Doubt and Statistics – Lesson 32

Table of Contents

• From statistical decision tools to doubt and rules of conduct
• Command and essence in Maimonides, and an explanation of Torah-level doubt versus rabbinic-level doubt
• Expected-value considerations, majority, and a fifty-fifty doubt
• Shevuot 18, menstrual cycles, and a rabbinic warning that cancels a claim of coercion
• Two understandings of the obligation to be stringent in Torah-level doubt: entering a zone of doubt versus neutralizing a claim of coercion
• It began with negligence and ended with coercion, and the distinction from a focused warning
• A dispute among the medieval authorities (Rishonim): is Torah-level doubt requiring stringency itself Torah-level or rabbinic, and the case of a doubtful mamzer
• Sha'arei Yosher, uncertain warning, and Maimonides versus Rashba on the definition of doubt
• Reason versus legal definition, expected value, and the example of the commandment to be fruitful and multiply

Summary

General Overview

The text describes the shift from statistical thinking as a decision-making tool to situations of doubt in which there is no determination, and therefore one acts according to rules of conduct, בראשם the rule that a Torah-level doubt requires stringency, while a rabbinic-level doubt allows leniency. It proposes understanding the rules of doubt as expected-value considerations similar to statistical thinking, and develops a reading of Maimonides according to which, in a Torah-level doubt, the stringency stems from the essence of the prohibition and not only from the command. Later, it uses the passage in Shevuot 18 about menstrual cycles to suggest two ways of understanding the obligation to be stringent: either there is a prohibition on entering a zone of doubt itself, or else one loses the claim of coercion if it later turns out that he transgressed a prohibition. Finally, it presents the dispute among the medieval authorities (Rishonim) as to whether the rule that Torah-level doubt requires stringency is itself a Torah-level rule or a rabbinic one, and brings a model from Sha'arei Yosher that sharpens the gap between Maimonides and Rashba and the possibility that the reason for the rule is tied to expected value even when its halakhic definition is different.

From statistical decision tools to doubt and rules of conduct

A situation is defined as one of doubt when statistical tools, in the sense of decision-making tools, are not relevant. Where there is no determination, rules of conduct in cases of doubt are activated, and the central rule is that a Torah-level doubt requires stringency, while a rabbinic-level doubt allows leniency. These rules reflect an expected-value calculation, and thinking about doubt joins statistical thinking as a kind of calculation of expected gain and loss. He proposes explaining nullification by majority and doubt in such a way that when the cost of stringency is greater than the gain of avoiding prohibition, we do not demand a major sacrifice; therefore, we do not require giving up many kosher pieces in order to avoid one prohibited one.

Command and essence in Maimonides, and an explanation of Torah-level doubt versus rabbinic-level doubt

In every Torah-level Jewish law there is both command and essence, and in fulfilling a commandment there is both obedience to the command and spiritual benefit, while in a transgression there is both rebellion against the command and spiritual harm. In a Torah-level doubt, the question is whether the obligation to be stringent stems from the command or from the essence, and proof is suggested from the rule that a rabbinic-level doubt allows leniency, because in rabbinic law there is only command and not essence. The example is that poultry cooked with milk is not, in itself, a problematic food, and that is why the Torah does not prohibit it, whereas meat cooked with milk is problematic; the obligation in rabbinic law is to listen to the Sages. From here we learn that when there is doubt whether there is a command at all, this is not rebellion in a situation that is unclear, and therefore in rabbinic-level doubt one may be lenient, even though one who is stringent is praiseworthy.

Expected-value considerations, majority, and a fifty-fifty doubt

In a Torah-level doubt, the main concern is not the dimension of the command but the fear of the harmful essence of the prohibition, as in the concern that the meat may be pork. The obligation to be stringent is explained as an expected-value consideration because there is a fifty percent risk of falling into prohibition, and in such a case one may not take the risk. When there is a majority, for example sixty percent kosher and forty percent pork, the expected loss does not justify demanding abstention, and therefore one may be lenient; this is why we follow the majority even in Torah-level law. The laws of doubt are presented as an expression of a calculation of expected gain and loss, similar to the understanding of nullification by majority.

Shevuot 18, menstrual cycles, and a rabbinic warning that cancels a claim of coercion

It is stated that one may not have marital relations with his wife when she is a menstruant, and in addition there are rabbinic laws of menstrual cycles that require abstention close to the expected time of bleeding, for example after a presumption has been established based on three occurrences on a certain date. The Talmud in Shevuot 18 discusses a man who had relations with his wife close to her expected cycle, and then during the act she saw blood, and it is determined that he is not under coercion but rather is considered inadvertent and is liable to bring a sacrifice. A position is presented from later authorities (Acharonim) according to which one who violates a rabbinic prohibition loses the claim of coercion even with respect to a Torah-level prohibition that only became clear afterward; but Kli Chemda and other later authorities distinguish and argue that this is true only when the rabbinic prohibition is entirely intended to warn against entering a Torah-level prohibition. Rashba on Shevuot 18 sharpens the point that ignoring the rabbinic warning directed at that same Torah-level prohibition prevents a claim of coercion, and this is connected to the consideration of presumption and three occurrences, even though it is said that this is not simply statistics but rather a presumption, which is a decision-making tool.

Two understandings of the obligation to be stringent in Torah-level doubt: entering a zone of doubt versus neutralizing coercion

Two ways are proposed to understand the meaning of the obligation to be stringent in a Torah-level doubt. One approach holds that taking the risk itself is a prohibition, called entering a zone of doubt; therefore, even if it turns out that the piece was kosher, he still transgressed a prohibition by taking the risk itself, and if it turns out that it was pork, he has also transgressed the prohibition of pork. A second approach holds that there is no prohibition in entering a zone of doubt, and one is allowed to take the risk, but if in the end it turns out that he ate something prohibited, he will not be able to claim coercion, because he ignored a warning about the possibility of stumbling. The question is raised why we do not apply similar logic in rabbinic-level doubt as well, and the answer given is that in rabbinic law one is permitted to take the risk either because the matter is lighter or because it involves only command and not essence.

It began with negligence and ended with coercion, and the distinction from a focused warning

The discussion cites the passage in Bava Metzia 42 about a hut in the reeds, concerning a custodian who hid money in a hut in the forest—a good safeguard against thieves but negligent with respect to fire—and in the end the money was stolen; the issue discussed there is a case that began with negligence and ended with coercion. It is said that the case of menstrual cycles is similar in idea but stronger than that, because there the rabbinic prohibition is a direct warning against that very Torah-level prohibition that may actually materialize. It is determined that specifically when the rabbinic prohibition is a warning against the transgression itself, ignoring it removes any claim of coercion regarding the Torah-level prohibition that materialized, unlike situations in which the negligence and the coercion are not about the same risk.

A dispute among the medieval authorities (Rishonim): is Torah-level doubt requiring stringency itself Torah-level or rabbinic, and the case of a doubtful mamzer

It is stated that most medieval authorities (Rishonim), such as Rashba and Ran, hold that the rule that a Torah-level doubt requires stringency is itself a Torah-level rule, whereas according to Maimonides it is a rabbinic rule. An objection to Maimonides is brought from the Talmud in Kiddushin 73 through the beginning of 74, where a doubtful mamzer is permitted by Torah law and only rabbinically did they impose a higher standard regarding lineage; from this it seems that a special source is needed in order to be lenient in a case of doubt. In Maimonides' response it is said that the Talmudic discussion of a doubtful mamzer is his source for the idea that Torah-level doubt is lenient by Torah law, and the stringency in cases of doubt is an enactment of the Sages. It is argued that the form of the derivation—"the Merciful One said: a definite mamzer, not a doubtful mamzer"—looks like reasoning rather than a unique scriptural derivation, and therefore that same reasoning would seemingly apply also to pork, forbidden fat, and forbidden sexual relations.

Sha'arei Yosher, uncertain warning, and Maimonides versus Rashba on the definition of doubt

Passages are cited from the section on doubts in Sha'arei Yosher, Gate One, chapter 3, about a thirteen-year-old who ate forbidden fat and does not know whether he was already legally an adult. According to that view, he is punished if it is discovered that he was in fact an adult, because he knew he was doing an act against the will of the Merciful One. It is said that even if, according to Maimonides, "by Torah law doubt is permitted," the substance of the prohibition does not change, and if he struck the prohibition, he performed an act against the will of the Merciful One; the question of punishment depends on the dispute whether an uncertain warning counts as a valid warning. In Sha'arei Yosher it is said that according to Rashba there is an "additional prohibition" of entering a zone of doubt, and that is a definite prohibition even if in the end he did not violate the underlying prohibition itself. For Maimonides, by contrast, there is no additional prohibition because "the Merciful One did not warn about this"; the choice is left in a person's hands to enter the doubt, but if he ends up violating the prohibition he will receive his punishment, and he has no claim of coercion or inadvertence, because he knew the doubt was evenly balanced.

Reason versus legal definition, expected value, and the example of the commandment to be fruitful and multiply

It is said that the gap between Maimonides and Rashba may be a gap in halakhic definition and not necessarily in the underlying reason, because even if the legal definition is a prohibition against entering a zone of doubt, the reason may still be the concern for the expected value of the harm involved in reaching prohibition. An example is brought from the commandment to be fruitful and multiply, where the reason is the outcome of having a son and a daughter, but the halakhic definition may be phrased as a commandment of action, because the result is not in human hands. An alternative possibility is suggested for understanding Rashba: as an obligation of fear of Heaven that is not directly connected to expected-value considerations, but rather to the very lack of recoil from risk. In conclusion it is argued that the question of "make a fence around the Torah" fits Maimonides as a rabbinic basis, and a comparison is tossed out to the idea of "you shall be holy" and "a degenerate within the permission of the Torah" as a model in which the very degeneracy is objectionable even without concern for sliding into prohibition.

Okay, let’s begin. Last time, in the last few classes, we moved from the topic of doubt from the topic of statistics to the topic of doubt. I said that where statistical tools are no longer relevant—and when I say statistical tools, I mean decision-making tools, not necessarily statistics in the narrow sense; we talked about that—then we define the situation as one of doubt. I explained that this is where the rules for conduct in cases of doubt begin to come in. Where there is no decision, there are rules of conduct. The main one is: a Torah-level doubt is treated stringently; a rabbinic-level doubt leniently. We talked a bit about the meaning of these rules, and I said that these rules reflect, at least in my view, some kind of expected-value consideration. And in that sense, the topic of doubt joins the statistical topic, and overall we’re still dealing with a certain kind of statistical thinking. And I tried to show how this is really about expected-value considerations. I said, for example, that nullification by majority, or doubt, applies where the price you pay is not greater than the prohibited gain you avoid. And in such a case you are required to be stringent. But where there is nullification by majority, there they don’t require you to give up many kosher pieces of meat just to avoid eating one non-kosher piece of meat. That’s one possible suggestion; we saw it from the law in the topic of something that will later become permitted, but in the bottom line we concluded that this is really some kind of expected-value calculation or expected-value considerations. After that I spoke a bit, in light of that determination, about how to understand the laws of doubt in Maimonides. We talked about the fact that in every Torah-level Jewish law, whether a positive commandment or a prohibition, there is a command and there is an essence. And when I perform a commandment, I obey the command of the Holy One, blessed be He, and I also perform some action that is supposed to have some kind of spiritual benefit. And if I commit a transgression, then not only have I rebelled against the command, but there is also an action here that brings some sort of spiritual harm. And then I talked about what happens in a case of doubt. In a case of doubt, what is it that obligates me to be stringent—I’m talking now about a Torah-level doubt—what obligates me to be stringent? The command involved, or the essence involved? And I tried to bring proof from a rabbinic-level doubt, that rabbinic-level doubt is treated leniently because in rabbinic laws there is no essence, only a command. One must heed the voice of the Sages, but poultry with milk is not inherently problematic food; that’s why the Torah does not forbid it. Only meat with milk is problematic. But there is a command of the Sages, and the Torah expects us to obey the command of the Sages. Therefore rabbinic laws are laws that contain only a command and not an essence. And then, if I see that rabbinic-level doubt is treated leniently, the meaning is that when I have doubt whether there is a command here or not, I may be lenient. And therefore with a rabbinic-level doubt one can be lenient, and we talked about how although I am permitted to be lenient, if someone wants to be stringent, blessing should come upon him. There may indeed be some value in being stringent here, but that’s another discussion; we dealt with it earlier. From this we understand that when I have doubt regarding the command, then rebellion in a situation where it is unclear whether there is a command is not rebellion, and therefore with a rabbinic-level doubt one can be lenient. From here I infer what happens with a Torah-level doubt. The command dimension of Torah law should not be what troubles me. Why? Because that’s what we saw in rabbinic law: if I have doubt whether there is a command or not, I don’t have to worry about that. But in Torah law, what there is beyond the command—what there is beyond rabbinic law—is also the essence. And when I have doubt whether this meat is pork or not pork, kosher meat or pork, I am supposed to be stringent because of the concern that perhaps this is pork, simply because eating pork is something problematic. The essence here is what should trouble me, not the command, because the command exists in rabbinic law too. And therefore the conclusion I reached is that treating a Torah-level doubt stringently is simply due to expected-value considerations, as I said earlier. What does that mean? There is a fifty-percent chance here that I am ending up eating something prohibited. And in such a situation I may not take a fifty-percent risk. A risk of sixty percent is permitted—again, various expected-value considerations—because there is a side that it is not prohibited, and then I need to forgo that thing. So just as there is nullification by majority: if I have two permitted pieces, I don’t have to give them up to avoid eating one prohibited piece, but one permitted piece I do have to give up. Therefore, where there is a majority, it nullifies the prohibition, but if there is no majority, it does not nullify the prohibition. And the same thing in a case of doubt. If I have doubt regarding a certain piece whether it is pork or not, then if the doubt is fifty-fifty, I cannot eat it. Why? Again, in terms of expected-value considerations, the factors are fifty percent that it is pork and fifty percent that it is kosher. So there is a fifty-percent chance that I am giving up kosher meat, but if it is fifty percent, I am required to give it up because there is a fifty-percent chance that it is pork. But if I have sixty percent that it is kosher meat and forty percent that it is pork, in such a state the expected gain, or expected loss if you prefer, does not justify requiring me to give it up, and therefore I can be lenient. And therefore we follow the majority even in Torah law, and again what this means is that there is some kind of expected-value calculation here. Basically I calculate the expected gain or expected loss, and the laws of doubt are an expression of expected-value calculations. That’s essentially the claim. Now I want to go one step further and ask what is the meaning of this obligation to be stringent in a Torah-level doubt. There is a Talmudic text in Shevuot 18a. The Talmudic text says there—maybe a short introduction—of course, a man is forbidden to have relations with his wife when she is a niddah, when she sees blood. Now there are laws called menstrual cycles, which are rabbinic laws. What does that mean? There are times that are set times for the woman to see blood, and therefore at those times the Sages say that even if the woman has not seen blood, we require you to be stringent and refrain from marital relations; we require both of you to refrain from marital relations. Someone here raised a hand, I don’t know how to interpret that. Whoever wants to ask should just jump in, not raise a hand. I don’t know what that thing is. So in what is called close to the expected cycle, or cycle times, in such a situation marital relations are forbidden. For example, if the woman saw blood three times on a certain date in the month—say always on the twelfth of the month—then also on the twelfth of the next month I am supposed to be concerned and maintain separation, not have marital relations, and various separations required close to the expected cycle. And according to Jewish law this is a rabbinic law. There is a dispute in the Talmudic text, but Jewish law rules that it is rabbinic. Now what happens? The Talmudic text in Shevuot 18a asks and discusses what happens if a man has relations with his wife close to the expected cycle, on the forbidden date, but she has not seen blood, so he has violated only a rabbinic prohibition. Now suddenly, in the middle, she sees blood. Now the moment he is with her, having relations with her when she has seen blood, this is already a Torah prohibition: niddah, liable to karet. But in that respect he is under compulsion, because after all he did not know that she was seeing blood that day. It came upon him unexpectedly—upon them, again I’m talking about both of them—it came upon them unexpectedly. The prohibition—true, he violated a rabbinic prohibition, but it’s only a rabbinic prohibition. On the Torah level there is no prohibition here, and therefore on the Torah level I should view him as under compulsion, seemingly. Why isn’t this a case where it began with negligence and ended in compulsion? What? Why isn’t this a case where it began with negligence and ended in compulsion? So I’ll get to that in a second. Maybe the question is whether this is exactly a case where it began with negligence and ended in compulsion, but the logic is somewhat like that. The Talmudic text in Shevuot indeed says that in such a situation he is not considered under compulsion; he is considered unintentional, meaning he must bring an offering. Why is he not under compulsion? On the face of it, on the Torah level there is no prohibition at all. So what if he violated a rabbinic prohibition? There are later authorities who wanted to claim that anyone who violates a rabbinic prohibition thereby neutralizes his claim of compulsion on the Torah level. I don’t know, someone who carries four cubits in a karmelit and then it turns out to him that this place is actually a public domain, and then he has violated a Torah prohibition. Again, he would not be considered under compulsion, even though on the Torah level a karmelit is only a rabbinic prohibition—carrying in a karmelit. On the Torah level he actually did a permitted act, so he is under compulsion. The Talmudic text says no—sorry, not the Talmudic text—those later authorities say no, he is not under compulsion; he is unintentional. He may not be deliberate, but he is not under compulsion. And they derive this from the Talmudic text in Shevuot here. But Kli Chemdah and other later authorities want to claim that this is not correct, not precise. It is true only where the rabbinic prohibition itself is designed to warn against entering into a Torah prohibition. Meaning, after all, the rabbinic prohibition of cycle times, that one must keep away from his wife at these times close to the expected cycle, is because of the concern that she may see blood and he will enter into a Torah prohibition. It is not just some random rabbinic prohibition. If I ate poultry with milk and as a result of that, I don’t know what, I had relations with my wife when she saw blood, I do not stop being under compulsion because of that. So what if I violated a rabbinic prohibition? If the rabbinic prohibition is the sort whose whole point is to warn me that I may violate a Torah prohibition here, that’s something else. Because in essence I did not listen to the warning about this very Torah prohibition that I ended up violating. So how can I say that I was under compulsion? In other words, in this place, when the Sages tell me, listen, keep away from your wife because she may see blood and then you will violate a Torah prohibition, I ignored their warning. So yes, I violated a rabbinic prohibition, but if she actually saw blood and now I had relations, then the fact that I ignored their warning does not allow me to claim that I was under compulsion in the relations I had, because they warned me against that very thing and I ignored the warning. So the point because of which I do not have a claim of compulsion here is not that there was a rabbinic prohibition, not because I violated the rabbinic prohibition, but because the whole purpose of that prohibition was to warn me, and since I ignored the warning I cannot say that I was under compulsion. They asked here about the example of karmelit, so it’s true that there is a bit of room for hesitation also in the example of karmelit, but I think it’s not the same thing. Because in the example of karmelit, the reason they forbade me to carry in a karmelit is lest I carry in some other place that is a public domain, that I might get confused. That’s why I deliberately gave a different example. I gave the example where I carry in a karmelit and then it turns out that I was mistaken: this very place is actually a public domain, not a karmelit. I simply didn’t know. Okay? That’s something else. The prohibition of karmelit was not made for that. The prohibition of karmelit was made to warn me so that I not come to carry in a Torah-level public domain. Okay? So in my opinion that is not the same thing, but again, it’s not important; that’s only an example, so I won’t go into it here. So what are we actually learning? The Rashba there in Shevuot 18 sharpens this further, but actually this is the plain sense of the Talmudic text. And what we basically learn from here is that if the Sages warn me against a Torah prohibition, although violating their warning is only a rabbinic prohibition, still if this particular rabbinic prohibition is really a kind of warning, then it has significance on the Torah level as well. I cannot say I was under compulsion when I committed the Torah transgression because they warned me and I ignored the warning. That is the claim. This rabbinic warning is also statistics. Right? Here statistics come in. Right, right. A certain kind of statistical consideration. Again, that’s the question. Cycle times are one of the examples of what is called a three-time presumption. There are a number of things in the Talmudic text where after three times a presumption is established. For example, a woman who sees blood on a fixed date in the month, then after three times there is a presumption that this date is set for her seeing blood. Or by intervals, if the gap between one time and the next is the same gap, and so on. Or an ox that gores three times—then there is a presumption that now it is a forewarned ox and one must guard it more carefully. All sorts of things. Someone whose brothers died because of circumcision—yes, if three of my children died when I circumcised them, then with the fourth child I am no longer supposed to circumcise him, because there is a presumption that these children die if they are circumcised, and so on. There are three-time presumptions, quite a few examples of this. It is not at all simple that this is statistics. Some argue that this is a law, not necessarily in the statistical sense, because why specifically three times? And what if there is no connection between those three times? Then why assume that those three times will also materialize a fourth time? I think we talked about this in the previous series where I discussed inference from reality, so it seems to me I talked about it at some length. So I’m just reminding you that I am not entirely sure this is statistics, but it is somewhat like a decision rule, some kind of presumption; in that sense that’s true, it belongs to the first part of the series. But returning to our matter—we are now in the laws of doubt—this discussion there in the Talmudic text in Shevuot opens the door to ask ourselves what the laws of doubt mean. When Jewish law tells me that I must be stringent in a Torah-level doubt, what exactly does it mean? This can be understood in two ways. The first possibility is to say: once there is a situation of doubt, you may not take the risk. The taking of the risk itself is a prohibition. According to this, what happens? I have a piece of meat, I don’t know whether it is pork or kosher meat, a doubt. I am supposed to be stringent. I ignored that, I ate the piece, and then a witness came and told me it was pork—no, it was kosher, sorry. What now? According to the formulation I just proposed, since the prohibition is on entering or taking the risk itself, in the language of the later authorities this is called entering the house of doubt. I have essentially entered the house of doubt, and entering the house of doubt itself is a prohibition. And it’s like a transgression in its own right—you don’t violate the eating, but rather the fact that… there is a prohibition against taking risks. Okay? Basically, the obligation to be stringent in a Torah-level doubt is a prohibition against taking risks. This is really some kind of duty to be God-fearing, let’s call it that. And half a measure? If you take—yes, but it’s not exactly half a measure, because with half a measure, plainly speaking, it is the same prohibition of eating, just of the full measure. There’s discussion about that too among the later authorities, but straightforwardly that is truly the prohibition of pork itself. But here the claim is that it is not the prohibition of pork at all. I am not troubled by the question of eating pork, and therefore this prohibition exists even if it turns out that I did not eat pork. Why? Because the prohibition is on taking the risk, not on the fifty-percent chance that you’ll eat pork. The point is not that I need to fear the prohibition of pork, but that the very fact that I took the risk means I am not God-fearing, that the chance of violating a prohibition does not deter me, does not frighten me, does not shake me. So this is some sort of duty to be God-fearing, let’s call it that. That is one side. And if it turns out that it was pork, then did you violate two prohibitions? Right. You violated two prohibitions. The second prohibition may be one you violated under compulsion, the Torah prohibition, but the rabbinic prohibition you certainly did violate; you violated a rabbinic prohibition. And is that like with one who incites? What? Is it like with one who incites, that if you incite someone and in the end he does not commit the transgression… Regarding incitement I had a very, very similar discussion. Yes, I was there. If I incite someone and in the end he does not commit the transgression, did I still violate the prohibition or not? So here too it is exactly the same way. That’s one formulation. A second formulation is that there is really no prohibition at all on entering the house of doubt. You want to take the risk? Take it. But know that if in the end it turns out that you ate pork, you will not be able to claim that you were under compulsion. You can’t say you were under compulsion. They warned you, they told you, look, there is a fifty-percent chance you will eat pork, and you took the risk. If you take the risk, fine—if you profited, you profited—but you are taking the risk on the understanding that if not, if it turns out that you did commit a prohibition, you will not be able to claim in your defense that you were under compulsion. This formulation can really lead us to a situation in which I violated the Torah prohibition of pork, but the fact that I took that risk is not a rabbinic prohibition or a Torah prohibition in itself. Rather, the obligation to be stringent in cases of doubt is not defined as a rabbinic prohibition—or not rabbinic, but a prohibition in its own right. According to Maimonides it is rabbinic, according to others it is Torah-level—but it is not defined as a prohibition in its own right. It is defined as the neutralizing of the claim of compulsion. I have no defense that I was under compulsion; someone who ignores warnings cannot say he was under compulsion. Okay? So in this context—sorry, I don’t understand what room there is for compulsion here at all. Why do we take it into account, why would this be called compulsion? There is a doubt. Suppose I ate something, suppose I ate a piece of meat and it turned out to be pork. I didn’t know. But there is a doubt, from the outset there is a doubt about this thing. Once there is a doubt, then here it depends. There was room to say: doubtful is doubtful; I still do not know that this thing is pork. They tell you: no, once there is a fifty-percent chance that it is pork, you cannot say “I don’t know.” And therefore you have no claim of compulsion—that is exactly the argument. What you’re asking is exactly what I am explaining. That is the claim. Therefore one must be stringent in a Torah-level doubt. One must be stringent because if you fail, you will not have available to your credit the claim that you were under compulsion. I don’t understand why we even need to get to that argument in order to say that you have no claim of compulsion. Because from the outset it doesn’t begin. There is a doubt before me; I have no possible way to claim that I was under compulsion. Why? Because there is a doubt. Who said one must be concerned about doubts? Who said that a fifty-percent risk is a risk I am not allowed to take? Okay, so maybe I would tie that to this dispute. In the end Jewish law really tells me no. Meaning, you are right. You are just asking why we need Jewish law’s instruction. We need Jewish law’s instruction; it is not trivial. Okay, I would understand better relating to it, even assuming that the side of compulsion gets off the ground, if one says this according to one who rules, one who holds that Torah-level doubt treated stringently is only rabbinic. Then it is less necessary to guard against the doubt. You’re reversing the order. The question whether Torah-level doubt treated stringently is Torah-level or rabbinic is the result of our discussion, not the assumption of our discussion. I am trying to explain why people say that a Torah-level doubt is treated stringently, whether rabbinic or Torah-level is not the issue right now. One possibility is they say it because there is a prohibition on entering the house of doubt. A second possibility: no, it only means you have no claim of compulsion regarding what you did. Now, about that itself one can discuss whether that principle is a rabbinic principle or a Torah-level principle. I am not assuming that principle and then asking what happens; on the contrary, I am trying to explain why such a principle exists. Okay? So the claim that emerges, in light of the Talmudic text in Shevuot, is that perhaps the obligation to be stringent in cases of doubt is not a prohibition in itself at all. It only neutralizes the claim of compulsion that could have stood in my defense if it turns out that I committed a prohibition. Okay? And then in practice, according to that side, if I took the risk and in the end it turns out that it was kosher meat, then nothing happened. I took the risk—maybe I’m not some great God-fearing person, but fine—I took a risk, I gambled and I won the gamble. Okay? Rabbi, if that is the reasoning behind treating a Torah-level doubt stringently, why don’t we apply it also to a rabbinic-level doubt? Why don’t we say that rabbinic-level doubt should be treated stringently? Because it neutralizes your claim that you were under compulsion—you were not under compulsion—yet instead we say that rabbinic-level doubt is treated leniently. With rabbinic law they tell me that regarding rabbinic prohibitions one may take the risk. And why exactly? Because it is lighter. Or because it is not an essential prohibition, only on the person and not on the object. However you explain it. Maybe one more remark on what I think you also, Elihav I think, remarked earlier: “it began with negligence and ended in compulsion.” Why did I somewhat qualify that? I said this is not exactly “it began with negligence and ended in compulsion,” although it is similar. Why? Because in “it began with negligence and ended in compulsion” we are speaking about a situation—yes, the Talmudic text in Bava Metzia 42a, the Talmudic text of the hunters’ hut. The Talmudic text says there that someone received money for safekeeping, a bailee, and he hid it in a hunters’ hut in the forest. Now no thief goes to a hunters’ hut in the forest to look for money. No one imagines that money would be found there. Therefore that is excellent protection against thieves, to put the money in a hut in the forest. But there is concern that a fire may come. Against fire that is poor protection, because a fire can break out in the forest and then my money will be burned. Now a person hid the money in the hut, the hunters’ hut, and a fire broke out. If a fire broke out, then he is negligent, because he did not protect against fire, and that is exactly what happened. But if a fire did not break out, and in the end thieves came, then this is a dispute in the Talmudic text, and it is the dispute about one where it began with negligence and ended in compulsion. Why? Because he was negligent in that he put it in the hut due to the concern about fire, but what happened in the end was compulsion—the thieves. Okay? In such a case there is a dispute in the Talmudic text whether one where it began with negligence and ended in compulsion is liable or exempt. In Jewish law we rule that he is liable. Okay? Why do I say this is not the same as our case? Think about rabbinic cycle times or a rabbinic-level doubt. The compulsion is not related to the negligence? The compulsion is not related to the negligence at all. It is related only in the negative sense that if I had not committed the negligence, the compulsion would not have happened. True, if I had not put it in the forest, then the thieves would not have come either, but that doesn’t matter, because the theft as such is compulsion. And therefore the rabbinic prohibition—not rabbinic prohibition, but the initial prohibition not to put that money in the forest—is not a prohibition because thieves may come, but because a fire may break out. Now in the end thieves came. If it were a prohibition lest thieves come and in the end thieves really came, that would resemble what happens here. Like what I told you with those later authorities on cycle times. There are later authorities who want to say that since I violated a rabbinic prohibition at the beginning, I have no claim of compulsion regarding the Torah prohibition that came later in any situation where I violated a rabbinic prohibition. And to that Kli Chemdah says no, not in every situation. Only where the rabbinic prohibition is meant to warn you about the Torah transgression you may come to violate. In such a place, if you violated the rabbinic prohibition, the whole idea is that you ignored the warning of the Torah prohibition, and regarding that you cannot say you were under compulsion concerning the Torah prohibition. So basically I am saying the same thing here. “It began with negligence and ended in compulsion” is similar to what those later authorities say about cycle times. Namely, that there is really no connection between the negligence you committed, which was because of the fire, and what happened in the end, which was compulsion. In our case it is something stronger. In our case, even according to the one who says “it began with negligence and ended in compulsion” is exempt, here he would still be liable. Why would he be liable? Because here the whole point of doubt is precisely to warn you that you may reach a Torah prohibition, and what happened in the end? You really did reach a Torah prohibition. “What you feared has come upon you,” yes? What they warned you about is exactly what happened. So how can you then say that you were under compulsion? Therefore it is not exactly similar to “it began with negligence and ended in compulsion,” although the idea may be a bit similar. One could say that “it began with negligence and ended in compulsion” is an extension of the principle found here, and that is also why there is a dispute about it. Anyway, those are the two possibilities for understanding this law that a Torah-level doubt is treated stringently. Now, I already mentioned that there is a dispute among the medieval authorities (Rishonim) as to whether this rule—that one must be stringent in a case of doubt—is itself a Torah-level rule or a rabbinic rule. The Rashba and the Ran and other medieval authorities (Rishonim), most of the medieval authorities (Rishonim), say that it is a Torah-level rule. According to Maimonides it is a rabbinic rule. An interesting remark on this issue, which may also be connected somewhat to the previous discussion: many raise a difficulty on Maimonides from a Talmudic text in Kiddushin 73 or the beginning of 74 there. The Talmudic text says there that a doubtful mamzer is permitted; he is not a mamzer. One may be lenient regarding a doubtful mamzer on the Torah level. Rabbinically, they applied a special stringency in matters of lineage, and therefore they nevertheless prohibited it, but on the Torah level it is permitted: a doubtful mamzer is treated leniently. Okay? So several commentators say—the Shev Shma’teta, in the first section, talks about this, and Pnei Yehoshua and others talk about it—that this is difficult for Maimonides from that Talmudic text. Why? Because from that Talmudic text we see that a special source is needed to teach me that a doubtful mamzer is treated leniently. But according to Maimonides, a Torah-level doubt is treated leniently in all areas; only the rabbis said to be stringent. But on the Torah level, a doubtful prohibition is treated leniently, so why do I need a verse to tell me that a doubtful mamzer is treated leniently? And rabbinically there is an obligation to be stringent even regarding a doubtful mamzer, so what is special about a doubtful mamzer? It is exactly like any other Torah-level doubt. So maybe because most relations are with the husband? Maybe one can use that? One can use the principle that most relations are with the husband. Most relations follow the husband—no, that’s something else. If most relations are with the husband, then you don’t have a doubtful mamzer. So not really—but I’m talking about a case where it really is doubtful. I found an abandoned infant and I don’t know where he is from, what his source is, so I have a doubt whether he is a mamzer or not, for the sake of discussion. I don’t know who his father is; that itself is my doubt. Okay? So perhaps he himself learns it from there? What? So perhaps he himself learns it from there? Right, so that’s how various commentators challenge him. But in a responsum of Maimonides—and commentators often don’t know Maimonides’ responsa—in a responsum Maimonides says that his source is from there. That Talmudic text of doubtful mamzer is his source. Not only is it not difficult for him, it is the source from which he learned the idea. He basically understood that this law of doubtful mamzer is not an exceptional law. It does not come to teach that doubtful mamzer is different from an ordinary doubt. No, it is the source for the law that a Torah-level doubt is treated leniently. From doubtful mamzer we learn that a Torah-level doubt is treated leniently. I would say even more than that: when one looks at the Talmudic text’s derivation regarding doubtful mamzer, there is really no derivation at all. The Talmudic text says, “The Merciful One said: a certain mamzer, and not a doubtful mamzer.” Because it says “mamzer.” Fine, but it also says “pork”; what does that have to do with anything? So what if it says “mamzer”? How do you learn from the verse that says “mamzer” that a doubtful mamzer is permitted? You can see that the Sages understood this as a rationale, not an exegesis. The rationale says that if a mamzer is forbidden, a doubtful mamzer is not forbidden. But that is also true for pork, and true for anything at all. There is nothing special about mamzer here, there is no special verse, there is nothing. Just from the fact that it says “mamzer,” the Sages say: okay, but not a doubtful mamzer. Well then, the same thing: it says pork, but not doubtful pork. It says forbidden fat, but not doubtful forbidden fat. Sexual prohibition, but not doubtful sexual prohibition, and so on. So all these things—basically from the nature of the derivation concerning mamzer one can see that this is not really a derivation, but rather some rationale saying that on the Torah level, a doubt is treated leniently. The Sages come and are stringent and tell me: you must be stringent. But on the Torah level, the doubt is treated leniently. And what is the idea behind that? The idea behind it is exactly like with a rabbinic-level doubt, as they asked me earlier. Even with a Torah-level doubt, if it is fifty percent, you are allowed to take the risk. Fine—and if in the end you still fail, you have a claim of compulsion because you were allowed to take the risk. The Sages come and say no, you may not take the risk rabbinically, and therefore the Sages determine that one must be stringent in a Torah-level doubt. But that obligation to be stringent in a Torah-level doubt is itself a rabbinic obligation. Okay? And this is exactly because of that tension. According to Rashba, the point is that treating a Torah-level doubt stringently is a rule that somehow—maybe it can even have some source or another—but it is a rule that the Torah instituted. According to Maimonides—Maimonides also agrees, meaning even according to Rashba, were it not for such a rule, I would be lenient. I need a rule that prohibits doubts, because otherwise I would be lenient. Maimonides says: I do not see a source for this rule. On the contrary, I see a treatment by the Sages that in cases of doubt I can take the risk, like a doubtful mamzer, and therefore my rule is that a Torah-level doubt is treated leniently. Rabbinically they required me to be stringent in a Torah-level doubt, but in principle I can be lenient. Okay? So did he necessarily understand that the prohibition is entering the house of doubt? Wait, I’m getting there in just a second. That’s where I’m heading. A remark about Rashba: there was room to say otherwise. Regarding Rashba one could say—not because you are taking—it depends on how Rashba understood it. If Rashba understood that there is some special rule that Jewish law, that the Torah, innovated, that one must be stringent in cases of doubt, then basically he too agrees that I am allowed to take the risk, it’s just that the Torah innovated that one must be stringent in cases of doubt, and perhaps it really is a prohibition on entering the house of doubt and not the neutralizing of the claim of compulsion. But one could also understand that according to Rashba this is not a rule the Torah innovated, but a rationale that says if you have a fifty-percent chance of violating a Torah prohibition, clearly you may not take the risk. There is no need for the Torah to innovate that; that is the bare minimum of being God-fearing. So if you have a fifty-percent chance of violating a Torah prohibition, then be careful and do not take that risk. Therefore there is—and if I understand Rashba that way, then Rashba too may well be working with expected-value considerations, and basically the prohibition is not entering the house of doubt but really the claim is that this is the prohibition of eating pork. Okay? Maybe. I copied here two passages from Sha’arei Yosher, from the section on doubts, which is the first gate, chapter 3. I’ll share the screen for a moment. “Therefore it seems to me, in my humble opinion, that according to what we explained above regarding a thirteen-year-old boy who ate forbidden fat, that we punish him afterward even though he did not know whether he had been warned regarding eating forbidden fat. In any case…” because he is thirteen, but he does not know whether he is legally an adult; it is not yet certain that he has produced the two hairs. So he is of doubtful majority. He ate forbidden fat. Rabbi Shimon Shkop says we punish him. Why? It’s a doubt—maybe he is a minor and not liable to punishment. So he says: “Even though he did not know whether he had been warned regarding eating forbidden fat, in any case, since he knew he was doing an act against the Merciful One, he is considered fully deliberate,” of course if it turns out he was an adult. Meaning, he was in doubt, but in the end it became clear that he really was an adult. At the time of the act he did not know—if he had known there would be nothing to discuss. If he did not know, but the truth is that he really was an adult, since he knew he was doing a problematic act, we punish him. “So too we can say in every doubtful prohibition, according to the one who says that a doubtful warning counts as a warning.” He is referring to doubtful warning—when someone comes to do an act where there is doubt whether it is forbidden or permitted, in order to punish someone there must be warning. Now when you have a doubt, I cannot really warn him. I cannot tell him, listen, if you eat pork you are liable to lashes, because it is not clear that this is pork and it is not clear that he is liable to lashes. So there is a dispute in the Talmudic text whether a doubtful warning counts as a warning or not. Okay? Now if a doubtful warning counts as a warning—that’s what he says here, according to the one who says it counts as a warning—then one can punish him even though what does warning have to do with it? He was still in doubt. Right, he was in doubt, but in the end it turned out that he took an unjustified risk. He violated a prohibition. We punish him afterward. “Even if we say that on the Torah level doubt is permitted,” like Maimonides, “for as we already explained, even if on the Torah level doubt is permitted, the essence of the prohibition has not changed. And if he indeed encountered the prohibition, then by his hand there was done an act against the will of the Merciful One. The Torah only warned regarding certainty and not regarding doubt, because there is no one to warn…” he does not know that there is a prohibition here. “But before Heaven it is revealed that he committed a transgression.” The Holy One, blessed be He, basically knows that here he committed a transgression. So on the principled level he did commit a transgression. “And just as the body of the prohibition did not change, so too the punishment for the transgression did not change either, if only the doer was deliberate at the time of the transgression.” He says that regarding punishment as well, on the principled level he certainly violated a prohibition. There may be room to hesitate regarding punishment. Why? Because to punish, it is not enough that you violated a prohibition; you must also have received warning regarding the prohibition. Here there was doubtful warning, because I did not know whether I was an adult or not an adult. He says, but according to the one who says doubtful warning counts as warning, then the warning problem falls away—there was warning, and it was a good warning. If so, then we punish him even though in real time neither he nor the warner knew there was really a prohibition here. But we punish him. The whole point of why we would not punish him is simply because of the problem of doubtful warning. There is an opinion that doubtful warning is not warning. But regarding whether he violated a Torah prohibition, certainly he violated a Torah prohibition, because he ate pork. Why should I care whether he knew or did not know? Notice what prohibition he violated. Not entering the house of doubt, right? Clearly the view here is that the prohibition is the prohibition of eating pork. All the laws of doubt and the obligation to be stringent are only a warning against the possibility that you will end up eating pork, violating the Torah transgression. But in the final analysis the prohibition is on eating pork. Meaning, here he cannot claim that he was under compulsion. Right. Because there was a prohibition, there was an obligation to be stringent in cases of doubt, even according to the one who says that on the Torah level doubt is permitted, he says. Even according to Maimonides, who says that a Torah-level doubt is treated leniently on the Torah level and only rabbinically stringently—even according to his view we would lash him if doubtful warning counts as warning. Why? He was allowed to take the risk, but he took a risk. The fact that you are allowed to take a risk does not mean you didn’t take a risk. You took a risk. You are allowed to endanger yourself, but if you strike the prohibition, then you violated a prohibition. Meaning, we won’t come to you with a claim about the fact that you took the risk, but we will come to you with a claim about the fact that you ate pork. You cannot claim that you were under compulsion here. That is the point. So according to Maimonides the prohibition is not—rather, the prohibition is the eating of the pork, and the whole obligation to be stringent in doubts is only a warning that neutralizes the possibility of defending yourself with the claim of compulsion. Okay? But here how does the fifty-fifty aspect come to expression? What do you mean? Meaning he could claim—for example, there was a doubt, but with sixty percent I knew I was under age. No, doubt. If it’s sixty percent, then really it is permitted, we follow the majority. Ah, so here it is basically definitely half-half, as it were. A fifty-fifty negative or a fifty-fifty positive. I spoke about two possibilities of being in a state of doubt. But yes, if you have other statistics—sixty-forty or seventy-thirty—then we follow the majority, leniently or stringently. Then this is not a state of doubt, as I said. States of doubt are states where statistical tools are not relevant. That is, there is no way to decide using statistical tools. Okay. But the example is a bit strange. I mean, it doesn’t feel like one can learn from it to our issues because here we are dealing with a prohibition that is certain. It’s not that a person was unsure whether what he was doing was forbidden or permitted. Fine, but still he himself may be a minor, and then it is not forbidden for him. Is it permitted for him? Yes. On the Torah level yes, though there is the commandment of education. Rabbi Shimon Shkop himself says that therefore it may be the same in all doubts. “So too we can say in every doubtful prohibition.” And that probably comes precisely to exclude the question you asked. Meaning, true, here—after all he himself said above, look—“even though he did not know whether he had been warned regarding eating forbidden fat, in any case, since he knew he was doing an act against the Merciful One, he is considered fully deliberate.” That is basically your distinction. Because the act in itself is a forbidden act; you just don’t know whether you are personally liable, but the act is a forbidden act, and that you did know. Then Rabbi Shimon Shkop adds: but in my opinion there is no difference even in an ordinary doubtful prohibition, even where the prohibition itself is doubtful, not just the person—whether I am an adult or a minor. That is why he adds it, and that is why he says “so too we can say” in the next line, right? “So too we can say in every doubtful prohibition…” Meaning he comes precisely to exclude the distinction you proposed here. Fine, one could have said it, but he claims not. “And according to Rashba”—I’m reading the second paragraph, section 30. By the way, these lettered sections exist only in the Bar-Ilan Responsa Project, not in the original editions. “And according to Rashba, in every doubtful prohibition there is an additional prohibition.” Meaning, beyond the prohibition itself, which depends on the reality of the thing, whether he encountered the transgression or not—that’s what we saw above according to Maimonides, that there is no prohibition of entering the house of doubt; there is only the prohibition of eating pork. It’s just that if there is a fifty-percent chance this thing is pork, then know that you cannot take that risk, at least in the sense that we will not come to you with a claim about the fact that you took the risk. That in itself is not forbidden on the Torah level; it is forbidden rabbinically. But if in the end you struck the prohibition, you will have no claim of compulsion. You will not be able to defend yourself. That’s what Maimonides says. Rashba claims no. There is also a prohibition of entering the house of doubt, and that is the meaning of “a Torah-level doubt is stringently treated by Torah law” according to Rashba. What does “a Torah-level doubt is stringently treated by Torah law” mean? It means that taking the risk is itself a prohibition. That’s what he says: “And according to Rashba, in every doubtful prohibition there is an additional prohibition.” Meaning, beyond the essence of the prohibition, which depends on the reality of the thing—whether he encountered a transgression or not, yes, whether in the end it turns out to be pork—“there is also an additional prohibition upon him for placing himself into doubtful prohibition,” entering the house of doubt. “And this additional prohibition is a certain prohibition.” It is not a doubtful prohibition. The obligation to be stringent under the laws of doubt is a certain prohibition, a prohibition against entering the house of doubt. If you entered the house of doubt, you violated a prohibition. It doesn’t matter what will eventually be clarified regarding the doubt itself. “Meaning, even if he did not encounter the essence of the prohibition”—if it turned out that the piece of meat was actually kosher meat in the end, that doesn’t matter—“nevertheless he violated the additional prohibition, in that he violated the will of the Merciful One who warned and he placed himself into the house of doubt. But according to Maimonides there is no additional prohibition whatsoever concerning doubtful prohibition, for the Merciful One did not warn about this.” In order to define something as a prohibition, there must be a warning. From where does the warning emerge about the prohibition of entering the house of doubt? Rashba does not bring a source for this law that a Torah-level doubt is treated stringently. If there is no source, then you cannot innovate that there is a prohibition on entering the house of doubt. From where can you innovate that if there is no source? All you can say is that there is a prohibition of pork. Pork—and if you enter the house of doubt, know that you are taking a risk and you may violate the prohibition of pork. But without a source there cannot be a prohibition. By the way, what is Rashba’s source? As far as I recall, if I remember correctly, Rashba himself brings a source from the Talmudic text about mamzer. From the fact that one needed a verse to exclude doubtful mamzer and tell me that I can be lenient, we see that in the rest of the laws of doubt, doubts are treated stringently in other areas. And I said earlier that in my opinion Maimonides is right, because there really is no genuine source there that doubtful mamzer is treated leniently. It says there “mamzer.” So what if it says “mamzer”? It also says “pork.” What is special about doubtful mamzer that is not present in doubtful pork? Therefore in my opinion, in terms of reading the derivation and the Talmudic text, Maimonides is right. Although all the later authorities attack him with this attack, in my opinion he is completely right. Yes—“and according to Maimonides there is no additional prohibition on doubtful prohibition, because the Merciful One did not warn about it. The choice is given to the person acting. If he wants to place himself into the doubt, he may and is entitled to do so. But he should know that if he does not encounter the essence of the prohibition then he is free of all punishment. But if he does encounter the essence of the prohibition, he will receive his punishment, whether in Heaven’s judgment or in court, according to the proper law.” This depends on whether doubtful warning counts as warning or not. If doubtful warning does not count as warning, then he will receive punishment in the judgment of Heaven. If doubtful warning does count as warning, he will receive punishment also in human court. Of course, if it later becomes clear that he really did eat pork. Not for entering the house of doubt—for that he receives no punishment. “And there is no claim of compulsion or error in that he did not know at the time of the act, for he knew of the doubt, that it was balanced, and that both sides were possible and equally weighted. And because of this, according to the one who says doubtful warning counts as warning, he is liable even to the punishment of the court.” Basically, what he is saying here is that the dispute of Maimonides and Rashba—whether a Torah-level doubt is by Torah law treated stringently or only rabbinically treated stringently—is really a dispute about how we understand the obligation to be stringent in a Torah-level doubt. According to Maimonides there is no obligation to be stringent. If you were not stringent, nothing happened. One thing happened, namely that if in the end it turns out that it really was a prohibition, then you took a risk and failed, and you will not have the defense of compulsion. That is the only thing. And according to the one who says doubtful warning counts as warning, you will have violated a Torah prohibition. And the claim that you won’t answer—that depends on whether doubtful warning counts as warning or not. Okay? But basically there is no prohibition on entering the house of doubt; the whole point is only a warning: know that if you violated the prohibition, you will not have the defense of compulsion. By contrast, Rashba claims that entering the house of doubt is itself a prohibition, even if in the end it turns out that this meat is kosher meat and not pork. The very fact that you did not know and you took the meat and ate it shows that you are not God-fearing and that you are not troubled by the fact that there is a fifty-percent chance there is forbidden meat here, and not being God-fearing is itself a prohibition. Although if in the end it turns out that it is kosher meat, certainly one cannot accuse you of eating pork, but one can accuse you of lack of fear of Heaven. So there is taking an unjustified risk, too great a risk, and that is basically Rashba’s view. Now one can… Rabbi, I don’t really understand Maimonides’ view as the rabbi is explaining it. It comes out from this whole pilpul that a person does an act that is permitted, and afterward he is punished for having done a forbidden act. If it is permitted, then it is permitted. No. The permitted act is entering the house of doubt. He is not punished for entering the house of doubt; he is punished for eating pork. Eating pork is not a permitted act. In other words… I ask the Holy One, blessed be He, through prophecy: this piece of meat, which we don’t know what it is, am I allowed to eat it or forbidden to eat it? If the Holy One, blessed be He, were to tell me, according to Jewish law you are allowed to eat it, and afterward He says, yes, but you ate it, and it turns out it was pork, so then it’s forbidden—how does that go together? He did not say you are allowed to eat it. He said you are allowed to take the risk. And the fact that you are allowed to take the risk does not mean it is not a risk. In other words, kind of… That’s pilpul, rabbi, it’s wording. What does “allowed to take a risk” mean? Am I completely allowed or forbidden to eat this doubtful item? Fully permitted. You are allowed to do it. You are allowed to take the risk. The act itself is permitted. If the act itself is permitted, then it is permitted. How can one afterward say, but now sorry? The act itself is not permitted. Eating pork is forbidden. But one who does not know whether it is pork or not is allowed to take the risk. We will not come to him with a claim—why did you take the risk, you’re not God-fearing. But still, if he ate pork, one cannot say that he is entirely exempt as if under compulsion. Compulsion—what do you mean? It’s just that in today’s legal system, modern law, I don’t think one could imagine saying that if the act itself is permitted—let’s say I don’t know how to describe it—permitted, then saying yes, but because the result was bad, you’ll be punished. You need mens rea, intention. If there is no intent of prohibition, then it doesn’t exist. You’d have to ask the lawyers, I have no idea, but no—it’s also plain common sense. How can one do a permitted act and be made liable for a forbidden act? That is common sense. But the act is not permitted; the doubt is permitted. Taking the risk is permitted. But that’s nice wording. I’m saying, I know, I understand the formulations, but they are formulations that still distance us from reality. The reality is that I ask a simple question: is it permitted to eat this thing or forbidden? I’m not asking about risks, I’m asking whether eating is permitted or forbidden. If forbidden, then forbidden, no problem. To that simple question I give you a simple answer. If it is pork, you are forbidden to eat it, and if it is cow, you are permitted to eat it. That’s all. And now that we don’t know what it is, that it’s doubtful—am I permitted or forbidden? Decide. If you take the risk… No, I ask the Holy One, blessed be He, the prophet, Samuel the Prophet: am I permitted to eat it or forbidden? The Holy One, blessed be He—I’m representing Him right now—decide. Okay, so I ask the rabbi: permitted or forbidden? Decide. No, I don’t rule, I’m asking the rabbi. I’m telling you: decide. I can’t, I don’t have the tools, so I’m asking the rabbi for the tools to decide. There’s nothing to say about this matter; it depends on your fear of Heaven. So the rabbi will tell me that. So Jewish law does not even give me the tools to decide; it doesn’t give me explicit guidance, not value guidance, not religious guidance. It tells me to be fearful, and you decide your own policy and bear the consequences. On what basis? How? On what basis am I supposed to decide? How? Where am I supposed to turn? But I have nothing to hold on to. You do have something to hold on to. I know there’s a fifty-percent chance it’s pork and a fifty-percent chance it’s kosher. You know, it’s the same thing: there’s a glass of water on the table, and you’re doubtful whether it contains poison or not, fifty percent. All right? There were two glasses, one with poison and one with regular water; we mixed them up, left one on the table, and went home. Okay? Now you have a glass that is doubtful poison, doubtful water. I tell you: decide, whatever you want. No person in the world—if a friend or a patient came to me—I would certainly tell him: don’t drink, are you crazy? Are you out of your mind? Even if in the end it turns out to be completely water, you are not acting rationally. So why do you say that common sense doesn’t help you decide? There, you made a great decision. So then how can you say this is permitted? Common sense says it’s forbidden. Reasoning is Jewish law no less. The rabbi has told us this many times: you don’t need a verse if there is a basic rationale. There is no prohibition on taking a risk. There is a prohibition on drinking poison or eating pork. Now you decide whether you are taking that risk or not. You are entitled to take risks. I’ll tell you that if you fail, then you failed in the risk. I’m allowed—you know, in an investment fund, I’m allowed to enter a risky investment, say if my agent authorized me to do so, okay? But if we failed, then we lost the money. So what if I was allowed to enter the investment? In the end, on the side where we lost, we lost. But there it’s not a matter of compulsion, it’s a matter of results. That is exactly the difference between Jewish law and morality on the one hand, and dealing with outcomes on the other. No, no, no, exactly the same thing. You ate pork, which means you drank the poison. Now the punishment is a consequence of the matter. That’s the whole point that you don’t have compulsion, because you could also have chosen not to eat. So it is not a situation of compulsion. You want to take a risk and afterward you want me to give you a discount because you took a risk? Take the risk, good health to you. But afterward you want me to take into account that you rashly decided to take a risk and also not punish you for eating pork? Why should I do that? But I’m now supposed to repent—the punishment isn’t just, say, for… it’s to bring me back to repentance. I’m saying: but a minute ago you told me it was fine, no need to repent for my act, let’s see what happens. And now because it turned out in reality there was something there, now I have to beat my chest over the sin and roll around in… For taking the risk you need to repent? No—for eating pork. Now maybe your conclusion for the future will be not to take risks anymore, or maybe not. Decide for yourself. So the karet is for taking the risk? Not for eating pork? No, for the pork. No, but we said that’s not the problem—the problem is taking the risk. On the contrary, there is no problem with taking the risk. The problem is only the pork that you ate. But the rabbi said before that eating pork I… I keep saying exactly that; you said the opposite. No, I’m saying it seems detached to me. Permission to enter the doubt means permission to eat this piece. So how do you split the two? To say that what is permitted is entering the doubt? You are allowed to take the risk, but know that you are taking a risk. What’s the problem? I don’t understand, it’s so simple. You are allowed to take the risk. No one will come to you with claims because of the mere fact that you took the risk, but you are taking a risk. No, but there is a big difference, rabbi—again—there is a difference: you don’t repent because you lost money in the stock market, right? You don’t need to repent. I took the risk on myself and that’s perfectly fine. But here I do repent, I feel guilty. I feel guilty over something where they tell me: as far as the pork itself is concerned, there’s no problem; the fact that it’s pork doesn’t matter, you’re allowed. It’s only about taking the risk, and for taking a risk you don’t repent. Ah, I’m allowed to enter the risk? So no—you keep turning it around on me. I’m saying the opposite. There is no issue with taking the risk; the issue is the pork you ate. But eating the pork is permitted—you’re permitted on the Torah level to take the risk. The issue is eating the pork. If we made an analogy to a moral act, the rabbi would agree with me that no—that you can’t make such a separation. This pilpul can’t hold up. Because either a moral act is permitted, or a moral act is immoral. I do not agree, absolutely not. There are situations where I don’t expect the result to happen; I took a risk. I took a risk, but it is a risk; if I failed, then the responsibility is mine. Of course my judgment would tell me that if, say, issues of life and death are at stake, then taking a fifty-percent risk is unreasonable. The same thing you should conclude here: if there is a fifty-percent chance of eating pork, it is unreasonable to take the risk. But no one will come to you with claims if you took an unreasonable risk; that is your right. There is no prohibition—for there to be a prohibition there must be a warning. What Rabbi Shimon Shkop says is that the Torah did not prohibit taking the risk. Common sense may indeed prohibit it, so refrain, no problem, but that is your decision. A person took responsibility on himself, drank alcohol although they told him not to, drank excessively, became intoxicated and drove into a crowd, and luckily did not run over anyone. And in another case he did run someone over. So do we say there is a substantive difference between the two cases? He acted recklessly from beginning to end, and for that we hold him accountable. Not for the result. Morality is… You’re bringing me Rashba while I’m explaining Maimonides. I’m saying no: it is allowed to take the risk, only that the risk you take—you will ultimately bear the consequences. What confuses things in the case of running someone over is that running someone over has implications for other people. And we have that intuition that says I’m allowed to take a risk on myself but not a risk on other people. Their risks are for them to decide whether to take or not. But if, say, the person there told me: okay, I’m willing for you to drive drunk, I’m relying on the fact that you won’t run me over—then fine. Even if in the end I did run him over, if we both agreed and took the risk, no one would come to me with claims about the fact that I took the risk. But still, it could be that they would judge me for having run him over. Once this concerns someone else, a different intuition gets mixed in. Therefore it is different from taking a risk regarding eating pork. Because it is my risk. Now I decide whether I take the risk or not. Again, I am not claiming that common sense says to take the risk; on the contrary. I am saying that fear of Heaven says not to take the risk. But fear of Heaven does not mean that there is a prohibition in this. As Rabbi Shimon Shkop says, in order for there to be a prohibition there must be a warning. There must be a source. There is no source, so there is no prohibition. Clearly it would be proper for a God-fearing person to be stringent. Fine. But one cannot punish you for not being God-fearing. You take risks and either you succeeded or you didn’t. But one must distinguish between the question whether there is a prohibition here in the formal sense and whether it is okay to act this way. Is it, from the standpoint of fear of Heaven or morality or however you define it, an act that is proper? Is it positive? No, it is not. But not every act that is not positive has a halakhic prohibition on it. And therefore the dispute is a halakhic dispute; it is not a dispute about what one should do. I assume that Maimonides too very much recommends not taking risks with Torah prohibitions. But he recommends—fine. Recommendations are nice, but they are not prohibitions. So this example of Rabbi Shimon Shkop basically shows us that there may be a dispute among the medieval authorities (Rishonim) about how to understand this concept, this rule, that a Torah-level doubt is treated stringently. Is there really a prohibition on the taking of the risk itself—or, and then notice, in that case straightforwardly this is not an expected-value consideration, because they’re not telling me there is an expectation that you’ll eat pork, and therefore when I talk about expected-value considerations, that is really Maimonides’ conception. Because Maimonides’ conception says that in practice you need to calculate what the chance is that you will arrive at the transgression, what the expected loss of this act is. Therefore he says there is no problem with the taking of the risk itself, but there is a fifty-percent chance that you will eat pork. Fifty percent times the severity of the prohibition of eating pork is an expected value that may be inappropriate to take. Okay? According to Rashba, I am not looking at the question what will happen in the end with the pork at all. The taking itself, the taking of the risk itself, is a prohibition. Even if in the end it doesn’t turn out to be pork. Therefore, seemingly, according to Rashba this is not about expected-value calculations at all, but the prohibition of doubt is an independent prohibition in its own right. And according to Maimonides it is expected-value considerations. But that is not exact. Why? Or not necessary. Because even according to Rashba, clearly—or I don’t know if clearly, but by reasoning—the prohibition on entering the house of doubt obviously begins from the fact that there is a prohibition on eating pork. One cannot disconnect it from the statistical calculation that says there is a fifty-percent chance that you will come to eat pork. And because there is a fifty-percent chance that you will come to eat pork, therefore they tell you not to take the risk. So the halakhic definition is that there is a prohibition on entering the house of doubt itself. If you ask yourself what the reason behind the verse is, why the Torah really prohibits taking a risk, it is because of the risk involved, because in the end you may come to eat pork. Meaning, in the final analysis, even Rashba may also be speaking here about some kind of expected-value calculation. Only the halakhic definition is that there is a prohibition on the taking of the risk itself. Why is there a prohibition? Because there is an expected value of damage. There is an example of this, several examples of this. I think once I spoke about it, for example regarding procreation. Regarding procreation it is quite clear that what the Torah cares about is not the marital relations themselves between husband and wife, but that this is the human way of bringing forth offspring. But the act in itself is a means. It is not the commandment. The commandment is that I should have a son and a daughter. Okay? It’s just that the way to arrive at having a son and a daughter is to have marital relations. So now the question is how the commandment of procreation is defined. One could define it as bringing a son and a daughter. Then the act of intercourse is only a preparatory means for the commandment; it is not the commandment itself. Right? Because in essence what we want is that I have a son and a daughter. Right? I can’t have that happen without the act of intercourse, so I perform the act of intercourse, and the act of intercourse is not a commandment—it is a preparatory means for the commandment—just as I build a sukkah. Because without it I won’t have a sukkah to sit in. But the commandment is to sit in the sukkah, not to build a sukkah. Building a sukkah is a preparatory means for the commandment. But one could say: after all, having a son and a daughter is not in my hands. What comes out will come out; a person has no control over that. What I can do is have marital relations and hope that a son and a daughter will result. Okay? Since that is so, although the reason behind the verse is that we want me to have a son and a daughter, not marital relations, still because the means is what is in my hands and not the result—the result is not in my hands, it is in the hands of Heaven, but the means is in my hands—it may be that Jewish law defines the means as the commandment. The commandment is marital relations. There is a condition that you must continue this until you have a son and a daughter. But not that the commandment is to have a son and a daughter. The commandment is marital relations. It’s just that the definition is: you have marital relations until you have a son and a daughter. That’s only a condition, okay? Why? Because clearly, on both sides it is obvious that in the final analysis the goal is that I have a son and a daughter, the goal is not marital relations in themselves. I’m not speaking about the husband’s marital obligations to his wife. I’m speaking about intercourse as a means of producing children. Okay? So clearly the reason behind the verse is obvious. But many times the halakhic definition does not track the reason. Because in places—for example, in the case of procreation—the reason is the result, that I should have a son and a daughter. But what is in my hands, what is incumbent upon me to do, is the act of intercourse. So the halakhic definition is that the commandment incumbent upon me is to perform acts of intercourse, not to produce a son and a daughter. It is not a result-commandment but an action-commandment, even though the reason is result-oriented. Okay? So I bring that as an example of what I was discussing here. According to Rashba, the reason I may not take risks is because of the expected damage, because there is a fifty-percent chance I will come to eat pork. But practically speaking, it is not in my hands whether this actually turns out to be pork or not; that will become clear later, I don’t know. What is in my hands? In my hands is to be concerned and not enter. If so, the Torah defines entering the house of doubt itself as a prohibition in its own right. That is the definition. Even though the reason for the prohibition is an expected-value consideration. The definition is entering the house of doubt itself, and according to this definition, then both according to Maimonides and according to Rashba the obligation to be stringent in doubts is fundamentally based on an expected-value consideration. The whole difference between them is only in the question of how in the final analysis we define it halakhically. The difference is in the legal definition, not in the reason. How do we define it halakhically? Is it halakhically just: know that if you eat pork, you won’t have a defense, as Maimonides says, and there is no prohibition on entering the house of doubt; it’s just that common sense says don’t take risks, but there is no prohibition. And according to Rashba it says no, we also impose on you a prohibition on entering the house of doubt itself. Obviously the reason for the prohibition is that I may come to eat pork. Where will the difference show up? What happens if in the end it turns out that this piece of meat is not pork but kosher meat? According to Rashba I still violated a prohibition. Why? Because the prohibition is defined—the legal definition of the prohibition, not the reason—the legal definition of the prohibition is a prohibition on taking a risk, and I took a risk. According to Maimonides there would be no prohibition here. So the practical differences remain; the difference between Maimonides and Rashba really is the question whether there is a prohibition on entering the house of doubt or not. But from the standpoint of the essence—what this prohibition is meant to achieve, what the purpose of the prohibition is, what the reason for the prohibition is—there may not necessarily be a dispute here. It may be that both Maimonides and Rashba agree that the reason for the prohibition is an expected-value calculation, the concern that you may end up eating pork. That is not necessary, because according to the earlier definition I suggested, then Rashba really does not agree; it is not an expected-value consideration. Rashba, according to that earlier definition I suggested for him—what I said there was that I have a duty not to take risks, a duty to be God-fearing—that is really the duty. Someone who takes risks is not God-fearing; he shows that it does not matter to him. So the prohibition is not the fifty-percent chance that you’ll eat pork; and they did not stop you in order that you not come to eat pork, that is not the point. It could be that Rashba agrees with Maimonides that they do not impose a prohibition in order to stop you as a fence so that you not come to eat pork—the Torah certainly does not deal in fences. So what then is the prohibition? The obligation is to be God-fearing. The very fact that you took a risk shows that you are not God-fearing, and that is the prohibition. Now, if that is the definition, then according to Rashba this has nothing to do with expected-value considerations at all. Right? It has nothing to do with expected-value considerations; it is a duty to be God-fearing. It does not begin from the fact that you have a fifty-percent chance of eating pork. Obviously that is what lies in the background, because that is the meaning of not being God-fearing when you take a risk that perhaps you will eat pork, but the purpose of the prohibition is not to ensure that you do not eat pork. The purpose of the prohibition is to ensure that you are God-fearing. And if so, it has nothing to do with expected-value considerations at all. Okay, that is basically the claim. Fine, I’ll stop here with the next segment, because the next segment starts another longer section again. Next time we will probably finish this whole series on doubts, so next time will probably be the last class in the series—probably, unless there are surprises. Okay. But I thought perhaps one could say that according to Maimonides, the whole matter of the rules of doubt is a kind of extension of making a safeguard, meaning “make a fence around the Torah.” Therefore it’s rabbinic. What? Therefore it’s rabbinic, because safeguards are inherently rabbinic and not Torah-level. Yes, he infers it because it is rabbinic, yes. And maybe Rashba’s approach reminds me a bit of the interpretation of “You shall be holy,” in the sense of not being a degenerate within the bounds of the Torah—meaning some sort of straying into technically permitted areas, where one also kind of… With regard to “a degenerate within the bounds of the Torah” one can also discuss the same two formulations. One can say: do not be a degenerate within the bounds of the Torah because you may become a degenerate outside the bounds of the Torah; and one can say that degeneracy itself is the prohibition. Not because it has within it some dimension of the thing truly prohibited, but because degeneracy itself is the prohibition, and therefore… I wasn’t familiar with the first possibility. I thought “a degenerate within the bounds of the Torah” was classically the second possibility, that degeneracy itself, the very… It depends which “degenerate within the bounds of the Torah.” There is a degenerate within the bounds of the Torah who does things that may lead him to a Torah prohibition, and there is a degenerate within the bounds of the Torah where it won’t lead him to anything at all, but it is improper in itself. One of the examples Nachmanides brings there in the portion of Kedoshim is excessive eating, drinking, and sexual relations. That is not because he will reach a prohibition, but because it is itself a flawed act on the human level, the moral level, or I’m not exactly sure, something like that. So there it is clearly the second. Thank you. Anyone else? Okay then, Sabbath peace. Thank you very much. Thank you very much. Sabbath peace, thank you very much.