Doubt and Probability—in Halakha, in Thought, and in General—Lecture 34 – Rabbi Michael Abraham
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Statistical evidence versus eyewitnesses: prisoners and buses
- The three directions of explanation and the gap between secular and halakhic thinking
- The question of the “spiritual” and the attitude toward reasons for commandments
- Brisk, “what and not why,” and intuitions even in sacrificial law and purity law
- Responsibility without guilt: a minor pursuer, ministerial responsibility, and “half damages is a fine”
- The article by David Enoch and his coauthors: epistemic versus utilitarian, and the claim that there is no “third direction”
- The lottery example and the distinction between probability and “I know”
- “Knowledge” as sensitivity to truth by means of counterfactuals
- An attempt to justify this legally through deterrence, and criticism of that justification
- The conclusion: conviction only on the basis of knowledge, as legal reasoning and an intuition of the divine image
Summary
General overview
The text presents the central difficulty in the law of evidence: although a very high statistical probability may indicate guilt or liability, the legal system tends not to convict on the basis of purely statistical evidence such as “the hundred prisoners” or “blue/red buses,” yet it does convict on the basis of eyewitness testimony even though that too is exposed to error. A methodological framework is proposed with three possible directions for explaining this distinction: a statistical explanation, a consequentialist-legal policy explanation, and an explanation of “legal reasoning” grounded in what is proper and right. The claim is that secular legal thought recoils from the third direction, and that this creates philosophical complications. The discussion of the article by David Enoch and his coauthors illustrates this through the distinction between “knowledge” and probability, using the notion of sensitivity to factual truth, but it also shows the difficulty of justifying the distinction by considerations of outcome alone.
Statistical evidence versus eyewitnesses: prisoners and buses
The example of the hundred prisoners describes a situation in which ninety-nine of them attacked a guard and killed him, so that seemingly each one has a ninety-nine percent probability of being guilty, and yet it is accepted not to convict on that basis. The example of the two bus companies says that in an area where ninety-five percent of the buses belong to the blue company and five percent to the red one, an unidentified accident does not justify making the blue company pay solely on the strength of the statistics, even though the probability is high. Against that, the text sets a case in which eyewitnesses testify that the bus was blue, and despite the possibility that witnesses make mistakes, the system does tend to convict; the question is what the difference is between the two kinds of evidence.
The three directions of explanation and the gap between secular and halakhic thinking
The text defines three possible routes for explaining the distinction between statistical evidence and direct evidence: a statistical direction, a legal-consequentialist direction of policy, and a direction of “legal reasoning” based on a conception of what it is proper to do even without any consequential implication or probabilistic advantage. It is argued that at first glance there is no relevant statistical difference between the cases, and so the first direction has difficulty explaining the distinction. It is argued that the second direction works like principles such as “fruit of the poisonous tree,” where good evidence is not necessarily accepted for policy reasons. It is argued that the third direction is more legitimate in a religious-halakhic context, where one is prepared to assume dimensions that are not reducible to outcomes and probabilistic calculation, whereas in secular legal systems it is hard to find willingness to recognize such an explanation.
The question of the “spiritual” and the attitude toward reasons for commandments
The text presents an argument with students over the use of the concept “spiritual,” and the claim that it does not appear in the Torah and the Sages, as against the opposing claim that the Sages do indeed discuss the soul and comparisons in Tractate Berakhot, and also angels, demons, and harmful forces. It is argued that language can change, and that terms like “metaphysics” or “the sphere of the divine matter” serve a similar function, and that there is no principled problem in recognizing such aspects even if one criticizes modern “spiritual fantasies.” The text notes a general reservation about the whole area of reasons for commandments, but still assumes that commandments do have reasons, even if they are not always accessible.
Brisk, “what and not why,” and intuitions even in sacrificial law and purity law
The text describes the Brisker ethos associated with Rabbi Chaim and his students as an approach of “we ask what, not why,” while arguing that this is a childish illusion, because one cannot decide between interpretations without using considerations of plausibility, which in practice are “why.” It is argued that Briskers are especially drawn to sacrificial law and purity law because those are areas in which there are no intuitions “from home,” and therefore ostensibly it is easier to engage only in describing “what” was said. The text claims that in practice, even in sacrificial law and purity law, people use arguments of “more plausible / pas nisht,” which proves that there are intuitions even in abstract and distant areas, and that the intellect has some access to them as well.
Responsibility without guilt: a minor pursuer, ministerial responsibility, and “half damages is a fine”
The text distinguishes between responsibility and guilt, and gives the example of a minor pursuer: a two-year-old child shooting at people may be killed in order to prevent harm, even though he lacks legal capacity and is not guilty, because he is generating the danger; this is presented as a consequentialist justification and not a “mystical” one. An example of ministerial responsibility is brought through a scenario about a prime minister and the claim that one can assign responsibility even without causal guilt in order to educate and deter officeholders in the future. A source is brought from Tractate Bava Kamma 15 about “half damages is a fine,” and the reason “so that he will guard his ox,” as an illustration of a fine meant to produce a future result even without full guilt. A novel point is cited in the name of Menachem Finkelstein, that in the State of Israel ministerial responsibility has never been imposed without some dimension of guilt, and it is argued that even when there is a consequentialist justification, the system does not necessarily accept responsibility without guilt.
The article by David Enoch and his coauthors: epistemic versus utilitarian, and the claim that there is no “third direction”
The text returns to the article by David Enoch and his coauthors and presents their division into only two kinds of explanation: an epistemic explanation and a practical-utilitarian explanation, while hinting in advance that they are not prepared to accept a third explanation of the “legal reasoning” type. It is argued that an epistemic explanation cannot be based on a probabilistic gap, because sometimes the statistics in the prisoner or bus cases are stronger than eyewitness testimony, and therefore some other concept is required. It is argued that they try to rule out a utilitarian explanation by claiming that the same distinction exists outside the law as well, and therefore cannot stem from legal policy.
The lottery example and the distinction between probability and “I know”
The text presents a thought experiment in which a person buys a lottery ticket with a one-in-a-million chance, and the claim is that even if in fact he did not win, an outside observer cannot say “I know he didn’t win,” but only at most “I assume / bet.” A second example is presented in which the chance of winning is one in a thousand, the result is published in a newspaper, and there is a one-in-a-thousand chance that the newspaper made a mistake, so again there is a one-in-a-million chance that he won despite the publication; it is argued that in this case one may say “I know I didn’t win” despite the same probability of error. The text emphasizes that the gap is not probabilistic, but connected to the proper use of the concept of “knowledge,” and shows that this distinction parallels the distinction between statistical evidence and direct evidence in law.
“Knowledge” as sensitivity to truth by means of counterfactuals
The text presents the proposal of Enoch and his coauthors to define knowledge by means of sensitivity, that is, the sensitivity of a belief or claim to the factual truth, examined through counterfactual statements. In the one-in-a-million lottery case, the claim “I didn’t win” would not change even if in reality I had won, because it relies only on statistics; therefore it is not sensitive to the facts and is not knowledge. In the newspaper case, the claim “I didn’t win” would change if the reality were that I had won, because then the newspaper would generally publish the winning number; therefore the belief is sensitive to the facts and counts as knowledge. The text applies this to the legal distinction: obligating the blue company on the basis of the majority of buses is not sensitive to the factual truth, whereas eyewitness testimony is sensitive, because if the truth had been different the witnesses would generally have said something different.
An attempt to justify this legally through deterrence, and criticism of that justification
The text describes the move in the article that tries to translate the idea of sensitivity into a utilitarian justification: punishment that is not sensitive to the facts will not achieve deterrence, because the punished party would be punished either way, and so it serves no purpose. Against this, it is argued that in the bus case the sanction may indeed deter, because greater care by the blue company will reduce the total number of accidents and therefore also the number of times it is found liable, so the outcome is affected by its conduct. It is also argued that framing this as “deterrence” is unsuitable for the bus example, because this is primarily a civil case of compensation for the victim and not criminal punishment aimed at deterrence; therefore the utilitarian explanation fails both factually and conceptually, in terms of the role of the sanction.
The conclusion: conviction only on the basis of knowledge, as legal reasoning and an intuition of the divine image
The text argues that the refusal to convict on the basis of statistical evidence exists even before one finds a rational justification for it, and therefore in practice it rests on legal reasoning of the third type: conviction is legitimate only on the basis of knowledge and not on the basis of something that is not knowledge, where “knowledge” is defined as a component sensitive to the factual truth. It is argued that this is why the appearance of the distinction in the lottery context does not rule out a legal explanation, because the legal explanation and the philosophical explanation may be the same normative principle. The text suggests that the objection to pure statistics is connected to the fact that the individual is “swallowed up into the majority group” and is no longer seen as an individual, and formulates this as an injury to the divine image as the intuitive core of the resistance. The text concludes that Enoch and his coauthors’ definition of knowledge reinforces acceptance of the intuition, even if it does not provide a consequentialist justification, and stresses that even someone who claims there is no explanation still in practice holds onto the rule against convicting on the basis of statistical evidence.
Full Transcript
[Rabbi Michael Abraham] We’re in the topic of statistical evidence in law. We saw there again the case of the hundred prisoners in the yard: ninety-nine of them attack a guard and kill him, they’re put on trial, and in principle each one has a ninety-nine percent chance of being guilty. And still, in the legal world it’s accepted not to convict in a case like that. In contrast, eyewitnesses can also miss things from time to time, so there too it’s not certain, and there we do allow ourselves to convict. The question is: what’s the difference? Another example we saw last time was the bus example. In a city there are two bus companies. The blue company has most of the buses, say ninety-five percent, and the red company has five percent of the buses. An accident happened with a bus; we don’t know which one. Seemingly you could hold the blue company liable to pay for the damage, because there’s a ninety-five percent chance it was one of its buses, and nevertheless we don’t convict, because that’s statistical evidence, like with the prisoners in prison. But if there are eyewitnesses who saw the bus that ran someone over and say it was a blue bus, even though there is some chance they are mistaken, didn’t see well, are lying, whatever, all kinds of things like that—because again, that too is not certain—still here we do convict. The question is: what’s the difference between the cases? Last time—I mean, we dealt with this in the sessions before the previous one—I suggested various explanations. I called them legal, statistical, to explain these differences. We also saw this in Jewish law. But last time I said there’s a kind of methodological introduction here, namely that there are three directions in which we can look for an explanation. One direction is the statistical direction, and I said: if there is a statistical difference, then that can explain why this is accepted and that is not. But plainly there is no statistical difference here. I said, when I explained it, that maybe there could be a statistical difference, but when people usually look at the problem, the claim is that there is no statistical difference between the two cases. A second possibility is what we might call a legal explanation, that is, a legal explanation in terms of legal outcome or legal policy, like fruit of the poisonous tree. Meaning: true, the evidence is good evidence, but there is legal harm or a reasonable legal consideration for not making use of that evidence, like fruit of the poisonous tree. That too is accepted in various legal systems. You can see all sorts of principles explained by a legal explanation, not a probabilistic one. And I said that in principle there is also a third direction, and it’s possible to call it legal reasoning. By legal reasoning I mean that this is simply the proper way to act. That is, I can’t point to some problematic consequence that will happen if I don’t do it, but I have some kind of logic that says this is what should be done, this is the proper way to act. Some kind of direction of that sort. I brought examples of that in Jewish law, and I said it is no accident that the examples I bring are from Jewish law, because in ordinary secular legal systems we don’t expect to find this kind of explanation. That is, it’s hard—if it’s even possible at all—to find this kind of explanation in ordinary legal systems. There you’ll find either a probabilistic explanation or an explanation in terms of legal outcome, legal policy, because these are rational things and we use them. Legal reasoning is some kind of mystical thing—what do you mean, this is the proper way to act? If it doesn’t produce any order or consequence in the world, and there’s no statistical explanation for it either, then what does it mean that you feel something—so what? What does that mean? And I said that in a religious world, in the halakhic context, it is more plausible to accept this kind of explanation, because there you basically say there are also spiritual dimensions in the world, and the so-called legal system—what’s called Hebrew law, I don’t like that expression—actually also relates to those planes. Just as when I try to explain why it’s forbidden to eat pork, or why one should keep the Sabbath, or ritual impurity and purity, or various laws of that kind, I will have neither an explanation in terms of legal outcomes nor a probabilistic or simple rational explanation, and nevertheless it’s clear to me that there is some spiritual matter that is repaired by our acting properly according to Jewish law—some kind of thing like that—or that I have such an intuition, or that I believe there is such an explanation. It doesn’t matter right now. But that too is definitely a relevant and legitimate channel in religious thinking. In secular thinking you don’t expect to find this kind of explanation. And I gave that introduction because I said that today we’ll see its implications. We’ll see a discussion by jurists or philosophers of law on the question of probabilistic evidence, and we’ll see how they get tangled up only because they are not willing to accept the possibility of a third type of explanation. Just one note, maybe. Earlier I spoke about how in a religious world it’s legitimate to think about this third channel of explanation—legal reasoning, or halakhic reasoning, or spiritual reasoning, however you want to call it. Now here, just as a note that I’ve already made in the past, the general feeling is that in areas like eating pork, ritual impurity and purity, and so on, we don’t really have our own reasoning there. We don’t have intuitions about what is right and what is not right there. So precisely there we would not expect this type of legal reasoning, but at most only to believe that there is such a thing. Not that I feel it’s right not to eat pork; rather, if the Holy One, blessed be He, said not to eat pork, then presumably there is some spiritual reason. That is certainly an explanation that exists in the religious context. But an intuition saying that it’s not right to do this, even though I don’t see consequences or probabilities or anything rational—that’s something we would not expect to find in those contexts. So I want to remark that that’s not true. Meaning, we do find things like that too. You can see this through—if you know that in Brisk, the accepted ethos, Rabbi Chaim and his students and successors, is that we ask only what and not why. What does that mean? We want to describe what the Talmud said, what the medieval authorities said; we are not supposed to be interested in the question of why they said what they said. That is beyond our reach. Some kind of view that we’re a sort of behaviorism: we examine the facts as they stand before our eyes, and that’s it. We don’t presume to try to understand the reasoning, the rationale behind the matter. I’ve said more than once that this is a childish illusion. It is obvious that all the time we deal also with why, not only with what. More than that: you can’t deal with what without dealing with why. Because if you have two interpretive possibilities, how do you decide that this interpretation is more plausible than the other? Presumably because you have some reasoning that this interpretation is more plausible. Now when you look at teachings that come out of the house of Brisk, Briskers really love dealing with sacrificial law and purity law—subjects that in yeshivot or kollels usually aren’t studied much. In Brisk these are the favorite subjects; they specialize in them. I think the reason is exactly that ethos I mentioned before. Since they want to focus on what and don’t allow themselves to ask why, it’s most comfortable to do that in sacrificial law and purity law. Because in sacrificial law and purity law you don’t have reasoning you bring from home; we have no intuitions in those areas. These are fields far from our world, from our lives, and therefore there it is easier to ask only what—that is, to know the facts. In tort law, for example, in places where there are moral and legal contexts, we have all kinds of intuitions. There the why can get mixed into the discussion of the what. Sometimes we don’t even notice it, but we have some intuitions of what is right and what isn’t, and therefore there it is harder to apply this doctrine that we ask only what and not why. But if you study sacrificial law and purity law, these are the areas where it is easiest to do that, because basically we have no feeling at all for the why there. So all that remains is just to ask what. But as I said before, that’s an illusion. It’s an illusion, because when you look at Rabbi Chaim’s teachings on sacrificial law and purity law, or the teachings of other people—it doesn’t matter—on sacrificial law and purity law, the halakhic analytical discussion there is conducted exactly the way it is conducted in Women and Damages. That is, you raise two possibilities, reject one because it’s not plausible, and then choose the second. You have one difficulty, another difficulty, whatever—but you are always operating with tools of more plausible and less plausible. Even though these are areas of sacrificial law and purity law, and in those areas we would not at all expect to have intuitions of what is plausible and what is not, or what is more plausible and less plausible. But the fact is that we do. Yes, you see things and you feel that it doesn’t work—it’s pas nisht, it just doesn’t fit, it’s not plausible that this is the explanation here. That other explanation sounds more plausible to me. What does “plausible” even mean in the context of sacrificial law and purity law? What do we understand there? What can determine what is plausible and what isn’t in those worlds? Clearly we have intuitions there too, whether we like it or not. What does that mean? It means that apparently even these abstract fields, or fields so remote from our world, are somehow accessible to us in some way. Our intuition, our mind, our intellect somehow manages to encounter those fields too, and there too we have some intuitions about what is more plausible and what is less plausible. And therefore I say that in the legal world, people don’t deal with those fields. The fields they deal with are fields of regulating life, fields drawn from our world. There obviously we have intuitions, and we use one kind of legal reasoning or another.
[Speaker B] In principle, by the way—yes—in principle, is it really correct from your point of view to use the concept “spiritual” at all?
[Rabbi Michael Abraham] I didn’t understand. What do you mean, to use the concept “spiritual”?
[Speaker B] I’ll tell you what I mean. Yes, sacrificial law, purity law, eating pork, and the like—neither the Sages, nor the Torah, nor the Hebrew Bible (Tanakh), nor the Sages, nobody ever once mentioned such a concept as “spiritual.” Until the later authorities, the word “spiritual,” “spirituality,” and the like doesn’t appear in the books at all.
[Rabbi Michael Abraham] I don’t know what exactly counts here. You can call it this or that, but when Derashot HaRan or Sefer HaChinukh speak about “the sphere of the divine matter,” which is exactly to speak of the spiritual dimension, it’s the same thing, just a different word.
[Speaker B] It could be that in Judaism it’s simply not correct at all to use “spiritual.”
[Rabbi Michael Abraham] I don’t know where you’re getting that from. It’s just not true at all.
[Speaker B] No, it’s not in the Sages. I disagree. I disagree. Where in the Sages is there “spiritual”?
[Rabbi Michael Abraham] What exactly counts as spiritual? The Sages don’t talk about the soul? There’s a Talmudic passage in Berakhot that compares the soul to the Holy One, blessed be He: just as He fills the world, the soul fills the body—five comparisons they make there.
[Speaker B] Yes, but for example with eating pork and the like, yes, all ordinary matters and so on—regarding all that, nobody among the Sages talks about it.
[Rabbi Michael Abraham] Because they don’t deal with the reasons of the verses; it’s unrelated. They don’t deal with the reasons for the commandments in general. I don’t see anything principled about that. By the way, I also don’t especially like this whole area of reasons for commandments, but my assumption is that they have reasons. Of course they have reasons, but—
[Speaker B] Those reasons are metaphysics, but not spiritual at all.
[Rabbi Michael Abraham] Well, metaphysics is spiritual. What is metaphysics?
[Speaker B] No, there’s a difference here. Today the usage of that word is a bit different.
[Rabbi Michael Abraham] No, I don’t see any principled difference. Again, there may be people who drift off into all kinds of spiritual fantasies and experiences of one sort or another; I also have criticism of that. But the very use of the idea that there are spiritual aspects in a person or in the world—I don’t see any problem with that, and it’s also not true that it’s some new invention.
[Speaker B] No, I said there are spiritual aspects, just that it isn’t mentioned in the Sages.
[Rabbi Michael Abraham] Okay, I don’t think you’re right. As I said before, they speak about the soul. I don’t see why that wouldn’t count as dealing with spiritual aspects.
[Speaker B] Because they don’t say it that way.
[Rabbi Michael Abraham] Why? They say—what do they say? Soul.
[Speaker B] Fine, a soul is something inside a person. The other things, yes? Even that word in the Sages…
[Rabbi Michael Abraham] And angels? That too is inside a person? What? Angels and demons and harmful forces—what is that?
[Speaker B] No, why is that spiritual? Demons are actually creatures that existed in Babylonia. The Talmud says: in three ways they resemble humans and in three ways they resemble ministering angels. If they resemble human beings and reproduce like human beings, then it’s a creature.
[Rabbi Michael Abraham] What kind of creature? What creature? Spiritual things that are similar. Even the Holy One, blessed be He, according to Kabbalah, resembles a person.
[Speaker B] Fine, we already disagree there. I already spoke to you about Kabbalah—
[Rabbi Michael Abraham] Leave it.
[Speaker B] —leave me out of Kabbalah. But in principle…
[Rabbi Michael Abraham] We don’t agree, but never mind, that’s a different discussion. Anyway, in short, never mind, we can argue about it separately.
[Speaker C] Excuse me, Rabbi, I wanted to ask: you once explained that one should distinguish between responsibility and guilt, that not everyone who is responsible is guilty of the matter. Doesn’t that come a bit close to this sixth category—I mean, this legal reasoning category—that it’s not statistical, it’s not purely moral, it’s also some kind of… I’m asking because I don’t remember whether you mentioned it or not, but years ago in France there was a scandal in which, because of the government, hemophiliacs received blood units infected with the AIDS virus. And the formula they came up with was this: responsible but not guilty. And it always seemed to me—and to many people—that it was just wordplay, just a way to get out of the mud.
[Rabbi Michael Abraham] You don’t agree that it’s wordplay? I think you…
[Speaker C] Yes, yes, yes—and after you explained it, I was in fact convinced by what you said. But it’s also some kind of intuition that accepts it, no? It comes close to the third category.
[Rabbi Michael Abraham] I’m not sure. Because say—let’s take an example, okay? There is a law of a minor pursuer. This is one of the examples I bring for this matter of responsibility without guilt. Right? A small child, two years old, I don’t know, takes his father’s gun and starts shooting people in the street. Okay? Now he completely lacks understanding. That means he’s not responsible, he’s not guilty, he’s nothing. Is it permissible to kill him? Obviously yes. Again, there is a dispute about a minor pursuer, but Jewish law rules that it is permissible. Why? He isn’t guilty, so why on earth are you killing him? Yes, he isn’t guilty, but he is responsible. Responsible not necessarily in the legal sense—after all, he has no legal capacity, he has no legal responsibility—but responsible in the sense that he is generating the damage. Meaning, I have to kill him in order to prevent the harm. So: responsibility without guilt. But I don’t think there is anything here that not everyone would agree to. I think even a completely secular person would agree that a minor pursuer is killed. And you don’t need mysticism for that, or anything like that. It’s a line of reasoning anyone would agree with. And here, by the way, there really are consequences too. So this I actually would not call legal reasoning; I would call it legal outcome. That is, you kill him in order to save people he may hurt, so there are consequences here. There is a justification in terms of the outcome.
[Speaker C] Exactly—here there is utility in killing him in order to save the others, and the child also has no reasoning.
[Rabbi Michael Abraham] But everywhere you find this, it will be like that. You won’t find a case of responsibility without guilt that is not like that. For example, say, ministerial responsibility. Okay? Suppose Bibi was not at all to blame for October 7. Not at all. Only the army. Fine? Let’s say for the sake of discussion that we’re Channel 14 viewers. Fine? Meaning, Bibi is not guilty at all, and the whole army just confused him and misled him because they wanted to bring him down and they’re acting on behalf of the European Union. Okay? So Bibi is not guilty at all. Still, he was the prime minister. Therefore there is room for the claim—you can argue with it—but there is definitely room for the claim: yes, you’re the head, you’re responsible, like those signs say. Meaning, you’re the prime minister, you have ministerial responsibility for what happened, even if we don’t find causal guilt in your actions. Meaning, that your actions caused what happened. There is, it seems to me, a very widespread view in the world that yes, even in such a situation, a person holding office bears responsibility. Now here, this is responsibility without guilt, but here too you will find an explanation. Why impose responsibility on him? Because we somehow want future prime ministers to be even more careful. Like “half damages is a fine,” in the Talmud, Bava Kamma 15. Why do we fine a person in the case of an innocuous ox? Why do we fine him to pay half damages? It’s a dispute among the Amoraim, but in Jewish law we rule that half damages is a fine. Why? Because ordinary oxen are presumed guarded, and we fine him “so that he will guard his ox.” Yes? So that he will guard his ox better. But he is not guilty of not guarding it; ordinary oxen are presumed guarded. But we have future-oriented goals: to deter others, to make sure that he—never mind the details now. The same thing here. When you impose ministerial responsibility, it isn’t just some kind of metaphysical revenge. You’re responsible, so automatically you’re out, because we need to take revenge on you. Rather, there is some kind of justification here: we want to educate prime ministers to activate their antennae, meaning to pay close attention even when they’re not guilty, and to know that in the final analysis the responsibility is on them. So let them dig under the ground for every possible concern about something that could happen, even though they’re not guilty if they didn’t do it. Okay? So here too there is a consequentialist explanation. So this is not metaphysics. And I don’t think you’ll find—at least I don’t think so—a secular legal determination behind which sits some sort of spiritual reasoning, legal reasoning that cannot be translated into consequences. Okay? Meaning, in the end it will be… By the way, in parenthesis: a good friend of mine, Menachem Finkelstein—Shmuel knows him too—he headed the committee examining… the committee examining… examining the escape from Megiddo Prison. And he told me—we spoke a bit about what was going on there, and while they were forming recommendations and things like that, we had quite a few conversations around these issues. And among other things he told me something new that I didn’t know: that in the State of Israel they have never imposed ministerial responsibility in the sense I described before. Meaning, they have never imposed responsibility on someone who had absolutely no guilt in what happened, merely by virtue of holding office. It never happened. Meaning, whenever responsibility was imposed on someone, that meant he had some dimension of guilt. It didn’t happen without guilt. And I tried to persuade him that in my opinion you can impose responsibility even without guilt. Well, never mind—in the legal world that isn’t accepted. So even this consequentialist reasoning apparently is not sufficient in the legal world. Meaning, if there is no dimension of guilt at all in the person’s conduct, responsibility will not be imposed on him, even if imposing responsibility is justified in terms of education for the future, deterrence of future officeholders, and things like that. Even that they don’t accept there. But even if they would accept it—again, even if they would accept it, maybe elsewhere in the world there are things like that, I don’t know—it would still be because there are consequentialist justifications. Meaning, it’s not just that I have such an intuition, and therefore that’s what I do. You won’t find explanations like that. By the way, often you won’t find them in the halakhic context either, except that in the halakhic context this kind of rationalism, in my opinion, won’t manage to deal with the facts. It just won’t work. I know people who shy away from such explanations and always look for rational explanations, rationalizing everything—Gedaliah Nadel, for example, was like that. But I don’t think it stands up to the facts. It doesn’t seem to me that it does. And there are things where it’s quite clear you won’t find that kind of explanation. Anyway, that’s about the three routes of explanation, and I said that in the legal world you probably won’t find the third route, okay? It’s not something common in that world. Now let’s go back into our issue and see the significance of what I just said. So I return to the article by David Enoch and his coauthors, yes, who dealt with the question of probabilistic evidence. And when they open the article—by the way, it’s a masterful article, really, an article whose structure is brilliant, even though I don’t agree with their conclusions—the structure is really brilliant. I’ll describe the move to you, and I think you’ll be impressed. In any event, their claim is that when we look for an explanation, it can be one of two kinds—already here you can see the first hint—either an epistemic explanation, yes, or a practical-utilitarian explanation. Now, I’m dwelling on this because I think this introduction is very important for the significance of what I’ll discuss later. A utilitarian explanation is what I earlier called legal outcome or legal policy. Meaning, there is legal logic in adopting such a policy or such a mode of conduct. Okay? That’s the second explanation on my list. What is an epistemic explanation? An epistemic explanation, ostensibly, is what I called a probabilistic explanation. Meaning, I say: this is more reasonable than that, therefore I adopt this and not that. Say, statistical evidence is less good than direct evidence, therefore we don’t adopt it. That would be a probabilistic explanation. In the context of statistical evidence, apparently there is no probabilistic explanation, but these are the two directions one can go in at all. So already here I want to draw your attention to the fact that in my opinion there is also a third direction, and he is unwilling to accept it even in the very basic framework. Now you’ll see: in the end he arrives at an explanation which, in my opinion, is of the third type, and therefore he rejects it. I’m just placing this in a framework so it will be easier to follow, because now we’re going to get into more detail. So there is an epistemic explanation and a practical-utilitarian explanation. Okay? Now, the epistemic explanation they mean, as I said before, cannot be connected to probability. Probability, because as we discussed, the difference in the prisoner case between witnesses and the statistical consideration is not a probabilistic difference. On the contrary, sometimes the probability in the prisoner case is better than the probability with eyewitnesses—blue and red buses versus eyewitnesses, and all the examples we saw. So a probabilistic explanation apparently does not exist. So what exactly is an epistemic explanation? In a moment we’ll see. Now, what they basically say is this. They want to argue that if indeed an epistemic explanation cannot work here, because there is no probabilistic difference between the two options, then what remains is a legal-utilitarian explanation. Okay? So now we need to look for a consequentialist, utilitarian, explanation within the legal world. Now instead of looking for that explanation, what they do is basically say this: if we find the same distinction that we make, say, in the bus case—let’s talk about the bus case, yes—between eyewitnesses saying it was the blue bus, and the statistical consideration that most buses are blue, if we find that this distinction exists also in a sphere that is not legal, then that means that apparently the distinction is not a legal one, right? Because otherwise why would it appear in places unrelated to law? And now they show that we make the same distinction in other areas as well, and therefore they reject the utilitarian, legal explanation. They reject the possibility of finding such a difference—not that they even looked for such a difference—they claim it can’t be. So this is how it works. They say: think about a person who bought a lottery ticket, and say the chance of winning the lottery is one in a million. Now the drawing took place, someone won, and in reality the person we’re talking about did not win. Right? Now I, I’m a third party. I don’t know who won, I don’t know which numbers came up. Can I now say that I know that the person did not win the lottery? Again: a drawing took place, the chance of winning is one in a million, now Reuven bought one ticket, the chance he wins is one in a million. Okay? In reality he did not win, but I don’t know that. I don’t know. Now I ask myself: the chance he won is one in a million, right? So presumably he didn’t win. If someone asks me whether he won and I say probably not, no problem, that’s a reasonable answer. But can I say: I know that he didn’t win? Is his not having won something I know?
[Speaker D] But the claim—the phrase “I know he didn’t win”—isn’t that a statement with meanings behind it that are completely emotional and context-dependent? If we’re talking about the lottery, then to say that sentence is the same as saying nobody ever wins and there’s no point buying a ticket, but in fact millions still do buy, so they come with a psychological claim of hope even at tiny odds.
[Rabbi Michael Abraham] No, no. I suggest we not get into the emotional questions again, okay?
[Speaker D] But that is clearly the decisive thing here—
[Rabbi Michael Abraham] —as usual. But I’m saying no: people have a concept called knowledge, and the question is whether it can be applied in this case. Maybe you think it belongs to emotions, and you’ll probably claim that it does, and we won’t get out of that.
[Speaker B] From the probabilistic side, can one say yes? What? From a purely mathematical-probabilistic side, can one say that this is knowledge?
[Rabbi Michael Abraham] After all, it’s almost certain that he didn’t win; the chance is one in a million. Now the question is whether I can say that I know he didn’t win. Their claim is that even if the reality is that he didn’t win, but I don’t know that, and all I have is the probabilistic calculation, I can say I’d bet that he didn’t win, no problem—but I cannot claim, I know that he didn’t win. I can say I assume he didn’t win, I believe he didn’t win; I cannot say, I know that he didn’t win.
[Speaker B] Because you never have one hundred percent?
[Rabbi Michael Abraham] Again, no—not because of one hundred percent. No, that’s the point. It has nothing to do with one hundred percent. In a moment we’ll see another case where I can say that I know, and it still won’t be one hundred percent. Let’s look now.
[Speaker E] If someone asks me—or any other person—whether I know that he is poor or not, because the person has no money: if someone asks whether I can say with certainty that he has no money or not, I think everyone would say that he has no money. Certainly. Even though he bought a lottery ticket.
[Rabbi Michael Abraham] No, it’s not related to the certainty you have. That’s why I say: if you say, I assume with certainty—not “assume” in the statistical sense—then fine. But to say I know that he didn’t win, I can’t say that. Not because of certainty—notice, this is not a statistical question. Again, give me just a moment to continue. In just a second, let me continue. I’ll bring the second case and then it will be clear that I’m not talking here about statistics.
[Speaker D] Rabbi, you could ask that very same question about the person who’s standing there buying the ticket. You ask him now: do you know that you won’t win? After all, the odds are one in a million. So he’ll say, no, on the contrary, I’m full of hope and dreams that I will win, and that’s why I’m buying the ticket.
[Rabbi Michael Abraham] No, the question is whether you can say that you know you won’t win.
[Speaker D] Millions do it. That’s not the point—millions say that.
[Rabbi Michael Abraham] You’re taking me back to how people actually behave. I’m not getting into that. Meaning, people buy the ticket—they can say, I know I won’t win, but he’ll still buy the ticket because there is nevertheless a one-in-a-million chance that he will win. After all, the probability is known; we’re not arguing about the probability. The probability is one in a million. The question is whether I can use the term “know” about a situation like that. That’s the question.
[Speaker D] It depends on the context. It depends on the context. If I’m going to buy it and paying money for the ticket, that means I don’t believe that statement; I believe its opposite.
[Rabbi Michael Abraham] What does a person mean when he says “I know”?
[Speaker D] That I won’t win and I’m buying it?
[Rabbi Michael Abraham] Again, again. Yes, the answer is yes. In the end what I want to say is: this is not a probabilistic statement. Again, I’m repeating this for the fifth time. This is not a probabilistic statement. I’m not talking about whether you’re certain you won’t win or not certain. I’m talking about whether it’s correct to use the term “know” here. That’s all. Right now it’s a terminological question for the sake of the discussion. Okay? So I claim that in such a situation—he claims, yes, Enoch and his colleagues—that in such a situation you can’t say, “I know that I didn’t win.” No, I don’t know. I can estimate with very high confidence, but I can’t say, “I know.” And again, not because of the probability. In a moment you’ll see another case with the same probability where I can say “I know.” So it’s not connected to the probability. Not because it isn’t certain. That’s not the point. Think about a person who buys a lottery ticket where this time the chance of winning is higher, say one in a thousand, not one in a million. Fine? Now a drawing is held, and the winning number is published in the newspaper. Fine? Now factually that person didn’t win. And in the newspaper too, the published number isn’t his number; it’s someone else’s number. But of course there’s some chance that the newspaper made a mistake. Meaning, it’s possible that from his standpoint he did win—he doesn’t know who won. Okay? We, from the side, know that he didn’t win, but he doesn’t know. Right? So he can say to himself: yes, there’s some chance the newspaper made a mistake, there was a typo, something like that. Now let’s say for the sake of discussion that the chance of a typo or a newspaper error is one in a thousand. Okay? Now I ask myself: what’s the chance that this person won? Right? He read in the newspaper that a different number was drawn, not his number, and I ask myself what the chance is that I nevertheless won. So the claim is that there is some kind of multiplication here. You can argue about it, but the exact form of the calculation matters less to me. Because the chance that I won is one in a thousand, and the conditional chance—assuming I won—what is the chance that a different number will appear in the newspaper? Again one in a thousand. So the product is one in a million. So if another number appears in the newspaper, what’s the chance that I won? One in a million. Okay? Just like in the previous lottery case. Now the claim of Enoch and his colleagues is that in this case, when he reads in the newspaper that another number was drawn, he can definitely say, “I know I didn’t win,” even though there is still a one-in-a-million chance that he did win. Meaning, in terms of probabilities, these two cases have the same probability. It’s one in a million. In the first case he can’t say, “I know I didn’t win.” He can say, “I assume with very high certainty that I didn’t win.” In the second case he can say, “I know I didn’t win—I saw in the newspaper that I didn’t win,” even though in the newspaper there is a chance that you made a mistake—that the newspaper made a mistake, sorry. Okay? Meaning, in the second case, although the chance there too is one in a million, I can say that I know that I didn’t win. And their claim is that this distinction is basically the same distinction we made between statistical evidence and direct evidence. Right? Because in the first lottery case, the one-in-a-million case, I have only statistical evidence that I didn’t win. Statistical evidence isn’t enough to say, “I know I didn’t win.” In the second case, I have clear evidence; it’s like witnesses. The newspaper says I didn’t win. Now, true, maybe the witness is mistaken, like eyewitnesses, fine? But if it’s based on testimony, I can say that I know I didn’t win. Know—maybe not with total certainty. There is a one-in-a-million chance that this witness is wrong. But here I am entitled to use the term that I know. That’s their claim at the linguistic level, okay? The philosophical level. Do I know—whether it’s knowledge or not knowledge. Notice, this isn’t just wordplay. This is a philosophical question: what counts as knowledge. And I also claim that it isn’t emotional, but I won’t get back into that discussion again. Fine? I claim it’s a philosophical question. Fine? Now they claim that this difference is in fact completely parallel to the difference between probabilistic or statistical evidence and direct evidence, right? Two witnesses who saw so-and-so murder, and the chance they are mistaken is one percent—then I can say, “I know that so-and-so murdered.” I will convict him in court. In contrast, in the prisoners case, there is a one-in-a-hundred chance that he didn’t murder, and there I won’t convict him in court. So the claim is that in the prisoners case I don’t say that he murdered; I don’t have knowledge; I can’t say to the defendant, “I know you murdered.” There is probabilistic evidence that says it’s very, very likely that you murdered, but I can’t use the expression “I know you murdered.” In the second case eyewitnesses come and say that you murdered, and even though eyewitnesses sometimes make mistakes, say with a one percent chance, there I can say, “I know you murdered”—know, not with certainty, but know. And the claim is that one may convict only on the basis of knowledge. And again, this isn’t a statistical question, because the chance of error in both cases is the same chance. Rather there’s a philosophical claim here that one may convict only on the basis of knowledge, and not on the basis of some other consideration that doesn’t deserve to be called knowledge. Right? That’s the claim. Now let’s try to examine it a bit.
[Speaker E] By the way, could it be that there’s also a more, say, rational explanation for this?
[Rabbi Michael Abraham] Yes, in a moment. In a moment we’ll get there, yes. They offer explanations like that. But I want to follow their route. So their claim is this: since… suppose—I mean, there is no probabilistic difference here. Right? That’s clear. Now maybe there is some consequential difference here, like I said before, the second kind of explanation. But now they argue there can’t be a consequential explanation. Why not? Because we in fact make this very same distinction with respect to lotteries. The lottery question isn’t a legal question. There’s no question there of whom we deter and whom we don’t deter, whom we punish and whom we don’t punish. It’s not a legal question. It’s a philosophical question: can I call such a thing knowledge or can I not call such a thing knowledge? If this distinction appears on the philosophical plane, then that means it’s wrong to look for its basis on the plane of legal consequences. Because if that were the explanation, then I wouldn’t expect to find this distinction on the philosophical plane. If I see this explanation on the philosophical plane, then apparently there is some other explanation here—I don’t know—or no explanation at all. But it isn’t… meaning, the distinction between statistical evidence and direct evidence can’t stem from some legal policy or legal consequence. Because if that were so, then it would belong only to the legal world. Because explanations of that sort aren’t relevant to the philosophical world, which is non-legal. Okay? That’s basically their argument. And therefore they reject the possibility that the explanation is a consequential explanation. But if it’s not a philosophical explanation and it’s not a consequential explanation, then what is it? After all, there is no… you remember, on their view there is no third explanation. Now here I already say: maybe I have a legal intuition saying that I can convict only on the basis of knowledge. Not because there is some legal consequence if I convict not on the basis of knowledge. Not legal policy. That’s a third-type explanation, not the second. That possibility never comes up for them. It never comes up for them. Right? Think, for example, about the case of one piece out of two pieces versus a single piece. We talked about that, right? If I have one piece and I don’t know whether it’s forbidden fat or permitted fat, fifty percent forbidden fat and fifty percent permitted fat, I’m forbidden to eat it. There’s another case of two pieces, one forbidden fat and one permitted fat, and I take one of them and I don’t know which is forbidden fat and which is permitted fat, I take one of them. Okay? Again, fifty percent chance I ate something prohibited. Okay? That’s a more severe kind of doubt—a doubt of one piece out of two pieces. For that one brings a provisional guilt-offering. For the first doubt, one does not bring a provisional guilt-offering. Now ask yourself: why should there be a difference? This is fifty percent and that is fifty percent. Why should there be a difference—statistically what’s the issue?
[Speaker B] But you just answered that now.
[Rabbi Michael Abraham] What do you mean?
[Speaker B] I mean, when we have one hundred percent statistics and ninety-five percent knowledge, then we follow knowledge and don’t relate to—
[Rabbi Michael Abraham] Okay, but that’s exactly the question.
[Speaker B] Fine, you gave the answer.
[Rabbi Michael Abraham] I didn’t give it for nothing; I introduced it in order to get to this. In a moment, I’m getting there.
[Speaker B] You can look at it that way with buses too, and with prisoners too.
[Rabbi Michael Abraham] Wait, wait, wait, not so fast. Slowly, slowly. So what I want to say is: when you ask yourself why the doubt of one piece out of two pieces is more severe than the doubt of one piece, there is no probabilistic difference, because it’s fifty-fifty in both cases. Although again, in those earlier classes I said maybe there could also be a probabilistic difference, but leave that aside for now. So there is no probabilistic difference. And no consequential difference either. Fifty percent that you ate something prohibited, fifty percent that you didn’t. So why make any distinction between these two things at all? Because this is knowledge, and here there is positive knowledge that among these two pieces there is forbidden fat or permitted fat, so the basis for my doubt is a positive basis; it is a basis of knowledge. In contrast, with one piece, the basis of my doubt is lack of knowledge—ignorance. I don’t know anything about this piece. Fine, so in that case it’s fifty-fifty, either it’s forbidden fat or permitted fat, because I don’t know—on the basis of ignorance. Now the first probability is a probability based on knowledge. The second probability is a probability based on ignorance, absence of knowledge. Okay? Exactly. Now ask yourself: so what is the difference? In Jewish law there is a difference, but a philosopher will say to himself, or a jurist will say: so what? What difference does it make? It’s fifty-fifty—what difference does it make whether it’s this way or that way? Okay? So this is exactly an illustration. I talked about—if you remember—a coin. Right? Suppose I know it’s fair. So I bet—but I have to bet. So I’ll bet fifty percent that it lands heads and fifty percent tails, right? That’s the reasonable bet. What happens if there is a coin about which I know nothing? I don’t know if it’s fair, I don’t know if it tends to heads, tends to tails, I know nothing. I have no information about it, and now I have to bet. Gun to my head. So what will I bet? Also fifty-fifty, right? What’s the difference between that and the previous case? In the previous case the fifty-fifty is based on knowledge: I know the coin is fair. In the second case the fifty-fifty is based on ignorance. I know nothing, therefore I assume it’s fifty-fifty; I have no reason to prefer one side over the other. Okay? So at the statistical level this is fifty-fifty and that is fifty-fifty. Do we see a difference between these two things? In philosophical-juridical thinking they won’t see a difference between these two things. Because there is no statistical difference, and no consequential difference either, so there is no difference. Okay? So also in our context, when I now propose—just a second—when I now propose an explanation, wait, wait, just a sec… we can say that if we toss the first coin a billion, infinitely many times—
[Speaker D] Then fifty percent will be heads and fifty percent will be— that’s a lot of knowledge.
[Rabbi Michael Abraham] Shmuel, do you hear me? I’m in the middle. So when I want to say that my proposal to distinguish between statistical evidence and direct evidence on the basis of the concept of knowledge—even if I accept this explanation, it will be a third-type explanation. Because it has no legal consequences, there is no probabilistic difference here, it’s a third-type explanation. Which does not exist, does not exist in David Enoch’s world. And therefore—there is a probabilistic difference—Shmuel, wait, let me finish. So it doesn’t exist in his world, and because of that what he says is: after all, it can’t be a consequential explanation, because if it were a consequential explanation then I wouldn’t find this difference in a philosophical world that is non-legal. There is no probabilistic difference, and therefore there is no difference, no explanation. That’s basically his claim. Okay? Now, and I claim that this is the structure of the matter. In a moment we’ll continue the move with him, but this is the structure of his argument. And now I say: you see where you end up when you get trapped in a vise that forces you to choose one of two explanations while ignoring the third possibility. Which in my opinion is the correct possibility here, because as I told you in the previous class too, the fact is that everybody agrees that statistical evidence is not accepted. All that’s left for us is just to search for the explanation of why it isn’t accepted. And everybody knows it isn’t accepted even before they’ve thought about the logic behind it. Meaning, truly this is an intuition of the third type, a legal intuition of the third type. But because they are unwilling to accept its existence—the existence of such an explanation, such a type of explanation—so they search for an explanation among the first two types, but they don’t find one. They don’t find one. And therefore my claim is that here this is a good example of the difference between legal thinking and thinking—let’s call it religious thinking. Okay, yes Shmuel, now you wanted to comment.
[Speaker D] I don’t think there is such a dramatic difference statistically either. If I have a coin where I don’t know, then I say: if I toss it infinitely many times, then I know it’ll come out half and half. Here with the coin, where I don’t know whether it’s fair or not, I certainly can’t say that, absolutely not.
[Rabbi Michael Abraham] But the probability is still fifty-fifty; you just don’t know.
[Speaker D] But I can’t say that infinitely many times—I know with certainty that…
[Rabbi Michael Abraham] Again, you’re basically going back to the difference between situations about which you can say that you know that this will be the result, and situations with the same statistics, but you can’t say that you know this will be the result. Right, but the statistical difference is clear. Here I know something with complete certainty, that infinitely many times it’ll be fifty percent—that’s very, very strong knowledge. I don’t have that knowledge about the second case. I don’t have that knowledge about the second case.
[Speaker D] But the probability is still fifty-fifty, Shmuel. The whole difference is whether you can say “I know” or whether you can’t say “I know.” So we’ve gone back to the terminological difference. You can’t say it. Right, you can’t say it—I agree, I agree exactly—but that isn’t probabilistic. So what is it then? Just terminology—I can’t say “I know,” but probabilistically it’s fifty-fifty. Exactly, that’s what I’m claiming. Now, in both cases I say “I don’t know,” but this “I know” is different, even though in the dictionary it’s the same words, but in essence it’s different, completely different.
[Rabbi Michael Abraham] Fine. Bottom line, you’re talking to me about the meaning of terms; that’s what we’re talking about, I agree. Now let’s continue with them for a moment. So now they make a very interesting move, and they want to claim that actually one can nevertheless find an explanation, and the explanation is an epistemic explanation. An epistemic explanation, meaning not consequences—well, wait, in a moment I’ll explain it better, look. Let’s assume that we—they want to ground the concept of knowledge, to say that “I know,” on another concept: sensitivity, yes, sensitivity. And in order to measure the sensitivity of a claim, sensitivity to truth basically, we use counterfactual statements. These are called counterfactuals, yes; in philosophy these are counterfactual statements. Let’s look for a moment at the lottery example I brought above, okay? When I claim that I didn’t win—say, a one-in-a-million lottery—I don’t know what the results will be, but I claim I didn’t win, because the chance is one in a million, right? So obviously it didn’t happen, so I didn’t win. Now I ask myself, in a counterfactual situation, what would happen if I actually had won? Right? This is a question about a hypothetical state; it’s called a counterfactual. Right. I’m asking a question about a state that is not in fact the actual state, but what would happen if the state were different, okay? Say that I had won—would my statement change? And I don’t know what happened, right? The fact is that I didn’t win and I don’t know the facts; I only know the statistics. Now suppose the facts were otherwise—I did win. Again, I don’t know that I won, but the fact is that I won, while the statistics are still one in a million, okay? Would my statement change? No, right? Because I’m not speaking on the basis of what I know; I’m speaking on the basis of the statistics. I have a one-in-a-million chance of winning, so apparently I didn’t win. This is not sensitive to the actual facts, this statement. Meaning, this statement won’t change if reality is different. This is called a statement that is not sensitive to the facts, okay? So this is a statement that doesn’t depend on the facts; it won’t change if I change the facts. Fine? That’s what’s called a statement that is not sensitive to the facts. Now what happens in the newspaper case? The second lottery, right? This is a one-in-a-thousand lottery, and the chance that the newspaper report is wrong is also one in a thousand. So altogether, if it is published that I didn’t win, there is a one-in-a-million chance that I did win despite that, okay? Is this statement sensitive to the facts in this case? In the previous case it wasn’t sensitive to the facts, right? What happens in this case? Suppose the facts were different.
[Speaker B] No, but if there is a newspaper, that’s cognition. What? If there is a newspaper saying you didn’t win, then there is knowledge here, there is recognition.
[Rabbi Michael Abraham] Yes, so that we said before. Now I’m trying to explain the concept of knowledge—why here I say we know and there I say we don’t know. And their claim is that it simply depends on sensitivity. Sensitivity to the facts. What does that mean? In the case of the first lottery, my chance of winning is one in a million, and it makes no difference at all whether the fact is that I won or didn’t win—my statement will be the same statement. In both cases I’ll say: apparently I didn’t win, because there’s a one-in-a-million chance that I won. My statement isn’t sensitive to factual truth, right? It stems from a statistical calculation; it’s not connected to factual truth. It wouldn’t change if the factual truth were the opposite. So it’s not sensitive to factual truth. What happens in the second case? Notice. In the second case it is sensitive to factual truth. Why? Because if I had won, at the factual level, then my number would probably have appeared in the newspaper. Right? Because usually the newspaper does get it right; there’s only a one-in-a-thousand chance it misses. So in the case where I had won, I would probably have reached the conclusion that I really had won. Meaning, my statement would change if reality were different. Or in other words, in the second case my statement is sensitive to the facts, to factual truth. And in the first case my statement is not sensitive to factual truth. And this is, in my opinion, a wonderful definition, really brilliant, of the concept of knowledge. Meaning, he is basically claiming that the concept of knowledge depends on the question of when I can say that I know something. I can say that I know something if that knowledge is sensitive to factual truth. Meaning, if the factual truth had been different, then my knowledge would have been different. If that’s so, I can say that I know. Again, not because of certainty—the probability is the same probability. Fine? But because of sensitivity to factual truth. In contrast, in the prisoners case or the bus case there is no sensitivity to factual truth. Right? Why? Because I sue, I hold liable the blue bus company—I would hold them liable even if the bus that hit was red, because I hold them liable because they are ninety-five percent of the buses. It has no connection to what happened in reality, only to the probabilistic calculation. So the liability here doesn’t depend on factual truth; it’s not sensitive to factual truth. So that means one can’t convict because there is no knowledge here. And the concept of knowledge is a concept that stems from sensitivity to factual reality. That’s the definition proposed there—a wonderful definition in my opinion. Really, it’s terrific. Everybody feels, I think, that there is a difference between these situations, and here you have an indication that really grabs the bull by the horns. It explains why you think that here you can say “I know” and there you can’t say “I know,” even though the chance of error is the same chance.
[Speaker C] But that still doesn’t make it possible to put this explanation into the second category.
[Rabbi Michael Abraham] No, wait, wait—that’s exactly the point. So far we’ve only defined the concept of knowledge, when you can say “I know” and when not. Now they continue. Right?
[Speaker D] Rabbi, isn’t this a good example of one of the prominent differences people usually mention between faith and knowledge?
[Rabbi Michael Abraham] Meaning?
[Speaker D] There are those who claim, many claim, that faith doesn’t arise because reality and the facts are such, but because I want to believe that this is so. Okay. Whereas knowledge is sensitive to facts, and if the statistics were different—
[Rabbi Michael Abraham] That depends on what your faith is based on. For example, if your faith is based on the complexity of the world, then it is sensitive to facts.
[Speaker D] Fine, I’m not talking about that approach to understanding faith. But there are other explanations that say that faith—
[Rabbi Michael Abraham] Could be, could be.
[Rabbi Michael Abraham] In any case, for our purposes this is the definition of the concept of knowledge. Now they continue. First of all, this is a brilliant definition in my eyes. After that they continue wonderfully. They say, basically, in a case like the buses case, they basically say that holding the buses liable, holding the blue bus company liable, is impossible because—because that liability isn’t sensitive to factual truth. But if there were witnesses who saw that it was the blue bus that hit, even though the witnesses can be wrong with a five percent chance, there there is sensitivity to factual truth. Why? Because if it wasn’t a blue bus but a red one, then the witnesses probably wouldn’t say they saw blue, because ninety-five percent of the time they see correctly. And therefore the result would be different if the facts were different. So one can convict on the basis of witnesses, but one can’t convict on the basis of statistical evidence. Because statistical evidence isn’t knowledge, and witnesses are knowledge. Except, as he said, as I said before, they aren’t willing to accept the third-type explanation. So they continue with a move that is brilliant but, in my opinion, wrong. Next, and now they make the following claim. In the legal context—this is in the philosophical context; there they accept it. In the philosophical context, when can I say “I know”? When my claim is sensitive to factual truth. If it isn’t sensitive to factual truth, I can’t say that I know. Fine. But in the legal world this philosophy isn’t enough. Because who cares what I know or don’t know? Practically speaking, this is the chance that I’m right, and that’s enough to convict. So now they say the following. In the legal context, we have a second-type explanation. But for some reason, this explanation too depends on sensitivity to facts. For a different reason. For example, what’s the explanation? They say this. Suppose we’re talking about the blue bus, right? They say: why punish the blue company and tell them to pay the damages? After all, whether it was the blue bus or whether it wasn’t the blue bus, I would convict them, right? Because they own ninety-five percent of the buses. This isn’t conviction on the basis of knowledge. It’s conviction on the basis of the statistical consideration. This conviction isn’t sensitive to factual reality. Right? We saw that. So they say: if so, I have a legal explanation, a second-type explanation, for why not to convict in such a case. Why? Because the conviction won’t achieve its purpose. After all, you want through the punishment to change the person’s behavior. You tell him: look, you’ll be punished if you behave badly, and that is supposed to make you behave well. Will this affect the blue company in that way? Not at all. Because they will be convicted whether it was them or whether it was a red bus. It’s not sensitive to the facts. Even if they behave carefully and the red bus runs someone over, they will still convict them. So the conviction won’t achieve the deterrent effect and won’t cause the blue company to be more careful or drive more carefully. And therefore what happens is that even in the legal world, what determines whether to convict or not convict is sensitivity to factual truth. But not because this is called knowledge and that isn’t called knowledge. That’s unimportant, just words. Because that would be a third-type explanation, and they don’t accept that explanation. But they claim that here the two coincide, because both the philosophical question depends on sensitivity to factual truth—for a philosophical reason, namely that this is called knowledge and that isn’t called knowledge—and the legal question too depends on sensitivity to factual truth, not because this is knowledge and that isn’t knowledge, that’s irrelevant, but because the punishment won’t achieve its goal if there is no sensitivity to factual truth. And that’s already a second-type consideration, not a third-type one. I impose punishment to achieve a goal. If the result won’t be achieved, there is no point in imposing the punishment. That is basically their move, and to my mind it’s brilliant. Really, it’s simply also the structure of the article—the method is presented so beautifully. This is the schema I presented here. Very, very nice, really brilliant. Except—what can I say?—I think it’s wrong. Why is it wrong? First of all because at the factual level they aren’t right. It actually would achieve the results. Suppose I punish the blue company—won’t that cause the blue company to behave more carefully? I think it will. Why? Because if they behave more carefully, there will be fewer accidents. That doesn’t mean that if they are careful then the red one will run people over. Right? The red one will do what it does in any case, but the blue ones can reduce traffic accidents, and after all they will be convicted in all accidents, because they are ninety-five percent of the buses. So if they drive carefully, clearly there will be fewer accidents, right? Then they will be convicted less often. So it is deterrent. They assume that if I punish them in any case, they have no reason to be careful, because what difference does it make whether they ran someone over or the red one did—in any case they’ll be blamed. But that’s not true. When I punish them, it won’t cause the red one to run people over. It will cause them not to run people over. And then they really will be punished less because there will be fewer accidents in the city. So it does deter.
[Speaker D] But their feeling is different. When they tell them, “We’re convicting you not because we have any evidence against you but because you’re blue,” then the feeling is that… in plain language, “they screwed us,” and it has nothing to do with what we did. Not what we did—deterrence is psychological. And in that sense, not psychological—
[Rabbi Michael Abraham] What is deterrence? But you see that you’re getting hit, so of course you’ll drive more carefully.
[Speaker D] But you know that in principle—
[Rabbi Michael Abraham] You don’t know that it wasn’t you; it’s statistics, nobody knows.
[Speaker C] But if we’re already going to split hairs, you could also say that the red company has cover, and it can allow itself not to be careful because it knows they won’t blame it.
[Rabbi Michael Abraham] Right, but that’s not true either. Because if it isn’t careful, there may be eyewitnesses to the accident. Not every conviction is statistical. Right? So they too will be careful. And therefore I don’t accept their claim at the factual level. My second problem with their claim is that they assume that punishment in this context has the role of deterring, of changing behavior. But that’s not true. We’re talking here about civil law: you caused damage, you pay. The purpose of the penalty is to compensate the victim, not to correct the behavior of the wrongdoer. In criminal punishment, you can say that the purpose is deterrence. There too there are other conceptions of punishment, but let’s say that’s the accepted view there: in criminal punishment, someone—I don’t know—hit somebody else, so you sue him criminally, beyond the civil suit that may also be brought against him; you sue him criminally and punish him if he is found guilty. There indeed the purpose of punishment is to deter, so that people won’t hit other people. But in civil law, in tort law, when I hold you liable, it is simply in order to compensate the victim—he was harmed, and you want to compensate him.
[Speaker B] Could it be that their thinking is that compensating the person is also deterrence for the future?
[Rabbi Michael Abraham] Again, I didn’t understand. No, what are you talking about? The purpose of compensation is to compensate the victim, not to deter the wrongdoer.
[Speaker B] Obviously, obviously, but it’s also deterrence for the future. Maybe that’s their way of thinking.
[Rabbi Michael Abraham] Why are they talking about deterrence? No, that’s not legal thinking; it’s simply not correct. No, civil law—but if they bring this—this is exactly the difference between civil law and criminal law: in civil law the punishment isn’t punishment, it’s compensation to the person who was injured. Punishment exists only in criminal law. Punishment is criminal law, not civil law. Therefore I don’t accept their claims, neither at the factual level nor at the level of the conception of punishment.
[Speaker B] I’m asking, does Enoch not know that?
[Rabbi Michael Abraham] I don’t know, fine.
[Speaker D] But still, even in civil law, true, the victim has to be compensated—but who has to compensate? The one who is responsible. There is a concept of responsibility. It’s not criminal, but it’s responsibility, fine.
[Rabbi Michael Abraham] Ninety-five percent—he’s responsible.
[Speaker D] Yes, but I’m responsible not because of something I did, but because I belong to the majority group. Right. Right. So that does make responsibility important.
[Rabbi Michael Abraham] The concept of responsibility isn’t only criminal. Why are you going back to that? You wanted to gain a second-type explanation. Come, I’ll show you legal consequences. I say there are no legal consequences. Not true—there is no explanation in terms of legal consequences. You tell me—so then you’re going back to a third-type explanation. I agree. He doesn’t accept the possibility of a third-type explanation. That’s exactly the point, and that’s why he’s twisting himself up there. So he arrives at explanations, and they are not correct explanations. And now when you tell him that this explanation isn’t correct, what do you think he’ll do? Say, okay, then we do accept statistical evidence in court? Of course not. He’ll say, okay, then this still requires further thought, let’s search even more. Because it’s obvious to him that we don’t accept it, and again I say: it’s obvious to him because the logic, the legal intuition, tells him not to accept it. The explanations are not what lies at the foundation of the matter. Yes, that’s another difficulty for him. Do you really think that all the judges who don’t impose punishment on the basis of statistics refrain from imposing punishment because of that? Because it won’t have an effect? They made all your calculations and because of that they don’t impose the punishment? Of course not. Nobody thought about this at all. I say this whole explanation stems from distress. The distress is that, for him, there can only be two types of explanation. A third explanation cannot be. And since there is no statistical explanation here, it must be a legal explanation. So he gets forced into strained answers just to find some legal explanation here. But it doesn’t work; the legal explanation doesn’t exist. And nevertheless nobody will give up this rule that one does not convict on the basis of facts—on the basis of statistical evidence. And therefore, in my opinion, this is proof that people really do operate with third-type explanations—they just aren’t willing to admit it. They think it isn’t rational or whatever—not that they are unwilling to admit it because they are lying, but to themselves they are unwilling to admit it, meaning they don’t think such a thing is a rational explanation. But in fact it’s clear that’s what moves them. By the way, there are cases where this explanation does work. For example, in the prisoners case I think there one can accept his practical explanation. Because in the prisoners case, if you punish all of them, will that cause someone who wanted to murder not to participate in the next murder? No, because he knows he’ll be convicted anyway, because there are ninety-nine others who did murder. Unless you deter everybody—fine, that’s another discussion—but at the principled level there I can hear that kind of argument. Okay? Or they bring another example: say people sneaked into a soccer game. There were lots of people who sneaked into a soccer game, and there is one who didn’t sneak in. Fine? Now you can punish all of them for sneaking in and charge them the price of the ticket, including that one person who actually did buy a ticket, because statistically it’s not him. Now what good would that do? Will it cause someone to buy a ticket next time? No, because he knows he’ll be punished anyway, because everyone sneaks in. So there too, for example, in that case they are right, or can be right, in their factual description. But here is the proof against them. Because in the buses case, they are not factually right, and factually in the buses case too we don’t convict on the basis of statistical evidence. So that means our reservation about statistical evidence isn’t because of their consideration, because if it were because of their consideration then we would say it in the case of the ten, and we would say it in the case of the gate-crashers. But we wouldn’t say it in the buses case. And if we say it in all these places, that means we have something against statistical evidence, not because of one legal implication or another. And that means that here there is in fact a third-type explanation. And now I return to the tool that they themselves gave me, so beautifully. I claim that legal intuition basically says—and this is an additional explanation beyond the explanations I gave before, and maybe it’s only another description of them, but I think not, I think it really is an additional explanation—legal intuition says that one may convict only on the basis of knowledge. One may not convict on the basis not of knowledge but of statistics. Okay? Where knowledge is defined as: the conviction will be sensitive to factual reality, to factual truth. But not because that has consequences—deterrence and the like, no. Rather because of that itself. Because conviction can be based only on knowledge and not on something that is not knowledge. Fine? This is that kind of legal intuition. It has no implications, it’s not a statistical difference, it’s not anything. And I am willing to accept that kind of explanation. And therefore the fact that even on the level of lotteries I make a distinction, where in the one-in-a-million lottery I can’t say that I know I didn’t win, and in the one-in-a-thousand lottery case I can say that I didn’t win—and this is a philosophical difference, not a legal one—so they say: a sign that the explanation can’t be legal. Not true. The legal explanation is the philosophical explanation; it’s the same explanation. One can explain that only on the basis of knowledge may one convict. Something that is not knowledge—you cannot convict on its basis. And that is a third-type explanation.
[Speaker C] At long last you’ve reached the conclusion that there really is a third-type explanation. Yes. So it’s not just intuition like we thought at the beginning?
[Rabbi Michael Abraham] No, it’s still intuition. I’m only defining what is called knowledge and what isn’t called knowledge. And you’ll ask, fine, this isn’t called knowledge—so what? Why should I care? Why can’t I convict? After all, statistics do work. So here it’s intuition. I haven’t presented any explanation beyond that. But I think that after understanding the concept of knowledge, one can feel more at peace with the intuition that all of us feel. Okay? That’s the point. But I don’t have an explanation for this intuition, because an explanation will always be in terms of where it leads, what its implications are. I don’t have that, I don’t have implications. It’s a basic thing; I don’t have something that can explain it. Okay?
[Speaker C] Fine. What I mean is that you succeeded in using their definition of knowledge in this case, but still to classify it under the third category, right. That doesn’t mean that every time you put some reason into the third category you’ll have an explanation you can formulate the way they managed to, right.
[Rabbi Michael Abraham] This formulation simply helped me feel more at peace with the intuition I have. If I hadn’t seen this formulation, I still would have had this intuition and probably I would still have gone with it. Fine. But here, for example, as I said just before, they think there is no explanation. And still they will continue not to convict on the basis of statistical evidence. Because basically, without admitting it, they too are in fact going with their legal intuition. It’s just that in secular thinking, let’s call it ordinary legal thinking, people don’t use these kinds of explanations; it’s not kosher, meaning it’s not a legitimate kind of explanation. But what I’m trying to show is that it’s still there; it is there. It may even be a kind of evidence for the existence of spiritual planes that people don’t acknowledge. Well, that’s already one step further—I don’t know. Yes.
[Speaker D] Rabbi, wouldn’t it be correct to say that this intuition is based on the idea that if we explain a case solely on the basis of statistics—meaning, we are not really seeing you anymore, we’ve stopped seeing you, you simply belong to the majority group so you’re liable—that this injury to the image of God is the inner core that causes us to object to it? As if, for example, if this were not a human being—if, for example, we were talking about an animal, yes, taken from some group, and we had to decide what it is: if it belongs to the majority group then it’s dangerous and needs, I don’t know, to be put into quarantine or killed—then certainly that’s what we would do; we wouldn’t have this problem here.
[Rabbi Michael Abraham] I’m prepared to accept that formulation. That’s perfectly fine; it’s a formulation that just explains more clearly what I said earlier, it’s not something different. Okay, up to this point—if there are comments or questions.
[Speaker C] A question, please. When they said at the beginning that someone’s chance of winning a lottery ticket is one in a million, and again that the newspaper making a mistake is also one in a million—when they said that here we’re dealing with knowledge, was that before they arrived at this explanation that the statement is indeed sensitive to the fact, or had they already assumed that as a prior assumption and then managed to find this explanation?
[Rabbi Michael Abraham] The concept that ties this to knowledge already existed before them. They even cite earlier articles that spoke about this as knowledge and that as not knowledge. But they were the ones who managed to define why this is called knowledge and that is not called knowledge. In other words, that’s why all the others who didn’t define the concept of knowledge have an even harder time accepting the explanation. So what if it’s knowledge or not knowledge? There are statistics, and that’s it. Now, he proposed an explanation for the concept of knowledge, but he still rejected that explanation because he still isn’t willing to accept that it isn’t based on statistics alone and without legal consequences. But he did move one step beyond what existed before him; long before him people were already using the concept of knowledge in this context.
[Speaker C] Okay, because before the explanation it seemed a bit arbitrary to me to say that here there is knowledge, because it’s like the first case we discussed.
[Rabbi Michael Abraham] That’s why I enjoyed their definition very much. Right, I agree. I think it captures the concept of knowledge very nicely.
[Speaker B] By the way, is knowledge expressed in percentages?
[Rabbi Michael Abraham] No, that’s exactly what I’m claiming. It’s the same percentage—this is one in a million and that is one in a million. It’s the same scale.
[Speaker B] Not from that perspective. In a case where I have witnesses that the ninety-five percent is not ninety-five but fifty—what about that case?
[Rabbi Michael Abraham] I assume I would no longer call that knowledge. That would be doubt on a positive basis, not a negative one—like a die, like a fair coin and not a biased coin. But it’s not knowledge; fifty percent is…
[Speaker B] Where does knowledge begin?
[Rabbi Michael Abraham] The heap paradox—I can’t tell you.
[Speaker B] Meaning, we don’t have—
[Rabbi Michael Abraham] Wherever it crosses the line for you, I don’t know.
[Speaker B] No, it’s not only for me. I’m asking in principle, in a case where I relate, say…
[Rabbi Michael Abraham] Everyone will draw the line wherever he draws it. I don’t have a number. It’s the paradox—
[Speaker B] —of the heap.
[Speaker E] What would the Rabbi say in a case where, let’s say, out of a hundred prisoners there is one who received a pardon? Meaning, of a hundred prisoners, certainly all of them killed someone and all of them are liable to a death sentence, and one received a pardon, but I don’t know who. Should I not convict any of them, or should I kill all one hundred?
[Rabbi Michael Abraham] I didn’t understand—so what if one received a pardon?
[Speaker E] One received a pardon, and it isn’t known who.
[Rabbi Michael Abraham] Ah, one received a pardon and it isn’t known who. Well, that’s the same question.
[Speaker E] Seemingly ninety-nine percent—
[Rabbi Michael Abraham] Seemingly there’s a ninety-nine percent chance that you didn’t receive the pardon, and therefore they’ll execute you. But that’s statistical evidence; statistically, we don’t execute on that basis.
[Speaker E] Right—which means they wouldn’t execute any of them? I think intuition disagrees. I don’t know what my gut says, I don’t know; I’m interested in what the Rabbi would say. Is there a distinction here because the ruling
[Rabbi Michael Abraham] has already been given, and the whole question now is only whether to carry it out. Yes, but that’s a conceptual Talmudic distinction, you know, it’s not…
[Speaker D] If—
[Speaker E] Let’s say, but it feels to me that ninety people out of a hundred would answer that you should kill them all—that’s how it feels to me, I don’t know. Or in a case where, say, someone who bought the ticket…
[Rabbi Michael Abraham] Could be, could be that it’s based on the idea that even if you kill that one person who got the pardon, he still deserves to die. He got a pardon, he got some kind of pull or favoritism, but he deserves to die. So there I really don’t have a problem with it, because at most I failed to implement the pardon, but I didn’t kill an innocent person.
[Speaker E] I understand. Maybe I’ll ask it in a less good version. If I know a neighbor… someone asks me, based on my acquaintance with him, whether I know that he’s poor or that he doesn’t owe me anything. What does the Rabbi say? I would say yes, he’s poor, he has no money. I know that he buys, and that means that maybe he now has a ticket worth a hundred million dollars, but I would still say with absolute certainty that he’s poor, even though he buys lottery tickets all the time. Which means that the explanation here is—what?
[Rabbi Michael Abraham] You can say that you know in that case, because you saw him spending money. There’s only a question whether he made it back in one of the lotteries or not. But you saw him spending money. So it’s like two witnesses that you know he murdered, but there could be some problem with the witnesses.
[Speaker E] I didn’t fully understand, but okay, all right. Meaning, I didn’t understand because I’m just not sufficiently familiar with the material. All right. Thank you.
[Rabbi Michael Abraham] Okay, that’s it for now. Sabbath peace.
[Speaker F] Goodbye. Sabbath peace. Sabbath peace, thank you very much.