Positivism in Halakha and in General, Lesson 9

Table of Contents

• Simplistic conservatism and midrashic conservatism
• The presumption that “a person does not pay before the due date” and defining the Torah as an “if-then” system
• Examples of necessary change: disqualifying a wicked person from testimony, and testimony required to establish the matter
• Evidence that is not testimony, the practice of religious courts, and civil courts
• Meiri and attitudes toward non-Jews as a midrashic application
• “Do not form factions,” local custom, and turning “place” into something virtual
• Reasoning, proofs, and the claim of “hidden reasons”
• The price of conservatism and the obligation to act according to what is reasonable
• Stepping outside the system, growth of law, and halakhic positivism

Summary

General Overview

The speaker defines legitimate halakhic change as change that is worthy of discussion, and distinguishes between simplistic conservatism, which clings to past practice, and midrashic conservatism, which seeks to preserve the principle behind the practice even if the practical result changes. He argues that Jewish law is not a collection of facts and not a rigid “bottom line,” but rather a normative rule of the “if-then” type that sometimes requires a change in halakhic ruling when reality changes. From that, he explains how halakhic decisors actually make use of conservative midrash in practice, why claims about “hidden reasons” do not stop reasoned argument when there is no evidence against it, and how the illusion of positivism is created when people forget that the rules themselves are interpretive generalizations created by learners and were not “given at Sinai.”

Simplistic Conservatism and Midrashic Conservatism

The speaker presents a parable about “swimsuits” in the desert to illustrate that simplistic conservatism preserves the form of the patriarchs’ practice as is, whereas midrashic conservatism changes the practice in order to preserve the principle of matching clothing to the weather. He says the real argument is not only about legitimate change, but about the question of what “the tradition of the fathers” is and what “Jewish law” is: whether one should preserve the actual practice or the interpretive principle behind it. He argues that midrashic conservatism is not a clever trick but the common mode of operation in practice, even when the educational ethos is presented in simplistic terms.

The Presumption That “A Person Does Not Pay Before the Due Date” and Defining the Torah as an “If-Then” System

The speaker cites the passage in tractate Bava Batra about the presumption that a person does not pay before the due date, and argues that the Talmud is not teaching a psychological fact but a normative innovation, according to which such a presumption can extract money from someone in possession of it even without two witnesses. He states that facts are learned from reality, not from the Talmud, and therefore if in reality the presumption changes, then the law as applied should change as well—and that itself is the correct application of Jewish law, not a change in it. He distinguishes among three components: the factual assumption, the application rule of “if-then,” and the practical outcome, and identifies “the Torah” with the application rule, not with the facts and not with the outcome.

Examples of Necessary Change: Disqualifying a Wicked Person from Testimony, and Testimony Required to Establish the Matter

The speaker gives the example of halakhic decisors who validate a Sabbath desecrator as a witness on the grounds that the historical disqualification stemmed from concern about lying, whereas today a person may reject halakhic obligation yet still remain committed to telling the truth. He qualifies this by noting that the reason for disqualifying a wicked person from testimony is disputed, and that distinctions must be made between monetary law and betrothal, where the witnesses are “witnesses required to establish the matter,” meaning that their role is constitutive, and therefore the question of truth-telling is less relevant. He brings a practical example of annulling a betrothal on the basis of a witness’s disqualification where the witness “had been convicted as a pedophile,” and adds that someone suspected in matters of sexual prohibition is disqualified from testifying in that same matter, and that sometimes even a mere “reputation” for sexual promiscuity is enough—while noting that the relevant passages are not agreed upon.

Evidence That Is Not Testimony, the Practice of Religious Courts, and Civil Courts

The speaker describes an experience in a religious court where he was asked to sign an agreement accepting judgment “whether according to law or in error” and “a compromise close to law,” and he describes the use of non-formal evidence such as a phone conversation on speaker because of the difficulty of summoning witnesses and obtaining documents. He argues that without enforcement powers and document discovery, it is impossible to run a serious legal system, and therefore in practice “they accept everything” as evidence even if it is not valid testimony. He argues that in such a situation, the prohibition on going to civil courts does not function as a binding system when there is no real possibility of litigating, and he gives the example of a “letter of refusal” being issued to someone who demanded Torah adjudication when the religious court refused to hear the case that way.

Meiri and Attitudes Toward Non-Jews as a Midrashic Application

The speaker brings Meiri as a prominent example of midrashic conservatism when he rules that the laws in the Talmud regarding non-Jews do not apply in his time because they are “bound by the norms of the nations,” and he argues that Meiri does this many times “without the slightest justification” and without bringing explicit proof for the reason. He uses this to illustrate that a midrashic ruling can rest on reasoning that seems reasonable even when there is no decisive body of evidence, and that one need not accept claims about “hidden reasons” against a logical argument when there is no evidence for them.

“Do Not Form Factions,” Local Custom, and Turning “Place” into Something Virtual

The speaker points out that the prohibition of “do not form factions” has almost disappeared in practice even though it is presented as a Torah-level prohibition, and that in reality there are “two synagogues, two religious courts in one city,” and even more than that, without anyone seeing this as a violation. He explains that this results from conservative midrash in which “city” and “place” are no longer geographic coordinates but a virtual community, and “local custom” has become “ethnic custom” because of the world’s mobility. He argues that this change passed “quietly” because it was not accompanied by the social dynamic of a struggle against Reform, and from this he concludes that opposition to other changes is sometimes tied more to fear and a slippery slope than to any simplistic principle of non-change.

Reasoning, Proofs, and the Claim of “Hidden Reasons”

The speaker presents the need to identify the “if-then” by clarifying the reason, as in the discussion whether the disqualification of a wicked person from testimony stems from concern about lying or is a scriptural decree, and he demonstrates how proofs are brought from the medieval authorities (Rishonim), the later authorities (Acharonim), and from the laws of testimony by a woman. He explains that the discussion becomes complicated because it is not always a binary question of “liar or not,” but rather different levels of suspicion and levels of certainty that Jewish law may be satisfied with in different contexts. He argues that when there is no evidence one way or the other, logical reasoning is sufficient to establish a conservative midrashic reading, and that the claim “maybe there are hidden reasons” is not a basis for rejecting a reasoned argument without evidence, even if one attributes to the Vilna Gaon an approach of hidden reasons in rabbinic laws.

The Price of Conservatism and the Obligation to Act According to What Is Reasonable

The speaker argues that the conservative is not “playing it safe,” because refraining from change can also create serious injustice, such as leaving money in the hands of one who wrongfully holds it, or acquitting or convicting incorrectly in a legal judgment. He states that the question is not who pays the price, but what seems most reasonable in the eyes of the halakhic decisor, and that midrashic conservatism may not only permit change but actually require it in order to remain faithful to the Torah’s “if-then” structure.

Stepping Outside the System, Growth of Law, and Halakhic Positivism

The speaker compares conservative midrash to “stepping outside the system,” similar to Gödel’s theorem, in the sense that in order to decide conflicts and clashes between rules, one has to look at the rules from the outside and weigh their status. He argues that Jewish law is not a positivist system of given rules from which answers are mechanically derived, because the rules themselves are created as interpretive generalizations out of the tradition’s “bottom lines.” He illustrates this through “rules” built around the Shulchan Arukh for how to rule based on styles of formulation such as an anonymous ruling versus “some say,” and argues that people cling to such rules as if they had “come down from Sinai,” forgetting that they developed within the interpretive tradition. He concludes that even when one adheres to rules with great devotion, the very recognition that the rules are themselves acts of interpretation requires renewed examination of the rule itself and undermines the positivist appearance.

Next time I need to be in the Golan Heights, so we’ll move this to Sunday. I’ll write it in WhatsApp too. But the Sunday after that? The Sunday after that, okay? The Sunday after that. Instead of Thursday next week, Sunday in another ten days. I’ll send it on WhatsApp. If there are objections, we can move it again too—it’s not critical for me. Last time it turned out that Sunday, I think, was preferred, so that’s why. Sunday works fine for me at least. Great, okay. Good, we’ll also start more or less a new topic; I think we’ll finish. Good. First of all I want to finish the issue of changes, and we had actually gotten halfway to connecting it to this topic of positivism. So let me briefly summarize what we did last time. I talked about proposals for change that on the face of it look Reform-like or illegitimate within a halakhic framework, but when you think about them a second time, you see that in fact they’re legitimate proposals. When I say legitimate, that doesn’t mean they’re correct and should be accepted; it means they should be brought up for discussion, and then we see whether yes or no. And I said that in the end, the claim—I’ll go back for a moment to the example because I’ll need it for what follows too—the example with swimsuits: people whose ancestors walked around in swimsuits and they too walk around in swimsuits in the desert, then they reach a cold area. There are some who want to keep wearing swimsuits because the tradition of their ancestors is in their hands; I called them simplistic conservatives. You preserve the way their ancestors walked, period. There are those who put on a parka because they’re cold, so they’re not really in the game. But there are also those who propose wearing a parka in order to continue the tradition of their ancestors. Just as their ancestors wore clothing suited to the weather, they too propose wearing clothing suited to the weather. And they argue that this is actually the way to preserve the tradition. Precisely the change in conduct, in terms of the bottom line—we don’t walk the way our ancestors walked, we don’t walk around in swimsuits, we walk around in warm clothes—but precisely that change is what constitutes the true continuation of what our ancestors practiced. That’s what I called midrashic conservatism. What does that mean? I take what our ancestors handed down to us—they walked around in swimsuits—and I make a midrash out of it. I say: why did our ancestors walk around in swimsuits? Apparently behind it stood the principle that a person should wear clothing appropriate to the weather. That’s a midrash. Now I say, fine, if that’s really what our ancestors did, then I too am supposed to continue that and wear clothing appropriate to the weather. So in effect I too preserve the tradition of my ancestors. The dispute between the midrashic conservative and the simplistic conservative is over the question of what the tradition of our ancestors says. In other words, what exactly are we preserving? Does it mean preserving what they actually did, or does it mean preserving the principle that stood behind what they actually did—the interpretation, the derivation?

Now, I brought this up because I said that behind this stands a dispute not only over what counts as a legitimate change in Jewish law, but over what Jewish law is altogether. And then I brought the Talmudic text in Bava Batra about the presumption that a person does not repay before the due date, where the Talmudic text there says that if the lender sues the borrower, say after a week when the loan was for thirty days—he sues him after a week—and the borrower says, “I repaid,” then he is not believed. Because a person does not repay before the due date. He can hold onto the money for a month; he won’t repay it after a week. Of course that doesn’t mean that it necessarily isn’t true. It means that the presumption is that it didn’t happen, and therefore the burden of proof is placed on the one making that claim. If he brings proof, fine—it can happen. But the simple presumption is that it isn’t true. I asked: what would happen in a situation where people actually do repay before the due date, for various reasons, doesn’t matter? In such a situation, seemingly the Talmudic text becomes irrelevant. And my claim was that that’s not true. Because the Talmudic text is not coming to teach us that psychological presumption that a person doesn’t repay before the due date. Psychology—or any other kind of fact—is not the concern of Jewish law and not the concern of the Talmudic text. Facts we need to learn the way one learns facts: you simply look at reality and see what the facts are. If scientific observation is needed, then you do scientific observation—it doesn’t matter—but in principle, in order to understand facts we’re supposed to observe. Not find them in the Talmudic text or in letter-skipping codes in the Torah. So what is the Talmudic text actually coming to teach us? It’s coming to teach us the principle that a presumption can extract money from someone in possession of it. Even though ordinarily, in order to extract money you need two witnesses—“by the testimony of two witnesses a matter shall stand”—in this case the lender comes to extract money from the borrower, to take money from the current holder, and he has no witnesses. But there is a presumption against the borrower, because he claims “I repaid,” and there is a presumption against him that a person does not repay before the due date. That presumption is enough to extract money from him. Okay?

According to that, why don’t we interpret the reason of the verse? What? Why don’t we interpret the reason of the verse according to the logic you’re trying to say that—wait, I’ll get there, we still have a few more steps. So the claim is that the novelty in the Talmudic text is not the psychological fact that a person holds onto the money as long as he can, that he doesn’t repay before the due date. The novelty in the Talmudic text is that if there is a presumption, one may rely on it to extract money, even though it’s not two witnesses—and that’s a novelty not in the realm of facts. The first novelty is in the realm of facts, but facts are not the mandate of Jewish law. The novelty of Jewish law is in the normative realm; it’s the question of whether, given that there is a presumption, one may use it to extract money—that is a halakhic determination, and therefore that really is the mandate of Jewish law. Jewish law is supposed to teach me halakhic innovations, not factual innovations.

And then what comes out is that in a reality where the presumption would be different—opposite, different, whatever, some other presumption—then that same principle we learned in the Talmudic text here would tell us to act differently. Meaning, when we act differently, it’s not only that we wouldn’t be considered as changing Jewish law; on the contrary, acting differently would be the correct application of Jewish law. Because Jewish law does not say that a person does not repay before the due date. Jewish law says that if there is a presumption that a person does not repay before the due date, then that is enough to extract money. But is it true or not true that a person repays before the due date? Look around you and see. It may be true; it may be false. In the time of the Sages it was probably true; today it may not be true. And then what will happen if I reach the conclusion that the presumption is the opposite—let’s say that a person does repay before the due date for the sake of discussion, or at least that there is no presumption that a person does not repay before the due date—in every such case the law will of course change. The law will change, and of course I think no one would even imagine saying that I am changing Jewish law when I apply the law differently here. On the contrary, that really is the correct application of Jewish law in the new reality. Okay?

A Torah-level logical presumption too can fit under this heading of presumption. Yes, yes, Rabbi Soloveitchik, that presumptions descended from Sinai. Even if that is the reason behind the ruling, it could be that the ruling was established independently of the reason. Meaning, when they established the ruling, they stated it independently of the reason. For example, take the swimsuit example: it may be that in the end the instruction was simply to do it this way, and that’s what was handed down. It could be—but who says so? Meaning, who said the other side? That’s another step that has to be discussed; it’s another step that has to be proven in order to say that. Now, but simply as testimony, not only to prove it—it may be there is another reason. Maybe not that this is the reason, but they established it as a blanket rule; maybe there’s another reason. That’s where we ended the previous lesson. Exactly—to that I’ll get, but I’ll talk about both those things together in a moment.

So the claim is that if we look not at the halakhic bottom line but at the principle that underlies it—if we make a midrash, as I’m saying—then commitment to Jewish law, halakhic conservatism, obligates us to act differently from how people acted in the past. Not only allows us to act differently, but obligates us to act differently. Meaning, someone who does not act differently is deviating from Jewish law. Let’s say that today there is no presumption that a person does not repay before the due date. Assume that a person does repay before the due date. If a religious court were to come and not accept the claim “I repaid,” it would be ruling against Jewish law, violating Jewish law, even though ostensibly it matches what is written in the Talmudic text. Because what is written in the Talmudic text is not the bottom line; what is written in the Talmudic text is the principle that when there is a presumption, one must rely on it. Exactly as with swimsuits. And therefore if we make a midrash, then in fact the bottom line not only can change but must change. When circumstances change, the bottom line must also change.

I don’t remember if I gave this example; if so, I’ll just mention it again, regarding the disqualification of a wicked person from giving testimony. The Talmudic text of course disqualifies wicked people from testimony. What is a wicked person? Someone who commits a transgression punishable by lashes or death—lashes and all that. Now today there are quite a few decisors who wrote that a person who publicly desecrates the Sabbath, who is considered wicked according to the halakhic definition, is nevertheless valid as a witness. Why is he valid? Because the whole reason a wicked person was disqualified from testimony is that a wicked person was presumed to be someone who did not speak the truth. And since that is so, today let us check whether indeed someone who is wicked by this halakhic definition carries any meaningful presumption or suspicion that he does not speak the truth. And the claim of those decisors is that no, he does not. Because he does not accept Jewish law since he doesn’t feel bound by it, but in the area of speaking truthfully, morality—or whatever, universal values—he does accept, observe, and feel bound by them. Therefore there is no necessity—not only no necessity, but one may not disqualify him from testimony, actually. Of course this depends on many things; I’m not saying this as practical Jewish law, because the question is whether indeed the disqualification of a wicked person from testimony is because of suspicion of lying. That’s not simple at all. There is the Ketzot and there is a dispute in Tosafot; he claims it’s a dispute between Abaye and Rava regarding a wicked person in monetary wrongdoing. But I’m saying this only on the conceptual level—I’m just giving an example here because it’s really something decisors do in practice. They say that today a wicked person is valid for testimony.

Even for things that are not monetary matters, also for kiddushin? Right, so there in fact it’s not because of the suspicion that he is a liar, but because these are not things left to the judge’s discretion. Things that—what do you mean? You’re talking about an intrinsic disqualification, not suspicion of lying. For example, for the kiddushin of a woman? Right, that’s exactly the sentence I was just about to say. Indeed, regarding a woman’s kiddushin, I don’t remember, I didn’t check, I don’t currently remember whether anyone really said he would not be valid. But what’s the difference regarding kiddushin? You need witnesses for the very existence of the matter, and therefore there too the parameter of whether he speaks truthfully or not is less relevant, because the witnesses there are not supposed to testify about something later on; they actually have a constitutive role. They are there so that the kiddushin can take effect. So the claim that I don’t suspect the man of lying doesn’t have all that much significance there.

Rabbi Chaim Kanievsky says that anyone who has a smartphone is disqualified from testimony. What? Rabbi Chaim Kanievsky says that anyone who has a smartphone is disqualified from testimony. But I don’t think—I mean, I don’t remember who said that he doesn’t think Rabbi Kanievsky meant it seriously, because otherwise that would solve most of the agunah problems in the country, for example. Yes, all the agunah problems of women who got married in the past few years, since there have been smartphones. Before that there weren’t smartphones. Of course you can retroactively declare the old Nokias to be smartphones and annul the kiddushin.

Why does someone who desecrates the Sabbath have the title “wicked person”? What? Why is he considered wicked? What is it—a person liable to stoning? Someone who—yes, but you can say he’s like a captive child, so he’s not liable. No, that’s another argument. There are additional arguments; I’m not going into all the details of the topic. There are arguments that say that if he is like a captive child, then he is not in the category of wicked at all, independently of the consideration I mentioned before, and then even without the question of whether he speaks truthfully or not, the disqualification does not apply to him from the outset, because he is like a captive child and not wicked in that sense.

And with respect to kiddushin? So is he valid for kiddushin? According to that, in principle yes. Again, I’m saying I don’t currently remember someone who said that as practical Jewish law. With respect to kiddushin there is another problem, because someone suspected regarding a matter may neither judge nor testify in that same matter. Meaning, if someone is suspected regarding a certain thing, then in that very matter he is disqualified from testifying in any case. So then perhaps here there would be some disqualification that is unrelated to the general testimonial disqualification of these people. But what is he suspected of? What? Suspected of what? He is suspected of not observing the laws of sexual prohibitions and things like that. We’re talking about a person who isn’t religious, so there are things he won’t observe. No, but contract law he does observe. Meaning, if he makes a contract with someone—kiddushin is not only contract law. Kiddushin is a matter of sexual prohibition. If it were a contract, then it would be a monetary matter, and you wouldn’t need witnesses for the very existence of the matter if it were just a contract.

The second kiddushin that I annulled, that I participated in annulling—there really was a witness at that kiddushin who was convicted as a pedophile. He’s sitting in prison. He committed those acts before the kiddushin, but was convicted after. And I argued that he was disqualified from testimony, and therefore the kiddushin was void. And that’s a question, because there wasn’t really testimony there, and it’s also complicated in evidentiary law; there wasn’t really testimony. So you were looking for a reason to annul. You were looking for a reason to annul the kiddushin. So there indeed, one of the grounds was that since he was suspected in matters of sexual prohibition, independently of his general disqualification, for kiddushin specifically he was disqualified from testifying in any event. And more than that: here, if I’m talking about him as suspected in a matter of sexual prohibition, then maybe you don’t even need testimony. There it’s called “suspected”? It appears in the Talmudic text too. You don’t need testimony. What? You don’t need testimony. It’s enough that there is a public rumor about him. If there’s a public rumor. If there’s a public rumor—he’s known as a dissolute person. Meaning, not that someone saw with his own dim eyes some act that he did, but he is known to have corrupt behavior in this area. So good, that too is a dispute; it’s not agreed upon. You’d have to enter all the topics.

So then Bibi shouldn’t be prime minister, because he’s suspected. Yes, but we haven’t found that a prime minister is disqualified on that basis. We haven’t found such a disqualification in this regard. If you go with these disqualifications, it seems to me you could shut down the government, along with all the other candidates. King David too was also—right. In any case, as for King David, well, it depends how you read that passage in the Hebrew Bible (Tanakh). Because in the plain meaning, I agree with Rabbi Medan, who says that what the prophet’s parable of the poor man’s ewe says is that David was guilty of a moral sin, not a sexual sin. Because anyone who went out to the wars of the House of David gave his wife a bill of divorce, and therefore once Uriah died, his wife was no longer a married woman retroactively. So King David did not have relations with a married woman. But obviously, the fact that he sent him to war and did all those tricks to make that happen—there is some very serious moral problem here, not a problem of sexual prohibition. And then again we’ve returned to another question. Pedophilia is not a problem of sexual prohibition? What? Is pedophilia considered sexual immorality? Yes. Pedophilia involving boys is certainly considered homosexual intercourse—what? Male intercourse, male intercourse. And if it were with girls it wouldn’t be considered that? No. If it were with girls, then no. I talked about that there too, I also wrote about it. If it’s with girls, then no, because fine, it’s a disgusting act, it’s an act not—fine, but there is no Torah-level prohibition there, one is not punished for it, it doesn’t enter the category of wicked person. But certainly with boys it does.

In any case, regarding the disqualification of a wicked person, again, I’m not getting into the whole issue of disqualifying a wicked person. I’m only bringing an example here of a consideration that decisors use in practical Jewish law, where they use a midrashic argument, as I described before, to validate people as witnesses in a Torah-level disqualification. The disqualification of a wicked person is of course a Torah-level disqualification from testimony. Of course again the question is how much testimony there is at all today—there is the principle that contemporary courts act as agents of earlier ordained courts—and one could say that this is not exactly a full validation of testimony so long as one doesn’t do it in kiddushin. If it’s in kiddushin, then that’s a topic in itself. The point is that if one doesn’t do it in kiddushin, then perhaps—I’m only noting this, it’s really not so important for our purposes—perhaps even validating testimony in other matters is not really validating testimony, but rather accepting the statements as evidence, not as testimony. After all, in monetary law, even if we have evidence—we talked about this when we discussed migo and those matters—in the laws of evidence Maimonides writes that a judge must render judgment according to what his eyes see. Meaning, you don’t specifically need witnesses. Witnesses are the default—meaning, if you have no position of your own, you haven’t reached a conclusion as to what really happened there, and two witnesses come, then you can rely on them. But if you are convinced about what happened there in monetary matters, you can rule according to what appears to you. You don’t need— all evidentiary laws are only a recommendation.

Based on what is he convinced? Based on proofs, circumstances, all kinds of things. It doesn’t matter, but not according to the formal categories of the Torah’s evidentiary law. So then what? Then it could be that the whole discussion by those decisors—if they are talking about monetary law—then it isn’t really validating disqualified witnesses; it only means that we accept what they say as evidence that this is what happened. And as evidence, as we just saw in the Talmudic text in Bava Batra, after all a presumption too can extract money even where there are not two witnesses. So where I have evidence that is not by virtue of testimony, it seems to me that should also be fine. Then it may be that in fact there is no validation of witnesses here. Although in the wording it really sounds as if they are validating the witnesses, and therefore I think it is an example. One would have to check all the sources more and see exactly what the reasoning is; I didn’t look at the details now. But there are certainly formulations there that look like the application of this kind of conservative midrash I spoke about before.

Okay, so that seems more or less… And I brought the Meiri as an example—the Meiri who says that our attitude toward gentiles is supposed not to be—meaning, it should no longer be as described in the Talmudic text, as Jewish law was ruled in all the decisors. He says that with respect to the gentiles of his time, this no longer applies because they are bounded by the norms of the nations and they are civilized. And also regarding women’s testimony he said—what? Women’s testimony—I said that; I only brought it as an example. I don’t know anyone who actually said that as practical Jewish law. I brought it as an example of something that on the contrary, I’m almost sure no one would say in practice, although in my eyes I wouldn’t rule it out. In monetary matters, as far as I know, I believe they would accept it. Yes, in monetary matters today they accept everything. They accept testimony over the phone, they accept everything. I was at a religious court—not much, I don’t have much practical experience—but once I was at a religious court. I accompanied some poor kollel fellow in Jerusalem who got himself tangled up. So I accompanied him there and wrote up his legal claims and all sorts of things, and I didn’t know how these things worked. It was pretty amazing. First of all, I already told this story once, that I asked them to judge according to Torah law, because I thought that under Torah law I’d be able to get him acquitted. They absolutely refused to judge according to Torah law. They forced us—what does “forced” mean? They said, look, if you don’t want to, go somewhere else; we don’t judge. Only if you sign that you accept us whether for law or for error, or basically an arbitration close to the law or something like that, which doesn’t obligate them all that much. They need to try to come close to the law, but they’re not bound to anything. So fine, he wanted to sign, doesn’t matter. I said I wasn’t sure I recommended that he sign, but in the end he signed.

And during the hearing there was some guy there who had gotten him involved in the whole story, doesn’t matter, some young man who had gotten him into this. And the judges in the religious court tried to reach him by phone. Meaning, they said, call the man, because we wanted to summon him to testify. He was the central witness; he knew what was going on. We claimed that he had gotten him entangled and all the money was with him and all kinds of things, and he wasn’t willing to come. He was his friend, but he had gotten tangled up in it, so he wasn’t willing to come. In short, they tried some maneuver where he would call him on the phone and put it on speaker so the judges could hear the conversation. Now of course such a thing is not valid testimony according to Jewish law, right? But written testimony, everything—they accept everything, there are no limitations at all, none. But by the way, they can’t do otherwise; you have to understand that. That’s why I think one shouldn’t go litigate in places like that, because they can’t summon witnesses. After all, what happens in a civil court? In court, if someone like that doesn’t want to come, they send two policemen. What do you mean? He has to come. But a religious court? He doesn’t have to come. It’s a private court. He doesn’t have to come. If they summon him and he doesn’t want to come, what do I owe you? So what will you do? You can’t—you can’t run a trial like that. Meaning, you have no authority to request materials from institutions, from the government, from ministries, from different institutions. You’re not a court of law. You can’t speak with the police, you can’t do anything. You can’t run a judicial system that way; it’s simply not serious.

And apropos this—yes, if they accept evidence that isn’t testimony, they accept everything there, everything. What? Casual statements? Casual statements, they’ll accept everything. But I’m saying, even where it’s worth nothing, they’ll accept it, they’ll be impressed by it, and in the end they’ll reach whatever conclusion they reach, because they can’t do it any other way; they simply have no authority. In my view that’s very problematic. I think one should not go litigate in such places. Simply not go. There’s no need to ask permission from a religious court or anything. What is the prohibition itself? Which prohibition? The prohibition of gentile courts. I’m saying there is no such prohibition—what do you mean there is no such prohibition? There is such a prohibition, but it’s impossible to observe it. Someone took money from people; it’s possible to drag the money back from him. No, you don’t have to “make the money,” it’s written in Jewish law that you don’t have to “make the money.” If there is no possibility, there is no possibility. If there is no possibility of judging, then there is no possibility of judging. The problem is not that there’s no possibility of winning. There is no possibility of judging. It’s not a proceeding. You can’t judge. They also don’t judge according to Torah law. So what prohibition of gentile courts is there?

This is what I talked about from Nadav’s article, right? I brought that story there, that a friend of mine, Nadav, brought a case where someone wanted to litigate according to Torah law. Both of them? Yes. He wanted Torah law, and the religious court refused. So the judge says, “I’m not willing to judge,” and they issued a contempt notice against him. They issued a contempt notice against him because he demanded to be judged according to Torah law. Meaning, they didn’t want to judge according to Torah law, and he demanded Torah law, and they issued a contempt notice against him. And then people tell me that not going to them is a violation of “before them and not before commoners,” meaning the prohibition of gentile courts. What prohibition of gentile courts exactly? Meaning, if by not going to you I won’t receive Torah law, then what prohibition of gentile courts is there here? No, there is a prohibition against going to them because it’s gentile courts. Again, there are all sorts of pilpulim one can say, because the identity of the judges matters too—these are disqualified to judge and those are fit to judge, and those who are fit to judge can perhaps judge not strictly according to the law. Fine, there are all kinds of dialectical maneuvers, but in essence this whole business is irrelevant. There is an idea that between two Jews there should be Torah law. But your witnesses are not necessarily observant Jews, and they won’t come there. And the documents you’ll need to produce won’t be there. I’m telling you, in the rabbinical court where I disqualified that kiddushin, I transferred all the protocols—even I can’t summon witnesses and can’t do anything. I transferred all the protocols that existed in the court, and it turned out that even the court doesn’t receive the documents. The state rabbinical court, the rabbinical court dealing with personal status. They needed to receive the details about the pedophile, and they wouldn’t give them to them. Why? Now what does “they wouldn’t give them” mean? This is a rabbinical court, a formal tribunal of the State of Israel’s judicial system, and they won’t give it to them. The prosecution wasn’t willing to release it to them. Really? Yes. In the end somehow they got it out; I don’t know exactly how. Unbelievable. And this is a rabbinical court that has formal standing in the state—it’s not a private religious court. It’s like a court of law. So how does it happen that they aren’t given it? I don’t know, I don’t know, I don’t understand. I asked Menachem, I don’t remember, he told me something that maybe even a court of law wouldn’t get it. I didn’t think so, I don’t know. I don’t remember exactly anymore; he explained something to me, but I wasn’t convinced. Fine, let’s leave this wicked compromise aside.

So back to our topic. In the end the claim is that midrashic conservatism is also a kind of conservatism, and maybe in fact it is the prevalent conservatism. I said—I think I said—that this ethos of simplistic conservatism doesn’t really exist. There is no one—if you want to identify groups in the religious sociology of our day and under what heading to place each such group—then on the simplest level it seems to me that simplistic conservatism would be Haredim, national Haredim or Haredim, and midrashic conservatism would be modern religious Jews. Okay? Something like that. But of course that identification is at the level of ethos, not practice. In practice everyone is midrashically conservative; even the biggest Haredim are midrashically conservative. The ethos is an ethos of simplistic conservatism. Meaning, the ethos is that our ancestors walked around in a shtreimel. That’s the ethos. Now they too know that they didn’t actually walk around in a shtreimel; that’s not the point. They aren’t really claiming that. They’re saying it as a kind of principled statement, meaning as an ethos by which they educate. I told you that my uncle said that the Baal Shem Tov and the Vilna Gaon studied in Yiddish. If they knew how to study, then obviously they studied in Yiddish—what kind of question is that? Did it ever occur to you that they were just two random Iraqis? That can’t even be imagined. In any case, he obviously knew that wasn’t true. He was expressing an ethos; he was not expressing a factual view. He understood that factually it wasn’t true. So simplistic conservatism is an ethos; it’s not really something that appears in practice. In practice everyone is midrashically conservative. We make these adjustments all the time.

I mentioned this some time ago too, I think: “you shall not form factions.” The sugya of Abaye and Rava—really in the Talmudic text itself it sounds as though Rava doesn’t disagree, but Maimonides rules this apparently like Abaye. This is not one of the six Ya’al Kegam cases, by the way. Maimonides rules like Abaye in “you shall not form factions,” that there may not be two courts in one city—two synagogues, two courts in one city. Do you know any city that doesn’t have two courts, two synagogues? There are two million, not two. And what about the Torah-level prohibition of “you shall not form factions”? That’s without disagreement—what does “without disagreement” mean? After Maimonides ruled so, yes, there was a dispute between Abaye and Rava, but everyone talks in this language, and no one claims that we simply follow Rava. So what? Obviously what’s happening is that in our reality today, a “city” is not a geographic entity. What the Sages spoke of as a city was geographic. Today we speak about a city in a virtual sense—a community. Or take customs: originally, a custom was the custom of a place. Today the custom is ethnic, the custom of a community. Why not the custom of the place? As Rabbi Ovadia says, you came to the Land of Israel, adopt the custom of the Land of Israel. Why are you bringing me the customs of Krakow? The custom of the place. He’s right in terms of the sources in the Talmudic text and the early sources—custom means the custom of the place, not the custom of the community. Except that, because the world is much more mobile today and place has no significance, today you live here and two days later you move somewhere else—by plane, by car, by truck, by ship, doesn’t matter—but the world is dynamic, so there is no point talking about place anymore. Place is no longer the relevant coordinate by which you can define things. So what do people do? They latch onto something that accompanies me my whole life: who is my father? That never changes. And therefore we shifted to communal customs, genealogical customs, not geographic customs.

What is that if not conservative midrash? A very innovative midrash! To transform what is called place into a virtual place—which is really the virtual world. Maybe today it seems natural to some people to speak about websites, sites on the internet. For children, for children it’s natural. Yes, so I’m saying: today maybe it looks natural to people, but understand that in terms of Jewish law this happened even before the computer was born, and they take it all the way with Torah prohibitions. Meaning, the concept of “place” became a “site,” so to speak—it’s really virtual—the community, the group, the origin. That is the custom. We moved from space to genealogy, or to time, or however you define it. And what is that if not an extremely far-reaching conservative midrash?

Now there are various places where, because some dispute developed and it started with the Reform movement, antibodies formed, and then they’re not willing to do even what they do in other contexts, as in this context. In other contexts they wouldn’t agree to do it because it’s Reform. And this isn’t Reform? The cancellation of “you shall not form factions.” Today there is no “you shall not form factions.” Today they nullified the prohibition of “you shall not form factions” from the Torah, from the Talmudic text, from wherever you want. In the Torah, “you shall not form factions” has another meaning, but the Talmudic text interprets it this way. Yes, “do not make separate groups.” They nullified it. That Talmudic passage was erased. There is no such prohibition today. None. Show me a decisor anywhere who says of someone that he transgresses “you shall not form factions.” There is none. You can’t transgress “you shall not form factions” even if you try.

Within a synagogue, if they make a minyan on the left and a minyan on the right? Maybe. But those are cases that can hardly happen. Meaning, even within one synagogue they make a minyan in the morning at six, a minyan at seven, they make a minyan on the side, someone who was late makes another minyan, another ten show up and make a minyan. I’ve occasionally heard little remarks about it, but in practice people do it. And within the same minyan, if a person doesn’t pray? In two rites, do they pray in two rites? Yes, for things said out loud they’re careful, yes; quietly they’re not careful, although I once heard that even quietly one should pray in the same rite as the place. Ideologically? Yes, “you shall not form factions” applies even quietly, in the Amidah, in things that require a minyan. If it’s the verses of praise or things like that—but if you need a minyan, what difference does it make if it’s quiet? The minyan needs to say a prayer everyone is saying. Fine. I’m saying that in practice they almost erased the prohibition of “you shall not form factions.” Right, not completely erased—almost erased. Which is very far-reaching. But there there was no problem. There were no Reform people and no issue, and the need is understood by everyone. You can’t manage with the prohibition of “you shall not form factions” in full force, and since that’s the case it passed quietly with no problem; nobody peeped. By the way, I hardly know of dialectical discussions about this. I hardly know of references to this issue at all. Meaning, hardly anyone even asks the question and answers it. Hardly. Here and there. Hardly at all. It just doesn’t bother anyone. Why? Because it didn’t arise as a demand for change from Reform Jews, and there was no need to stand on one’s hind legs defensively. This is a very social dynamic, not so much a halakhic one.

So the claim that midrashic conservatism is actually the prevalent conservatism—it doesn’t look like some kind of clever trick. It’s not a trick. It’s what we do all the time. Our conservatism is fundamentally midrashic conservatism. And even when people cling to what is written, many times they don’t say, “we’re simplistic conservatives and that’s it,” but rather they explain why they have no faith in the midrash. Understand, that’s not the same thing. Meaning, say the people with the swimsuits say: we need to keep walking around in swimsuits. The others come and say: no, you have to put on a parka. Why a parka? Because we have a midrash saying “clothing appropriate to the weather,” and now it’s cold, so clothing appropriate to the weather means warm clothes. So what should the simplistic conservatives do? “We don’t make midrashim; we walk as our ancestors walked.” In today’s argument you won’t hear a claim like that. What you’ll hear is: who says that’s the correct midrash? Maybe there’s another midrash. An objection to this midrash. A slippery slope. Tomorrow the Reform movement will come. I don’t know, all kinds of things of that sort. Almost nobody raises the claim: you’re right to whatever extent you’re right, but the tradition of our ancestors is in our hands, and we are simplistic conservatives, not midrashic conservatives.

Depends on the issue. Between women and testimony, yes, they’ll say that this was recognized by the fact that reality changed. In my opinion no—they’ll tell you the midrash is incorrect. They’ll say the midrash is incorrect because the Torah understood a woman’s mindset fully, and despite the change in reality, this is not supposed to validate her for testimony. So maybe explain why—even if that explanation isn’t just something we make up in order to explain to ourselves why the Torah nevertheless said it this way? You’re saying that in fact you are going in a midrashic direction; you just don’t trust this midrash. No, no—why? That’s hypothetical. And they raise an argument against the midrash. I’m showing you that in other contexts people do make midrash. “You shall not form factions.” They do make midrash. Or with wicked people, some decisors. They make midrash. So why not here? Because here they don’t like the midrash. They say the midrash is incorrect, or they’re afraid, or doubtful. Here they’re afraid of women, something they fear, or of the Reform movement, things like that. Okay, fine. But in the end, what they’re saying is that the midrash is incorrect. If this were simplistic literalism, they wouldn’t need the fear. Simplistic literalism—finished. It has nothing to do with fear. It’s simply forbidden to change. Period. Because that is the law.

I think that when you examine the wording of the arguments carefully, you see that nobody is really a simplistic conservative. And rightly so, because we see that in other contexts they really do make these kinds of midrashic considerations. Meaning, the great conservative decisors make such considerations. Why don’t they wear tekhelet? Is that simplistic conservatism or midrashic conservatism? Tekhelet—again, the arguments raised in that context are either that you didn’t correctly identify the tekhelet, and then there’s a problem of fake indigo versus tekhelet, which in my view is absurd, or fear of the Reform movement and what will happen if we depart from the way of our ancestors and all those kinds of things. There too, same thing. Take Merkaz HaRav, Netivot or whatever—why aren’t you wearing a thread of tekhelet? Because Rabbi Tzvi Yehuda didn’t say to. Why don’t you go up to the Temple Mount? Because Rabbi Tzvi Yehuda didn’t go up. That’s it. No arguments at all. No arguments. Because Rabbi Tzvi Yehuda said so. He didn’t go up to the Temple Mount. Fine. What do you want? He gives you an argument? He tells you: ask Rabbi Tzvi Yehuda. Fine. Now ask Rabbi Tzvi Yehuda what he said. From him you’ll need to hear arguments. But his students just say: I don’t know, I don’t know the arguments, I do what the Rebbe did.

But the students don’t talk about that. They don’t discuss it. They don’t say, as you said, wait a second, let’s investigate why he said that. If they say “Rabbi Tzvi Yehuda didn’t do it,” then they’re saying: look, we’re students of Rabbi Tzvi Yehuda, we do what he did. Now what would happen if you asked him? He simply hands over to him the mandate to think. No, they do think. Fine. And now I’m saying, by the way, in many cases—for example, if you ask a person who isn’t versed in Jewish law why he does something, he’ll say: because my rabbi told me this is fine, what’s the problem? But that doesn’t mean he’s a simplistic conservative. Ask his rabbi why he says it. The question is how the rabbi justifies it. I don’t know. What can I do? I don’t know. You can ask Rabbi Tzvika, he’s still alive.

Fine, I’m saying again: I didn’t speak there exactly with those people; I have no idea. It could be that if you scratched there too, you’d find simplistic conservatism. I think that when you scratch a little beneath the surface, you see that in the end nobody is satisfied with simplistic conservatism, period. There’s always a midrash behind it. Yes, but they’ll go with midrash only so long as it doesn’t make things easier. But “you shall not form factions” is a leniency. And “you shall not form factions” is a leniency. “You shall not form factions” is a very major leniency. No—just think what would happen. Okay, so there are four synagogues, wonderful, more Torah. Wonderful? But “you shall not form factions” is a Torah prohibition. I understand that, but I’m saying it’s easier for them to go and make this midrashic interpretation here. But why? It’s a leniency against a Torah prohibition. But it’s a leniency against a Torah prohibition. What does “leniency” mean? A leniency against what? That’s exactly what they fear. Tell me, if a woman were valid for testimony, wouldn’t that be a leniency too? It would also be a leniency. And therefore they oppose it. We’re lucky that some Reform Jew didn’t think of “you shall not form factions” first, otherwise it would have gotten us completely stuck. Because it’s lenient, because it’s Reform—it’s not lenient. Your definition of “leniency” is circular. You define as a leniency everything they do. That’s a leniency. No—if you define leniency independently, then a leniency means going against Torah law. That’s called a leniency. And nullifying “you shall not form factions” is a major leniency.

I agree, but I’m saying: if you’re willing to go and nullify the prohibition of “you shall not form factions,” and you already really see that as nullifying a Torah prohibition, then the way is open to use a midrashic interpretation in other places too. That’s what I’m saying. Right, that’s what I’m saying—they don’t dare do it there because there it’s already a slippery slope. Why don’t I agree? The Reform movement is present there. Fine, on that I agree. Therefore I claim that when you examine the reasons for resisting these arguments, you’ll always find some—not always, but I think almost every time I remember—you’ll always find some additional shades, and not just simplistic conservatism, period. Slippery slope, maybe your midrash is incorrect because the explanation is different, all sorts of things like that. They don’t tell you: listen, what do I care about explanations? We do not interpret the reason of the verse, as you asked before. Finished. What do I care? We preserve this, period. You hardly hear things like that.

Someone sent me on the website some video lecture by some Haredi Chazon Ish-type person who made tekhelet, and in the clip he says that really the tekhelet people are right. This is the tekhelet. But what? This is how we have practiced, so this is how—yes, the Holy One, blessed be He, doesn’t expect us to go against what we practiced. He cancels a commandment, he also says the same regarding the bitter herb, the identification of the bitter herb. Even that I’m not sure of, because you see—what do you mean, the Holy One, blessed be He, doesn’t want? Meaning, does he have some indication of what the Holy One wants to do? What does that have to do with what the Holy One wants? The law is to go without tekhelet, period—that’s what he says. I think he doesn’t even say that. On the contrary, that’s why it was such a big novelty, and the person who sent it also said: look what a novelty there is in Rabbi Shafran’s words. He says that many think this way, but he said it—and he’s the one saying it—and that’s the novelty. Everyone understands that it’s a novelty. Meaning even from Rabbi Shafran’s own perspective it’s a novelty, because he is not a simplistic conservative. What I’m saying is—rather, what does he say? The tradition of our ancestors is in our hands; the Holy One doesn’t want, he has all sorts of theses one way or another. But otherwise he would say: what do all these arguments have to do with anything? Our ancestors went without tekhelet, and we go without tekhelet. You can say there is a positive commandment to put on tekhelet, what? The ancestors of our ancestors did go with tekhelet, right? Our immediate ancestors didn’t, but from some earlier stage back they did go with tekhelet. So what? There is some kind of conservatism here. It’s not in the sense of how you relate to the sources—whether it’s simplistic conservatism or midrashic conservatism. It’s social conservatism. Conservatism in the sense that I do what my father did, or like what you said about Rabbi Tzvi Yehuda. These aren’t arguments that concern sources, meaning how you interpret the source midrashically or literally. He isn’t relating to the source. The conservatism is on the social plane, not the interpretive plane.

Because really, if you think about it, in the end when the Torah tells us something, obviously some principle stands behind it, something, right? Meaning, there is some explanation. Why does the Torah say this? And if we knew the correct explanation, why assume it could not be applied and operated even in circumstances where the whole thing changes? At most, you can fear that the explanation is incorrect; you can fear a slippery slope; you can fear all kinds of things like that. But what’s the logic of not following explanations? Unless you think that commandments have no reasons. No reasons—not just that we cannot know them, but that they have no reasons. None. They were given to us as royal decrees. The Holy One didn’t want to achieve anything with them; He wanted us to do them. And if that’s so, then there’s no—some of the arguments are more like the arguments of ethical preachers, Rabbi Dessler I think, I seem to remember he writes there, apparently… something about reality having changed, and then he argues there that there are additional reasons for the matter too, things we don’t know. The hidden reasons—that’s from the Vilna Gaon, as attributed to him. Yes, the hidden reasons. Fine, I’ll get to that in a moment.

In any case, I’m now returning to our line of thought. I think that if you look at the root of the matter, the thing we are supposed to preserve in the conception of midrashic conservatism—as I said just now—it seems to me everyone agrees in principle to the conception of midrashic conservatism. Some apply it very little, some apply it more, but I think conceptually everyone agrees that this is midrashic conservatism and not simplistic conservatism. The thing we preserve, if we formulate the—what is Torah, this eternal thing that I opened with, the eternity of Torah, Maimonides’ principle—what is Torah? What is the thing that is supposed to be eternal? So if I return to the Talmudic text in Bava Batra, we have the psychological facts in that case, that a person does not repay before the due date. We have the inference that says the “if-then,” which says that if the facts are such-and-such, then one should do such-and-such. If there is a presumption, then one may extract money. And there is the bottom line: the person is not believed, and the money is taken from him if he claims he repaid. Those are three parameters. There is the factual assumption, there is the rule of application, let’s call it—the rule that says, given the facts, what the norms should be—and there is the result: what norm applies in this case.

Now the Torah is not the facts, and it is also not the bottom line—not the norm in the bottom line. The “if-then.” Okay? That is what remains. That is what cannot be changed. The “if” by itself and the “then” by itself not only can be changed but must be changed. Because if the “if” changes and the “if-then” stays the same, then the “then” must also be different, right? Meaning, precisely preserving the rule of application, the “if-then,” requires us to change the norm. Meaning, changing the norm is not merely possible; it’s not an option. It’s the way to ensure that Torah is eternal, that Torah does not change. Only that way can you ensure it does not change—if you act differently from how our ancestors acted. And that is the conception of midrashic conservatism.

It seems to me that once, when we talked about this, I drew an analogy to other fields too—for example, in logic, maybe I mentioned this. In logic too there are premises and there is an argument that derives, that draws the conclusion from the premises. Logic deals not with the premises and not with the conclusion, but with the argument, with the derivation of the conclusion from the premises. And I said that Aristotle—because I spoke about this—Aristotle basically conceptualized this matter and saw that here there is really some topic unto itself, this inference. Before him it was transparent. People brought premises, derived conclusions from them, and didn’t notice that there was in fact some toolbox of “if-then.” And once Aristotle noticed that, it became a field of research, a field studied in itself. Before that people only used these tools, but didn’t study the tools themselves. And that is what led to the computer; that is what led to many developments in our time—this Aristotelian conceptualization.

Now the same is true in aesthetics, in ethics, in all kinds of places. In fact it’s the same principle. What is really essential to the field is the if-then. What is essential to every field is only the if-then. The “if” doesn’t matter and the “then” doesn’t matter. I talked about this too—why do people say Bach is a genius in music? I brought that example. I’m no less of a genius than he is, except that he was lucky and operated in a world where people’s musical sense happened to enjoy his works. If I could create people who enjoyed exactly my works, then I’d be the musical genius and he’d be the musical idiot. So he was simply lucky. Meaning, people somehow have a musical sense; their taste happened to be similar. Yes, exactly. Meaning, they enjoy exactly the kind of music he knows how to produce, and I don’t. If there were people with a crooked musical sense, they would enjoy what we call crooked today, so they would enjoy my musical works and Bach’s would be thrown in the trash. So in what sense is Bach a genius? That’s classic conservatism. Everybody is a genius, everybody is righteous, everybody is right, everything is the same. What’s the problem?

The point is that Bach’s genius is not what he actually did. Bach’s genius, if he really was a genius—if he was a genius, and I assume he wasn’t—then obviously if he had gone to some Bushmen, he would have composed music for them that from their perspective would be the best, better than what I would have done. It would have been entirely different music from the music he created in Europe. But suited to them. But suited to them. Meaning, because a genius in music is not someone who creates a genius work. It’s only the if-then. Meaning, if people have such-and-such musical taste or such-and-such structure, then I know what work to create in order to hit exactly the musical qualities they value. Okay? Meaning there too, when you look at it, the really important thing is the most elusive thing. It’s the if-then, not the work itself. The work itself is not genius. The work itself is genius only because it is done in—look, if I were to write my own compositions and I managed to create human beings according to my will—let’s say I were some kind of god—I’d manage to create human beings and I’d create human beings who enjoy my works more than we enjoy Bach, at least those who enjoy Bach; I don’t know, I don’t like classical music. But suppose I created such people. So what would that mean—that I’m a genius like Bach? Of course not. The genius would be in creating the people. What? The genius would be creating people, not music. Exactly. Or alternatively, when you do it ad hoc, it’s no great wisdom. If I guess what the dice landed on after they’ve already landed, I’m not such a genius. Meaning, if I could guess what they’d land on before they landed, then I’d be a genius. Meaning, when I draw the target around the place the arrow landed, it’s no great trick to hit the center.

This is the classic case of all kinds of interpretation. You interpret why this happened and why that happened—but why didn’t we interpret it beforehand? Yes, obviously. It’s like when they find in Torah letter-skipping codes the murderer of Sadat and all sorts of things—they find them there. So someone once asked: tell me, why don’t you find these murderers before they act? Why always afterward? And it sounds like economists talking about a stock market crash. They’re all genius economists, explaining why—why didn’t they predict it before? Yes, one in a thousand said the market would fall. Every day one in a thousand says the market is falling. So that one in a thousand happened also to be right.

By the way, with respect to letter-skipping codes it’s a little trickier, because as long as you don’t know what to look for, how will you find it? After all, you search for someone’s name in the skips and say: it’s right next to Sadat. They found Sadat’s murderer there exactly. As long as you don’t know his name, you have no way of searching for it, so you can’t predict it in advance. In that sense, this isn’t really an argument. On the other hand, the fact that it’s retrospective is problematic. It doesn’t help. Yes. No, not only doesn’t it help—it’s not even clear that it’s unique at all. That it doesn’t help is obvious. That there are things that are things that—no, that’s what I’m saying, it’s not even clear that it’s unique at all. Because doing it ad hoc, you can do with anything. After all, they did this with War and Peace, with Maya Bar-Hillel and all the people who oppose the letter-skipping codes. They did exercises like this and showed that if I take the book and decide in advance what should be there, and I can adapt the algorithm so it comes out that way, no problem, I can also find these things for you in a random children’s book. Now in truth I think they exaggerated a little; I think it’s more significant than they present it, but it’s problematic, it’s not simple.

In any case, to return to us: the claim is that, in essence, with regard to Torah, what has to be preserved is the if-then. That is the Torah. And accordingly, what it is forbidden to change is the if-then, not the then. If the if is different, then the then is also different, so long as the if-then remains. And that is what has to remain. Therefore, yes, I moved to—I spoke about this at that conference, in one of the recent YouTube videos we uploaded. I told them that it’s like relative motion, right? The principle of relativity. There’s a train, a train—you see a train moving, and you ask what its speed is. You can’t answer that; you have to say, relative to what is its speed? Relative to the ground it has one speed, and if there’s a car traveling parallel to the train then its speed relative to that car will be zero. Right? Motion or speed is a function of the coordinate system relative to which you define it or measure it. Also with the question whether Jewish law changes—the change is relative to what coordinate system? If you say that first people wore swimsuits and now they wear warm clothes, and that this is a change in Jewish law, then your coordinate system is the swimsuit system. But if your coordinate system is a car traveling parallel to you, and reality itself also changes, and my coordinate system is present reality, not the reality of then—the current reality—then it means I’m not moving at all. Jewish law is fixed and standing; it never changes for even a moment. But what is Jewish law? Jewish law is not what we do. Jewish law is the if-then. And therefore what we do must constantly be different. Must be different. Not just can be different. Meaning, only that way can it be preserved. It must be different if the if changes, if reality changes. If the if changes. Yes.

And when do you know the true reason for it? Exactly. Now I’m getting to that issue. The reason of the verse, and the question whether there is a true reason, and all that takes me back to positivism. Let’s return to the Meiri for a moment—or even before the Meiri. When I want to make a conservative midrash, the midrash is really what reveals the if-then, right? That’s really what the midrash is. The midrash uncovers the if-then, because before us we have only the then, the final result, the practical Jewish law. And we ask: from what did this Jewish law derive? What is the if-then that underlies it? Okay? How do we do that?

So if we return, for example, to validating women for testimony—the example I brought—there I would expect that if a person raises the claim that women were disqualified from testimony because they were not familiar with the ways of the world, and today women are familiar with the ways of the world, therefore today one should validate them for testimony. The factual claims are pretty clear: women indeed were less involved then, and obviously women are more involved today. And it’s also obvious that women were then disqualified from testimony. The question is whether it follows from that that women today should be valid for testimony. The answer is no—only if you assume an additional premise, and that is the if-then. You have to assume that their disqualification from testimony then stemmed from unfamiliarity with the ways of the world. That is exactly the if-then, the “if… then,” right? That lack of familiarity caused the disqualification. If there is lack of familiarity, then there is disqualification from testimony. How do you identify that if-then? Exactly. And without that the argument is invalid, the argument that seeks to validate women for testimony.

Now, how do you manage to establish such an if-then argument, a conservative midrash? There are places where we can test it, and people do this all the time in yeshivot. For example, let’s return for a moment to the disqualification of a wicked person. I mentioned the Ketzot, yes? The disqualification of a wicked person. The later authorities mainly, but you can already see hints of this among the medieval authorities, discuss the question why a wicked person is disqualified from testimony. Is a wicked person disqualified because we suspect him of lying, or is he disqualified as an intrinsic disqualification of personhood? Okay? Now we can begin—so if I say it’s because we suspect he is lying, then for example a wicked person today, a Sabbath-desecrating wicked person, today I can validate him for testimony because I don’t suspect him of lying. Right? These are practical ramifications. But in order to apply these practical ramifications, I really need to make the midrash. How do I know that this midrash is correct? Meaning, how do I know that the disqualification of a wicked person is because he is suspected of lying?

The truth is that these are things that can be checked. In yeshivot they do it all the time, right? They look in the medieval authorities, in the later authorities, in the Talmudic text, and see whether the disqualification of a wicked person is because of suspicion of lying or because of an intrinsic disqualification. For example, if medieval authorities write that wicked people are valid to testify in the testimony permitting a woman to remarry, then that means he is not suspected of lying. Right? “Testimony for a woman” means testimony to a woman that her husband died. There is a leniency there—apparently rabbinic; in Maimonides there is some contradiction and it is apparently rabbinic. There is a leniency that because of the problem of women being chained, they allow acceptance of one witness and relax the laws of testimony. Fine? But obviously if the witness is a liar, you can’t permit the woman, because if he’s a liar then the husband didn’t die. That’s not a problem where you can just waive the laws of testimony. Let’s put the level of evidentiary demand—wait, I’ll say it in a second. At the moment, this is usually what people do among the later authorities. So they say—for example—they bring some early authority who says that for testimony permitting a woman to remarry, a wicked person is valid, and from here they show that a wicked person is not suspected of lying. So now, also the wicked person disqualified from regular testimony—not in testimony for a woman—is not because of suspicion of lying. And accordingly you can’t validate him, for example, today when you have no suspicion that he will lie. Right? So that’s a proof one can bring, just as one brings proofs for anything in Jewish law. Certainly you have to seek reasons… Certainly you have to seek another explanation. No, fine. But I’m saying: that reason then—that’s what I asked about. The claim that a wicked person is disqualified from testimony because he is suspected of lying—that I showed you is not correct.

Meaning, there is a possibility of examining halakhic sources and extracting arguments for and against different midrashim, conservative midrashim. Therefore I would also expect that with validating women for testimony, we ask the same question: were women then disqualified from testimony because they weren’t involved in worldly affairs, or is it an intrinsic disqualification? The same question can be discussed. What happens with a woman who testifies in testimony for a woman? Yes, so if a woman testifies in testimony for a woman, a woman is valid. Meaning—even her mother-in-law, right, it says there, a woman is valid. So if a woman is valid there, that means the disqualification of a woman is not because of suspicion of lying, or not because of suspicion that she doesn’t say what is correct. It doesn’t matter whether it’s deliberate lying or not—but that she doesn’t say what is correct. So accordingly, one couldn’t validate women for testimony today either, for example. That kind of argument. So the same discussion we have about a wicked person can be had also about a woman.

But an intrinsic disqualification also needs a reason. What? An intrinsic disqualification has some reason there. Yes, there is some reason. Offer a suggestion; one can discuss that too. But the reason you proposed—I can reject it. Okay? Fine. Now one has to keep looking for the reason, or fail to find it, doesn’t matter. But a proposal for change is always based on some midrash that says what the reason is. So let’s see if that reason is correct or not. We rejected it—fine. It may be that there is another reason; find it, and then we’ll see. Okay?

Now, with a woman too it isn’t simple. And that is indeed what you mentioned in the context of later authorities. Many later authorities bring this argument, that since a wicked witness is valid in testimony permitting a woman to remarry, that is a sign that it’s not suspicion of lying. And it’s also not agreed upon, but there are early authorities who write that even a robber—wicked people who are disqualified from testimony—there is a dispute in the medieval authorities. And there are early authorities who say that a robber, that a wicked person, is valid in testimony for a woman. And from here they prove that it is not suspicion of lying. But that’s not entirely precise. Because, for example, when one accepts one witness instead of two in testimony for a woman, one witness whom we don’t accept in ordinary testimony—it’s not because he is lying, but because the level of certainty is not high enough. A person has a presumption of probity; one witness comes and testifies—why assume he is a liar? Fine? But still, for a matter of sexual prohibition or a monetary matter, you require an oath? No, no, no, I’m saying—even a certain level of certainty is not enough for—exactly. I’m saying it’s not even suspicion; the level of certainty is simply not high enough. Fine? In principle I could also have required three witnesses or five witnesses. Why did I stop at two? Obviously, the more witnesses there are, the higher the level of certainty. The Torah stopped at two. Fine? But obviously one witness is also okay. Not only did it stop there, it said that one hundred are like two. Yes, it doesn’t increase certainty. Meaning, it’s an asymptote. Yes, you increase certainty but don’t need to. Halakhically they treat it as the same thing. I’m saying—but the point is that the Torah’s deciding to stop at two doesn’t mean one has no credibility. One has credibility—just not enough credibility. Fine? There is some function here, but he is not sufficiently credible for a matter of sexual prohibition or a monetary matter; there I want more than that. Okay? So for testimony concerning a woman, even such credibility is enough. That’s all.

So no—therefore I’m saying, even when you say that a wicked person is suspected of lying, what does “suspected of lying” mean? Suspected to what degree? Suspected at the level of ten percent? Fine, then perhaps his testimony can still be accepted. One has to discuss it. Okay? Because maybe for testimony permitting a woman to remarry, a ten percent suspicion of lying doesn’t bother me; I accept it because I don’t want to leave her chained. But elsewhere I want fifty percent, whatever it may be. So the game is no longer black and white—does he lie or not—but a question of suspicion and what the level of suspicion is. And then the whole business gets very complicated, and it becomes very difficult to bring proofs.

Then the question arises: okay, what do we do without proofs? There is no proof. Now I propose a suggestion that a woman was disqualified from testimony because—or a wicked person, doesn’t matter, all these cases—I propose a suggestion that sounds reasonable. But I have no proofs. It’s impossible. All my proofs were rejected, or it’s disputed, or I failed to persuade. So in that situation, usually the conservative instinct says: fine, then it doesn’t matter. The innovator has the weaker hand. Meaning, you didn’t bring proofs. But I claim that this doesn’t seem reasonable to me. It doesn’t seem reasonable because I have two possibilities: either the woman is disqualified from testimony for some hidden reason of which I have no idea, or the woman is disqualified from testimony because she wasn’t familiar with what was going on—which sounds reasonable, right? I have one reasonable explanation, and I have the possibility that maybe there is some reason I don’t know. That’s not an evenly balanced doubt if there is no evidence against the reasonable explanation. Yes, yes—if there’s truly no evidence. No, I didn’t find evidence. If there’s evidence against it, then there’s evidence against it. I found no evidence in either direction. Fine? What do I do now? If the explanation sounds reasonable to me, in my view that is enough for a conservative midrash. Because this claim that says, wait, maybe your midrash is incorrect—for every reasoned argument I make in Jewish law you can tell me maybe you’re wrong. Fine, but it seems to me that I’m right. Bring proofs, and I’ll listen. I’m not saying I’m definitely right. But a judge only has what his eyes see. I’m saying: from my perspective, this is what sounds reasonable. Why assume it’s wrong unless you bring proofs? The moment what I say is reasonable, the burden of proof shifts to you. That doesn’t mean I’m certainly right, but it does mean that the burden of proof lies on the one arguing against me.

Why adopt the claim of some hidden reason that nobody knows over a reason that sounds logical? Why not accept it? And this is logical, but maybe someone will tell me it doesn’t sound logical to him. Fine, then the dispute is—fine, that’s a legitimate dispute. One against one. I have no problem with that. A legitimate dispute. But I’m talking about someone who doesn’t say that. He says: it sounds legitimate to me too. When you say a reason that makes sense, it sounds sensible to everyone. That’s not the point. Rather he says: maybe that’s not the correct reason. Those are the hidden reasons of the Vilna Gaon. Yes—the Vilna Gaon says this, by the way, about rabbinic laws: that for rabbinic laws one does not go after the reason. At least that’s the accepted view. So the Vilna Gaon says: why don’t we go after the reason? He says because there are all sorts of hidden reasons. Even where the Sages stated a reason, he claims that one does not go after the reason. Here there are later authorities who disagree. If they stated the reason, then one does go after it. It seems to me this was about matters instituted because of danger, no? What? It seems to me he says it about things instituted because of danger, where it is generally about the reason. Also, and also, and also rabbinic law in general. So the claim is that even if they stated a reason, there are other hidden reasons, or maybe there are hidden reasons—I don’t know exactly. Some tradition I’ve never seen written anywhere; people always say it in his name. I don’t know if it’s written somewhere.

In any case, many conservatives rely on that and say: what do you mean? No. There are hidden reasons. You can’t rely on the reason. And the fact that a woman was disqualified from testimony isn’t because of unfamiliarity, even though that is a logical reason, because there are many more hidden reasons they didn’t tell you. And in this case it’s Torah-level; he speaks mostly about rabbinic law, but it’s the same principle. I don’t know—I don’t understand where this invention of hidden reasons comes from. Maybe there are hidden reasons; maybe there aren’t. I found one logical reason. If you claim there are other reasons, bring proofs. I don’t know what this strange kind of consideration is based on. I just can’t understand it.

Take the Meiri. I brought the Meiri. The Meiri makes his revolution without a shred of reasoning. In dozens upon dozens of places he repeats again and again that all the Torah-level and rabbinic laws are null and void regarding the gentiles of his time. Without a shred of reasoning. He only says that these gentiles are bounded by the norms of the nations. Where did you find that the attitude toward the gentiles of old stemmed from the fact that they were not bounded by the norms of the nations, that they did not behave humanely? Where did you see that? We saw that they did not behave humanely; that is written in the words of the Sages. But it is nowhere written that because of that the Torah laws apply to them, or the rabbinic laws apply to them. That is not written anywhere. The Meiri brings no proof for this at all. He says it as something obvious, and that’s it. Why? Because if he has one logical reason, then why should he care that maybe the reason isn’t correct or that maybe there are some other hidden reasons we don’t know? I don’t know—maybe yes, maybe no. If you bring me proofs, I’ll accept. As long as I have no proofs, then if this is the logical reason, that’s what I go with.

And what this basically means is that when you make a conservative midrash and in your eyes it sounds reasonable, then even if you have proofs—excellent, and you should look for proofs. If there are proofs against you, very bad; then you have to give it up. But if there are no proofs in either direction, if the thing sounds logical, then why not call it reason? It sounds logical to me, and I go with my reasoning. I have absolutely no reason in the world to fear that maybe there are other reasons that contradict it. Why assume that? Where does one invent such a thing from? For every bit of reasoning on earth that I say, you can always tell me: yes, but maybe there are other reasons that contradict it. So then we’ll never follow reasoning. A very strange type of consideration. I never understood these things.

And one has to remember—and this too is what I said last time—that the conservative’s feeling is that he’s not paying a price. Because let’s go with the safe option, and whoever wants to change should bring proofs. But you are paying a price, sometimes no less, and sometimes more, than the price we’d pay for change. If you disqualify a valid witness from testimony—a wicked person, or a woman, or whoever it may be—and assuming they really ought to be valid witnesses, and you disqualify them from testimony for conservative reasons, then in effect you leave money in the hands of one who wrongfully holds it, you acquit a murderer in court—you’re paying enormous costs. What do you mean? This is an extremely heavy cost. You’re not going with the safe option. Nothing here is safe. Therefore you need to do what seems most reasonable. It’s not a question of costs. The question is what seems most reasonable in your eyes, and that is what should be done, in my humble opinion.

Why am I saying this? Because this takes us back to our discussion of positivism. Understand that what we did here is actually parallel to what I talked about with Gödel’s sentence and stepping outside the system. Because after all, what is given to us is that our ancestors ate—wore—their clothes. That’s what we know. We don’t know anything besides that. Now we decide to look at it from outside and try to see why it happened. Or: our ancestors disqualified wicked people from testimony, or women from testimony. We know they are disqualified; we don’t know why. We step outside, look at the law we received, and discuss why it was established. Okay? This is exactly the stepping outside the system that I talked about—you remember with the conflicts of the lost object of one’s father and that of one’s rabbi and one’s own lost object, or in the laws of blessings I also brought examples, there are all kinds of conflicts like that, or the paradox of “matzah from the new grain.” How do you decide these things? We have rules. If you work only inside the rules, you won’t get out of it. But if we step outside, look at the rules, try to weigh them, see which rule is more important and which rule overrides another, then maybe we can find a solution. But for that you need to step outside the system, like Gödel’s sentence that is supposed to step outside the axiomatic system I talked about.

The same thing is basically happening here. The Meiri essentially says: listen, we received from our ancestors some fact. I make a conservative midrash. This conservative midrash is really the stepping outside the system that I’m talking about. In effect the Meiri tells us that Jewish law is not a positivist system. You can’t establish Jewish law as a set of given rules—well, maybe there is a set of rules you’ll eventually arrive at—but not a set of given rules from which you are supposed to derive the answers to all your questions. It doesn’t work that way. You generalize; you look at the rationale of things; then you can try to formulate some rules from which you’ll derive the law. But those rules are your own generalization. You did not receive those rules in the tradition of the Oral Torah. The rules are your interpretation. The Oral Torah gave you the facts. The facts, meaning the laws, meaning the bottom lines. The conservative midrash—you make that. And therefore changes in Jewish law, in essence—on the one hand I said that on the contrary, this is the most basic conservatism there is: to obey the rule and preserve the rule to the fullest, not deviating from it right or left. But one thing must be remembered: we created that rule. We did not receive it. True, we preserve the rule and do not depart from it one bit. But the rule we preserve is a rule that we ourselves created. What does “created” mean? We estimate that this is the rule that stood behind the Jewish law we are dealing with. But that is a generalization we made. We don’t know if it’s correct.

So very often a sense is created that we cling to rules and work with them. But people forget that the rules to which they cling are rules they themselves created. It’s like these rules—for example with Rabbi Ovadia, many times he has all kinds of rules in the Shulchan Arukh: when there is an anonymous opinion and then “some say,” all sorts of cases of how the author combines two opinions in the Shulchan Arukh, according to whom is the law, all kinds of rules about how to decide Jewish law from the Shulchan Arukh. You establish these rules. Nobody established these rules. Some of them are completely bizarre—God knows where he got them from, utter nonsense. Others sound logical, sound reasonable in terms of style and formulation. So check how reasonable they are and go with that. All these rules are inventions. All these rules are inventions. The Shulchan Arukh itself does not write rules for how one should decide from what it says—if it brings two opinions, what one should do. It wrote none of that. And in the end these are rules that developed within the halakhic tradition surrounding the Shulchan Arukh. Meaning, people cling to these rules with great devotion and are unwilling to depart from them, forgetting that they themselves were the ones who invented them. Not “invented” in the sense that they think they’re false—they claim these are true rules. I’m not saying they’re wrong. But maybe yes, maybe no. I can argue with you about the rule itself. Because after you invented the rule—or your Rebbe invented it, doesn’t matter—you forget, and you think it descended from Sinai. Meaning, you think the author wrote it in the opening of the Shulchan Arukh: here is a set of rules for how one should decide Jewish law from the Shulchan Arukh. The book wasn’t even intended to decide Jewish law, by the way. It was not designed for that at all. It was intended to summarize the Beit Yosef. That is, it is a summary of the Beit Yosef.

But these rules ultimately give a kind of positivist appearance, as though we cling to rules and derive conclusions from them, while forgetting that these rules are the work of our own hands. And therefore many times what looks like positivism is not really that. It isn’t, because although we do cling to rules, that’s only after we have created them. And that must be remembered, because then one can look at the rules again and ask whether I agree with the rule, whether perhaps the rule is different. And therefore, although there are rules and ostensibly one is called upon to behave positivistically, it doesn’t compel that.

Fine, I missed the ending, so next time we’ll probably still need one more session on this matter. Thank you.