that the person who had relations with her is fit. The doubt whether he is fit or not fit remains as it was, but the halakhic instruction is to go in the direction that the person who had relations with her is fit. Not because we decided—that’s not a clarifying rule—it’s a conduct rule. But conduct rules themselves are divided into two kinds, as I said before. There is a conduct rule and a decision rule. What does a decision rule mean? A decision rule means: take the result of the conduct rule and treat it as if it were the result of clarification. As if reality itself had been clarified. It’s not only an instruction about what to do while the doubtful state remains, but rather: treat it as if the doubt itself has been decided. As if this rule were a clarifying rule, even though it doesn’t really clarify. It’s only an instruction that the conduct should be as though it clarified the doubt. An example of this: what happens regarding the daughter in that same question? Someone had relations with the mother, a daughter was born, so with regard to the mother we rule that she is fit for priesthood because she has a presumption of fitness. What happens regarding the daughter? The daughter has no presumption of fitness. Why? Because there was never any moment in which she was fit for priesthood without doubt, because she was born from this doubtful relation. So her very formation is from within the doubtful state, and therefore we don’t have—for the mother there was a stage in which she was fit for priesthood with certainty, and then there was the relation and the doubt arose. In that kind of case we follow the original presumption. But the girl has no presumption. There is no moment when she existed in the world without there being doubt whether she is fit or unfit for priesthood. From the moment she was born, the doubt whether she is fit or not fit for priesthood accompanies her. So in such a case we have no presumption to follow. What are we supposed to do in such a situation? Since we have a Torah-level doubt whether she is fit for priesthood or not, and she has no presumption, no presumption of fitness like the mother had, therefore we should go stringently: she should be forbidden to priesthood.
[Speaker B] Excuse me, Rabbi, if you go according to the third side, that it’s as if the doubt was decided, then would she also benefit from the mother’s presumption?
[Rabbi Michael Abraham] I’m getting to that, that’s the next sentence. So what I want to say is, on the face of it I should have said that the daughter should be prohibited to marry a kohen, because there’s a doubt, a Torah-level doubt is treated stringently, because there’s a doubt and there’s no prior presumption, so we remain in a state of doubt. In such a case it’s a Torah-level doubt and we should go stringently. But no, we go leniently. The daughter is also permitted. The only question is why the daughter is also permitted. And here there are two shades of opinion among the medieval authorities (Rishonim) and the later authorities (Acharonim), and in the Shema‘ata there’s even a contradiction about this between two places in the Shema‘ata. One kind of explanation says that the mother’s presumption helps the daughter. What does that mean? Since the daughter was born from the mother, just as they say “a son is like his father’s leg,” meaning the son is an extension, like a limb of the father, part of the father himself, so too the daughter is part of her mother. She was born from the mother and is, as it were, a limb of the mother. She was formed as a limb of the mother, and then when she was born she detached from her base, from the mother. In that situation, the mother’s presumption of fitness is considered the daughter’s presumption of fitness as well. Because the daughter was really part of the mother until she was born, and as long as she was part of the mother she had the mother’s presumption of fitness. And since that’s so, it’s a bit like a ben paku‘a: we slaughter an animal and find a fetus inside it; when the fetus comes out, it doesn’t need its own slaughter. The slaughter of the mother helps it too. Why? Because that fetus is considered like its mother’s thigh. It’s considered a limb of the mother. So the mother’s slaughter permitted it too, because it is a limb of the mother. Just as the slaughter permitted all the limbs of the mother for eating, it also permitted the fetus. Similarly, I want to say here: this daughter was a limb of the mother until she was born, and as a limb of the mother she was part of a body that had a presumption of fitness. Now that she’s born, it’s considered that she has the mother’s presumption of fitness, and therefore she too is permitted to marry a kohen. That’s one explanation among the medieval authorities (Rishonim). There’s another explanation that says no, the mother’s presumption does not help the daughter. But since we ruled that the mother is fit to marry a kohen, then obviously the daughter is also fit to marry a kohen. Why? Because why do we say the mother is fit to marry a kohen? Apparently because the man who had relations with her was a fit man, because otherwise she wouldn’t be fit to marry a kohen. Well then, if the man who had relations with her was a fit man, then the daughter who was born is fit too. Now of course it’s clear that the presumption by which we validated the mother didn’t actually clarify that the man who had relations with her was fit, right? It’s a conduct rule, not a clarifying rule. We just say that we must follow the presumption and validate the mother. So it’s not that the mother is factually fit; it was not factually clarified for us that the man who had relations with her was fit. Rather, halakhically, the legal rule says that we may assume she is fit, even though factually it remains a fifty-fifty doubt. And still, there are medieval authorities (Rishonim) who want to argue that since we validated the mother, it is considered as though we actually resolved the doubt from our perspective halakhically—not factually, but halakhically it is considered that the man who had relations with her was a fit man. That is the meaning of the statement that the mother is fit to marry a kohen. It basically says that the man who had relations with her was a fit man. If so, then the daughter is fit too, because it turns out that the intercourse was intercourse with a fit man. Ah, but this is a conduct rule; it doesn’t really clarify reality. We don’t really—if I had to bet on what the reality was, it remains fifty-fifty, I don’t know whether the man was fit or not fit. But there is a conduct rule here telling us: treat its result as though it were a clarification. And now that means that it has been clarified for us that the mother is fit; that is to say, as if factually the man was fit, as if factually—it’s only a legal determination, but the legal determination says: relate to reality as though it has been clarified to us that the man is fit. And if the man is fit, then the daughter is fit too. Now notice: here I validate the daughter not because the mother’s presumption of fitness is assigned to the daughter too, but because once the mother became fit, then even though the daughter has no presumption of fitness, there simply is no state of doubt regarding the daughter. Because if we already decided the doubt at the stage of the mother, then with respect to the daughter the doubt never arises. So we didn’t resolve the doubt; rather, it never arose at all. We are not in a state of doubt at all, because the mother is fit. This is an example of a rule that I’ll call a decision rule. There is a clarifying rule, which clarifies which option is correct; there is a conduct rule, which says do this, but we haven’t clarified anything, just do this, while the doubt remains in place; and there is a decision rule, which is basically a kind of conduct rule, but one whose result we treat as though it were a clarification. Like here: there is a conduct rule that we follow the prior presumption. Of course that is only a legal statement; it is not true that factually the man who had relations with her was fit. But halakhically we view it as though reality was clarified, even though the rule is a conduct rule, we treat it as a clarifying rule. It somewhat resembles another example that I think I also brought up. What?
[Speaker C] What forces us to say such a novel thing? After all, it’s a novelty. To say such a novelty. Nothing forces it; it’s a dispute among the medieval authorities (Rishonim).
[Rabbi Michael Abraham] There are medieval authorities (Rishonim) who hold this way and others who hold that way. The Talmud says that the daughter is fit. The dispute among the medieval authorities (Rishonim) is how to explain that. Some explain it by saying that the mother’s presumption helps the daughter, and some explain it by saying that the problem was automatically solved, so the daughter is fit.
[Speaker C] But it’s still not clear to me. The mother’s presumption—if we say she is fit, then the meaning of that has various implications. One implication is that she can marry a kohen, and another is that her daughter is fit; that’s part of the conduct rule that determines what she is. And since that is certainly right, why get to such a novel idea?
[Rabbi Michael Abraham] No, but it’s not a conduct rule about the mother. The doubt is about the daughter, not about the mother. The instruction about what to do with the daughter is not an instruction about the mother; it is an instruction about the daughter.
[Speaker C] But when I say the conduct rule is that the mother is fit, what does that mean? It means a great many things.
[Rabbi Michael Abraham] Only that the mother is fit in the sense that she can marry a kohen. That’s it, only that.
[Speaker C] Who says it’s only that?
[Rabbi Michael Abraham] Because the daughter is a different question; it doesn’t belong to the mother.
[Speaker C] Why isn’t that part of the meaning of the ruling you made?
[Rabbi Michael Abraham] No, the doubt about the daughter stems from the doubt about the mother, but when we decide by means of a conduct rule, we do not resolve the doubt. We only say: with regard to the mother there is a doubt, the mother has a presumption of fitness, so follow the presumption of fitness. The daughter has no presumption of fitness.
[Speaker C] No, but the woman will ask: what practical instruction follows from what you ruled and told me to do? That I can marry a kohen. But why doesn’t that also include that my daughter is fit?
[Rabbi Michael Abraham] Why should it? The daughter is a different question. Why should the mother’s presumption suddenly help the daughter? Why is it a different question? It’s the same question; after all, everything started from the mother.
[Speaker C] Again, “everything started from the mother” means—
[Rabbi Michael Abraham] It means the source of the question is the mother, but the ruling about the mother does not decide the daughter. It’s unrelated. The question about the daughter has to be decided on the basis of the daughter’s presumptions, and the daughter has no presumption.
[Speaker C] But if, let’s say, we were to say that the daughter is not fit, that she cannot marry a kohen, then we’d be facing a contradiction. As if on one hand we said the mother is fit and can marry a high priest, while the daughter is disqualified even for an ordinary kohen. There’s no contradiction at all, because the rule is a conduct rule; it’s not a contradiction.
[Rabbi Michael Abraham] In conduct there’s no problem at all, because you are not saying that the truth is that the man who had relations with her was fit. You are saying that the halakhic instruction is that she may marry a kohen.
[Speaker C] But all the way through—if you decided that she is fit, then her daughter—
[Rabbi Michael Abraham] Fit, because that follows logically. No—I decided that she can marry a—
[Speaker C] —kohen; I didn’t decide that she is fit. And that is exactly the point: a conduct rule is not a clarifying rule. And the conduct rule is limited only to the fact that she can marry, and not that her daughter—?
[Rabbi Michael Abraham] The conduct rule is not limited only to the fact that she can marry; the conduct rule is limited to questions that arise regarding the mother, because the presumption was the mother’s presumption. So the presumption can resolve only questions concerning the mother.
[Speaker C] But the mother says: part of your ruling that I am fit is that I can give birth to a fit daughter.
[Rabbi Michael Abraham] She can say that, but if she says it she’s speaking ignorantly.
[Speaker C] What’s not logical here?
[Rabbi Michael Abraham] The question about the daughter is a different question. The fact that it has the same source is irrelevant. The presumption decides not the question at its source; the presumption gives a practical instruction about what you are supposed to do. But who is “you”? “You” is the one who has the presumption, not everyone who has the same doubt. Okay, there are various examples of this, and even some contradictions among the scholars of Brisk, in the Shema‘ata for those who know it, and in Pri Chadash. There are very interesting questions around this. For example, if I remember correctly, in the Brisker literature there is a case of a non-kosher animal, I think, that was cut into two, and half of it fell into kosher meat in a proportion that nullifies it, while the other half did not. So the second half remains non-kosher, but the first half is nullified by majority, and you can’t decide about the same animal that half of it is kosher and half of it is non-kosher. So that is their question there: what do you do in such a case? Does the non-kosher half render the other half non-kosher too, and thereby prohibit the entire mixture as a result? Because you can’t validate half an animal and render half of that same animal non-kosher. Why not? Why not? After all, when I eat the whole mixture I certainly ate pork, certainly, no doubt. And despite everything, that pork is kosher. But you didn’t eat something whose legal status is pork; you didn’t eat something whose legal status is—
[Speaker C] —pork; you ate something that is pork—
[Rabbi Michael Abraham] —in reality, but here—
[Speaker C] —its law is—
[Rabbi Michael Abraham] —that it is non-kosher, not the reality that it is non-kosher; its legal status is that it is non-kosher. Because that animal is non-kosher. And therefore, again, a doubt. The later authorities (Acharonim) discuss this; I’m only saying, this is the side that is stringent here. It says you cannot decide about the same animal that half is non-kosher and half is—why not? Why not? Why not? After all, there is no factual dispute. I’m now bringing an example that supports you, and now you’re arguing with me in the opposite direction? And this example basically says what you are saying. It says: if you decide the question, then decide it in all its aspects. That is exactly what those who argue about the half-animal claim. I’m bringing it as support for you. But fine, only as an example to show that there is a lot to discuss here; I’m not going into it now. It’s only an illustration of the principle. So for our purposes, what this basically means is that we have three kinds of rules in a situation of doubt: rules of clarification, rules of conduct, and rules of decision. Okay? Rules of decision are rules of conduct, but we treat the result as though there had actually been a resolution of the doubt itself, and not merely an instruction what to do in a situation of doubt. For example, there is a rule that doubtful impurity in the public domain is pure, while in the private domain it is impure. And it makes no difference how many layers of doubt you add to it—yes, this matters for purity law—however many doubts you add, if it is in the private domain it will still be impure. And if it is in the public domain, then it will be pure. There is no difference between an ordinary doubt and a double doubt, and so on. Now, what happens if I have a doubt in the public domain—a doubt of impurity—but there is a majority in favor of leniency? It’s not an even doubt: eighty percent that it is pure and twenty percent that it is impure. And this arose in the private domain. Now, if I see the rule of majority as a clarifying rule, right? Then that rule clarified for me that this thing is pure. There is an eighty percent majority that it is pure, and the rule clarified that, from my point of view, the correct option is that it is pure. Consequently, even though this was in the private domain, I declare it pure because it isn’t even called a state of doubt, and the rule of doubtful impurity in the private domain was said only about situations of doubt. So first we have to decide that the situation is a situation of doubt, and then apply the rules of doubt to it. But in this case, since the majority clarified that the correct option is that this piece is pure, therefore even though it was in the private domain, it is not a state of doubt, and so it remains pure. But if I understand that majority is not a clarifying rule but a conduct rule, then what I am really saying is that I am still in a state of doubt, because I don’t know whether it is pure or impure. There is a conduct rule that says that if there’s an eighty percent chance that it is pure, I may assume that it is pure. Okay? But we still haven’t left the category of a doubtful situation. If that’s so, then I continue to apply here the rule that says doubtful impurity in the private domain is impure, because we are indeed in a state of doubt. The rule of majority did not clarify reality for me and did not resolve the doubt; it only tells me what to do in a state of doubt. If you are in doubt, this is what you must do. But regarding impurity in the private domain, if I am in a state of doubt then I must be stringent. And here there really is a dispute among the halakhic decisors, among the medieval authorities (Rishonim), among the later authorities (Acharonim)—there is a dispute how to view majority in this context of doubtful impurity. When there is a majority, do we still say doubtful impurity in the private domain is impure, or not? If we say it is impure, what does that mean? That majority is not a clarifying rule but a conduct rule. And therefore majority did not resolve the doubt. It did not say that the piece is pure. It only said: since you have a doubt here, if there is an eighty percent chance that it is pure, you may assume that it is pure. But we still have not left the category of doubt. This situation is still considered a state of doubt. If so, there is a sweeping rule in impurity law that doubtful impurity in the private domain is impure, and this is a state of doubt, so I must treat it as impure even though there is an eighty percent basis to declare it pure. But those halakhic decisors who say that in such a case we declare the piece pure apparently understand that the rule of majority is a clarifying rule and not a conduct rule. And if it clarifies, then that means that once there is an eighty percent chance that it is pure, I decide that it is pure and I am no longer in a state of doubt. And if I am not in a state of doubt, then this rule of doubtful impurity in the private domain stringently is not relevant.
[Speaker B] Sorry, Rabbi, why are you using the word—the medieval authorities (Rishonim) who hold that it should be declared pure even in the private domain, is that because they view it as clarifying? Keep saying that it isn’t clarification but conduct—rather, conduct that is treated as though it were decided, as you said earlier—instead of saying “clarification,” use—
[Rabbi Michael Abraham] That’s the lex specialis, but—here we have two conduct rules. On the one hand there is the majority, which tells me eighty percent pure; on the other hand there is another conduct rule that says doubtful impurity in the private domain is impure. Which of the two rules do we follow? The claim is that the second rule has priority. Why? Because it is specific to impurity. Following the majority is a rule that is true throughout Jewish law. Therefore the specific rule that deals only with impurity is the one that prevails. But of course all of that is only if I define this situation as a state of doubt. Because if I claim that the majority decided the situation and I am not in doubt, then the rule of doubtful impurity in the private domain is not relevant, because I am not in doubt.
[Speaker B] Yes, and I agree. I just wanted to note, from what I understood, that it would be more accurate to use the word “decide” rather than “clarify.” Majority—when there is a majority—it’s not that one can’t see majority as clarification, because really it isn’t clarification. It’s conduct. No, clearly—it does not reach certainty.
[Rabbi Michael Abraham] It’s related. It is clarification; it means that, as far as I’m concerned, the truth is that it is so. That does not mean I am certain it is so, but eighty percent is good enough to tell me that this is the truth. So I do call it clarification. Again, one hundred percent doesn’t exist in anything. By that definition, nothing would ever be clarification. There is no one hundred percent about anything. I think this is good enough to be called clarification; it’s somewhat related to yesterday’s class on fundamentalism. Meaning, the claim is that if I have a position that is sufficiently well grounded and my common sense tells me it is true, then that is my position. I really do think it is true. Not with certainty—I don’t have certainty—but it is not true that I have no position. I am not in doubt; I have a position. And someone who says otherwise is, in my view, mistaken. Not with certainty. It’s not that he is certainly mistaken and I am certainly right. But that doesn’t mean I have no position; I do have a position. Once I have reached a position, I am not in a state of doubt.
[Speaker D] So what is the logic of saying that in this kind of clarification, in the private domain it is impure and in the public domain it is pure? On the face of it there’s no real logic here. I would say this really is a conduct rule.
[Rabbi Michael Abraham] It’s a law given to Moses at Sinai. It’s not—these rules of doubt in impurity are a law given to Moses at Sinai.
[Speaker D] So here you would not say that it’s clarification, that it’s a clarifying rule.
[Rabbi Michael Abraham] No, it is definitely a conduct rule. My question was about majority. Is majority a clarifying rule or a conduct rule? If it is a clarifying rule, then the situation is no longer a state of doubt at all, and there is no need to apply the conduct rule that doubtful impurity in the private domain is impure. But if majority is not clarifying but rather a conduct rule, then the situation itself is still defined as a state of doubt. If so, then the principle applies here that doubtful impurity in the private domain is impure.
[Speaker D] Yes, clear. I thought you meant the rule of doubtful impurity itself.
[Rabbi Michael Abraham] No, no—the rule of majority. The discussion was about the nature of the rule of majority.
[Speaker C] Rabbi, but how can they force me how to feel? I know it’s a doubt—there’s a twenty percent chance that it’s impure. So they tell me, no, don’t feel that—it’s certain.
[Rabbi Michael Abraham] I’m not telling you how to—
[Speaker C] —feel; I’m telling you halakhically to decide. No, but what does “decide” mean? To act as though it is decided, but not to say that I don’t feel—
[Rabbi Michael Abraham] To decide, simply not with certainty.
[Speaker C] But if they ask me, are you in doubt, I am in doubt. The Torah commands you to feel that it isn’t—
[Rabbi Michael Abraham] What does “in doubt” mean? In Jewish law, doubt means fifty-fifty. Eighty-twenty is not necessarily doubt.
[Speaker C] Fine, a certain kind of doubt.
[Rabbi Michael Abraham] A certain kind of doubt from which you have extracted a decision—that, for me, is called deciding, clarifying. A certain kind of doubt—you know, I also have doubt when I throw a ball at a wall. According to quantum theory, there is some chance that the ball will pass through the wall and come out the other side. And nevertheless I allow myself to tell you that it is perfectly clear to me that the ball will not go through the wall; it will bounce back. Because the chance of that is extremely, extremely small. There too you could say: how can you say that you know? You don’t know; you estimate; it’s a feeling.
[Speaker C] No, no, Rabbi, I was in yesterday’s class. I’m not talking about complete certainty. But in that kind of situation we do feel a sense of certainty. But if I’m at twenty percent—
[Rabbi Michael Abraham] I’m not saying a sense of certainty. No, I don’t have a sense of certainty. Rather, as far as I’m concerned, in my opinion this is the truth. Without certainty—I’m not sure.
[Speaker C] A kind of practical certainty, pragmatically speaking, let’s call it that, yes?
[Rabbi Michael Abraham] You can call it that; in my view that terminology isn’t so good, but what difference does it make—call it whatever you want. But practically, I have a position, and I claim that a situation like this—or at least there are medieval authorities (Rishonim) who claim that a situation like this—is not considered a state of doubt. Doubt means you don’t know which option is correct, fifty-fifty. If you’re at sixty-forty or eighty-twenty, that is not doubt. The correct option is the one with the higher probability—not with certainty, but I can assume that it is the correct option.
[Speaker C] Suppose, let’s say, it were poison versus not poison, in some case—then clearly any normal person would feel a very, very strong doubt here; he wouldn’t dream of taking it.
[Rabbi Michael Abraham] He wouldn’t feel doubt; rather, he would be concerned about the minority possibility. True. If you ask me whether it is poison or not, the answer is: it is not poison. Would I drink it? No. Because I don’t want to take a twenty percent risk of dying. That has nothing to do with the statement itself.
[Speaker C] But why wouldn’t you drink it?
[Rabbi Michael Abraham] Because a life-risk of twenty percent is already—
[Speaker C] —enough not to drink.
[Rabbi Michael Abraham] Fine. Come on, that’s the principle. So another example that I think I also mentioned: Maimonides writes regarding the rule that one witness is trusted in matters of prohibition. So we know that in matters of forbidden sexual relations and monetary matters you need two witnesses. In matters of prohibition, one witness is enough. Now, if someone ate pork, we need two witnesses to testify to that in order to give him lashes. He is liable to lashes; he violated a prohibition. We need two witnesses to testify that he ate pork in order for us to be able to give him lashes. But to determine that this piece is pork and not kosher meat, one witness is enough, because one witness is trusted in matters of prohibition. For lashes, it’s in court, so you need two witnesses. In matters of prohibition, one witness is enough. What happens if one witness comes and testifies that this piece is pork, and now two witnesses come and testify that I ate it? I ate it literally. So now the question is whether they give me lashes. Maimonides says yes. Now on the face of it, that is not simple. Why? Because the basis for saying that this piece is pork is built on one witness. I do not have two witnesses for that. It’s one witness. So the weakest link in the chain of evidence is a one-witness link. How can I give lashes on the basis of a chain whose weakest link is only one witness? True, I have two witnesses that I ate the meat, but I do not have two witnesses that it was pork. And if I need the certainty of two witnesses in order to administer lashes, then I do not have two-witness certainty that pork was eaten here, because regarding the fact that it is pork, I have only one witness. Maimonides says that makes no difference. Why? Because the one witness clarifies; it is not conduct. And after he clarified that it is pork, then for me, factually, it is pork. And if there are two witnesses who testify that you ate it, then you ate it. So I receive lashes. Okay? So again, the same idea. In other words, if the first rule is a clarifying rule, then I do not treat the previous situation as though it is still doubtful because I merely have a conduct rule. That is to say, if the rule that one witness is trusted in matters of prohibition were a conduct rule, it would basically tell me: look, you cannot really rely on one witness. If you ask me whether it is pork or not, I don’t know; from the standpoint of Jewish law I am allowed to assume it is pork. It’s only a legal requirement, okay? Then maybe I would not give lashes, even if there are two witnesses that I ate it. Why? Because it was not really clarified to me that it is pork. For purposes of eating, I can rely on one witness; for purposes of lashes, I need two witnesses. But if I treat that one witness as clarifying, then it has now been clarified to me that it is pork. That’s it—I am no longer in doubt as to what this piece is. Once it is pork, if two witnesses come and say that I ate it, then I receive lashes. There are two witnesses that I ate pork.
[Speaker B] And again, where does Maimonides know from that one witness is clarification and not conduct?
[Rabbi Michael Abraham] I don’t remember right now what his proof is for that; you’d have to look there in the commentaries on his work. Maybe they bring proofs; I don’t remember. But that is what he says. For our purposes, I only want to emphasize: we are not learning the topic itself now. Now, there are certain rules where we really do not know their nature. Are they clarifying? Are they decision rules? Are they conduct rules? For example, what I mentioned earlier regarding majority in impurity in the private domain—even regarding majority, which perhaps I would have said is the most obvious candidate to be a clarifying rule, right? Majority is basically statistics. Just as we use statistics to clarify scientific questions, factual questions, so too statistics in Jewish law would seemingly be a clarifying tool. If I have an eighty percent majority, then that majority has clarified it. It turns out that even regarding majority there is disagreement: is majority a clarifying rule or a conduct rule? One of the places where this dispute appears is what I mentioned earlier: doubtful impurity in the private domain where there is a majority in favor of this piece being pure. I said there is a dispute whether to treat this as doubtful impurity in the private domain and be stringent, or not. And the dispute is over whether the rule of majority is seen as a clarifying rule or as a conduct rule. And you can see it in other places too, and we’ll also see later both examples and I’ll explain why. Because on the face of it this sounds strange. Statistics is a clarifying tool; statistics is not a scriptural decree. We use statistics not only in Jewish law; we use it in life too. It’s a logical rule. We use this rule to arrive at conclusions about reality. So how can one say that this is some kind of conduct rule, some kind of scriptural decree? Fine, we’ll see this later on. Now, there are very many rules that deal with instructions for what to do in situations of doubt. I mentioned some of them. The rule of majority, the prior presumption that I brought, possession—in monetary law, whoever is in possession has the upper hand—shuda de-dayyanei, meaning the judges do what they think or what they want, “the burden of proof is on the claimant” is possession, yes, that’s the same thing. Double doubt, passive omission is preferable, whoever is stronger prevails, and so on; and there are many more. Proximity, for example—the question of majority versus proximity. Say when they find a corpse, they find a corpse in a city, yes? Then there is the law of the heifer whose neck is broken, right? The elders of the city go out and bring the heifer whose neck is broken. Now, if this corpse is found between two cities—of Charles Dickens, yes, they found the corpse around here—
[Speaker D] The nearer city.
[Rabbi Michael Abraham] Right, so what determines it is the nearer city. So proximity too is basically one of the rules of doubt. Is it a clarifying rule? Is it a conduct rule? On the face of it it seems to be a conduct rule, not a clarifying rule, but maybe not, I don’t know, one can think about it. For example, there is a doubt in the Talmud in Bava Batra: what happens with majority and proximity? What does that mean? It is closer to a certain city, city A, but city B has many more inhabitants. Now when I ask myself where the murderer came from—not the dead person, but where the murderer came from, yes, we don’t know who the murderer is—on the one hand there is the nearer city, so the rule of proximity tells me that I should assume he came from city A, and it is that city that should bring the heifer whose neck is broken. But there is also the rule of majority, which tells me to assume specifically that the murderer came from city B, not city A, because city B has more inhabitants. So the discussion is: when majority and proximity conflict, which prevails? Does majority prevail or proximity prevail? A dispute in the Talmud, a discussion in the Talmud in Bava Batra. So here too these questions arise: what is the nature of these two rules? Is the rule of proximity clarifying or conduct? Is the rule of majority clarifying or conduct? Because, for example, there is a kind of priority of clarifying rules over conduct rules, as I said regarding doubtful impurity in the private domain. Why? Because let’s say I have a certain situation and there is both majority and proximity there, and let us assume for the sake of discussion that majority is a clarifying rule and proximity is a conduct rule. Let’s assume that for the sake of discussion; that is also the common approach. But for the sake of discussion, which would prevail in such a case? I have majority against proximity, yes? It is close to the small city and far from the larger city. Which prevails?
[Speaker B] Then the majority, if it is clarification.
[Rabbi Michael Abraham] Why would the majority prevail?
[Speaker B] Because it’s clarification. So what?
[Rabbi Michael Abraham] Then there is no doubt. So there is no more doubt.
[Speaker B] No more doubt.
[Rabbi Michael Abraham] Exactly. Because a clarifying rule is a rule that doesn’t tell me what to do; it resolves the doubt. So once I have a majority, the situation is not a situation of doubt. If I have no doubt, then there is no rule of proximity. The rule of proximity tells me what to do if I am in doubt. Remember Rabbi Yonatan Eybeschutz? Meaning, I go after rules of doubt after I have decided that I am in a situation of doubt. But if there is a clarifying rule, then that rule is basically telling me: you are not in a situation of doubt. If so, then all the conduct rules fall away; they are not relevant. Because those rules speak about what to do when I am in doubt, but if I have clarified the situation, then I am not in doubt, so why do I need conduct rules? Therefore a clarifying rule prevails over a conduct rule. For example, that is one of the implications of this discussion—whether these rules are clarifying or conduct rules.
[Speaker C] But proximity also seems like something clarifying, no?
[Rabbi Michael Abraham] Fine, okay, no, I was only giving an example. I said one can discuss it. But as an example: if this is conduct and that is clarification, then clarification prevails. Okay? Another point I want to raise here: where do conduct rules come from? On the face of it, clarifying rules can come from logic. If there is a majority, then statistics—there is logic in that. I don’t need verses to tell me that, even though with the rule of majority they do bring verses, and we’ll talk about that too. But in principle, if it is a logical rule, then it is logical; it comes from logic. I don’t need a source in order to apply a logical rule. But conduct rules—yet it turns out that this is not always so. There are rules that are conduct rules, and still they do not need a source; they come from reasoning. Only this reasoning is not clarifying reasoning; you could call it legal reasoning. The reasoning does not say that option A is more correct, but there is reasoning that says to follow option A even though it is not more correct, and that is reasoning, not a verse. Meaning, there is a consideration telling me to prefer option A over option B, and that consideration is a conduct rule, not a clarifying one, because it still remains fifty-fifty. And nevertheless it has no source; it comes from reasoning. Maybe I’ll give some examples. For example, “the burden of proof is on the claimant.” “The burden of proof is on the claimant” is a conduct rule. The fact that I am holding something does not mean it is mine. Why assume that specifically the claimant is the liar and not the possessor? There is no reason. And I discussed this in the past: there is a presumption in Jewish law that whatever is in a person’s possession is his—not connected to here. Because if we did statistics on all the things in the world, whether they are in the possession of their owners or not, yes, we would discover that most things are in the possession of their owners. There is a presumption that whatever is in a person’s possession is his. But when we focus on the subset of objects concerning which there is a legal dispute, there it is no longer clear that in most cases the possessor is right. Why assume that possessors are more truthful than claimants? There is no reason. Therefore, in this case, this rule is a conduct rule; it is not a clarifying rule.
[Speaker C] But is that a conduct rule in the laws of doubt, or a conduct rule in managing a trial?
[Rabbi Michael Abraham] It doesn’t matter—legal doubts, monetary doubts. Right, it’s only in monetary contexts, but it is still also about doubts.
[Speaker C] As if the reason is that we don’t enter into discussion if it is in his possession.
[Rabbi Michael Abraham] One moment. So now the question is: what is this reasoning? So here’s the point. In ordinary legal systems, not in Jewish law, there are also rules like this. In every legal system there is also a rule that the burden of proof is on the claimant. The burden of proof is on the plaintiff. This is not only in Jewish law. Legal systems adopt it apparently because it makes sense, because they are not relying on verses. In Jewish law too, by the way, the Talmud brings in tractate Bava Kamma 46, I think, the Talmud discusses there where we know that the burden of proof is on the claimant. The Talmud brings a verse: “Whoever has a case shall approach them.” And after that it says: “Why do I need a verse? It is logical.” Why do you need a verse? It’s logic. Meaning, the Talmud sees this rule as a rule that emerges from logic; you don’t need a verse for it. Even though they bring a verse, the Talmud says: why did you bring it? No need, it comes from logic. And more than that, as I said, legal systems around the world also adopt this rule. Now for them there are no scriptural decrees. They won’t adopt a rule if it isn’t reasonable. Now the logic of this rule is not probabilistic logic. It’s not that this rule hints that the current holder has a higher chance of telling the truth than the claimant. No, there is no such chance; statistically that’s not true, at least in my opinion. So then what does it mean that there is logic in this rule? There is legal logic. The legal logic says: it is proper to run legal systems in such a way that in order to take money away, you need to bring proof, not in order to keep the money. That makes more sense, it streamlines the legal system, it makes things harder for perhaps rash plaintiffs, or liars, whatever. You can offer all kinds of legal explanations for why it is worth adopting this rule, even though, again, if you ask me what the truth is—fifty-fifty. This is a rule of conduct, not a clarifying rule. But it is a rule of conduct that emerges from logic. About this too I wrote in several places; in the “Kuntres Amigo” I wrote an entire appendix about the concept of legal reasoning. And I want to argue that in Jewish law, unlike legal systems, there is another type of legal reasoning. In the legal world, legal reasoning is mainly of the type of legal efficiency, legal certainty, the most efficient and proper way to run a legal system. Even though this is not probabilistic reasoning, it is not reasoning that says so-and-so is right and the other person is not, but it is reasoning that says it is fitting that so-and-so should prevail in court, even though there is not actually a higher probability that he is right; still there is legal reasoning to rule in his favor, for one kind of legal reason or another. In Jewish law there are… legal reasonings that are not of this type of efficiency or legal certainty, but simply because that is what is right. An example of this—I wrote about it in the Kuntres Amigo. An example is migo, migo as strength of claim. What is migo as strength of claim? In the Talmud, one of the laws of evidence, one of the evidentiary tools within the laws of evidence, one of the proofs is called migo. Migo means this: I make claim A, which is not such a strong claim. I have claim B, which I also could have made, and it is stronger, so they say to me: why would I lie? Think about it: I make claim A, it is weak. Do you think I’m lying? If I wanted to lie, I would have lied with claim B, which is stronger. What am I, stupid? If I’m already lying, then I choose the best claim. Therefore, apparently, if I chose claim A, which is weaker, apparently I’m telling the truth. That is the proof called migo. Migo literally means “since” in translation: since I could have made claim B, I’m believed regarding claim A, the weaker claim. But later authorities proved in several places that migo has another aspect too; this is called strength of claim or strength of credibility, and it means that even where the proof does not exist—the proof that says if I wanted to lie I would have lied better, that reasoning I brought before—that is probabilistic reasoning. Right? That is probabilistic reasoning. That reasoning basically says that in fact most likely I am telling the truth, because if I were lying this would not make sense. So ordinary migo is completely probabilistic reasoning. It is not conduct; it is clarification through and through. But there are places where migo does not clarify, for example an audacious migo. An audacious migo is when I make claim A, which is weak, but claim B, the stronger one, would be very brazen to make in front of the claimant. For example, if he lent me money and I say to him, “It never happened,” that is an audacious migo. I say, “Excuse me, I repaid you.” I could have denied the loan altogether, because he brought no witnesses; I could have said, “You never lent me anything; you’re lying.” That is called an audacious migo. Why is it an audacious migo? Because a person does not brazenly deny his creditor to his face. He did me a favor, he lent me money, so I’m not comfortable lying to his face and saying, “It never happened, you never lent me anything.” So even though the claim “I repaid you” is weaker, I have a reason why I make that claim rather than saying “it never happened” and that you never lent me anything. In that situation, you don’t have the consideration of “why would I lie,” that if I wanted to lie I had a better claim, and therefore you ask: why didn’t I lie with that stronger claim? Apparently because I’m telling the truth. That’s not correct. Why didn’t you lie with it? Because it would have been unpleasant for you. I have another reason why I didn’t lie with that claim, and therefore you don’t have proof that claim A is true, the claim you are making, the weaker claim. So in an audacious migo there is no evidentiary dimension of the sort that exists in migo. And still, an audacious migo nevertheless has legal weight in Jewish law; for example, to exempt a person from an oath it apparently does help, at least according to some of the medieval authorities (Rishonim). It does not help to retain money, but it helps exempt me from an oath. Now how can that be? After all, there is already nothing there—once there is no proof, what does it mean that I have a migo? So what if I could have made claim B? The fact that I could have made claim B means nothing. Only the consideration that if I wanted to lie I would have had a better lie—but that consideration does not exist in an audacious migo. So there is no probabilistic reasoning here, so why does the migo still give me more strength? So the later authorities define this as migo as strength of claim. What does that mean? If I have claim B, which is strong, and I make claim A, which is weak, they give me the force of claim B even when I make claim A. Whatever I could have gained had I made claim B, I gain even when I make claim A. That is the rule of migo as strength of claim, and it exists even where there is no evidentiary dimension of the kind that exists in migo. Rather, the mere fact that I could have made claim B—even though it is not really better, because after all it would be brazen to make it—but if it could have brought me greater legal advantages, I get those advantages even with claim A. That is called migo as strength of claim. Now this reasoning, this thing, has no source from the Torah for migo. “The mouth that forbade is the mouth that permitted”—again, there too there is a source, and there too they ask: why do I need a verse? It is logical. But “the mouth that forbade” is something a bit different. In ordinary migo I have no source; it is logic. Now how does ordinary migo emerge from logic, from “why would I lie”? That I understand. That is simple reasoning: if I wanted to lie, I would tell the better lie, right? You don’t need a verse for that. But when that reasoning does not exist, why on earth should I get the advantages of claim B if I am making claim A, and when the reasoning of “why would I lie” is absent? And this does not come from any verse; it is reasoning of the Sages. How? And here too, apparently there are no legal considerations. Efficiency and legal certainty—in ordinary legal systems you would not get any strength in claim A with an audacious migo, meaning if it has no evidentiary dimension. But in Jewish law, yes. Why? Because there is some reasoning that says you deserve the maximum force of the best claim you could have made. There is some such reasoning; I call it legal reasoning. I can explain it more, but I won’t get into it here, I’m just bringing it as an example. This is legal reasoning. On the one hand it is not probabilistic. On the other hand it is reasoning, meaning you don’t need a verse for it. But on the third hand, it is not legal reasoning like what we find in ordinary legal systems—that is, legal efficiency or legal certainty and so on. No, it is reasoning in the sense that this is the proper way to act, not that this is the truth—meaning, not that if you claim this you are probably right. No, there is no proof that you are right. But still, legally it is proper specifically to rule in your favor, that you should be the one who prevails in court. Why? It is true that it is not probabilistic. There are no considerations of legal efficiency or anything like that. And nevertheless, the reasoning yields that this is the proper way to act. That is what I call legal reasoning. And I won’t go further into that because it requires a whole lecture of its own. Whoever wants can look at the Kuntres Ha-Sfeikot on my website; there I try to explain it. In any case, that is regarding rules of decision. There is perhaps one more comment I want to make here. On the face of it, a question really arises, for example, regarding the rule that a Torah-level doubt is ruled stringently, or a rabbinic-level doubt leniently. Why do certain rules at all allow me to be lenient in cases of doubt? Why not always be stringent? If it were poison, as Shmuel asked earlier, right? If I had a piece of meat and there was an eighty percent chance that it was kosher and a twenty percent chance that it was non-kosher, I am allowed to eat it according to the law. What would happen if there were an eighty percent chance it was not poison and a twenty percent chance it was poison? You wouldn’t eat it, right? So why, if I also treat a prohibition as a kind of poison—because if I ate something prohibited then I did something bad, I damaged something. That is basically like poison; that is how Rabbi Shimon Shkop relates to it. So in fact one ought to be stringent in every doubt, even if it’s eighty-twenty, just as I behave regarding poison. Why be lenient? In other words, the basic question in the laws of doubt is why there are laws of doubt at all. Why not just say: forget it—if there’s doubt, no doubt, always be stringent. Don’t get into problems, distress, concerns that you might commit a prohibition, and so on. Always be stringent, and that’s it. There is a book by Alberthal that someone gave me to read a while ago about the laws of doubt, and he really says something there that I think is fairly simple. He says basically—he phrases it one way; I think there is another way to phrase it. He says basically it comes to enable us to function. If we had to be stringent with every tiny doubt we have, the world could not function. You always have some side of doubt where, wait, maybe it’s this way and maybe it’s that way, and who knows—you wouldn’t be able to do anything. In other words, the world could not function. And in order for the world to function, Jewish law is willing to let you take risks of transgressing a prohibition. If there is a sufficient majority, then you can pass over that prohibition. I would phrase it a bit differently. I would say, for example, nullification by majority, right? Suppose a piece of pork fell into a pot with pieces of kosher meat. Then there is nullification by majority. Now why? If it were poison, you would not say nullification by majority—you wouldn’t eat anything. So pork is poison, spiritual poison, don’t eat anything. Why allow nullification by majority? The answer, I think, is that the Torah cares about the property of the Jewish people. After all, if you don’t allow nullification by majority, that means I lose all the kosher pieces of meat just in order to avoid eating one piece of prohibited pork. And the Torah does not require of me that level of sacrifice. The Torah wants to allow me to function, as Alberthal writes, or wants to allow me not to lose too much money in order to keep Jewish law. And so it says: look, if you have a majority of what is permitted, that nullifies the pork. And the idea behind this is that in order not to eat one prohibited piece, what you are required to pay is up to one permitted piece. If you have to lose two permitted pieces in order not to eat one prohibited piece, that is too great a loss. That is not demanded of you. Therefore, if there is a majority of permitted pieces, it nullifies the minority of prohibited food. That is the reason there are laws of doubt in the world. The laws of doubt come to tell me basically when to be lenient, not when to be stringent. When they say that a Torah-level doubt is ruled stringently, that is not really saying anything at all. That is what I would do even without the laws of doubt. I would be stringent in anything where there is concern, where there is doubt, where there is concern that I might transgress a prohibition. The purpose of the laws of doubt is to tell me when I can be lenient. When I have a law of doubt that tells me to be stringent, it is basically saying: here there are no special laws of doubt. Be stringent—meaning, do what you would do without the laws of doubt. The purpose of the laws of doubt is always to be lenient. That is basically the idea. Now. Eran?
[Speaker D] Yes, it seems to me that in the series on Platonism we talked about this—that in Torah prohibitions there is something, there is room to be stringent because there really is some actual defect in reality.
[Rabbi Michael Abraham] As opposed to—
[Speaker D] In rabbinic doubts, where there is no such thing, it’s not really—if you sinned you didn’t really damage anything. So what is novel in the policy of saying that a Torah-level doubt is ruled stringently?
[Rabbi Michael Abraham] There really is nothing novel there; that is exactly the point. That is what I just argued. All the doubts where they tell me to go stringently are no novelty at all; even if there were no laws of doubt I would be stringent.
[Speaker D] But with leniency too, it’s the same thing.
[Rabbi Michael Abraham] Why? Like what?
[Speaker D] Nullification by majority.
[Rabbi Michael Abraham] Leave aside a rabbinic-level doubt ruled leniently. What about nullification by majority? It says there is a novelty here, right? Yes—that you can eat all the pieces, including the piece of pork. Yes, that is good enough. A rabbinic-level doubt ruled leniently may be that that itself is what it comes to teach: that in rabbinic law there is no essential problem, only an obligation on the person. And therefore indeed a doubt is ruled leniently.
[Speaker C] But in Torah law, where there is an essential problem, where it dulls a person’s soul, then how can you, for the sake of a few shekels, go and say, fine, let the soul be dulled?
[Rabbi Michael Abraham] The halakhic decisors disagree on the question whether, when I relied on a rule of doubt and was lenient, if I then ate prohibited food, does it still dull the soul.
[Speaker C] Does that make sense?
[Rabbi Michael Abraham] There is a passage in tractate Ketubot, page 60, about an infant nursing and continuing on. There is a comment there that deals with this, and the Shakh and all the commentaries on the Shulchan Arukh in Yoreh De’ah regarding an infant nursing from a non-Jewish woman are discussing precisely this question. There are disagreements there on this matter. Many later authorities (Acharonim) want to say that in a place where you did something that is not halakhically forbidden, there will be no dulling of the soul either. How so? Because the dulling of the soul is a spiritual matter. If you did not commit a transgression, then there is no dulling of the soul.
[Speaker C] What do you mean? Isn’t it something immanent in the thing itself?
[Rabbi Michael Abraham] It is something that is a result of the transgression alongside the thing, not of the action itself that you did.
[Speaker C] So then it’s like in rabbinic law—there is no real problem in reality here, it’s just a problem in conduct.
[Rabbi Michael Abraham] No, there is a real problem here. What do you mean, there is no real problem?
[Speaker C] In reality or not in reality? Not in physical reality.
[Rabbi Michael Abraham] Because there is a real problem, therefore there is a prohibition, and when you obey, you do not transgress the prohibition.
[Speaker C] But if reality did not change, only the prohibition was permitted because of some reason, then regarding the dulling of the soul—
[Rabbi Michael Abraham] Regarding the dulling of the soul—there is a real problem in the prohibited matter, but what dulls the soul is not the real problem in the prohibited matter itself. Just one more comment and I’ll finish here. There is a law called “something that will later become permitted.” What does that mean? In the laws of doubt—for example a rabbinic-level doubt ruled leniently, or nullification by majority, where we go leniently—if this is a prohibition such that if I wait a bit of time it will lapse, meaning there will no longer be any prohibition, then we are stringent. There is no nullification by majority in such a prohibition, and if it is a rabbinic-level doubt, we are still stringent. For example, if I have a doubt whether something is muktzeh or not. It is a rabbinic doubt; a rabbinic doubt, ostensibly, should be ruled leniently. There is a dispute, but just for the example. A rabbinic doubt is ruled leniently, but after the Sabbath this thing stops being muktzeh; I can use it completely. There we do not say that a rabbinic doubt is ruled leniently. They tell me: wait until after the Sabbath and then use it. Why permit you to use it on the Sabbath when you are in doubt? Wait until after the Sabbath and then you are taking no risk at all; you can use it calmly. The same with nullification by majority. If you have nullification by majority regarding chametz, okay? On Passover that chametz is prohibited, but after Passover it is permitted by Torah law. Chametz that remained over Passover is only rabbinically prohibited. So after Passover it is permitted. So basically this is “something that will later become permitted.” Therefore even on Passover it is not nullified. Why? Because why should we permit it to you under the law of nullification? Wait until after Passover and then it will be completely permitted; you will not need the law of nullification. Or in the language of the medieval authorities (Rishonim), Rashi in Beitzah and elsewhere says: “Instead of eating it in a prohibited state, eat it in a permitted state.” And what is that really saying? What it is really saying is that even when there is nullification by majority, that does not mean there is no problem here. You can eat everything, fine—nullification by majority. Because the law of “something that will later become permitted” basically says: why resort to the leniencies of nullification by majority and the laws of doubt? Wait until after the Sabbath and then it will be entirely permitted without resorting to those leniencies. But if those leniencies are complete permission, if it is fully permitted and there is no prohibition at all, then why should it matter that I resort to those leniencies? It is only because this is apparently viewed like something deferred, meaning basically you are allowed to eat it, but it is still problematic. And if you can wait until after the Sabbath and eat it without any problematic aspect, then wait until after the Sabbath. Why permit you to eat something problematic? So we see there is something problematic here, right? And that sharpens the question even more: if it is problematic, then why really do they permit eating it through nullification by majority? Now in a case where it will not later become permitted, in an ordinary case, it is problematic. The problematic aspect is there. This is not smooth, complete permission. So why permit it? We are forced to say because of what I said before: that the Torah cares about the property of the Jewish people, or wants to let us function in reality, and therefore the laws of prohibition and permission, the laws of doubt, basically come to allow us not to lose a great deal of money, to allow us to function in reality, and therefore they are lenient in various places. There are places where they are not lenient; that is no novelty at all. It remains as if there were no laws of doubt, in which case we would be stringent in everything. The laws of doubt always come to introduce leniency, not stringency. Okay? Fine, I’ll stop here.
[Speaker B] Sorry, Rabbi, it seems to me that the Rosh says in Chullin that one piece among two pieces means everything is kosher, so according to his view, if I remember correctly, everything is kosher; it’s not that some problem remains, everything is kosher.
[Rabbi Michael Abraham] “Everything is kosher” can still be only a deferred permission. “Everything is kosher” is only with regard to whether you need to leave one piece at the end and not eat it.
[Speaker B] That’s what he rejects—
[Rabbi Michael Abraham] He says you can eat everything.
[Speaker B] Yes, according to those medieval authorities (Rishonim) like the Rosh, that means there is no problem at all.
[Rabbi Michael Abraham] But it can still be only a deferred permission. Only the law is deferred and you can eat everything, but it is still deferred. If you could eat it without resorting to the law of nullification by majority, then even according to the Rosh they would tell you: wait and eat it in a permitted way. True, if you do not have the option of waiting and this is the current situation, then he says that the law of nullification by majority permits you to eat everything. And that is only as long as you have no way to eat it in a permitted way. Okay? Any other comment or question? Okay. Good tidings, good night, goodbye. Sabbath peace.
[Speaker C] Thank you very much.