Positivism in Halakha and in General, Lesson 8

Table of Contents

• Two of Maimonides’ principles and the eternity of the Torah
• Interpretation, normativity, and the non-literal reading of the Torah’s eternity
• Additions versus change: the Sabbatical year nowadays, Tosafot, and Rabbi Akiva
• Meiri and the attitude toward non-Jews as a model for principled change
• Qualifying women for testimony and the psychological factor
• The swimsuit parable: simplistic conservatism and midrashic conservatism
• The presumption that a person does not repay before the due date: facts versus a normative principle
• What is Jewish law: the “if-then” and not the bottom line
• Practical examples: women for testimony and a wicked person qualified for testimony

Summary

General overview

The text presents the question of change in Jewish law as a tool for clarifying what Jewish law actually is, and places this within the claim that Jewish law is not positivistic and therefore it is hard to work with it using rigid rules. In the background stand Maimonides’ principles about Torah from Heaven and the eternity of the Torah, and it shows that a literal understanding clashes with the fact that Jewish law in practice is renewed and changes over the generations. Out of a distinction between interpretive addition and actual change, it argues that many changes are not a “replacement of the Torah” but a consistent application of principles to a different reality, and it proposes viewing Jewish law as a normative “if-then” rather than as a collection of fixed practical instructions.

Two of Maimonides’ principles and the eternity of the Torah

The text brings Maimonides’ eighth principle, “Torah from Heaven,” as the assertion that the entire Torah in our hands is wholly from the mouth of the Almighty, to the point of equating ordinary verses like “And the name of his wife was Mehetabel daughter of Matred” with central verses like “I am the Lord” and “Hear O Israel, the Lord our God, the Lord is one.” It presents a difficulty in light of Maimonides’ words elsewhere, according to which many interpretations of commandments and exegetical teachings were renewed over the course of history, and raises the possibility that Maimonides distinguishes between the verses of the Torah and “the accepted interpretation,” though tension still remains with his description that the practical details of sukkah, lulav, shofar, tzitzit, and tefillin are “the very form that God told Moses.” The text also brings Maimonides’ ninth principle, that the Torah of Moses will not be nullified and nothing may be added to it or subtracted from it, as well as Maimonides’ formulation in Laws of the Foundations of the Torah chapter 9 about a “commandment that stands forever and for all eternity” and “it is not in heaven,” and determines that a prophet is not permitted to introduce anything new, only to warn about observance of the Torah or to command a temporary measure.

Interpretation, normativity, and the non-literal reading of the Torah’s eternity

The text argues that the statement about the eternity of the Torah cannot be understood literally with respect to the Oral Torah, because the verses alone “hardly say anything at all” without interpretation. It proposes that the claim that “everything that an experienced student is destined to innovate was said by the Holy One, blessed be He, to Moses at Sinai” functions as a normative rather than historical claim, so that an innovation made according to the rules of interpretation on the text given at Sinai is considered “fruit that grew out of the Torah.” It emphasizes that mechanisms of change exist even within an authoritative framework, and cites Maimonides at the beginning of Laws of Rebels that any religious court in any generation can change what an earlier religious court did, and in rabbinic law this depends on being greater “in wisdom and number.”

Additions versus change: the Sabbatical year nowadays, Tosafot, and Rabbi Akiva

The text distinguishes between “addition” and “change,” and gives as an example a process in which “the Sabbatical year nowadays is rabbinic” went from an idea not raised in early passages to an accepted assumption ruled as Jewish law, while attributing this to economic hardship, destruction, and exile. It corrects the popular reading of the late Haggai Gilat and clarifies that according to his words, the hardship does not cause the sages “to invent Torah,” but creates a trigger for analysis that leads to a conclusion “that stands on its own.” It presents phenomena in Tosafot in which reality and established practice after the fact, along with historical need, lead to leniencies in areas like interest and the sale of animals to non-Jews, and defines this as permission in a time of hardship and not as a halakhic change. In contrast, it sets out a substantive change, such as Rabbi Akiva in Sabbath 64 on “and she shall remain in her menstrual state,” where “the earlier generations” practiced that a woman should make herself unattractive and not adorn herself during menstruation, “until Rabbi Akiva came” and changed the law with the argument “if so, you make her repulsive to her husband,” through an exposition that suggests this is a change touching on Torah-level law.

Meiri and the attitude toward non-Jews as a model for principled change

The text presents Meiri as an example of principled and even “sweeping” change regarding the Talmud’s laws about non-Jews, with the argument that the non-Jews of his time are “bound by the norms of the nations” and therefore discriminatory laws toward them do not apply. It sharpens the point that Meiri leaves in force the prohibitions on intermarriage and distancing connected to idolatry, and distinguishes between priority within one’s own society (“the poor of your city take precedence”) and the denial of a basic human relationship such as not returning a lost object to a non-Jew. It describes how in later generations, against the background of the rise of Reform, reading Meiri became so charged that some see him as “Reform,” and it brings the claim that Meiri wrote this way “out of fear of censorship,” along with its rejection on the grounds that Meiri repeats the principle in each and every passage as an address to the learner and not as a one-time declaration. It mentions an article by Yishai Greenfeld with arguments “worth thinking about,” but determines that in his opinion the conclusion is incorrect, and adds that even without relying on Meiri, the logic itself is compelling. In contrast, it sets the common rationale among contemporary halakhic decisors for saving non-Jews on the Sabbath through “ways of peace” and mutual fear, and emphasizes that Meiri in Yoma chapter 8 explicitly writes that one desecrates the Sabbath to save a non-Jew as a matter of principle and not as a technical device.

Qualifying women for testimony and the psychological factor

The text raises as a sensitive example the possibility of qualifying women for testimony on the argument that social reality has changed and therefore the disqualification of women, which was once “not irrelevant,” is not relevant today, and it argues that this claim is logically parallel to Meiri’s claim about non-Jews. It states that the common response to such a claim is to see it as illegitimate and to accuse it of Reform, and identifies at the root of the opposition a strong “psychological factor” that people do not admit. It clarifies that the discussion is not whether the conclusion is correct, but whether the very form of the argument is legitimate within the framework of Jewish law.

The swimsuit parable: simplistic conservatism and midrashic conservatism

The text offers a parable about people who had gone “since time immemorial in swimsuits” in the desert, and when they move to a cold region some continue in swimsuits in the name of tradition while others put on a heavy coat, showing that the instinct is to call the one who adapts “Reform.” It argues that the decision depends on the question what “the tradition of my fathers” is: preserving the immediate practice or preserving the principle behind it, namely, “clothing suited to the weather.” It brings a story about Rabbi Noach of Lechovitz and Rabbi Mordechai of Lechovitz, in which the son justifies changing customs by saying that “just as my father changed his father’s customs, so I too change,” and parallels this to two kinds of “Hazon-Ishniks” against the claim that דווקא the one who acts the way the Hazon Ish himself acted is the one continuing his path. It defines a “simplistic conservative” as one who preserves things “as is,” and the “midrashic conservative” as one who carries out abstraction and interpretation on the plain meaning, and then is devoutly faithful to the principled result even if the practical outcome changes. It adds that the convenience of the new result arouses suspicion, but “something convenient can also be correct,” demonstrating this with hot food on the Sabbath as a polemical context against the Sadducees.

The presumption that a person does not repay before the due date: facts versus a normative principle

The text analyzes the Talmud in Bava Batra 9 on the “presumption that a person does not repay before the due date” and argues that if reality changes and people do in fact repay before the time, it makes no sense to continue ruling that the borrower is not believed just because “that’s what is written in the Talmud.” It presents the position of a contemporary halakhic decisor who insists on preserving the presumption even when reality has changed, and describes sharp criticism of such an approach, then asks what to do with the passage itself if it is no longer relevant. It determines that the Talmud is not coming to teach “psychological facts,” since facts are checked through observation and appropriate tools, but rather to teach a halakhic-normative innovation: that when a factual presumption of a certain type exists, one can extract money on its basis even without two witnesses. It explains that the historical reality is a “case in which” for understanding the principle, but the principle remains binding even when the facts change, and therefore one does not “erase” the passage but understands it as a principle that is reapplied in accordance with reality.

What is Jewish law: the “if-then” and not the bottom line

The text argues that the question of change exposes a deep dispute over the definition of Jewish law: one approach identifies Jewish law with the practical instructions, while his approach identifies Jewish law with the rule of normative inference, the “if-then,” similar to logical structure. He uses an analogy to Aristotle and the shift from discussing contents to discussing structures, and also to the phenomenon of later rabbinic literature that deals with methodology itself, such as Avnei Miluim, Sha’arei Yosher, and Shev Shema’teta. He explains that Jewish law is “indifferent to contents” in the sense that it is not the facts and not even the normative result alone, but the mechanism that translates facts into norm, “glasses” that color reality in a normative color. He concludes that one who preserves the “bottom line” despite a change in reality is violating Jewish law itself, whereas the eternity of the Torah requires a change in the result when the “if” changes and the rule is preserved.

Practical examples: women for testimony and a wicked person qualified for testimony

The text proposes as a possible model explaining the disqualification of women from testimony as a disqualification of “someone not involved in the affairs of the world” and not an essential disqualification of women, so that if women are not like that today, qualifying them is preserving Jewish law and not breaking it, whereas one who does not qualify them “is the Reform one” within this midrashic framework. It brings an example that already occurs in practice among contemporary halakhic decisors, according to which “a wicked person in the halakhic definition is qualified for testimony” despite “do not join hands with a wicked person to be a malicious witness,” because the disqualification is understood as based on suspicion of lying that was typical then, and when no such suspicion exists today there is no disqualification of testimony even if there is Sabbath desecration. It concludes that the question of how one proves what the real rule behind the instruction is brings us back to the discussion of the non-positivistic character of Jewish law and the difficulty of seeing the ruling as the simple application of rigid rules.

Also social gatherings. Weddings. No, it makes subwoofers, yes, like weddings, and then if you do it outside, many times it’s better. When you hold the celebration outside it bangs on the ear less. But then the effect on the dancing is weaker. You can blast it farther away. It’s also a health hazard. No, it makes more noise. Here, decibels—seventy-five is the maximum allowed, and this is way above that. Of course. It’s like the law about the mosques, the muezzin, the muezzin law. That law—leave me alone. That law, go ahead and pass it. First let them enforce it afterward. No, but anyway there was no need for it at all, because it was already forbidden before. Once it goes beyond the permitted noise level during the relevant hours, it was forbidden anyway. Nobody brought that law in because they really wanted quiet. They brought the law in to show the Arabs, “we got into your faces.” Wait, but was it enacted or not? Yes, it was enacted. The law passed. Fine, whatever, not really—terrible things. Yesterday I read an article saying that under it the police would theoretically be required to go into a mosque to stop a noise nuisance. A long time ago. Yes. What I saw—I had thought that, but I also saw it written explicitly—I don’t know, I didn’t check it in depth—that everything could already have been done before. The government, the police, don’t want to do it. Maybe they even get instructions not to do it, I don’t know exactly, because they don’t want to stir up a sensitive issue, that’s obvious. But that law, the muezzin law, of course has no problem in itself. The uproar it sparked is incitement in the opposite direction, but it also has no benefit. On every side here it’s just pointless.

Okay, we’re getting a bit toward the end of this topic. I still wanted to deal with two aspects of the matter. One aspect that I’ll deal with today is the aspect of what Jewish law actually is. I’ll address that question through the issue of change in Jewish law, but by way of that I’ll try to illustrate more what Jewish law is in general, and that connects to what I said the previous times about the non-positivist character of Jewish law. Namely, that it’s actually very hard to work with rigid rules. And the next topic, more or less, I want to return to some special kind of loops—maybe in one of the previous years I dealt with it, I don’t remember. It’s a special type of loops for which Rabbi Shimon Shkop proposes an interesting solution. Sort of logical loops within Jewish law. Maybe we’ll do that next time. With that I’ll finish.

Okay, I’ll really start with this topic of changes in Jewish law. But again, my goal isn’t so much to discuss the question of change as to examine, through the question of change, what Jewish law actually is. What is it that we are touching when we change Jewish law? And the background to the discussion is two of Maimonides’ principles, the Thirteen Principles, or foundations. In Arabic it depends on the translation, depending on who translates. This is in the introduction to chapter Helek. The eighth principle is Torah from Heaven: “That we should believe that this entire Torah in our hands today is the Torah that was given to Moses, and that it is entirely from the mouth of the Almighty,” meaning that it all came to him from God, a transmission that is called, by borrowed language, speech. And no one knows the quality of that transmission except him, peace be upon him, to whom it came. “And that he was in the position of a scribe,” like someone taking dictation: they read before him and he wrote the whole thing, its dates, its narratives, and its commandments. Therefore he is called lawgiver. “And there is no difference between ‘And the sons of Ham: Cush, Egypt, Put, and Canaan’ and ‘And his wife’s name was Mehetabel daughter of Matred’ and ‘I am the Lord’ and ‘Hear O Israel, the Lord our God, the Lord is one’”—meaning, the most seemingly trivial verses and the most central verses. Everything is from the mouth of the Almighty, and everything is “the Torah of the Lord is perfect,” pure, holy, true.

To hear this from Maimonides—I don’t know whether to call it funny—Maimonides is extremely far from thinking that way. Maimonides writes in many places that it’s simply not true that the entire Torah in our hands was given to Moses at Sinai. That the entire Torah in our hands was given to Moses at Sinai—that’s simply not true. Most of the Torah in our hands was innovated. Maybe—or maybe you’re right. He’s talking mainly about the Oral Torah. No, look, “and its accepted interpretation is also from the mouth of the Almighty.” He starts with the verse and then the accepted interpretation—not every interpretation. “And the way we practice today the form of the sukkah, the lulav, the shofar, the fringes, the phylacteries, and the like—this is the very form that God told Moses and Moses told us, and he was only a faithful messenger in what he brought.” What? That fits everything he writes in his introduction to the Commentary on the Mishnah, that this accepted interpretation—or what he writes elsewhere—that all the commandments were given to Moses at Sinai. He writes that most things were innovated לאורך history. For example regarding expositions, he already said that the expositions are mostly creative—except for maybe three or four, he writes there—that they are creative expositions. Except for three or four? Yes, in a responsum. That most are creative expositions, and that also makes sense because expositions grow throughout history. But that means that actually, again, maybe you’re right, I didn’t notice that point—he’s talking about verses and he’s talking about the accepted interpretation. And maybe the accepted interpretation is limited. But if he’s talking only about that, then okay, then maybe it really isn’t so restricted, since there are a few specific laws. He says almost everything—about all 613 commandments. But we saw that people knew them there even without expositions; they had to understand what was being discussed. Shofar, sukkah—not all the details of how to do them. Fine, but they also had to understand those things. If you need to understand what a wall of a sukkah is, then you need to understand how to make a wall of a sukkah, and that includes details too.

In any case, that’s what Maimonides writes here. And they didn’t understand what had to be done for a sukkah? What does it mean, even without understanding what has to be done with lavud and various things? Not necessarily lavud, but clearly they didn’t understand only that you need walls and roofing. At least that’s not what it implies. What we make today as a sukkah, that’s what our forefathers made at Mount Sinai—that’s what he says, with all the details. It doesn’t sound plausible. Most of the details in the books of Jewish law and in the Talmud are details that are kind of edge cases or not very common things. Not true—why? Why do you think that? Most of the Jewish law in our hands is give-and-take, and the result of expositions and reasoning, things that were created throughout history. Yes, yes, but I’m saying most things are not the essence of the commandment. Is that called the essence of the commandment? Lavud is not part of the essence of the commandment? If you don’t do lavud the sukkah is invalid. I don’t know what’s called the essence of the commandments. We don’t do lavud ideally. No, really—make lavud of more than three handbreadths and the sukkah is invalid. I don’t know what’s called the essence of the commandments. Fine.

And the ninth principle is immutability: “That this Torah of Moses will not be abrogated and no other Torah from God will come, and nothing will be added to it and nothing subtracted from it, neither in the written text nor in the interpretation,” as it says, “You shall not add to it and you shall not subtract from it.” So here Maimonides is basically setting the framework of the discussion. He says that the Torah in our hands was given to Moses at Sinai, and there is no possibility of changing it—there is no other Torah. This is the eternity of the Torah. Also in the Laws of the Foundations of the Torah, chapter 9: “It is clear and explicit in the Torah that this commandment stands forever and for all eternity. There is neither change nor subtraction nor addition to it, as it says, ‘Everything that I command you, that you shall observe to do; you shall not add to it and you shall not subtract from it.’ Thus you have learned that we are commanded to perform all the words of the Torah forever. And so it says, ‘an eternal statute for your generations,’ and it says, ‘It is not in heaven.’ Thus you have learned that a prophet has no authority to innovate anything from now on.” Therefore if a person arises, from among the nations or from Israel, and performs a sign or wonder—and then he goes on to the matter of prophecy, that a prophet cannot change this. “If so, why does the Torah say, ‘A prophet I will raise up for them from among their brothers, like you’?” Not to establish a new religion, but to command regarding the words of the Torah and to warn the people not to transgress them. The idea is just to make sure people keep the commandments, or with matters that are optional—go to war today, don’t go to war—that’s what he says later.

So once again he returns, basically, to what he says in the Principles: the assumption that the Torah is eternal. That simple assumption obviously cannot be interpreted literally. The Torah in our hands is obviously not just the Written Torah. The Written Torah says almost nothing if you don’t take into account the way we interpret it. The verses by themselves say almost nothing. They are eternal, yes; those verses are the same verses that have always been there. But what do the verses say? That is open to interpretation. So if we look at Jewish law as it is in our hands—I’m talking now only about Jewish law—Jewish law as it is in our hands, then it is very hard to understand those statements literally. So either he is speaking about some kind of framework, or he is speaking about the fact that even if we do interpretations or things of one kind or another, essentially we are uncovering—or let’s say for the purpose of discussion, uncovering—more and more dimensions that are embedded within the Torah we received.

Suppose someone takes one of the thirteen hermeneutic principles, which according to Maimonides are a law given to Moses at Sinai, and applies it to the verses, which we also received at Sinai; then maybe he created a new law, but that law can be viewed as a product of the Torah that was given at Sinai. It says that all its details and generalities were given at Sinai. So first of all, maybe he really is speaking about the verses, about the Written Torah. But someone who applies this to the Oral Torah will likely mean: “Everything that an experienced student will ever innovate was shown by the Holy One, blessed be He, to Moses at Sinai.” And in that sense, I think the claim is not a historical claim but a normative one. When something is innovated today, from my perspective it is as though it was given to Moses at Sinai. Why? Because it is done by means of the interpretive rules applied to the text we received, and therefore the product, from my perspective, is only a fruit that grew out of the Torah we received. But it is not really the case that nothing was created throughout the generations. Fine—even that can still count as an eternal Torah.

Now, there are places where nonetheless we see that changes occur. Not only interpretive innovations, but even changes—meaning, relative to previous generations. Maimonides himself writes at the beginning of the Laws of Rebels that any court in any generation can change what a previous court did. By Torah law any court can do this; in rabbinic law, regarding rabbinic enactments, it requires a court greater in wisdom and number. But still, there are mechanisms that can change Jewish law throughout history. So it is clear that there are changes in Jewish law. Whether this contradicts what the Baal Shem Tov writes here—maybe not—but clearly, de facto, this is reality. It’s impossible to deny it. The question is how we relate to that kind of change.

I’m not talking now about interpretations; I’m narrowing the discussion to changes. Interpretation can be something additional that until then simply wasn’t addressed, so then it was innovated. For example, in Gilat’s book—I think I mentioned it—Chapters in the Development of Jewish Law. There he discusses several laws, among them the idea that the Sabbatical year nowadays is rabbinic. He shows from the passages that no one even entertained saying such a thing in the earlier passages. In the later passages it somehow became a kind of primary assumption, and it was also ruled in practice that the Sabbatical year nowadays is rabbinic. And he explains it by saying that economic distress, destruction, exile, and things like that forced the sages to find ways to be lenient in the laws of the Sabbatical year, and therefore they established that the Sabbatical year nowadays is rabbinic. To me this is not called change; it’s called interpretation, addition. Because “the Sabbatical year nowadays” means, say, after the Temple was destroyed, or when the majority of its inhabitants are not in the Land—“nowadays.” Before that they didn’t think about it, but it wasn’t relevant. The discussion of the Sabbatical year nowadays begins when that “nowadays” arrives. So true, there was an interpretation there that perhaps did not exist before, but it’s hard to call it a change in Jewish law. It’s not a change in Jewish law, it’s some kind of addition that earlier they hadn’t paid attention to or hadn’t understood, and later it was innovated. Before that there weren’t other things—distress is one thing, and the fact that it became “nowadays” is something else. The distress also arose when that period began, for our purposes. Yes, you’re talking about changes that happen over a short period. Fine, that’s true. I’m saying relative to the Torah given at Sinai, there’s no change here. The Torah given at Sinai—until then it just wasn’t relevant, nobody thought about it, that’s all. So that’s an addition; that’s interpretation.

A change is when they dealt with the issue, thought one thing, and then a court came and changed it, saying no, it’s something else. Also there, regarding Gilat, I think we once talked about this when I was living in Jerusalem before Hebron. When the book came out, the world shook and roared. Yes, Gilat, of blessed memory, was a professor at Bar-Ilan, but thank God he belonged to Hebron. And everyone bewailed the corruption and heresy that happens to people who come, Heaven forbid, from academia—how he claims that they invent Torah and because of distress they change laws and all kinds of things of that sort. Actually, at the time that sounded interesting enough to buy the book, so of course I bought it. And I read it, and the truth is that what he writes there is not that. He stays completely within Jewish law, basically. What he says is not that because of distress they decided the Sabbatical year nowadays is rabbinic, as people interpreted him. He doesn’t say that. What happened because of the distress is that they studied the issue more. And when they studied the issue, they found something that stands on its own, not because of the distress—that nowadays it is rabbinic. Before there was distress, the sages had no motivation to deal with that issue, and no one thought to examine that point. That’s all. So he doesn’t say that the sages do whatever they want—that once there’s distress they change Jewish law and solve the problem. He doesn’t say that. He says that when there is distress it triggers the sages to examine the issue, and then they arrive at certain conclusions.

In any case, that is what I call an addition. When I speak about change, I mean something that was practiced until a certain period, and from some point onward changed. One of the examples always brought in the context of a creative exposition is Rabbi Akiva in the Talmud in tractate Shabbat 64a, on “and she shall remain in her impurity.” The earlier generations used to practice that a woman would not paint her eyes or adorn herself during her days of menstruation, until Rabbi Akiva came and said, “then she becomes repulsive to her husband.” Therefore he permitted it, and he interpreted “and she shall remain in her impurity” with regard to something else—until she enters water. There the exposition says that she must purify herself in a ritual bath. Why he needed that exposition, since that was known even without it, doesn’t matter. But he gave a different exposition. And therefore he permitted a woman to paint and adorn herself during menstruation. There, quite clearly, a change is described. Until his time they did not practice that way, and from then on Rabbi Akiva changed the law. By the way, it sounds like it’s a Torah-level law. Interesting question, but that’s how the Talmud sounds. Because he had to derive it from a verse in order to make that change. It’s not some rabbinic law, the laws of menstruation or things like that.

Anyway, then, there are changes—not only additions but changes. And changes really are more problematic. Additions, fine—there are things that had not yet moved from potential into actuality. But changes—why doesn’t that contradict this principle of the eternity of the Torah? And ultimately I would say, maybe even in another formulation: is what they did until now, or what they do from now on, actually a mistake? And are they desecrating the Sabbath, or wait—committing a transgression? Either the earlier ones or the later ones. There is one Torah. There are not two Torahs. “This Torah will not be replaced.” Once you make a change and not an addition, that raises all kinds of difficulties. Especially in relation to the eternity of the Torah.

These things, of course, are very timely nowadays, when there are all kinds of demands, like in the period of the Enlightenment and Reform, to make changes in Jewish law. So this issue becomes sharper and of course more sensitive, and therefore people somehow try to avoid making changes even where they are called for and possible. Why? Because it always looks like some kind of Reform or surrender to the spirit of the times. But there are changes in Jewish law; there’s no arguing about it. There are changes. There is also a certain type of change that I want to put on the table—a change that really does come because of distress, not the kind I described earlier from Gilat.

There are Tosafot in tractate Avodah Zarah and Tosafot in “Which is Usury?” regarding interest, regarding selling animals to a gentile, and there Tosafot says that in our time it is not relevant—it’s impossible to prohibit selling animals to a gentile, or interest, or various things of that sort—and therefore they permit it. It actually seems that they permit it after the fact; the people were already acting permissively before, and Tosafot gives it a stamp of approval. I also don’t call that a change in Jewish law. It’s an interesting question how that can be done; in each place you have to explain it on its own terms. But it’s not called a change in Jewish law. It only means that in their view distress permits violating the law. That’s not a halakhic change. They didn’t, because of distress, now innovate a new law, cancel the previous law, and that’s that. They said: listen, if you’re in distress, then that overrides the halakhic prohibition you’re violating. Fine. That isn’t called a change in Jewish law. We know that in situations of distress there are all kinds of laws one may violate. Now we can argue where yes and where no, and how severe the distress has to be, but that isn’t called changing Jewish law. I’m talking about changes—changing Jewish law the way Rabbi Akiva did. Okay?

An example of a substantive change is Meiri, whom we’ve already discussed. Meiri regarding the gentile. What, Rabbi Akiva also wasn’t acting because of distress? What? Rabbi Akiva was also because of distress? No, in menstruation? No. Rabbi Akiva—I think that’s not a consideration of distress, it’s a substantive consideration. He says it cannot be that we would forbid this. Rabbi Akiva changed the law; he doesn’t say, look, since we are in distress it is permitted to violate the law. Rather: this cannot be the law, because then she becomes repulsive to her husband. For him that is an interpretive consideration within Jewish law. When I speak about distress, I mean that the distress… distress is not an interpretation of the law; distress is a permit to violate the law, not that the law itself has changed. Fine—in a time of distress you can violate a rabbinic prohibition, you can—it doesn’t matter—we found leniencies in a time of distress. So that isn’t called changing Jewish law. Rabbi Akiva used—I don’t even know whether to call it distress—it’s some kind of human consideration, moral perhaps, I don’t know. That consideration says this cannot be the law, and therefore he changed it. If in the time of the sages there had been a situation like the present one, then presumably the law would have changed? They wouldn’t have said that after the fact one may violate it? Right, clearly not, otherwise you’re simply disagreeing with the Talmud. If the Talmud itself says that even in the kind of distress you’re in, you can’t—how can you change that?

So Meiri—what I started to say here—Meiri is, I think, a very clear example of a principled change in Jewish law, in Torah-level laws and not only in rabbinic laws. And apparently it is a principled, sweeping change in Jewish law. Meiri writes in several places that laws found in the Talmud regarding gentiles do not apply to the gentiles of our time, because the gentiles of our time are restrained by the norms of civilized nations. Meaning, they behave in a moral way, in a proper human way, and therefore all the laws that discriminate between Jews and gentiles clearly no longer apply to them. What does it mean “discriminate between Jews and gentiles”? Only laws that are, say, against the gentile? It’s not the whole Torah. Any human treatment that you give a Jew, you must give the gentile too. Human treatment. But say, I don’t know, there are laws—give an example. There is, for example, an obligation—all the obligations of kindness, are they all included in the same way toward a gentile? It already says in the Talmud that we support the poor of gentiles along with the poor of Israel, but that’s not the point—that isn’t discrimination. Giving charity to one person who is close to me and not to someone else is not discrimination; even within the Jewish people, “the poor of your city come first.” That’s not discrimination.

Discrimination means not returning lost property to a gentile. But not returning—not at someone else’s expense. If there is a Jew and a gentile, I’ll return to the Jew first—that’s not discrimination. “The poor of your city come first.” Right. Also the prohibitions on intermarriage or distancing from gentiles because of idolatry or things of that kind remain fully in force according to Meiri. I’m speaking only about laws whose basis is discrimination. And by discrimination, again, I don’t necessarily mean it in a negative connotation—it sounds negative—but discrimination in this sense: those people are not human beings; you don’t have to give them human treatment. That’s how Meiri understood it. But today they are human beings, so today you need to give them human treatment. Discrimination that also has a negative connotation—usually if you… depends whom you discriminate against; for many reasons that’s also called discrimination. Fine, whatever.

I prefer my own children to someone else’s children. Yes. It’s like the difference between human rights and civil rights. Civil rights belong only to citizens. There’s no reason to give civil rights to some Australian citizen and have the State of Israel suddenly give him civil rights. The state is obligated to its citizens, not to someone else. But human rights belong equally to everyone. And in the discourse of human rights, you can’t privilege your own citizens over other people. Human rights—that’s basic; otherwise it’s called discrimination. Civil rights—that’s not called discrimination. The citizen is part of the society; the society takes care of him; he fulfills his obligations, and he also has rights. Fine, that’s like “the poor of your city come first.”

What about discrimination in granting citizenship? What? When you discriminate in naturalization—say, only Jews can receive citizenship and not gentiles. Look, it depends how you relate to it. If you say the Jews are part of us, then again, that isn’t discrimination; that’s my family. I take care of my family. Others who don’t see anything special in Jewishness do indeed see it as discrimination. So it all starts from the question of how you relate to your Jewishness—not your Israeliness; I’m speaking specifically about Jewishness, yes?—to your bond with world Jewry. Someone who sees us as a family—what’s the problem? I take care of my family. Yes, but an Arab citizen also wants to bring someone from his family for citizenship, no? And if this is a Jewish state, then the state takes care of its own tribe. Fine. So that isn’t discrimination? It isn’t discrimination; it depends how you conceive it. Again, there are those who do conceive it as discrimination. It all depends on your starting point. I’m saying: if you give a treatment that is not ad hoc, but one really built out of your basic identity, then it’s not discrimination—that is your identity. Someone who constructs an identity in order to discriminate—then the identity here is just for appearances. Meaning, say, someone who doesn’t care at all about his Jewishness but suddenly doesn’t let Arabs bring their relatives, only Jews—then I wouldn’t buy his line. So with regard to him I would indeed see it as discrimination. But if someone says, look, all my life I’m committed to Jews and not to others, then now when I also do one more thing where I prefer Jews over others—what is that, discrimination? It’s preference. Again, in a place where I have to choose—where I… If I’m harming someone, then I can’t prefer one over another. That’s a violation of human rights. Yes, say I need to put someone in jail—should I prefer putting the gentile in jail rather than the Jew? That’s discrimination. I can’t put the gentile in jail in place of the Jew. There’s no such thing. But taking care of him in the sense of civil rights, fine, that’s…

So Meiri says this very, very consistently in many places: the attitude toward gentiles that one sees in the Talmud basically does not exist in our time. This Meiri creates a lot of difficulty in standard halakhic thought. True, he wasn’t known—Meiri was a manuscript discovered late. He wasn’t available to the later authorities. But I believe that even if he had been available, people wouldn’t have gotten so excited about him as they do today—or not today, in the last generations. What happened in the last generations is that basically Meiri is Reform. Once Reform was founded, this became much more loaded, and then—wait a second—arguments of this sort: how can it be? Is Meiri Reform? Which leads many people to interpret that Meiri doesn’t really think that; he wrote it out of fear of the censor. So that people wouldn’t catch him on the fact that gentiles would see that discriminatory treatment of gentiles appears in the Talmud, he writes everywhere a kind of apologetic line that, heaven forbid, today this is canceled. And in truth there is such a phenomenon, of course, in several books, where authors who feared the evil eye wrote at the beginning some announcement: yes, of course in our generation the emperor, may his glory be exalted, who is full of kindness—obviously this doesn’t refer to him at all, only to those wicked gentiles, the ancient idolaters, and things like that. So there is such a phenomenon, obviously. But with Meiri I think that’s not correct. It is very implausible that that is the explanation of Meiri.

There are several indications of this. One of the clearest perhaps is that Meiri does not write this as some grand announcement at the beginning of the book. Meiri writes it in every single passage where there is a particular law that differs between Jews and gentiles; he repeatedly writes and specifies that this law does not apply to the gentiles of our time. If you want to write some declaration to appease the censor—he usually doesn’t read the fine print in every passage—write it in big letters at the beginning, and everything’s fine, and afterward you can write everything normally. If you write it in every place, that means you are speaking to the learner. When the learner studies the passage, you tell him each time: know that these laws do not apply today. And he repeats it so many times, in every single passage he is careful to repeat it.

I also don’t know how great the fear of the censor really was there in Provence. Someone once asked me, I tried to poke around a bit—I’m no historian—but I wasn’t impressed that there was some special pressure there. That’s what aroused the fury of—what’s his name, I don’t remember anymore—Izik Greenzweig, who wrote on Facebook about heresy, and that’s what started the whole business. He had studied with him in the kollel, so he wrote an article to prove that Meiri really means this only because of fear of the censor—that he doesn’t truly mean what he writes. By the way, it’s a good article. A good article with interesting arguments, some of which are definitely worth considering. He gave it to me to read. So some of it I didn’t accept, some I did accept, but overall I think he’s wrong. In my opinion, in the final analysis, he’s wrong, but definitely the arguments are serious—a good article.

Later, during the conversation, I told him: look, from my perspective, even if it weren’t Meiri I would say this on my own. What difference does it make? In the end the logic is correct. So why did Meiri say it? Because he had something before him—what is he relying on? Why do I need to rely on someone? So you know what, you’re right: Meiri said it only out of fear of the censor—but I’m writing it. And then he came out saying that I’m a heretic and saved the world and warned the world against me. In any case, maybe Meiri also thought… Meiri, from that distance, thought that in the time of the sages the reality really was different, no? Right. No, so really this isn’t a change in the law; it’s only the reality. Yes, right—I’m getting to that now. But the point is, if you say such a thing today, they’ll say you’re Reform. What do you mean? That’s the immediate reaction, obviously.

The example we already discussed more than once, regarding today’s reality, is an interesting practical ruling I heard: that the Rebbe of Sanz, in the regulations of Laniado Hospital—he wrote them—to treat gentiles like Jews, including desecration of the Sabbath. He writes those conditions explicitly. Oh, that already appears in the Mishnah Berurah, but the Mishnah Berurah writes only regarding rabbinic prohibitions, while in Biur Halakhah he brings the Hatam Sofer also regarding Torah prohibitions—and this… all only because of “ways of peace” and saving life and things like that. The whole modern state lives under “ways of peace.” Fine. But if you’re talking about “ways of peace,” then that isn’t a change in Jewish law. It’s not a change in Jewish law; it’s a technical consideration. Basically, you wouldn’t… I’d isolate myself and leave the gentile to die. Right? No one would hear of it and everything would be fine, no Jew would be in danger. Is that what should happen? Because it’s only “ways of peace,” only a matter of whether they’ll kill our Jews or not treat Jews elsewhere. Meiri says something else. Meiri, by the way, also addressed that. Meiri in Yoma, chapter eight, writes that one desecrates the Sabbath to save a gentile. And “desecrates the Sabbath”—he says it explicitly. Not only regarding things… desecration of the Sabbath is a serious prohibition. So Meiri’s claim is essentially that the gentiles of his time are different, and therefore the laws of the sages concerning them are canceled.

I started speaking about the example, yes—the example of qualifying women for testimony. We’ve also discussed that more than once. When I bring this up, people almost collapse, usually. Maybe today we should qualify women for testimony, because the women of old are different from the women of today, and perhaps the disqualification of women from testimony that existed once is no longer relevant today. So fine, one can argue about it, but is that argument a legitimate argument? Not whether it’s correct—that’s another question. Is it a legitimate argument? The accepted view is that it is not. Almost everyone I’ve spoken to, without exception.

Now, what you said about Meiri, I can say here too. It’s the same argument. It’s exactly the same argument, the same logic. Again, one can agree or disagree, but it’s the same argument. The point is, of course, that this is an instinctive example based on modernization. Right, but people don’t admit that. I agree… something that changed as something learned from reality. Why not? Didn’t you say earlier, rightly? No, I’m saying it’s true both regarding gentiles and regarding… you are the father of that report. Also the same thing regarding the gentile—that it changed in Jewish law entirely. Also the claim about the gentile is something learned from the decisors already for three hundred years. Three hundred years. I’ll get to that in a moment. I’ll explain in a moment.

In any case, the claim of Meiri is that such an argument is a legitimate argument in Jewish law. Not only legitimate—he stands behind it, he rules that way. The real question is how to analyze this matter. So here there’s the example, yes, the swimsuit example. A friend of mine once brought me this example in some argument we had. He said: suppose a group of people walk around in swimsuits in the desert. They and their ancestors had always walked in swimsuits. At some point they arrive in a cold region. Some of them say, “we have the tradition of our ancestors in our hands; we continue to walk in swimsuits,” even though it’s cold. Another group says, “we’re putting on parkas; it’s cold.” Who is the conservative here, and who is the Reformer? I assume we would all say that the conservative is the one who continues walking in a swimsuit, and the Reformer is the one who puts on a parka. We always say the second is Reform. The second, yes—the second is the one who isn’t me, you mean. I mean the second in the list I gave here. Both—no. So that’s the instinctive view. But when you examine it more deeply, it’s really not simple at all.

Because the question is why the person says he’s putting on a parka. He can say he’s putting on a parka because it’s cold. It’s cold—so then he really is a kind of Reformer; he’s simply not committed to Jewish law at all. But if he says, “I’m putting on a parka because I’m continuing the tradition of my ancestors. My ancestors wore clothing suited to the weather. There it was hot, so they wore swimsuits; I too wear clothing suited to the weather. Now it’s cold, so I put on a parka. Therefore the correct continuation of the way of our ancestors is to wear clothing suited to the weather.” Then the one who continues walking in a swimsuit is obviously the Reformer. The one who continues walking in a swimsuit is not continuing the tradition of his ancestors. He isn’t wearing clothing suited… Right, he’s the Reformer; he isn’t keeping the tradition of his ancestors. That very much resembles your earlier explanation about stripping abstraction out of the garments. Yes, exactly. The question is whether they established that one goes in a swimsuit, or that one goes with what stands behind the swimsuit—namely, clothing suited to the weather. Yes, exactly. The abstraction of what we spoke about in the previous lesson. The concept of what we discussed last time—I don’t remember. It was about the abstraction of things, a rule or… Ah, yes. But here it’s not exactly rule versus particular. Here the question is: what is the rule? Is the rule to wear a swimsuit, or is the rule to wear clothing suited to the weather? Those are two ways to interpret what the rule is that gets instantiated when one wears a swimsuit. If it were written in the regulations that one is obligated to wear a swimsuit, one could say that this applies to women. That one is obligated regarding women—there are those who say it wasn’t said about women in that form. That’s where I’m aiming, and that’s why I’m bringing the example. But it’s also good to say that it wasn’t given in such a way that women around the sea—and that’s not what stands behind women in that form. That’s the dispute, exactly.

And what I want to say is that even the people who say “we’re starting to wear a parka” are not necessarily non-conservative. They too are conservative. So what is the dispute between them? The dispute is really over what one is preserving. In other words, those who continue to wear swimsuits say: we continue to preserve what our ancestors actually did, the bottom line. They wore swimsuits, so we wear swimsuits. Let’s call them literal conservatives. They preserve the thing literally. Fine? What? Are you saying that everyone here, anyone in this case, is conservative? Someone does what his ancestors did, what they invented, and so I do what they invented. Yes, but they didn’t do what was comfortable for them; they did what was right. You do what is comfortable. In the analogy, not in…

So the claim—it’s like the story in Buber, in Tales of the Hasidim. He tells there about Rabbi Noah of Lechovitch and Rabbi Mordechai of Lechovitch. I don’t remember who was the father and who was the son, two Hasidic rebbes. But when the father died and the son ascended to the chair of leadership, he began changing some of his father’s customs. So the Hasidim came and said to him: how can you change the way of your forefathers? Didn’t you say one must preserve the customs of the ancestors? He answered them: not at all—I am preserving the customs of my ancestors. Just as my father changed the customs of his father, so too I change the customs of my own father. Meaning, I am exactly as conservative as my father was.

Here too, the two kinds of Hazon Ish people that I already mentioned. There are Hazon Ish people who fulfill everything written in the books of the Hazon Ish, and there are Hazon Ish people who do what they think is right, just as the Hazon Ish did what he thought was right. Those are the real Hazon Ish people, truly. And that was also the guidance of the Hazon Ish—that this is how one should act. He also said that this is how one should act. Literal Hazon Ish people are not really continuing the tradition of the Hazon Ish. Now it’s clear that’s so. Dalia Nadar—that’s the Hazon Ish people of the second kind. In any case, the dispute between those two groups can be described as a dispute between two kinds of conservatives. There is the literal conservative, who preserves things as-is, on the level of peshat, the plain meaning. And the second conservative—let’s call him the midrashic conservative. Meaning, he makes a midrash behind what he sees, behind the plain fact that they wear swimsuits. He makes a midrash. Why do they wear swimsuits? Because then the swimsuit was the clothing suited to the weather. Therefore the rule is really not to wear a swimsuit, but to wear clothing suited to the weather. After I’ve made that midrash, now the law I need to preserve is the law that emerged from the midrash—not the one that says you have to wear a swimsuit, but the one that says you have to wear clothing suited to the weather. And now there is a dispute between two groups of conservatives over what must be preserved, but both are conservatives.

Those who say, fine, I wear a swimsuit because it’s hot, I wear a parka because it’s cold—those aren’t in the game, because they’re not conservatives. They are not committed to the tradition of their ancestors. But the first two groups are both conservative. The whole question is only what they preserve. Now, what does this really mean? It means that many times, when we look at a change in Jewish law, we need to examine not only what is done, or how what we are doing now relates to what was done until now, but why we are making this change. If behind this change there is a midrash—if behind the change there is a midrash—then it is really not a change. The midrash only reveals that the law that must be preserved is not the literal law, but another law—but that one I preserve through fire and water; I’m a fanatical conservative. Okay?

Now, I think one reason why we nevertheless react the way you also understand—that what I’m saying now sounds half like a joke. That’s how you feel. Because the one who continues walking in a swimsuit—that’s uncomfortable. The one who puts on warm clothing—that’s comfortable. Right? Once it’s comfortable, suspicion arises that you’re inventing a theory but really all you want is to let yourself do what’s comfortable for you. In contrast, those people with the swimsuits—it’s clear they do it because that’s what they did. They believe in it; they have no other reason to do it, because it certainly isn’t comfortable. Right, but on the other hand that still isn’t decisive, because the fact that something is comfortable doesn’t yet mean that it’s not correct. Something comfortable can also be correct. There is no rule that something comfortable is always forbidden. The sages turned the comfortable into an obligation with hot food. The sages said that hot food is good to eat on the Sabbath, which is a change relative to the Karaites. Meaning, the Karaites said one must do the literal meaning—namely, not light a fire. And specifically on the Sabbath there is the matter of Sabbath delight, so the comfortable there is the law on the Sabbath. I think they said that it was a virtue because of the hot food, not because of Sabbath delight, no? I mean, to perpetuate—no, just to counter the Sadducees. Yes, fine—that’s what people often do. They make leniencies in order to counter the Sadducees. Fine, and that’s correct—you don’t permit a prohibition for that.

So the claim is that when we examine a change in Jewish law, we need to examine the motives for the change or the justification for the change, and then we need to see whether there is really a change here or not. Because if someone presents a justification of the type I explained here, then ultimately it’s clear to us that he is not changing anything at all. He is preserving exactly like the other side. The whole dispute is over what should be preserved, what it is that should be preserved. And here I’ll broaden it a bit more. I’ll illustrate it through something I also think I once said. I’ll illustrate it through the Talmud in Bava Batra 5a: “There is a presumption that a person does not repay before the due date.” The rule the Talmud establishes is that if Reuven claims money from Shimon that he lent him, and he lent it to him for thirty days, and after a week Reuven demands that Shimon repay the loan, Shimon could say, “Wait three weeks; I still have three weeks,” since an unspecified loan is thirty days. And Shimon doesn’t say that—he says, “I repaid it.” So the Talmud says we do not accept that. Why? Because there is a presumption that a person does not repay before the due date. Meaning, if you still have three weeks to hold onto the money, it is not likely that you repaid it before the due date. If you have proof, fine—it may be that you repaid before the due date—but if you don’t have proof, then the simple assumption is that you did not repay before the due date. Okay? And therefore you will basically have to pay. We don’t believe you that you repaid. There is a presumption that a person does not repay before the due date.

Now let us assume that we live in a situation in which people do repay before the due date. Reality has changed. Like today—sometimes people want to reduce debt. Yes, right, that’s part of it. Liability, risk, however you want to call it. A mortgage—some inheritance falls into your lap, so many times you pay off the mortgage; you want to get rid of it. So today there is no presumption that a person does not repay before the due date. Right? At least in certain situations. Let’s say there is some situation—it doesn’t matter—an essential point: the nature of human beings has changed. Fine? It’s hard for people to hold debt; if they have the money, they repay immediately. Does the law of the Talmud remain as it stands? In such a situation, when the lender sues the borrower within the term and the borrower says “I repaid,” the Talmud’s law—that he is not believed, and that there is a presumption that a person does not repay before the due date—that is completely implausible, right? No decisor in the world would ever rule that way. He writes about someone that this is casuistry to contradict the Talmud. What? He writes something like: someone who says that should take kerosene and burn the whole Talmud, something like that. And still, if he sat on a court, he would rule exactly as I’m saying now, in a financial context. Obviously. Not in a context of… No, in other contexts too he would rule the same. He said that as an answer to the Sadducees—you know, an answer to the Reformers. An intelligent person cannot believe such nonsense. He was an intelligent person after all. Still, these presumptions didn’t descend from Sinai, and all kinds of absurdities of that sort—he invented such silliness.

But there are expositions tied to reality, no? What? There are expositions that uncover reality. There are expositions that tell us what reality is today—for example whether there is despair of recovering lost property, no despair. Doesn’t matter—give an example and I can respond. There are expositions that perhaps assume a reality, I think. There is a matter in an exposition to learn that a person is the generation. What? That the person is the generation. And also expositions where Tosafot writes that there are many stars. And how do we know that? It says “Lift up your eyes and see if you can count the stars,” with Abraham. And he writes on that, “one cannot deny what is evident to the senses.” Look at the heavens and see there are many stars—what do you need verses for? But it’s from the Torah. What? But the Belzer Rebbe—my uncle told with great pride that the Belzer Rebbe was at the legendary eye doctor of Jerusalem. What was his name? Dr. Ticho. He was at Dr. Ticho, and the doctor—there was some problem with his eyes—so Dr. Ticho said to him, “Look, there’s a bird here; I want to see how you follow the bird with your eyes.” He asked him, “What is a bird?” My uncle was very proud of that saintliness. Like those stories about people who don’t know the form of a coin and all kinds of legends of that sort. Okay.

In any case, the claim is that clearly one is not supposed to continue ruling as the Talmud says, with the presumption that a person does not repay before the due date, because reality has changed. It could be. Now the next question I ask about that sugya is: so what do we do with the Talmudic passage? Should we tear out page 5 of Bava Batra? Meaning, is it now superfluous, irrelevant—is that neglect of Torah study? Maybe. Because those who don’t think there is necessarily sanctity in every line written there might see it as a kind of aggadah. One can see it as a kind of aggadah. Yes, exactly. And when you study that in this situation this is the law, then in other situations different from it, the way I draw conclusions, the way a Talmudic passage operates, is still binding. Right—I’ll formulate it even more concretely for the passage here. Someone who thinks this passage is irrelevant assumes that what this passage comes to teach us is the psychological fact that a person tends not to repay before the due date. But I don’t think Talmudic passages come to teach us psychological facts, or any other facts. Facts are something we examine with the tools used to examine facts—through observation, through scientific tools, whatever, through various experts. Someone who wants to know what the relevant facts are—we know how to investigate facts, depending on the context. There is no reason in the world to investigate facts—as with Tosafot and the stars—to investigate facts out of the Talmud. And therefore it’s also unlikely that the Talmud is coming to teach us facts.

That is the point. The Talmud does not come to teach us facts, but rather what? The Talmud comes to teach us that if there is a fact that a person does not repay before the due date, and such a presumption is created, that presumption can extract money. A major novelty—and that is a halakhic novelty, not a factual one. If the fact is that in reality people do not repay before the due date—and apparently that was the situation in the time of the Talmud—then when a person claims “I repaid” within the term, even though usually to extract money from someone one needs two witnesses—“by the testimony of two witnesses shall a matter be established”—the novelty of the passage here is that a presumption too can extract money. Not only witnesses; a presumption too can extract money. That is a sweeping halakhic novelty. And it has nothing to do with the question of what reality is. The novelty is not that a person does not repay before the due date. The novelty is that if there is a presumption, one can extract money by means of it; one does not need witnesses. One can extract money also on the basis of a presumption. That is the novelty of the passage.

And what that means is that the novelty of the passage is normative, not factual. The normative novelty of the passage always stands. It is not supposed to change. So long as the authority of the Talmud stands, it is not supposed to change. But the facts that prevailed in the time of the Talmud—what is the problem? Facts change all the time; the world changes. Why shouldn’t today’s facts differ from what existed then, including psychological facts? So people can behave differently from how they behaved in the time of the Talmud, and of course that happens in many contexts. There is no reason at all to say that here it does not happen. So what then? It means I do not erase this passage from the Talmud, and I continue. Why? Because the lesson I learn from the Talmud is relevant today just as it always was. The lesson that says that when there is a presumption, one can extract money by means of it. What counts as a presumption? Check below and see what the reality is in your own time—that will be the presumption. But the Talmud tells you the halakhic principle, not the facts. The halakhic principle that a presumption can extract money—that you learn from the passage.

Now, in order to learn that from the passage, you of course have to enter into the reality that existed then, the realia of that time. And the psychological realia then was that people did not repay before the due date. That’s perfectly fine—you need to understand what context the Talmud is speaking in. But all that is only the case setup. It’s the setup needed to understand the normative principle that emerges from the passage. And the normative principle is not dependent on the realia at all. That normative principle will also appear in the opposite realia; it will appear adapted to the relevant realia, okay? And therefore it remains forever. If we are talking about the eternity of the Torah, then what is eternal in this context—even though I don’t know if it’s quite right here to speak about the eternity of the Torah, because this is the sages; it can be changed, a later court can change it, can say that a presumption does not extract money, just to be clear, okay? It’s not written in the Torah, this matter. But I’m saying: at least as long as the authority of the Talmud remains, then yes, we are bound by this. Bound by what? By a normative determination, not by the facts. Right—we don’t need to dress as the Amoraim dressed in Babylonia. We don’t need to behave as people behaved in Babylonia. There is no obligation to do that. And if we behave differently, then that very same law, with respect to the new reality, will tell us different instructions.

Therefore, what this passage, what this example really teaches us, is that the big dispute is over the question of what Torah is and what Jewish law is. Here I’m really arriving at the punchline. The view that sees something like this as change is a view that sees Jewish law as the collection of practical instructions—that is the law. In contrast, I claim that the practical instructions have nothing at all to do with the law. The law is the principle that stands behind the practical instructions. If we return to the swimsuits: the law is not that one wears a swimsuit. The law is that one wears clothing suited to the weather. In hot weather that’s a swimsuit; in cold weather that’s warm clothing. Okay? Here too, when a person repays before the due date, then the presumption is that a person repays before the due date—or that there is no presumption that he doesn’t. When a person does not repay before the due date, then there is a presumption that a person does not repay before the due date. Each time you apply the presumption according to the rules of the Talmud. But what the presumption says, what the presumption will be—that changes.

And therefore the claim arising from here is that the question of change only reflects a much more fundamental question. When I ask whether a certain change is a change or not a change, whether it is legitimate or illegitimate, I am really asking: what is Torah? Because according to how I decide what Torah actually is, I can ask what is the thing that is not supposed to change—or if it changed, that’s a problem. If I conceive of Torah as the practical instruction that appears in the Talmud, then once you changed the practical instruction, that is a change. But if you understand that Torah is the principle that lies behind the practical instruction, then what’s the problem? I am applying that same principle to a different reality, so the result, the practical instruction, will be different—but that is the application of Torah. By what tools? What appears before you are the instructions. By what tools do you grasp what the principle is? This is where the dispute lies. Right, that’s my next point—I’ll talk about it. Isn’t this all just the reason for the verse? What? If it were a verse, it would be the reason for the verse, but this isn’t a verse. But also in expositions learned from verses? In expositions, there is no “reason for the verse.” I’ll comment on that in a second.

There is a law that there is no part of a placenta without a fetus, and there is also a textual support for it. I think on page 111 there. Suppose there was some genetic change, I don’t know what, genetic enhancement, and they transformed the placenta so that it was the opposite—so then the Torah changed, in that sense? The Torah didn’t change because that is reality; reality changed. That’s exactly the point. Torah is not reality; Torah is norms, not facts. Yes, but they make a textual support from the verse. A textual support isn’t an exposition. I don’t remember at the moment, because it’s half an exposition, a textual support. It’s not an exposition. They attached the reality of their time to a verse. If the reality in our time is different, then because they attached it to a verse, should we ignore reality? No. If reality is different, then it’s different. Nobody is going to ignore reality if it’s clear that that is the reality.

So the point is that if I conceptualize more sharply what Torah actually is—it’s like in logic. One of Aristotle’s innovations, to return a bit to that, one of Aristotle’s innovations was not the use of logical tools; people probably did that before him as well. Even before him, when people understood that all frogs are green and encountered a frog… Once he noticed there were certain fixed patterns, he suddenly turned the pattern itself into the subject of discussion. Meaning, until Aristotle people used logical thinking to discuss frogs and the colors of frogs. Aristotle discussed logic itself. It became his subject. Not the use of logical tools for biology or physics or I don’t know what, law—but logic itself became a field of discussion. That was Aristotle’s innovation, in the Organon. So the claim is that what Aristotle discovered was that within our thinking, in various contexts—in daily contexts and in different scientific contexts—there lie several formulas or several common patterns that are general, that appear in many places, and thereby he turned them into a theoretical subject in its own right and not merely an instrument.

I spoke about this, actually, not so long ago, I think. I spoke about rules in Jewish law—maybe even in this topic, I don’t remember—where I said that only in recent generations did people begin dealing with rules as a subject that is itself a topic of study. They didn’t just use rules of “migo” to solve a problem in one passage or another; they wrote a book about the rules of “migo.” And that wasn’t so common in earlier generations. Books like Sha’ar Yosef, like Shev Shema’teta—these are relatively new books, books that didn’t exist before. These are books that deal with methodology as a subject of study, and not only use methodology within the framework of standard Talmudic analysis.

So the point is that in logic, what happens is that logic is basically transparent to its contents. Logic is indifferent to contents. Because from the standpoint of logic, what matters is the structure. If every X is Y, and A is X, then A is Y. I don’t care what A is, what X is, or what Y is. Therefore, in logic, for example, the premises can be false, the conclusion can be false, and still the argument deriving the conclusion from the premises can be valid. Right? If all lecterns are frogs—fine?—this paving stone is a lectern, therefore this paving stone is a frog. None of the statements involved in that argument is true, but the argument is valid; the conclusion necessarily follows from the premises. And from the standpoint of logic, that is what interests me: only the derivation of the conclusion from the premises, not the conclusion and not the premises. Even though when one uses logic, of course, we use it in order to derive conclusions. Ultimately logic is a tool. We want this tool in order to derive all sorts of conclusions. So the premises have to be true. Exactly. But Aristotle built a new theoretical field that deals with the instruments of derivation themselves.

I bring this as an analogy to Jewish law itself. I claim that Jewish law is a set of derivation rules, exactly like logic. Jewish law is completely indifferent to contents—that is, to facts, and even to normative instructions. From the standpoint of Jewish law there is no such thing as “a person is believed” or “a person is not believed,” “she repays before the due date” or “she does not repay before the due date”—that is not interesting. That is not Jewish law. That is the result. The law is the if-then, like logical inference. If there is a presumption that a person does not repay before the due date, then the person is not believed and we extract the money from him. Now, the law is not that a person does not repay before the due date—that is a fact. The law is also not that a person who claims within the term is not believed, even though that is a norm. Even that is not the law. The law is that when this is the fact, then this is the norm. That is the law. The law is a kind of pair of glasses—glasses through which we look at facts, and when we look at facts they are colored in a normative color. That is the normative conclusion. The law is neither the facts nor the final norms. The law is only the inference, the if-then.

And therefore when I apply that same law that appears in the Talmud to different or opposite facts, the result will be completely opposite—but I am the true conservative. Why? Because what I am preserving is the law. The one who preserves the final result, as with the swimsuits, is not preserving the law. Because if the reality is different—suppose a person really does repay before the due date—and now you won’t believe him when he claims he repaid within the term because the Talmud says he is not believed, then you are the Reformer. You are the Reformer. Because your loyalty is to the Talmud’s bottom line. But that is not what the Talmud says there. The Talmud there did not come to state the bottom line. The Talmud came to state the if-then. And once the “if” is different, the “then” also has to be different if the rule is the same rule. But if under a different “if” you apply the same “then,” that means your if-then rule is a different rule, so you changed the law. Like those who continue to wear swimsuits even though it’s cold. In my conception of midrashic conservatism, they are Reformers, even though they are preserving what people did once. Why? And again, they are preserving a norm and not a fact. Right—but the norm is also not the law. The law is the norm in relation to a given factual framework. Yes, but where—where do they get the derivation rule from? After all, sometimes all you have is the final result. We’ll get there. I said we’d get there.

The derivation rule. So with swimsuits the question is whether they really concluded that people wore swimsuits because it was hot. Exactly. That’s what I need to know. Exactly. So the claim is that behind the question of change lies the question what Torah is. Meaning, those who regard a change in a halakhic instruction as a change in the law understand the halakhic instructions themselves to be the law. And that is not true. The law is the if-then, the rule of inference. Therefore if reality changes, then in order for the law to be preserved, the normative instruction must necessarily be different. Because otherwise the law is not preserved. And precisely the eternity of the Torah requires the change. The one who preserves the bottom line is actually the one who violates the eternity of the Torah. He is the one who is effectively saying that the principles of Torah are not eternal. According to my interpretation, the principles of Torah are the inference rule, not the bottom line.

Now the big question—we can bring various examples of situations where people actually do this. For example, I just spoke about qualifying women for testimony. Immediately, of course, the claim arises that I’m Reform. Yes? What do you mean? The sages disqualified women from testimony. A Torah-level disqualification, yes—the sages derived from a verse that women are disqualified from testimony. So I claim that they did not disqualify women from testimony; they disqualified those who are not involved in the affairs of the world from testimony. Now we have to check who is involved in the affairs of the world and who is not. Again, I am making an exposition. An exposition on the sages, yes? I mean, I’m doing midrashic conservatism. I’m asking: why did the sages disqualify women from testimony? Why did our forefathers wear swimsuits? Because they understood women to be human beings not involved in social life, in economics; they don’t correctly decode what they see. You can’t accept testimony from such a person—like an incompetent person. It doesn’t have to mean incompetence in IQ terms, but disconnected from the world; she doesn’t understand how things work, what the meaning of things is. So you can’t accept testimony from such a person. If I am right about this, then if today I see that women are not like that, then in order to preserve the law I must qualify women for testimony. Not that I may. Someone who does not qualify women for testimony is the Reformer according to this approach. He is changing the law, because the law does not disqualify women from testimony; the law disqualifies disconnected people from testimony. And that really is—and that really is—the inference rule. Yes. But who tells you that this is it? Where did you learn that this is it? We’ve returned to the question again. I said I’m getting there. I’m only trying to show the point.

Now look at an example of where people actually do this in practice. Many decisors today write that a wicked person, in the halakhic definition, is fit for testimony. Even though this is a Torah-level law—a wicked person is disqualified from testimony: “Do not join hands with a wicked person to be a malicious witness.” “Do not place a wicked person”—the sages expound it. What? How do they qualify a wicked person for testimony? They say: the wicked people of old—someone who violated, say, a sin punishable by lashes or death, intentionally. What? Like death. So the claim is that in the time of the sages, someone who was wicked in the religious sense was also suspect in the moral sense—meaning, there was reason to suspect he would lie in court. And if the disqualification of the wicked is based on suspicion of lying, then the wicked person of today—if you assess that he is not suspected of lying, what do I care if he desecrates the Sabbath? Meaning, I do care, but that does not touch his disqualification from testimony. Therefore I can qualify him for testimony. Now there is a dispute among decisors today, but many decisors today write that people who are “wicked” by the definition of then are fit for testimony today. Why are they fit for testimony? They are doing a midrash—midrashic conservatism. They say: what was disqualified there was the wicked from testimony because of suspicion of lying. Fine? Because they were suspected of lying. Today the wicked, in the Talmudic definition, are not suspected of lying. Therefore they are not disqualified from testimony. Why didn’t the sages work with expositions and with a rabbinic disqualification—disqualify those people rabbinically from testimony and not derive it from a verse? Because we are dealing with a Torah-level disqualification. What do you mean why? This is a Torah-level disqualification. Someone not involved in the realities of the world is Torah-level disqualified from testimony. By the way, gamblers and pigeon-racers and things like that—if I remember correctly there is a dispute there—and the simple reading is that it is Torah-level disqualification.

There’s a shift in the order of the world here. And then do we also need to arrive at practical rulings for many revolutions regarding the laws of the Sabbath? Maybe. I don’t know. We need to examine the midrash. We need to examine the conservative midrash. And that brings us to Shmuel’s question. I said I would get to it, and I am. The point is that in the end the question is how—how does one prove such a thing? How can you show… And here we basically reconnect to the question of positivism. Because the real question is: this rule I’m talking about—where does this rule come from? Is it really the case that we are operating by rules, and the dispute is over which rule is binding? Or is this not really operating by rules at all? So everything I’ve done up to now was an introduction, and this question really connects us back to the question of positivism. So.