Doubt and Probability — in Halakha, Philosophy, and in General — Lesson 26 — Rabbi Michael Abraham

Table of Contents

• [0:06] Distinguishing fixed and separated cases in finding meat
• [2:58] Linguistic reasoning: the role of the word “et” in inclusive interpretations
• [7:00] Rabbi Akiva versus Shimon HaAmsuni on including Torah scholars
• [11:35] The need for a non-probabilistic explanation of the law of fixed cases
• [18:25] Legal reasoning versus probabilistic reasoning — migo as the force of a claim
• [21:42] Rabbi Gordin on a majority that is present before us and the collective
• [27:47] The rule that most is treated like the whole in a state of communal impurity
• [35:23] Applying majority rule to the law of the religious court

Summary

General Overview

The text presents the law of fixed versus separated in the sugya of the shops in Tractate Ketubot: a piece of meat found in the street is judged according to the majority of kosher shops, whereas a piece taken from an unidentified shop is treated as an even fifty-fifty doubt even if most shops in town are kosher. It is argued that most commentators limit the law of fixed cases to a majority that is present before us, while in a majority that is not present before us we always follow the majority. From there, an interpretive tangle is built: we need a rationale for the distinction between fixed and separated because it is derived from the exposition of “and he rose against him and lay in wait for him,” but the distinction does not appear to be probabilistic, so the proposal is to look for non-probabilistic legal reasoning. Two main explanatory directions are presented, criticism of them is offered, and finally the discussion branches off into questions of emotion and morality (the flask of water, Kant) and into Talmudic aggadah.

The law of fixed and separated: a piece that left its place versus a piece in its place

The text states that a piece of meat found on the ground is judged according to the majority of shops in the city, and if most shops are kosher then the piece is permitted. The text states that a piece taken from a shop, when we do not know whether that shop is kosher or non-kosher, is treated as a fifty-fifty doubt even when most of the shops are kosher, because the piece is fixed in its place. The text compares this to throwing a stone into a group: when the people are fixed in place, even a majority of gentiles is not decisive, and each possibility is given the weight of half-and-half.

The scope of the law: majority present before us versus majority not present before us

The text states that according to almost all commentators and halakhic decisors, the law of fixed was said only regarding a majority that is present before us. The text states that with a majority that is not present before us there is no distinction between separated and fixed, and we always follow the majority. The text defines that with a majority present before us, we follow the majority only when the item has separated, whereas when it remains in its place it is treated as half-and-half.

The need for an explanation and the link to scriptural exposition: “and he rose against him and lay in wait for him” and “You shall fear the Lord your God”

The text argues that the law of fixed cases is not written explicitly in the Torah and is learned from an exposition on “and he rose against him and lay in wait for him,” and therefore we need a rationale explaining why the distinction is specifically between fixed and separated. The text presents a model in which there is a textual trigger for the exposition, but the choice of the content of the exposition is made through reasoning, and it illustrates this with the word “et” in “You shall fear the Lord your God.” The text describes the tension between Shimon HaAmsuni, who gave up on interpreting occurrences of “et,” and Rabbi Akiva, who interpreted it as “to include Torah scholars,” and presents this as a difference in the degree of confidence in the interpretive rule rather than in one’s assessment of plain logic.

Emotion and morality in the background: the flask of water and “your brother shall live with you”

The text connects the discussion to questions of emotion and morality through the example of two people walking with one flask of water, and describes a clash between an approach that prefers rational decision-making and an emotional response to another person’s suffering. The text presents Rabbi Akiva’s position as understandable as a law of rescue and not as “elimination,” while on the other hand it describes criticism of the possibility of standing by while the other person wastes away. The text returns and marks the background of the discussion as the relationship between moral-emotional consideration and formal halakhic consideration.

The tangle: the difference is not probabilistic, and the need for legal reasoning

The text argues that there is a strong intuition that there is no probabilistic difference between fixed and separated, and therefore the explanation we are looking for cannot be probabilistic. The text concludes that the way out is “legal explanations” or “non-probabilistic reasoning” that justify a halakhic distinction even without changing the odds in reality. The text brings examples such as a presumption of possession, “the burden of proof is on the one seeking to extract from another,” and migo as forms of reasoning that do not determine who is telling the truth probabilistically but rather create a legal ruling. It also gives the example from American law of “the fruit of the poisonous tree” as a policy that seems legally sensible even though it runs against factual knowledge about guilt.

Rabbi Gordin’s explanation: a majority present before us as defining the character of a collective, and most as the whole

The text presents in the name of Rabbi Gordin (column 237) that a majority present before us is not a probabilistic tool but a formal rule whose purpose is to determine the character of a whole, such as a religious court or “the shops of the city.” The text explains that in his view, when two out of three judges rule liable, the decision is not because the majority is “probably right,” but because that is how “what the court said” as a collective is defined. The text presents the parallel to the law of a community impure on Passover, where “most is treated like the whole” determines the status of the collective and does not identify a specific individual. The text explains that in the fixed case of the shops, the question shifts from the collective to a particular shop from which the piece was taken, and therefore there is no place for the rule that colors the whole, and we remain with a half-and-half doubt.

Critical comments on Rabbi Gordin: most as the whole versus following the majority, and the question of probability

The text argues that Rabbi Gordin’s explanation resembles “most is treated like the whole” more than the rule of “following the majority,” and that identifying the two is problematic. The text raises another difficulty: even if the novelty of a majority present before us is formal, there still remains the basic probabilistic consideration of nine kosher shops against one non-kosher one, so it must be explained why we do not apply that in a fixed case. The text argues that Rabbi Gordin did not show that the probabilistic explanation is wrong, but only proposed an additional explanation, and therefore his explanation provides at most a partial solution and needs supplementation.

The example of democratic majority versus majority in a religious court, and the question of dismantling the public

The text distinguishes between a majority in a religious court, which is meant to reach the correct ruling, and a democratic majority, which is meant to reflect the will of the public and not the truth. The text argues that in a democracy the justification for majority rule is rights and equal influence, not a claim that the majority is wiser. The text explains that a minority claim refusing to accept the majority’s decision rests on a statement of breaking up the partnership and no longer sitting “around the same table,” and that this may be considered a dismantling of the state and an opening to a struggle over resources and rights.

Moshe Koppel’s explanation: an undefined question, futurity, and negative half-and-half

The text presents in the name of Moshe Koppel a model of balls in a container, where there is a difference between a question about a ball that was already drawn and the hypothetical question “if I were to draw one,” and it argues that the hypothetical question is not well defined and therefore is not answered through ordinary probability. The text applies this to throwing a stone into a group and argues that the discussion concerns intention at the time of the throw and not a result that is already known, and therefore this is a future-oriented question that is not well defined. The text explains that “half-and-half” in fixed cases is a “negative half-and-half,” expressing the absence of information that would favor one option over the other, and not a positive 50% probability. The text objects that the classic case of shops in a fixed situation appears to be a question about the past, after the piece was taken, and therefore does not fit the futurity model very well.

The framing claim: no explanation covers all the cases, and categorical distinctions expand

The text states that no explanation will really cover all appearances of the law of fixed cases in the Talmud, because once a basic category has been established, the Sages expand the definitions even to cases where the original rationale does not fully apply. The text argues that even so, in the case of the shops, which is the classic case of fixed status, it is harder to accept that the rationale does not fit the distinction. The text stops the discussion after presenting the two main explanations and the difficulties that accompany them.

A digression to Kant and morality: duty, interest, and “feeling good”

The text brings a question from another series about Kant: it is argued that a moral act done out of compassion impairs its validity, and the question is asked whether an act done from a sense of duty is also impaired, because afterward one feels good about oneself and so there is some “return on the investment.” The text answers that the action is done “because that is the truth” and not because of the reward, and it casts doubt on the idea that there is always emotional reward. The text refers to the example of “patience” in order to distinguish between action done from a value and action done from self-interest.

A digression to Talmudic aggadah: a dead man speaking in the grave in Tractate Shabbat

The text brings a question about Tractate Shabbat 152b, where speech by Rav Acha bar Yoshiyah from within the grave is described in relation to Rav Nachman. The text answers that aggadic passages of this sort are not read as factual descriptions but as parables with a message, and that when the message is unclear there is not much point in dealing with it. The text ends by saying: Shabbat shalom.

Okay, last time we started discussing the topic of fixed location, and we saw in the Talmudic text in tractate Ketubot that the Talmud says: if a piece separated—let’s do this briefly, without the frogs and all the examples, or throwing a stone into a group and so on—but for our purposes we’ll make the distinction within the case of the stores. If there’s a piece of meat that I find on the floor and I ask myself which store it came from, whether it’s kosher or not kosher, then if most of the stores in the city are kosher, I can assume that this piece is kosher. That’s the law of a majority that is present before us. But if I take a piece of meat from some store, and I don’t know whether that store is a kosher store or not a kosher store, in that situation, even if most of the stores in the city are kosher, I’m supposed to treat that piece as an uncertainty of fifty-fifty. I do not follow the majority in a place where the piece is fixed in its place. Right? Same thing, we talked about throwing a stone into a group—someone who throws a stone into some room, whatever it is, where there are gentiles and Jews inside, since the people there are fixed in their place, then from our standpoint when he threw the stone, even if let’s say there’s a majority of gentiles, the one lone Jew who is there is fixed. Since he is fixed, his weight basically becomes fifty percent, and likewise if there is one lone gentile there, and so on. Meaning: when things are in their place, I don’t take into account the distribution in the surroundings, but what I do is this: if there are two possibilities for determining the status of the thing under discussion—right, the piece or the person or whatever it may be—then as far as I’m concerned, it’s fifty-fifty. The question is why we do that at all. And one more thing I said: the law of fixed location is said only—this is the view of almost all the commentators and halakhic decisors—the law of fixed location is said only regarding a majority that is present before us. With a majority that is not present before us, we do not distinguish between whether it separated or whether it is fixed in its place; it makes no difference. With a majority that is not present before us, we always follow the majority. With a majority that is present before us, we follow the majority only if the piece separated, but if the piece is in its place, then we do not follow the majority and it is considered half and half, fifty-fifty. So that’s the factual picture. Now when I ask myself, okay, so when we look for an explanation of such a law, we can ask ourselves what kind of explanation we’re even expecting here. In other words, what sort of explanation could even be relevant here? I talked about this last time, I’m just summarizing. On the one hand, it’s clear that there has to be some explanation here, because the law of fixed location isn’t really written in the Torah, excuse me. The Talmud derives it from “and rose against him and lay in wait for him,” the Talmud derives from there that in the law of fixed location we do not follow the majority. And when you derive it from the verse “and rose against him and lay in wait for him,” you are basically assuming that there is some logic in the difference between fixed and separated. Because if there were no logic, then why not say that the law of majority applies only—I don’t know—only to people and not to frogs, or any other distinction you want to come up with. Why did they choose specifically the possibility of distinguishing between fixed and separated? They chose it because there is some kind of logic in it. Right? An example of this kind of thing: suppose I say “You shall fear the Lord your God.” So “et” comes to include—let’s say that’s my assumption. Now I ask myself what it comes to include. Maybe, I don’t know, it comes to include floor tiles. “You shall fear the Lord your God”—to include floor tiles. You also have to fear the floor tiles. Not likely. So how do I determine what is included by the word “et”? It makes sense to do that by checking all the possibilities and choosing the one that is most plausible. So: to include Torah scholars. Meaning, whenever… so I have a textual trigger that tells me to interpret, for example the word “et,” or an analogy of verses, or all kinds of things like that. And after I have the textual trigger, the decision what to do with that trigger is a decision made by logical reasoning. So I have reasoning that says it makes sense to include Torah scholars and not floor tiles. So I say okay, if so, the “et” here comes to include Torah scholars. Same thing here. Here “and lay in wait for him” comes to say that the law of majority exists only in a certain situation and not in all situations. Now I ask myself, okay, what characterizes the situation in which the law of majority applies, and what characterizes those where it does not? What distinction am I going to make here? Clearly that distinction has to have some logic. Because if it had no logic, why would I make it? There are a thousand other possible distinctions. Therefore there is some logic in it. That’s on the one hand. On the other hand, it’s pretty clear that this logic is not… What? If there were that logic but we didn’t have a trigger, does the Rabbi really think we wouldn’t find a way to make the interpretation that is important to us and that seems very plausible to us? Depends how strong that logic is. Obviously, obviously. We persuade the depths of our own soul. So maybe the logic wasn’t strong enough and therefore a textual trigger was needed. But still, there is some distinction here that without the text I wouldn’t make, sort of like fitting together a two-story structure, it goes together the way they say. Again, if a person thinks—if the Sages had thought it should be interpreted this way, they would have interpreted it. If they thought not, then because there is the “et,” we interpret using the “et.” Shimon HaAmsuni, I don’t know, did he work it out in the end? No, he didn’t work it out. No, he didn’t. Right, exactly. That’s actually precisely the example the Rabbi brought, and that’s actually not a good proof. And the fact that he gave up because he couldn’t add anything—fine, so everything’s fine. All that troubled us about the “et” no longer troubles us. So everything is fine. But Rabbi Akiva, for example, didn’t give up, and he interpreted it as Torah scholars. But because… because of the word “et,” or because he thought that even before? No, clearly he didn’t think that before. He didn’t think you need to honor, to fear Torah scholars? After he found the “et” a light bulb went on, and he said wait, now I… The opposite—there wasn’t even a light bulb after the “et.” The opposite, that’s the whole point. Even after it says “et,” to actually say that I should fear Torah scholars is a strange thing. Why? Because it basically means that just as I fear the Holy One, blessed be He, I also fear people, Torah scholars. That’s idolatry in partnership. It doesn’t fit at all. But if you phrase it as… they have divine inspiration, they cleave to the efficient cause, and you can phrase it in a more elevated way, then it all sounds much less pagan. No, and still you see that Shimon HaAmsuni didn’t want it. He didn’t see what there was to include here. Why? Because he says anything you include will be comparing it to the Holy One, blessed be He; we don’t do things like that. So along comes Rabbi Akiva and says, right, you’re correct, I agree too—this is how I understand it—I also agree that the simple logic says not to include Torah scholars. But I have “et,” and I have to include something. What do you mean you have to? Here is Shimon HaAmsuni, a religious Jew like you, who decided to give up. What he did was huge—to give up a lifelong project of study and say I retract everything because nothing can be compared to God. And you, Rabbi Akiva, with a wave of the hand—even though you don’t agree, and you agree with Rabbi Michael Abraham that it’s not right, that it’s not logical, that it’s idolatry—you go… No, you have to add something, and you take responsibility for this pagan thing and say: to include Torah scholars. The difference between them is not the question whether it is logical or not logical, in my opinion. Both think it isn’t logical. The difference between them is how much confidence you have in the interpretive principle that “et” comes to include. Shimon HaAmsuni says, look, I had a hypothesis that “et” comes to include. I got stuck, like Popper, right? So okay, apparently the hypothesis is wrong. Rabbi Akiva says, it’s not a hypothesis; I’m sure that’s how it works, it’s a clear interpretive rule. Even though I don’t identify with the content. So that really strongly recalls the two who were walking along, where Rabbi Akiva practically kills someone quite casually because “your life and your brother’s life are with you,” your life takes precedence, supposedly. That’s why he throws up his hands. It’s a bit illogical. Clearly it’s something fundamental. They have a different outlook on divinity here, or a different outlook on human beings probably. Rabbi Akiva doesn’t kill anyone, he saves. Ben Petura kills. Fine, but he stands there and doesn’t let him avoid some terrible suffering because in the meantime I’ll survive and be able to keep eating carrots. I don’t understand, and then afterward both of us will suffer, so what… why is Ben Petura better? I don’t understand how that… Let the Rabbi try to imagine for himself honestly if his best friend, or his son, or I don’t know, the wife of his youth, is standing there with a flask of water and drinking it day by day, sip after sip, before his eyes. The friend is going and collapsing and crying out, already unconscious, only asking for a drop of water to ease the pain a little, even though he’s already despaired of his life—and I say, sorry, I’m not giving you the last sip, because it’s important to me to survive so that I can… Not “so that,” it’s important to me to survive, period, not “so that.” Yes, exactly like that. Can the Rabbi see himself doing that? Look, I’ve never been in that situation, but it makes a lot of sense to do that. It’s the most logical and reasonable solution, and if I don’t do it, then that’s just an unnecessary influence of emotion. Let’s imagine Rav Kook. Let’s imagine that Rav Kook, God forbid, went through this story. Rav Kook the father, not the son. Rav Kook the father went through this situation. We… it was even filmed, and you see his friend, his true rabbi-friend whom he loved, collapsing. Shmuel, the discussion about Rav Kook adds nothing. Meaning, I’ll answer you about Rav Kook the same way I answer you about myself. If Rav Kook had acted differently, then I disagree with him. So what do we gain from discussing Rav Kook? I don’t understand what you can gain from that. If we would feel—if Rav Kook could be Rav Kook only if we knew this was part of his history, that he abandoned a friend and didn’t let him take a sip—only then could he be Rav Kook. If he didn’t do that, then he’s worthless. Then he’s not a teacher of Jewish law in Israel, he’s just emotional. Imagine Rabbi Akiva. Yes, exactly, Rabbi Akiva. I imagine it; I can’t help imagining it. Okay, then maybe you need to take a pill. I don’t trust doctors. Yes, I return to this: in the end we always come back to the question of emotion and morality, right? That’s always what’s in the background. Okay, in any event, the claim is that on the one hand there has to be an explanation for the distinction between fixed and separated. On the other hand, it’s not reasonable that this explanation is a probabilistic explanation, that there should be a difference in probability between a case of fixed and a case of separated. Why? I told you about my friend, right, who each time came with a different proposal to explain the law of fixed location, and I told him that when he’s ready to drink poison on the basis of that explanation, then I’ll be happy to hear it. So far we haven’t reached an explanation he’s prepared to drink poison on the basis of. So in the meantime I wasn’t willing to hear any of his explanations. Meaning, the point is that we all intuitively feel that probabilistically there is no difference between fixed and separated. Ninety percent is ninety percent. Therefore even if we make some distinction, that distinction will not be a probabilistic distinction. We wouldn’t drink poison on the basis of it. This is a matter of Jewish law. It’s not—in reality we would not act this way. So if that’s the case, we are in a kind of bind. Because on the one hand there has to be an explanation. On the other hand it can’t be probabilistic. So if it isn’t probabilistic, then it’s a scriptural decree, and then there is no explanation. The only way out that suggests itself here is that there is an explanation, but the explanation is not probabilistic. What other explanation could there be for a difference in the laws of majority between fixed and separated if the probability is the same? So what then—then we should follow the majority. Or it’s a scriptural decree, I don’t care, but you’re telling me there’s an explanation and it isn’t probabilistic. So what is it then? Meaning, an explanation for the difference between one situation and another, where here you follow the majority and there you don’t—an explanation could be something probabilistic. You tell me here there isn’t ninety percent and there there is ninety percent, therefore here we follow it and there we don’t. That’s called an explanation. But if there’s no probabilistic difference, then you’re telling me it’s a scriptural decree—which means there is no explanation. How can it be that there is an explanation, but it isn’t probabilistic? Meaning, the conclusion ultimately has to be that there is another type of explanation. And I called these legal explanations. Or halakhic, not important—logical reasons, however you want to call them, non-probabilistic. Meaning, explanations that say: I can understand legal or halakhic logic, right, a line of reasoning that distinguishes between separated and fixed, but that reasoning does not say that there is a probabilistic difference between the two situations, and still there is logic in acting according to that reasoning. Now I brought—I think I brought some other example too, right—miggo, strength of claim, current possessor, all kinds of things of that sort, where again there is no probabilistic logic. There is no advantage to assuming that the one holding the money is not lying and the one claiming against him is the liar. And nevertheless we give preference to the one holding the money, and about that the Talmud says, “Why do I need a verse? It is logical reasoning.” Meaning, it’s a line of reasoning. Now if it’s reasoning, it’s not probabilistic reasoning, because probabilistically the plaintiff and the defendant stand on the same footing. I don’t see a reason to distinguish between them. So if there is nonetheless reasoning and it is not probabilistic—why, by the way, do you start from the assumption that everything said by the Sages has to be mathematically probabilistic? No, the opposite—I’m trying to argue that it doesn’t. No, maybe there isn’t any probability here at all, entirely. Meaning it could be that the Sages in principle related to their way of life. And in their perspective on how they saw life around them, right, in a legal and force-based way. Let’s suppose. Let’s say there are ten stores in a city. Okay? I found a piece of meat. Now there are two cities. In one city there are nine kosher stores and one non-kosher one. That’s city A. In city B there are nine non-kosher ones and one kosher one. Now in city A I say the piece is kosher; in city B I say the piece is not kosher. You think that has nothing to do with probability? No. That sounds really strange. Of course it does. What do you mean? You understand that here the chance that it’s kosher is greater. Same thing. It’s equal. It’s equal to that. Of course it’s equal. If we say this is fixed or separated, doesn’t matter, then in both places it’s the same. Separated, separated. Also in separated it’s the same in both places. Meaning, there a person would be able to drink poison based on this? No, certainly not. Meaning, that’s why I say maybe there are nine poison stores and one store that sells water. You found a bottle of water. And in another city it’s the opposite: there are nine water stores and one poison store. You found a bottle of water. Now I ask which of the two bottles of water will you take? I won’t take either one. You have to take one. I’m asking which one you’ll take. Otherwise I’ll shoot you in the head. Which one do you take? Obviously I’ll take the one where there are nine water stores. A lottery? The one with nine water stores. Why? Obviously. Yes, because I assume that there it’s certainly more likely. Meaning there is a probabilistic difference? Yes, but a probabilistic difference in the case of separated. I’m talking about separated. Yes, but again, all the Sages’ discussion, everything the Sages established, right, whether separated or fixed, you accept that. You accept that separated and fixed—no, not separated and fixed. First of all the law of separated itself. The law of separated itself is apparently an expression of statistical reasoning. Now when you tell me that in fixed you don’t apply the law of following the majority, if you tell me this is not a scriptural decree but has some logic to it, then I would say apparently the statistical logic in fixed does not exist. But apparently that’s not true. That’s exactly the bind I presented. On the one hand there ought to be a statistical difference, because it’s not a scriptural decree. On the other hand there is no statistical difference, meaning fixed and separated are the same statistically. So how can you say there is logic in it but it is not probabilistic? And then I argue: there is a certain type of reasoning in Jewish law that is non-probabilistic reasoning and yet it is still reasoning, not scriptural decrees. There is logic in it. For example, “the burden of proof lies on the claimant” is a rule for which there is logic to follow it, although if you ask me probabilistically who is right, the plaintiff or the defendant, fifty-fifty. I don’t know. Or miggo as strength of claim, or all kinds of things like that. These are all sorts of lines of reasoning that are legal in nature. They are not lines of reasoning that say this miggo really proves you’re right. It doesn’t prove you’re right, it’s miggo that he could have said otherwise. But still there is logic to following this rule. It is not a scriptural decree; it is reasoning. Miggo is reasoning, not a scriptural decree. In “the mouth that prohibited is the mouth that permitted,” there are two possibilities, but miggo is simple reasoning. Therefore—so where does miggo as strength of claim come from? Miggo as strength of claim is legal reasoning. That’s the claim. Meaning, the point is that there is a certain type of reasoning. It is worth paying attention to this, this is an important methodological lesson. There is a certain type of reasoning which on the one hand is reasoning—it is not a scriptural decree—but on the other hand it is not probabilistic. So what does “reasoning” mean? It means that somehow my legal logic says this is the proper way to proceed, even though probabilistically this path is no better than that path. But legally there is logic in following this thing. Okay? Just for example, even if you look at a doctrine like the fruit of the poisonous tree. Right? In the United States it’s stronger; in our system it’s not really part of our legal system. But obtaining evidence through an invalid method—obtaining evidence through an invalid method, in the United States that evidence is worthless in American law. That’s fruit of the poisonous tree; you don’t use those fruits. Meaning, even though you recorded so-and-so committing murder, the recording was made unlawfully, they will not convict so-and-so. Even though they know he murdered. Now the fruit of the poisonous tree is not a scriptural decree, right? Legislators there established it, or I don’t know who established it. They established it because it seemed logical to them to act that way. On the other hand, probabilistically it is clear that the one who was recorded is indeed a murderer. Right, that’s obvious. But there is legal logic in not carrying things through, not convicting him on that basis, even though I know he is the murderer. That, for example, is an example of reasoning. Not a scriptural decree—it is reasoning. But it is not probabilistic reasoning; it is legal reasoning. Now there are all sorts of examples of this. In Jewish law there are more of them than in other legal systems, but I think it exists elsewhere too, like the example I just gave. So that’s what I call non-probabilistic reasoning. Legal reasoning. Now here too, in the difference between separated and fixed, I say: even before I look for the explanation, I can already sketch what sort of thing it must be. Meaning, what could the explanation be here? The explanation probably has to be non-probabilistic reasoning. It’s not likely to be probabilistic, and there has to be some reasoning, so it’s non-probabilistic reasoning. And that is basically what has to be here. Now the question is: what is that reasoning? So the first reasoning… Rabbi? Yes. Isn’t the human difference here the significant thing? It practically screams to the heavens. What, what difference? Here there is a human factor in fixed location. And there is a human choice here that has nothing to do with all the rest… even if there are a million stores, he’ll look for the non-kosher store, because there’s a live store here. Ah, okay. You’re offering an explanation for the difference between fixed and separated. We’ll get there. We’ll get there. I think you mentioned that last time too. So the first difference, the first explanation I brought already last time, is that of Rabbi Gordin. Right, once again, in my column you can also see the references, column 237. So he basically wants to claim the following. He says that a majority that is present before us is in essence a majority whose purpose is to determine the character of some whole. He starts from a difficulty we raised regarding majority in a religious court. Right? The Talmud in Hullin says that following the majority in a religious court is the source for a majority that is present before us, that we follow the majority among the judges. And the question is why this is called a majority that is present before us at all. Like the explanation in Sefer HaHinukh—the Hinukh says we follow the majority because in most cases the majority is right. Now that is by definition a majority that is not present before us, not a majority that is present before us. Because you are basically saying it is the nature of the world that when there is a dispute, the majority is usually right. In most cases the majority is right. Therefore also in the case before me, if there is a majority against a minority, most likely the majority is right and not the minority. Right? That’s the explanation of the Hinukh. So that, of course, is a majority that is not present before us, not a majority that is present before us. So Rabbi Gordin says that in fact the law in a religious court—the purpose of the majority there is to determine the character of the court. Meaning, when there is a dispute among opinions in a religious court, two judges say that Reuven murdered and one judge says no—usually… in murder cases it’s twenty-three, but in monetary cases: two judges say Reuven owes the money to Shimon and one judge says Reuven does not owe the money to Shimon. Okay? Now when I want to understand what… so what do we ultimately rule in such a case? Rabbi Gordin says: I am really looking for what the religious court said. A kind of collective question, right? What did the religious court say? And the rule of a majority that is present before us basically tells me that if most of the judges in the court say something, then halakhically that is considered as if the court said that thing. Meaning, the court as a whole ruled that Reuven owes the money to Shimon. Meaning, the purpose of a majority that is present before us is basically to determine the character of some whole, of some collective—in this case, the collection of judges in the religious court. Or with stores, he says, when I find a piece of meat I am really asking: what is the nature of the stores in this city? If there are nine kosher ones and one non-kosher one, then the stores in this city are kosher. I determine the status of the whole set of stores in the city. Once I’ve determined that, he says, fine, then the piece of meat is also kosher, because the stores here are kosher stores. So Rabbi Gordin’s claim is that in fact what it means to follow the majority in a majority that is present before us is a rule that is not probabilistic at all. Meaning, it is a rule that addresses the question how I define a collective that has different shades. So which shade determines what the shade of the collective really is? Okay? We follow the majority. It comes out from this that it has nothing to do with justice at all. There is no connection to justice at all. Meaning, in the case of two against one or nine against one… In court you mean. Yes, yes, yes. It could be that it has nothing to do with justice. It is just formal, a formal matter. Right. And then he says that this is what majority of stores and majority in a religious court have in common. So that was the difficulty: majority in a court is apparently a majority that is not present before us, and majority of stores is a majority that is present before us. So he says no: in both cases it is a majority that is present before us. Why? Because the majority is not a probabilistic majority. The majority comes to determine the character of the whole. By contrast, with a majority that is not present before us, when I ask whether the woman before me is infertile by nature or not, I know that usually women are not infertile by nature. Now obviously there isn’t before me some defined collection of women whose status I am trying to determine. We’re talking about all the women in the world who ever were and ever will be, and this is some kind of natural law in general. There’s no defined collection of women whose status I need to determine. Therefore here I’m not discussing the status of some collective. Here I really use probability. I really say: if the distribution is ninety-ten of not infertile by nature versus infertile by nature, then the woman before me is probably not infertile by nature, because the distribution is ninety-ten. But that is a statistical, probabilistic consideration. By contrast, a majority that is present before us is a non-probabilistic consideration. It is a formal consideration that says: when you need to paint the whole in a certain color, and the individuals making it up have different colors, the color with which you paint the whole is the color of the majority of the individuals. That is a halakhic rule, it has nothing to do with probability. I need a majority, I need the religious court to rule—right, one second, I’ll get to that in a moment. So therefore it is a majority that is present before us. Okay? Maybe I’ll make a comment about what he said. In fact what he said fits better with the rule that a majority is as the whole, not with the rule of following the majority. Here we are dealing with the rule of following the majority; we talked about the differences between the rules. He is talking about something that looks more like a majority is as the whole. For example, if the Jewish people stand before Passover and a minority of people are impure and cannot bring the Passover offering, they are deferred to the second Passover. But if all the people are impure, then they bring the Passover offering in impurity on the first Passover. What happens if a majority of people are impure? Most of the people are impure but not all. So I would say okay, then those who are not impure will bring the Passover offering now, and those who are impure will defer to the second Passover. But the Talmud says no. If most of the community is impure, then everyone brings the Passover offering now in impurity. Why? Because a majority is as the whole. Now notice, this rule has nothing to do with probability at all. It’s not that some individual came out and I ask myself whether this person is from the impure or from the pure. No, I look at the status of the community and I ask whether the community is impure or the community is pure. And the claim of “a majority is as the whole” means that if most of the community is impure, it is as if all of it is impure. And you have determined the status of the whole, of the entire community, namely that this community is impure, and if so then it is as though the whole community is impure, and therefore they bring the Passover offering in impurity on the first Passover. Okay? Here this is obviously not a probabilistic rule; we are not asking a probabilistic question at all. We are asking what the status of the community is, and there is such a rule that says if most of the community is impure then as far as I’m concerned I view the whole community as though it were impure. And that is a halakhic rule, not a probabilistic rule at all. Rabbi Gordin wants to claim that majority is also a law of “a majority is as the whole.” He wants to claim that the law of following the majority in a majority that is present before us in a religious court is really the same law. It’s a law that a majority is as the whole. You want the religious court to rule the law, the court that must be a court of three; I have disagreement, two against one. I ask myself what the court as a whole ruled. The rule is: a majority is as the whole. If two ruled thus, then as far as I’m concerned the court as a whole ruled thus. Exactly like the Passover offering. One problematic comment here is that “a majority is as the whole” is a different rule from “following the majority.” He is basically identifying the two rules. Okay? And he disconnects “follow the majority” from a probabilistic rule altogether. Right, yes. He basically wants to claim that this is such a halakhic rule of how you determine the status of a collective. In fact it’s the same foundation both of you are saying: not to be concerned for the minority. I don’t understand. The foundation of going after the majority, the foundation of… Not taking the minority into account is the same idea. What are you talking about? Following the majority according to his explanation is probabilistic logic. I ask myself whether this piece is kosher or not kosher; the probability that it is kosher is greater, therefore… Yes, but also in probability the idea is that we are not concerned for the minority. No, the idea in probability is that there is a higher chance. A higher chance, but still there are thirty percent cases where it will happen, and the very fact that we don’t take those thirty percent into account is because the Torah establishes a principle that we are not concerned for the minority, and basically it all is learned from the Sanhedrin. Not being concerned for the minority in the probabilistic sense is not the same thing as not being concerned for the minority in the sense of determining the character of a collective. What does one have to do with the other? Two completely different things. Why? It’s the same principle. Absolutely not. In the context of determining the character of the collective, it’s not even a question of being concerned for the minority. I’m not concerned about anything. It’s not a probabilistic question whether you are from the minority or the majority. I’m asking what the character of the collective is. Is it determined by the majority or determined by the minority? That’s not a question of concern for the minority. In probabilistic questions, the question is whether you are concerned for a low probability. You are concerned for the minority, and here it is not a question of probabilities. Right. Right, it’s not concern about a case that may happen, but when the Torah tells us not to relate to the minority, maybe that includes this too. Maybe yes, maybe no, but why? Basically it is all learned from the same source, after all, all of it is learned from the Sanhedrin. No, but there is another problem here. This is the difficulty: you’re taking the question mark and stretching it into an exclamation mark. That’s exactly the question of how these two things are learned from the same verse. It is not certain that they are all learned from the same verse. “A majority is as the whole”—only later authorities say it is learned from the same verse. Do you hear? Yes. In “a majority is as the whole,” when we relate to the character of the public or, for example, the whole Jewish people and so on, that is one thing. But when we relate to a religious court, “a majority is as the whole” is a problem, because the whole court is disqualified at that moment when it is all of it. I don’t understand. If there is a religious court discussing some matter and everyone, yes, everyone for example reaches one verdict, they cannot judge it. What are you talking about? That is only in capital cases. Well fine, now I’m talking about that. After all, this rule is supposed to work everywhere. If you’re talking about this, whether you bring water or meat or offerings, doesn’t matter, right, but if this is the division, if this is the fixed rule, if basically this is how it has to work, then also in capital cases supposedly I should relate to it that way. Here it does not at all mean that really the whole court ruled to convict. The law is that when everyone rules to convict, he goes free. It is determined according to the reality that everyone ruled to convict, not according to the law. The law is not that everyone ruled to convict, but that the whole ruled to convict. That’s not the same thing. To say everyone ruled to convict is a third law. That is not “a majority is as the whole” and not “following the majority”; that is nullification by majority. There you say—it is a third law—that says the minority is nullified and becomes like the majority. Then you can ask: if there were a law of nullification there, then indeed you could say, wait, if everyone convicts him then he should go free. But I’m not talking about nullification, I’m talking about “a majority is as the whole.” “A majority is as the whole” only says that when you ask the question “what did the court as a whole say,” then what the majority said is what the court as a whole said. That does not mean that all the judges as individuals ruled the same way. That is a different statement. That’s what you’re saying, I understand it very well. But for me, yes, when I ask about a court, supposedly I need to receive this as a halakhic ruling, right? I’m not going to stand up a religious court here in some way, how it looks and how it speaks and so on. After all, how does the court work? The court works such that each one rules, right, and by each one’s ruling it comes to a verdict. When I say okay, “a majority is as the whole,” supposedly I generalized them, and then I get to the other side, what you said correctly, right? That means it collides for me everywhere with another law. I don’t understand what you’re saying. Again, if it were nullification by majority, I understand your claim, say. Even there one could reject it, but I understand that. But “a majority is as the whole” has nothing to do with the matter. “A majority is as the whole” means that the court—not that all the judges ruled that he is liable, but that the court as a whole, if you ask what voice comes out of the court, the voice that comes out of the court is “liable.” But that voice comes out on the basis of the majority, not on the basis of everyone. If it came out on the basis of everyone, indeed the ruling would be disqualified. But if it comes out on the basis of the majority, then that does not disqualify that voice, and therefore when you ask what the court said, the court said he is liable. The court as a whole, not that all its judges said he is liable. That is not the same thing. In nullification by majority… one could say that all the judges say he is liable, which indeed might look more problematic. So basically what he says is why I say this is a comment, because he is basically identifying “following the majority” with “a majority is as the whole.” But the claim is an interesting one. Meaning, he is basically saying that with a majority that is present before us, that is why majority in a religious court is a majority that is present before us and not a majority that is not present before us as we would think, because the essence of majority in a religious court is not to determine something probabilistic, but to determine the character of the court. What I talked about in one of the first lessons in this series—these were Friday lessons, in fact this series started on Fridays. There I talked about this in… I forgot what I wanted to say. Ah yes. When I talked about the difference between a democratic majority and a majority in a religious court. Why, in decision-making in a community, can’t you simply learn it from the verse “follow the majority,” that we follow the majority, whether the seven representatives of the town or even a vote among all members of the community—there was a dispute among the medieval authorities whether the majority determines things at all. And even the medieval authorities who said the majority determines things did not understand that this is learned from the verse “follow the majority” in its simple sense; they always added some further reasoning. And the question is why. What’s the problem? It says in the Torah “follow the majority,” everything is fine. So I explained that a democratic majority, or a majority in collective decision-making, is different from a majority in a religious court. The role of the court is to determine the decision, the most correct decision. And therefore the Hinukh tells us that in fact the majority is more likely to reach the most correct decision. By contrast, the reason we go by the majority in democracy is not because the majority makes better decisions, but because it is a matter of rights. Meaning, every person has an equal right to influence the decisions of the state whose citizen he is. And now, once there are disagreements, you need to ask yourself, okay, so what will the state do? The logic says the state should do what the majority wants and not what the minority wants. But the fact that the state does what the majority wants is not because the majority is right, but because if you want to ask what the state as a whole wants, it makes the most sense to say it is what the majority wants and not what the minority wants. What I am looking for here is not the just decision; I am looking here for the decision that the public wants. Even if it is not just. Because the rule in democracy is that the public determines. And if that is what the public wants, that is what should be done, even if it is wrong, even if that majority is not right. It doesn’t matter. Meaning, the majority in democracy is not a tool for reaching truth; the majority in democracy is a tool for reflecting what the public wants. And when there are disagreements within the public—if the majority says, I don’t know, to make a hostage deal, and the minority says not to make a hostage deal—even if the truth is that it’s not worth making a hostage deal, the democratic rule says the majority decides. Why? Because the government is supposed to do what the public expects it to do. I’m being very simplistic here, but only to explain the principle, right? What the public expects it to do is what the government ought to do. Now you ask, what does the public expect? Some want a deal, some don’t want a deal. Meaning, if seventy percent want a deal and thirty percent do not want a deal, and I ask myself what the public as a whole wants—I need one answer. Tell me what the public wants: does it want a deal or not? So it makes a lot of sense to say: if the seventy percent want a deal, then I’ll decide that the public as a public, as a whole, wants a deal. And therefore the government will do it—not because it is correct but because it is what the public wants. And I mentioned all sorts of practical differences, Plato’s rule of the philosophers and so on. Maybe one could qualify this by saying that really the government is what the public determines and the public is the majority, but that is on condition that the public is defined as one public. But if the public is defined as several publics? Then they make decisions together, obviously, fine. The moment they make decisions together, it is one public. Suppose there are additional publics that have no representation at all. Fine, then no. If they have no representation then they are not partners in the decision. Why does that matter? I’m talking among those who are partners in the decision and make decisions together. About what you’re saying, I once wrote in one of the columns that this is one of the justifications for the claim of people who say that although the majority elected a government that wants, say, judicial reform, the minority can say: I do not accept the majority’s decision. Why? The rules of the game are: even if the majority is wrong, it doesn’t matter, it is what the majority wants. That’s undemocratic. What do you mean undemocratic? That’s what the majority decided, so you decided it’s undemocratic—so what? What lies behind the claim that it is undemocratic is the statement that if this is the decision you are making, I am no longer willing to sit with you around the same table. We are no longer one public. If we are not one public, then the minority is not obligated to accept the majority’s decision. We have dismantled the package deal between us. So if there are things sufficiently acute, then the minority, which thinks something about them that the majority does not agree to, can say okay, for me this is a red line. Meaning, if the majority imposes this decision on me, I withdraw from the state. I withdraw from this society; I am not part of the game. That is the justification for the claims of a minority that is unwilling to accept majority rule. And it is a serious justification; meaning one has to deal with it. It’s not simple. People always wave it away—what, the majority rules, there are elections, vote at the ballot box and that’s it. From here on, whatever the government decides expresses the majority view. Even assuming that it really does express the majority view—sometimes there are swings—but let’s assume that it really expresses the majority view. It still doesn’t matter, because in a place where the harm to the minority is devastating at the deepest level of its being, right, something that is critical for it to the shared social fabric, that minority says: friends, our shared biography is over. We are no longer one public. Which is basically the dismantling of the state. Of course the minority needs to understand that if it makes such a claim, it has dismantled the state. Meaning, now you can start fighting over its resources, start fighting over mutual rights. We are no longer the same state. So it’s not so simple to make that claim. But that is the justification, I think, behind these claims. Fine, only because this came up, I’m closing the parenthesis now. So that’s Rabbi Gordin’s claim. Now what does that mean regarding fixed location? It means, say, that I approach the piece in the store, take the piece in its place, right? Therefore it is a case of fixed location, not a case of separated. In such a case, says Rabbi Gordin, the question I am asking is not the question of what the character of the city’s stores is, right, the question of the whole. Rather I ask a different question: what is the nature of that particular store from which I took the piece? Because the piece is in a well-defined store. There is no whole set of stores here whose overall nature I need to ask about. I’m not asking a question about the whole; I’m asking a question about one store, that very store from which I took the piece. In such a case, says Rabbi Gordin, the novelty of a majority that is present before us was not said. The novelty of a majority that is present before us was said when you are looking for the color of the whole. You say the color of the majority is the color of the whole. In a place where the question I’m asking is not what the color of the whole is—I’m asking what the color of that store is from which I took the piece—then here there is no law of a majority that is present before us, because the rule of “a majority is as the whole” was not said here. There is no combination of a whole made up of details where you can talk about majority and minority and the majority determining the character of the whole. There is no whole here, and there is no majority and no minority and no anything. There is one store whose status I don’t know. So here the rule of a majority that is present before us was not said, and then we remain within the laws of uncertainty, so it is as half and half. That’s his claim. Rabbi, the way you are phrasing things makes it sound as though following the majority is the novelty, and where that novelty does not apply, we return to half and half. I’ll maybe phrase it differently; maybe that’s what you mean. According to this, it comes out that the novelty is not that in fixed we do not follow the majority, but that in separated we do follow the majority. We always think that if the piece separated, following the majority is simple reasoning, and fixed is the novelty, a scriptural decree, something that needs explanations. Now a contrary claim emerges. In fact, a majority that is present before us is a majority that has no logic, certainly not probabilistic logic. But the Torah innovated that there is a law of a majority that is present before us in separated. In fixed, where that was not innovated, we don’t say it—but that is the simple case, fixed. I need to look for explanations for separated, not for fixed, since a majority that is present before us is in any case not a probabilistic majority. Rather it is a kind of legal explanation, a scriptural decree, however you want to call it. So in fact one could say that the law of fixed location is actually the more understandable one; it is specifically the law of separated that requires explanation. And the explanation is that we are trying to color the whole and things of that sort. But that is actually the novel part of the equation, not fixed but separated. Rabbi Gordin follows his own method, in that he eliminated the probabilistic rule from majority in a majority that is present before us. Yes, so therefore he continues: it is a novelty to say to follow the majority. Right, exactly. And there is a novelty here, that we follow even such a majority even though it is not probabilistic, but this novelty was said only about separated. So what happens in fixed? Not that there is a novelty that in fixed we don’t follow; with respect to fixed it was never innovated that we do follow, and therefore obviously we do not follow the majority. Okay, that is basically the claim. Now notice, in light of the introduction I gave, what is the nature of the explanation he proposed. Understand that the explanation he proposed is indeed an explanation by non-probabilistic reasoning. Okay. But something is missing here in his whole game. What is missing? After all, in the end, in a majority that is present before us there is also a probabilistic consideration. You tell me that the law of a majority that is present before us is basically a law dealing with how I wrap the whole, right, how I describe the whole. Fine, that is a law the Torah innovated. Besides that there is a law that has nothing to do with what the Torah innovated: probability. And with probability—after all, I also follow that, that is reasoning. Right? So if there are nine kosher stores and one non-kosher one, then forget about there being a law of a majority that is present before us because the novelty of the Torah does not apply here, say for the sake of the discussion—or in fixed or in separated, doesn’t matter. But why shouldn’t the probabilistic consideration be here? As in a majority that is not present before us. There is a ninety percent chance of a kosher piece here. From what point does a probabilistic rate begin? Fifty-one? Yes. Fifty-one is already probability? Yes. More than forty-nine. More than forty-nine, what? Like what happens in a majority that is not present before us? From when does it begin there? Same thing in reverse. Fifty-one, yes, right? Why not seventy-two? That sounds more like a decision rule, not probability. Probability is not fifty-one. Probability. But surely when there is a significant probability the other way, maybe the halakhic rule tells you that even a small advantage is enough to follow it. But there is an advantage here—you can’t say there isn’t. You can say that you still need the Torah’s novelty that despite the smallness of the advantage, you follow it. Fine. But you can’t say there is no reasoning here. There is reasoning here. Let’s say probability is not reasoning. Probability is not reasoning; it’s a decision tool. Then certainly it is reasoning. There is no logic in fifty-one over forty-nine? There is no logic in deciding by fifty-one. Fifty-one is more than forty-nine. You can say that this advantage is small and without the Torah’s novelty perhaps I would not have been certain to follow it. Fine. So the Torah innovates that yes, you do. But you can’t say there is no reasoning here. There is reasoning here. And there is significant reasoning here even without the verse. Fine, okay. In a majority that is not present before us, understand: in the conclusion it has no source. We brought the Talmud in Hullin—according to the conclusion of the sugya it has no source. Rashi says maybe it is a law given to Moses at Sinai, but that whole story is dubious. It has no source. In the simple sense it looks like reasoning. And fifty-one percent is enough in a majority that is not present before us, so in a majority that is present before us it will be enough too. What’s the difference? The same reasoning that exists in a majority that is not present before us exists in a majority that is present before us. If so, all Rabbi Gordin’s explanations in fact give at most a partial solution. And as I said, there is also the difficulty of “a majority is as the whole” versus “following the majority,” but they give a partial solution. Why? Because fine, you tell me that in fixed there is not the novel consideration of the Torah, of coloring the whole, but the probabilistic consideration is still there exactly as in separated: it is ninety percent. So why not use the probabilistic consideration? Forget the Torah’s novelty in a majority that is present before us. Use the probabilistic reasoning. Now he claims there is no probability here, but that is a logical leap, because he has not shown that there is no probability here. He only showed that there may also be a non-probabilistic explanation for the law of a majority that is present before us. But that does not mean there is no probability here. Let’s return to the religious court. In court he tells me, look, two out of three say Reuven is liable, so the court says Reuven is liable. Fine, that is the Torah’s novelty of a majority that is present before us. I ask, okay, you’re right, that is the Torah’s novelty. But… But besides the Torah’s novelty, there really is also this reasoning—you can’t say there isn’t—unless you show me that it is not true, that the majority is not more likely to be right. And that he did not show; he only offered another explanation for the law of a majority that is present before us. I understand, but explain to me why the regular explanation is not correct, why the probabilistic explanation is not correct—that he did not explain. At most you can learn from him that there is also the legal explanation he proposed, but alongside it there is also a probabilistic explanation. So if his legal explanation doesn’t work in the law of fixed location, fine, let that be enough from the probabilistic explanation. Therefore there is a certain difficulty here—or in other words, his explanation requires completion. And the completion is an explanation of why in fact a majority that is present before us is really not probability. Rabbi, can’t one say in support of what he says that he proves there is no probabilistic explanation from the law of fixed location, and since in fixed location we see there is no probabilistic explanation, we therefore cancel it entirely? No, but that works backwards. I’m asking how the Sages arrived at the conclusion that in fixed there is no law of majority. After all, we’re looking for an explanation of why the Sages decided to exclude fixed from the law of a majority that is present before us. You can’t assume that in order to derive your explanation from it. I’m asking what explanation led the Sages to make this distinction between fixed and separated. You can’t bring me this distinction between fixed and separated as evidence for your explanation. You’re reminding me of the “Nothing like me” story of Kishon. Do you know the fox in the chicken coop? The trade-union activist arrives—not probabilistic, not “in terms of probability,” what’s his name, I forgot it—the one who lived in Ein Kamoni, a village in the north. Ein Kamoni, yes, it’s Ein Kamoni in the plural. A book by Kishon. So he lived there in this settlement of Ein Kamoni in the north, and he built himself a magnificent villa with an Olympic swimming pool and stables of noble Arabian horses, okay, which he rode. A tax inspector comes to him and says, tell me, Yankele—I forgot his name—where did all the money come from to build all this luxury? With a union salary, it doesn’t look like you could get all this from that, something suspicious is going on here, tax evasion, embezzlement, something here doesn’t add up, the inspector says. The union activist—his name escapes me—the union activist says to the inspector: I have a fantastic story, you won’t believe it. Elijah the Prophet appeared to me a week ago—not a week ago, two years ago. And he told me, listen: on Wednesday night at exactly midnight, stand by the tree on that and that hill, walk one hundred steps north, and while doing so shout cock-a-doodle-doo three times. Then walk seventy-three steps east, again shout cock-a-doodle-doo twice, and now dig a pit and you’ll find things there. So this activist says to the inspector: you won’t believe it. I went Wednesday night at midnight to the tree, walked a hundred, cock-a-doodle-doo, another seventy-three steps, again cock-a-doodle-doo, dug, and found a chest full of gold coins and diamonds, and from that I built my palace. The inspector says to him: tell me, do you have any proof for this fantastic story? It doesn’t sound likely to me—do you have proof? Of course I have proof; otherwise where did I build this whole magnificent palace with the Olympic pool and the horses from? Clearly the story is true. Yes, that’s about the same as proving from the difference between fixed and separated. I’m looking for an explanation of where you got the money to build a villa, and you say look, Elijah the Prophet simply gave me money. How do you know? Fact: here’s the villa. Otherwise how did I build it? Clearly Elijah the Prophet gave it to me and told me and I found the treasure. Right, same here. You tell me: I’m looking for an explanation of why there is a law of fixed location, and you say: look, from the very fact that there is a difference between the law of fixed and the law of separated, it’s obvious that this is not a matter of probability. I say the opposite: explain to me why this is not a matter of probability, and therefore why fixed came out different from separated. Right? Okay. That’s Mitzi Dolinker, right? What? Dolinker. Ah, Mitzi Dolinker, exactly. The legendary Mitzi Dolinker. Exactly like that. In Russia, you know, they have a proverb like that: when they ask where the house came from, he says, I sold a car; where did the car come from? From a bicycle; where did that… On the bicycle what? I already sat in prison. There’s another story about Hershele, you know. He goes into a bakery and asks for rolls. Fine, they give him two rolls. He says, you know what? He goes back to the counter and says, forget it, give me two doughnuts instead, take the rolls and give me doughnuts. Fine, they exchange them. He sits and eats the doughnuts, finishes eating, and goes cheerfully on his way out of the bakery without paying. The baker runs after him and says, tell me, you didn’t pay! So what was I supposed to pay for? says Hershele. For the doughnuts you ate, says the baker. What doughnuts? I returned the rolls for them. But for the rolls you didn’t pay! The rolls I didn’t eat. It’s the same idea, right. By the way, in the sixteenth century when the Beit Yosef wanted to restore ordination, in Safed there was opposition. Sixteenth century, yes. And they wanted to… there was very strong opposition from the Maharlbach in Jerusalem against Safed. Now they held the vote in Safed and did not call the Maharlbach, and the whole Jerusalem community did not participate in it. When the Maharlbach met the Beit Yosef he asked him, why didn’t you call me? I’m the chief rabbi, I’m basically the chief rabbi of Jerusalem and the leading sage of the Land of Israel—why didn’t you call me? So he said to him, why should we? We’re the majority, why do we need you? So he said to him: my friend, I am fixed here, and every fixed thing is considered as half and half. That’s how he answered him. Yes, but there were a number of logical tangles in the controversy over ordination. The Maharlbach, at the end of his responsa, has a pamphlet on ordination, and in fact we also learn the arguments of the sages of Safed from him, because there is no record of what happened in Safed. So there, among other things, he says he argued against the sages of Safed: you say that according to Maimonides what is needed is the agreement of all the sages of the Land of Israel. Right, yes. If so, then even if I’m not correct according to your view and you disagree with me, as long as I don’t agree, then even according to your view you do not have the agreement of all the sages of the Land of Israel, so you cannot renew ordination. No, that really works well with majority, specifically here. No, that’s exactly the point. He argued there—that’s also what he discusses—the question whether we say “a majority is as the whole” or whether you need the agreement of all the sages of the Land of Israel and a majority isn’t enough. But on the assumption that you need the agreement of all the sages of the Land of Israel and a majority isn’t enough, he says it makes no difference whether you are convinced that I’m wrong, because even according to your own view, in order to renew ordination according to Maimonides you need the agreement of all the sages of the Land of Israel—and you don’t have it, because I do not agree. Even if I’m wrong, I still in practice do not agree, so you cannot renew ordination even according to your own view. Where did Maimonides get that law from? From reasoning. But that reasoning exists—it’s basically from the Sages. The whole transmission—this is how Maimonides begins, right, when he says how ordination was transmitted, from Moses our teacher to the elders, and the elders to this one and that one, and thus he reaches all Israel, that all Israel had to accept on themselves a formal authority—this you already spoke about several times. But why is the agreement of the sages of the Land of Israel enough to renew ordination? It has to be from one ordained person to another. That’s true. Maybe that’s where Maimonides learned it from—that’s what I’m saying. Well, it seems he himself says something else; as I recall there is also in the commentary on the Mishnah and also in Mishneh Torah. In Mishneh Torah, yes. In the commentary on the Mishnah I think he brings that rationale. He says: how will ordination return in the future? After all, it has to be from one ordained person to another; the chain of ordination was broken. So how will it return? “Restore our judges as at first”—ordination is supposed to return in the future. So how will it return? An ordained person can only come from an ordained person. So Elijah will restore ordination? Elijah cannot ordain—not in heaven is it. It has to be from one ordained person to another; that is the halakhic rule. So there is no choice but to understand that there must be a mechanism to restore ordination from below even if there is no chain from an ordained person to another. Who said it has to return? What? Who said it has to return? “Restore our judges as at first”—what do you mean? The Sanhedrin will return, the Temple will return, everything will return. We expect it to return. Yes, that’s not the claim. So if that’s the claim, there must be a mechanism that brings it back. Which mechanism? So he proposes this mechanism, that all the sages of the Land of Israel agree. Why specifically the Land of Israel? Because ordination takes place in the Land of Israel, right, that is the law. Ordination is only in the Land of Israel. Doesn’t it need Jerusalem, the place that He will choose? I don’t hear. Doesn’t it need Jerusalem, the place that He will choose? No. What does the verse say? It says there “you shall arise and go up”—the Sanhedrin sits there in the Chamber of Hewn Stone in Jerusalem. That’s where they sit; that’s different from where ordination is performed. The Sanhedrin sits in the Chamber of Hewn Stone in Jerusalem—that’s one thing. It doesn’t say that ordination is only done there. On the contrary, most of the time they did not sit there. Specifically they did not sit there most of the time. I don’t know if most of the time, but yes, the Sanhedrin went into exile. From Rabban Yohanan ben Zakkai until Ravina and Rav Ashi there were more than two hundred years. No, Ravina and Rav Ashi are much later. We’re talking about the period of the tannaim who had ordination. There were ordained sages, that’s how the Rif understands it. No, Rav Ashi and Ravina were not ordained, they were in Babylonia. But in their time there may have been ordained sages in the Land of Israel; that’s a major dispute among historians—the question when ordination ended in the Land of Israel. Some stretch it even to the eleventh century. In any event, the Rif relates to it. Yes, so that’s what I’m saying. The Rif relates to an ordained sage where it’s not entirely clear whether “ordained” there is in exactly the same sense as the original sense of ordained. There were sages, the geonim of Babylonia; even in Maimonides’ time there was a gaon in Babylonia. Right, yes. And that was a kind of ordination, but it is not clear whether that is the original ordination that really passed from one ordained person to another. The Talmud says that Rabbi Yehuda ben Bava ordained five people and ultimately that was where ordination ended. But the force of “do not turn aside from all that they instruct you” is something else. What? The force of “do not turn aside from all that they instruct you” is something else. Fine, that’s a different story, it’s unrelated. “Do not turn aside” is said about the Sanhedrin. And in principle the Sanhedrin sits in Jerusalem, although later it went into exile. But for ordaining sages there is no rule that this must specifically be in Jerusalem. The rule is that it be in the Land of Israel. Sages were ordained outside Jerusalem. Rabbi Yehuda ben Bava, who ordained his five disciples, did not do so in Jerusalem. True, also in Tzippori they ordained, also in Yavneh, yes. Okay, we got to all that. Okay, so that is the first explanation of the law of fixed location. There is another explanation, which I found in Moshe Koppel. He says as follows. Think of a container with ten balls in it, nine white and one black. Now they tell me: I put my hand into the container and take out a ball, and I ask you what you think the color of that ball is. So I assume you will tell me there is a ninety percent chance it is white, right? There are nine white balls, one black, ninety percent chance it is white. The question is well defined and the answer is ninety percent. Now I ask a different question, a hypothetical question: I didn’t put my hand in. I ask: if I were to put my hand in and take out a ball, what color would it be? Koppel’s claim is that the second question is not well defined. It cannot be answered. Why? Because there is no actual ball yet whose color you are asking about. If I were to put my hand in and take out a ball, what color would it be? I don’t know—depends how you put your hand in, which ball you took out. At the moment you have a ball in your hand, you can ask what the color of this ball is. The question is defined. I have a ball; either its color is white or it is black. I ask you what the color of this ball is—the question is defined. I ask you: if I were to put my hand into the jar and take out a ball, what color would it be? I don’t know; depends how you put your hand in, which ball you took out. The question isn’t defined at all until there is an actual concrete ball about which you ask it. That is basically the fundamental distinction on which he relies. What does this claim mean? I don’t understand. He simply does not want to answer the question. Which question? About the second possibility. What do you mean? He says the question is not defined; it cannot be answered. Why not? Here—why can’t it be answered? If we found some practical case where there would be a practical difference, I don’t know… No, he claims that with or without practical relevance, there is no way to answer this question, the question is not defined. Why not? Clearly the answer is also ninety percent. Ninety percent of what? There isn’t a ball in hand here—what are you asking about? There is no ball here about which you are asking. If a person will put in… There are ten identical balls, nine white, and if you put your hand in randomly with no ability to distinguish one from another and take one out, it’s as obvious to you as it is to me that it’s ninety percent. Okay, here you added something that I’ll get to later. You already said: I put my hand in randomly. I understood what you were asking in the case “if I were to put my hand in,” meaning there is some gray area here where I can look and take out a particular ball. Meaning, that’s correct, that’s what you’re saying. No, putting the hand in means of course without looking. If by looking, then obviously you can’t answer anything. Then that’s the same as separated and fixed, like with meat. Meaning, I don’t understand why we need… He wants to argue that it is the same as separated and fixed. We’ll see in a moment. So that’s what he wants to argue. Now clearly if I—maybe I’ll really add the third situation—if I put in my hand and choose a ball… a ball, then the question has no meaning at all, right? Yes. The question what color the ball I took out will be? Whatever I choose to take out. Suppose there are a thousand balls in the container, all white and one black. Now a person puts in his hand and chooses a ball, and you have no information about his preferences, okay? Fifty-fifty. Exactly. When I ask you what color the ball he will take out will be, half and half. If he prefers white, he’ll take out white, and if he prefers black, he’ll take out black, because there is black there. It makes no difference that there are nine hundred ninety-nine white ones. Since the action is not random but is an action where you choose what you want, then if you like white you’ll take out white, if you like black you’ll take out black. The chance that you like white or that you like black is fifty-fifty. But here he is speaking about a different situation. You put in your hand without looking, not choosing. You put in your hand without looking, because when you choose, then the question is indeed defined. The question is defined and the probability is fifty-fifty. Here he claims that since the ball is a future ball that does not yet exist in the world at all, you cannot ask this question at all. The question is not defined because it does not refer to any concrete ball. The ball does not yet exist in the world. Now here that’s a fairly dubious claim. Meaning, just as I really can ask the question what would happen if I put my hand into the vessel and took out a ball randomly, my definition that I take out a ball randomly seems to me to make the question perfectly well defined. Why shouldn’t it be? If you say: I put in my hand and somehow decide to take out a ball, but it isn’t given whether this is random or not random—maybe I can do something, I don’t know, like put my hand specifically into the right side of the container or specifically into the left side of the container, maybe I can do things—then of course it would be undefined because it depends on how you put in your hand. The extreme case is when you actually look and choose which ball to take out, where certainly you cannot talk about probabilities. Okay? Meaning, that is fifty-fifty but not probabilistically, not related to the distribution of the balls in the vessel. But he claims that in such a state the question is basically not defined. And then what? Then he says—that is, he says that if you ask the hypothetical question: if a person puts his hand into the container and takes out a ball, what color will it be? then the answer should be, since I cannot answer that question, the only answer I can say is either black or white. That’s it. And since that’s so, in such a situation I have to relate to the chance that it’s black and the chance that it’s white as fifty-fifty. And then he basically claims that the case of throwing a stone into a group, right, where I throw a stone into a room with gentiles and Jews, okay? The case of throwing a stone into a group is exactly like the case of the future question, if you put your hand in, what ball would you take out. Why? Because we saw in the Talmud in Ketubot that the question is not really whom you hit. Whom you hit, I know—you hit a Jew. I know that was the outcome; otherwise the discussion wouldn’t arise. The question was whom you intended when you threw the stone. Meaning, the question asked is before the stone was thrown and hit someone. Therefore this is basically a future question, and about the future question he claims it cannot be answered because there is no person yet whom you intended, no person yet whom you killed—there is no such person yet. He says: if you throw a stone into such a pit, the person you will kill—will he be a gentile or a Jew? So Koppel’s claim is that the question is not defined, just as with the ball, excuse me. The question is not defined, and since that is so, you answer that question as either Jew or gentile—there are two possibilities—so therefore fixed is considered half and half. And in fact, according to him, the half and half is not positive probability but negative probability. Right, at the beginning of this series I brought the distinction—suppose I toss a coin and I know the coin is fair. Then the chance it lands heads is half, the chance it lands tails is half. Right? That I know. What happens if I toss a coin but I have no information about the coin? I don’t know if it is fair, not fair, to which side it is biased if at all, I know nothing about the coin. And now they tell me: bet—what is the chance it lands heads? I will still answer: half. Because if I have no information that favors one side over the other, then for me it is half-half. But that is a negative half-half, not a positive half-half. In the first case, where I know the coin is fair, my answer of half-half is a positive answer; I know the probability is half-half, I have information. In the second case I also answer half-half, but it is negative half-half; it is half-half because I have no information at all, I have no way to prefer option A over option B, so for me these are two equivalent possibilities, half-half. According to Kopp… According to Koppel, the law of fixed location—what it says there, that the law of fixed location is considered half and half—the meaning is basically that in fixed there are two possibilities, I have no way to decide in favor of one of them, and therefore it is half-half. It is a negative half-half, not a positive half-half. Every fixed thing is considered as half and half—this is not a positive statement. It is only the statement that you do not follow the majority. So what do you do instead? I don’t know what instead. But since there are two possibilities and I do not know which yes and which no, the assumption is that it is a negative half-half, not positive. That is basically the explanation he offers for the law of fixed location. And what does he propose for separated? What? What does Koppel propose for separated? Separated, he claims, is where there is already a piece of meat that separated, and now I ask whether it is kosher or not kosher—the question is well defined. The piece has already fallen; I ask the question after the piece is already here in the street and I found it. Now I ask what it is. Is it kosher or non-kosher? A perfectly well-defined question. If there are nine kosher stores and one non-kosher one, then I assume it is kosher. Look, the point is that with stores, for example, if you ask this question, if you ask this question with stores when I have a case of fixed location in stores—I go to a store and take a piece of meat. Now they ask me whether this piece is kosher or not kosher. To which of the two types of questions about the container of balls is that similar? If he already took it. Right, also—it is similar to the question about the past, not about the future. Therefore with throwing a stone into a group I understand his explanation. Assuming I accept his assumptions, I understand why it is similar to a future question and not to a question about something already existing. But with a piece of meat that I take from stores, I took the piece of meat from the store, and now I am uncertain—I don’t know what this piece of meat is. That is a question about the past, not a question about the future. Why can’t it be compared? What? Why can’t it be compared to the case of the balls where he chooses which ball to take out? I don’t understand. The Rabbi said earlier that in the case where he chooses which ball to take out, whether black or white, then it’s fifty-fifty even if there are nine white balls. Right. So here too, where he forgot from which store he bought, that really depends on his choice, so maybe that’s the idea of fixed being considered half. It does not depend on his choice. He probably didn’t choose. The explanation you’re now saying is an explanation I’ll get to next time—that’s really Aumann’s explanation. Someone pointed it out last time, and that is also the explanation that Oren, the editor of the website, suggested when it was posted on my site, and that is basically Aumann’s explanation in the article he proposed earlier as well. So I’ll get to that later. That’s why I added the third question here too; Koppel doesn’t talk about it. A question where I choose which ball—there it is definitely fifty-fifty. Okay, but we’ll get to that later. At the moment I’m saying that Koppel’s claim is a difficult one. Now one has to understand that no explanation of the law of fixed location will really explain all the cases in the Talmud where the law of fixed location appears. None of the explanations really offers a full explanation of that. But what is true? Clearly the law of fixed location develops outward; the basic distinction was grounded in some logic. After we established the basic distinction, now we have to determine the definitions—what counts as fixed and what does not count as fixed—and here many times the Sages make some extension that does not necessarily preserve the reason. Meaning, there will be situations that are considered fixed even though the real logical reason why in fixed you don’t follow the majority is not actually there. Because it resembles fixed, and once the category already exists, we then make that division. Meaning, things like that will always exist in all these explanations. There is no explanation that really covers all the cases of fixed location. However, the case of stores is the classic case usually discussed when talking about fixed location. It is not some esoteric case to which the law of fixed location is applied. Therefore in the case of stores it is harder for me to accept that it too does not fit the basic logic of the difference between fixed and separated. There that difference should exist, because that is the case the Talmud is talking about. A majority that is present before us is said about stores. So therefore it is difficult if the case of stores itself does not fit Koppel’s distinction. Okay, at this stage I’ll stop here. If there are questions or comments. Rabbi, can I ask something small from another series? Okay. This week the Rabbi spoke in some series on ethics, faith, and Jewish law, and it seemed the Rabbi went one step beyond Kant. Kant says, supposedly, that to do a moral act out of compassion damages the moral validity, or perhaps negates it, weakens it, however we want to put it. The Rabbi, as I understood it, went one step further. He said that in fact even when you do the moral act מתוך a sense of duty, some moral duty, afterward you feel good with yourself. I did what needed to be done, I’m good, I’m on the right path—so again you got something in return, again it is really the fulfillment of an interest. So the Rabbi asked: how then is it possible at all to do a moral act? A question, in my opinion, quite a strong one. And the Rabbi answered at first with a pragmatic answer, as it were: well, so according to that there is no morality, so what can we do? So what can we do? But afterward the Rabbi gave another answer, that if you do it not for that reason, but you would do it in any case, then… like the Rabbi usually says. But that’s an answer? Again, if it comes out that you always get something in return and always when you do a moral act because of duty it is considered that you also received something—and apparently that really is the case, you feel it—who said it’s always? Who said it’s always? Apparently always. If you did it because of a sense of duty. Where not? He felt a moral demand to do it. So again, if that’s where not, then he’s doing it for himself. No, he did it because that is the truth. Okay, what does that mean? The truth told him that he must do X. Yes. And he simply does it because that is what is right. No, but what does that mean? He feels obligated to it. What is “feels obligated”? He doesn’t feel it, he thinks it. He doesn’t feel it, he thinks it. He thinks it, but this thought is not just that he read some story; he knows he is required to do something. Of course. But there’s a bonus he gets from doing that. He is aware of—not a feeling, the Rabbi doesn’t like that—he is aware of the demand of duty to do X. Correct. And that is a demand. I don’t know how one can speak of a demand without emotion, but let’s say a demand without emotion. But intellectually, in his truth, he understands he is required to do X, and if he doesn’t do X then he is not doing what is right, and therefore he must do X. So the Rabbi says, good strong question: if he does X, he gets the fulfillment of the… I don’t know what to call it. No, to fulfill the value in which you believe is not called a bonus. Why not? What do you mean? Because you do not gain anything from it, no good feeling and nothing at all; you simply do it because that is the truth. If you don’t do it—wait—if you don’t do it, you are aware that you will commit a sin. Yes, but that doesn’t bother me. What do you mean it doesn’t bother me? Now you don’t want to live in sin. You don’t want to. I don’t want to live in sin because it is not correct, not because it bothers me at all. Not because it’s not correct, fine. But it doesn’t sound pleasant to live in sin, and the opposite—you live in commandment and you fulfilled the duty. So the Rabbi says: strong question, you get a very significant return. That’s how I understood the question. Strong question. Good question, but that’s not why I do it, because of the return, and I’m also not sure there is always a return. That’s another question. If one just acts incidentally—if a person just acts incidentally—then the Rabbi will also say that this is… Not incidentally, not incidentally. He acts because that is the truth. Okay, and he knows that if he does not do the truth then he is falsifying his own soul. So then neither negative nor positive on doing or not doing? Nothing? He is completely indifferent to it in terms of his emotions. Fine, but again we are reaching this strange movie of an intellectual sense of duty, which is, okay, a known argument that we already… But I’m saying that even in the Rabbi’s approach, that it is intellectual, still there is some return in it. That is not called a return. I brought there in that same lesson, I think—I brought there the example of patience, right? Was that the same lesson? I brought there the example of patience, and through that I tried to show why doing something because of a certain value is not the same as doing it out of interest, even an interest in the satisfaction of my being good. It is different; it is something else. If not, then look there, or maybe in the previous lesson, I spoke about the example of patience and clarified it through that. Okay. Anyone else? Yes. I wanted to ask you—usually we try to receive all the aggadot of the Sages with, how do you say, limited reliability. Not now. Who is “we”? But yes, okay. “We” means those who learn with normal logic, with understanding, as Maimonides says. Okay. But now I saw in tractate Shabbat 152b, there is a story there that… To judge favorably? No, no—that under Rav Nahman’s house they dug into the ground and reached the grave of Rav Aḥai bar Yoshiya, something like that. And he spoke to them from within the grave and said don’t disturb me. And then Rav Nahman came to speak with him, and then he speaks. I’m trying to understand. How is one supposed to relate to this at all? A dead man speaking from the grave with the… What? Maimonides already said that aggadot of this sort should not be taken as factual description. It is some sort of parable that comes to convey some message, I don’t know what. In most aggadot I really relate that way, but the dead speaking, yes, that’s a bit… Fine, it is some parable conveying some message. Since no one knows what the message is, I don’t see much point in dealing with it, but that is a different discussion. So you’re saying simply not to take it literally? Simply as aggadah, and that’s it? No, I’m not ignoring this aggadah. It’s just that it was a little hard for me—what, dead people speak? At the end the Talmud proves that after twelve months the body decays and so on, so why did you bring me this? I didn’t understand it. Okay, thank you very much, have a peaceful Sabbath. Goodbye, peaceful Sabbath.