Doubt and Probability—in Halakha, Thought, and in General—Lesson 31 – Rabbi Michael Abraham

Table of Contents

• Statistical evidence versus eyewitness testimony and criminal conviction
• Jewish law: Maimonides, Tosafot, and circumstantial evidence in capital cases
• Three kinds of explanations: probabilistic, legal-policy, and legal-intuitive
• The example of migo, migo deha’aza, and migo as argumentative force
• Presumed possession, burden of proof, and the rule of “it is in his power”
• General law versus Jewish law: Miranda, “a person does not render himself wicked,” and the disqualification of relatives
• “One who seeks to extract from another bears the burden of proof,” seizure, and the structure of the system
• Certainty versus statistics: convicting an innocent person, a hostage deal, and autopsies
• A first solution to the prisoners case: a majority present before us versus a majority not present before us
• Concluding remarks: fixed status, custom, and Maimonides in the Guide

Summary

General Overview

The lecture raises a central difficulty in the law of evidence: in a case of one hundred prisoners, ninety-nine of whom murdered a guard and one of whom did not, there is a ninety-nine percent probability that any given defendant is guilty, and yet the accepted view is that one does not convict on the basis of such evidence, whereas one does convict on the basis of eyewitness testimony that is not completely certain. The explanation of this difficulty is built through a distinction between the probabilistic quality of evidence and a “legal reasoning” that does not stem from the reliability of the evidence. Three possible types of explanation are presented: probabilistic, legal-policy based like “the fruit of the poisonous tree,” and legal-intuitive, which does not justify itself through policy or probability. Toward the end, an initial direction for a solution is proposed through the halakhic distinction between a majority present before us and a majority not present before us, together with the claim that a majority present before us rests on a working assumption born of lack of knowledge, and so may be weaker even if numerically it is higher.

Statistical Evidence versus Eyewitness Testimony and Criminal Conviction

The case of the hundred prisoners raises the question whether a ninety-nine percent probability is enough to convict a particular defendant when we do not know who the one person was who did not participate. The accepted view in the legal world is that in such a case one cannot convict, even though the chance of being right is higher than in a case of eyewitness testimony. Eyewitness testimony is perceived as evidence “about the person” and not circumstantial, even though it can be mistaken, whereas the prisoners case is perceived as circumstantial evidence that speaks about the circumstances and not about the act of the particular defendant.

Jewish law: Maimonides, Tosafot, and Circumstantial Evidence in Capital Cases

According to Maimonides, circumstantial evidence is inadmissible in capital cases and in lashes even if its quality is extremely high, and the disqualification stems from the character of the evidence and not from its strength. Tosafot explain the inadmissibility by saying that circumstantial evidence is “less good,” whereas Maimonides seems to disqualify it simply because it is circumstantial. The similarity to the prisoners case is built on the fact that there too there is no direct evidence about the person, only a circumstantial description that creates a high probability.

Three Kinds of Explanations: Probabilistic, Legal-Policy, and Legal-Intuitive

The usual search for a justification for accepting evidence focuses on its reliability, but here the need is presented for explanations that are not based on reliability. “The fruit of the poisonous tree” is presented as an example of legal reasoning of the policy type: the evidence may be excellent, but it is disqualified in order not to encourage illegal methods of obtaining evidence and to prevent future systemic harm. Another type of legal reasoning is also presented, in which it is simply “not right” to convict on the basis of certain evidence even though there is no clear injury to policy or to the functioning of the system, and the speaker describes this as a kind of smell test or intuition that something is legally improper.

The Example of Migo, Migo Deha’aza, and Migo as Argumentative Force

Migo is defined as a case in which a person makes a weaker claim even though he could have made a better one, and from that one builds the proof of “why would I lie?” In the example of “I paid” versus “there was never any such thing,” it is explained that migo can be rejected as migo deha’aza because the claim that “there was never any such thing” is an act of brazenness toward the person who made the loan, and so there is an explanation for why the better claim was not made. At the same time, a view among later authorities (Acharonim) is presented that recognizes another function for migo, “migo as argumentative force,” in which the very ability to win by means of an alternative claim grants a legal advantage even without relying on “why would I lie?” The reaction of Chelkat Yaakov and Rabbi Yosel Schreiber is described as struggling to understand a “force” that is not probabilistic.

Presumed Possession, Burden of Proof, and the Rule of “It Is in His Power”

It is argued that the idea of migo as argumentative force is similar to the principle that “the one in possession has the upper hand,” because someone who can prevail by force of argument alone receives a status similar to that of one in possession, and the burden shifts to the other side. There is also the example of “it is in his power,” where a person is believed because he could have brought about with his own hands the state of affairs about which he is testifying, and the Rosh is described as claiming that this is “something stronger than migo.” The whole explanation is located on a legal plane that does not rest on probability but on a normative structure of argumentative force and shifting the burden.

General Law versus Jewish law: Miranda, “A Person Does Not Render Himself Wicked,” and the Disqualification of Relatives

The Miranda ruling is presented as a case in which an American judge cites Maimonides on the principle that “a person does not render himself wicked” in order to justify the inadmissibility of self-incrimination, but attributes it to unreliability arising from interrogation pressure and torture. The speaker argues that this is a mistaken interpretation, because in the Talmud there are no such interrogation mechanisms, and the principle is legal and principled. It is argued that ordinary legal systems tend toward probabilistic or policy rationalization and do not accept “reasoning of the third type.” The disqualification of relatives is described as a “Scriptural decree” in the Talmud, in Maimonides, and in the Shulchan Arukh, whereas jurists try to explain it in terms of bias of perception and emotion rather than deliberate lying.

“One Who Seeks to Extract from Another Bears the Burden of Proof,” Seizure, and the Structure of the System

The rule “one who seeks to extract from another bears the burden of proof” is presented as a case where, probabilistically speaking, things may seem fifty-fifty, but legally speaking a religious court needs justification in order to act and take money away, whereas inaction needs no justification. A systemic explanation is also brought: if this rule were not maintained, “the whole world would collapse,” because anyone could claim anyone else’s property without evidence. Seizure is explained as a situation in which, if a person seized the property before the doubt arose, the court sometimes does not remove it from his possession, but once the doubt has arisen and the legal process has begun, they do not want “chaos,” and so seizure is of no help. The reason is presented as a procedural consideration.

Certainty versus Statistics: Convicting an Innocent Person, a Hostage Deal, and Autopsies

A legal explanation is proposed for the prisoners case according to which conviction on the basis of probability would necessarily entail the certain conviction of one innocent person, because they would convict all of them without any ability to distinguish the minority case, and a legal system is not prepared to accept a mechanism that certainly produces the conviction of an innocent person. It is argued that there is a difference between certainty of built-in injustice and statistical mistakes in eyewitness testimony, where wrongful convictions may occur but there is no certainty that a particular mechanism convicts an innocent person. An analogy is brought from the debate over a hostage deal, where the argument in favor presents the definite rescue of hostages versus a statistical risk of future deaths. Another example is brought from halakhic decisors regarding autopsies, which are rejected for future needs even if on average they would save lives, based on the distinction between concrete, present rescue and statistical benefit.

A First Solution to the Prisoners Case: A Majority Present Before Us versus a Majority Not Present Before Us

The distinction between a majority present before us and a majority not present before us is presented as the basis for a probabilistic explanation: eyewitness testimony relies on a majority not present before us, a general natural pattern such as “most people tell the truth,” whereas the prisoners case is a majority present before us, based on the local and accidental distribution of a particular group. It is argued that a majority present before us is not a “probabilistic majority” in the sense of empirical knowledge, but rather a working assumption that arises from lack of knowledge and an a priori equality among possibilities, and therefore it does not have the force of a majority based on a sample or a law of nature. Accordingly, it is argued that the gap between ninety-nine percent in the prisoners case and ninety-five percent in witnesses may be only an apparent gap, because the percentages in a majority present before us are not knowledge but the product of a working assumption that cannot be empirically tested.

Concluding Remarks: Fixed Status, Custom, and Maimonides in the Guide

It is said that from a halakhic standpoint one could also consider the rule of fixed status versus separation in the prisoners model, but the discussion is postponed for later. A remark is brought from Maimonides in the Guide, according to which something widely accepted “becomes verified for many” even if it is mistaken, and from halakhic decisors such as Maharach Or Zaru’a and the Chatam Sofer, who write that one should not accept a custom that has no clear proof, and that a custom born from a mistake shared by many can be examined. The speaker distinguishes between the authority of custom on the basis of “do not abandon the teaching of your mother” and the claim that wide acceptance among many is an indication of truth, and notes that the lecture stopped after presenting the first direction of explanation.

Okay. Last time we started talking about statistical evidence in law, and also a bit in Jewish law, but law was really the main topic. Let me just remind you where we were holding. We discussed the case of a hundred prisoners in the prison yard, ninety-nine of whom attack a guard and kill him, while one does not take part in the celebration. Then they come to be tried, and the question is whether I can convict any given defendant. Of course I don’t know who the one out of the hundred is, and the question is whether I can convict any defendant on the basis of the claim that there is a ninety-nine percent chance that he was a partner in that murder, and ninety-nine percent is good enough for conviction. That is, on the one hand—or actually, not yet “on the one hand”—that’s the question. The accepted view in the legal world is that no: in such a case you cannot convict the person. By contrast, in a case where we have eyewitness testimony, there too eyewitnesses are not airtight; it’s not one hundred percent certainty. There is some chance—I don’t know, ninety-five percent, ninety-seven percent—that they are right, but there is also some chance of error. The chance of error with eyewitnesses is greater than the one percent in the prison-yard case, and nevertheless in the eyewitness case we do convict, whereas it is accepted to say that in the first case of probabilistic evidence we do not convict. And the question is why. Seemingly, the chance of being right in the first case is greater than in the second. I brought examples from Jewish law, where I showed that circumstantial evidence—at least according to Maimonides—circumstantial evidence is not admissible in criminal law, though it is in civil law; in capital cases or lashes, mainly capital cases. And unlike Tosafot, who says this is simply because the evidence in question is weaker evidence, in Maimonides it sounds as though this is because of the nature of the evidence and not because of its quality. Meaning: because the evidence is circumstantial evidence, even if its quality is extremely high, that doesn’t matter. In other words, we don’t accept it by virtue of its being circumstantial evidence. And in that sense it resembles the case of the prisoners, because it seems to me that if we had to define the kind of evidence in the prisoners’ case, it really is circumstantial evidence. We don’t have evidence about the person standing before us that he murdered. We have circumstantial evidence that creates a very high probability that he murdered, but it doesn’t speak about him; it speaks about the circumstances. The circumstances show us that fact. As opposed to eyewitnesses, where in the case of eyewitnesses we have non-circumstantial evidence: we have evidence about him that he murdered, only not absolute evidence. But it is evidence about him, so it is not circumstantial. And that’s exactly the distinction we find in the legal context. And I started discussing the methodological question of how to deal with such a case, how to explain it. So I said, I introduced the concept I called a legal rationale, and I said that usually when we look at something like this, we look for an explanation on the plane of the reliability of the evidence. Meaning, if the evidence is good enough, then ostensibly it should be admissible—and that is exactly what creates the difficulty here, because we see that reliability is not what prevents us from accepting the evidence. So what is? The second alternative is a legal rationale. What is a legal rationale? Here too I want to make a distinction that I think I didn’t make last time, but even if I did, I want to sharpen it. There is legal evidence—there is a legal rationale—of the type known as the fruit of the poisonous tree. The fruit of the poisonous tree is, for example, when I carried out an illegal wiretap and as a result obtained some evidence for the trial before me. But the way the evidence was obtained was illegal. The question is whether the evidence I brought and present to the court is admissible. In the United States, for example, it isn’t. That is, there the doctrine of the fruit of the poisonous tree is very strong, as far as I understand—again, I’m not a lawyer, but that’s what I read. In the United States, fruit of the poisonous tree is not admitted as evidence. Also in Europe. Okay, Europe too. In all legal systems in Europe—there are various legal systems there—but okay. In any case, in Israel the situation is a bit different, as far as I understand, and there are situations in which evidence obtained through fruit of the poisonous tree will be accepted. Now you have to understand: fruit of the poisonous tree is perfectly good evidence. There is no issue at all with the quality of the evidence. I record a person saying to me: “I murdered.” You can’t ask for better evidence than that, okay? I’m setting aside for the moment the rule that a person cannot incriminate himself. In ordinary legal thinking, you’ve got evidence straight from the horse’s mouth: he himself says that he murdered. True, the recording was made illegally. Now this evidence is before us, and when the judge asks himself whether the person is a murderer—whether the defendant is a murderer—and they bring a recording in which he himself says “I murdered,” then the answer is obviously yes, right? I now know this man murdered; there is golden evidence saying so. But that evidence was obtained illegally. So if you ask me on the level of reliability, on the probabilistic level, how good the evidence is—the evidence is excellent. And if we don’t accept it, then the reason is not a matter of reliability of the evidence, not a probabilistic reason, but what? A legal reason. What is the legal reason? Obviously, we do not want to encourage people to use illegal methods. We want to prevent people from using illegal methods, and therefore even if they bring me golden evidence in a terribly important trial, I won’t accept it. The considerations are forward-looking, to prevent problems in the future. So from the standpoint of evidentiary considerations, this is excellent evidence; we don’t accept it for legal-policy reasons. This exists, of course, in every legal system, it seems to me—considerations of policy, considerations of structuring the system, or things of that sort, procedural considerations as distinct from the strength of the evidence, and so on. But I want to argue that there is another kind of legal rationale—or at least yes, I do want to argue this; it is not a trivial claim—that there is another kind of legal rationale, and it is a situation where somehow it seems that this evidence ought not to be accepted. Now I can’t point to what damage will be caused if I do accept the evidence. I don’t know how to point to some problematic legal outcome that would justify why I don’t accept the evidence even though it is good evidence, and yet my reasoning says—or I don’t know, my intuition says—that still it is not right to convict on the basis of such evidence. So there is no probabilistic problem with it; in terms of reliability it is good evidence. There is no legal problem of the first type, in the sense that it does not harm the structuring of the legal system or some legal policy; I can’t point to problematic consequences as in fruit of the poisonous tree, where I could point to such consequences. And yet somehow my intuition says that it is forbidden to convict on the basis of such evidence—that is, such evidence must not be accepted. Okay? Now there are borderline cases. For example, I don’t think—it seems to me it’s not just me—that a woman is not compelled to testify against her husband. It seems to me it’s not that if she testifies we don’t accept it, but rather that she isn’t compelled to testify. That’s how it seems to me. But suppose there were even a situation where I would not accept a wife’s testimony against her husband. Then there would be room to hesitate how to classify that inadmissibility. Meaning, one could say: I don’t accept it because I don’t want to create conflict between spouses in the world generally. But in the case before us, I don’t think it makes sense to worry about marital conflict when the person is a criminal and I have no other way to put him in prison. So if I can put him in prison on the basis of her testimony—his wife’s testimony—that’s what I’ll do. And if as a result they have conflict, okay, then he got a bit more punishment. I mean, I don’t think anyone is worried about them. But maybe one is worried about domestic peace in general among couples in the country or something like that. I don’t know exactly. But there is also some sense that it is not right to convict on the basis of a wife’s testimony. Meaning, it’s just not right to do that. I don’t even know how to define it, but some kind of instinct, a kind of intuition that says no, it isn’t right to convict on that basis. Now that is what I might call a legal rationale. I’ll give you an example in the halakhic context of this kind of legal rationale. Because a halakhic-legal rationale of this sort, I very much doubt you’ll find at all in ordinary legal systems. In Jewish law there are such things, in my view. The prisoners case is really an example, because you can say: why are you accusing me? You know nothing about me. But the very fact that I’m in a certain company wipes me out, and then in a kind of deterministic way I must be part of them. Okay, we’ll come back to that—I’m just laying the groundwork so we can return to those cases. But first I want to clarify the different types. So I’m saying, for example, take the case of migo as argumentative force. At the end of my booklet on migo I speak about legal rationales; I mentioned this. Let’s take a look for a moment at migo as argumentative force. What happens there? We know that in halakhic evidence law there is a kind of evidence called migo. What is migo? A person makes claim A. He also had the option of making claim B, which is stronger, but he doesn’t make it. Now that situation serves as evidence in his favor when he makes claim A. And why? Because I say that if he wanted to lie—if I think he is lying when he makes claim A—then if he wanted to lie he would already have chosen claim B, which is a much better claim. Rather, what follows? If he makes claim A, apparently he is speaking the truth; he is not lying. Because if he is already choosing a lie, there is no reason not to choose the best lie. So why did he choose the weaker claim? Is he stupid? No—he is simply telling the truth, and the truth is claim A. Therefore migo is considered evidence in favor of the litigant who makes claim A. This is what is called the aspect of “why would I lie?” Why would I lie? If I were lying, I would lie better. But later authorities point out—quite a few of them—that migo sometimes, at least in certain passages, plays a different role. For example, someone comes and claims money from me. He says: “You borrowed one hundred shekels from me and didn’t repay me.” And I say to him: “What are you talking about? I paid you. I repaid you.” Now here, in principle, the burden of proof is of course on him; he is the claimant, he wants to extract money from me. Right? But once I say “I paid,” “I paid” means that I am basically admitting that I borrowed, only I claim I repaid. That can change the balance between us, because if I admit I borrowed, then now I am already liable. If I claim I repaid, then the burden of proof may be on me, because we have already reached the point where we both agree that I borrowed. Now I say: yes, but I have a migo. What is the migo? I claim “I paid,” but I could have claimed “it never happened”—I never borrowed at all. What do you want from me? He brought no witnesses; he is making an unsupported claim that he lent to me; he has no witnesses to the loan. Okay? So I really could have denied the whole thing and said: there was no loan at all. So ostensibly I have a migo of “why would I lie,” because believe me that I repaid him, even though that is not such a strong claim—but believe me that I repaid him on the basis of the migo that if I were lying I could have said “it never happened.” But in Jewish law, if I claim “I paid” in monetary law, that is much stronger than saying “I never borrowed.” No, that’s not so. Only because of the migo claim; otherwise it isn’t stronger. Rather because—also as argumentative force, it isn’t stronger, it’s just the same. No, without the law of migo at all. Of course not. A person who claims “I paid” closes the case even in monetary law. There are—I’m not going into the details now—there are discussions of whether one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, or need not be repaid in the presence of witnesses. Yes, no—without witnesses. I’m now speaking of a case without witnesses, plain and simple, no witnesses. So no, I’m saying: does he have to repay with witnesses, and if he did not bring witnesses then he must pay? Then there are side considerations here. But leave that aside for now; I don’t want to get into that issue. I’m saying that obviously, as a matter of reasoning, the claim “I paid” is a worse claim than “it never happened.” Right? That’s obvious. Because in the claim “I paid,” I admit that I borrowed, I only claim that I paid. But I have already placed myself in a weaker position because I admitted that I borrowed—that there was in fact a loan. So what happens in such a situation? I have a migo from the claim “it never happened.” I could have told him: “None of this ever took place,” and then I wouldn’t have to bring proof or anything. What do you want from me? Prove there was a loan at all. Now, the problem is that this migo is a problematic migo; it is called a migo of brazenness. Why? Because to say “it never happened”—what am I really saying? I’m really saying: believe me that I repaid, because if I wanted to lie I would have lied with a better claim, namely “it never happened,” that none of this ever took place. Then they say to me: no. He lent you money. To tell him to his face that there was no loan is to be brazen toward someone who did you a favor. Someone basically did me a kindness and lent me money, and I lie to him to his face and insolently say: “What are you talking about? None of this ever happened.” What does that do? It means that I cannot bring in my favor the fact that I could have claimed “it never happened.” In short, I ask the judges: “Do you suspect me of lying? If I were lying, I would have said ‘it never happened.’ Explain to me why I didn’t say that if you suspect me of lying.” The judges would say: “What do you mean? You didn’t say ‘it never happened’ because you were uncomfortable lying to the face of someone who did you a favor.” So we have a good explanation for why you did not lie with the stronger claim, “it never happened.” Therefore the migo falls away; it is a migo of brazenness. Rather, what follows? There is a dispute among medieval authorities on this issue: does a migo of brazenness still help in other contexts, for example to exempt from an oath? There is a dispute among medieval authorities whether a migo of brazenness helps to exempt from an oath, meaning that a migo of brazenness still has halakhic standing. The question is why. Because the “why would I lie” reasoning does not exist here. I cannot derive evidence from the fact that if I were lying I would have claimed “it never happened.” No. We have a good explanation for why you didn’t claim “it never happened,” because that would be chutzpah. It would be brazenness toward someone who did me a favor. So I don’t have that “why would I lie” logic here. So why does this migo work—for example, to exempt from an oath? Why does it work? The claim is that various later authorities formulate it differently, but I have argumentative force here. What does that mean? Or credibility-force, argumentative force. What does that mean? It means that the very fact that I have at my disposal a claim that would have enabled me to win—namely “it never happened”—if I had claimed “it never happened” I would have won the case. Okay? So if I have the possibility of winning, that itself gives me an advantage. Notice: there is no reasoning here proving that I am not lying because if I were lying I would have made that claim. That consideration does not exist here in a migo of brazenness. And still, the very fact that I have an alternative claim by which I could have won increases my power—or in other words places the burden of proof on the other side, turning me into something like the one in possession. The question is why. What is there in that…? There is a book called Sefer HaMigo. Someone gathered all the laws of migo, lots of analyses on the subject of migo, and wrote a book about it. In the introduction, in the approbation to the book, Rabbi Breish of Switzerland—the author of the responsa Chelkat Yaakov—writes there in his approbation that he doesn’t understand what migo as argumentative force is. From the fact that I could have made a different claim by which I would win, now I win with this claim too? He says: what is this? Is it like electricity? You transfer force from here to there? If there is no “why would I lie” logic, then what does it matter that you have another claim by which you could have won? But you didn’t make that claim; you made this claim, and this claim is weak. So why do I care that there is another claim that is stronger? On this matter, there I discuss it in the migo pamphlet, but I want to say that basically we know that in general the one in possession has the upper hand. Right? Meaning, if someone claims against me and I am in possession, the burden of proof is on the claimant, not on me. If no one brings evidence, I win the case. Okay? That is basically the point. Now what happens when I have a migo? The claim is as follows: after all, I could have said “it never happened,” right? True, that would have been brazen, but I still have that option. I have a good motivation not to use it, but the option exists. What does that mean? It means that in essence the victory in this case depends only on me. If I had chosen to say “it never happened,” I would have won the case. Okay? That is the fact. This basically means that the power to win is given over to me. I could have said “it never happened”; maybe it would have been uncomfortable, but the option exists. Once I have the power to win solely through claims, without evidence, that turns me into the one in possession, because that is precisely the status of the one in possession. The one in possession can prevail simply by virtue of being in possession and does not need to bring evidence. By claim alone he wins. He doesn’t need to bring evidence. Whoever can win in court by claims alone without bringing evidence is considered the one in possession. Therefore, if I have a migo—even if it is a migo of brazenness—the burden of proof is on the other side. Now, a rationale of this kind—Rabbi Breish, for example, does not accept it. Try to think how to classify the rationale I just presented on the map I described earlier. It is not a probabilistic rationale, right? There is no probability here that I am right. Because the “why would I lie” consideration, the logical consideration that increases the likelihood of my claim, does not exist here, because this is a migo of brazenness. Now, at least I do not see what legal consequence there would be if I did not accept this migo, this migo of brazenness—I mean a systemic legal consideration, legal policy, and the like—I don’t see that here either. So what remains? Why should we accept a migo of brazenness? The answer, I think in this context, is: just as I accept the advantage of the one in possession. The advantage of the one in possession is that he can win without evidence. And assuming I accept that principle—that the one in possession has an advantage—now I say: if you have a migo of brazenness, which is really argumentative force but without the “why would I lie” rationale, then you essentially become the one in possession. You enter the category of the one in possession, and therefore the burden of proof is on the other side. Now, you are not really the one in possession. The other side is the one in possession; after all, without the migo you would have been the one who needed to bring proof. But the migo reverses the order of possession. That is, it turns me into the one in possession and places the burden of proof on you. Why? Because there is some sort of rationale that whoever has the power to win thereby gains an advantage. Why does having the power to win give you an advantage? What does that even mean? This somewhat resembles the idea of “it is in his hand.” Right? When someone comes and says: “Your pure foods have become impure.” Meaning, someone says: “Your priestly gift became impure.” Now in principle, say, he is not believed. But why in this case would he be believed? Because he could have rendered them impure with his own hands—it is in his hand. He could simply have made them impure. He could have brought about with his own hands the state about which he testifies. And the Rosh writes, in the third chapter of tractate Bava Batra, that “it is in his hand” is not migo. It is something stronger than migo. That is, the very fact that you can bring about the state about which you testify with your own hands makes you credible, even though without that you would not have been credible. Now why? Again, the logic of migo is not enough here, because he claims that it is something stronger than migo. Although there is also migo logic here, right? If I wanted to make sure you don’t eat that terumah, I wouldn’t have to lie—I could simply actually make it impure. So there is migo logic here. But the Rosh claims there is something stronger than migo here. In other words, the explanation of migo would not be enough here. So what is it? The very fact that with my own hands I can bring about the state gives me priority in claiming that this is indeed the case. Why? I don’t know—some sort of legal rationale saying that if I have the power to bring something about, then that thing is treated as though it happened unless you bring evidence otherwise, and the burden of proof is on you. In a similar vein I want to say the same about a migo of brazenness. After all, I have the power to win. I can say “it never happened,” and I would win—without any evidence, without anything, I would win. So I really have full control over the money; everything depends on me. If I decide to say “it never happened,” then I decide; and if not, then not. So once full control over winning the case depends on me, and by claim alone without evidence I can win, then I become the one in possession, so I have an advantage. It gives me priority and the burden of proof shifts to the other side. Now perhaps I’ve already grown accustomed to this, I don’t know, because many people criticize this principle of migo as argumentative force. In my migo pamphlet too, at the end there appears—whoever published this booklet, it was from a lecture I once gave in Bnei Brak—he took the booklet to Rabbi Yossel Schreiber, a very interesting Torah scholar, one of the two Schreiber brothers, and he said: “I don’t understand this thing. What is this force? Are we arm-wrestling here? What does it matter that he has force? So what if he has the power to win? The question is who is right. Why should I care that he has the power to win?” That expresses exactly the same puzzlement as the Chelkat Yaakov: what is this, electricity? You transfer force from here to there through an electrical circuit? So what if I have the power to win with that claim? I made this claim, not that one. Why does it matter that I have the power to win with that one? But still, what I want to argue is that the difficulties they raise stem from the fact that they expect a probabilistic explanation. They expect that if I do or do not accept a certain piece of evidence, it is because the evidence is probabilistically good—it really clarifies the facts—or it doesn’t, and therefore I do not accept it. They look for the explanation on the probabilistic plane, whereas I argue that there are other planes of explanation, and in this case that is the legal plane. And I say that on the legal plane it makes sense to give an advantage to someone who has the power to win purely by a claim without evidence. Rabbi, may I ask questions? It depends a bit on how you assess these things. First of all, why do you call the claim “it never happened” more brazen than saying “I paid”? What difference does it make? Whether I say “I paid” or I say “none of this ever happened,” I am being brazen in the same way, lying in the same way, trying to evade in the same— First of all, this really takes us too deeply into the issue; the logic is what matters for us. I’ll just say briefly: I think there is still a difference between a person and his creditor. If I say “I paid,” first of all I admit that he lent me the money; I’m not lying to his face outright. And with a claim of “I paid,” it could be that I don’t remember well or something like that, so it is easier to say to his face that I paid than to say, “What are you talking about? You made the whole thing up.” Because even when I say “I paid,” it could be that I don’t remember properly, and I also portray him as someone who maybe doesn’t remember properly that I repaid him. But if I say to him, “Listen, you’re just a liar; you never lent me anything at all,” then this is a person who did me a favor and I portray him in religious court as a complete liar, okay? So I think that is why the commentators themselves indeed say such a thing is a migo of brazenness. Okay. And second question, please: why shouldn’t we say that when I use migo, it can actually be interpreted differently—that I am being manipulative? I make the weaker claim so I can say, “See, I could have said something better.” That is one of the things I answer in my pamphlet; that is the question of the prodigy from Mechet. You’re in good company. The prodigy from Mechet basically asks: once the principle of migo exists, the principle of migo undermines itself, cuts off the branch it sits on. Because once you turn the claim “I paid” into a claim as strong as “it never happened,” then “it never happened” is no longer a migo, because it is no longer a stronger option. But of course you can keep taking that further, and then what will you say? So there is no migo? Then we won’t accept the idea of migo? But if we don’t accept the idea of migo, then again there is migo. Keep going. The only question is where to stop, so that doesn’t solve the problem. No, no, I didn’t understand. Can the Rabbi explain that question again? I could have said “none of this ever happened.” I could have said that, so I have a migo, right? Why? How is migo built? Because right now I am making a weak claim, but I had an alternative claim that was stronger and I did not make it, right? Now once you gave force to the weaker claim, it stopped being a weak claim. What difference does it make? Then it will be the same. But if it is the same, then the alternative claim is no longer better, so the whole idea of migo no longer exists. Why? Right now I can say “none of this ever happened,” and since that is so, then this claim too gets the same force. Of course not—it doesn’t need to be more or less? I didn’t understand. But no, this claim is a bad claim. But I could have made the better claim; it still stands—I can still claim “none of this ever happened.” But I’m saying: you made the claim “I paid” because you know it isn’t weaker, not because you’re telling the truth. After all, you know it too will be accepted by virtue of migo, so there is no longer the element of “Look, believe me, I would have made a better claim.” So they are the same. If they are the same and I have the option—if both are the same, they’ve been given the same force? No, not the same. Again, the migo gives the weak claim force, but once it gives it force, that force itself goes down. Why? I don’t see why. Because in itself it is a weak claim. But I can still make the other claim. But you don’t. I’m telling you why you made this claim and not that one: because you wanted this claim to be accepted by force of migo, not because you are actually speaking the truth. So I have an explanation for why you made it, and then there is no migo. But then why do I need the migo to help me if I can get off with the other claim? Why complicate things? No, because you have a migo, which is better evidence in your favor. You have evidence in your favor. The claim “it never happened” is, say, just the absence of evidence. With “I paid,” you brought evidence, evidence in your favor. No, you don’t need evidence. It’s accepted because it has the same force. No evidence is needed. No, that’s the point. But I’m saying: why did you make that claim? Because you wanted it accepted by force of evidence, not by force of procedure. So I have an explanation for why you made it, and then there is no migo. Fine, never mind, that’s not our issue here. Look in my migo pamphlet; I explain there why that objection is not right. In any case— And what the Rabbi mentioned about the Rosh, that the Rosh says there is a situation different from migo, when you can bring about the thing, then as it were it is in your hand. So true, one must first distinguish, because we see that reasoning: when it is in your hand to do or to fix something, it gives an added advantage. That is a known rationale; the Rosh did not invent it, right? Never mind, but still. Okay, okay, fine. Yes, but then what does he want? He doesn’t accept it as migo if he needs to invoke that rationale? What do you mean he doesn’t accept migo? He says it is stronger than migo. Okay, okay, fine. Okay, that’s only a stage—okay, fine, so it’s something other than migo. There is migo there, but there is also something stronger than migo. A law of “it is in his hand.” So does it not work in the sense that it simply weakens the presumption, the presumption of prohibition—basically canceling the opposing presumption of prohibition? Because there is a law of— You’re just giving a more detailed explanation there of that legal rationale, but it is still a legal rationale. There is no evidentiary rationale there. It’s not probabilistic; it simply weakens the presumption because there is a law of— So you are only putting the legal rationale into words; I don’t care, I’m not even getting into that. I’m happy to accept it, no problem. But still, in the end what you are doing is basically telling me: there is a rationale here unrelated to the degree of reliability of what you are saying. This is not a probabilistic issue but a legal one. The legal issue is that it changes the presumption. Okay, fine. So the claim, ultimately, is that at least in the halakhic context—and I claim this does not exist in ordinary legal systems, at least as far as I understand, but it does exist in Jewish law—there are legal rationales that do not stem from legal policy with some external justification, as in fruit of the poisonous tree. That exists also in ordinary legal systems. But something like migo as argumentative force—I don’t think that exists in the legal world. And if there is anything like it, they immediately invent all sorts of explanations for it, rationalize it, and sometimes the rationalizations are somewhat problematic. There is, for example, a nice illustration of this in the Miranda decision in the United States. Everyone knows the Miranda warning from the movies. What is the Miranda warning? When they arrest someone, they tell him: you have the right to remain silent, counsel will be appointed for you, and all things of that sort. Where did that come from? There was a Miranda ruling which basically says that a person is not convicted on the basis of his own confession—a person cannot incriminate himself. And in the Miranda ruling, therefore, every detainee must be informed of his right to remain silent—that is, so that… In the original Miranda ruling, the judge cited Maimonides on the principle that a person cannot incriminate himself. A non-Jewish judge cited Maimonides on the principle that a person cannot incriminate himself, and that is how he basically justified this issue of the inadmissibility of self-incrimination: when a person incriminates himself, that is not accepted. But they also say, “Anything you say may be used as evidence against you.” Right, but that came through later developments; it’s not important right now. It went through transformations. In any case, there they only say you have the right to remain silent, not that if you speak it will not be used as evidence. So he brought that Maimonides. And by the way, judges in Israel copied in their rulings from the Miranda ruling, and they also took the resort to Maimonides from that non-Jewish judge in Miranda, because they don’t know him. It’s very amusing because he erred in his interpretation of Maimonides—the non-Jewish judge. That is, he thought Maimonides’ point that a person cannot incriminate himself stems from the fact that we have problems with self-incrimination—in other words, that it isn’t reliable. Why? Because they tortured him in police custody and therefore he confessed. Otherwise, why would a person confess and incriminate himself? Apparently he underwent torture, they forced him to confess, and therefore we don’t accept his statement. That is of course not what is happening in the Talmud. In the Talmud there are no police interrogations and no torture and none of that. There is a principle here that self-incrimination is not admissible—a legal rationale. And the very interpretation that that judge gave to Maimonides shows us that in ordinary legal thinking such rationales are not accepted. You will accept such a rationale only if it has some justification, like fruit of the poisonous tree, fears of torture, things like that—legal rationales of the first type. Legal rationales of the second type you won’t find there. They just aren’t there. Another example, perhaps: the disqualification of relatives as witnesses. The Talmud says—and this is copied by Maimonides and the Shulchan Arukh—that this is a scriptural decree. Okay? Now in legal circles I have already seen people discuss this and say: well, there is some concern that their testimony is biased. So why does the Talmud say that it is a scriptural decree and not a concern that they are lying? The point is not that they are lying, but that their perception is biased, because closeness skews one’s perception. In other words, he is not always aware of it; it’s not that he is intentionally lying. After all, a person does not sin where it does not concern him. So there is a presumption of decency: a person does not just lie for no reason, unless it concerns him. But if it concerns someone else, then not. Still, there is a concern about the admissibility or reliability of his testimony because his perception is skewed—he is a family member, emotionally involved in the matter. On the simple reading of the Talmud, that isn’t the point. There is mandatory inadmissibility. That is, if testimony comes from a relative, it is not admissible—not because of concerns about its reliability. But what about Bava Batra 32b there regarding Rabbi Yosef, where he speaks there about the forged document they brought and he said to Rabbah bar Mani, “bend down and whisper”—he created a migo for himself. Yes, so there that is in monetary law. He himself was effectively a witness for himself in a matter disqualified in law. No, there it is monetary law. Huh? In monetary law a litigant’s admission is like a hundred witnesses. I am speaking about criminal law: a person cannot incriminate himself. A person testifying that he lent on interest, that he murdered, that he ate pork—things of that sort. But it’s really just like that: he brought a forged document because once he had an original document. This is a litigant who lied. No, clearly, but I’m saying that because this is monetary law, he created a migo for himself, and the argument is whether we accept a migo that a person created for himself. But there is no problem here of a person incriminating himself. Meaning, we are not discussing why the Talmud doesn’t punish him for the lie he told. If we were discussing whether to punish him, then indeed self-incrimination would not be admissible. We would not punish him on the basis of his testimony about himself. But here we are discussing rules of evidence in a monetary case. In a monetary case, just the opposite: a litigant’s admission is like a hundred witnesses. No, I was wondering why they accepted him in the first place when he came with a lie to the religious court, since he “whispered.” He didn’t come with a lie—they didn’t know it was a lie. Only afterward did he say he had lied. At first he presented it as true; that’s the whole point. And afterward he told them: “You know what? I lied, and the truth is such-and-such. I could have remained silent and left the lie standing, but I didn’t. I was honest and told you I had lied, but the truth is such-and-such, so believe me on the basis of migo, because I could have kept silent and left the lie on the table.” Ah, I understand. At first they didn’t know it was a lie. Exactly. That’s why it didn’t make sense to me. That’s the whole idea; that’s how the migo is created. And even there there is an argument in the Talmud—it’s a dispute. Yes, yes. No, that’s why I didn’t understand why they place it that way and not differently, because you say that in monetary law it is not like… No, no—wait. In monetary law, that is the whole thing. It is a difficulty people have already asked about. In monetary law a litigant’s admission is like a hundred witnesses; specifically your testimony about yourself is accepted like a hundred witnesses. But in self-incrimination it is not—in criminal law, so to speak. Yes, someone wanted to comment earlier? Yes, I wanted to ask: if their justification is not probabilistic or evidentiary in legal matters, then what is it? A priori? Is it simply an additional category? Yes, yes. Again, it is hard for me even to justify or explain such a thing; I’m only pointing out that we have intuitions of this sort. Now you can say: okay, we have lots of biases and need to overcome them. And that is probably what lawyers would tell you. Lawyers generally do not accept justifications like these; they look for justifications of the first two kinds. You won’t find justifications of the third kind there. They don’t exist. That is why, in the examples I brought, that American judge invoked the rule that a person cannot incriminate himself but immediately rationalized it. He explained why self-incrimination is really less reliable, and therefore it is not accepted. Because he is unwilling to accept explanations of the third type. And that is exactly my point: that in Jewish law there really are principles whose explanation belongs to the third type. That is, there are legal rationales that are just so—I don’t know. For example, with testimony of relatives there is also a feeling that this is the point. Just as a person cannot testify about himself, so too my relative cannot testify about me, because my relative is basically me in a broader sense; he belongs to a broader self. And we do not accept a person’s testimony about himself; we are not willing to judge a person based on things he himself says about himself. Okay, so that can be one type. But even there—why not? What is the problem? If on the probabilistic plane it is good testimony, good evidence, then why not accept it? What is the problem? Okay, fine. These are only examples, and we could go into each one, but that isn’t our topic here. I only want to illustrate this third type of explanation. So there is a probabilistic explanation; there is a legal explanation that also exists in general legal systems—that is, an explanation in light of consequences that could follow, or system justifications; and there are legal explanations… perhaps another example: why is there a rule that the burden of proof lies on one who seeks to extract from another? I think I mentioned this last time too. The rule that the burden of proof lies on one who seeks to extract from another. Someone claims money from me and I say I do not owe it. I am in possession of the money, so the burden of proof is on him. Why? Why is the burden of proof on him? Either I am lying or he is lying; probabilistically it’s fifty-fifty. That is, there is no way to know who is lying and who isn’t. So why give me an advantage over him? Let’s split it, draw lots, let it remain unresolved until Elijah comes—I don’t know. But why leave the money with the one in possession? So there is some rationale there. You can propose different rationales; I discussed this in a series once. One rationale—I think the simpler one—says this: in order to take the money from you, the religious court needs to act. Right? It has to come to you and obligate you to pay the money, issue a ruling that you must pay so-and-so that money. For the court to take action, it needs a reason. If there is no reason to do anything, the court won’t do anything. Now what happens when the court does nothing? The money remains where it is. Right? So to take the money from you requires legal action. To take legal action requires justification. A court needs a reason in order to act. To refrain from acting, it needs no reason. It is enough that there is no reason to act; that justifies the court’s not acting. You don’t need a reason not to act; you need a reason to act. Therefore the burden of proof lies on one who seeks to extract from another. But why—why is there no reason to act? If he grabbed it from him? If Rabbi Kook comes and says that one of the criminals from Netanya stole it from him, then we would have every reason to think that Rabbi Kook isn’t lying. I’m going to an extreme case; leave it, that’s not the point. Ultimately there I too would think that. But I don’t understand the possibility at all—how could it be otherwise than that the burden of proof lies on one who seeks to extract? The whole world would collapse. I’d walk by the Empire State Building and say, “This is mine, so please prove it isn’t mine.” Exactly. So here too it would seem this is a rationale of the third type. There is nothing probabilistic here; it’s fifty-fifty. But now Shmuel has suggested an explanation of the second type, not the third. True, there is no probabilistic issue here, but there is very strong legal logic for structuring our system this way. Because if we give everyone the possibility of claiming from someone else without any justification, then the whole world will start jumping up and claiming money from people and you will leave no one with any peace. That is, anyone in possession of money could suddenly be pounced upon by someone else and they would split that money because neither side has evidence. That is not a reasonable way to run a system. And again, despite the fact that probabilistically I have no consideration in favor of the possessor. It could even be that if not for this rule—that is another kind of paradox—if not for the rule that the burden of proof lies on the one who seeks to extract, then there would be more reason to think the possessor is right. Why? Because everyone in the world would have an incentive to sue him—what do they have to lose if they can gain half the amount? They don’t need to bring evidence or anything. And if everyone in the world has an incentive to sue him, then the chance that the claimant is lying is greater than the chance that I am lying. But after we concluded, after we established the rule that the burden of proof lies on the one who seeks to extract, now someone who has no right to the money won’t simply jump in and claim it. So now, absurdly enough, after we established the rule that the burden of proof lies on the one who seeks to extract, it turns out there is no advantage to the possessor. There is no advantage to the possessor, but there is logic in preserving the rule. And yet there is good reason to preserve it, because a legal system cannot function otherwise. So I think that the rule that the burden of proof lies on the one who seeks to extract is a rationale of the second type, not the third. Okay? Good. So that’s… If he had grabbed it from him, then it becomes a question of whether a person may enforce the law for himself, of seizure, whether seizure is effective. There are many situations… From the point of view that the court has to act? That’s what I’m saying—that whole discussion is the discussion of seizure. In principle, in many places seizure really is effective. And if a person seizes, then again the court will not intervene. That is why seizure works in the places where it works: I seized it, and I’m not asking the court for anything—I seized it. Once I seized it, now in order to take it from me the court would have to act, and it won’t do that either, because it has no reason to act. Therefore seizure works. The caveat is that seizure works before the doubt arose. After the doubt arose and the court was already involved—there is a Tosafot at the beginning of tractate Bava Batra—seizure after the doubt arose is ineffective. Why not? Because after the case reaches the court, we also don’t want chaos, where each side grabs from the other in order to win. And once again, that is a legal consideration, not a probabilistic one. The legal consideration says there has to be order: once you’ve come to court, leave it to the court to decide. From here on, you can no longer each grab from the other. But if it happened beforehand, then okay, seize. Is the rule that the burden of proof lies on one who seeks to extract basically the same rationale as the presumption of prior ownership, or are those two different things? No, now you’re dragging me into the pamphlet on doubt; he has an entire discussion of that issue. Fine. In any case, this is a general introduction to the three kinds of explanations one can look for. Why am I saying this? Because I’m now returning to the case we are dealing with, the prisoners in the prison. There the probabilistic explanation probably does not exist, right? Because probabilistically, the chance that I am right regarding the prisoners is greater than the chance that I am right in the case of eyewitnesses. And yet I don’t accept it. So apparently there won’t be a probabilistic explanation here. So what will there be? A legal explanation, either of the first type or of the second type. But there will be some legal explanation. For example, I can already suggest one now—we’ll come back to it later—but I can already suggest a legal explanation of the first type. If we convict by means of reasoning of this sort, then it follows that one innocent person will certainly be convicted here, right? Because we are essentially going to convict all one hundred prisoners. Every one who comes to trial we will convict, because there is a ninety-nine percent chance that he participated in the murder. But we will have to convict all the prisoners in that way, since we do not know who did and who didn’t. And then it will turn out that by definition we convicted one innocent person, right? For sure. And it may be that a legal system does not want to do such a thing. It is accepted in the world—they also quote Maimonides in this connection—that it is preferable to acquit a thousand murderers than to convict one person who did not murder. It is a big question whether that is really true, but that is the accepted legal conception, and they quote Maimonides in this connection. So if that is indeed so, then we can understand the legal logic of why not to convict in such a case. But notice: that is legal logic, not probabilistic logic. Now you’ll ask: then what about witnesses, conviction on the basis of witness testimony? If two witnesses come and say Reuven murdered, there too, if I say their reliability is ninety-five percent, then in five percent of the cases in which I convict on the basis of witnesses, I will have convicted innocent people. Right—but it isn’t certain. Statistically there are five percent of cases in which the eyewitnesses miss, but I cannot say with certainty: here is a case in which I convicted an innocent person. And on the legal level there is a difference between a case in which I certainly convicted an innocent person—a mechanism like that I am unwilling to allow on the legal plane—and a case in which I may make mistakes and statistically, in large numbers, I will probably also convict innocent people. But I cannot tell you with certainty that by means of this mechanism an innocent person will be convicted. That, for example, is a plausible legal rationale to answer this question. Although again—notice—this is a legal rationale, not a probabilistic one, because in the final analysis, statistically, more innocent people will be convicted if I adopt eyewitnesses as admissible evidence. Five percent will be convicted among the cases. With the prisoners, only one percent of innocents will be convicted—only one person. Okay? But still there is some legal logic that says I am unwilling to adopt a mechanism that certainly convicts innocent people. That I am unwilling to do. I am willing to take risks that innocent people will be convicted, but not… By the way, this is somewhat similar to the situation around the hostage deal. It was really the same argument. In the hostage deal, one of the arguments against it—there were others too—but one of the arguments against it was that the terrorists released in exchange for the hostages would later murder Israelis. So what is preferable: the hostages whose lives you save now, or the Israelis who will lose their lives because these people will return to terrorism and murder other Israelis? And statistically that is probably quite clear. There is clear evidence from previous deals. Now one of the… I think the strongest argument against that line—and again, many people who supported the deal used, in my view, absurd arguments—but I think their intuition was grounded. And that intuition basically says that if I do not make a hostage deal, I have sent people certainly to their deaths. That is, those hostages are definitely going to die if I do not make a deal. That’s it—they will stay there until they are killed, or they will die. Okay? By contrast, if I release terrorists now and save them, then they will not die now—I have saved them. In the future, statistically, Israelis will probably die, but I cannot say with certainty that Israelis will die. I only assume statistically that that is what will happen. And in large numbers we know that statistics do materialize, right? So I am not claiming it will not happen. I am claiming that because there is no certainty that it will happen, in a situation where I am not certainly sending a person to his death, that is preferable, even though probabilistically more people may die in expectation. Who said that the majority is preferable to certainty? There are people I am certainly saving; that has an advantage. Again, this is a consideration one can debate. I am only showing the consideration. There is such a consideration. Many people—including me—support this consideration. I think it is a consideration in favor of a hostage deal. There are other considerations against it, and that is why in the end I did not like the hostage deal—or hostage deals in general. But as far as this particular consideration goes, I think it is a correct one. That is, if there are people you need to save right now, then right now you save them. What will happen afterward—fine, I don’t know, maybe yes, maybe no. Statistically you are right, there will be more dead. But that is statistical. I cannot say that I am certainly sending people to their deaths. Okay? You gave an optimistic scenario. What? In the end everyone dies, right? You can say that too. According to that, you could say not to save human beings at all, since everyone dies. No, but okay, statistics here are not necessarily the solution to everything—that’s what I’m saying. People will die through murder, not… they’ll die just naturally. Fine, true, but here you see a person… as the Rabbi described it very nicely, the intuition. Okay, so why is that called statistical? What? Why is that called statistical? In every deal, certainly, those who were released… It’s not with certainty; it’s statistical. We talked precisely about a majority not before us. It’s an extrapolation from a sample. We had a sample of previous cases and we generalize from it and claim it will happen in future cases too, right? That is exactly a majority not before us. But a majority not before us—it isn’t a majority, it’s all of them, it’s one hundred percent. No, it’s not all of them. What do you mean? There are statistics: on average more people will be killed. Okay. No—someone who was eliminated immediately afterward did not return to activity. But most of the terrorists did return to all their activities. So I’m saying, fine, they return to activity, but the fact that they return to activity doesn’t mean they’ll succeed. It doesn’t mean… I don’t know; many things could happen. Everything is uncertain. You are right that statistically, on average, more people will probably die because of the deal than if we had not made the deal. But because it is only a statistical outcome, there is a consideration—and again, I know people argue; many do not accept this—but there is a consideration that saving definite lives is preferable to risking more lives. That’s all. Where do we see that certainty is preferable to a majority? What? Where do we see that certainty is preferable to a majority? Who said certainty is preferable to a majority? A majority of chances is like certainty; the majority is treated like certainty. Right. Reasoning says so. It’s like… Yes, but there is no such halakhic legal rule. What do you mean there isn’t? If reasoning says so, then there is. There—you just saw the reasoning. Reasoning is a source of law. Of course it is. Why not? There are decisors, by the way, who do this sort of reasoning all the time. Decisors speak about autopsies, for example—the discussion about autopsies. Or yes, all sorts of dissection of corpses in order to learn medicine or train doctors or things of that sort. There are many decisors—and again, here I disagree with them—but there are many decisors who say: look, right now this is a violation of the dignity of the dead. True, in the future it will save lives because medicine will progress or because doctors will train better, so in the end… And nevertheless there are decisors who say no, do not do it. “There are”? All the decisors. They say not to do it for future needs—almost all of them—as opposed to an immediate rescue of some concrete individual. Why? After all, in the future on average it will certainly improve medicine and save people on average. True, but there is no concrete person here for whom you are doing the transgression in order to save him. And in the statistical percentage there is no justification. What? In Israel—in Israel it is really a dry lab, not wet. No, I think they also dissect people who donated their bodies to science; they dissect them. What? Those who donated their bodies to science—they dissect them, of course they do. No, no, I mean learning on the dead in Israel is a dry lab. Those who need to go through it go abroad. No, no, they dissect corpses; certainly they do. What, for training? Yes. What do you mean “for training”? To learn anatomy—is that training? Of course. First-year medical students, yes. That’s news to me. At the time, I also knew—Shmuel is a doctor, so he can tell you. No, I know he’s a doctor; you already said that once. No, I just recently spoke with a priest who is a doctor; he told me he went abroad because here they didn’t do any wet work at all, everything was dry. I know something else—I know they work with cadavers; of course they do. Fine, never mind. In any case, for our purposes, I’m just saying that there too you see a consideration where a more severe result, if it is uncertain, I still prefer over it the less severe result—that is, to prevent the less severe result. Okay? This is a certain kind of consideration. So here too, for example, is a legal consideration that can explain why we do not convict in the case of the prisoners but do convict in the case of eyewitness testimony. But of course this is not a probabilistic consideration; it is a legal one. Now the question is what type of legal consideration it is. An interesting question. I’m not sure whether this is the second type or the third. Because on the face of it there is logic to seeing it as the second type, because you really want to prevent a future concrete result. That is, considerations of this sort also exist in secular law; this is ordinary law, that is quite clear. Again, maybe yes, maybe no, but it is a relevant consideration in secular legal analysis. But on the other hand, when you think about it, there is room to wonder. What do you mean? After all, in the end, by the law of large numbers it is clear that in the end more people will die if you make a hostage deal, or if you prevent autopsies. So why do you care about uncertainty versus certainty? On average you save more people. And then it may be that this becomes a consideration of the third type. True, but my instinct tells me certainty is preferable to uncertainty. I don’t know exactly why, because the law of large numbers says that in the end it will happen. True, but still certainty is preferable to uncertainty. I prefer to expose the entire population of the State of Israel to, I don’t know, one-thousandth of a percent risk that a terrorist will kill them—where one-thousandth of a percent means one in a hundred thousand, so if it’s one hundred dead out of ten million residents, one-thousandth of a percent is one hundred dead. Okay? But each of us is under a risk of one-thousandth of a percent. By contrast, the hostages—I send them with one hundred percent certainty to death if I do not make a deal. That is another way of presenting the same thing. So in the end one hundred people will die, but each of us is in such a tiny chance that he is willing to take it in order to save people who are now in certain danger. Right? But Rabbi, that’s what you said regarding the punishment of the Egyptians. So it doesn’t matter that each and every one still retained free choice, but it was certain overall— That is why I said it is really not simple whether this belongs to the second category or the third. Because in principle it seems to be in the second category, but precisely because of what you are asking: after all, in the end the law of large numbers says a hundred people will die. But that’s what I find hard to understand—how you hold both things together, that despite the law of large numbers, which seems like complete certainty, we still say… Again, no—not complete certainty. It’s the expectation. In large numbers the chance that we reach the expectation is very high. But it always remains probabilistic. That is what the Raavad asks of Maimonides there. He says in principle all the Egyptians could have chosen the good, and then there would have been no enslavement. Right, and you explained that Maimonides actually holds by this law-of-large-numbers approach, which I understood as a kind of certainty. No, it’s not certainty. The chance is very high. There is never certainty except perhaps at infinity, but there is never actually infinity of cases. There are many cases. So the chance is… Suppose you roll a fair die, okay? Then the chance for each face is one-sixth. You roll six times—there is almost no chance it will come out one on each face, one, two, three, four, five, and six. That won’t happen. One of them will appear at least twice, one of them won’t appear, right? But if you roll six billion times, then it will be more or less a billion on each face. A billion minus two, a billion plus two, but it will be more or less a billion on each face. But I cannot stake my life on it being exactly a billion, a billion, a billion—that is not right. It is still statistical. In principle, it is possible that all six billion rolls come up five. Theoretically. The chance is negligible, but it exists. Meaning, we have not left the world of probabilities. So it is not certainty. That is precisely the dispute between Maimonides and the Raavad. There is indeed a side like Maimonides, but it’s not that the Raavad is talking nonsense. It is not certainty. Okay, so that is just to illustrate these three types of explanation. But what you just described with the statistical explanation—doesn’t that show just how important not reality and not the numbers are, but rather the story we tell ourselves and how we feel about it? Even though mathematically, statistically, probabilistically, it is the same thing, since the story we tell ourselves is different, our feeling toward the case is different, and that changes the whole picture completely. Completely. So this brings us back to that old argument between us: whether something that I cannot explicitly justify, a kind of general intuition—whether that is ultimately just emotion, we are simply built that way, so we tell ourselves a story, as you describe it—or whether intuition grasps something of legal truth. I’m not saying “just.” I’m not saying “just emotion.” Emotion is everything. Okay, so let’s drop the “just.” When you say it is just emotion, a story we tell ourselves, I say no—this is an intuition through which we discern that this is the proper legal way to act. It is not something dependent merely on psychological structure. Again, maybe someone with a different psychological structure would not feel it. But if he does not feel it, he is mistaken. My claim is that this is something true. Okay, this is that old discussion that resurfaces between us from time to time. In any event, I want to begin entering the actual explanations. So the first explanation I want to propose for the case of the prisoners is actually based on the distinction we made between a majority before us and a majority not before us. I remind you: a majority before us is the case of a piece of meat I find in the street. There are ten shops in town, nine kosher and one non-kosher, so I assume the piece came from the nine kosher shops. A majority not before us is a majority that is an extrapolation from a sample, like “most women are not incapable of bearing children,” and the like. It is considered like half and half. What is like half and half? No, that is fixed. I’m not talking about fixed; I’m talking about a majority before us and a majority not before us. In the case of a majority not before us, when it is a generalization—I choose something… In a majority not before us it is a law of nature: most women are not incapable of bearing children. Okay? Fine? In the case of the ten shops in the city, that is not a law of nature. In this city, as it happens, the distribution is nine kosher shops and one non-kosher. So this is not an extrapolation from a sample, but simply a case where I know the distribution in this city. In another city it would not be so. “Most women are not incapable of bearing children” applies all over the world. It is not a case created in one place or one time. In any event, we distinguished between a majority before us and a majority not before us. Let’s try to see, with respect to the prisoners versus the witnesses, what type of majority is involved. The witnesses—when I speak of two witnesses who testify that Reuven murdered, and there is a ninety-five percent chance they see correctly and a five percent chance they miss—which kind of majority is that? If I follow the majority, is it “before us” or “not before us”? Again. It is a bit like the judges, that same two-out-of-five with judges. Why? So you are claiming it is a majority before us? On the simple reading, yes. And you mentioned Rabbi Shimon Shkop, who wanted to… “Most witnesses tell the truth”—that is a majority not before us. Not before us. I also think it is not before us. It is not before us. “Most witnesses tell the truth” means there is some law of the world that people generally speak the truth unless it is shown otherwise. Now since most people speak the truth, and two people come before me, or see correctly or speak truthfully—it doesn’t matter now—then I ascribe some natural phenomenon, some natural law, and say it is probably true in the case before me too. That is the definition of a majority not before us. Okay? By contrast, with the shops, it is not a law of the world, as I said, but a case before me where I simply know there are nine kosher shops and one non-kosher shop. That’s all. There is no feature of the world that says shops tend mostly to be kosher. So I explained the difference between these two things. What about the prisoners? Where would you place that? Before us. That is before us, right? We know, according to the case, that there are a hundred prisoners here, ninety-nine of whom participated in the murder and one did not—just as we know the distribution among the shops, where there are nine kosher shops and one non-kosher one. In other words, we have information specific to this place and time, and now someone has separated from that group—the hundred, or the shops, or whatever—and I ask myself whether he comes from the majority group or the minority group. This is truly a case of a majority before us. There is room to discuss whether it is fixed or separated, but it is a majority before us. Okay? Now this is already a distinction worth noticing. Why? Because in previous classes I tried to explain the difference between a majority before us and a majority not before us. We saw that according to Maimonides, for example, a majority not before us is stronger, even though in the plain sense of the Talmudic discussion a majority before us is stronger. But then I explained Maimonides—what is really the difference? I said that a majority before us is not really a probabilistic majority at all. It is a working assumption. It is not a probabilistic majority. Meaning, in a majority not before us, I know, say, a hundred women, and of them I know that ninety gave birth—that is, they are not incapable of bearing children. I assume this is a representative sample, so I generalize to all women in the world and say that ninety percent of women in the world are not incapable of giving birth. That is an extrapolation from a sample. That is ordinary statistics. By contrast, with the shops, why assume that the chances of having separated from each shop are equal? What is the basis for that assumption? My logic. Meaning, true, I have some kind of initial reasoning that says: why prefer this shop over that shop? A priori it seems to me that the chance of separation from each shop is equal. Because you have nothing else. Because I have nothing else, basically. Another formulation I gave was that a majority before us is based on lack of knowledge, not on knowledge. Meaning, “most women are not incapable of bearing children” is based on knowledge. I know a hundred women, I assume this is a representative sample, so I know something about the nature of the world: usually a woman can give birth. In the shops case, it is not knowing something about the world. On the contrary: since I don’t know anything, and there are nine kosher shops and one non-kosher, I assume the chance of separation from each shop is the same. But that assumption is not truly grounded, apart from some basic intuition that fine, we go with. I also discussed how often our statistics are based on lack of knowledge rather than knowledge. But still, the statistics here are the result of some working assumption. There is no way to know that it is really correct. There, in the sample case, I have an indication through a representative sample, but here I have no indication at all. There is no way—and I added more than that: I said we also have no possibility of doing an experiment that would test this hypothesis. Is the chance of separation from each shop really the same? There is no way to run such an experiment, so there is no way even to test the hypothesis. So it is not only that this does not come from an empirical source; even if it came intuitively and I now wanted to check it empirically, I couldn’t do that either. There is no way to confirm it empirically. So in fact I can understand why the majority in the prisoners case is weaker than the majority in the people case, because the majority in the people case—that is, the majority with witnesses—is a majority not before us… No, the majority with witnesses is a majority not before us, whereas the majority with the prisoners is a majority before us. And now notice that the distinction I made here is not only a legal distinction; it is a probabilistic distinction. Because my claim is that, on the probabilistic level, it is not at all clear that it is really ninety-nine percent that he murdered, because a majority before us is not really probability—it is a working assumption. When I don’t know… But it stems from lack of knowledge. It could be, as I said, that in one of the shops the bags tear more easily. Then pieces of meat that fall to the ground are more likely to come from that shop than from the others. Okay, I do not know that this is otherwise. But since I have no information at all, I assume the chance from all the shops is the same. But that is an assumption I cannot really justify probabilistically. Therefore now I want to claim that the difference between the prisoners case and the eyewitness case is even a probabilistic difference. It is not only that it is not a legal difference of the second or third kind; it is an outright probabilistic difference. But why isn’t it fixed? What? No, I said: I’m not getting into the question whether it is fixed, because I am speaking now about legal reasoning, not halakhic reasoning. Okay? I’ll get to the law of fixed later, but right now I’m only analyzing this on the cold probabilistic level. On the probabilistic level there is a majority before us, regardless of whether it is fixed or not fixed, and there is a majority not before us. Okay? And my claim is that if that really is the difference between them, then there really is a probabilistic difference between these two cases. True, this is ninety-nine percent and that is ninety-five percent, and ostensibly the prisoners case is a greater majority, but that is only because of our working assumption. That is, it is a majority before us. It is not that there is something in human nature whereby there is a ninety-nine percent tendency to murder and one percent not to murder. Does every person have a ninety-nine percent tendency to murder? There is no such tendency. This is just a distribution of people who happened to be in that situation. Therefore the very assumption that there are percentages here—ninety-nine percent versus one percent—is itself some sort of working assumption. It is not a fact I can treat as knowledge about the matter; it is absence of knowledge. And you do not convict on the basis of absence of knowledge; you convict on the basis of knowledge. Okay, that’s the first explanation. We’ll continue next time. I’ll stop here. Does anyone have questions or comments? Rabbi? Yes? Yes, I just wanted to say something following the phone conversation we had this afternoon. Yes. There is a Maimonides in Guide for the Perplexed where he says that everything widely accepted becomes true, even if it is mistaken. As a result, anything publicly accepted becomes established as true among the many. What “publicly accepted” are you talking about? Yes, not publicity like advertisers. Yes, it becomes widely known among the many; it supposedly becomes true. What does “becomes true” mean here? If it is public among the many, isn’t that an indication that it is true? No, it is not an indication—it becomes established among the many. On that basis, Rabbi Chaim Or Zarua and also the Chatam Sofer in his responsa write that any custom that does not have clear, decisive, conclusive proof may not be accepted. And customs that came from a widespread mistake—this is a custom that can be checked. This is just in relation to what you told me, that the custom today is, yes, to put on, not to put on… I just thought I’d tell you this, maybe… But again, the fact that it has been accepted by many is an indication that it is right. But that isn’t—the reason for that is what Maimonides says it is not. If many people were persuaded, then apparently it’s true. Maimonides says that’s not so. Then why does it become true? I didn’t understand. No, he says that something publicized—that is, spread among the many—somehow becomes established among the many, but not necessarily that it is true. Publicity makes it true, but it need not actually be true. Right, that’s obvious. So what is the novelty? I didn’t understand. That you can lie to many people? Yes, obviously. No, you told me it became the custom not to put on phylacteries on… No, the authority of a custom is not because it is true. A custom has authority because of “do not forsake your mother’s teaching.” In other words, a custom has authority not because the question is whether it indicates there is something correct in it. But it doesn’t indicate that. Fine, so I’m saying: whether it indicates that it is true or not is a different discussion. The authority of custom does not stem from “if the majority do it, apparently it is true,” but from there being some value in not departing from custom. Yes, but the… Fine, most of our rabbis did not follow that custom. Okay. No, I just thought maybe… I’m not arguing with you; it just occurred to me. It’s a good point. I told you, I definitely understand the point. Fine, anyone else? I didn’t understand the final point you mentioned: in the prisoners case it is a majority before us and therefore weaker than a majority not before us, as Maimonides holds. What difference does it make that we call it a majority before us? In the end… No, clearly—I said the probability remains greater, assuming you apply the rules of probability here. Yes, it is ninety-nine percent. But who said you can apply the rules of probability here? It’s a majority before us. No, fine, but I know that only one of the prisoners did not attack. In the shops too, I know there are nine kosher shops and one non-kosher one. I know that. Here, by the way, it actually comes out fixed. Right, and that’s why I said I’m not going into the question of fixed right now. That is another discussion. By the way, is this admissible in Israeli law? What? Do they use this rule? Which rule? The rule of fixed or not fixed? No. They don’t use it. It has no… Fine, it’s just interesting to know whether they use Jewish law in this legal principle of… No, certainly not with these strange things, no… If they don’t convict, maybe someone would still give it weight. I don’t know, I won’t say that instantly, but it seems clear to me they don’t. They would not invent rationales like Maimonides’ rule that a person cannot incriminate himself and things like that. Perhaps he is one of the insane—what? No, but here, ninety-nine against one, it is as if all… If we put halakhic law into law, then it comes out that the one stands against all ninety-nine. And that is really halakhic, this matter. I didn’t understand. In a case like this, it is like a piece of meat that is fixed, right? Well? Because it is treated as half and half. Ah, under the law of fixed—then yes, you can say that the doubt arose while the person was within the mixture. He was in his place. Exactly, that’s what I’m saying. It isn’t “separated,” it’s “fixed,” and then it is treated as half-and-half and you cannot convict him under Jewish law. Well, really—that’s interesting. This example is very interesting. Yes. Fine. Okay. Good. Thank you. Sabbath peace, goodbye. A blessed Sabbath peace. Sabbath.