Doubt and Probability — in Halakha, Thought, and Beyond — Lesson 25 — Rabbi Michael Abraham
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- States of doubt, rulings, and majority
- Presumptive possession, presumptions, and a non-representative sample
- Reverse conditional probabilities and errors of inference
- The rule of fixed status as a qualification on the laws of majority
- Meat shops: separated versus fixed
- Searching for a source for the rule “whether leniently or stringently”
- An intermediate note on impurity, majority, and double doubt
- A Torah-level source for the rule of fixed status: throwing a stone
- The need for an explanation of the rule of fixed status, and rejecting “a scriptural decree” without reasoning
- The poison test and rejecting a probabilistic explanation of fixed status
- Legal reasoning versus probabilistic reasoning
- The application of fixed status mainly in a majority that is present before us
- A first explanation of fixed status in the name of Rabbi Gordin: a question about the whole set versus a question about an individual item
Summary
General overview
The speaker summarizes what has been learned so far about states of doubt, types of rulings, and the rules of majority as tools that seem naturally suited to probabilistic language in Jewish law, and emphasizes the distinction between absolute probability and conditional probability and the errors that arise from confusing them. He argues that the presumption that “what is in a person’s possession is his” cannot ground the rule that “the burden of proof rests on the one seeking to extract from another” by means of statistics about all objects, because legal disputes create a non-representative subset in which there is no justification for assuming the same distribution as in the general population. He then returns to the laws of majority and presents the rule “anything fixed is treated as half-and-half” as a qualification on majority, brings its sources from passages in tractate Ketubot, impurity, and homicide (throwing a stone), and asks why fixed status differs from separated status if the probability is ostensibly the same. He rejects an explanation of “a scriptural decree” without reasoning, rejects probabilistic explanations by means of the “drinking poison” test, and argues that the explanation must be a “legal reasoning” rather than a probabilistic one. He concludes by bringing a first explanation in the name of Rabbi Gordin, based on the distinction between a question about a whole set and a question about a particular item.
States of doubt, rulings, and majority
The speaker explains that the discussion progressed from states of doubt in general to types of rulings and different decision rules, and eventually to the laws of majority, which seem to be natural candidates for probabilistic or statistical tools in Jewish law. He states that there is a basic distinction between a majority that is present before us and a majority that is not present before us, and explains why a majority in a religious court is considered present before us. Within this framework he also discusses conditional probability, Bayes’ formula, and probabilistic errors that result from confusion between absolute probability and conditional probability.
Presumptive possession, presumptions, and a non-representative sample
The speaker presents the standard explanation of presumptive possession, according to which the burden of proof falls on the claimant, along with the slogan “what is in a person’s possession is his,” and argues that this presumption is not connected to the rule of presumptive possession in any probabilistic sense. He formulates “what is in a person’s possession is his” as a possible statistical claim about all objects in the world, but argues that one cannot infer from it to the subset of objects that are the subject of legal dispute. He explains that within the subset of disputes there is no basis for assuming that the ownership distribution resembles the distribution in the population at large, because both sides enjoy a presumption of reliability and there is no reason to assume that the claimant is more of a liar than the defendant. Therefore, for purposes of the discussion, the probabilities there are fifty-fifty rather than ninety-ten. He concludes that “what is in a person’s possession is his” cannot serve as a statistical basis for the rule that “the burden of proof rests on the one seeking to extract from another.”
Reverse conditional probabilities and errors of inference
The speaker mentions additional examples that were learned, including examples related to proofs for the existence of God, in order to emphasize that the relation between the conditional probability “P(A|B)” and “P(B|A)” is not symmetric. He argues that these are different questions, and one must be careful not to infer from one to the other.
The rule of fixed status as a qualification on the laws of majority
The speaker returns to the laws of majority and presents another rule: “anything fixed is treated as half-and-half,” as a qualification on the rule of majority. It says that majority applies only when the item is not fixed in its place, but when the item is fixed in its place one does not follow the majority. In other words, the rule of fixed status is a qualification on the laws of majority. He notes that the Talmudic case of meat is a central example of this distinction, and points to the main discussion in Ketubot 15a.
Meat shops: separated versus fixed
The speaker describes a case of ten shops, nine kosher and one non-kosher, and distinguishes between a piece of meat found lying in the street and a piece taken from one of the shops without knowing from which one. He explains that when the piece “separated” and was found outside, the rule is “anything that separated is presumed to have separated from the majority,” and therefore one follows the majority and permits it as a matter of basic law. But when the doubt arises with respect to taking it from the shop while it was “in its place,” the rule is “anything fixed is treated as half-and-half,” and the situation is viewed as an even doubt. He adds that for a Torah-level matter one rules stringently in such a case, even though most of the shops are kosher, and stresses that the rule of fixed status is a substantive rule “whether leniently or stringently,” so that even in the reverse case of nine non-kosher shops and one kosher one, the rule creates a fifty-fifty status and can lead to leniency.
Searching for a source for the rule “whether leniently or stringently”
The speaker describes the Talmud’s question, “From where did Rabbi Zeira derive this?” and explains that the proposed source from the nine shops is not sufficient as a source for “whether leniently or stringently,” because it teaches only a case that leads to stringency. He shows that the Talmud then turns to a source from impurity: nine frogs and one creeping creature, but that too appears only to lead to stringency, so the Talmud brings the reverse case of nine creeping creatures and one frog. He explains that in that case, in a private domain the doubt is impure and in a public domain the doubt is pure, and emphasizes that the purity in a public domain proves the rule of fixed status, because without fixed status one would have had reason to declare impurity on account of the majority of creeping creatures.
An intermediate note on impurity, majority, and double doubt
The speaker sharpens the point that the rule “in a private domain, impure; in a public domain, pure” is stated when the case is an even doubt, and notes that in a case of majority one would have declared impurity even in a public domain were it not for the rule of fixed status. He compares a case of statistical majority to a case of double doubt, which also creates a high probabilistic rate, and concludes that this indicates that the system does not really operate statistically, despite the probabilistic similarity. He defines this as a parenthetical remark that is not central to what follows, but may return later.
A Torah-level source for the rule of fixed status: throwing a stone
The speaker brings the Talmud’s question, “And from the Torah, from where do we know it?” and presents a source from the verse “and lies in wait for him and rises up against him,” in the context of the passage about a murderer. He explains the exposition “excluding one who throws a stone into a group,” and the clarification of the case: if there are nine Canaanites and one Jew, there is no need for fixed status because the majority indicates that he did not intend to kill a Jew; and if it is half and half, in capital cases one rules leniently. He says that the necessary case is nine Jews and one Canaanite, where without fixed status the majority would point toward liability, but because the Canaanite is “fixed,” it becomes “as if half-and-half,” creating a capital doubt that leads to leniency and exemption. In that way the rule of fixed status is shown to work leniently as well.
The need for an explanation of the rule of fixed status, and rejecting “a scriptural decree” without reasoning
The speaker asks why the fixed case differs from the separated case if ostensibly the probability is the same, and argues that the explanation of “a scriptural decree” is not satisfactory here, because the law is not written explicitly but emerges from exposition, so the very exposition presupposes some underlying reasoning. He argues that when a law emerges from exposition, “there is no such thing as not expounding the reason of the verse,” and that in expositions “we always expound the reason of the verse,” whereas the dispute over “we do not expound the reason of the verse” belongs to matters stated explicitly. He brings an example from the Meiri on “a son and not a daughter” in the case of the stubborn and rebellious son, and presents the claim that reasoning alone is not enough to create a new Torah-level law, but once there is an exposition one may explain the rationale that lies behind it.
The poison test and rejecting a probabilistic explanation of fixed status
The speaker argues that it is implausible that there is a genuinely probabilistic explanation that turns fixed status into 50/50, and he brings a practical test involving cups of poison and water to show that applying fixed status as a half-and-half probability leads to absurd rulings regarding risk. He says that if the explanation were probabilistic, one should choose based on 70/30 rather than 50/50, and therefore anyone proposing a probabilistic explanation has to be prepared to “drink poison” on the basis of that assumption. He concludes that there must be a rationale, but it is not probabilistic; rather, it is “formal” or “legal.”
Legal reasoning versus probabilistic reasoning
The speaker defines a distinction between a “logical proof” that increases the probability of truth and a “legal reasoning” that justifies a ruling without claiming a higher probability. He uses the example of miggo, the strength of a claim, as a possible proof and explains that one can see it as a legal advantage even without claiming that it makes it more likely that he is correct. He returns to the example of “the burden of proof rests on the one seeking to extract from another,” and presents a legal explanation according to which a religious court does not act without reason. Therefore, the claimant, who seeks to change the existing state of affairs, must bring proof, while the defendant is not required to supply a reason “not to act.” He places the rule of fixed status within that same expected framework of legal, rather than statistical, reasoning.
The application of fixed status mainly in a majority that is present before us
The speaker reports that the commentators say the difference between fixed and separated applies only in a majority that is present before us, and not in a majority that is not present before us. He notes that there are dissenters, but this is the view of almost all the commentators. He suggests that this fact may serve as a clue to the underlying reasoning behind the distinction.
A first explanation of fixed status in the name of Rabbi Gordin: a question about the whole set versus a question about an individual item
The speaker brings an explanation in the name of Rabbi Gordin, according to which when a piece separated and the finder asks “From which shop did it come?” this is a question about the source shop within the set of shops, and therefore the majority determines the character of the set and thus the ruling. But when a person takes from the shop and does not know from which one, the question is not about the character of the set but about the specific shop or the concrete item before him, and there there are only two possibilities with no preference, so the result is half-and-half. He quotes a formulation of this idea according to which, in a majority that is present before us, the survey is not a “factual clarification” but “a device intended to determine the character of the place,” and reliance on majority is “by way of guidance, not by way of clarification.” He notes that this is close to, though not identical with, Rabbi Shimon Shkop’s claim that a majority that is present before us is a formal rule rather than a probabilistic one. He concludes by referring to column 237 on his website, together with a reference to an article by Rabbi Gordin, and says the discussion will continue in the next lecture.
Full Transcript
[Rabbi Michael Abraham] So really, what we’ve done until now is this: I talked about states of doubt in general, I talked about different kinds of rulings in situations of doubt, different kinds of decision rules. In the end we arrived at the rules of majority, which are really the natural candidates to serve as probabilistic or statistical tools in Jewish law. We saw that there are a few kinds of majority: a majority that is present before us and a majority that is not present before us, basically. I explained the difference between a majority that is present before us and one that is not present before us. We saw why a majority in a religious court is considered present before us, and after that I moved to conditional probability, Bayes’ formula, conditional probability, and a great many errors or probabilistic fallacies that come from mixing up absolute probability and conditional probability. We saw all kinds of mistakes, right? Let me remind you, for example, of the issue of presumptive possession. Usually they explain the advantage of the possessor by saying that the burden of proof is on the claimant, and if there is no proof, the object remains with the possessor. Why? Because there is a presumption that what is in a person’s possession is his. And I said that this presumption has nothing to do with the law of presumptive possession. The fact that there is a presumption that what is in a person’s possession is his—let’s call it a majority for the sake of discussion, not a presumption—means that if I were to look at most objects in the world, most of them are in the hands of their owners. That’s true. If I do statistics on all the objects in the world, most of them are in the hands of their owners. But when I have a dispute between two people over a particular object, and Reuven is holding that object and Shimon is claiming it, can I infer from this that most likely the object really belongs to Reuven because it’s in his possession, and what is in a person’s possession is his? I said no, because when I do statistics on most of the objects in the world, then yes, most of them are in the hands of their owners. But now I’m focusing on a subset of those objects—those objects for which there is a legal dispute. In that subset there is no reason to assume that the probability or the distribution between the chance that it belongs to the one who is holding it and the chance that it does not belong to the one holding it is the same as the distribution among all objects. Say ninety percent of objects are in their owners’ possession—does that mean the chance that the possessor is right is ninety percent? Of course not. Why should we assume that the claimant is lying and the defendant is not? Both of them have a presumption of reliability, and I have no basis to assume that this one is the liar or that that one is the liar. That means that among those objects, in that subset of objects over which there is a legal dispute, the distribution between the two possibilities—whether the object belongs to the person who currently has it, the possessor, or whether it does not belong to the person who has it—is, for our purposes, fifty-fifty, not ninety-ten as it is among all the objects in the world. In other words, this sample of objects over which there is a legal dispute is not a representative sample; the distribution within it is not like the distribution in the population as a whole. And therefore the presumption that what is in a person’s possession is his cannot ground the rule that the burden of proof rests on the one seeking to extract from another, meaning the advantage of the possessor. And so on. We saw many more examples, including proofs for the existence of God and many things that dealt quite a bit with the relation between reverse conditional probabilities, right—P(A|B) and P(B|A). And the claim is that these are different questions, and you have to be careful not to infer from one to the other. Okay, so that’s more or less, in a nutshell, what we’ve done until now. What I want to do now is to return to the laws of majority in Jewish law. In the laws of majority in Jewish law, we saw that there is a majority that is present before us and a majority that is not present before us. There is another rule in the laws of majority in Jewish law, and it’s called fixed status: anything fixed is treated as half-and-half. This rule basically qualifies the rule of majority, and it says that the rule of majority exists only when we are dealing with an object that is not fixed in its place. But if the object is fixed in its place, the rule of majority does not apply there. In other words, the rule of fixed status is basically a qualification on the laws of majority. The sugya of the meat in the Talmud—
[Speaker B] What do you mean, the meat? In Ketubot. Right, the non-kosher and kosher.
[Rabbi Michael Abraham] We’ll get to that in a moment. So let’s look a bit more systematically at the issue of fixed status. The main discussion of this topic is in Ketubot 15a. “Returning to the matter itself: Rabbi Zeira said, anything fixed is treated as half-and-half, whether leniently or stringently.” That is, if the object is fixed in its place, then even if, say—as with the pieces of meat, right, let’s indeed go back to the pieces of meat. What happens with the pieces of meat? Suppose there are ten shops, nine of them kosher and one non-kosher. So if I find a piece lying in the street—it separated from one of the shops, I find it lying in the street—then the rule is that you follow the majority, and there is a ninety percent chance that it is kosher, and therefore as a matter of basic law I may eat it. What happens if I took a piece of meat from one of the shops, but I don’t remember from which shop I took it? Meaning, when the doubt arises, that piece is in its place, in its shop. It didn’t separate from the shops; it is in its place, fixed in its place, in the shop. And of course I took it, but my doubt concerns the moment I took it—whether what I took was a kosher piece or a non-kosher piece. Therefore, at the moment the doubt arose, that piece was in its place, unlike the piece I find in the street, where the moment the doubt arises is really the moment of finding, after the piece has separated. That is called: anything that separated is presumed to have separated from the majority. But if the piece is fixed in its place—meaning, if I went to the shop and took a piece of meat—then the rule there is that this is fixed, and anything fixed is treated as half-and-half. We regard it as an even doubt. The piece is fifty percent kosher, fifty percent non-kosher, and the laws of doubt apply to it. Meaning, in a Torah-level matter one has to be stringent, despite the fact that most of the shops in the city are kosher. That is the rule of fixed status. Now, the source for this is the Gemara here in Ketubot, where the Gemara says that anything fixed is treated as half-and-half, whether leniently or stringently. Meaning, even if nine shops are kosher and one is non-kosher, I say I have to go stringently. It’s fifty-fifty, kosher or non-kosher, this piece, if it’s a case of fixed status. What happens if there are nine non-kosher shops and one kosher one? There too I view it not as mostly non-kosher pieces, but as fifty-fifty. In that case I actually go leniently. Therefore, the claim is that anything fixed is treated as half-and-half is not a rule meant to be stringent, but a substantive rule, whether for stringency or for leniency. Fixed status, from our perspective, is an even doubt. We do not follow the majority when the piece is fixed in its place. The Gemara asks: From where did Rabbi Zeira derive this? How does Rabbi Zeira know it? Shall we say from the case of nine shops, all of which sell slaughtered meat and one of which sells carcass meat, and he took from one of them and does not know from which one he took—his case is forbidden, but if it was found, one follows the majority? Right? In other words, maybe he learned it from this law of the shops, where we know that when I take the piece from the shop—not when it separated and I find it lying in the street—I take it from the shop, and there I have to be stringent, there is some law of doubt. So maybe from that Rabbi Zeira understood that there is a principle like this, that anything fixed is treated as half-and-half. So the Gemara says no, he didn’t learn it from there. Why? Because there it is for stringency. Right? The law stated there in the shops is really a law of stringency. We are dealing with nine kosher shops and one non-kosher one. As a matter of basic law I might have been able to eat the piece, since most of the shops are kosher, and therefore when the piece separated, I really can eat it. But if I took the piece from the shop, the piece was fixed in its place, then I cannot rely on the fact that most shops are kosher; I have to be stringent with it as if there were an even doubt here. That means that in this case the rule of fixed status leads us to stringency, not to leniency. But Rabbi Zeira said that anything fixed is treated as half-and-half whether leniently and whether stringently. And to be stringent is easier: if you want a source for the rule of fixed status, bring me a source showing that fixed status also works leniently, not only stringently. Therefore the case of the shops cannot be the source for this point. Now again, in the shops the rule of fixed status indeed applies both stringently and leniently. It’s just that I have no source for that. The only source I have from the shops is a case dealing with nine kosher shops and one non-kosher one. I have no source from the shops for nine non-kosher shops and one kosher one. Therefore, although the rule there is indeed correct—the rule of fixed status applies both leniently and stringently in the shops too—when I am looking for a source, I say: I have a source only in the case of nine kosher shops. I have no source dealing with the case of nine non-kosher shops. So now the Gemara brings another source: rather, from the case of nine frogs and one creeping creature among them, and one touched one of them and does not know which one he touched—his doubt is impure. What does that mean? There is impurity: someone who touches a creeping creature becomes impure. But a frog is not a creeping creature. If I touch a frog, I do not become impure. Now I have nine frogs and one creeping creature, and I touched one of them, and I don’t remember which one. So out of doubt I have to be stringent and say I am impure. The Gemara asks: there too it is for stringency. Fine—you have to be stringent that you are impure, so that too is a stringency. We are looking for a source that the rule of fixed status also helps for leniency. The Gemara says: rather, from the case of nine creeping creatures and one frog among them, and he touched one of them and does not know which one he touched—in a private domain his doubt is impure, in a public domain his doubt is pure. What does that mean? We have nine creeping creatures and one frog, so basically there is a majority: most of the creatures here, if I touch them, make me impure. From creeping creatures I become impure; from a frog I do not. Okay? I touched one of them and I don’t remember which. So if this happens in a private domain, the rule is that a doubt of impurity is handled differently from a doubt of prohibition. A doubt about prohibition—a Torah-level doubt—is ruled stringently. With a doubt of impurity, it depends on in what domain the doubt arose. If the doubt arose in a private domain, the doubt is ruled stringently. If the doubt arose in a public domain, then the doubt is ruled leniently. More than that: there is no difference there between an ordinary doubt and a double doubt. Meaning, with a doubt in prohibitions, a Torah-level doubt is ruled stringently, but with a double doubt one can be lenient. A double doubt, right—one doubt this way and that way, and another doubt: even if it’s this way, I still have another doubt. Okay? In that case, with prohibitions, I am lenient. But with impurity, a doubt of impurity—there is no difference between a single doubt and a double doubt. In a private domain, where we declare impurity because of doubt, we declare impurity even if it is a double doubt, not only if it is a single doubt. However many doubts you pile on, it makes no difference in the laws of purity. And if we are in a public domain, then we are lenient even with a single doubt, not only with a double doubt. In short, no matter how many doubts there are in impurity: in a private domain you go stringently, and in a public domain you go leniently. Now what happens in our case? In our case we are dealing with nine creeping creatures and one frog. In terms of the laws of majority, if I touched one of them, I should really become impure, right? Because there is a majority of creeping creatures—nine that impart impurity and one that does not. The Gemara says: in a private domain his doubt is impure. Why? That can be interpreted in two ways, right? Either his doubt is impure in a private domain because there is a majority of creeping creatures, so there is a majority chance that I touched something that makes me impure; or because anything fixed is treated as half-and-half, and out of doubt I am stringent, because in a private domain with a doubt of impurity one is stringent. In a public domain his doubt is pure. Why, in a public domain, is his doubt pure? Here there are no longer two possibilities, right? Because without the rule of fixed status, his doubt should really have been impure, because there are nine creeping creatures. Only because there is a rule of fixed status, and anything fixed is treated as half-and-half, does it become, for me, an even doubt as to whether I became impure or not. And in a public domain, if I have an even doubt, then I am lenient. Meaning, the first rule for a private domain does not prove that anything fixed is treated as half-and-half, because that could be interpreted either based on fixed status or based on majority. But the second rule, for a public domain, where his doubt is pure—that is certainly because of fixed status. Because if it were not because of fixed status, then I should have declared him impure.
[Speaker D] Sorry, Rabbi, sorry. This rule that in a private domain a doubt is impure and in a public domain a doubt is pure—is that only with an even doubt? Yes. Ah, so it’s only with an even doubt. It’s only with an even doubt.
[Rabbi Michael Abraham] That’s the point I’m just now getting to. It’s a parenthetical point that doesn’t directly concern us, but it’s an interesting point. You see here in the Gemara: if this were not fixed, if they had separated, if there were a case of separated status here, then what would the law be in a public domain?
[Speaker B] But anything that separated is presumed to have separated from the majority.
[Rabbi Michael Abraham] Nine creeping creatures and one frog in a public domain, under the law of separated status.
[Speaker B] Under the law of separated status, certainly you’re impure.
[Rabbi Michael Abraham] Then you are impure, right? Certainly. Why? Because there is a majority—nine creeping creatures, right? So most possibilities are that you are impure. But notice: it’s not certainty, it’s a majority. And yet the rule in a public domain is that however many doubts you add, it makes no difference—you always go leniently, whether it’s one doubt or a double doubt, you go leniently.
[Speaker B] What’s interesting is that in a private domain one law sort of disappears, and in a public domain another law disappears.
[Rabbi Michael Abraham] I didn’t understand.
[Speaker B] In a private domain we don’t relate to fixed status and we don’t relate to majority. Because since it’s a doubt in a private domain, we sort of declare impurity. But in a public domain it works the exact opposite. That is, we basically cancel the law of majority—it’s as if it doesn’t exist at all.
[Rabbi Michael Abraham] Here we have fixed status. The opposite! My point here is exactly the opposite. We see here in the Gemara that in a public domain, if there were a majority for impurity, I would declare impurity. Right? It’s only because of the rule of fixed status, which turns this into an even doubt, that I say, okay, then in a public domain it’s pure.
[Speaker B] That’s what I said—that the law of majority was sort of canceled here because of fixed status.
[Rabbi Michael Abraham] That’s what I said. Yes, yes, yes. But were it not for the rule of fixed status—if there really were a majority here—then in a public domain I would declare impurity, absolutely. And pay close attention: in a public domain the rule is that it’s always pure. Doubt, double doubt, no matter what, always pure, right? Yes, that’s what I said. Ah, why? So then why… why if there is a majority causing impurity do I go stringently? Suppose there were a double doubt tending toward impurity in a public domain, right? Where three out of four possibilities make him impure. He touched a creeping creature; I’m unsure whether he touched a creeping creature or something else, and with that something else I also have a doubt whether it is an impurity-imparting creeping creature or not. Let’s say that kind of situation. So that is basically a double doubt toward stringency, right? There is only one out of four possibilities in which he is not impure. Either he touched the known creeping creature and then he is impure, or he touched the unknown thing, and then it depends what that unknown thing is—either it imparts impurity or it doesn’t. So most of the possibilities are that he became impure, right? What would happen in such a case in a public domain? Pure.
[Speaker B] Pure, yes.
[Rabbi Michael Abraham] Because no matter how many doubts I pile on, the rule is always pure. Just as in a private domain it is always impure.
[Speaker D] So then it isn’t only with an even doubt, even though this isn’t even.
[Rabbi Michael Abraham] Wait, now—not “even though.” What do you mean? With a double doubt I go stringently in a private domain, and in a public domain I go leniently. Okay? But with a majority, the Gemara says here that no, right? Meaning, if there were a majority—if there were no rule of fixed status here—and I touched one of these creatures when there are nine creeping creatures and one frog, then I would become impure in a public domain. We see here that majority is not like double doubt. Right?
[Speaker C] Ah, so it’s like it clarifies?
[Rabbi Michael Abraham] Exactly. With double doubt I say: I’m in a state of doubt, and since most of the possibilities are toward stringency, maybe I ought to go stringently. But since I am in a state of doubt, then in the laws of impurity, once I’m in a state of doubt, that’s it—we don’t now start checking possibilities. Once I’m in a state of doubt, in a public domain, he is pure. But in a case of majority, if I were quantifying this probabilistically, then the majority here is ninety percent, right? So suppose I had a double doubt that also led me to ninety percent, or seventy-five percent, doesn’t matter—say seventy-five percent, okay? I have a hundred creatures, seventy-five creeping creatures and twenty-five frogs. Okay? In such a case, if this were not fixed, if it were separated, what would the law be? Impure. Impure, right. Because there is a majority of creeping creatures, and so impure. But if it is fixed, and I have a single doubt, then in a public domain it is pure, because a doubt is pure. What happens if I have creatures, fifty of them frogs, and the other fifty are a species I do not identify? I don’t know whether it is an impurity-imparting creeping creature or not. Now I touched one of them. Again, I have a seventy-five percent chance that I am impure, right?
[Speaker B] But that’s a double doubt, not a single doubt.
[Rabbi Michael Abraham] And because it’s a double doubt—even though it’s also seventy-five percent—but because it’s a double doubt, then in a public domain it will be pure. A double doubt toward stringency, right? It’s not a double doubt toward leniency. So there’s a seventy-five percent chance I’m impure, and in a public domain it will be pure. But if that same seventy-five percent comes because of a majority, then I would be impure. There you have an indication that we are not really working here with statistics, because probabilistically it’s the same case—in both cases it’s seventy-five percent. But that’s just a parenthetical remark; maybe we’ll return to it later.
[Speaker C] Rabbi, why are we comparing fixed status to separated status in the first place? In separated status the question really is about the shops, right? That’s the question on the table. But in fixed status, the question is what the person decided to take.
[Rabbi Michael Abraham] It doesn’t matter how many shops there are—
[Speaker C] If he decided that he wants to eat.
[Rabbi Michael Abraham] One second, you’re getting ahead of me. You’re getting ahead of me—I’ll get there. I haven’t even asked the question yet and you’re already answering it. One second. The Gemara says there is a difference between fixed status and separated status. Okay? In fixed status we do not follow the majority; it’s half-and-half. Yes, right, the note about the Rashba is a good note; there are many difficulties with that Rashba. In any case, that’s what the Gemara says. The Gemara says that from here we derive the rule of fixed status. Now the Gemara asks: And from the Torah, from where do we know it? The verse says: “and lies in wait for him and rises up against him,” meaning he must have intended him. Right, there’s the verse—I brought it down here below: “But if a man hates his neighbor and lies in wait for him and rises up against him and strikes him mortally so that he dies, and he flees to one of these cities…” Okay? Meaning, if he lay in wait for him and rose up against him and killed him unintentionally, then he flees to one of the cities. Fine? The accidental murderer. The Gemara says—and I’m going back to the Gemara in Ketubot further on—And from the Torah, from where do we know it? What does that mean? Until now we found a source for the rule of fixed status from cases in Jewish law—frogs, shops—but how did the Sages know this? Where in the Torah do we learn that there is such a rule of fixed status? Fine? All those sources are halakhic sources showing that Jewish law treats fixed status differently from majority. But where does Jewish law really know it from? From what verse did it come? The verse says: “and lies in wait for him and rises up against him,” the verse we just read. And the Sages in the academy of Rabbi Yannai said: this excludes one who throws a stone into a group. Someone who threw a stone into some enclosed area in which there are people, and killed one of them. The Gemara asks: What are the circumstances? What case are we talking about? Shall we say that there are nine Canaanites and one Jew among them? Then derive it simply from the fact that the majority are Canaanites. And if it is half and half, in capital cases we go leniently. No, we need the case where there are nine Jews and one Canaanite, just like with the frogs among them, because then the Canaanite is fixed, and anything fixed is treated as half-and-half. What does that mean? We are talking about a situation where I throw a stone into some room, or space, or whatever, and inside that space there are ten people, some non-Jews and some Jews. I killed a Jew. One who kills a non-Jew is not liable to death, okay? One who kills a Jew—“Whoever sheds the blood of man, by man shall his blood be shed.” One who kills a Jew violates “You shall not murder.” And for “You shall not murder” one is liable to death. Now I threw a stone into such a space where there are both Jews and non-Jews, and I killed a Jew. Now the question is whether I am liable to death. Why might I not be liable to death? Because it depends on what exactly I did when I threw the stone—not what happened in the end, but when I threw the stone, did I intend to kill a Jew? If yes, I am liable to death; if not, then even though in the end a Jew was killed, I am not liable to death. Okay? So the Gemara says, let’s see what case we are talking about. If we are talking about nine Canaanites—that is, non-Jews—and one Jew, then when I threw the stone, right, it says “and lies in wait for him and rises up against him,” meaning only if he intended him is he liable to death. So if there are nine Canaanites and one Jew, I am exempt. Why am I exempt? You don’t even need to invoke the rule of fixed status, right? Why am I exempt? Because the majority are Canaanites. But when I threw the stone, then quite clearly the stone was likely to hit Canaanites; I did not intend to kill a Jew, right? In the end the Jew was killed, but when I threw the stone I did not perform an act aimed at killing a Jew. Or if it were half and half, in capital cases we go leniently—even if it were fixed, then it would be half-and-half, and in capital cases we go leniently. The Gemara says: no, we need the case where there are nine Jews and one Canaanite—the reverse. There are nine Jews and one non-Jew. Since the Canaanite is fixed, and anything fixed is treated as half-and-half. What does that mean? Nine Jews and one Canaanite basically means that in terms of the laws of majority I am liable to death, right? Because I intended to kill a Jew; there are nine Jews here. But because there is one Canaanite here, and that Canaanite is fixed in its place—he is there in that room—and fixed is treated as half-and-half, so this is basically as if there were five Canaanites and five Jews. And if I threw a stone into such a room, I am exempt, as we saw above: in capital cases we go leniently. Okay? So here the rule of fixed status really changed the outcome. In the case of nine Canaanites and one Jew, fixed status changes nothing. Even without fixed status I am exempt, because there is a majority of Canaanites. So the rule of fixed status lowers it to half Canaanites, but even with half I am exempt, because in capital cases we go leniently. So the rule of fixed status changes nothing. Therefore the Gemara says: let’s speak about the opposite case. There are nine Jews and one Canaanite. Here, were it not for the rule of fixed status, by the laws of majority I would be liable to death, because I intended to kill a Jew; there were nine Jews when I threw the stone into the pit. The laws of fixed status say that because the Canaanite is fixed in his place, he is considered as half—as if there were five Canaanites and five Jews. And in such a case I am exempt. Now note that of course not only do we see the rule of fixed status here, but the rule here also works leniently and not stringently. Right? It exempts me. Without the rule of fixed status I would have been liable to death—or exile or death, depending on whether it was unintentional or intentional—but because of the rule of fixed status, I am exempt. Okay? So that is the case, that is the Torah derivation for the rule of fixed status. And the halakhic ramifications are the creeping creatures and the shops and all the things we saw. Now I want to ask a basic question first of all. I’m looking for an explanation of the rule of fixed status. Why? Why really is the fixed case different from the separated case? Ostensibly, in both cases the probability is the same probability—ninety percent, or nine kosher shops and one non-kosher one, say ninety percent. What difference does it make whether I took the piece from the shop or found it lying in the street and it came from one of the shops? Bottom line, there is a ninety percent chance that the piece is kosher. So why make a distinction between fixed status and separated status? So I’m looking for an explanation. Now first of all, why look for an explanation? Maybe it’s just a scriptural decree. What—the reason of the verse? It’s a scriptural decree: we learn from the verse that fixed status is treated as half-and-half. What do you say? Is that a good explanation? Is it a plausible possibility?
[Speaker B] No. Not a good explanation. Why not? Because the Sages don’t learn it from the verse.
[Rabbi Michael Abraham] What do you mean?
[Speaker B] We don’t find in the Gemara that they learn it as the reason of the verse. Where is that written?
[Rabbi Michael Abraham] The Gemara learns it from the verse “and lies in wait for him and rises up against him,” right? So from the Gemara’s standpoint, that’s what the verse says. Now I’m asking: okay, so the verse says that fixed status is treated as half-and-half. Now I’m looking for the reason—why? What’s the explanation? So that’s the reason of the verse. What do you mean, what explanation? That’s what we learned.
[Speaker E] It’s an exposition, it’s a derashah.
[Rabbi Michael Abraham] What? I can’t hear.
[Speaker C] Does the Rabbi mean that this is a law given to Moses at Sinai?
[Rabbi Michael Abraham] No, no, I didn’t say that this is a law given to Moses at Sinai.
[Speaker C] Well then, the Sages expounded it. They couldn’t have read it that way if it were something completely illogical, so in fact they read it and said it—they sort of threw themselves into it.
[Rabbi Michael Abraham] What do you mean? I mean, we discussed this when we talked in the series about the reason of the verse. This is an exposition. It is not written explicitly in the verse. It says “and lies in wait for him and rises up against him”—there has to be intention, okay. Now the Sages interpret the words “and lies in wait for him and rises up against him” as someone who threw a stone where there was a non-Jew and nine Jews. Where does all of that explanation come from? If there were no logic in the rule of fixed status, how would the Sages ever have imagined it? Why not say instead that if they killed someone whose name begins with the letter kuf—“rose up against him and lay in wait for him”—then in that case they are exempt. That’s what the verse says. Why specifically choose to say that what the verse means here is to exempt the person because of the rule of fixed status? Where did you even invent the notion that there is such a thing as fixed status? If there is no rationale to distinguish between fixed status and separated status, then the Sages could not have expounded it from the verse.
[Speaker C] The Rabbi is basically saying that it’s a derashah. I didn’t hear that series, but it sounds like if it had been written explicitly, then really we would just throw up our hands. Right. But that’s not so. It says “an eye for an eye, a tooth for a tooth, a foot for a foot”—that’s plain, straightforward Hebrew, very clear—and the Sages say—
[Rabbi Michael Abraham] But they don’t just say it; the Sages expound it. It’s a gezerah shavah of “under” and “under.”
[Speaker C] Yes, but they could have expounded it differently. No! No!
[Rabbi Michael Abraham] It’s a verse! That’s what they expounded—what don’t I understand?
[Speaker C] What do you mean they couldn’t have expounded it differently? Rabbi, really, it’s written explicitly in straightforward Hebrew—so they couldn’t have expounded it differently?
[Rabbi Michael Abraham] What do you mean, they could have expounded it differently? They don’t need to expound it differently. Expositions usually come to explain the plain meaning of the text.
[Speaker C] No, no, let’s not talk about expositions.
[Rabbi Michael Abraham] “Under” and “under” is an exposition.
[Speaker C] Fine, but if they didn’t—then this also isn’t a scriptural decree. They could have chosen not to expound it that way.
[Rabbi Michael Abraham] Obviously they could have expounded it that way, but once they did expound it that way, then that’s it. So what if the verse appears to say otherwise?
[Speaker C] If it had contradicted their logic, then they wouldn’t have done it.
[Rabbi Michael Abraham] So I don’t know—maybe they would have expounded something else, doesn’t matter. Fine. No, it’s not the same thing.
[Speaker C] In the end, interpretation is always in the hands of the interpreter.
[Rabbi Michael Abraham] No, that’s really not it, that’s really not exactly how it works. What do I mean? Fine, we’ve talked about this a few times in the past. The claim I want to make, basically, is that when a law… I’ll come back to it in a second, Shmuel, I’m just giving an introduction. When we derive a law from an exposition, there’s no such thing as not interpreting the reason for the verse. In expositions, we always interpret the reason for the verse. We do not interpret the reason for the verse in things that are written explicitly in the verse. There, we don’t interpret the reason for the verse. But in something that comes out of an exposition, of course we do interpret the reason for the verse. Why? Because the expositor himself derived it because of an interpretation of the reason for the verse; if there were no reason for the verse, he wouldn’t have derived it. So therefore the claim is that “and rises against him and lies in wait for him,” from which the sages derived this—they derived it, or interpreted it, doesn’t matter—but they interpreted it as coming to exclude the case of fixed location. Where exactly did they get fixed location from? Why not a majority of sixty percent and up, and not fifty percent? I could have invented a hundred thousand other things. Apparently they had some kind of logic for qualifying the law of fixed location, to say that the laws of majority apply when something separated, but not when it is fixed. They had some reasoning like that. Only because they had such a line of reasoning did they decide to extract this from the verse, from the words “and rises against him and lies in wait for him.” If they didn’t have such a line of reasoning, they wouldn’t have derived it from there.
[Speaker B] Between fixed location and separation there’s a very strong difference.
[Rabbi Michael Abraham] Wait, wait, I’m not there yet, just a second—we’ll get to the differences. First of all, I’m still in the introduction.
[Speaker E] So the Rabbi is claiming that we interpret this? Meaning, I can interpret—fine, I understand that we look for the reason for the verse, but the reason for the exposition—but now I can interpret according to the reason I give and invent practical implications?
[Rabbi Michael Abraham] Of course. If a law comes from an exposition, then regarding that law itself you can apply an interpretation of the reason for the verse. Meaning, you say: what was the expositor’s reasoning, and in a place where the expositor’s reasoning doesn’t apply, I won’t apply the law.
[Speaker E] There Rabbi Shimon agrees with Rabbi Yehuda, like this—
[Rabbi Michael Abraham] The Rabbi is claiming.
[Speaker E] What? I can’t hear. There Rabbi Shimon agrees with Rabbi Yehuda—that we do not interpret the reason for the verse? That here we do interpret the reason for the verse.
[Rabbi Michael Abraham] Rabbi Yehuda agrees with Rabbi Shimon? No, Rabbi Yehuda agrees with Rabbi Shimon.
[Speaker B] And what the Rabbi means is Rav Zeira, that he interpreted the reason for the verse in the case of separation and fixed location, right?
[Rabbi Michael Abraham] Yes, in the Talmud, in the exposition we just saw. Yes, yes. So what’s the claim? The claim is basically that this rule—that we do not interpret the reason for the verse—applies when the law is known; it’s written in the Torah. Now I ask myself, wait, why did the Torah say this? Ah, because of this reason. So in a place where that reason doesn’t apply, I won’t apply the law written in the Torah. On that Rabbi Shimon and Rabbi Yehuda disagree, and in Jewish law we do not interpret the reason for the verse. According to Maimonides the law is not like either of them, but never mind—in practice we do not interpret the reason for the verse. But in a place where a law comes from an exposition, the expositor himself, when he made the exposition, certainly assumed some reasoning, because without his reasoning, why derive it this way rather than another way? Where did he invent this exposition from? Apparently he had some kind of logic. You could ask: if he had logic, why did he need an exposition? Let him just say the logic dictates such-and-such.
[Speaker B] The logic is the exposition. What—
[Rabbi Michael Abraham] What does it mean, the logic is the exposition? If the words “and rises against him and lies in wait for him” hadn’t been written, would you still say that fixed location is like fifty-fifty?
[Speaker B] No, I wouldn’t say that. Why? After all, the reasoning says it, so why do I need a verse? It’s reasoning. Everything has to have a basis, be grounded. Why?
[Rabbi Michael Abraham] I have reasoning, so why do I need a verse? It’s reasoning.
[Speaker B] Yes, but reasoning is also based on something.
[Rabbi Michael Abraham] No, reasoning is based on logic.
[Speaker D] It’s weak reasoning. It’s not—it’s not strong reasoning.
[Rabbi Michael Abraham] No, so we talked about this when I taught “scriptural decree” and all sorts of things like that. I said that the fact that there is reasoning does not make the verse unnecessary. “Why do I need a verse? It’s reasoning” applies when you’re talking about a specific detail within an existing commandment—if you would know it from reasoning, there’s no need to write it. But if the reasoning creates a novel law, then of course you don’t say, “Why do I need a verse? It’s reasoning.” It can’t become a Torah-level law just because there’s reasoning for it. Same thing if the reasoning isn’t strong enough. Then without the verse I wouldn’t say it. But once the verse says it, and I ask myself what it means, I use that reasoning and say: fine, apparently that’s what the verse came to say. And now my claim is that this is the reasoning behind the law in the verse. Yes, there’s the Meiri in Sanhedrin, in the chapter on the stubborn and rebellious son. The Talmud expounds there: son, and not daughter. So the Talmud says about this that it is a scriptural decree. The Jerusalem Talmud says scriptural decree; in the Babylonian Talmud the formulation is a little different, but Rashi there says it’s a scriptural decree: son and not daughter. And the medieval authorities (Rishonim) explain why it’s son and not daughter—because it is not a daughter’s way to rob people, in the case of the stubborn and rebellious son. Okay? Therefore we do not apply the law of a stubborn and rebellious daughter. Sefer HaChinukh, Maimonides, all sorts of explanations like that, which in any case nobody pays attention to. But the Meiri, after he brings that explanation, asks: wait a second, then why does the Talmud say that it’s a scriptural decree? You see that he took that explanation seriously, unlike the explanations in Sefer HaChinukh. He took it seriously. He says: if that’s the explanation, then why does the Talmud say scriptural decree? He has an explanation. And what he says—I think, his wording there is a little vague—but what I think he says is that clearly you have a line of reasoning to distinguish between sons and daughters in the law of the stubborn and rebellious son. Suppose there were no exposition of “son and not daughter.” Would I say that a daughter is exempt from the law of the stubborn and rebellious son? Would we not apply the law of a stubborn and rebellious daughter because of the reasoning? The reasoning isn’t strong enough for that. I could also say maybe for sons from especially good families we also shouldn’t apply the law of the stubborn and rebellious son—they also won’t rob people. I can make such distinctions in all kinds of directions, and they are valid distinctions. But they are not strong enough for me to build a law on them. Maybe yes, maybe no—you can always make distinctions. Clearly there is more reasoning for a son than for a daughter. But how much more? Is it so obvious to me that I would cancel the law of the stubborn and rebellious son regarding a daughter? The answer is no. Only because I have the exposition “son and not daughter” do I say that regarding a daughter we do not apply the law of the stubborn and rebellious son. Once I have that exposition, I ask myself why, really? And then I say: because it is not a daughter’s way to rob people. Without the verse I wouldn’t use that reasoning, because on its own it is weak. But once the verse says it, I have no problem saying that what it means is because of that reasoning.
[Speaker D] Rabbi, sorry, are you saying that the exposition comes before the reasoning?
[Rabbi Michael Abraham] The exposition what?
[Speaker D] Comes before the reasoning?
[Rabbi Michael Abraham] They work together. It’s not a matter of before. The exposition is a trigger. You have to do something—include, compare, exclude—there is some trigger. Then the reasoning comes and says what to do with that trigger. Suppose you have a verbal analogy between a slave and a woman. So maybe we should write “woman” with an ayin like “slave”? Right, there’s a verbal analogy of “to her, to her,” slave and woman. No, we don’t say that. Why not? Because the reasoning says you write “woman” with an aleph, not with an ayin. The fact that there is a verbal analogy doesn’t mean I compare them in every respect. So how do I determine in what respect I compare them and in what respect I do not? The reasoning determines that. But the reasoning comes after the verbal analogy told me to make a comparison between slave and woman, and then the reasoning tells me which comparisons make sense. Same thing with “You shall fear the Lord your God”—to include Torah scholars. The word “et” comes to include something. Now you ask yourself, by reasoning, what does it come to include? What does it come to include? So here the reasoning determines what it comes to include: Torah scholars. But without the word “et,” the reasoning by itself would not have been enough.
[Speaker C] Rabbi, but why don’t you explain it as a kind of dialogue we have with the text? Meaning, we do not live in a vacuum where everyone just goes with his own logic, but on the other hand we also can’t, and don’t want to, and it’s impossible, to take the text as is, because there’s no such thing as the text as is. The fact is that even with the stubborn and rebellious son—even regarding the son—those who say it never happened and never will happen say so because the parents have to be equal in height, I don’t know, there are no such things, the parents have to be equal, so in any case it never happened and never will happen and it’s only for exposition. The fact is, we also managed with the text, but it was hard for us and we suffered a bit. We had to strain and invent some very strange construct that puts us under a question mark, but we’re not going home happy. We always have a problem, and all our lives we’ll have to expound on what the stubborn and rebellious son means. That’s important and meaningful, but the result is that no stubborn and rebellious son ever existed or will exist. That is significant.
[Rabbi Michael Abraham] I don’t understand the question. So what is the question?
[Speaker C] No, that this comes to say that there is, as it were, the text. What is written explicitly we cannot interpret away, because it doesn’t matter whether our reasoning says yes or no—we are imprisoned within the text. There is no such thing. Not only is it impossible, because interpretation is always there, but it also wouldn’t be right for such a thing to exist. But on the other hand, to make expositions only from reasoning—
[Rabbi Michael Abraham] I didn’t understand—your examples have nothing to do with what you’re asking. What about the stubborn and rebellious son? When I derive that both his parents must be equal in height and weight and voice and all these things—is that interpreting the reason for the verse?
[Speaker C] No, Rabbi. Is that the reason for the verse?
[Rabbi Michael Abraham] You are not relying on the reason for the law of the stubborn and rebellious son in that exposition. We make expositions on anything. Expositions are not based on the reason of the text. That is what it means that we do not interpret the reason for the verse.
[Speaker C] No, but we exercise judgment when we read the section of the stubborn and rebellious son. We say: it’s inconceivable that parents would execute their child because in fact they are responsible for what he became—maybe yes, maybe no, doesn’t matter—and therefore if the Torah wrote that there is such a thing as a stubborn and rebellious son and we don’t want it to happen in reality, then we invent such a strange exposition—that they have to be equal—that no Jew would ever have thought to derive were it not for the moral difficulty.
[Rabbi Michael Abraham] Everything is known, everything is clear. What does that have to do with the question of interpreting the reason for the verse?
[Speaker C] No, what I wanted to say is that we always, apparently—the Rabbi asks, if there is reasoning, then why is it written, what do we need texts for at all? If we have our own reasoning, let’s just do whatever we think. There is always a need for this dialogue; this dialogue is important, even though apparently you’re saying that the interpreter’s hand always has the upper hand.
[Rabbi Michael Abraham] Those are very general words. What I’m saying is more concrete. Maybe that’s what you mean, but what I’m claiming is that the verse itself gives an anchor to the reasoning. That’s all. What, you don’t agree with that?
[Speaker C] I agree, but I’m saying it’s important that there be a text. It’s important because it has implications for a lot of things… for the whole Torah. When we study texts, we’re not standing there as bystanders receiving the text; rather, we—
[Rabbi Michael Abraham] Fine, but that’s not relevant. It’s not relevant to the discussion. The fact that we are active when we read the Torah and that we don’t always go by the plain meaning—of course not. So what? Right? But that has nothing to do with the reason for the verse. Interpreting the reason for the verse is not when I remove the verse from its plain meaning. That is not called interpreting the reason for the verse. Interpreting the reason for the verse means that I interpret the verse in light of the reason for the law written in it.
[Speaker C] And in any case sometimes that almost empties it entirely of all—
[Rabbi Michael Abraham] It doesn’t matter whether it empties it, interprets it, or whatever. That we do not do.
[Speaker C] But here, for example—
[Rabbi Michael Abraham] In the stubborn and rebellious son we do. No, I said these are again examples that have nothing to do with reason at all.
[Speaker C] No, I said the reason—the moral reservation—
[Rabbi Michael Abraham] A moral reservation about the law of the stubborn and rebellious son is emptying it of content.
[Speaker C] Suppose you’re right in what you say. So what?
[Rabbi Michael Abraham] What does that have to do with reason?
[Speaker C] No, I’m not interpreting… I’m saying that interpretation—the concept of “the reason for the verse”—means that you activate your thinking and try to understand, to connect morally, rationally, emotionally—whatever the Rabbi wants—with what the Torah commands.
[Rabbi Michael Abraham] Trying to understand why the Torah commands what it commands is called interpreting the reason for the verse.
[Speaker C] But not like some onlooker sitting passively at the side—
[Rabbi Michael Abraham] All true, all true, but that has nothing to do with the reason for the verse. I didn’t say you have to be a passive spectator. What I’m’m claiming is that your activity should find expression on the interpretive plane, but not on the purposive plane. Meaning, you are not supposed to interpret when you rely on the reason for the law. You can interpret on the basis of other things. That’s the claim.
[Speaker C] I just don’t make that distinction here. Fine, okay.
[Rabbi Michael Abraham] The Talmud makes that distinction, so I don’t see the problem. Now we—
[Speaker E] We assume that even in Torah-level law—
[Rabbi Michael Abraham] We interpret verses all the time. According to Rabbi Yehuda, who says we do not interpret the reason for the verse, are there no expositions in the Torah?
[Speaker C] No, because Rabbi Yehuda… Rabbi Yehuda says: the fact that you thought of some idea and already imagine that you know the reason for the verse—be a little humble. You don’t exactly know what the Torah means.
[Rabbi Michael Abraham] Fine, you’re giving me explanations for why Rabbi Yehuda says that. I’m asking what he says, not why he says it. What does he say? He says that we do not make expositions on the basis of the reason. But we do make other expositions. Of course we do. There’s no question here of whether to interpret the Torah, whether to stick to the plain meaning or also to expound. Of course we also expound. Nobody said we always stick to the plain meaning. The claim is only that the departure from the plain meaning will never be because of considerations of reason. It will be for other reasons. Fine, those examples have nothing to do with the reason for the verse. That’s something else. Okay, so in short, what I want to say—
[Speaker E] What’s the difference between Torah-level law and rabbinic law? After all, even in Torah-level law there is a reason, only we don’t know what it is. And in rabbinic law too there is a reason and we don’t know what it is. The question is whether on the basis of my interpretation I can assume that this is the reason stated in the Torah or the reason stated in rabbinic law.
[Rabbi Michael Abraham] This relates to my classes on the reason for the verse. That is the accepted view; it’s not correct. The reason we do not interpret the reason for the verse is not because we don’t know the reason. The proof is that even where the reason is written in the Torah, we still do not interpret it that way. That is how Maimonides rules—against Rabbi Yehuda and against Rabbi Shimon, like the first Tanna.
[Speaker B] Yes, in Maimonides too that’s one of his foundations. What? What is one of the foundations? Of Maimonides? What? That even though the reason is written—yes—to relate to it.
[Rabbi Michael Abraham] That even though the reason is written, I do not derive law from it.
[Speaker B] Right, that’s what I said, that Maimonides bases it that way.
[Rabbi Michael Abraham] So that means that the fact that I do not derive law from the reason is not because I’m afraid I didn’t grasp the correct reason. Because when the reason is written in the Torah, I don’t have that concern. “He shall not multiply wives for himself, lest his heart turn away.” In Sanhedrin 21—so the Torah itself says why he should not multiply wives for himself: lest his heart turn away. And even so, we do not derive law from that reason. Besides, it also makes no sense not to derive law because you don’t know—it’s just not logical, even without proofs. But fine, I’m not going into that now. That’s a different question; I’ve written about it and I can refer anyone interested. In any case, what I want to say is that there has to be some rational explanation for the difference between fixed location and separation. The fact that they derive it or interpret it from a verse does not mean there is no logic behind it—quite the opposite. Since it is not really written in the verse, and the sages are the ones who loaded it onto the verse, clearly they had some reasoning for distinguishing between fixed location and separation. Otherwise they would not have loaded it onto this verse; they would have loaded it onto something else. That’s one side. On the other side—fine, so what could the reason be? Maybe there is some probabilistic calculation that tells us that in fixed location, the probability really is not like the majority but rather fifty-fifty. And in separation, the probability is ninety-ten, say in the case of shops. Some probabilistic consideration—I don’t know what at the moment—but suppose, maybe there is such a consideration. That too is very implausible. I’m saying in advance, even before anyone gives me the consideration itself, I say it’s not likely that we’ll find such a consideration. Why not? This actually happened to me, yes. I had a study partner and we learned together for many years, and every so often he would come to me with a proposed explanation for the law of fixed location—a statistical explanation, a probabilistic explanation for fixed location. So I said to him: look, before you give me this explanation, answer me this question: would you drink poison based on this explanation? Suppose you have one crate with ten cups of drink, of which seven cups are poison and three cups are water. Okay? And opposite it you have a crate with three cups of poison and seven cups of water. Fine? No, let’s say six, fine—six cups of poison and four cups of water. Now a cup separated from the first crate, so what is the chance it is poison? Wait, if it separated, that’s seventy, right? If it separated, it’s seventy. But if it’s in place, it didn’t separate, if I take the cup from the crate itself—
[Speaker B] It’s fifty.
[Rabbi Michael Abraham] It’s fifty, right? I have a fifty percent chance of poison. Now a cup separated from the second crate. If it separated, what’s the chance it’s poison? Same thing—sixty percent.
[Speaker B] Because it’s six.
[Rabbi Michael Abraham] Six cups of poison, and it separated. We follow the majority, right? So there’s a sixty percent chance it’s poison. Which of the two cups do you drink?
[Speaker B] Neither of them.
[Rabbi Michael Abraham] No, you have to. A gun is pressed to your temple. You must choose either this cup or that cup. Which one do you choose? In the crate of six and four, there’s sixty percent that it’s poison. In the crate of seven and three, there’s only fifty percent, because it’s fixed location. So obviously you would drink from the seven-three crate, right? But do you understand that statistically it’s seventy percent, not fifty percent. Only because of the law of fixed location is it fifty percent. So now tell me: if you would drink poison based on your explanation, then I’m willing to hear it. If not, go home and think of another explanation. I don’t say this as a joke, or just to be clever. I’m trying to show that on the one hand there has to be some rational explanation here, but on the other hand it’s quite clear that the explanation is not probabilistic. It’s some kind of formal explanation, not a probabilistic one. Because if it were probabilistic, then I really would drink the cup from the crate with seven cups of poison rather than the cup from the crate with six. Because here the probability is fifty-fifty and there it’s sixty-forty. But it’s not probability. I regard it as fifty-fifty, but if you ask me probabilistically, how much would I bet? I’d bet seven to three, not five against five. Therefore as long as you’re not prepared to drink poison on that basis, don’t tell me you have a probabilistic explanation. You don’t. Therefore I think this is a good test for someone who thinks of a probabilistic explanation. Tell me whether you would drink poison on that basis. If yes, fine, I’m willing to hear what you have to say. Now, this creates a bit of a tangle. Because on the one hand there must be an explanation, but on the other hand it can’t be a probabilistic explanation. What basically remains—or the conclusion that follows from this analysis, even before I get into specific explanations—I’m doing a kind of a priori analysis to understand what I can even try to find here. What can even be imagined? There must be an explanation here, but the explanation is not probabilistic. Some kind of reasoning—let’s call it legal reasoning—but not probabilistic. And again, I’ll say a few sentences about this: at the end of my pamphlet on migo, I talk a bit—there’s an appendix there on legal reasoning. I want to claim—I talked about this at the beginning of this series—that when we say that something has reasoning behind it, meaning that it is understandable, that can still be interpreted in two ways: either it has rational reasoning, or there is legal reasoning here, say in the laws of evidence, okay? In the laws of evidence, say that something—migo gives strength to a claim, fine? So migo giving strength to a claim is a kind of evidence. And what does that mean, evidence? You can say: this is evidence; I rely on migo giving strength to a claim because migo proves that the person who has the migo is right. That’s what I call logical evidence. I can explain to you why the chance that he is right is greater than the chance that he is wrong. Meaning yes, this evidence tells me that it is logical that he is right. Now, if that is not the case, does that necessarily mean that we are dealing with an illogical law? I claim not. It can be a logical law, but its logic is not probabilistic; rather, it is legal logic. That’s what I call legal reasoning, as opposed to probabilistic or logical reasoning. These are legal reasonings. What does that mean? That on the legal level it is correct to give an advantage to someone who has migo strengthening his claim—not because he is right. There is no greater probability that he is right than that the other one is right. This is not probabilistic reasoning. But there is still good reason to give him the advantage. I remind you: at the beginning of the class I mentioned the matter of “the burden of proof rests on the claimant” as opposed to the presumption that what is in a person’s possession is his. For “the burden of proof rests on the claimant,” there is no reason to assume specifically that the claimant is the liar and the possessor is telling the truth. Both have a presumption of validity, right? So therefore the rule that the burden of proof rests on the claimant should seemingly have been considered a scriptural decree—something that has no logic, because probabilistically it is fifty-fifty; the chance that this one is right is the same as the chance that the other is right. So why do we give the advantage to the current possessor? Ah, scriptural decree. But the Talmud itself says that for “the burden of proof rests on the claimant,” why do I need a verse? It’s reasoning. It’s not a verse. Or you don’t need a verse—there is a verse, but you don’t need it. There is reasoning in it, but it is not probabilistic reasoning. It is legal reasoning, and the legal reasoning says—you can formulate it in several ways; I also discussed this once—the legal reasoning says that if the religious court has no reason to act, then it does not act. The claimant asks the religious court to do something, to take the money from me and transfer it to the claimant. The religious court will not act if it has no reason to act. Bring me evidence that constitutes a reason to act, and then I will act. The defendant is not asking the religious court for anything; he is only asking the religious court to stay home, to do nothing. So he does not need to give them a reason not to do something. Whoever expects the religious court to do something must give a reason why he wants them to do something. So that, for example, is one explanation—there are several explanations—but that is one explanation that tells us why the burden of proof rests on the claimant. And notice, this explanation does not say that there is a greater chance that the defendant is right than that the claimant is right. It’s not reasoning in the probabilistic sense. But it is still reasoning. It is legal reasoning, not probabilistic reasoning. But it is still reasoning.
[Speaker E] Does that belong only in litigation? I can’t hear. Does that belong only in litigation? A presumption of the prior status, for example in prohibitions, is that the same principle too, no?
[Rabbi Michael Abraham] A presumption of the prior status is something a bit different. A presumption of the prior status and presumptive ownership are not the same thing. Regarding the presumption of the original owner, in Sefer HaSfeikot he discusses whether the presumption of the original owner is like a presumption of the prior status.
[Speaker E] Right, right, right, but it’s the same principle. Meaning, these are legal reasonings that are not necessarily only in litigation.
[Rabbi Michael Abraham] Yes, a presumption of the prior status—you might perhaps even say there isn’t legal reasoning there either, I don’t know. It needs discussion. When it stands against a presumption of the current status, for example, then it’s not clear why—why should the presumption of the prior status prevail?
[Speaker B] It’s more similar to fixed location, a presumption of the prior status. Why? What? Why? It’s more similar to fixed location because the one who possesses the money—well, well, that’s what you spoke about at the start, at the beginning of the class, yes. I didn’t understand why it’s similar. In such a case, in such a case, they say that it is כביכול his.
[Rabbi Michael Abraham] Yes, but why that is related to fixed location, I didn’t understand.
[Speaker B] Because it’s a fixedness created by people.
[Rabbi Michael Abraham] What does that have to do with it? Fixed location is in the laws of majority. I don’t see the connection.
[Speaker B] No, I’m saying that in comparison to a presumption of the prior status, it’s similar to fixed location, as it were.
[Rabbi Michael Abraham] I don’t see the similarity, but okay. Fine. In any case, what I want to say is that there is such a category called legal reasoning. This is something that is not a scriptural decree; there is logic behind it, but the logic is not probabilistic logic. It is legal logic, like “the burden of proof rests on the claimant.” I would expect, when I look for the reasoning behind fixed location—and I said there must be reasoning, so the option that it is a scriptural decree is not an option—there must be reasoning. On the other hand, that reasoning is probably not probabilistic reasoning, because I would not drink poison on the basis of that reasoning. When considering whether to drink poison or not, I would not take the law of fixed location into account. The only conclusion that comes out of this a priori analysis is that it must be legal reasoning and not probabilistic reasoning. And now I want to try to think what that reasoning could be. So maybe one more point I need to mention: the commentators say that the difference between fixed location and separation applies only in a present majority, not in a non-present majority. In a non-present majority, I don’t care whether the thing is in its place or not in its place. In a present majority, like with shops, yes—there it depends, there it will depend on whether it separated or whether it remains in place. And that too is an interesting datum. Again, some wanted to disagree with this, but it is the consensus of almost all the commentators that this distinction exists only in a present majority. That too can give us some hint toward the reasoning underlying the difference between fixed location and separation. That reasoning ought to be true only for a present majority and not for a non-present majority. Okay, I’m just putting that on the table. Now let’s look at possible explanations. The first explanation I found in articles that dealt with this. One explanation I found in an article by Rabbi Gordin from Gush. He wants to argue—what I’m talking about today is based on column 237 on my website, so you can see it there in greater detail.
[Speaker C] Again, I don’t see the connection.
[Rabbi Michael Abraham] You’re offering an explanation. Fine, we’ll get there. So Rabbi Gordin basically says this: if the piece separated—if the piece separated from the shop and I find it in the street, okay? What is the question I am asking? I am basically asking: from which shop did this piece come? Where did it separate from? Basically my question is about the source shop, yes? From where—what is that shop from which this piece separated? Since I have nine kosher shops and one non-kosher shop, I assume that this shop is a kosher shop. Right? But if I take the piece from the shop itself, only I don’t remember from which shop I took it, then the piece was taken from a concrete shop, and I am not asking a question about the piece—what shop did it come from? I’m asking a question about the shop, right? Therefore this is basically the law of fixed location, because I am asking a question about the shop. Now the shop does not separate from some majority group and minority group. I’m asking: what is this shop? That is a question about the shop. Maybe let’s formulate it differently. When the piece separated—when the piece separated—then basically what Rabbi Gordin says is that I am asking a question about the totality of the shops in the city. What is the typical shop in the city? Or how should I relate to the totality of the shops in the city? If there are nine kosher ones, I assume that the typical shop in the city is a kosher shop, and therefore the assumption is that the piece separated from a kosher shop, so one may eat it. But if I take the piece from this particular shop itself, then I ask: what is this shop? I’m not asking what the nature of the shops in the city is. It’s not a question about the totality of the shops. It’s a question about one specific shop: is it kosher or non-kosher? So here there is no discussion about the totality of the shops, and therefore the law of present majority is a law that basically comes to determine the collective character of the city, of the city’s shops, of all the shops of the city. Okay? That is a question I ask only in the case of separation. But in the case of fixed location, I am not asking a question about all the shops. There is one concrete shop from which I took it, I just don’t remember whether it was non-kosher or not non-kosher. So the question is a question about this shop, not about the character of the shops in the city. Now here I have only two possibilities: either it is non-kosher or it is not non-kosher. There is no significance here to what most of the shops in the city are, because that is not the issue. I am not asking a question about the totality of the shops. And therefore here it is like fifty-fifty. I have two possibilities, each equal to the other, and so it is regarded as fifty-fifty.
[Speaker B] How does that fit with the Talmud in Nazir? A man betrothed a woman and doesn’t know which woman through an agent, and then every woman in the world is forbidden to him because every fixed case is regarded as fifty-fifty.
[Rabbi Michael Abraham] Well, I didn’t understand—that’s very good, so what’s the problem?
[Speaker B] No, I’m saying, in that case—and now you’re saying if my whole focus is on a specific shop, yes? Yes. But there the Talmud says that because he doesn’t know which woman he betrothed, all the women in the world are forbidden to him.
[Rabbi Michael Abraham] No, the result is that all women are forbidden to him. But why?
[Speaker B] Because of the law that a fixed case is regarded as fifty-fifty?
[Rabbi Michael Abraham] No, no. The result is that all the women in the world are forbidden to him. But how is that result built? Every woman he comes to marry, I will say about her that she is forbidden to him. Since I say that about each and every woman, the bottom-line result is that all the women in the world are forbidden to him.
[Speaker B] No, but it’s the same law.
[Rabbi Michael Abraham] Of course it’s the same law. But here, with the shops, I decide about the piece of meat from looking at the totality of the shops. With women, I decide about the totality of the women by looking at each one of them separately. The direction is reversed. I make decisions about a specific woman not because she belongs to the majority, but because I have a concern of fixed location and therefore she is forbidden, and I’ll do the same with the next woman and the third woman and the fourth woman. And after I make decisions about each and every one of the women, it turns out that indeed all the women in the world are forbidden to me. But the basic decision is about an individual woman. Meaning—
[Speaker B] Meaning according to this—but there is another Talmud in Zevachim about the… about the…
[Rabbi Michael Abraham] Sin-offerings that got mixed with…
[Speaker B] Offerings. Offerings that got mixed up—valid ones with…
[Rabbi Michael Abraham] Burnt-offerings or something, okay.
[Speaker B] Yes, yes, yes. There too it’s the same thing. It comes out that no matter from which direction I look at it, this same law—that a fixed case is regarded as fifty-fifty—will work for me from any direction.
[Rabbi Michael Abraham] So what? But there too it’s the same thing. There too, when you approach and want to take a cow or an animal out of this mixed totality, you’re not asking what the nature of the totality is; you’re asking: what is this cow? But if the cow separated from the group, then you ask: wait, what was the totality it came from? That’s a question about the totality.
[Speaker B] Oh, repeat that, repeat that. In a case where a cow did separate, from—
[Rabbi Michael Abraham] This totality. And when I ask myself what this totality is, the majority determines what this totality is. So if most of them are sin-offerings, then it will be a sin-offering. If the majority are burnt-offerings, then it will be a burnt-offering. But if I go to the animal itself and take it out of the mixture, okay? And now I ask myself: what is this animal? It did not separate; the doubt arises while it is still there in its place. So the question is not about the totality; the question is about this animal. And it is exactly the same as with the pieces of meat. And here there are two possibilities: either this is a sin-offering or a burnt-offering, fifty-fifty. There is another type of case—I won’t get into it, because in any event it is problematic—after the law of fixed location versus separation is established, the Talmud brings in several places, like the wagons of Tzippori and so on, what happens when the entire totality is moving. It is not that something separated from the totality, but rather the entire totality is not stationary but moving. And the Talmud sees that as not fixed location, which is very strange according to every explanation I can think of. It’s very odd. So those are already extensions of the law of fixed location or the law of separation. I’m not talking about that right now; maybe I’ll get to it later. Right now I’m talking about the original cases, like the shops, like the frogs, like the offerings you mentioned earlier. So there Rabbi Gordin’s claim is that if the piece separated, then the question is: what is the nature of the totality? And when you ask what the nature of the totality is, you say that the majority determines the nature of the totality. But if you approach the piece while it is still in place, then you are not asking what the nature of the totality is—the totality doesn’t interest you. I am taking a specific piece; I’m asking what this piece is. So that has nothing to do with the totality. And regarding this piece, either it is kosher or it is non-kosher—those are two possibilities—and I have no basis to prefer one possibility over the other; therefore it is fifty-fifty. In other words, the question is whether I am asking a question about the totality or about the specific item before me. Okay? That’s the explanation he offers, the first explanation.
[Speaker D] That sounds a bit like semantics.
[Rabbi Michael Abraham] What do you mean?
[Speaker D] Meaning that I decide to relate to the totality.
[Rabbi Michael Abraham] I’m not deciding; that really is the character of the question.
[Speaker D] Right, but it feels psychological.
[Rabbi Michael Abraham] No, I’m saying—that’s why I gave the introduction. You’re right that this is not a probabilistic distinction. It’s not that I can now really understand why the probability is fifty-fifty, because it isn’t. This is not a probabilistic distinction. Okay? That’s why I said from the start it cannot be that the explanation is based on a probabilistic distinction. But he is trying to propose a formal distinction, behind which there is some kind of reasoning—but legal reasoning, not probabilistic reasoning. And then he says: the decision based on the majority depends on what question it is that you are asking, and one can understand that on the formal halakhic plane. You can say that such a thing counts as reasoning, even though you do not get here a probability calculation that really gives you fifty-fifty. Okay? That’s why I gave all that introduction, because truly all the explanations are of that kind. Meaning, we’re not going to arrive here at an explanation that gives me a calculation that really yields fifty-fifty. Although I will get somewhat closer to that later.
[Speaker E] Yisrael Aumann actually proposes an explanation that is probabilistic, the explanation in the name of Achido.
[Rabbi Michael Abraham] I saw that once. I really was not persuaded. I don’t even remember anymore what he says.
[Speaker B] Who proposes it? Aumann.
[Rabbi Michael Abraham] He—
[Speaker E] Says that it depends on choices; when it depends on choices, that is called fixed location—that’s his claim.
[Rabbi Michael Abraham] Wait, if that’s the explanation, then I’ll get to it later.
[Speaker E] No, but he doesn’t make a simple distinction there. He doesn’t make a distinction there between choices where part of the choice is this issue of impure or pure, and choices that are unrelated. He doesn’t make that distinction, which really annoyed me, but when I—
[Rabbi Michael Abraham] I’ll get to that explanation, so make the comment then. We’ll get there—if I understand you correctly, we will get to that explanation. I don’t remember that it was Meni Uman; I read Uman many years ago, but Aharon Urich suggested an explanation like that. I’ll bring it from him. And then, if you have something to comment, comment on it there, okay? So basically we have—so the first explanation basically tells me it depends on what question I’m asking. Now, I want to bring a quotation from his article, because it connects to things I’ll say later on here. In light of the explanation we’re suggesting now, in a majority case… that is present before us, we would say that the statistical survey is not a factual clarification, but rather a tool meant to determine the character of the place. When I do a statistical survey and discover that there are nine kosher stores and one non-kosher one, that’s not a statistical survey, it’s not a clarification of reality, but rather a survey whose purpose is to determine the character of the place—what kinds of stores are there in that place. If most voters in a certain city voted for the red party, then the city is a red city, and therefore the residents who live in the city are red. That is not a probabilistic statement; it is the character of the city. According to what we have said, reliance on the majority in a case where it is present before us is in the category of guidance and not in the category of clarification. The Torah established that one should follow the majority, and therefore in every case of determining the character of a body, we determine it on the basis of the majority. Now here this is an important point, because later on I’ll comment on it, so I just want to sharpen it further. We already saw in Rav Shimon, in one of the first lectures, we already saw in Rav Shimon that he wants to argue that a majority that is present before us is not a probabilistic majority, as opposed to a majority that is not present before us. It is a rule, a scriptural decree, a formal halakhic rule; it is not a probabilistic majority. And in a majority that is not present before us, that is a probabilistic majority, and I also explained that—not for his reasons, I explained it differently, but I agree with him. Now Gordin says something similar, but it’s not the same thing. Gordin does not say that a majority that is present before us is not probabilistic; he argues that the fact that we follow it is not because of probability. Meaning, he does not say that there is no probabilistic logic in following a majority that is present before us; maybe he thinks that, but that is not what is written there. What he says is that the reason we follow a majority that is present before us is not because of probabilistic clarification, but because it is some kind of halakhic guidance. It could be that it also clarifies probabilistically, and it could be that it does not. Rav Shimon Shkop goes one step further. He wants to argue not only that this is not the reason we follow a majority that is present before us, but that this reason does not exist at all. It is not a probabilistic majority at all. It is a formal halakhic rule. Now, as for this, I already explained it in the first lectures of the series; I’ll come back to it in the explanations later on as well, but that’s why it was important for me to define it here. Okay, let’s stop here; we’ll continue next time. Does anyone have comments or questions?
[Speaker F] The Rabbi mentioned a column where Rabbi Gordin’s remarks appear—which column was that?
[Rabbi Michael Abraham] Two hundred thirty-seven. Everything I’m saying today is based on that, following column two hundred thirty-seven; there too there is a reference to Rabbi Gordin’s article.
[Speaker E] I’ll send the Rabbi the Israel Uman thing on WhatsApp, his article.
[Rabbi Michael Abraham] Good. Okay then, Sabbath peace, goodbye.
[Speaker F] Sabbath peace and blessings, thank you.