Halakhic Positivism

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[Rabbi Michael Abraham] People don’t think about this, because someone attacks you with some argument: “Who says? Prove it.” And right away I slip into that mold that I have to prove it, and now I’m under pressure: I don’t have a proof, what am I going to do? “Who says?” Maybe he’s the one who has to prove it. My position is the presumptive one, right? Or the simple one. Now, of course, it’s not a simple question how you determine what the presumptive position is, and a lot of the time that’s what the argument is really about. Because someone who tells you “prove it” is basically saying that what you’re saying is unreasonable. But on the other hand, I can defend myself and say: in my eyes, what you’re saying is unreasonable, so why do I have to prove anything to you? Now, that may solve the issue for me internally, but it won’t help persuade him, because if in his eyes my position is unreasonable, then shifting the burden of proof onto him won’t help. Because in his eyes the burden of proof is on me. You won’t win the argument that way, but at least you’ll come out intact. And sometimes that’s something too. Okay? In other words, sometimes someone attacks you and you yourself become embarrassed—wait, I have no proof, so how can I hold such a position? Then you can say: wait a second, this is the reasonable position; that claim is a strange claim, so why do I need to… It’s like someone saying to you, “Prove that there’s a picture here. What you see might be an illusion.” Now a lot of people feel pretty distressed in the face of a question like that, right? Such an innocent little question, basically: who told you? After all, there’s philosophy. Prove that yes, prove that this isn’t a mirage. Why do I have to prove that it isn’t? My intuition tells me there’s a picture here if I see a picture here. Whoever wants to argue that I should throw out my intuitions—let him prove it. If he proves it, I hope I’ll be honest enough to throw them out. Because I’m not claiming intuition is the supreme halakhic decisor, but it is the point of departure. Okay? And as long as you haven’t proved otherwise, I’m fine. I don’t need to be embarrassed that I have no proof for my foundational principles. That’s an interesting insight. It’s an insight many people don’t notice, even though in many cases we do understand it. It’s not some earth-shattering novelty. But it’s worth noticing that there’s also this aspect that has to be examined. What is the starting point? On whom does the burden of proof lie? That’s an interesting question even before you enter the argument at all. Stop for a second. See who has the presumptive standing here. Is there room here for “let them divide it”? Does it even need a decision? In other words, this is an interesting question in a great many arguments that have nothing at all to do with monetary law. Okay, so that’s regarding the general things I have to say about the article. I now want to connect this a bit to the question of halakhic positivism. Once again, here we are.

[Speaker C] No, you spent a lot of time and so on about intuition, and not to now open up the whole concept, but intuition isn’t what many people think it is—feelings or something like that. You even call it something intellectual. Yes, okay, no, just so it’s clear, it’s not.

[Rabbi Michael Abraham] No, of course not. Feelings are nothing—what are feelings? Yes, that’s us. Not that they aren’t important. No, here—here one can argue. I think feelings are also not important, but that one can argue about. But I mean only the categorical distinction, and on that everyone has to agree: there is a difference between intuition and feelings. Because if I have a feeling that there’s a picture here, what does that say about the picture? I have feelings, fine, everyone has feelings. If I claim there’s a picture here, that’s a factual claim—I really think there’s a picture here as a matter of fact. Never mind for the moment what the reason is; maybe I’m mistaken, but that’s what I’m saying. I’m not reporting to you that I have a certain feeling when I say “in my opinion there’s a picture here.” Because if I’m reporting a feeling, fine, inside the creature there’s such a feeling; someone else now happens to feel joy. So what? What’s relevant about that? I’m claiming there’s a picture here; I’m making a factual claim. A factual claim cannot rest on a feeling. That’s nonsense. In other words, it has nothing to do with the question of our general attitude toward feelings. That you can argue about. This you cannot argue about. In other words, someone who says otherwise is simply confused. Okay? That’s just not… Okay, so that’s that.

[Speaker H] In philosophy, intuition also doesn’t mean—also in English, the word “intuition” in philosophy doesn’t mean feelings, how I feel inside and how reliable I am.

[Rabbi Michael Abraham] Intuition is thinking that does not require recursive deliberation—that is, direct thought, direct apprehension.

[Speaker F] Direct apprehension is simply not just…

[Speaker C] Feelings—it’s intelligence and things that come from experience.

[Rabbi Michael Abraham] Apprehension—from experience—it can come from many places, but it’s some kind of direct apprehension without an orderly line of reasoning where I show you how I arrived at the conclusion. Rather, it seems to me that it’s correct. Sometimes it’s a shortcut. In other words, sometimes I could also show it, but intuition—what Kahneman calls System 1 and System 2, you know, Thinking, Fast and Slow, he has an interesting book—sometimes I have a way to do it systematically, but intuition helps me skip over that, it shortens the route. Sometimes intuition is the only route I have. For example, in the case of the picture, I have no way to show why there really is a picture here. It seems that I see one, but maybe it’s a bias, maybe it’s an illusion. I have no way to show it, but my intuition tells me that there really is a picture here. Now here intuition is not a shortcut; intuition is the only option I have. You can accept it, you can reject it, but that’s the…

[Speaker B] There’s a researcher who dealt with intuition and wrote the book The Wisdom of Crowds, and he also has a book—I think Blink—he dealt with this, and he doesn’t define it at all as some kind of gut feeling, but on the contrary as some kind of thing—I can’t be precise—but some kind of thing that is the sum total of experiences, knowledge, and… Okay.

[Rabbi Michael Abraham] Meaning this—the question is how intuition is formed. My view is that it’s the result of experience, which is also what Iris said earlier and what you’re saying too, together with built-in things. In other words, it’s not only experience, contrary to what some people think. On the other hand, it’s not only built-in things, because then people basically slide back into the world of feeling. So that’s not intuition. Because what’s inside me is inside me; what indication is there that it is actually true about the external world? I think it’s something in between, or a combination of elements of experience plus patterns embedded within me. And you can ask who embedded them and who said they are true—that’s an interesting question in itself. What? And Kierkegaard’s claim that you have no proof that everything is objective. Yes, but I’m not sure Kierkegaard is talking about intuitions in this sense. In fact, in my opinion he does go in a more subjective direction. Fine, that’s a different discussion. And an acquired claim. What? We learn intuition. Or the principle of causality—you’ll never learn that in your life.

[Speaker D] Fine, but everyone has that. To a high degree. Fine.

[Rabbi Michael Abraham] So I’m saying: there has to be something in us, like Chomsky talks about, say, in language acquisition. About language. So the claim is that there are certain innate capacities in us that enable us to learn language. Of course, on that basis one still has to teach us the language, but without that it would be impossible to teach us this whole matter. In other words, we are not born a blank slate. Because without that it wouldn’t have been possible…

[Speaker G] But intuition is kind of in every field—I can learn intuition in any field.

[Rabbi Michael Abraham] So I’m saying: you can refine intuition. I don’t think you can learn it from zero. In other words, you can refine it, shape it, but there are certain elements already built in within you. You come with them from home.

[Speaker G] Without that it won’t happen. What? It depends on the field. It seems to me there are things I can…

[Rabbi Michael Abraham] I think there is nothing that can be learned from nothing. I don’t believe in learning out of nothing. In my eyes that’s the meaning of the Sages’ aggadic tale,

[Speaker G] that the baby…

[Rabbi Michael Abraham] that in its mother’s womb they teach it the entire Torah, and then an angel comes and strikes it on the mouth, right?

[Speaker D] They say—that the aggadic tales say—that this indentation is…

[Rabbi Michael Abraham] I don’t know what it’s called. Yes. The point is: why does he have to learn it and then forget it? Because if it weren’t imprinted in him, he could never learn it at all. In other words, you need something you come with from home so that things have something to rest on—some kind of substrate that you do not absorb from outside; you bring it with you from home. And then you can learn all sorts of things from outside. Without that…

[Speaker G] I’d say that, for example, in physics labs, part of teaching a lab is giving the student the ability to see what it is they’re measuring.

[Rabbi Michael Abraham] But understand that if the student didn’t come from home with some raw ability in that area, you wouldn’t be able to teach it. Here—I, for example, came without any raw ability in that area, and therefore physics and engineering labs were, for me, spoken Chinese. I had no idea what was going on there in the labs. I broke records—I failed some lab in engineering. I don’t think that had happened since Newton.

[Speaker G] No, but seeing results and, say, understanding that this is an artifact, this is something real, this is something…

[Rabbi Michael Abraham] Exactly. There are innate elements here. There are acquired elements. On the basis of the innate abilities, of course, you can refine it and teach and improve. But there is no such thing as doing it without basic ability, without basic concepts, without basic principles—you won’t succeed.

[Speaker G] Fine, definitely. Obviously. Causality, yes, but… every single thing?

[Rabbi Michael Abraham] Every single thing. Everything we learn rests on some substrate that enables us to learn it. No matter what. By the way, later on I’ll come back to this, because it also touches on our topic in general. The problem of following a rule.

[Speaker D] Because when you leave that place connected to intuitions…

[Rabbi Michael Abraham] Right, exactly. A deficiency means he lacks something in the built-in infrastructure. It doesn’t mean he didn’t acquire it from experience—that is precisely what a deficiency is. A deficiency… experience you can pass on, experience. What’s the problem? No, you can’t pass on the experience. Because he lacks something in the built-in tools that won’t allow him to absorb what you’re trying to convey through experience. That’s a deficiency.

[Speaker G] It won’t allow him to absorb it, but not that he lacks the base.

[Rabbi Michael Abraham] I’m saying it depends what the person has. I don’t know—one person may be missing it entirely, another may be missing it partially, I don’t know. I also don’t know exactly how to map what’s in there, but it’s clear to me that there has to be some inner infrastructure as a condition for all learning. There is no learning without that. There can’t be learning from nothing, where I learn from experience. That’s the illusion of the empiricists. The illusion of the empiricists is that they think you can learn from experience. Learn from experience! It’s the alternative to rationalism, right? The view that says we learn from thought. No—there’s no thought; what is built into us is subjective. It’s a kind of skepticism. What is built into us is subjective—who says it’s true? We just stick to experience, to empiricism. That’s nonsense. You cannot stick to experience if you do not process the experience with the tools that are inside you. And if you cast doubt on those tools, then all your experience is worth nothing. David Hume essentially sharpened this point. As an empiricist, he said: I’m a diehard empiricist. And he had to give up almost everything that experience teaches him because he wanted to purify or distill empiricism and remain attached only to the facts. So he denied the principle of causality. He denied our ability to generalize. He turned all that into subjective things. Why? Because if you do not accept those fundamental things, empiricism gives you nothing except perhaps those things you saw directly—which is almost nothing. Because every law of nature is a generalization of what you saw directly. You are never attached only to what you saw. You interpret; you generalize. All of those are tools I come with from home.

[Speaker C] The ability to generalize, for example—the ability to generalize…

[Rabbi Michael Abraham] Induction and causality, the two basic problems that Hume dealt with. So he, as a diehard empiricist, did not accept—he recognized them, induction and causality—he did not recognize these tools as objective tools. He denied the existence of intuition. That is, he wanted to cling solely to empirical facts. Of course, he didn’t notice that even empirical facts are based on intuition—that what I see is indeed there. That too is intuition. Fine—but let’s say these are the somewhat naive empiricists; they think that there it’s just pure facts. But I’m saying: even if that were true, still, what you saw, you saw—three objects falling toward the earth because they have mass. You did not see that there is a general law of gravitation,

[Speaker D] that every…

[Rabbi Michael Abraham] that every two bodies with mass attract one another. That is your generalization. If you do not accept generalization as a tool that exists within you, as a reliable tool, as a tool that has something to say about reality, then no science can exist. There is no empirical science. It’s nonsense. It’s simply naivete.

[Speaker C] So all science, of course, is based on primary intuitions.

[Rabbi Michael Abraham] Shared—yes. Meaning, primary intuitions that you feed with facts and skill, and shape—you refine that intuition. And that’s how you can learn, that’s how you can arrive at more insights and more generalizations and advance, accumulate information. Without that it doesn’t work. Pure empiricism is an illusion. There is no such thing, no such animal as pure empiricism. It’s simply people who ignore built-in elements and think they don’t need built-in elements. There is no such thing; there is nothing for which you do not need them. As I said—even just trusting my sense of sight. That is an assumption that is the result of my intuition. If you don’t accept that, then what you saw isn’t worth anything either. Then nothing. You simply have to be silent. Okay, so I want to move on to rules, and I’ll come to those same questions from another angle. The subject of rules in our topic comes up on two planes. On one plane, these are the rules of decision themselves: shuda d’dayanei, “let it remain,” “whoever is stronger prevails,” “let them divide it,” “the burden of proof is upon the one seeking to extract from another,” right, all these matters. This is a set of rules that the Talmud places before us: what to do in situations of doubt. The second set is the set of rules that the Talmud begins to deal with, and the medieval authorities (Rishonim) deepen much more: the rules of when to apply which rule. And second-order rules. Right? When there is certainty and doubt, when there is drara d’mamona, when there is presumptive possession, when there isn’t presumptive possession—this is a collection of concepts that actually is not found in that first set of rules. These are concepts—what in the philosophy of science are called “theoretical entities.” In other words, let’s say I invent entities: I see a collection of facts in the world. Now I invent theoretical entities that are not part of my world of observation. There is an electron, gravitational force, some field or another. All these are entities no one has ever seen. But they are entities we invent in order to place the collection of phenomena that we see directly into some theoretical framework. Every theory is built from theoretical entities and from principles that tell me what the theoretical entities do, what the relations are between them, and by means of that we explain the phenomena that I see directly. That’s why many people get confused about this. Yes, there was an astrophysicist from Tel Aviv University, Elia Leibowitz. And he once criticized proofs for the existence of God. Yes, he’s an atheist, quite militant and combative, and he argued that this is basically not an explanation, because you are grounding things we know on something that itself is unknown, so in what sense does that explain? You say there is a complex world—therefore there is a God who made it. The complex world is before our eyes; we see it; it’s something familiar to us. You are grounding it on something you invented, some sort of theoretical entity no one has ever seen, and you have the feeling that you’re explaining something with that thing. Yes—this is an English-Hebrew dictionary, not Hebrew-English. In other words, it’s a dictionary that explains a Hebrew word with English words. In other words, you explain what I understand by means of things I don’t understand. So what explanatory value does that have? So he argues that explanations of the supposedly parallel type are not really parallel. For example, when I see the painted windows in the Sistine Chapel and I infer that there was a painter who painted them. That’s his example. Yes, he says, of course—because from my experience I know that paintings are made by painters. That is not a theoretical entity. I know painters who make paintings. Only then can I draw conclusions, because I can ground the things I see in something familiar. Explanation is grounding in the familiar, not grounding in the unfamiliar. That’s his claim. Where is he mistaken? He is deeply mistaken. Where is he mistaken? Every significant scientific step is always grounding in the unfamiliar. Always. It’s not that there are some like that; there are no others. They’re all like that. He’s talking about what Thomas Kuhn divided in the philosophy of science between two different states of science. There is a state of normal science. There is a ruling paradigm, there are principles, equations, laws, and I explain one phenomenon or another by means of the known principles. These are situations of grounding in the familiar. Let’s say I know there is the Schrödinger equation; I solve—I mean, I look for a solution to some particular problem, I don’t know, a particle in such-and-such a state. So I know, I plug the data into the Schrödinger equation, grind through it, and hope I can solve it. If I solved it, fine; if not, then I don’t know, I do a simulation. That’s the solution for everyone who doesn’t know how to solve it. And that’s it. But in the end I’m applying known things in order to explain something unknown. That’s grounding in the familiar. But that’s only when there is normal science. The question is how Schrödinger created the equation. Not how I use the equation to explain a case, but how Schrödinger took several cases and created an equation from them. By definition, that is a process of grounding in the unfamiliar. Why? Because Newtonian mechanics, which existed before Schrödinger, ran into some serious difficulties it could not handle. That’s what Thomas Kuhn calls a crisis state. There is a crisis, you throw out the existing paradigm and replace it with a new paradigm. What does that mean? That I take the familiar and ground it in the unfamiliar—and that is explanation. Why is that explanation? Because if the unfamiliar is simple and manages to explain many phenomena, then that is an explanation, even though I’m using the unfamiliar. Therefore when I invent theoretical entities—for example, I assume there is an electron. No one has ever seen an electron, certainly not quarks. And I invent—what? Energy and momentum.

[Speaker D] Energy and momentum,

[Rabbi Michael Abraham] field, potential, force, even force. No one has ever seen these things. But I invent entities—my world is physics, so my examples come from physics—I take these theoretical entities and with them explain phenomena that every one of us knows. I take gravitational force—Newton took gravitational force and with it explained tides, planetary orbits, the attraction between bodies, the falling of bodies toward the earth. All these are phenomena I know perfectly well. How does it help to explain them by means of something you invent and nobody has ever seen and probably never will see—gravitational force or the gravitational field? Does that help? Yes. Scientific explanations, when I build the paradigm—not when I use a given paradigm in a state of normal science, but in a state of crisis, a state of scientific revolution, as Thomas Kuhn calls it—I throw out a previous paradigm and build a new paradigm. How do I do

[Speaker C] that?

[Rabbi Michael Abraham] How do they actually do that? I always do that by means of things that are inside me—my intuition.

[Speaker C] And not observation.

[Rabbi Michael Abraham] In other words, Elia Leibowitz is convinced that everything is experience. That’s the expression of what we spoke about earlier. He thinks everything we learn comes from experience. So if from experience I saw that a painter makes paintings, then I’m allowed to apply that to the paintings in the Sistine Chapel. What I didn’t see from experience is mere speculation. That’s pre-Humean naivete, right? Meaning, before Hume really explained that pure empiricism is naive nonsense. Okay? There is no such thing. It’s obvious that all the time, when we build scientific theory, we are grounding in the unfamiliar.

[Speaker D] And that’s by intuition. Yes. What? A sixth sense or some sort of mysticism.

[Rabbi Michael Abraham] You can call it mysticism, but these are the facts of life.

[Speaker D] You know, there’s the story—

[Rabbi Michael Abraham] Maybe I told it once, I no longer remember. There was someone in our yeshiva in Gush, where I studied, who got hepatitis. He didn’t recover—did I tell you? Yes. So he didn’t recover for a long time. In short, this is mysticism, right? They brought pigeons, and he returned to the yeshiva. It’s mysticism, it’s mysticism—but what can you do, that’s what happened. So to remain rational is also to accept mystical things, so long as it’s clear that they work. Afterward, one should try to look for why they work, to look for an explanation. But to reject something I don’t understand on the grounds that it’s mysticism—that’s an irrational claim. Okay. True, things that seem like mysticism are suspicious in my eyes. You have to think very carefully whether we really saw them or not. Skepticism is always good. But skepticism is a question mark, not an exclamation mark. There are people for whom skepticism is an exclamation mark. For me skepticism is a question mark. You have to check. And if it works, it works, and a rational person has to admit that something works even if he doesn’t understand it. Fine, so to our matter. So when I now build a theory, I’m basically creating things—or by means of a conceptual system that I create. There is certainty, there is a cheater, drara d’mamona, all these are intuitions we have, right? If one side has drara d’mamona and the other doesn’t, then you have a certain advantage. If you have presumptive possession and he doesn’t, then you have a certain advantage. All this is basically a theoretical conceptual world that we invent—that is the unfamiliar—by means of which we explain the rules that appear in the Talmud, which for us is the familiar. The familiar. When the Sages created those rules, of course, that’s something else; but we are already in a state of normal science. Meaning, there are already rules; the Talmud put them there; for us that’s the toolbox. We work inside it. But we still explain it by means of a set of concepts that we invent. We—the medieval authorities, or the Talmud, it doesn’t matter, or we ourselves. Yes: presumptive possession, drara d’mamona, definite cheater, not a definite cheater, it is certain for one of them, it is not certain for one of them, division could be true, could not be true. All these are concepts that we basically invent in order to organize these mechanisms—where to apply which one. And if you look carefully, you’ll see that actually there aren’t two—I said there are two planes on which the use of rules arises in this topic. One plane is the rules themselves: shuda d’dayanei, “whoever is stronger prevails,” the decision rules themselves. The second plane is the rules by means of which I explain when I apply the first-order rules. Those are second-order rules. That’s the unfamiliar. The first is the familiar, the second is the unfamiliar. Only the second one is really rules, if you think about it. The first one is not rules. Because to say “let them divide it” is not a rule as long as you haven’t told me when we do “let them divide it.” “Let them divide it” is a result. There is a set of possible results. I don’t think—if you think about it, it’s almost hard to imagine any more possible results. What can there be? Either you leave the money where it is, or you divide it, or let them fight over it, or let it remain until Elijah comes, and in court they’ll leave it there. What else can there be? Those are all the options. The second-order rules—only they are the rules that arise here in this matter. In other words, only the rules that we create—not the Talmud—are the rules here in this topic. The Talmud doesn’t give me rules at all, almost at all. The Talmud does begin the discussion a bit with drara d’mamona, but basically what the medieval or later authorities do—that’s the work of rules. Because they tell me when to do “let them divide it,” when to do “whoever is stronger prevails”—those are rules. To do “let them divide it,” to do “whoever is stronger prevails,” those are not rules; they are simply a collection of outcomes. And it’s like saying that gravitational force does not say that bodies fall; it only says when they fall. They fall when they have mass. Fine. The fact that bodies fall is not a rule; it’s one of the phenomena that can occur. The rule determines when that phenomenon will occur, and when it won’t occur, and when another phenomenon will occur. Okay? Only that is a rule.

[Speaker I] To say that in the case of the four cubits it’s this way and in the case of the cloak it’s that way—isn’t that saying when? It’s just that we need to translate?

[Rabbi Michael Abraham] No, of course, because you need to understand what “four cubits” means and what “cloak” means. “Four cubits” is when there is no presumptive possession, and “cloak” is when there is.

[Speaker I] So first of all that is the rules, only…

[Rabbi Michael Abraham] It gives hints, of course, because they tell me in which cases. I take the cases and generate rules from them. Like in gravitation: I see one body fall to the earth—that I see, it fell. But I make my own theoretical move and say: ah, that’s because it has mass, and masses attract one another, and it’s proportional, and all those things. Then I have established it as a rule. Until then it was only an example. Okay? I always create the rule by means of theoretical work, which is grounding in the unfamiliar. And someone who doesn’t believe in our ability to do that basically regards this work as fiction—even in the scientific context. Someone who doesn’t believe in our ability to make generalizations regards generalization as fiction. There are philosophers like that. A working fiction, a useful fiction.

[Speaker C] Every day the sun rises, every day there’s gravity, every day?

[Rabbi Michael Abraham] The more far-reaching ones will say… What? That even the fact that it works is fiction. Who said it works? You think it works. Fine—but I agree with you. I’m just saying there is such a view in the philosophy of science.

[Speaker G] Then don’t get on an airplane? No—then don’t get on an airplane. Exactly. If you go that way, then yes, right. Fine, maybe those approaches are only among the…

[Rabbi Michael Abraham] The point is…

[Speaker G] that basically…

[Rabbi Michael Abraham] the conclusion that emerges from here is that rules are always the result of our work. There are no rules in the source itself. Rules are always what we do with the source. And that raises a difficult question.

[Speaker G] So what is the source?

[Rabbi Michael Abraham] The Talmud, say. Or the Mishnah, depending—each in relation to what preceded it. That’s the source, and he is the interpreter. The Talmud interprets the Mishnah; we—the medieval authorities—interpret the Talmud; we interpret the medieval authorities. Yes, but I’m saying it’s always like that. Each generation, in relation to the authoritative earlier sources—for it, the authoritative sources are the examples, and it builds the theory that explains the examples. And without that you cannot apply anything. You need a theory within which you can apply the things. Okay?

[Speaker D] So now, basically, this…

[Rabbi Michael Abraham] raises the question: what is the status of these rules? As I said earlier, you can say these rules—fine, that’s just me; it’s not in reality itself, not in the facts themselves. Someone with a different kind of mind would build a different theory, in which “definite cheater” wouldn’t seem to him a relevant parameter at all, or presumptive possession wouldn’t be a relevant parameter, or migo, it doesn’t matter, things like that. These are just things that supposedly I bring with me from home. Who says there is any truth in them? Maybe it’s feeling and not intuition, in the earlier language. Maybe it’s just something subjective. That’s what skeptics often ask, both with respect to scientific theory and with respect to halakhic theory. The question is what the status of the rules is. You can ask a more radical question: whether there are any rules at all. The question is whether there are rules. Who says there is such a thing at all? It could be that we’re just used to thinking in terms of rules, so we operate in these ways. Who says that when we finish all scientific research and gather all the facts there are on earth—let’s say such a state could happen—and generalize them into rules, will we find rules that always work? And even then, would those rules we find not just be our own fictions, which we fitted to the full set of facts? Does that say anything about the world itself? Are there really those theoretical entities that we would then generate within the framework of the theory—a theory of everything? Yes, when we generate the theory of everything, will it be a true theory, or will it be a useful fiction that this time works on all the facts, but not really something about the world itself—just my way of handling the full set of facts I know? That’s not a simple question. And once again, I don’t know the answer.

[Speaker C] Again—it works.

[Rabbi Michael Abraham] It works—so what if it works? Our generalizations—fine, we have the ability to do it this way. It would also work another way. Let me perhaps give you a few examples to illustrate the point. Does one of you have a marker I can write on the board with? Is it erasable? Even better.

[Speaker F] Erasable. Wonderful. Maybe one can also ask why a person even has the need to create rules at all?

[Rabbi Michael Abraham] That’s how we’re built; I don’t know why.

[Speaker F] Fine, that’s how we were created, what can you do.

[Rabbi Michael Abraham] If there is a need, then apparently there is a correspondence in reality.

[Speaker F] If there is a need for food, then there is food. If there is a need for rules, perhaps there is a correspondence.

[Rabbi Michael Abraham] You’re very optimistic. That’s Duties of the Heart in the first gate, but people argue against him with the anthropic principle—that simply in places where there was no food we would not have survived. We are here because we need food, and here by chance there was also food.

[Speaker F] Isn’t that still a correspondence between our needs and reality?

[Rabbi Michael Abraham] It’s a correspondence created ad hoc, not because it is really true.

[Speaker F] It…

[Rabbi Michael Abraham] is created ad hoc in an evolutionary process, a process of natural selection. In all the places where there was no food, creatures that require food did not remain, did not survive. Okay, so I’m saying you’re optimistic. I’m also optimistic, by the way, but it’s not a proof. Look—Wittgenstein, the most important philosopher of the twentieth century, and one of his well-known rules is what’s called “following a rule.” Let’s see, for example, the following example. A question on the psychometric exam.

[Speaker F] What’s his name? Wittgenstein.

[Rabbi Michael Abraham] Ludwig. He was even half-Jewish, from the wrong side. Considered by many the greatest philosopher of the twentieth century. Austrian, a student of Bertrand Russell, yes, a philosopher of language—early and late, doesn’t matter, there are all kinds of nuances there. Okay, so Wittgenstein, in his rule of following a rule—this is the later Wittgenstein in this case—makes the following claim. The early Wittgenstein says there are no propositions, and yes, there’s no point bringing claims in his name. He says, let’s say they give you the following puzzle on the psychometric exam: one, two, three, four. And now they ask you, what comes next here?

[Speaker D] Five. Hard question on the psychometric.

[Rabbi Michael Abraham] What comes next here? Now all of you have already been admitted even to doctoral programs, so I assume you wrote five. Right? Wittgenstein tells you he would not admit you to a doctorate.

[Speaker D] It’s possible…

[Rabbi Michael Abraham] to write minus seven and a third here too.

[Speaker D] Or…

[Rabbi Michael Abraham] if you want, a complex number too. That would also be fine, equally legitimate. How do you know that what comes here is five? Because you assume the pattern looks like this, right? In other words, that this maps—this is what is in the first position, this is what is in the second position, this is what is in the third position—the term that is in the fifth position. We are asking what is in the fifth position. And in the first position is the number one—nicely ordered and counting, yes? In the first position is number one, in the second position is number two, a very simple series, so the function is the one that puts n in the nth place: in the first place it puts one, in the second place it puts two, and so on. Fine? But I could build another function, g of n, which is—I don’t know what—something else, some other function of n. Let’s complicate things a little. And this function I’ll arrange so that in the first four positions there will be one, two, three, four, and in the fifth position there will be minus seven and a third. I have no problem building such a function. Quite simple. Just take a polynomial with five coefficients, if you like, and fit them. It’s no problem. I’ll arrange it so that n equals one gives one—I hope that doesn’t amaze you. n equals two gives two, and so on, and n equals five gives minus seven and a third. No problem. In fact, any number you want—I can build you a function however you like. Now along comes an alien, and he would have… What’s the logic? What—he’ll give you the function in which at n equals one it gives one, two, three—a lovely regularity—and at five it gives minus seven and a third. So what? It’s just that his mind is built differently from ours, right? That’s all. We spoke earlier about deficiencies. This is even an optimistic way to look at deficiencies—it’s not even a deficiency. He sees differently. So what? Does the fact that he is different from us mean he is inferior? She is asking exactly the same thing you said about intuition and color blindness. According to Jackson, color blindness. In other words, color blindness? Yes. So if their intuition and what they know and what…

[Speaker F] what it is and what they learned—they see red as green, right, and therefore you see green as red. So they’re kind of… It’s not that they’re mistaken, it’s not that you’re right and they’re wrong. They’re not wrong.

[Rabbi Michael Abraham] You can’t argue about that.

[Speaker F] You can’t even define them as color-blind. These are people who just see it differently.

[Rabbi Michael Abraham] That’s called color-blindness. Someone who sees differently from what most people… No, but someone who sees differently from what most people see is what’s called color-blind—there’s nothing evaluative here. That’s all. There is no way to decide. Someone who says otherwise is simply confused. And I’ll say again, this is not even a question open to argument. Obviously not color-blindness—someone who swaps colors. Color blindness means lower resolution. Yes, that’s something objective. Let’s talk about someone who sees a certain color and someone else… So that’s why I’m saying: someone who swaps colors—not someone who can’t distinguish between two colors that can be distinguished. If they have two instead of three…

[Speaker J] What? If they have two out of three neurons—what? You don’t understand the question.

[Rabbi Michael Abraham] No, then that’s not correct. They have three neurons arranged differently.

[Speaker J] Ah, the argument that their red is reversed?

[Rabbi Michael Abraham] It’s not a replacement… That’s why I’m saying: it’s not color blindness but color inversion. Yes, philosophers’ qualia. This is called the philosophers’ qualia problem. Is my yellow also your yellow? So right, here there really is no right and wrong. It has nothing to do with intuition at all, since red and yellow exist only in my head anyway, not in the world. In the world there is no red and no yellow and no colors and nothing. What there is is only in my head. In my head there is red; in someone else’s head there is yellow. There is no right and wrong here. It’s not relevant. If we had an argument about the wavelength of the field that produces the color, here there would probably be right and wrong.

[Speaker F] And there are cultures that define colors with much more…

[Rabbi Michael Abraham] a different resolution, and then…

[Speaker F] they see that where we see everything…

[Rabbi Michael Abraham] as red, they see red in several… They don’t distinguish between different shades of blue. By the way, like with the Eskimos and snow—but Whorf talks a lot about that, about the dependence of thought on language. In other words, the richer the language, the more it enables thought to work better. And in my opinion they somewhat neglect the opposite influence; there’s also influence in the other direction. In other words, the fact that the Eskimos created many concepts is because they really do distinguish between many things. It’s not that the distinction comes because of the concept—not only that the distinction comes because of the concept—it’s a kind of back-and-forth. In other words, they had better discrimination, they created more concepts, that helps them discriminate better, again, and it’s a kind of positive feedback. Fine, in any case… yes.

[Speaker E] When people talk about the Eskimos, they may have more words for ice, but ice has many forms because the distinction exists there…

[Rabbi Michael Abraham] Right, obviously. Really, when I get there, even if there are different snows, I won’t see that they’re different at all. Even for me now there are differences when I’m there, but I won’t see it. Okay. So what is Wittgenstein actually trying to say? Wittgenstein basically argues—and this is an interesting question, an interesting interpretive question, what exactly he means, but that’s not important because I’m not dealing with Wittgenstein—the question is whether, when I write a series like this, there is some real rule behind the series. As you can see, no set of examples defines a rule uniquely. It still leaves me with infinitely many possible rules, whatever you want. Whatever you want to put in the fifth place, I’ll produce a fitting rule. Okay? So that basically means there is no rule behind the examples. But the more significant implication is that whenever we build rules, we build them on the basis of some examples. But if every collection of examples… yes, like in the Talmud, in the Torah, in science, everywhere. Now if indeed every finite number, or even discrete non-finite number, of examples can generate infinitely many rules, then that means there really is no true rule behind the examples. There’s nothing truly real in the rule we created. Someone else, thinking differently, would create a different rule that also fits all the examples, and everything would be fine.

[Speaker D] So where do you put the boundary for how many examples a rule needs? Because there’s always… there is no such boundary. That’s the point, there is no such boundary.

[Rabbi Michael Abraham] That’s what I’m saying, there is no such boundary.

[Speaker D] The next example can always come and contradict everything. Right.

[Rabbi Michael Abraham] And I’ll say again: even with any huge number of examples whatsoever, as long as it’s discrete, it still leaves infinitely many—even uncountably infinitely many—theories that can fit those points.

[Speaker D] Where does this meet us with fit-to-curve?

[Rabbi Michael Abraham] Yes, with fit-to-curve, exactly. Yes, that I’m not…

[Speaker F] It’s like programming. You program something, then feed in details, and they work according to the program. So there are infinitely many programs you could create.

[Rabbi Michael Abraham] Exactly. Therefore there is no real program here.

[Speaker F] Fine, but once you put in a program, then things do go in.

[Rabbi Michael Abraham] Okay, no problem. I’m saying scientific thinking is useful, no doubt, it helps us handle the issue. The question is whether it’s true, not whether it’s useful. It’s a philosophical question.

[Speaker F] What if there are infinitely many programs?

[Rabbi Michael Abraham] No—whether there really is one correct program. Or not; maybe it’s only an interpretation. Exactly: is there in reality itself a force of gravity that causes bodies to attract, or is that only our way of describing the matter?

[Speaker F] So if we ask about the Talmud, whether it’s true, meaning: is that what God wants, is that what God determined, or…

[Rabbi Michael Abraham] Rather, is there really such a law that where there is a definite swindler you have to apply such-and-such a rule? Or not—maybe that’s just the way we organized the cases. According to what?

[Speaker F] According to our intellect?

[Rabbi Michael Abraham] According to the intention of the Holy One, blessed be He, the intention of the Torah? Yes, our intellect, fine, that’s what came out of our intellect—that’s tautological. I mean: did we hit upon something objective? In other words, did we discover a real finding here?

[Speaker F] And maybe tradition doesn’t help us?

[Rabbi Michael Abraham] Maybe it helps, maybe it doesn’t—that depends on your outlook. Is there anything there for it to help us toward at all? If there is no real thing, then tradition helps with nothing. If there is a real thing, then it could be that tradition helps us get closer to it. Tradition strengthens. Meaning, if there is something real, you can be optimistic and say tradition helps us approach it. But if there’s nowhere to approach, then there’s nothing to talk about—whether tradition helps or doesn’t help, there’s nothing for it to help with. There’s nothing true or untrue here, if you really understand it that way. So now we have to understand, when we…

[Speaker C] Everything we said at the beginning about intuitions being embedded in us, the ability to generalize, rules—that what Rabbi Sherlo said is that in the end it’s all built in to us.

[Rabbi Michael Abraham] That’s what I’m saying. The philosophical question is interesting. I have my own view, but everyone—who knows. The question is whether this really reflects something true, or whether it’s just a form—since I’m built this way, I handle things this way because it’s most convenient for me and most efficient for me, but that doesn’t say anything about reality itself in the scientific context, or about Jewish law itself, about the Torah itself in the halakhic context. It’s only the way I chose. Let’s say it’s pretty clear that different study halls interpret Jewish law in different conceptual systems, and they are all within Jewish law, and they all apply the theories they built, each in his own method, to new cases that come before them, and issue halakhic rulings about them. Now the question is: is there a correct theory? We built one rule or another. Even when the Talmud built a rule, there may have been other rules too. We’re obligated, so we go with the Talmud’s rules, but in principle one can ask this even about the rules the Talmud built. There too there were people who built rules.

[Speaker C] What do you mean? In the end we’re formally bound by the Talmud, but that—

[Rabbi Michael Abraham] —doesn’t mean that this rule is really true in some sense. That’s one question. Another question: let’s say even if there are no rules, there is still room to ask whether there is a correct answer to a question that was never asked. In other words, I have a set of answers that the Talmud gave. Now a new question comes before me; there’s no answer to it in the Talmud. I need to infer from the cases in the Talmud what I’m supposed to do in relation to this case. Now the first question is whether there is some system of rules I can extract from the Talmud and apply to the new case. Usually that’s what I do. And then I asked whether these rules are true or whether they’re just my way of handling the data. That’s what I’ve been asking until now. Now I’m asking a more radical question. The question is whether there is any correct answer at all to the new question. Not whether the way to get there is by means of rules or not by means of rules; not whether the rules are correct or not. I’m asking whether there is a correct answer at all. Or is this whole business simply not like that—there’s a set of examples from the Talmud, and from then on it’s open-ended: whatever the halakhic decisor decides, that’s Jewish law for us; he doesn’t need to hit upon anything. Exactly. What the Holy One, blessed be He, intended; what the Torah wants; what really helps, if you think Jewish law is meant to help with something—that is, to bring some added value. Okay, you can formulate it in a number of ways. I tend to think yes, that there is a correct answer, but again, that’s a question I’m asking and I don’t know how to justify it.

[Speaker D] Otherwise why are we learning?

[Rabbi Michael Abraham] Right. That kind of consideration, in my view, is a philosophical consideration. You could say: we work because the Holy One, blessed be He, instructed us to work—a scriptural decree. Fine. That sounds unreasonable to me, so I don’t accept it, but I have no proof that I’m right. To me this seems reasonable. Okay, why am I saying this? Because you can answer the second question without answering the first. Or answer the first differently. You can say there is a truth regarding the new case, and still the way to get to it is not through rules, or there is no system of rules that is itself true and will help me reach the answer. True, as a human being I always think with rules. I don’t know how to think without rules. When I take the examples from the Talmud, I try to produce a rule from them and then apply it to the new case. But according to the approach I’m suggesting now, that whole system of rules may really be only a result of my internal structure—but that doesn’t mean the output is not correct. In other words, the system of rules is my way of handling the data, but it may be that it is not something truly real—and still it may be… Every positive commandment dependent on time—women are exempt, okay? That’s a rule. We extracted it from examples. I don’t know whether it’s really true—essentially true. But with regard to any positive commandment dependent on time that comes before me, I’ll rule that a woman is exempt, and I’ll usually be right too. Not because there is such a rule, but because in that case it really is so. I mean, as a substantive rule. Okay? In that case it really is so. And the truth is, it doesn’t always hold—there are exceptions. The Talmud in Kiddushin says there are exceptions, and therefore it really doesn’t always hold, which strengthens even more the claim that rules are just our way of handling particulars, but they aren’t really true. Because if they really were true, then why are there exceptions? There shouldn’t be exceptions; after all, that’s the rule. There are no exceptions to the law of gravity. Nobody would imagine such a thing. If there is some body that doesn’t fall, something else is involved there. It can’t be that here the law of gravity just doesn’t apply; no problem, it’s just generally true. There’s no such thing. If the law is true, then it is always true. That is what it means for a law to be true. In contrast, if it’s only my way of handling things, then I won’t have such a big problem saying, okay, there are bodies here and there that don’t obey the law of gravity. It happens. Usually it works, so I keep using it, but sometimes not. Fine, not terrible.

[Speaker G] But it really seems that the Tannaim and Amoraim didn’t have rules. They thought more in a general, intuitive way.

[Rabbi Michael Abraham] Correct. The further back you go—well, “move forward backward” is a bit of an oxymoron—but the further back you go on the timeline, the less the thinking is according to rules.

[Speaker G] How would they have written without rules?

[Rabbi Michael Abraham] Right. The Mishnah is a collection of examples. In the Talmud they already begin discussing the idea behind the examples, but that’s already the beginning of building rules. The medieval authorities (Rishonim), of course, do even more of that; the later authorities (Acharonim) much more. We really work with rules in what seems to me an exaggerated way, but we really do work with rules. In other words, this is a process that developed over the years. And then the question arises whether in this progression we are uncovering something real—uncovering more and more rules—or creating more and more rules. Not uncovering.

[Speaker D] Maybe more and more details were simply revealed to us, and the environment can’t contain so many details.

[Rabbi Michael Abraham] Could be. But the question still remains whether the rules we create are rules we discovered—correct rules, uncovered rules—or whether they are rules we created because we can’t cope with the details without working through rules. That’s how we’re built. Why can it work here in Jewish law? What? Could be. I’m not saying that because of this we should abandon rules, because that’s how we’re built, so that’s how we’re built. There’s no other option. But it’s still an interesting question. Why? The practical difference will be in a place where I feel that this rule doesn’t work. Intuitively it’s clear to me that this is not right. There is such a rule, but intuitively it’s clear to me that here it isn’t right. What do I do in such a situation?

[Speaker C] So in monetary law? There are many examples. In monetary matters I’m bound to authority, and in thought…

[Rabbi Michael Abraham] So hold on—before authority, I’m speaking on the principled level. Suppose there’s no consideration of authority. So I have rules. If I grasp those rules as true, then throw the intuition in the trash; rules have no exceptions. But if you say the rules are only my means of handling a collection of particulars, then I’m aware that this needn’t always work. In other words, if I have a strong intuition, I’ll prefer it over the rule. Okay? That’s lex specialis, as jurists call it. In other words, I have a very strong intuition about a specific case; that overrides a general law that includes these cases as well.

[Speaker D] That also exists in law. State law too often exists up to a certain point, and then a case comes along and you say…

[Rabbi Michael Abraham] Right, and sometimes judges even say: here common sense says the law can’t be applied, and even though as people subject to the law they won’t apply it—or the reverse. And by the way, there is a lot of criticism of judges for this, and it isn’t always justified, because there are situations in which they need to do it. The formalistic conception of law is problematic in my view, both in the legal context and in the halakhic context, in my personal opinion.

[Speaker C] There are many examples of that.

[Rabbi Michael Abraham] I’ll give one example from our topic. An example that Noa raised when we discussed there in Tosafot the system of rules—when they apply each type of decision rule. So in the “third maneh” case, right? And according to the view that when there are parties in possession we don’t do “whoever is stronger prevails” but rather split it, then we should have said that in the third maneh case both are considered in possession, right? And then Noa argued: how can you say that both are in possession there? What are you talking about? The maneh is with the custodian—what does that have to do with being in possession? It’s pretty clear that Tosafot defined such a state as possession only to fit his paradigm that only where there is possession do we split. Without that, it would never occur to me to define such a state as one where both are in possession. In other words, Tosafot understood that he had no choice—he had to force things a little, because there is such a rule and he has to maneuver among the Talmudic data, and he couldn’t fit this into the framework. So now I’m not sure; there are two interpretive possibilities. Either Tosafot really thought that intuitively it was correct to split the third maneh, only he had to fit it into the… the forms—and only when both are in possession do we split—so he says this too is called a case where both are in possession. And that isn’t really true according to his own treatment of possession, but he inserted it into the theory because he had to. But what does that really mean? That the rule that both need to be in possession is only an approximation. It isn’t a true rule. But I still won’t give it up so quickly, like Thomas Kuhn also says—some examples don’t topple a rule, incidentally even in science. Contrary to what I said earlier, a few counterexamples don’t topple a rule. You need some critical mass of problems. So I say: I’m willing to treat this as some useful approximation and still stick with it, but it’s still a useful approximation. It can’t be the truth. And I can also say: no, no—the concept of possession here is some more amorphous concept, and it also applies to the third maneh; and yes, try to create some kind of rule. Maybe not even call it possession but something else: both have a monetary connection. Remember, I tried to say that in Tosafot? That Tosafot doesn’t mean possession, but really means the concept of a monetary claim-link, because indeed both have a connection to the money—that is certainly true here, that both have a connection to the money, even though both are not in possession. Then you really fit it completely into the rules, and there’s no problem with it. Okay? So these are exactly the kinds of hesitations. And what’s the point? This accompanies halakhic decisors down to our own day, always, in different degrees. Different decisors have different methods of ruling. There are those who cling to the rules all the time, even where it contradicts intuition—those are the rules. “Let the law pierce the mountain.” Others are always accused of serving themselves, not the Holy One, blessed be He, because they do what seems right to them even though it is against the rules. But that isn’t correct. There is a fundamental approach here that says that what the Holy One, blessed be He, expects from me is basically what my intuition tells me. My intuition isn’t just “whatever I feel like”; rather, my intuition is what I think is correct here—it is God’s will here. And therefore what I’m really saying is that the rules—it isn’t right to apply them here. And that is not God’s will, so I don’t do it. Not because I am rebelling against the rules, but because in this case the rule does not apply. And then a new rule is created; it is born by the fact that I deviated from the accepted rules, and then later interpreters came and turned what I did into another rule within the framework of halakhic rules. That is what happens in Jewish law; therefore the number of rules always grows. Because everything that was considered a deviation from the rules in generation A becomes one of the rules in generation B. And that’s fine—what I’m saying now is not criticism. That’s how it works. Like the epicycles and deferents of Ptolemaic astronomy: they assumed that the paths of the stars were always circles. But it doesn’t work, of course; they too saw that it didn’t work. They aren’t circles. So what do you do? Inside that circle, beside that circle, you put another little circle here and another little circle here, because then it comes out almost like an ellipse. But it still isn’t exact, so add another little circle here and another little circle there, until in the end you get more or less an ellipse. Why? Because they were compelled to build those paths within the paradigm of circles, because the paths had to be circles for some reason—I don’t know, a perfect shape or something like that. Until Copernicus came and said: folks, leave this nonsense. Paths are elliptical, not circular, and suddenly everything became so simple. No need to add millions of little circles and mini-circles and circles-of-circles just to manage these things. Do you understand? What did they do at first? At first they said: my paradigm is a circle. It doesn’t really work, so I’ll add another little circle. In the end we take all the circles, little by little we take all these circles and turn them into a theory. Now the theory is no longer one circle but a collection of circles. Until Copernicus comes, throws everything out, and puts an ellipse there. Now, if you check, you’ll see that it’s not exactly an ellipse either, and then you need further corrections. Fine.

[Speaker C] That’s how it happens in Jewish law—we’re not exactly…

[Rabbi Michael Abraham] In Jewish law too it’s the same thing. We—the Shulchan Arukh, for example, let’s take that case. The Talmud—I can definitely sketch a possible agenda like this, I don’t know if it’s true, but it could be true—that the Talmud had all sorts of cases come before it, and the Talmud said: here let it remain until Elijah comes; here split it. Different sages in different places said these things. Then all this was gathered into the Talmud. None of them necessarily thought about the other cases and why in this case it is right to say this and in that case it is right to say that. Rather, he had an intuition that here it is right to say “split it” and there it is right to say “the burden of proof is on the claimant.” A good, healthy intuition—this is not criticism; on the contrary, I’m saying that’s what they thought.

[Speaker D] And there was also that intuition, let’s say, because—

[Rabbi Michael Abraham] The cases may simply never have come before them at all. One sage had this kind of case, another had that kind. Now the Talmud gathers everything that happened in all the study halls. It doesn’t have to be—but what is it?

[Speaker G] Because I assume that this is the original will of God that I’m trying to determine?

[Rabbi Michael Abraham] Maybe. It doesn’t have to be. You assume—that’s what I said, right—but it doesn’t have to be. And when the Talmud… It could also be that there is an original will of God and the Talmud didn’t hit it either. That’s also possible. It’s not necessarily because there is no will of God. Maybe there is, and who says the Talmud got it right? Maybe the Talmud’s sages are human beings too; maybe they also erred. Fine, it doesn’t matter—there are many assumptions one can make here.

[Speaker I] So from that you don’t learn from generalizations?

[Rabbi Michael Abraham] Yes. And then I say that what happened is that the Talmud gathered everything into these passages and begins trying to make order among the things. It is not at all certain that it is uncovering what was in the mind of the earlier sage who established that rule. It may be generating a system of rules out of whole cloth. And maybe those rules aren’t really correct at all; they are only our way of collecting all these particulars and generating a complete theory out of them.

[Speaker C] And in order to get to the same result that way.

[Rabbi Michael Abraham] That’s fine. It could be.

[Speaker C] But that’s how we keep working.

[Rabbi Michael Abraham] Now the question—the important question—

[Speaker C] —important—

[Rabbi Michael Abraham] —is what I, as a judge today, should do when a case comes before me where it is clear to me that it is not right to behave according to the theory of Tosafot, of Nachmanides, of the Shulchan Arukh—the theory they built. It’s clear to me. Here I have a very strong intuition that one should say “split it,” even though there is no possession, for some reason; it doesn’t matter right now why. So if I am bound to this as the correct set of rules, then I bend myself before the rules. That is what the Talmud established, that is what for us counts as halakhic truth, that is what must be done. But if I understand that the Talmud gave me only some framework for work—that is, only some initial structure that channels the intuitions more or less into some framework—but we know that this is only an approximation, and the Talmud itself told me: look, if you have a very strong contrary intuition, do what you understand. I am giving you only some initial lines of discussion or a framework for discussion—the Talmud and the medieval authorities, I mean the whole halakhic tradition in general—then I won’t do that. And that is a big difference between decisors who deal with a case brought before them—not specifically cases of this kind, but in Jewish law generally—according to some set of formal rules that they draw from the Talmud, the medieval authorities, and the later authorities, and decisors who first of all ask what is intuitively correct. Halakhic intuition, I say again—not what I feel like doing, but halakhic intuition, the result of experience, the result of intuition, the result of everything we discussed earlier: this is the correct way to act here. Now I’ll have to see how that fits with the Talmud, so I’ll say in the third maneh case both are in possession. After all, that’s what Tosafot did there. Clearly that’s what he did there. He found that the difference between the four hundred zuz case and two people holding a cloak is that here there are parties in possession and there there are not—but then he got stuck with the third maneh. So how can they split the third maneh? There is no possession there. What is there? There is possession; there too both are in possession. What does “both are in possession” mean? They aren’t really in possession. Fine—but I have to fit it into the Talmud’s set of rules, so he formulates it in that language. Did he really think they were in possession there? I very much doubt it. I’ll give you an example, a practical difference for this question. I now come to ask Tosafot a question: two people deposited this maneh with some person—meaning one deposited two manehs, one deposited one maneh, and there is a dispute over the third maneh, yes, that’s the case. Now one of them has a miggo; let’s say he has a miggo, so he can win the second maneh. If both are in possession, then the miggo won’t help, because it’s a miggo to extract. But if I understand that possession is only an expression meaning that here one really ought to split it, while they are not truly in possession, then if he has a miggo he will win; it is not a miggo to extract. The miggo determines that he is right; there is no possession here. Where there is no possession, whoever brings a miggo wins. So these things have halakhic practical consequences, and the question is whether I take seriously Tosafot’s claim that this is possession, or whether I understand that Tosafot is simply trying to fit this into the existing patterns. He doesn’t really mean that it’s possession. What I said earlier—that Tosafot really means monetary claim-link, not possession—and with a monetary claim-link there is no problem: I can win with a miggo, because it isn’t extracting from someone in possession.

[Speaker C] But most decisors aren’t trying to fit it into—I don’t know.

[Rabbi Michael Abraham] I think it’s a matter of degrees. No one does this entirely with rules and no intuition, and no one works only with intuition and no rules. The whole question is where on the spectrum you are, how much weight you give to the rules versus how much weight you give to intuition. Nobody is pure—not here and not there. “Pure” not in a moral sense, but no one is only there or only here. Obviously it’s a matter of degrees. Except that often in arguments it is presented as though there is some controversy—what, how did Tosafot depart from the rules of Jewish law—meaning, how did Tosafot depart so blatantly from the rules of Jewish law, that’s what is really meant. He won’t admit it, but that’s what is really happening: he too departs from the rules of Jewish law.

[Speaker D] And there’s also orthodoxy—as if it sounds to me like the more rules, the more orthodox.

[Rabbi Michael Abraham] That’s what people think. And I want to argue no, and I want to argue no. Rather, deviation from the will of God is the relevant deviation for me. Orthodoxy and non-orthodoxy are sociological definitions; that doesn’t interest anyone. It doesn’t interest me—well, it interests many people; it doesn’t interest me. What interests me is the question: what is the will of God? What do I care what it’s called? Now the question is whether the will of God is expressed in this collection of rules or not—that’s the question. And that’s a question none of the decisors answers unequivocally. Every decisor deviates from the rules; the only question is to what extent. You can’t lay down hard-and-fast lines here, and that itself says that we are not working with a positivist method, a method of logic that derives the answer from the rules. It doesn’t work that way. A computer could not issue a halakhic ruling.

[Speaker G] But precisely that assumption—that really the medieval authorities, the Tannaim and so on, were deep inside the intuition and we are only approximating that—makes it hard for me to disagree with their intuition.

[Rabbi Michael Abraham] Therefore, in fact, one generally does not tend to disagree with the medieval authorities. That’s true. But on the other hand, don’t make that black-and-white either. We are not entirely devoid of intuition, and they did not possess perfect intuition either.

[Speaker G] They reinforce one another.

[Rabbi Michael Abraham] Exactly. So what I need to do is this: their words have weight for me. I won’t depart from them lightly. But I don’t know—where I am completely convinced and it is clear to me that over there it wasn’t completely clear, then yes, I will depart. Again, it’s a matter of degrees. There is no black-and-white answer here. It’s like a doctor comes to me and says… There’s no black and white here, that’s the point. Positivism is an illusion, as though one can think in black and white. If they have authority, they have authority; if it’s the truth, it’s the truth; if these are the rules, then these are the rules—it never works that way. Jewish law—and I talked about this, yes, I think I did—has very little respect for rules. I spoke about positive commandments dependent on time: when the Talmud says every positive commandment dependent on time, women are exempt, except for several, and then it brings another one, it’s saying: don’t make too much of every rule.

[Speaker D] The problem is that you can never really distinguish between intuition and ego.

[Rabbi Michael Abraham] Fine. You have to try. You can never be certain. Again, “you can never do it” is too strong an expression. You can never be certain. Right. And you don’t need to be certain. I can make the effort. There’s no alternative.

[Speaker K] Here it’s some kind of fear and so on, and emotion tells you that you want, and somehow somewhere they tell you it’s worth it.

[Rabbi Michael Abraham] You have to try to cleanse your considerations of interests, ego, impulses, and so on. You never know whether you succeeded completely, but this is what we have—we’re human beings. So don’t expect absolute certainty; that’s another part of the positivist illusion. There is no absolute certainty, and we are not expected to have absolute certainty. What is expected of us is to do the best we can. That’s all. The Torah was not given to ministering angels. And those who work by the rules also do not always hit the truth, because if I’m right then they are making more mistakes than I am. They ostensibly aren’t working with ego and impulses because they work only by the rules. But if you work by the rules, then you’re wrong, because the rules are an approximation—if I’m right, the rules are an approximation. Therefore rules are not the safe road to take. Let’s be stringent and go with the rules because then we cleanse out the ego. We cleanse out the ego and do foolish things.

[Speaker C] But someone who believes that the rule is true and that rules are the only way?

[Rabbi Michael Abraham] Here the question begins: are these rules the truth? I present it as a question. I have a position, but it’s a question. I have no proof that I’m right, but it’s a question that has to be discussed.

[Speaker G] If the rules are true, I can say, for example, Maimonides says something and I think—I don’t understand Maimonides, I think otherwise—I can say I really think otherwise, but he was probably right.

[Rabbi Michael Abraham] No problem. You’re allowed to say that.

[Speaker G] That’s a completely legitimate consideration.

[Rabbi Michael Abraham] A completely legitimate consideration. One hundred percent. But that too is one of your considerations.

[Speaker G] I’m doing the rules and he worked according to—fine—

[Rabbi Michael Abraham] But that consideration itself is one of the considerations you take into account when formulating a position, and that’s fine. When I listen to a doctor who prescribes me medicine, obviously one of my considerations is that he understands and I don’t. And still there will be cases in which I won’t take the medicine. But true, in most cases I will take it, even if I think it’s not right, because in most cases—except in extreme cases—I assume he knows and I don’t know. That itself is one of my considerations. In the end, only I decide.

[Speaker F] But reality shows that you always need a live doctor, a live rabbi, a live judge, and not just books. If it were possible to manage only with rules, you wouldn’t need living people who can discuss things at every given moment.

[Rabbi Michael Abraham] Obviously. The claim of those naïve people, with whom I disagree, is that the living rabbi is nothing but a sophisticated computer. In other words, he extracts the true rules from the words of the medieval authorities and derives the answer from them. Clearly that’s not true, just as the medieval authorities themselves didn’t do that. But fine, that’s the alternative claim—I’m presenting the two approaches here. I just want to finish, because this really took me longer than I thought right now, but I still want to finish with something that completes the picture because it adds a lot of understanding to the matter. An example brought by Michael Polanyi, the philosopher of science: he brings the following example for the relationship between apprentice and craftsman. He says Stradivarius made violins of very high quality. Okay? Today, with all our computers and all our mathematics and all our scientific knowledge and everything—as the experts say, I don’t understand this—we still can’t produce violins of his quality. How does that happen? It happens because Stradivarius made the violin intuitively. He had a feel in his fingers for how to shave the wood correctly, which wood to choose, I don’t know what resonance-box volume, all sorts of things of that kind. I can’t translate this into a set of rules that would tell a computer or a lab or whoever produces the violin automatically: do it like this. What does that mean? That Stradivarius’s collection of intuitions cannot be presented as a set of rules. Or at least we haven’t managed to do so yet. I don’t know whether it’s impossible, but at least we haven’t succeeded. What does the apprentice of Stradivarius do, the one who is in his workshop and learns from him how to make violins? He also does not learn from Stradivarius a set of rules for how to make them, because if there were such a set of rules, then today we would make better violins than Stradivarius. So what does he do? He teaches him the feel in the fingers. He gives him the feel. When an apprentice learns from a craftsman, he learns from him the intuition. He sharpens his own intuition of what the right thing to do is. Now, this often does not transfer in full. Therefore the intuition the apprentice will have is less good than the craftsman’s. Okay? And therefore, little by little, it is forgotten, and instead of the apprentice we try to back it up with some rules. So we try to see what Stradivarius did—let’s establish some rule. Whenever making a violin like this, take such-and-such a type of wood. Now, that doesn’t really always work, but it’s the best generalization we found from the set of violins Stradivarius made. Why? Because little by little we lost the intuitive feel, because we have already moved away from Stradivarius, and we compensate for that with a set of rules that we try to use to do the job instead. That is what happens in Jewish law. We are basically apprentices learning from a craftsman and trying to formulate intuition. The rules the craftsman passes on to me are not really rules that I’m supposed to memorize; rather, it’s only his way of conveying things to me. He’s really conveying cases to me, not rules. I make the rules, because through that I am trying to internalize the intuitions within myself. After I’ve created the rules, I’ll throw them away. The rules are only my way of processing the information I receive from my teacher. Okay. It’s like learning in the East versus learning in the West. People have often spoken about how in the East you serve your teacher; you don’t study with him in a classroom. In the West they teach in a classroom, because there are rules and you apply them. That is why the sciences developed in the West—that is the advantage of science, but also the disadvantage of science. There are areas that science does not know how to handle, and anyone who tries to handle them scientifically will fail. Therefore in those areas it is more correct to learn in this way. I argue that Jewish law is one of those areas. It is an Eastern field, not a Western field. Eastern meaning Far Eastern. And this is apprenticeship to Torah scholars, or what is sometimes called Da’at Torah, or some properly built intuition. And when we collect the rules, those rules are not really meant for us to use as rules—that is my claim. I too try to formulate rules and understand, but afterward I’ll throw them away. When I come to issue a halakhic ruling, I will not go back to the rules I created. When I created the rules, I assume they improved or refined my neurons, my intuitive perception. Now, under the optimistic assumption that this really is now better built than it was before, now I simply think: what does this problem mean, and what is the right thing to say about it? I won’t apply the rules I used, because that was only a device. It’s a ladder I climbed out of the pit with, and afterward I threw it away.

[Speaker L] And that means it lets people say all kinds of nonsense in the name of Da’at Torah.

[Rabbi Michael Abraham] Right, right. That is the danger in the Eastern method, which exists less in the West because there you have control through the rules—you are working correctly or not. But on the other hand, there are fields where you can’t do control through rules. They are fields that by their very nature are not positivist. So there is no choice: you have to do it in some way that is not straightforward, not just recursive like that.

[Speaker L] But then what’s the answer to that?

[Rabbi Michael Abraham] There is no answer to that. There is no certain answer. You are always in a vague area. This—I return to Rabbi Sherlo’s article—you make decisions within a world of uncertainty. Decisions will never be certain. A person can say nonsense, and you will not be able to prove to him that he is speaking nonsense. This is what in the Talmud is called “one who errs in judgment,” as distinct from “one who errs in an explicit Mishnah.” “One who errs in an explicit Mishnah” is someone standing head-on against a Mishnah. We said: that’s a Western error. “One who errs in judgment”—a Western ear is not even prepared to accept such an expression. What does it mean, “errs in judgment”? It’s his judgment; who decided that your judgment is the correct one? “Errs in judgment” is an essentially Eastern expression. What it really means is that you are acting in a non-positivist way and still you are mistaken. Because there is truth; only the way to get to the truth is not by simple application of rules, but by some kind of intuition—and we all understand that here you are mistaken, so you are mistaken, even though I can’t prove to you that you are mistaken, and there is no certainty and no proof, but you are mistaken. And in my final sentence I’ll just say that, in a certain sense, this is really two different ways of building computer software. There is classical software; you build it in this linear way: do this, and if so do that, and if not do that—a simple algorithm like that. If you want to identify a face, there is no chance such software will manage it. Face recognition or handwriting recognition—software like that can’t do it. It’s too complex. Maybe there isn’t any set of rules that does it. Maybe there is and it’s just too complex; I don’t know, that’s already a philosophical question. But practically, we can’t do it that way. So what do we do? Broadly speaking, we do it through a neural network. What does that mean? It’s a completely different philosophy of programming. Without getting into it, what it basically means is: let’s take this structure, which we’ll call a neural network—which is also, in one way or another, how our brain is built—and basically give it sample cases. Show it this person’s face in a certain situation and say: this is that person, please recognize him; this is Yankele. Okay, now show him in shadow, a slightly different picture; it can’t recognize that it’s the same Yankele as before because it doesn’t look the same, and you tell it: this too is Yankele. Ah—now it organizes the neural network. Another picture: he gained a little weight, he lost a little weight—all of these are Yankele. The assumption is that after you see Yankele enough times, the network will know how to identify Yankele even in a state it hasn’t encountered before. But you don’t give it an algorithm that says: know that if the eyes are like this and the nose is like that, then it’s Yankele, and if not then not. It doesn’t work that way. Rather, I train the neurons, and somehow I shape them into a state where they can immediately tell me whether it’s Yankele or not. That is exactly the process I’m talking about here. Now, a human being is built that way. The computer we have in our head is not built linearly. The computer we have in our head is built as a neural network; that’s why it’s called a neural network.

[Speaker D] So according to this, do we need to teach with flowcharts?

[Rabbi Michael Abraham] What? Therefore, therefore you have to be careful with flowcharts.

[Speaker D] Therefore, therefore you have to be careful with flowcharts.

[Rabbi Michael Abraham] Flowcharts? No, this thing is terribly, terribly linear. But I just want to say that on the essential level, beyond the didactic arguments or didactic reasons—it’s not really an argument, each person according to how he’s built—but I’m saying that on the essential level, in my view, and this is my outlook, the field of Jewish law is plainly not a positivist field. It’s a field where the right way to handle it is to work with the Western mind, because that’s what I am, or that’s what we are—I think most of us, or all of us—we’re inside this cultural world. We work with rules and make distinctions and practical ramifications, and we refute by means of a counterexample and throw out the rule. But in the end, forget all the rules. When a case comes before you, if you’ve learned the topic / passage well and built the rules and done all the work—after you’ve done all the work, not instead of it—after you’ve done all the work, issue your halakhic ruling according to your instinct.

[Speaker C] Because if it comes instead, then it’s coming to explain.

[Rabbi Michael Abraham] Right, instinct. After you’ve built that instinct properly through all the examples and the medieval authorities (Rishonim) and the later authorities (Acharonim), and we’ve studied the topic / passage and ruled things out.

[Speaker C] And who will guarantee you that you built it properly?

[Rabbi Michael Abraham] I’m saying: what tells me that I built it properly is the examples I encounter. If I’ve hit on what the Talmud / Talmudic text says or what Maimonides says, that’s a certain kind of feedback. That’s how I build it. That’s the training. But after the training, I need to apply it.

[Speaker D] Okay, so basically what—

[Speaker M] What you’re saying is that the identification is according to the pattern, and not an absolute binary identification. A flexible pattern, and not a total axiomatic binary identification.

[Speaker E] Thank you very much. How, in God’s name?