Positivism in Halakha and in General, Lecture 6

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[Rabbi Michael Abraham] Why does it have to be that way? You’re assuming that behind this there’s a rule, there’s some sense that this is what’s right. You assume that this feeling reflects some general principle. I also tend to assume that, but that’s a methodological assumption; I’m not sure it’s actually true in reality. If not, then what is this feeling in you—what is it? Nothing. You understand that this is what fairness says. What is there at all? And if the rule exists, then it solves your problem. Why is the rule right? Fine, who said the rule is right? I have a feeling that this rule is the right rule. Okay, so then I can have an accidental feeling—not the rule. In the end, you always remain with: I have a feeling that this is right. So whether you apply that to a rule or apply it to a case, what’s the difference? What difference does it make? So in short, there’s some tension between working with rules and working with cases. And again I say, the theoretical question is one question: does such a set of rules exist? The practical question is of course more practical, more concrete for us. Even if the Holy One, blessed be He, has some book—I talked about the book, right, of Erdős, the proofs from the Book—so even if the Holy One, blessed be He, has some such book of rules, we don’t have that book. What we have is a few rules, a few cases, various intuitions. The question is whether, from our point of view, it is right to try to organize our thinking in the form of rules, in the hope that this will probably be close—we hope—it will be close to the rules from the Book, the Book up above, or not: just go with your intuition, with your common sense, with your conscience, and do what you think. Because theory and consistency and all these things often complicate things for us to a great extent, and sometimes we’re so captive to the rules that we follow the rule even into a place where our intuition says that here it’s not right to follow the rule. And I say again, there is logic to this. It’s not just nonsense. There is logic to it, because rules matter—they provide certainty, they provide order, a legal system needs that. So I’m saying, apparently we can’t manage entirely without it, but it’s not a simple matter to find the balance between positivism, which goes with rules, and casuistry, which goes with cases. There’s a kind of back-and-forth movement here. You go with cases, try to formulate a rule from them. You test the rule itself on cases. Does it work, does it not work? If it doesn’t work on the cases, then apparently your rule is not precise. You fix the rule, test it on the cases again, again fix the rule. But in the end, even after you have the rule, when you encounter the next case, you won’t automatically go with the rule, because the next case will now also test the rule. And if the rule seems wrong to you with regard to this case, that doesn’t mean you have to force yourself to follow the rule because, well, that’s the rule. If you understand that your rule is only an approximation, that in the end you made it as a generalization from cases you encountered, then this too is contingent. Maybe you only encountered this case now? If you had encountered it ten years ago, it would have gone into your rule-based thinking. You’re encountering it now. Now it challenges the rule. So apparently the rule is not precise. The analogy people often bring for this is Ptolemaic astronomy, right, where the assumption, on aesthetic grounds, was that astronomy is based on circles. The paths of the stars and everything—circles. Now, they knew it wasn’t circles, it was ellipses. But for them it had to be. It had to be a circle, because a star is some concept of perfection, marvelous aesthetics, all kinds of Pythagorean things like that. What?

[Speaker C] They knew it was ellipses and described it simply that way?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker C] Did they know it was ellipses, or did they only know it wasn’t a circle?

[Rabbi Michael Abraham] I don’t know whether the concept of an ellipse even existed then—when was the concept of an ellipse created—but they knew it wasn’t a circle.

[Speaker A] The idea of spheres was something where they described it as though on the perfect circle sits another circle at a different frequency.

[Rabbi Michael Abraham] The epicycles and the deferents. Exactly.

[Speaker C] So now all the Jewish laws of—

[Rabbi Michael Abraham] Sanctification of the new month.

[Speaker C] —that Maimonides describes…

[Rabbi Michael Abraham] No, but I’m saying, the conception is that at the base it has to be circular. But the problem is, it doesn’t work. Because in reality it isn’t circular. So what do you say? On the big circle sits another small circle that rotates at some other frequency or speed. And that also doesn’t work, because you can’t build an ellipse from a finite set of circles—we know that today in mathematics. So because of that, you have to add another little circle and another circle, and you add corrections; in the end you reach the ellipse, but you’re not willing to give up the circular concept as the cornerstone of your astronomy. And then what happens is that you get terribly entangled. You determine that there’s a big circle and smaller circles, and you qualify the circular description by means of other circles, and that is exactly an analogy for thinking with rules. Because we’re sure that the rules are the right thing, but the rules don’t work in various cases. So we build a sub-rule that qualifies the big rule—here it doesn’t apply. But that too doesn’t quite work. Suddenly you find a case that the sub-rule also doesn’t fit, so you build a sub-sub-rule, which also… And that’s really the epicycles and deferents they added to all those Ptolemaic circles. So that’s why I say that on the one hand, these rules—we can’t manage with them, we can’t manage without them. That is, you can’t think without rules, you can’t run a system without rules. When we make an analogy between two cases, we usually explain it by means of some rules—what is shared by these two cases, what is the logic behind these principles. So the rules are at least a cognitive need of ours, even if they don’t really exist. But on the other hand, one must be careful not to be enslaved to them, not to be subjugated to them. There’s an example of this; I brought it once when we spoke about negative attributes. I don’t remember in what context here that was, a few years ago. We spoke about negative attributes, and I brought the example of delivering a bill of divorce. The topic of delivering a bill of divorce, topics of delivering a bill of divorce, are topics that really bothered me when I came back… when I studied the Talmudic passages there. These are topics all along tractate Gittin. And there are dozens upon dozens of cases that the Talmud itself brings, and the medieval authorities of course add more, about all kinds of strange and unusual forms of delivery. That is, he puts the bill of divorce on the hand of her old slave and writes a document on it. He puts the bill of divorce in his courtyard and transfers ownership of the courtyard to her. He puts the bill of divorce in her courtyard. The bill of divorce is in her hand and the string is in his hand. He wrote it for her on a golden plate. It is immersed in items prohibited for benefit. Millions of things whose whole role or purpose is to describe what a valid delivery of a bill of divorce is. When the Torah says, “and he writes her a scroll of severance and puts it in her hand,” what is this “puts it in her hand”? What is this giving? How do you define the concept of giving? So in the Talmud there appears a set of dozens of cases. The medieval authorities here and there raise difficulties, answer them, but they still don’t really do conceptual work… The later authorities, as is their way, begin trying to look for a theory or a general definition of what giving is—not cases. Give me a definition. The cases are only expressions of the definition, but let’s try to get to the definition. So the Ketzot starts with this. He builds the initial infrastructure this way. He talks about the fact that basically the fundamental tension in giving is something between transfer of ownership and an act of physical handing over. Giving a bill of divorce can be understood as transferring the bill of divorce to her, making sure that she becomes the owner of the bill of divorce—that’s called giving her the bill of divorce—or as an act of physical delivery, simply taking the bill of divorce and giving it to her, not in the proprietary sense, just physically giving her the bill of divorce. Now the Ketzot begins to discuss whether it is this or that. So he brings the case of items prohibited for benefit that I mentioned earlier. If the bill of divorce is written on items prohibited for benefit, then there is no ownership of items prohibited for benefit, at least according to some of the medieval authorities. So if there is no ownership, then it cannot be transfer of ownership, because it is valid. A bill of divorce written on items prohibited for benefit is valid. So how is it valid? If delivering a bill of divorce means transfer of ownership, then with items prohibited for benefit there is no ownership. So the Ketzot says: it cannot be transfer of ownership. On the other hand, it’s not just plain delivery either. Because if I write a bill of divorce in her courtyard—in my courtyard, sorry—I place the bill of divorce in my courtyard, meanwhile nothing has happened. Now I… transfer the courtyard to her, give her a document that acquires the courtyard for her, okay? That too is a valid delivery of a bill of divorce. That is explicit in the Talmud. Okay? I didn’t deliver anything here; the bill of divorce was in the same place, remained in the same place. What I did was transfer to her the courtyard on which the bill of divorce is sitting. So it isn’t delivery either. So if it is neither delivery nor transfer of ownership, then what is it? And I don’t remember exactly what the Ketzot’s conclusion is, but the Ketzot gets very entangled with this. Kehillot Yaakov on Gittin, of course a hundred and fifty years later, tries to move one step further and tries to build more complex definitions that attempt to take all the cases that appear in the Talmud and organize the definition so that it fits all the cases. So he starts with a certain definition, then brings another case; that case forces us to refine the definition a bit, to qualify it or split it. Then another case is brought, and again we refine, and another case, until in the end you’re left with a definition so complicated that the number of elements in it is more or less equal to the number of cases you brought. That means you didn’t manage to find one general rule. After all, what is the idea of giving an explanation by means of a general rule? That with one principle you can explain many cases. But if that principle contains within it as many elements as there are cases, then what have you gained? So it’s clear that this is an ad hoc definition. That is, a bill of divorce, delivery of a bill of divorce—it is transfer of ownership done through an act, provided that it be like this and otherwise like that—you’re basically trying to fit all the cases under one long and winding sentence. You haven’t gained much.

[Speaker D] And still, you can treat it as fifty cases or fifty rules.

[Rabbi Michael Abraham] Still, but you haven’t gained anything.

[Speaker D] Right, it’s a certain conception.

[Rabbi Michael Abraham] One of the indications that a rule is correct is that it explains several cases, like Rabbi Chaim in Chagigah, right, with the signs of a fool. That is, if the number of rules you need is equal to the number of cases, then those rules have no significance. That means there is also no indication that those rules are correct. Because the indication that a rule is correct is if it fits several cases.

[Speaker D] But the conception says that behind the case there stands something, there stands something—it’s not the individual case.

[Rabbi Michael Abraham] And that’s exactly the point—I don’t agree. Or what does “I don’t agree” mean? At least I don’t see the basis for that. It may be true, and it may not be true.

[Speaker D] But that’s why it was Kehillot Yaakov’s motivation.

[Rabbi Michael Abraham] The motivation exists for me too. The question is whether he succeeded in realizing that motivation. And I think he did not succeed. That is, in the end this definition did not advance us in any way. Why not? Let’s look at it practically now. I now have the complicated definition I arrived at from all fifty cases—a definition written over, say, three pages. Fine? Now the next case comes before me. I look at the definition and I say: okay, this definition says that here it is a valid delivery of a bill of divorce. Who told you that? If this case had appeared in the Talmud, it would have been the fifty-first case that would have forced you to insert another element into the definition. Once each case inserts another element into your definition, you can no longer relate to the definition as something that, now, for any case that comes before you, you can apply it and that’s it, the work is finished. Unless you have some mystical assumption that all the cases needed to create a perfect definition appear in the Talmud. Because if another case were needed, then the Talmud would have brought that one too.

[Speaker A] And that’s already an approach—what?

[Rabbi Michael Abraham] Maybe the assumption—

[Speaker A] —that there’s some issue here.

[Rabbi Michael Abraham] I don’t think so, because it’s not in one passage. It’s scattered all over the Talmud. And it’s pretty clear that they discussed there cases that came up before them. No one was thinking globally: let’s distribute across the whole Talmud cases of delivering a bill of divorce so as to cover the definition exactly. That’s not plausible. Not plausible. If it had all been in one passage, then maybe—even there I would doubt it, but still. Because there was someone there who edited it, and you could say maybe he really weighed what to include and what not to include. But this collection of cases that appears in different contexts, in different places—who says there isn’t some case missing there that you need? In my opinion there’s no real basis for that. Therefore I say that this whole issue of delivering a bill of divorce—I once wrote about it on the Basic Studies page at Bar-Ilan, in one of my early articles for the Torah portion Ki Teitzei. So I wrote there about this matter, that somehow we are captive to this thought that behind the cases there must be rules, when in fact it isn’t clear. It may be that the Talmud takes the trouble to bring so many cases because it understands that here you probably won’t be able to arrive at some rule that sums it up and can be used. Here it has to be casuistic. The more the Talmud estimates that the learner will not succeed in formulating a good rule, the more cases it has to bring. And then what happens is that we do… the work of the Ketzot or of Kehillot Yaakov—and that work needs to be done, it has to be done, because we always think in rules; I don’t think you can get around that—but the goal is a different goal. The goal is not to arrive at a definition in the end. The goal is to exclude what is not possible. I described this in the context of negative attributes. That is, these cases are ultimately just cases that shape the form of my perception of what delivery of a bill of divorce is, in such a way that there is hope that now I’m already built in such a way that I understand what a valid delivery of a bill of divorce is and what is not—I’ve shaved myself on enough cases, so to speak. But how do I do that shaving, right? How do I rub up against these cases and try to build my neural network according to the cases? I test the case through some rule that I propose, and then I bring another case that contradicts that rule, and then I continue. But the whole goal is not to arrive at a rule in the end that covers all the cases. On the contrary. The goal is to show that this rule is not right, and this rule is not right, and this rule is not right, so that in the end I’m left with some sort of feeling which, we hope, is close to the correct feeling. Meaning, if I apply it to the various cases, it will come close to the right answer. And I think I mentioned this there, it seems to me—and if not, then it’s worth mentioning it. It’s very similar to what people do today with a neural network, for example. Right? It’s a different form of programming, one that doesn’t work with these classical instructions of if this happens then do this, this is the result, if this happens do such-and-such a calculation, and you divide into cases and give the program instructions what to do in each case. That is positivist thinking. The thinking of a neural network is built in some strange way—almost mystical, I would say—where you give the network a case, and you explain to the network that in this case your answer should be yes. Fine? Good. Then the network organizes itself in some way so that the answer will be yes. Even though there is no direct connection between how it organizes itself and the answer, still it organizes itself in some way. Then you bring it another example. In that example the answer should be no. Okay? So fine, the network reorganizes itself, and then you bring it another example and another example and another example, and it organizes its internal connections in such a way that for all the examples brought before it—this is called training the network, right?—for all the examples brought before it, it will give the answers that really should be given, and we know the answers, we train the network according to the answers we know. And the hope is that if we trained it on enough cases, then when a case comes before it for which neither we nor it know the answer, it will give the correct answer. It builds itself according to the examples, teaches itself according to the examples, in such a way that it will know how to give an answer also to the next example, regarding which we do not know the answer—we already won’t know. We don’t know how to tell the network whether this is yes or no in principle. So that is exactly what is happening here. I think that what… this is what’s called training. We train the network on various cases in the hope that after all the cases it is already built in such a way that it knows how to solve this type of problem.

[Speaker D] Let’s talk about the cases, let’s learn from the cases themselves. What is the point of turning them into rules?

[Rabbi Michael Abraham] No, we don’t turn them into rules. Exactly. The network doesn’t turn them into rules. Exactly. If you look at what the network does inside, it has no connection to the form of the rules you think about regarding the cases.

[Speaker D] No, in what we do need—the Rabbi said we do need to act like Kehillot Yaakov and the Ketzot.

[Rabbi Michael Abraham] We don’t know how to do it otherwise. How will you deal with the cases? How will you build within yourself a correct intuition? It takes many cases, and according to what and what will you do with them? To know them? Knowing them is nothing. You somehow need to do some conceptual work on them so that it becomes internalized in you. So I’m saying, I propose a hypothesis. I say: delivering a bill of divorce is transfer of ownership. Now I raise a difficulty against that, because after all if it’s written on items prohibited for benefit it’s valid, so it can’t be transfer of ownership. So I’ve organized something in my inner network. Now I say, yes, so then what is it probably? Delivery? No, because if he placed it in his courtyard and wrote her a document for the courtyard or the field, then that too is a bill of divorce, so it’s not delivery either. And then I hope—I have no rule at the end. All these rules are thrown away. They’re not correct. But somehow something gets built—that’s why we spoke about it in the context of negative attributes—through the negation of all these attributes some intuition gets built within me, at least I hope, some intuition gets built within me that now will be able to make correct decisions, or decisions close enough to the correct answer.

[Speaker C] And if after all the cases that come, if they—

[Rabbi Michael Abraham] —are sufficiently similar to a specific case, that’s the same thing…

[Speaker C] No, if something comes that falls in the middle between two cases, one and the other, then I’m here, then I won’t know what to do, I’ll remain silent.

[Rabbi Michael Abraham] That’s what we’re talking about, but I also want to give answers to such cases. So I say: then I don’t work with the rules. I negate the rules in the hope that in the end something still remains, since we know, more or less know, that our brain is also built in the form of a neural network. And that’s where they took the idea from. So I think it’s not unreasonable to assume that this is indeed what we do in the end. That is, we basically train our neural network on various cases so that afterward, once it is built correctly, in the end when it gives me an answer to a new case that comes before me, we hope the answer will be the right answer.

[Speaker C] Meaning that the way it’s built, as much as it may not look like it, it doesn’t imitate the physiology of the brain in the sense that it’s a neural network.

[Rabbi Michael Abraham] I don’t know, I’m not sufficiently expert—

[Speaker C] —in the details, but it’s not really supposed to claim to be a simulation of what happens.

[Rabbi Michael Abraham] No, but an actual simulation—it could be, but that’s also a quantitative question. I don’t know exactly, I’m really not expert enough, so I don’t know. It could be.

[Speaker C] No, I wasn’t saying… okay.

[Rabbi Michael Abraham] In any case, the claim is that this delivery of a bill of divorce essentially reflects the limitation, and that the Talmud is aware of this limitation, of thinking according to rules. Therefore, from the Talmud’s standpoint, I think rules are some kind of work tool. Rules are not the thing itself. They are a kind of work tool that we have no choice—we use them, but use and throw away. That is, in the end, if we encounter a situation where it is clear to us that the rule must not be applied, then don’t apply it. No, don’t apply it. That is, the rule will train you, but in the end you are not bound by it. And I already mentioned all the epicycles and deferents in the rules of Jewish law. Right, that the law follows Abaye only in YAL KAGAM. In disputes of Abaye and Rava, the law follows Abaye in six cases—YAL KAGAM is the acronym. Aside from that, the law follows Rava in the overwhelming majority of cases; there are eight hundred disputes between them, and in the absolute majority of them the law follows Rava. But there are cases in which the ruling is nevertheless like Abaye outside those six. There are a few like that. And then the question always comes up: wait, but the law follows Abaye only in YAL KAGAM; in all the rest the law follows Rava—so what about this? Fine, true—unless you think Abaye is right, and then rule like him even though it doesn’t go with the rule. In fact, the medieval authorities do this. Now the rule-makers come along—what do they do? They define epicycles and deferents. That is, they say for example: the rule is that the law follows Abaye in YAL KAGAM. What?

[Speaker A] They patch up the…

[Rabbi Michael Abraham] Exactly. That is, they organize some sub-rule that also brings the exceptional cases into some kind of rule. Fine? And the assumption is that there aren’t enough cases of dispute between Abaye and Rava, so in the end it will cover everything. More or less. But there is no indication whatsoever that this rule is correct. For example, there’s some rule—I know—specific to Abaye and Rava, a rule that says that if they disagree within an earlier tannaitic dispute, not in a dispute that they themselves are directly arguing, then there is no rule that the law follows Rava. Where did this come from? Why on earth should that be true? There isn’t the faintest hint of it anywhere. Rather, someone invented this invention because it explains some Maimonides who ruled like Abaye in a dispute that is not YAL KAGAM. So they invented some such rule, that apparently when they disagree in the view of tannaim then no. And when it’s tractate Hullin then no. I could invent a hundred more such rules. There is no indication that this rule is correct. This rule too, by the way, creates difficulties, and there are already sub-rules for this rule as well. That is, when it’s completely clear that this whole business is some kind of—there I personally wouldn’t even play this game. Because there’s no indication that it’s correct. But all these rules that we negate—just one second—all these rules that we negate are rules that have some logic in themselves. It’s just that they’re not complete, not full, so you throw them out, patch them up, sand off corners—I understand. But just to invent an ad hoc rule for which there is no reason whatsoever to assume it is correct—who decided?

[Speaker E] YAL KAGAM—who decided that? The Talmud?

[Rabbi Michael Abraham] Yes. The Talmud established it. It’s in parentheses in the Talmud. No, no, in the Talmud—

[Speaker D] What? The Talmud. That there’s no reason they should establish it, because there isn’t some quality in Abaye that makes him more right than Rava; they disagreed here, they disagreed there.

[Rabbi Michael Abraham] So there’s no reason to say—I’m—

[Speaker D] I’m saying a rule in a case of despair, so if I find an object, there’s no reason to say that this object—as if I’m saying a rule in a case of despair because I understand that behind this thing there is Abaye and Rava.

[Rabbi Michael Abraham] Even among rules themselves there are two kinds. The Rogatchover talks about this in Bava Batra. Even among rules themselves there are two kinds. There are rules that have some logic behind them that causes the rule, and there are rules that are summary rules. So for example, Abaye and Rava disagreed in many disputes. In each one of them we ruled as we ruled for local reasons. Okay? Summing it all up, it turned out that in most cases the law follows Rava except in six. We summarize a rule; there’s no particular logic behind it because of which it is so. But it is a summary rule.

[Speaker A] As opposed to when we ruled, it wasn’t because of the rule, but after we settled all of it—

[Rabbi Michael Abraham] Then we summarize it. Exactly. Now—

[Speaker D] Rava was greater than Abaye, and then they needed to find some three out of six.

[Rabbi Michael Abraham] So that’s what I’m saying. There are cases where, for example, the law follows Rav in matters of prohibition and Shmuel in monetary law. Now, it is stated almost explicitly what the reason for the rule is—not explicitly, but almost. It is clear that Rav was apparently more skilled in matters of prohibition and Shmuel more skilled in monetary law; that didn’t happen by accident. Now in all the monetary disputes the law follows Shmuel, and in all the disputes concerning prohibitions the law follows Rav, and why? There it is apparently an a priori rule, not a posteriori. Meaning, it is not an ad hoc rule. That is, it’s a rule established in advance: they understood that Shmuel is a great expert in monetary law, and Rav—or Rav Nachman, sorry, yes, also in monetary law—they are experts in monetary law, so in monetary law the default is to rule like them, and in matters of prohibition the default is to rule like Rav. By the way, contrary to simple logic, specifically with summary rules you have to take them as is. There are no exceptions from summary rules. And specifically with substantive rules, where there is a reason to rule like Shmuel, specifically there can be exceptions. Even though ostensibly it seems the opposite. Why? Because the summary rule went over all the disputes and tells you what came out. The other rule tells you: look, if you don’t know, go with Shmuel because he is very wise in monetary law. But if I have evidence, then I won’t rule like him. That’s fine, no problem. It only gives you a default. With a summary rule—a summary rule—they have already gone over the cases, they’ve already done the work. And there it’s harder to say.

[Speaker A] There also won’t be another case, essentially.

[Rabbi Michael Abraham] What? There also won’t be another case. Exactly—there won’t be another case because they already went over the cases in the Talmud. Therefore there it’s harder to say. Rabbi Elchanan brings a proof there in Bava Batra—he brings a proof from a Talmudic passage in Eruvin 46, 47, 48, there with all the rules of tannaitic disputes, whose opinion the law follows, lots of rules. The Talmud writes that, if I remember correctly, it goes with Rabbi Yosei, Rabbi Yehuda, and Rabbi Shimon. I think it says that in Rabbi Shimon versus Rabbi Yehuda, the law follows Rabbi Shimon, and in Rabbi Yosei versus Rabbi Shimon, the law follows Rabbi Yosei. Then the Talmud infers from this that in Rabbi Yosei versus Rabbi Yehuda, the law follows Rabbi Yosei as well—by transitivity. Okay? Rabbi Elchanan says, if these were summary rules—this is in my language, but that’s what he means—if these were summary rules, then this is not correct. There is no reason at all to say that it should be transitive. Rather, you assume that one is wiser than the other, and the other is wiser than the first, so it’s true that that one is probably wiser than the first. Because if he is wiser than the second, who is wiser than the first, then certainly he is wiser than the first. When you make a kind of transitive consideration like that, you assume that this rule is a substantive rule and not a summary rule. Fine? I think that’s a nice indication. Because in a summary rule there is no reason to assume it is so. But this—

[Speaker C] It sounds like there’s some consideration of hierarchy in this. What?

[Rabbi Michael Abraham] It doesn’t seem to me that it necessarily goes one—

[Speaker C] —against one.

[Rabbi Michael Abraham] You can say that behind the summary rule—you can assume: why did the summary come out that way? Apparently Rav is wiser than Abaye, for example.

[Speaker C] Yes, you could also learn…

[Rabbi Michael Abraham] But it doesn’t matter, because in the end it came from a summary. Once it came from a summary, then the summary has already gone over all the cases.

[Speaker C] So why regarding transitivity? Yes. Okay. It could be yes, it could be…

[Rabbi Michael Abraham] You’re saying it’s a summary rule, but since behind it there’s some kind of… yes, but I’m saying that in a place where the law is without exceptions and always like someone, it’s not plausible that this always happens. Even someone less wise can sometimes be right; it isn’t hermetic.

[Speaker C] If there really are many disputes and no exceptions at all. Yes.

[Rabbi Michael Abraham] No, I’m saying with Abaye and Rava there are exceptions. For example, the law follows Rabban Shimon ben Gamliel in our Mishnah except for the case of the guarantor, Tzidon, and the final proof. Right? So there it is clearly a summary rule. Why? A. There are three exceptions, and B. in our Mishnah; in baraitot it is not so, only in the Mishnah. Fine? Why? Was Rabban Gamliel wise in mishnayot and stupid in baraitot? What? Therefore it is clear that this is not speaking about some a priori rule that wherever Rabban Gamliel appears he is generally a great sage and the law follows him, but rather they summarized all the disputes in the mishnayot and discovered that the law always follows Rabban Gamliel except for three cases. And that’s all. It is clearly a summary rule. Okay? Fine. In any case, for our purposes, the summary rule isn’t really the subject here, because a summary rule, okay, it just summarizes, it doesn’t say anything; it doesn’t touch at all on the question whether we follow rules or don’t follow rules.

[Speaker A] So then if you negated it, is it even a rule at all?

[Rabbi Michael Abraham] Yes, exactly. It’s a concise summary, that’s all. Therefore, when I speak about following rules, of course I’m not talking about summary rules but substantive rules. Fine? The question is whether to follow them or not. Just as I said now exactly: there is a substantive rule, not a summary rule, that the law follows Shmuel in monetary law. Okay? So this is not a summary rule; it’s a forward-looking rule, yes, an a priori rule. Fine? But there can be a situation where it is clear to me that Rav is right, and I will rule like him even though this is monetary law—if that is really so. Right? This shows us exactly that specifically where the rule—if it is a… summary rule, then we’ll go with the rule because it’s not a rule at all, it just tells you, summarizes for you the facts. But if we are talking about whether to follow rules that are substantive rules, then the fact that they are substantive rules itself says: do not follow them like a blind man. Because it means that this is a rule that tells you which way things tend, but there may be a situation where you clearly see that Rav seems more correct to you than Shmuel, even though this is monetary law. Fine? Then rule like Rav. And that is specifically because it’s not a summary rule. So this distinction itself shows, first, the fact that rules are indeed used, and second, that one must be careful not to be captive to them. That is, always a rule means: okay, this is some approximation, but it’s not something you should take too seriously, right? It’s not something that has no exception. Maybe—I’ll do this briefly—there is some expression of this deviation from rules, which maybe we’ll discuss more broadly later, through an escape from dichotomies. That is, we very often think in a dichotomous way: either this or that. But casuistic thinking, not positivist thinking, often is not willing to surrender to dichotomous thinking. So I’ve spoken about the heap paradox several times already, as an expression of this matter, but you can see several examples in Jewish law of this kind of thinking. Once we spoke about Maimonides in the second root, where for him the distinction between Torah-level law and rabbinic law is a continuous distinction, not a dichotomous one. Therefore all kinds of difficulties raised against him—he builds there some category of something that comes out of halakhic midrash, calls it “words of the scribes,” but its doubt is treated stringently. Then they ask him: wait, if it’s “words of the scribes,” then its doubt should be lenient. Because those who ask him assume that there are two well-defined categories here, rabbinic and Torah-level, and you have to decide whether you are here or there. But Maimonides does not accept that dichotomy. For Maimonides there is a continuum of levels between rabbinic and Torah-level, and you can be in many different places along that continuum. So that is, for example, a case of non-dichotomous thinking. There is another example of this matter. There was a journal called Higgayon, published at Bar-Ilan; now it was merged—not now, years ago—into Badad, “In all your ways know Him.” So in Higgayon, volume 1, there was an article there by some physicist named Daniel Weiss, I think, someone from Jerusalem, and he wrote there “Quantum Logic in the Sages.” He tried to argue that there are passages in which one sees thinking in the form of quantum logic. Well, the claim itself is a far-fetched claim, but he brought there an example that is a nice example, and I’ve used it quite a bit since then. There is a Talmudic passage in the chapter Tolin, I think, at the end of tractate Sabbath. The Talmud discusses there a dispute concerning a “City of Gold.” A “City of Gold” is a type of ornament, what Rabbi Akiva bought for his wife. The question is whether one may go out wearing it on the Sabbath, whether one may not go out with it on the Sabbath, from private domain to public domain. There is a tannaitic dispute there. Then the Talmud says: but we have not found a dispute from one extreme to the other. That is, we have not found a dispute where one says one is liable for a sin-offering, or it is prohibited at the Torah level, and someone else says it is permitted. Such an extreme dispute we have not found. Regarding this matter? No, in general.

[Speaker C] That’s a kind of sweeping rule.

[Rabbi Michael Abraham] Fine, one has to understand what it is talking about; the commentators there discuss it somewhat. And the Talmud says: so how can it be that here, regarding the City of Gold, one says one is liable for a sin-offering and another says it is entirely permitted? The Talmud answers: because in the middle there is a tanna who says it is rabbinically prohibited. Now the question is, why does that help? There are three tannaim. There is one tanna who says it is permitted, there is one tanna who says it is prohibited by Torah law. Why does the fact that a middle tanna says it is rabbinically prohibited solve the problem? If you say that the tannaim cannot think in such radically different ways from one another, then compare the first and the third—they are radically different. What do I care that in the middle there is someone else who says this is rabbinic law? He tried to argue that this is quantum logic, never mind. But it is really an interesting point. It is quite clear that from this Talmudic passage it emerges that when you say that something is rabbinically prohibited, one can understand that when you say something is rabbinically prohibited, essentially that has no meaning on the Torah-law plane. On the Torah-law plane it is entirely permitted; the rabbis determined it to be prohibited, as a safeguard, some decree or other, okay? Essentially, at the Torah level this is permitted. If that were really so, then what does it mean that “we did not find a dispute from one extreme to the other”? Suppose there were only two tannaim, one says the thing is prohibited by Torah law and one says the thing is prohibited by rabbinic law. So that’s not from one extreme to the other, right? Why not? The one who says it is rabbinically prohibited is basically saying: it is permitted by Torah law, only the rabbis decreed it. So what? So because of that it isn’t radically different from the first tanna? It differs to exactly the same degree: on the Torah-law plane he disagrees with him as though he said it is permitted. It’s just that in addition he says there is a rabbinic decree that nevertheless prohibited it. Why does that bring his opinion any closer to the opinion of the second tanna? He is not closer in any way at all.

[Speaker G] Practically speaking, the result is the same. What? The result between Torah-level and rabbinic—is it the same result?

[Rabbi Michael Abraham] Of course not. First of all, not exactly—a doubt regarding rabbinic law is permitted, a doubt regarding Torah law is prohibited. It’s not exactly the same thing, a Torah prohibition and a rabbinic prohibition. But I’m saying, it’s not on the practical level. In the straightforward reading, the point is that it isn’t plausible that two tannaim think in such radically different ways from one another, because the truth is probably somewhere near them in some way. And if they are so far from one another, then one of them is mistaken in an extreme way, and it isn’t plausible that a tanna would be mistaken in an extreme way. At least that is how I understand that statement. So what do I care that there is a middle tanna who says it is a rabbinic prohibition? So now I say: leave the three-way dispute aside; there are only two tannaim here. So you tell me: it cannot be that one tanna says it is prohibited by Torah law and one says it is permitted. So what can there be? Either one says it is rabbinically prohibited and one says it is permitted—that I can understand. Because if one says it is rabbinically prohibited and one says it is permitted, the meaning is that the one who says it is rabbinically prohibited also says it is permitted, only he says there is a rabbinic ordinance or decree, and the other says the rabbis did not decree. Fine, that’s not so terrible. But what happens if there is a dispute where one says it is prohibited by Torah law and one says it is prohibited by rabbinic law? Then the one who says it is rabbinically prohibited is really saying that it is permitted by Torah law. That is a dispute from one extreme to the other—just in addition he says that the rabbis also decreed it.

[Speaker C] Could it be that this is not from the standpoint of reasoning and not from the standpoint of Jewish law, but from a summary standpoint there would be here… from a summary standpoint? No, not from a summary standpoint, but it seems that it isn’t plausible that this should happen because the assumption there is that practical tradition is supposed to prevent the formation of a dispute.

[Rabbi Michael Abraham] Why? And if I really think that, then what does that mean? A new question could also arise, not only a question transmitted by tradition.

[Speaker C] Okay, the question is whether this is said also regarding new questions. Maybe that passage is only an algorithm?

[Speaker C] Fine, now we can start making ukimtot, I don’t know. An algorithm?

[Rabbi Michael Abraham] The Talmud presents it there that way, yes. It asks about that dispute: wait, but how can this be? After all, there is no dispute from one extreme to the other.

[Speaker D] But there are other disputes where one says forbidden and one says permitted, certainly, certainly there are such disputes. Here, when a person says it is rabbinically prohibited, he is basically saying that he understands there are reasons to prohibit it by a rabbinic decree.

[Rabbi Michael Abraham] Exactly, that’s what I’m trying to say. In other words, from this passage it clearly emerges that when we say that something is rabbinically prohibited, it doesn’t mean that from the Torah’s point of view it’s completely permitted, totally simple, with no problem at all, and only then the rabbis came along and made a decree. Apparently, when we say that something is rabbinically prohibited, the meaning is that there are also aspects pointing toward prohibition even on the Torah level; it’s just not decisive enough for the Torah itself to prohibit it. It doesn’t cross the Torah-level threshold. But it’s clear that even on the Torah plane there are some elements here. Why is that helpful? Because then someone who says that something is rabbinically prohibited and someone who says that something is prohibited by Torah law are actually closer to each other than someone who says it’s permitted and someone who says it’s prohibited by Torah law. Because when you say it’s rabbinically prohibited, that means that even on the Torah plane there are certain aspects of prohibition here, only not enough for it to be prohibited by Torah law. Now it’s also clear in the passage there why the existence of a middle opinion that says it’s rabbinically prohibited moderates between the two extreme opinions. Because basically what the Talmud is saying is that apparently the truth is that it’s prohibited at around the fifty-percent mark. Yes, in crude terms, okay? So the one who says it’s prohibited by Torah law basically means it crossed the Torah threshold—he thinks it’s prohibited at fifty-five percent. Fifty-five percent is already enough for it to be prohibited by Torah law. One says it’s rabbinically prohibited, so he says it’s probably only forty-five percent. Okay? So it’s rabbinically prohibited. And the one who says it’s permitted probably says thirty percent. So now they’re already in the vicinity of the truth, and that’s no longer such an extreme dispute.

[Speaker D] Why does that have to do with the middle position?

[Rabbi Michael Abraham] Why does that have to do with the middle one entering between them? Because if the middle one enters and says there’s a rabbinic prohibition, you already understand that the issue is more complex. Because there’s someone saying: true, it’s not prohibited by Torah law, but there are aspects here pointing toward prohibition, and then it could be that everyone agrees there are aspects pointing toward prohibition, and the argument is only about how significant those aspects are. Or where exactly the threshold lies.

[Speaker D] Actually, even with just two positions you could say that too, only you wouldn’t know it. And with the third, you do know it. Exactly. So with two you also wouldn’t know that it’s…

[Rabbi Michael Abraham] Right, that could be a distinction in those places—what Arik asked earlier. If we find a place where there’s a dispute from one extreme to the other, then maybe we really would say: they too are talking about thirty versus sixty, only here there’s no one in the middle to give you an indication of that. The Talmud’s assumption is apparently that if there are grounds for prohibition, then there will already be some tanna who identifies that and establishes a rabbinic prohibition here. If it’s not zero but thirty percent, then there’ll be someone who sees it as forty percent. Because if there’s someone who sees it as sixty percent, then how can it be that no one is anywhere between thirty and sixty? So someone will prohibit it rabbinically. That’s very reasonable. It could be that in a particular case there wasn’t, but that would be an unusual case. Usually there would be someone like that. Okay. But if it’s completely prohibited by Torah law—one hundred—then what, someone will see it as zero, or even thirty? Not likely. One hundred and thirty are too far apart. Sixty and thirty—that I can understand. Okay. So that means, once again, that a rabbinic prohibition is not zero on the Torah level with only a rabbinic decree added on top; it’s thirty percent Torah-level, meaning something like that—there are Torah-level aspects to it.

[Speaker A] You don’t have to be so alarmed by disagreement.

[Rabbi Michael Abraham] We’re not alarmed, we’re not alarmed. The Talmud assumes that no tanna strays too far from the middle.

[Speaker A] On the contrary, here I need some midrash to decide between two principles.

[Rabbi Michael Abraham] But the principles—but that’s exactly it. If you agree that both principles are valid, then you already understand that there are aspects pointing toward prohibition and aspects pointing toward permission. That’s already in the middle. I once talked about this in connection with the forty-nine reasons to declare impure and the forty-nine reasons to declare pure. I said that even the one who rules it pure understands that the forty-nine reasons to declare impure are valid; it’s just that the forty-nine reasons to declare pure outweigh them.

[Speaker A] And that’s “these and those are both the words of the living God.”

[Rabbi Michael Abraham] Yes, in the lecture on “these and those” I talked about it—the chocolate example—we won’t go back to that again. But the point is that there usually aren’t disputes about the reasons themselves. When someone raises a reason, it’s a valid reason. The whole question is how much weight each reason carries. There are countervailing reasons, and now the question is which reason you prefer, what weight you assign to each reason. That’s usually where the disputes sit, not in the reasons themselves. So I’m saying that once there’s someone who says there are no grounds for permission—it’s one hundred percent, no tricks—then there won’t be someone else who says it’s completely permitted. There’ll be someone who says maybe I agree, but rabbinically yes—that’s within the fifty-percent zone, not zero. Okay, it’s something… In other words, I think there’s a certain logic behind this way of looking at things: the assumption is that tannaim do not talk nonsense. Meaning, they can disagree, but it’s not that they have radically different perspectives from one another, because then it would mean that one of them is just completely off track, and that’s not likely. If someone is a serious Torah scholar, usually he’s not completely off track. He can make a mistake, he can disagree, but it’s not that he’s entirely off base. That’s the assumption here. Indeed, there are all kinds of examples of these intermediate states, where this one-or-zero way of thinking is basically a kind of thinking that works with logic: if it’s not one, then it’s probably zero—I have a proof by elimination. Non-positivist thinking is willing to accept intermediate shades too, not just black and white. And then you can no longer define things so sharply. Once every rule defines who belongs in the rule and who does not belong in the rule—permitted and prohibited—that’s what in Kabbalistic language is called judgment. Judgment always cuts sharply; it says here the law is like this, and there the law is like that. We’re talking about kindness, what goes beyond judgment—acts of kindness, beyond the strict law. Those are precisely the things that don’t fit into the black-and-white dichotomy of prohibited and permitted, but rather something that would be appropriate to give, though you’re not obligated. That’s called kindness. Right? So then you’re not operating with strict judgment. It’s exactly the same dispute as between positivism and casuistry. There are, for example, other illustrations. The Talmud discusses whether one’s force is like one’s body with regard to damages, and in other places as well. Then the Talmud asks: what about secondary force? It brings a dispute among the tannaim about secondary force. And what about secondary force? Seemingly, if you say that one’s force is like one’s body, then what’s the question about secondary force? One’s force is like one’s body, and secondary force is like force, and force is like one’s body, so secondary force too is like one’s body. Proven. What’s the problem here? Rather, it’s obvious that even the one who says one’s force is like one’s body doesn’t really mean it in a full, airtight way… exactly—he says force is seventy percent. Seventy percent is also enough. But seventy percent of seventy is already forty-nine percent, which is already less than fifty. You see? So secondary force is not… If force being like one’s body were hermetic, if force were completely like one’s body, then secondary force too would be like one’s body. So what’s the question? Same thing with an atypical manner of doing something. Many times halakhic decisors hesitate about an atypical manner. An atypical performance of labor on the Sabbath is rabbinically prohibited. If you do it in an unusual way, it’s rabbinically prohibited. But there are labors in which it’s permitted. Everyone asks: wait, but it’s an atypical manner, and an atypical manner is rabbinically prohibited. “Atypical manner” is a very amorphous concept. The question is how much you alter it. A small alteration is rabbinically prohibited; a big alteration… If I stand on one foot, is that selecting in an atypical manner? I can draw you a metamorphosis that takes standing on one foot and turns it into an atypical manner. Fine? In small changes, each time I’ll move you from standing on one foot, like Escher, like Escher’s metamorphoses, right, I’ll move you from standing on one foot to selecting. Fine. And obviously standing on one foot is not selecting. No one will say that that’s selecting in an atypical manner—the alteration is too great. Okay? So there are small alterations that are rabbinically prohibited, and large alterations that simply aren’t the thing at all—they’re just not it. Where exactly does the line pass? There isn’t a sharp line, but there is some sort of continuum on which the whole thing is built. In other words, moving beyond the dichotomy is also a kind of expression of anti-positivism. Because positivism always thinks in yes or no, according to the rule: you apply the rule—if yes, yes; if no, then no. Non-positivist thinking says the world is more complex; there’s a lot of gray between black and white, and sometimes it’s like this and sometimes like that. You can’t come with sharp rules, cut-and-dried rules. Okay, more later.