Doubt and Statistics – Lecture 21

Table of Contents

• The lifeboat dilemma and the claim of a genetic lottery
• Rejecting the timing argument and rejecting the personal identity argument
• Ad hoc lotteries: the Reuven and Shimon example and the arbitrary choice of mechanism
• Force as enforcement versus force as what determines the outcome
• Consent, coercion, and the reasonableness of consent
• The veil of ignorance, the reasonableness doctrine, and fairness in the rules of the game
• A flask of water, ownership, and the debate between distributive justice and charity
• Natural resources as ownerless property and the parallel to the boat
• Lots in the Torah: division of the land according to Rashi
• The conceptual distinction between a “lottery” and a “lot”
• The Vilna Gaon’s lot and the identification of the fallen of the Lamed-Heh
• The two goats on Yom Kippur and the dispute between Rashi and Gevurat Ari
• “Do not cast aspersions on the lots” and the view of a lot as coming from Heaven
• Havot Yair and the critique of identifying a lot with a lottery
• The prohibition of “one does not consult… by lots” versus the permissibility of lotteries for division
• HaElef Lekha Shlomo: a lot over Kaddish and the distinction between the future and a decision
• Sefer Hasidim, Jonah’s storm, and the distinction between a heavenly indication and divination

Summary

General Overview

The text returns to the lifeboat dilemma, where there is no room for all the survivors, and sharpens the point that a forceful act that justifies itself after the fact by invoking some kind of “lottery” is not considered a legitimate lottery. By contrast, a fair lottery distributes equal chances and determines the outcome before force is used to enforce it. It distinguishes between force as a means of enforcing the result of a fair lottery and force as a parameter that creates the “rules of the lottery” so that they fit whoever is stronger, arguing that this turns the process into a fiction rather than a real lottery. Later, it connects this distinction to Rawls’s principle of the “veil of ignorance” and to political and economic examples, and concludes with a halakhic-conceptual distinction between a “lottery,” whose purpose is fair division when actual division is impossible, and a “lot,” which is a means of uncovering “the correct answer” or the will of God, with implications for the prohibitions of “do not practice divination” and “be wholehearted.”

The Lifeboat Dilemma and the Claim of a Genetic Lottery

The story describes a ship that hit an iceberg, lifeboats with limited capacity, and a man who pushed others into the water in order to save those who remained. He was then put on trial and claimed that he had not killed them because “they would have died anyway,” and the alternative was that everyone would die. The argument against him says that he should have held a fair lottery that would give everyone an equal chance to stay alive, rather than arbitrarily choosing whom to push out. The central question is why the “genetic lottery” that made him stronger does not count as a legitimate lottery deciding who gets to remain in the boat.

Rejecting the Timing Argument and Rejecting the Personal Identity Argument

One suggestion rejects the genetic lottery because of the timing of the lottery, since it was “held at birth” rather than in real time. But that is rejected with the claim that even a fair lottery can be held in advance, even before departure from Liverpool, as an agreed condition in case of disaster. Another suggestion is based on personal identity and says that genetics is not a trait a person “could have had” differently, because “I am the person with this genetics,” and different genetics would mean that I would not be me. The discussion also touches on “wrongful birth.” The text argues that even if this distinction seems technical, it is still not clear why a fair lottery over the very question of “me or not me” would not count as a lottery for purposes of rescue at the end.

Ad Hoc Lotteries: the Reuven and Shimon Example and the Arbitrary Choice of Mechanism

The text presents a case in which Reuven pushes Shimon, claiming that a name beginning with the letter R comes before one beginning with the letter S, and shows that Shimon could argue exactly the opposite, that the later letter should have priority. So there is no inherent superiority to either criterion. It says the problem is not that one wanted a “coin” and the other wanted a “die,” but that the mechanism is chosen in such a way that the result is known in advance and matches the chooser’s interest. In that case, it is just an after-the-fact justification for a forceful act, not a fair decision. The example of Ephraim Kishon’s proposal to solve the Israeli-Palestinian conflict through a chess game illustrates that when the losing side will not accept the result, in the end “force determines things, not the lottery,” and so the procedure does not resolve the conflict; it merely wraps it up.

Force as Enforcement versus Force as What Determines the Outcome

The text distinguishes between a situation in which a fair, agreed lottery is held and then force is used only to enforce its results on someone who refuses, and a situation in which force itself is what makes it possible to impose a mechanism that produces the desired result. It argues that when I choose a criterion like “earlier letter” because I already know that it works in my favor, I am really choosing the outcome, not conducting a lottery, because there are countless alternative mechanisms, each of which would serve a different side. He illustrates this with analogies like a lottery booth, or rolling a die and then deciding after the fact that whatever number came up is “the winning number,” and says that such a mechanism is a joke, not a lottery.

Consent, Coercion, and the Reasonableness of Consent

The text proposes a more precise formulation of a “fair lottery,” one that does not require the actual consent of the other side, but rather a mechanism that the other side “should have agreed to if he were a reasonable person.” It describes a case of two people in a boat where one refuses a lottery and prefers that they both drown, and says that one may, and indeed should, impose a fair lottery, because that refusal is irrational and forces the other person into an unnecessary death. The requirement is presented as an implicit or principled consent of a reasonable player to an equal chance, not as actual present consent to the mechanism.

The Veil of Ignorance, the Reasonableness Doctrine, and Fairness in the Rules of the Game

The text brings in Rawls and the principle of the “veil of ignorance” as a model for setting the rules of the game without knowing who will gain and who will lose, and applies this to the Knesset debate over the reasonableness doctrine and to “Solberg’s thesis” about narrowing the doctrine with respect to elected officials. It argues that claims based on the identity of the current player, such as “since Bibi is prime minister” we therefore need one rule or another, are unfair because they would not be accepted from behind a veil of ignorance. He adds a personal reservation, saying that he is unwilling to operate under a veil of ignorance when the players are perceived as corrupt, and when the coalition itself is not acting behind a veil of ignorance but is passing personal laws and changing the rules of the game for its own benefit. He compares that to choosing the criterion of R versus S on the boat.

A Flask of Water, Ownership, and the Debate between Distributive Justice and Charity

The text presents the Talmudic case of “two people walking in the desert with one flask of water in their hands” and emphasizes that according to Jewish law, “your life takes precedence,” and the ruling follows Rabbi Akiva. He interprets this as a case in which “it is simply not correct to hold a lottery,” because there is no obligation to share what belongs to a person. He distinguishes between situations where one must divide and can divide, situations where one must divide but cannot, and therefore holds a lottery that divides chances, and situations where one need not divide at all, and therefore there is no place for a lottery even if there is no veil of ignorance. The economic debate between left and right is presented as the question whether money is like the flask of water, which is mine, or like the boat, which belongs to both. He connects this to the slogan that the left “doesn’t want charity, it wants justice,” and to the concept of “distributive justice,” while arguing that a demand for forced distribution is unjustified in cases of property created through private talent.

Natural Resources as Ownerless Property and the Parallel to the Boat

The text proposes a distinction according to which, with natural resources like gas, minerals, and phosphates, there is room for a distributive claim because these are resources not created by personal talent, and they are like “a flask of water that is ownerless,” belonging to the public as a whole. He argues that in such a case it is proper to pay the public for the use of public property, and afterward the excess profit can belong to the one who added value through his talent. He compares this to the boat, where there is no justification for giving the stronger person priority in being saved, and therefore a fair lottery is required.

Lots in the Torah: Division of the Land According to Rashi

The text opens a systematic expansion into Jewish law and cites many verses in Numbers about “but the land shall be divided by lot” and “according to the lot shall his inheritance be divided between the many and the few.” It quotes Rashi, who describes a mechanism in which Eleazar the priest is clothed in the Urim and Tumim, there are twelve slips for the tribes and twelve slips for the boundaries, they are mixed in a box, and the prince draws two slips, so that in his hand there comes up both the slip of his tribe and the slip of its territory, while the lot “cries out” and announces the match. He emphasizes that Rashi describes a division not according to physical measure but according to assessed value and the quality of the land: “a bad beit-kor against a good beit-se’ah.”

The Conceptual Distinction between a “Lottery” and a “Lot”

The text says that a lottery of the type used on the boat, or in dividing a piece of property that cannot be physically divided, is a mechanism of fair distribution that replaces actual division with an equal division of chances, and therefore does not require divine inspiration, because “there is no correct answer here.” He argues that the division of the land according to Rashi is not that kind of lottery, but rather a “lot” whose purpose is to reveal “which inheritance the Holy One, blessed be He, wants to give to which tribe.” That is why there are two boxes and a miraculous element showing a “divine hand,” rather than equal chance. He argues that when there is “one correct answer for each tribe,” probabilistic fairness has no meaning, because this is not a process that creates an arbitrary decision but a mode of communication in which the Holy One, blessed be He, conveys information.

The Vilna Gaon’s Lot and the Identification of the Fallen of the Lamed-Heh

The text gives as an example the Vilna Gaon’s lot, which was used to identify the fallen of the Lamed-Heh when it was difficult to identify bodies that had been abused. It mentions Rabbi Aryeh Levin and Rabbi Tzvi Pesach Frank. It describes how verses from the Hebrew Bible (Tanakh) were brought up, and each verse contained the name of one of the fallen in a way that convinced the participants that this was not coincidence. It presents this as a lot whose purpose is “to discover what the correct answer is,” not to distribute equal chances. He notes that there is a question why this is not prohibited under “do not practice divination,” but he does not go into the details.

The Two Goats on Yom Kippur and the Dispute between Rashi and Gevurat Ari

The text presents the lot of the two goats on Yom Kippur, “for the Lord” and “for Azazel,” where the goats must be equal in height, in weight, in appearance, and in value. It brings Rashi, who describes drawing two slips, and the question of Gevurat Ari in tractate Yoma: why are two slips needed, if the moment one is “for the Lord,” the other is automatically “for Azazel”? He explains that according to Rashi, this is a model of a “lot” that emphasizes regarding each one that the Holy One, blessed be He, determined its role, whereas Gevurat Ari argues that this is “a lottery of the ordinary kind,” and simply fair.

“Do Not Cast Aspersions on the Lots” and the View of a Lot as Coming from Heaven

The text brings from Pesikta Zutarta and from the Talmud in Sanhedrin Joshua’s words to Achan: “Do not cast aspersions on the lots, for in the future the Land of Israel will be divided by lot,” and interprets this as a demand not to see a lot as a matter of chance. It quotes responsa of the Geonim: “A Jew has no permission to violate a lot, for a lot comes only from Heaven,” and “one who violates a lot is like one who violates the Ten Commandments.” It presents this as further support for the view that a lot of this type is understood as a heavenly determination and not as a random decision.

Havot Yair and the Critique of Identifying a Lot with a Lottery

The text quotes Havot Yair, who cites verses like “The lot is cast into the lap, but all its judgment is from the Lord,” and argues that when a lot is conducted “properly,” “a higher providence attaches to it,” even attributing broad validity to lots. He criticizes this and says that Havot Yair “does not distinguish between a lottery and a lot,” and mistakenly identifies every fair lottery with “the hand of God,” whereas the text distinguishes between a mechanism of fair division and a mechanism for revealing the will of Heaven. He connects this critique to the question of individual providence and notes that he gets to that later, but does not develop the topic here.

The Prohibition of “One Does Not Consult… by Lots” versus the Permissibility of Lotteries for Division

The text cites the Shulchan Arukh, Yoreh De’ah 179: “One does not consult astrologers, nor by lots… be wholehearted with the Lord your God,” and interprets this as referring to lots used to clarify the future or some hidden truth. He distinguishes this from lotteries whose purpose is to decide equally among people with equal rights, and argues that these are not “do not practice divination” and do not require bringing the Holy One, blessed be He, into the mechanism. He illustrates this also through the discussion of “Sefer Hasidim, which says one may not make a lot over lives,” and argues that it is a mistake to understand this as a prohibition on lotteries, because the prohibition refers to a “lot,” not to a fair distribution of chances.

HaElef Lekha Shlomo: a Lot over Kaddish and the Distinction between Future and Decision

The text cites the responsa HaElef Lekha Shlomo in the name of the Shakh and Tosafot, who explain that “one does not consult by lots” refers to clarifying the future, such as “whether the sick person will live” or “whether a lost object will be found,” but “to draw lots between two claimants” in order to determine who gets something is permitted. He brings proof from the Temple lottery, and from the fact that the Mishnah says one does not cast lots on a Jewish holiday, “which implies that on ordinary days it is permitted to cast lots,” and he also mentions the verse “but the land shall be divided by lot.” The text argues that the basic distinction is correct, but he qualifies the proof from the verse about dividing the land, because in his view that is a “lot” of the kind that requires divine direction, and not proof for the permissibility of an ordinary lottery.

Sefer Hasidim, Jonah’s Storm, and the Distinction between a Heavenly Indication and Divination

The text presents a contradiction in Sefer Hasidim regarding the lot in the story of Jonah, and explains that the issue there is a “lot” whose purpose is to clarify “on whose account is this storm,” not a “lottery” that distributes chances. He brings a midrash according to which the storm was only around Jonah’s ship, while the sea around it was calm, and sees this as a heavenly indication that justifies using a lot to identify the right person to throw into the sea. He says that if the storm had been across the entire sea, with no special indication, it would have been forbidden to make such a lot, because there would be no basis for saying that the result reveals truth. He concludes that a lot is generally forbidden, but may be permitted when there are “indications from Heaven,” whereas a fair lottery is always permitted as a mechanism of distribution.

[Rabbi Michael Abraham] Last time I talked about a moral dilemma that comes up in a book by Eli Merzbach. I’ll just briefly remind you. There was a ship that people boarded, it hit an iceberg, people had to get into the lifeboats, and there wasn’t enough room for everyone. One person pushed some of the people into the water and in effect left them to die, while the rest were saved. And there on land, after they were rescued, they put this fellow on trial for killing the people he had pushed into the water. He argued that he hadn’t killed them, because they would have died anyway. The lifeboats couldn’t hold all the survivors, so the alternative was that everyone would die. So he at least left some to die, who in any case would have died, but kept the others alive. And therefore, he claimed, he hadn’t really killed anyone. The argument against him was that he should have held a lottery. Not just push random people into the water, but hold a fair lottery and give everyone equal chances to stay alive. And after they held the lottery, then those who lost the lottery could be pushed into the water to die, because otherwise the others wouldn’t survive. But the fact that he didn’t hold a lottery is the problem. The question that arises here is why the genetic lottery that made him a stronger person, someone capable of pushing them into the water and staying on the boat himself—why isn’t that considered a legitimate lottery? Why doesn’t that solve the problem? So we said that I proposed several possibilities. We talked about “might makes right,” of course, but after that I raised several possibilities for rejecting the suggestion that the genetic lottery is just like any other lottery. The first suggestion was the timing of the lottery. Meaning, the lottery was actually held at birth, long before the question even arose. And a lottery has to be held in real time, when the need arises, then you hold the lottery. I rejected that, because if they had held a fair lottery before they boarded the ship, before they even started the voyage in Liverpool, and they had held a fair lottery that if, by chance, the ship were to break apart, sink, and they had to get into the boats, which people would be entitled to get into the lifeboats and which would not—if they held that lottery fairly before they boarded the ship, I don’t see any fundamental problem with it, even though it too would have been done long before the event was relevant and before anyone knew there would even be such an event. Therefore, the timeline is apparently not the issue. After that I moved on to the argument from personal identity. The claim there was basically that a person’s genetics is not some trait he happened to draw, or something external to him that can be treated as a kind of lottery. I could have had these genetics and I could have had different genetics. No—I am the person with these genetics. Meaning, different genetics just wouldn’t have been me. There’s no situation in which I exist but with different genetics and not these. And so it’s hard to see this as some kind of lottery selecting among several options regarding the same person. The lottery simply determines who the person is, or who I will be, and the question is not whether I will be this way or that way, but whether I will exist at all or not. We talked about wrongful birth; I won’t go into all those details here. I said that there too the distinction seems a bit technical. Still, what difference does it make? If the lottery really is a fair lottery, then whether what’s being drawn is me or not me—fine, but it’s still a fair lottery and the odds were equal for both of us, so it’s not clear why that shouldn’t count as a lottery for purposes of this rescue situation in the end. Now, toward the end of last time I moved to the suggestion, or the discussion, of ad hoc lotteries. What do I mean? I talked about a situation, for example, where Reuven pushes Shimon off the boat on the grounds that the name Reuven starts with the letter R and the name Shimon starts with the letter S, and the letter R comes before S. So here the choice of a person’s name is already not like personal identity, like genetics; a name really is something that could have been chosen one way or another. So we rejected the possibility of—meaning, this is no longer—there’s no problem of personal identity here. Fine, so I got a name with an earlier letter—what’s the problem? That’s also a lottery. You could say that the winner is whichever name has the smallest numerical value, as it were, or whichever comes first in the alphabet. And I said that here a counterclaim naturally arises, namely that by the same token Shimon could have pushed Reuven off the boat on the grounds that דווקא the higher letter, the later one, is preferable. Why the earlier letter? The later letter. And therefore Reuven’s claim is no better than Shimon’s claim. So you’ll say: fine, but Reuven was the one who pushed him. He chose the lottery according to which the earlier letter is better. That’s no better and no worse than the other lottery, but he used this lottery. What’s the problem that he didn’t use the lottery the other person wanted, but only his own? Fine—as long as the lottery is a fair lottery, what difference does it make? Suppose the other guy wanted to flip a coin and I wanted to roll a die. Okay? Fine, so maybe I didn’t accommodate him; I flipped a coin, it was a fair lottery, and I threw him into the water because he lost the lottery. True, it wasn’t the kind of lottery he wanted, it was the kind I wanted—so what? If the lottery is fair, then there’s no substantive claim against me. The problem is that there’s actually some sort of claim here—what I earlier called the ad hoc claim. This is really an ad hoc claim, because we decided on the lottery mechanism—actually, we didn’t decide, I decided on the lottery mechanism after this happened. Or in other words, I really didn’t hold a lottery at all; I just found some after-the-fact justification for the forceful action I took. And so what determined things here was force, not my lottery. Because in fact he wanted a different lottery and I imposed mine. But we talked about—if I remember correctly, no—about Kishon’s proposal for solving the Israeli-Palestinian conflict, yes, that our representative should play chess with their representative, and whoever wins, wins. Why kill people? You can organize struggles in less extreme or less violent ways. Except what? After we win at chess, the Palestinians of course won’t agree to withdraw their demands, and then what will we do? We’ll have to use force. Well then, in the end force decides, not the lottery. Meaning, there is some kind of lottery here, but it isn’t the result of the lottery that actually determines what will happen; force determines what will happen. So in any case you’re using force—so what difference does it make that you held a lottery? So why does it matter that you held a lottery? The claim is that force determined the rules of the game here. But we can ask again: fine, but force too is a genetic lottery. I’m stronger—fine, so the genetic lottery is itself a lottery. Meaning, we still haven’t completely solved the problem. There’s a… The problem, I think—and I said this briefly at the end of last time, now I want to spell it out a bit more. There are situations in which the use of force would be legitimate in such a case. For example, we held a lottery with a coin, we flipped a coin and it came out that I am supposed to survive and you have to die, yes, get off the boat. Okay? Now suppose you refuse. You refuse, even though we held an agreed-upon lottery. In that case the use of force should not be problematic. Why? Because I’m not claiming justification on the basis of the—of the genetic lottery, because I’m stronger. The justification is the coin toss we held, which is a fair lottery unrelated to force and unrelated to anything. Force merely served me in order to enforce the results of the lottery. Force was not the parameter on the basis of which the lottery itself was held. By contrast, when I decide that Reuven, the one with the letter R, is preferable to the one with the letter S, and you of course will argue the opposite, and I push you into the sea—here force is not implementing the results of a fair lottery. Force is the parameter of the lottery. And why? And therefore this isn’t a lottery—that’s really my claim. Why? Because after all, in the end, why did I choose the parameter that the earliest letter wins? Because I know that my letter comes before yours, just as you chose that the later letter should be preferable because you know that, with your S, your letter comes later than mine. So in other words, there was no lottery and nothing at all here—we’re just fighting over who falls into the water, and I use my strength to make you fall, and if you were stronger, you’d make me fall. But not that you’d really be using force unjustly because the lottery was in my favor. My lottery is no better than yours. When I flip a coin and it comes out that you have to fall and I’m supposed to remain in the boat and survive, but you are stronger, and now you come and throw me off the boat by force—that’s unfair. You’re using force to resist the results of the fair lottery. If I used force, that would be perfectly fine. Why? Because force here is not the factor at all. Force just comes to enforce the results. We reached the result by flipping the coin, not by using force. But with R and S, with Reuven and Shimon, there force is what actually determined the result, not what enforced the result, because, after all, you understand that choosing the letter R or choosing the letter S is utter nonsense. Meaning, I choose the letter R because I already know in advance that the letter R is preferable. When my parents gave me a name beginning with R, they obviously had no idea what significance that would have for my survival. But when did it become relevant to survival? Now. I determined that the lottery is that the earlier letter is preferable, but I didn’t determine any lottery here—I determined the result. The result is that I stay. And you, of course, determine the result that S is preferable so that you stay. So in other words, no lottery was really held here; it’s a fiction. There was a lottery over my name and a lottery over your name, and the criterion for which name wins is a criterion that I determine arbitrarily. I can choose whichever lottery I want so that the result I desire will be the result that comes out here. That’s not called a lottery. And so in this respect, this is what I call an ad hoc lottery; therefore such a lottery is not really a lottery at all. Yes, if we return to the question of force—I asked, or we asked there in the book he asks: if I push you into the sea, why don’t we regard the lottery that made me genetically stronger as the lottery by virtue of which I survive? The answer: because you can claim that the weaker person should survive and the stronger should fall into the water. And why should the stronger survive? The weaker should. Any parameter at all—the weaker one, the taller one, the shorter one, the fatter one, the one with the first name, the one with the second name, the weak and the strong and whatever you want. So why do I push you into the water? Because I have the power to enforce the lottery that is convenient for me. When I choose a lottery that is convenient for me, that isn’t called holding a lottery. After all, there are all sorts of lotteries, and every lottery will give a different result, and I already know the results—when I choose the lottery, I already know what the result of the lottery will be. So that’s not called a fair lottery; it’s called choosing a result. Yes, it’s like saying: going to a lottery stand, choosing a ticket, and telling people: look, there’s a very interesting number on this ticket, so let’s suppose this number really is a very special number—I don’t know exactly why, you can always find something unique about any number—and therefore I suggest we treat this as a lottery: I got the ticket and therefore I should win the jackpot. Would anyone even consider accepting such an argument? That you choose the lottery mechanism when you already know in advance that its result will favor you, already at the time of choosing. So don’t tell me you held a lottery. You simply decided that you would win, and that’s it. Because by the same token there is no reason to prefer this lottery over another lottery that would determine that the other fellow wins, or this one wins, or whatever. You chose the lottery mechanism. When you choose the lottery mechanism and know the result, that is not called holding a lottery. There are no lotteries here. It’s like, yes, rolling a die and the die can land on any number, but I choose that if it lands on five, then… But I’m the one deciding which number will be the winning number. Now roll the die—that’s a completely fair lottery, it can land equally on any number from one to six. Then let’s say it lands on five. Now I decide that five wins. The lottery is fair; five had the same chance as one, two, three, four, and six. Does anyone really regard such a thing as a lottery? It’s a joke. You’re simply choosing the result. True, that result was obtained on the basis of some lottery, but the lottery did not determine the result. The choice of the mode of lottery determined the result, not the lottery itself. Therefore there is no significance to the fact that we held a lottery. That is what is called an ad hoc lottery. And therefore I think that the claim that the person who pushed people into the water was really relying on a genetic lottery and therefore it was a legitimate lottery is, of course, complete nonsense. He used force as a factor that determines the result, not as a factor that enforces the results of a fair lottery. When force determines the result, and does not enforce a result previously reached fairly, that is not a lottery. And therefore this question is a foolish question. I don’t know why people get so tangled up in it, with all kinds of answers and difficulties—it’s just a foolish question. As I said earlier, suppose I had held a lottery and whoever came out as the one who had to die refused to bear the consequences; then indeed force could be used and that would be fine, because the force serves here to enforce the results, not because force is what determined what the results are. That’s a very big difference in terms of the fairness of the matter. The first is a lottery and the second is not a lottery. Now, one could make a mistake here and say that a fair lottery is a lottery whose rules we agreed on in advance. Yes, because if I choose the lottery mechanism then it’s not a lottery. If we agreed in advance on the rules and now we hold a lottery, then whoever comes out, comes out. That’s a fair mechanism. You can see that something is slipping in here through the back door—a bit of the first suggestion, the one that spoke about the timeline. The moment you hold the lottery in advance, that’s different than holding the lottery in real time. Okay? That basically says that the lottery has to be agreed on in advance. Now, that’s not exactly what I said there, because one could agree in advance on the lottery and hold it before boarding the ship. The timeline doesn’t matter here in relation to when the event occurred, but rather in relation to when the lottery is held and when the outcomes are determined. And the outcomes have to be determined before the lottery, not afterward. Meaning, how the outcomes are determined. The timeline does matter here, but not in the same way I suggested before. But now I want to claim more than that. Apparently what follows from this is that a fair lottery—that is, what will count as a lottery for this purpose—is basically a mechanism that we all agree on, that gives equal chances to everyone. When you choose a mechanism, that isn’t called a lottery. But then—maybe I asked this last time, I don’t remember anymore—what happens if two of us are sitting in a boat and the boat can’t carry both of us, otherwise we both drown. One can survive, but two will drown. What happens if I now suggest flipping a coin? I tell the other person to choose heads or tails. He says: I’m not willing to choose, I’m not willing to hold a lottery. Let us both drown. Can I in such a case force him to hold a lottery? In my opinion, absolutely yes. Absolutely yes—to flip a fair coin and give both him and me an equal chance, and whoever loses, loses. And this can be done against his will as well, even if he doesn’t agree to hold a lottery. So where is the agreement here? I’m forcing the method of lottery on him. That’s what I said earlier: suppose he wants dice and I want a coin, and I flipped a coin. As long as the odds were fair and equal for both of us, there is no substantive claim here. The fact that he wanted dice and not a coin is unimportant. At the end of the day, if the coin was truly fair, then the fact that he has whims is his problem. There’s no claim against me as long as I held a fair lottery. Same thing here—when he doesn’t want or doesn’t agree to hold a lottery, he is effectively sentencing both of us to die. And therefore what I can do, and should do in such a case, is hold a lottery myself and force the result on him. Now, I’m doing this lottery without his consent, but what does have to exist? It has to be fair. Or in other words, you don’t need the consent of the other side; you need that the other side ought to have agreed if he were a reasonable person. The fact that he doesn’t agree means he’s an idiot—he wants to commit suicide together with me as a pair. So he’s irrational. There is no reason to grant him his wish and die together with him. The requirement is not that he actually agree to the lottery or the manner of lottery. The requirement is that the mode of lottery ought to be acceptable to him if he were a reasonable person. In other words, if it gives him an equal chance. If it gives him an equal chance and the lottery is fair, I can even impose it on him. So you really don’t need the person’s actual consent; you need principled consent, or implicit consent. And you need a lottery that, in principle, a rational agent, yes, or a rational player, would agree to. And the fact that I’m dealing with an irrational player is his problem; I don’t need to die because of it. So I’ll hold the lottery against his will. Therefore I think that’s the more precise formulation: you don’t need his consent, you need a lottery that a reasonable person ought to agree to. What lies behind this is a principle similar to what Rawls, yes, the well-known philosopher, called the veil of ignorance. The veil of ignorance basically says that I’m supposed to make fair decisions—he speaks mainly about democracy and social decisions—social decisions should be made in a way where we do not see before our eyes the specific people involved. For example—someone actually asked me today, or yesterday, I no longer remember, on the website—what my opinion is about the reasonableness doctrine, the debate now in the Knesset over the reasonableness doctrine. So I told him, look, there is Solberg’s thesis, which the coalition is more or less following, I think—that’s what people say; I didn’t check all the details—but broadly speaking, I read Solberg’s article years ago. But there is Solberg’s narrower, more conservative thesis, that the reasonableness doctrine can apply to administrative decisions but not to decisions of elected officials, not to appointments and the like. They asked for my opinion, so I said: look, in principle, the rules of the game in a democracy should be set behind a veil of ignorance. Meaning, I’m not supposed to see before my eyes the groups or the individuals standing opposite each other here. The rules should be set in a way unrelated to whom they benefit. Or to whoever happens now to be in the coalition and whoever happens now to be in the opposition. You have to set the rules as though there is no coalition and no opposition. Ignore the question of who populates the coalition, who the opposition is, who the prime minister is, who the leader of the opposition is, and so on. Who the players in the arena are and what their roles are. That is called the veil of ignorance. A fair decision about the rules of the game should be made that way. Therefore when you make decisions and say, look, with Bibi as prime minister I am not willing for the court not to have the ability to strike down his decisions on grounds of reasonableness—that is an unfair claim in principle. It’s unfair because if, as a matter of governance, it is fair to act this way and to limit the court’s reasonableness review, then you’re not supposed to take into account the question of who will currently be the victim, or who will gain or lose from this decision. If that decision is proper from the standpoint of fair procedure, then you should accept it even if, at the present political level, it works against your interests. That is, in principle, the veil of ignorance. I’ll just add in parentheses—I told him this is true in principle. Except that here I am not willing, personally, to act under a veil of ignorance for two reasons. First, because the people currently occupying these positions are not people who merely hold a different view from mine—they are corrupt people. In my opinion. Without getting into arguments right now over whether you agree or not agree, it doesn’t matter so much; I’m just presenting the argument. Once we are dealing with corrupt people, it is much more important that there be a reasonableness doctrine so that there is at least some way to balance their actions. Therefore I can’t relate to this as though we have a set of fair players with different positions; in such a case one should act behind the veil of ignorance. But when the players are unfair, then it is unreasonable to demand that I act fairly and thereby enable an unfair player to do things without restraint—so I too will play unfairly in order to balance it. That’s one point. And second, my claim was that the current coalition is itself not acting behind a veil of ignorance. So it cannot demand of others that they act behind a veil of ignorance, because its own actions are also not done in disregard of the players on the field. They pass personal laws, change Basic Laws for the sake of—again, I really don’t want to get into the political argument; I’m talking only about the logic of it, leave the people themselves aside. They change Basic Laws in order to advance someone to the premiership or to serve as a minister—that is completely personal. So obviously if, say, in the Labor Party or in the opposition parties there were someone with two convictions, they would act with all their might to prevent him from being appointed a minister or prime minister. They act to neutralize this, to change the law and allow people who were convicted to serve as ministers or prime ministers or whatever, simply because they are currently in the seat of power. Meaning, they are not acting behind a veil of ignorance, not acting fairly. They are changing the rules of the game in a way that will play in favor of the outcomes they want. That is not a fair game. And therefore I too am not supposed to act behind a veil of ignorance, fairly, while ignoring my own interests. You understand that this is exactly what happened on the ship. What happened on the ship? I basically decide that the earlier letter is the preferable one. Now why did I decide that? Just because I felt like choosing the earlier letter? Because it sounded like the best mode of lottery to me? No—because I know that my name starts with R and his starts with S. Or in other words, I was not acting behind a veil of ignorance. I did not make the decision about the rules of the game in a way that ignores the data about the players on the field. I knew that I begin with R and he begins with S, and therefore I chose that the earlier letter should be preferable. That is a choice made not behind a veil of ignorance. Or in other words, that is an unfair lottery. A fair lottery gives each person an equal chance. An unfair lottery chooses to whom to give better chances while taking into account whom you want to benefit. And that is exactly equivalent to the veil of ignorance—or rather, to not acting behind a veil of ignorance. And therefore this cannot be called a lottery. A lottery is always done behind a veil of ignorance; otherwise it is not a lottery. You can take this very far, into many different discussions. In the column on the website where I dealt with this, I also spoke about the debate between the economic left and the economic right. The economic left and right—when the left, at least in its more extreme approach, wants to distribute all resources, the means of production, money, equally among people according to needs, yes, and in principle equally—and capitalism, yes, the economic right, says no, absolutely not: a person who earned money, that money is his, he deserves it. Here too, sometimes the question of the veil of ignorance arises. Yes, if the rich support capitalism and the poor support socialism, then that’s problematic. Because that basically means you choose the rules of the game according to the result you want. By the way, in the State of Israel the situation is actually almost the reverse. Not entirely, but almost the reverse. The poor support the economic right and the other right, while the rich דווקא support the left. Broadly speaking—as a generalization, of course, it’s not exact—but there is a fairly decent correlation, and many have wondered about the rationality of it. I actually very much appreciate that distribution, because it means people are fair. These are people who basically are not acting in favor of their immediate interest, but truly in favor of what they believe in. Well, maybe in France and in England and in the United States it’s also like that, so that’s a badge of honor for them too. In any case, here too there is some kind of play of the veil of ignorance. Now what about, for example, a lottery in the boat, yes? It has to be done behind a veil of ignorance, I said earlier. What about a canteen of water? Like that Talmudic passage where two people are walking in the desert and in their hands is one canteen of water. Do we also need to hold a lottery there? The person who owns the canteen says: I already held a lottery—look, I am the owner of the canteen and therefore I take precedence over you. Is that an unfair lottery? That is an unfair lottery because you chose ownership as the lottery parameter when you already knew that you were the owner, meaning that you would win that way. So why is it nevertheless correct? And the Talmud says that it is correct: “your life takes precedence,” and Jewish law rules—meaning there is a dispute and the halakhic ruling follows Rabbi Akiva—that your life takes precedence. Why? Because here it simply is not correct to hold a lottery. This is an important point. The point is that in the boat case, or in that example of the boat, it was proper to hold a lottery. If it were possible to divide the boat in two, we would divide it, but you can’t survive with half a boat, and two people cannot survive on the boat, so you divide the chances of surviving by means of the boat. And if you divide them fairly, that is a fair distribution, so you have to hold a lottery. Now one must discuss whether the lottery you propose is fair or unfair. But first of all, the underlying premise is that a lottery must be held. By contrast, in the social-economic context, I deny that a lottery has to be held at all. If I earned money, then that money is mine. If that canteen of water is mine, then it’s not that you deserve it just as much as I do, and we have to divide it and now let’s hold a lottery to divide it fairly. I claim from the outset that there is no need to divide it at all. The water is mine. I’m not claiming that ownership of the water is the lottery. I’m claiming that no lottery needs to be held. Therefore the fact that there is no veil of ignorance here is not a moral flaw. The water is mine and I have the right to save myself; I do not have to divide with you the water that is mine. If the water were ownerless, there would be room to discuss it, perhaps. We talked about this because someone asked whether I can seize it by force or whether a lottery must be held. You can discuss that a bit, but there there was room for the claim that perhaps we should hold a lottery regarding the water. But all that is only because the water belongs to no one and both of us claim it; neither of us has any greater connection than the other to the water. We have to divide somehow, and dividing the water in half won’t help because we won’t survive with half the amount of water, so instead of dividing the water, we divide the chances of winning all the water. Exactly like the boat—you can’t divide the boat, so you divide the chances of winning the boat. Like land that cannot be divided—you divide the chances of winning the land, because you can’t divide the land itself. But in the case of money, yes, and capitalism versus communism, the dispute is really about whether a lottery has to be held at all. In other words, the left or communism claims that the money or the means of production really belong to everyone and therefore should be divided equally. Why on earth divide according to talent, strength, or whatever, or one social-economic position or another? That’s not the veil of ignorance; the distribution should be done fairly, according to needs or something like that, and there you can divide, so there is no need for lotteries. There you can divide the money itself, so there’s no problem. Lotteries are for cases where you have to divide but can’t divide, so you hold a lottery. There you have to divide and you also can divide, so again there is no need for a lottery. What does the right claim? The right claims: you’re correct that this is not a veil of ignorance, but why on earth hold a lottery? There is no need to divide the money. If I earned it, by my talent, then it is mine. That is parallel to a canteen of water that is mine. I am not supposed to divide my canteen of water between two people in order to save them both, or hold a lottery between them. The water is mine. If by my talent I succeeded in producing such products, or money, or whatever, that’s my talent and the money is mine, and therefore there is no reason in the world to hold a lottery. You tell me I am exploiting my talent, my strength, my economic power—true, I am. And you tell me that’s unfair because there is no veil of ignorance? My answer is not that genetics is the lottery, as Eli Merzbach suggested. Here I am, more talented; genetics gave me that, that was the lottery. No—that is not a lottery. Genetics is not a lottery. I claim that there is no need to hold a lottery here because the money is not ownerless money that now has to be divided between us. The money is mine. And if I want, I’ll give you charity, but I do not need to divide the money with you. Therefore there are distinctions here that can sometimes seem rather fine, even though each individual case sounds quite simple, but when you compare them side by side the difference between the cases is not always so clear. And there are situations in which you have to divide and can divide; there are situations in which you have to divide and cannot divide, so you hold a lottery, and there you need a veil of ignorance to hold a fair lottery; and there are situations in which there is no need to divide at all, and then even if you can’t divide, and even if I don’t want to divide, and no lottery is held, and even if I did not act behind a veil of ignorance—so what? No lottery is needed at all. Three kinds of situations, and the question in every such dispute is always: which of the three kinds of situations am I in? The dispute between left and right is whether money resembles a canteen of water that is mine, or resembles two people on a boat where one must push the other to his death. Does one have to divide or not have to divide? That is the dispute. And the dispute is not about whether I am fair or unfair. I don’t have to be fair. That is what the whole slogan of communism, or socialism, really means—that they do not want charity, they want justice. Today they call it distributive justice, yes? What does that mean? There are concepts of distributive justice, but I think the left, or the communist, takes it too far. He claims that basically everything has to be divided equally, and that is what is called justice. Therefore his basic assumption is that distribution is required. There has to be distribution. And if impossible, we’ll hold a lottery; if possible, we’ll divide. The dispute of the capitalist right says: no distribution is required. Charity is not justice. Justice is not to divide my water with you; it is my water. There is no justice at all in demanding that I divide my water with you. And therefore charity is the true justice. If I want to give you water because I have plenty, of course I’ll give you some. That’s perfectly fine, voluntarily. But don’t tell me that I am obligated to supply you with half my water. I’ve spoken in the past, both on the website and here in classes, about various demonstrations, such as the disabled people’s protest, for example, and similar things—people demonstrating over their rights. They basically say: we have rights, our rights are being violated, we are not being given a good enough allowance to live on, and so on. That is an incorrect way to understand reality. They have no rights. No rights at all. Their rights derive from the fact that society undertakes to support them, and that’s perfectly fine—I’m completely in favor. But those are not their rights; those are my obligations. I do not need to divide with them; I do not need to hold lotteries with them; I do not need anything of the kind. True, I have a moral obligation to support people who are in a difficult condition, as charity. But it is not true that justice requires sharing. That is simply not true. Someone who was born and was dealt a difficult hand should complain to the Holy One, blessed be He, about the hand he was dealt. I do not have to bear those consequences. Therefore there is no right or justice that he can demand from me. He can ask me to help him. Perhaps it would be proper that I not even let him ask me, but help him before he asks. Fine, all that is true—but as charity, not as justice. And once again, the dispute is exactly that. The dispute is whether everything belongs to all of us, in which case we have to divide or hold a fair lottery behind a veil of ignorance, and then there is no preference for the rich, the smart, the powerful, the high-status people—they have no preference, because everything must be conducted according to a veil of ignorance. Okay? But if I say that is not true—socialism basically demands that I give up my money. Not divide money—that’s not… As a parable, there is room to talk, yes, about natural resources. Natural resources found in the ground, whatever they are—minerals or various substances that we mine from the earth. Here there is room to say that this belongs to the public as a whole. If someone does business with it and adds value, he should pay a significant portion to the public for using public property. That is perfectly fine, because I did not create those resources through my talent; those are natural resources, and they belong to everyone living in this country, or to whoever it is in whose land they are—never mind that right now. But they belong to everyone who is relevantly an owner with respect to them. Here indeed things should be done behind a veil of ignorance. From that point onward, after you pay me, all the profits you make from it are excellent, because your talent has served you well. If you are talented, you deserve to profit from it. Gas, minerals, phosphates, whatever you want—all these things. But here I do understand the demand for distributive justice, because this is like an ownerless canteen of water. An ownerless canteen of water, which belongs to everyone. Then if you want to take it and use it, you have to pay me for it, or draw lots, or divide it, or yes—here there really is such a demand. This resembles the boat, where two of us are on a boat and I want to push you off. Here the boat belongs to both of us, and you don’t deserve it because you are stronger. There is no reason to assign more rights to the stronger one, to let him survive on the boat. Therefore here a lottery does have to be held—a fair lottery. Okay, that’s enough about this boat dilemma. Now I want to broaden the discussion a bit regarding lotteries. I touched on this a little in previous classes, but I want to make it a bit more systematic. In Jewish law we find lotteries in several contexts. Already in the Torah itself we find lotteries, yes? In Bamidbar it says: “Only by lot shall the land be divided; according to the names of the tribes of their fathers they shall inherit. According to the lot shall its inheritance be divided between the many and the few.” Yes, a lottery has to be held in order to divide the land. Yes, “you shall inherit the land by lot according to your families.” Yes, “this is the land that you shall inherit by lot.” There are several verses that speak about the division of the land being done by lot. There are at least five such verses in the Torah, I think, speaking about lots in the division of the land. Now, Rashi on the Torah, when he describes the process of the lottery, writes as follows: “To the more numerous you shall increase his inheritance.” To the tribe that was more numerous in population they gave a larger portion, even though the portions were not equal, for they divided the portions according to the size of the tribe. Still, they did it only by lot. And the lot was according to the Holy Spirit, as explained in Bava Batra: Elazar the priest was dressed in the Urim and Tummim and would say by the Holy Spirit, ‘If such-and-such a tribe comes up, such-and-such a territory comes up with it.’ And the tribes were written on twelve slips, and twelve territories on twelve slips, and they mixed them in a box. And the prince put his hand into it and took two slips. In his hand would come up a slip with the name of his tribe and a slip with the territory designated for it. And the lot itself would cry out and say: ‘I, the lot, have come up for such-and-such a territory for such-and-such a tribe,’ as it says: ‘According to the lot.’ And the land was not divided by measure, because one territory is better than another, but by valuation: a poor-quality larger area against a smaller high-quality area, all according to value.” Yes, in other words, the lotteries were not according to acreage but according to the quality of the land. In any case, what is Rashi saying here? Rashi says that the lottery was conducted in a rather strange way. In the lottery they wrote on twelve slips the different inheritances in the land, and on twelve other slips they wrote the names of the tribes. Say, they put twelve slips of the tribes into one hat, and twelve slips of the territories into the other hat. Then the prince of a tribe came, put his hand into this hat and took out a slip, and into the other hat and took out a slip. The slip that came out of this hat was always his tribe. Every tribe would draw, but it always came out to be his tribe. Then he took the slip from the other hat, and there it said which inheritance he received.

[Speaker B] So why