Kiddushin – Chapter 3 – Lesson 2

Table of Contents

• The Mishnah’s novelty in the case of an agent who betroths her for himself
• The presumption that a person does not pay before the due date, and the burden of proof
• Halakhic authority, and norms versus facts
• The moral novelty in the topic of Kiddushin 58
• Ravin Hasida, informing the sender, and moral tension
• Agency in purchasing land, “a poor person turning over a cake,” and “the rabbis’ land”
• The limits of legal decision-making and the lack of interest in a dispute over “waiver”
• Compelling against the trait of Sodom: morality that is not Jewish law, and yet coercion
• A transgression for the sake of Heaven and Lot’s daughters: a transgression remains a transgression
• Moral realism and the spinach test
• Claims, sentences, and the claim “murder is forbidden”
• Ethical facts, the naturalistic fallacy, and inherent normative force
• Jewish law versus morality as authority versus fact, and the possibility of formal enactment
• There is no Jewish morality, three categories of Jewish law, and value conflict
• Moral commandments as an additional religious layer, and formal exemptions
• Critique of apologetics: the beautiful captive woman, lying for the sake of peace, and override rather than uprooting
• Moving on to the continuation of the Mishnah

Summary

General overview

The text argues that Jewish law does not come to introduce psychological facts or moral determinations, but binding halakhic norms. Therefore, a “factual” or “moral” novelty in the Mishnah or the Talmud is problematic as a kind of halakhic novelty. It demonstrates this through the presumption that a person does not pay before the due date, where the novelty is not a fact about human nature but a halakhic norm of using probabilistic assessment to shift the burden of proof. From the topic in Kiddushin 58, it sharpens the distinction between deceit as a moral judgment and “what he did is effective” as a halakhic judgment, and develops a view of moral realism according to which moral claims are true/false claims and therefore are not subject to “authority” the way halakhic norms are. It goes on to suggest that Jewish law is a separate sphere from morality—sometimes overlapping with it, sometimes neutral to it, and sometimes in conflict with it because of religious values—and therefore there is no need for apologetics claiming that Jewish law is always “the highest morality.”

The Mishnah’s novelty in the case of an agent who betroths her for himself

The Mishnah deals with a case where a person tells his fellow to go and betroth a certain woman on his behalf, and the agent goes and betroths her for himself; the law is that she is betrothed to the second one. The text presents three possibilities among the medieval authorities (Rishonim) for understanding the novelty of the Mishnah: a factual novelty about the person’s intention, a moral novelty about the defectiveness of the behavior, and a halakhic novelty that such an action is effective in terms of acquisition law. The text states that the first two are problematic, because Jewish law deals with norms, not with verifying changing psychological facts, and not with moral rulings treated as facts.

The presumption that a person does not pay before the due date, and the burden of proof

The text uses the presumption that a person does not pay before the due date to show that the Talmud is not introducing a psychological fact about what people actually do. It argues that the novelty is normative: Jewish law takes realistic assessments into account in order to alter the burden of proof in legal procedure. The text describes a situation in which the plaintiff normally bears the burden of proof, but the claim “I paid before the due date” runs up against a presumption that shifts the burden of proof onto the defendant, and this is defined as a halakhic novelty rather than a factual determination.

Halakhic authority, and norms versus facts

The text argues that it makes no sense to speak of authority with respect to facts, because facts are true or false independently of authority. It explains that authority belongs to norms, because a person can be required to act according to a norm even if he thinks it is wrong, but he cannot be required to “believe” a fact that he does not believe. The text states that the facts according to which a person will act are the facts that, to the best of his understanding, are true, and a declaration by an authority figure does not obligate him to think otherwise.

The moral novelty in the topic of Kiddushin 58

The text cites the Talmud: “It was taught: what he did is effective, but he acted deceitfully toward him,” and takes as its starting point that the novelty of “what he did is effective” is halakhic, whereas “he acted deceitfully toward him” is a moral novelty. The text cites the distinctions in the Talmud’s “what’s the novelty?” between “his agent” and “his fellow,” where the Talmud explains why even a fellow who is not an agent can be called deceitful, and why even an agent sent to buy a specific place is not merely “pointing out a location.” The text defines the first part as a moral novelty about deceit and the second part as a factual-psychological novelty about intention, and says that both are problematic as things for the Talmud to be introducing.

Ravin Hasida, informing the sender, and moral tension

The text brings the story of Ravin Hasida, who went to betroth a woman for his son and betrothed her for himself. The Talmud explains that they had not given her to him for the son, and therefore there was no deceit, but still “he should have informed him.” The text presents a moral-logical difficulty in the fact that the Talmud requires notification even when there was no practical possibility of betrothing her for the son, and raises the theoretical possibility that perhaps another agent could have been appointed, but leaves it unresolved.

Agency in purchasing land, “a poor person turning over a cake,” and “the rabbis’ land”

The text brings the case in which Rabbah bar bar Hannah gave money to Rav to buy land, and Rav bought it for himself, and the dictum says: “What he did is effective, but he acted deceitfully toward him.” The text continues to the story of Rav Giddel, who was pursuing that same piece of land, and Rabbi Abba bought it. The Talmud asks about “a poor person turning over a cake” and rules that such a person is “called wicked.” The text recounts that Rabbi Abba said, “I didn’t know,” offered to give the land as a gift, Rav Giddel refused because “one who hates gifts will live,” and Rabbi Abba refused to use it because Rav Giddel had already been involved with it. So the land remained unused and “was called the rabbis’ land.”

The limits of legal decision-making and the lack of interest in a dispute over “waiver”

The text argues that legal systems, including a religious court, deal with protecting rights that were violated and with determining who has the right when there is a claim and a conflict. It says that when two sides are arguing over “to whom the right does not belong,” and each one wants to waive it, the court has nothing to decide, and the possible solutions are extra-legal. The text presents this as an explanation for why the case of “the rabbis’ land” remained without a legal ruling: law is not supposed to solve every dilemma, but to respond to a claim of violated rights.

Compelling against the trait of Sodom: morality that is not Jewish law, and yet coercion

The text brings the topic of compelling against the trait of Sodom in the law of an adjoining neighbor as an example of the fact that morality is not automatically translated into Jewish law, yet there are situations in which a religious court compels behavior on the basis of a moral principle. It explains that when an equal division of land creates an advantage for one party at no loss to the other, insisting on a lottery is defined as “the trait of Sodom,” and the court compels giving the continuous portion to the owner of the adjacent field. The text emphasizes that this coercion does not turn the trait of Sodom into a full halakhic right, because if it did, the one who insisted would be defined as a robber. Rather, this is coercion on the moral plane even though the formal legal right still exists.

A transgression for the sake of Heaven and Lot’s daughters: a transgression remains a transgression

The text rejects the interpretation that a transgression for the sake of Heaven is a “halakhic override” that turns the act into a commandment, and argues that the Talmud conceptualizes it deliberately as a transgression. The text brings Lot’s daughters, whom the Sages praise for sleeping with their father in order “to preserve offspring,” and explains that the context indicates that they thought the world had been destroyed. It states that there is no halakhic permission for incest, not even in a life-threatening situation, and therefore the act remains a transgression from a halakhic perspective. But there are extreme circumstances that justify acting “not according to Jewish law” without changing Jewish law itself.

Moral realism and the spinach test

The text presents a confrontation with Professor David Enoch and uses the “spinach test” to distinguish between subjective claims and objective claims. It explains that a statement like “How good it is that I don’t like spinach” is funny, because if he liked spinach there would be no problem eating it, whereas being happy that we are not mistaken in science is not funny, because there is objective truth there. The text applies this to morality and says that the statement “How good it is that I live today and not in the nineteenth century, because then I would have enslaved slaves” is not perceived as personal taste but as a judgment in which there is right and wrong. Therefore, moral claims are perceived as true/false claims rather than preferences.

Claims, sentences, and the claim “murder is forbidden”

The text distinguishes between claims to which truth and falsehood can be attributed and questions or commands, which are not claims in the Aristotelian sense. It describes the difficulty of verifying “murder is forbidden” through approaches that try to reduce claims to what can be tested observationally, but says that the spinach test restores moral judgment to the status of a claim. The text adopts moral realism, according to which there are “ethical facts” that are not visible to the senses but are truths about the world, and moral persuasion is sometimes done through rhetoric and by bringing someone into the experience, not by pure logical inference.

Ethical facts, the naturalistic fallacy, and inherent normative force

The text presents the naturalistic fallacy as the mistake of deriving a normative conclusion from a factual premise, such as moving from “this hurts” to “this is forbidden.” It argues that ethical facts differ from physical facts because they are “loaded facts,” and understanding them already includes the motivating or prohibitive force. It compares this to the concept of God as one who has binding authority by definition, and adds that in the Bible “elohim” also refers to judges because their status demands obedience.

Jewish law versus morality as authority versus fact, and the possibility of formal enactment

The text concludes that since morality is perceived as factual-objective, the Sages have no authority to decide morality any more than they have authority to determine facts. Therefore, a statement like “this is deceit” cannot be absorbed as a halakhic novelty if it remains merely moral. The text suggests that in some cases the Sages can turn a moral consideration into a halakhic obligation by force of “do not deviate,” and then the obligation is halakhic even if someone disagrees morally. It distinguishes between a situation in which the Sages are only expressing a moral stance and a situation in which they enact a regulation that obligates behavior, and presents this through the analogy of compelling against the trait of Sodom.

There is no Jewish morality, three categories of Jewish law, and value conflict

The text argues that morality is universal, and therefore “Jewish morality” is an oxymoron. It concludes that Jewish law is not a moral system, because it is directed mainly to Jews and sometimes even forbids non-Jews from adopting certain patterns such as Sabbath rest. It divides Jewish law into three categories: laws that accord with morality, laws that contradict morality, and morally neutral laws such as the prohibition of pork and impurity from a corpse. From the morally neutral category it infers that Jewish law has religious goals beyond morality. The text offers a solution to the difficulty posed by “anti-moral” laws through a model of value conflict, in which a religious value can override a moral value without claiming that the act thereby becomes moral.

Moral commandments as an additional religious layer, and formal exemptions

The text argues that even commandments that appear “moral” do not come to introduce morality, but to add a religious layer on top of a moral prohibition already known through reason, as learned from Cain, who was held accountable for murder before any explicit command. It explains that formal halakhic exemptions in cases of indirect murder do not change the moral severity of the act, but only its halakhic status. The text presents this as proof that Jewish law and morality are two independent entities, and the halakhic discussion does not decide the moral evaluation.

Critique of apologetics: the beautiful captive woman, lying for the sake of peace, and override rather than uprooting

The text criticizes attempts to present morally problematic acts as “higher morality” in order to defend Jewish law, and gives as an example the controversy over the beautiful captive woman and the claim that there is no halakhic problem with raping a female captive in war. The text says the correct thing is to say that there is no halakhic problem here, but that it is “an act that is morally uglier than almost anything,” and there is no need to turn it into something moral in order to justify its halakhic existence. It also criticizes the claim that a permitted lie “is not a lie,” and argues that lying for the sake of peace remains a lie, only it is overridden by another value. Choosing one value does not cancel the existence and weight of the value that was overridden.

Moving on to the continuation of the Mishnah

The text concludes by announcing that next time he will begin the second part of the Mishnah, which deals with betrothal “within thirty days” and “after thirty days,” after laying out the conceptual framework regarding the relationship between Jewish law, facts, and morality through the topic of Kiddushin 58.

The claim is basically this: last time I talked about the fact that we saw several possibilities among the medieval authorities (Rishonim) for what the novelty of the Mishnah is, when the Mishnah deals with an agent who went and betrothed the woman to himself instead of to the sender. And we discussed the fact that there are really several possibilities among the medieval authorities (Rishonim) for understanding the novelty. One possibility, or one type of possibility, was that there’s some factual novelty here—what a person intends. The second type of novelty was a moral novelty. And there was a third type, which may really be halakhic / of Jewish law—that such a thing can actually be effective. And I said that the first two types are very problematic, because in the plain sense Jewish law does not come to teach us facts, not even psychological facts, but rather norms. I brought an illustration from the presumption that a person does not pay back a debt before its due date, and I said that if we’re talking about a novelty in people’s psychology—whether people prefer to keep the money with themselves or to pay it back early—then that can vary by place and circumstances, and to check the facts we simply have to look at reality or, I don’t know, do psychological research and see what reality is. That’s not the role of the Talmud to innovate for us in those kinds of facts, and therefore it’s not reasonable that that’s what the Talmud is teaching us. And I explained that the Talmud there did not innovate the fact that people do not repay before the due date; rather, it innovated the halakhic norm that we take factual assessments, psychological estimates, into account in order to shift the burden of proof. Meaning: if a person claims money from me, then since he is the claimant, the burden of proof should have been on him. I claim that I repaid within the term, and the assumption is the presumption that a person does not repay within the term—so the burden of proof is turned onto me. So the novelty of the Talmud is not that a person does not repay within the term, but that if there is a reality-assessment that a person does not repay within the term, that can reverse the burden of proof. That is a halakhic novelty, not a factual novelty. I explained there that with regard to facts, Jewish law does not deal with facts; it makes no sense to define halakhic authority regarding facts, because facts are either true or not true—what does it even mean to speak about authority there? Authority can exist regarding a norm. Suppose they tell me: you think it’s incorrect that selecting is prohibited on the Sabbath; the Sanhedrin determined that selecting is prohibited on the Sabbath, and it has authority, and therefore you must listen to it. You can perhaps argue with that requirement, but at the logical level it is well defined. What is being demanded of me is to do something even though I think it is incorrect. But it is impossible to demand of me that I think something that I do not think is true, because if you haven’t convinced me, then I do not think it is true. What would it even mean for me to think it? Thinking it means what I believe. If I believe it isn’t true, then what does it mean that I’m required to think something else despite what I think? You can’t. It’s a contradiction in terms. It’s not halakhically—sorry, logically—it’s not defined. Therefore it makes no sense to speak about authority, it makes no sense to speak about Jewish law, regarding facts. Facts—the facts in which I believe, and on the basis of which I will act—are the facts that, to the best of my understanding, are the correct facts. It doesn’t matter what source, however authoritative, told me those facts; it’s irrelevant. Then toward the end I said that an additional point, or a parallel claim, can be made with respect to moral norms. With moral norms too, basically the same claim exists as the one I made regarding facts, and therefore a moral novelty found in the Talmud or in the Mishnah also cannot really be considered a halakhic novelty. Because morality, in the end—and I said this briefly, now I’ll expand a bit—in the end morality is some kind of fact. And in that sense, even if the sages think that a certain act is immoral, if I think it is moral, then they have no authority to determine that. Their authority concerns halakhic norms. The moral question is a matter of judgment. If, in my opinion, that is what morality says, then that is what morality says. I may be mistaken, doesn’t matter—but you cannot tell me that morality demands that I act differently when the whole reason to think so is because the sages said morality demands otherwise. Fine, they said so, but I disagree. Now here this already requires some kind of justification. Why? Why really should we see morality as some other kind of fact? Why isn’t this similar to what I said before about Jewish law—that laws are norms, not facts? Morality too, seemingly, is norms, not fact. So why, when it comes to morality, does this not apply? Here I need a few introductions to clarify why this doesn’t apply to morality. There is of course—just briefly before I get into that—let’s also look at the Talmud. Because this really is more focused in the Talmud than in the Mishnah. Just very quickly, because the Talmud in tractate Kiddushin 58b—right, so maybe we’ll begin with: “If one says to his fellow, ‘Go and betroth a certain woman for me,’ and he went and betrothed her to himself, she is betrothed to the second.” Up to there, basically. That’s the part of the Mishnah I dealt with last time. So the Talmud says: “If one says to his fellow, ‘Go and betroth’—it was taught: what he did is effective, but he acted with a practice of deception.” And we discussed the order: is the novelty that he acted with a deceptive practice, or is the novelty that what he did is effective? I said that if the novelty is that what he did is effective, then that is a halakhic novelty; if the novelty is that he acted with a deceptive practice, that is a moral novelty. And that is basically the starting point of our discussion today. I said that a moral novelty is not really the mandate of the Talmud or the Mishnah. “And our tanna here also teaches that he went with deception. Why is it different here, where it teaches ‘says to his fellow,’ and why is it different there, where it teaches ‘says to his agent’? It teaches us the novelty, it teaches us the novelty. For if it had taught ‘his agent,’ I would have said: it is his agent who is deceptive, because the sender relies on him and thinks, ‘He will carry out my agency.’ But his fellow, on whom he does not rely, I might say is not deceptive. Therefore it teaches us…” So I would have thought that with his friend—since I didn’t really rely on him—if he’s my agent then I relied on what he would do, but if he’s my friend then I asked him, but he has every right not to do it; he’s not my agent. There, one might have thought it isn’t considered deceptive. It teaches us that this too is deceptive. “And there it teaches us the novelty, for if it had taught ‘says to his fellow,’ I would have said: only with his fellow, if he betrothed her in another place she is not betrothed, because he thinks he won’t bother. But with his agent, who does bother, I would say he merely indicated a place to him,” and didn’t really insist that it be specifically in a certain place. “I would say he merely indicated the place; it teaches us…” All right? Again, here this is factual, while above—meaning, the first novelty is a moral novelty: I would have thought he is not deceptive; it teaches us that he is deceptive. The second novelty is really a factual novelty: I would have thought he wasn’t specifically relying on that particular place that he mentioned. It’s discussing his state of mind, what he means. That’s basically a factual question, a psychological one, but still a fact. It teaches us that he does mean it. All right? Then it says: Ravin the Pious went to betroth a woman for his son. Right? He went to betroth a woman for his son. He betrothed her to himself. “But wasn’t it taught: what he did is effective, but he acted with a deceptive practice?” Right? Ravin the Pious—what do you mean, deceptive practice? He was pious. So the Talmud says: they weren’t willing to give her to him—meaning they didn’t want to give the woman to his son—so therefore he betrothed her to himself. He didn’t deceive anyone; he couldn’t do it. The Talmud says: he should have informed him. He thought: in the meantime someone else would come and betroth her. To tell him before taking her for himself—someone else would come and betroth her. Even this—after all, if you can’t betroth her for him, then what difference does it make whether you inform him or not? Bottom line, you couldn’t betroth her for him. Telling him is just—this isn’t even morality, not morality. Because overall there’s no moral wrong if you don’t inform him, because you didn’t have the possibility of betrothing her for him. What can you do? Maybe he could have appointed another agent who would have succeeded in persuading them to give the woman to him, I don’t know. Fine, okay. Now the Talmud says the same thing regarding monetary law. Up to here was betrothal. Rabbah bar bar Chanah gave money to Rav and said: buy me this land. He went and bought it for himself. Again, same thing. He sent him as an agent to buy land, and he went and bought it for himself. “But wasn’t it taught: what he did is effective, but he acted with a deceptive practice?” Rav Giddel was turning this land over in his mind—meaning, negotiating over this land—and Rabbi Abba went and bought it. Rav Giddel went and complained about him before Rabbi Zeira. Rabbi Zeira went and complained about him before Rabbi Yitzhak Nappaḥa. He said to him: wait until he comes up to us for the festival. When Rabbi Abba came up—he came to them—he found him and said to him: “If a poor man is turning over a cake, and someone else comes and takes it from him, what is the law?” Right. Because here, really, it isn’t that Rav Giddel sent Rabbi Abba. Rather, Rav Giddel himself had already begun the negotiations over buying the land, and Rabbi Abba came and interfered. He was not his agent. So here it isn’t so much a question of deception. Because deception is where I told you I was going to buy it for you and I didn’t, so I’m deceptive. Here there’s no deception; I didn’t tell you anything. I simply snatched it from you while you were involved with it. That’s the concept of “a poor man turning over a cake.” Maybe this isn’t exactly that case, though it could be that there is also this dimension of “a poor man turning over a cake” in addition to deception. Here there is no deception; here it’s only “a poor man turning over a cake.” So the Talmud says: what did he answer him? “He is called wicked.” So then he said: then why did you do that? He said to him: I didn’t know. I didn’t know he intended to buy it. So now too, let him give it to the Master. Right? Fine, so now sell it to him. He said to him: I won’t sell it, because it is my first field and it is not a good sign. If he wants, he may take it as a gift. That’s the opening move, so to speak. The first land I bought—and to sell it is a bad sign. If he wants, I’ll give it as a gift. In other words, he wants to be ultra-righteous. Rav Giddel, of course, did not agree. What do you mean, as a gift? He wanted to pay for the land. Rav Giddel would not take it, because it is written: “one who hates gifts shall live.” Rabbi Abba would not go down to it because Rav Giddel had already turned it over in his mind. So both of them were righteous; neither wanted to enter the land. Neither this Master went down to it nor that Master went down to it, and it was called “the rabbis’ land.” Fine. So it was called the rabbis’ land, because neither of them actually entered it, and no one else entered it either, because it wasn’t ownerless land. Financially it belonged to Rabbi Abba—sorry, to Rabbi Abba—and he didn’t want to make use of it, and Rav Giddel, it wasn’t his, so he couldn’t enter it, and he didn’t want to accept gifts. So now this is land that isn’t ownerless, but neither of the two candidates for it is willing to use it, so it remains this kind of abandoned land, “the rabbis’ land.” And now I’m reminded that they bring this midrash—there is one in Vayikra Rabbah, in the portion of Emor I think—about Alexander the Great, who came to the land of Katzia, I think. What? No, that he heard that the king there was a very wise king, righteous, wise, whatever. Maybe it’s something else; it could be the same midrash. In any case, he heard the king was very wise and he wanted to see how he worked. The local king invited him to see how he judged people. So two men came before him. One said that he had sold land to the other, all right? And the other found a treasure hidden in that land. Now the second says: look, I bought the land, I didn’t buy the treasure; he wanted to return the treasure to the seller. The one who sold it said: absolutely not. I sold him the land, the treasure is his; whatever is found in it, he bought. So they started arguing, and they came before the king. Of course both were righteous; each wanted to forgo the treasure because the other was right. What did the king do? The king said: do you have a daughter? Yes. Do you have a son? Yes. Let them marry each other and take the treasure. And Alexander the Great was very impressed by him. And of course this reminds one of the Hasidic story—you know it—about Yonatan ben Uzziel, what the difference is. The midrash says that any bird that passed over Yonatan ben Uzziel while he was learning would be burned. The Hasid is tremendously impressed by the story, by Yonatan ben Uzziel’s holiness—how from the sheer force of his learning, a bird passing overhead would be burned. And the Litvak asks: who has to pay damages? So I told this about the two students of Rabbi Chaim of Brisk, two especially outstanding students. There was the Brisker Rav, the Griz, his son, and there was Rabbi Baruch Ber, the author of Birkat Shmuel. He was a student very closely attached to Rabbi Chaim. Whenever the train passed by Rabbi Chaim’s grave, he would stand up. Meaning, he was really a devoted admirer, a very devoted student. The story says: what was the difference between them? If Rabbi Chaim would say that this table is a cow, then the Brisker Rav would say: well, whatever father said, he presumably knows; it requires analysis, but if father said so, he is a great sage, he presumably knows. Rabbi Baruch Ber was already out the door, running to bring a bucket to milk the cow. That’s the—yes, that’s the… Alexander the Great, in short, was very impressed by the wisdom of the king of Africa. But I, as a Litvak, ask: very nice, he’s a great sage—but what is the law? He didn’t tell us what the law is. He only found some solution to bypass the legal embarrassment. I ask: okay, but you still didn’t tell me who is right here. No? Who said—I didn’t intend to buy it, I only intended to buy the land. And if I didn’t intend to buy, then I didn’t buy. What do you mean? Land doesn’t acquire for me if I don’t intend to acquire. If I say this land should not acquire—after all, the land functions as an agent. He intends not to acquire. He intended to buy only the land and not all the other things. What do you mean he didn’t say it? By implication—he is testifying that that was what was in his heart when he bought it. There’s some question there; otherwise what’s the problem? Solve it halakhically and everything is fine. It seems he had no legal solution, so he found a kind of workaround, like King Solomon with the child. Meaning: when you don’t have a halakhic solution, you find a bypass. I ask: okay, leave aside the ingenious bypass, but what does the law say in such a situation? And the interesting thing here is that there are no such discussions in Jewish law. You will not find in Jewish law cases like this, where two righteous people are arguing, each wanting to waive something, and the judge has to decide who is really the one giving in and who is not. Why not? I think that’s not accidental. The answer is that Jewish law—or legal systems in general—do not deal with that. Legal systems deal with a situation where a person comes and complains: my rights were violated. Someone violated my rights; I ask the judges for help to save me, to protect my rights. Here comes someone who wants to waive his rights and claims he has no rights. Obviously—what do you want from me? You don’t know how to manage your non-rights? Throw it in the sea, make a lottery, find a son and daughter and marry them off and give it to them—all kinds of extra-legal or extra-halakhic solutions. But that’s not accidental. It’s because Jewish law is unwilling to deal with such a thing. Jewish law deals with a case where there are two parties arguing over who owns the right, and Jewish law will determine who owns the right. But here they are arguing over who does not own the right. That doesn’t interest me; I am not entering the decision. None of you is claiming that his rights were violated. So I have no one here to protect. Someone to do a favor for? Charity is not the role of a religious court. Go to the President of the State and receive a medal for being righteous. That’s not the role of a religious court. The role of a religious court is to prevent wickedness and to save rights that might be violated, or to determine whether the rights were violated and save you from that violation. But if there is no dispute over violated rights, the court does not deal with it. Now here too, the same thing basically happens: in the end this too somehow remains without a legal resolution. Right? After all, they came before Rabbi Zeira, and Rabbi Zeira said nothing. He left it as it was, and it remained “the rabbis’ land.” Why don’t you make a legal determination, or decide that it’s ownerless? No, it’s not ownerless either. It remains belonging to Rabbi Abba and abandoned, until Elijah comes. Why? Because the law has nothing to say about this matter. Yes, it’s not a legal issue. You want to waive your rights? “One who hates gifts shall live.” Those are all principles that are not legal. You don’t want to use things that you are entitled to use? Fine, be healthy. Am I going to force you to use it? Do whatever you want. But that is not a legal ruling. Fine, that was just a parenthesis. And it relates to us of course in the sense that—again, it testifies to some kind of delimitation of Jewish law. What does Jewish law not deal with? Jewish law does not deal with disputes that are moral disputes, disputes over unwillingness to make use of rights or over the claim that I have no rights. You have no rights? Go home, be well. I am drawn into a discussion only if you require me to enter the discussion. Meaning: if you claim my rights were violated, decide whether those are my rights or not, we have a dispute over whose rights these are—then you need to draw the religious court in to judge. Okay, if you do not draw the religious court in, it will not judge. A religious court is not supposed to solve every dilemma in the world. A religious court is supposed to protect, to rescue the oppressed from his oppressor—to protect rights that were violated, to examine whether the rights were violated, and if so to protect you. But if you have no claim that your rights were violated, we are not going to enter the discussion in your place. A religious court will never do things unless someone asks it to do them. Except in the case of orphans, where the court argues on behalf of the orphans because they are minors and do not know. But an adult person who has the right to do what he wants, and does what he wants—if there is no conflict then the court will intervene; if there is no conflict then what do you want? So that is one qualification, or one delimitation, of Jewish law or of the role of the religious court. And I want to broaden that and claim that the religious court is also not supposed to deal with moral questions at all. Even moral questions of harming another person. The claim is that all throughout the passage we just read, the discussion is about whether he is deceptive or not deceptive. There is some novelty that this too is called deceptive and that too is called deceptive. And “a poor man turning over a cake” is also a moral principle, because at the halakhic level, if I bought it, what difference does it make to me that he was turning it over? That’s only a moral injury to him, not an injury to his rights. He has no rights; rather, it’s just not okay to do that. So basically the entire discussion in this passage is a discussion of moral principles. Last time I mentioned the passage in Bava Batra about “we compel regarding the trait of Sodom.” The Talmud there, in the law of the adjoining owner—say two brothers inherited some parcel of land, and they need to divide it. Now one of them has land next to that parcel. So he wants the half that he receives from the parcel being divided to be the half adjacent to his own land, which is more convenient for him: he can plow them together; it’s easier for him if his land is contiguous. And the second says no, I want that part of the land; you take the other half, or let’s make a lottery. I too can of course ask specifically for that half, so I want the opportunity to win that half; let’s make a lottery. The Talmud says: if the two halves are equal—because otherwise it isn’t the trait of Sodom. If the two halves are not equal, if the half adjacent to my land is better, then it isn’t fair to ask the other one to give in. But if it isn’t better, rather they are equal, or alternatively one can reduce the area, so even if it is superior land, it still comes out equal in value, then really it is the trait of Sodom to insist, and we do not make a lottery. Rather, the one who owns the adjacent parcel gets the half next to him. “We compel regarding the trait of Sodom,” that’s what the Talmud says there. Now what does that mean? “We compel regarding the trait of Sodom” means that legally, your right is to demand a lottery. The brother who has the adjacent land has no legal argument that gives him rights over the half next to him. It is a moral argument. What difference does it make to you? This one benefits and the other loses nothing. Give me my half because it is better for me, and you lose nothing, because the other half is equal in value. What difference does it make to you? You’re just being stubborn. That’s what they call the trait of Sodom. And it’s a very great novelty in the Talmud that the court compels regarding the trait of Sodom. Meaning, the court compels a principle that is not a halakhic principle but a moral principle. So we learn two things from the Talmud there. First, that morality is not automatically translated into Jewish law. The trait of Sodom remains in the moral sphere; it does not enter the halakhic sphere. On the other hand, there are situations in which the religious court will compel even though this is not a halakhic principle but a moral one. That too is a novelty. And if it does not enter into Jewish law, why give the court a mandate to act or decide regarding it? It’s a moral question, not a halakhic one. Leave it to the people what they do at the moral level. There are situations where a person has monetary loss or something like that, or if it is an obvious case of the trait of Sodom, where the court will intervene even though seemingly that is not its mandate. Because it’s a moral question, and yet the court intervenes. That slightly contradicts the delimitation I said earlier. So here I’ll only say briefly: true, the Talmud says that the religious court sometimes compels regarding the trait of Sodom, and that is only where the Sodomic behavior is really very clear, and one person has a loss and the other has absolutely no loss in the matter—there the court will intervene. The issue of “this one benefits and the other loses nothing”: here we compel regarding the trait of Sodom. You can enter—or at least you can avoid paying if you entered. Whether you may enter or not is a dispute among the medieval authorities (Rishonim). I tell you not to enter; maybe you are forbidden to enter—trespassing—even if I lose nothing. But if you already entered and I claim payment from you, it is the trait of Sodom to collect, because after all the courtyard was not for rent, I lost nothing. There too Tosafot say this is basically an example of compulsion regarding the trait of Sodom, because they exempt you from payment even though halakhically you are liable to pay. In the end, you lived in my courtyard, and that is something worth money. But since it is the trait of Sodom, they compel the person—the courtyard owner—not to take payment. In all these examples, they are examples of a statement that is not halakhic but moral, and yet the court attends to it and even compels regarding it. Because the court deals in Jewish law—otherwise, what does it mean to compel regarding the trait of Sodom? Otherwise just determine that halakhically he is entitled as an adjoining owner to that half, and then obviously the court will compel. No—the Talmud says the court compels on that basis; it did not turn it into Jewish law. For example, if I insist and the court does not intervene, am I a robber? Why? After all, I am obligated to give him that half because he has land next to it—they turned it into Jewish law. No, that is exactly the point: no. They left it in the moral sphere; it is not law. Meaning, if the court does not intervene and I insist and refuse to give in, I am not a robber. Legally I have the right to demand a lottery. But the court will nevertheless compel me. You understand? Otherwise, if the court had turned it into law, then it would just be an ordinary rabbinic enactment that this should be his, and then of course the court compels, as it does for rabbinic law too. By defining this as compulsion regarding the trait of Sodom, what is really being said is that this is defined as the trait of Sodom, not as a halakhic legal right, and nevertheless the court compels regarding it. Okay? Like a transgression for the sake of Heaven. The passage of a transgression for the sake of Heaven—many later authorities (Acharonim) want to understand it as meaning that a certain action is a transgression for the sake of Heaven because it is really a halakhic override and therefore not a transgression at all. If it needs to be done, then it’s not a transgression. And that’s not correct. The Talmud presents it in this way for a reason. When it says this is a transgression for the sake of Heaven, it is really saying: no, it is a transgression, only that in certain situations it is permitted and maybe even necessary to do it despite the fact that it is a transgression. It does not remove it from being a transgression. It does not become a commandment or Jewish law that nullifies the transgression. No, it is a transgression, but the Torah tells you—or not Jewish law, the Torah tells you—that in certain places you need to violate Jewish law. And in certain circumstances—this comes up regarding Lot’s daughters, for example, which appear there in the Talmud in Nazir near the passage about a transgression for the sake of Heaven. Yes, people don’t know this so well, but Lot’s daughters—the sages praise Lot’s daughters very highly for what they did, for sleeping with their father in order to preserve seed. And from the context there it is quite clear that this was seen as a transgression for the sake of Heaven. Now, this is incest. Incest has no halakhic permission at all, and it is one of the three gravest sins; even saving a life does not permit it. So how can it be that Lot’s daughters are praised for deciding to commit incest? The answer is that in the circumstances they were in, in their understanding—and it wasn’t actually true, but this is how it appeared to them—they understood that the whole world had been destroyed. They didn’t see—because that was the limit of their vision, what they saw was Sodom, they saw the mountain, they saw that all the cities of the plain had been destroyed. From their standpoint, that was the world. They were sure there were no people left. As the verse says: “and we will preserve seed,” because otherwise no human being would remain, humanity would be wiped out. So this is a situation so extreme that it justifies violating incest, but there is no halakhic permission for it. There is no source that says incest is permitted in such a case. It is a transgression, but it is a transgression for the sake of Heaven. Again, you have here some kind of incursion of extra-halakhic principles that say: okay, but here it is not right to act according to Jewish law. They do not change Jewish law; Jewish law remains as it is. But here one must act not according to Jewish law, like the trait of Sodom. So now, really, I need to explain what this delimitation between morality and Jewish law means. So here—well, here I want to give a bit of an introduction about what morality is at all, a bit of philosophy. There are two—I’ll maybe start from what yes. David Enoch, a professor of philosophy and law at Hebrew University, I had some sort of debate with him on the subject of morality and God. Is it possible to define morality without God? There I used a test that he himself proposed in order to show what he calls moral realism. And on this issue we agreed. The question is whether God is needed—that’s where the debate lies. Moral realism was the starting point that we both agreed on. So what does that mean? He says this: think of a child who says, “How good it is that I don’t like spinach, because if I liked spinach, then I would actually eat it—and spinach is yuck.” Now what is problematic in that argument? Why? No—if I liked spinach, but I never liked spinach in my life. Suppose something were different in me and I liked spinach. What a terrible situation that would be. Thank God that He created me in such a way that I don’t like spinach, because if I liked spinach, then I would eat it—and spinach is yuck. What’s wrong with that argument? Yes, it’s funny of course, but what exactly is funny there? What is the root of the problem? Why? He says: the point is much simpler. If I liked spinach, then there also wouldn’t be any problem with eating it. Why are you worried that you would eat it? After all, the whole problem with eating spinach is only because your current taste is that you don’t like spinach. But there is no objective, principled problem there. Meaning: if you liked spinach, then what would be bad about eating it? You would like it and everything would be fine. If it were something objective, I would understand such an argument. But all the reason you don’t want to eat spinach is simply that you don’t like it. But in that same counterfactual state of affairs—counterfactual, as it’s called in philosophy—suppose I did like spinach, then there also wouldn’t be any problem with eating it. But to thank God that that state of affairs didn’t occur? Fine—if it had happened, everything would be okay. Maybe, yes—then even if I ate spinach, that wouldn’t be a problem, so what’s the issue? Yes, because it tastes good. All the reason you don’t want to eat spinach is simply that you don’t like it, and that is completely subjective. Now let’s contrast that with something else. Suppose someone says: how good it is that I live in the twenty-first century and not the nineteenth century, because in the nineteenth century I would have enslaved Black people and kept slaves and abused them. A person is shaped by the landscape of his birthplace, yes? So I would have behaved improperly if I had lived then. Let’s assume I wouldn’t have been different from the people who lived then. Okay. Now I say thank God that I live today and not then, because—wait, sorry, hold on, I got ahead of myself. I want to bring a different example. How good it is that I live today, when I know that Newtonian mechanics is not correct but rather relativity is correct. Because if I had lived in the eighteenth or nineteenth century, then I would have lived in error and would have thought Newtonian mechanics was correct. Is that funny in the way the spinach example is funny? Not at all. There may be a person who is unbothered by living in error, but one can certainly understand a person who says: I don’t want to live in error. Why is that different from spinach? Because the claim that Newtonian mechanics is actually incorrect is objectively incorrect. Even if I had thought it was correct, I would still have been mistaken. Right? I would have lived in error and had no way out; I couldn’t have known that. But factually, I certainly would have been wrong. That is an objective claim. And it was only discovered in the twentieth century. Fine. So there is nothing funny here at all. Someone might come and say: it doesn’t bother me to live in error. Fine. But if someone says: it bothers me to live in error—there is nothing funny about that. I’m happy that I have broader scientific knowledge than people had one or two hundred years ago. Okay, so what does the spinach test actually say? The spinach test is a litmus paper that helps me identify the relation between subjective claims and objective claims. Regarding subjective claims, the spinach test is funny. Regarding objective claims, the spinach test is not funny. And now I ask about slavery. I already have the two poles here, yes—the objective claim and the subjective claim. Now I’ll use the spinach test regarding a moral claim, and that can help me distinguish whether it is an objective or subjective claim. So now I say this: how good it is that I live today and not in the nineteenth century, because if I had lived in the nineteenth century I would have enslaved Black people, slaves, and that would have been morally wrong. So I’m glad I live today, when people already understand that it’s wrong, so that I don’t enslave people. Is that funny like the spinach argument, or not funny like the Newtonian mechanics argument? It’s obvious that it isn’t funny at all, right? If someone says, I’m happy that I am not morally defective—even though again, if he had lived then everyone did it and maybe he had no way of knowing—but clearly, at least from my perspective today, even then they were wrong. The fact that they didn’t know it, and maybe they had mitigating claims because they were coerced by their circumstances, could be. Fine, coerced is coerced. But certainly they were wrong. Right? I do not relate to the claim that it is immoral to hold slaves the way I relate to a subjective personal taste claim—I like spinach, I hate spinach. Whoever doesn’t think there is a problem with owning people, let him own them, I have no problem with it. No, I do have a problem with it. If he thinks it is okay to enslave people, then he is an immoral person. Which means that at least I relate to moral claims as fact-claims, not as subjective taste-claims. If I’m right—maybe I’m wrong—but this is how we relate to them. The spinach test basically helps me discover that moral claims are objective claims from our point of view. What does it mean that they are objective? That there is true and false. Or, if there is a disagreement about them, then when I think X and someone else thinks not-X, in my view he is mistaken. The fact that I might be mistaken doesn’t matter, but in my opinion he is wrong. That is not the same as I like spinach and you hate spinach, where I would not say that in my opinion you are wrong. I have no issue—you like spinach, you are built differently. We have no argument; it isn’t even an argument, it’s just a difference in taste. But in the moral realm there is an argument. Even though I may be wrong, I’m not certainly right, I’m not the wisest man in the universe—still, in my view, if I think it’s wrong to enslave people, whoever thinks it’s okay is immoral. I have an argument with him. We will argue; maybe he will prove I’m wrong, doesn’t matter. But there is a real argument. It isn’t like personal taste, the spinach issue. Okay? Therefore, morality is basically a kind of objective fact. Okay? If someone says otherwise than I do, in my view he is mistaken. And if we argue, maybe it will turn out that he is right and I am wrong—but not that both of us are right. I am not claiming certainty, only that this is a claim about which there is truth or falsity. Who is right and who is wrong? We’ll argue. Maybe we’ll manage to decide, maybe not. But even if we fail to decide, that is not because both are right; it is because we didn’t succeed in reaching the truth. So what does that mean? Look, usually when we relate to claims as things that are true or false—Aristotle defined claims, as distinct from sentences, as those sentences of which it makes sense to say they are true or false. For example, when I ask you what time it is, that is a sentence, an interrogative sentence. About that sentence you cannot say that it is true or false. It doesn’t assert anything; it asks. Right? You can’t say of it that it is true or false, so it is not a claim. Likewise with an imperative. If I say, bring me that lectern, I am commanding you. Again, I cannot say that this is true or false. I am not claiming anything; I am commanding you. So to command, to ask, to express an opinion or various things like that—these are not claims of which truth or falsity can be said; therefore they are not claims but sentences. Exactly. Claims are sentences that assert something. Sentences of that type can be either true or false, but not both. Sometimes I won’t know whether they are true or false, but it is clear that they are either true or false because they assert something. It cannot be that both sides are right. This is what Aristotle calls claims. Now what are claims? There is the simple kind of claim, namely factual claims. For example: there is a table here. That is certainly a claim, right? In this case also a correct claim. If I say there is no table here—is that a claim or not? It is a claim. It is a false claim. Because it asserts something about the world, therefore it is a claim. But in this case it is a false claim. A sentence is something that asserts nothing about the world—not that it is false and not that it is true; it is neither false nor true because it asserts nothing. Meaning, even a false sentence can still be a claim. Fine? Now what about this? Let’s go to somewhat subtler places, less simple. What about the claim: there are one billion ants in the world. In the entire world there are exactly one billion ants. Now I can’t think of a way to test this empirically, and I don’t think one can do this in practice. Therefore positivists—a philosophical approach that was common in the early twentieth century, in the first half of the twentieth century—logical positivists would say that this is a pseudo-claim; it claims nothing. Only a claim that can be empirically tested is a claim; otherwise it is a pseudo-claim. It is a sentence that resembles a claim, hence the name pseudo-claim, but it is not really a claim because it is impossible to determine whether it is true or false. But that’s mere sophistry. Obviously this is a full-fledged claim; we just lack the practical means to determine whether the claim is true or false. Fine, maybe in the future we’ll have such technical means. At the categorical level, if I want to classify this sentence, clearly it belongs to the category of claims and not the category of mere sentences. Okay, so this too is a claim. And before I gave examples of sentences that are not claims. What about the claim “Murder is forbidden”? Is it a claim or not? The question is whether it is a sentence; the question is whether it is a claim or not. Need to wash your face a bit? You look terribly tired. Want to wash your face? Everything okay? You can go out, feel free—it happens, sometimes people are tired. So the question is: what about the sentence “Murder is forbidden”—is it a claim or not? Here there is a dispute, because usually, how do you determine whether a given claim is true or false? How do you determine truth or falsehood? By observation. You simply check the world. Let’s say every claim describes some state of affairs in the world. You examine the state of affairs, you examine the world, you observe it. If it fits what the claim says, then the claim is true, and if not, the claim is false. Right? You say “there is a table,” you look—let’s see—there is a table here, so the claim “there is a table here” is true. Fine? The fact that there is a table here is not true; it is a fact. A claim can be true or false. A claim that describes a fact—if that fact exists in the world, then the claim is true. Truth and falsehood are properties of claims, not of facts. Okay, so the truth or falsehood of a claim is determined by observation, by examining the state of affairs in the world that the claims describe. So if I now say it is dark outside, I check what is happening outside—no, it is light—then the claim is false. If I say it is light outside, I check, indeed it is light, so the claim is true. So observation, or the method of clarifying reality, is the tool by which I determine whether the claim is true or false. That is what raises the question whether “Murder is forbidden” is a claim. Because let’s try to think how I would check whether it is true or false. Now I’m not talking at the moment about the billion ants, because there too I cannot practically verify it, but in principle I can imagine an experiment that would check it. Let’s say we send all the people in the world to check all the ants in their surroundings simultaneously, right? And then we count everything together and see whether we reach a billion or not. So at the principled level I can propose an observational tool that would test whether this claim is true or not, and therefore I say it is a claim even if in practice I can’t do it. But here, even in principle, the question is whether I have a way to test whether it is true or false. Against what am I supposed to check it—the claim “Murder is forbidden”? There is no state of affairs in the world to which this claim refers, right? So therefore people tend to think that a moral claim is not a claim, because I have no way to determine whether it is true or false. I have nothing to observe, nothing to check in the world. But let’s phrase it differently. Why shouldn’t I check what is written in the Torah or in the law book? Does it say that murder is forbidden or permitted? Why? Exactly. Not only because one can dispute whether the fact is correct, but even if it is, that still doesn’t mean it is morally binding. Let’s put it like this: the claim “In Israeli law there exists a prohibition on murder” is certainly a claim. And it is a factual claim. You can check the law book and see. But the claim “Murder is forbidden” does not speak about a particular system—in the Torah, in Jewish law, in morality, whatever. It addresses me directly. It is a claim that demands of me action or non-action. It is not a descriptive claim. This is called—not an indicative sentence, one that states some fact—but an imperative statement: do not murder, yes, “You shall not murder,” or “Murder is forbidden.” It is a normative statement, not a factual one: what may and may not be done. Therefore, apparently, it is not a claim. There is nothing to check in order to determine whether it is true or false—not the law book, not the Talmudic text, nothing. If I make a claim about the law book or the Torah, that really is a simple factual claim. If I claim that murder is forbidden, that is no longer a simple claim. But notice carefully: if this is indeed our conclusion, that “murder is forbidden” is not a claim—or in other words one cannot speak about it in terms of truth or falsehood—then I return to the spinach test. If someone says murder is permitted, in what sense am I more right than him, or think that he is wrong? Then everything here is imaginary, just—he is built in such a way that he thinks murder is permitted; I am built in such a way that I think it is forbidden. Like spinach. This is my taste, that is your taste. It becomes a subjective matter again. But if our intuition, as we saw in the spinach test, is that this is not subjective, but rather a real argument in which one side is right and the other is wrong, not merely a matter of taste and smell about which there is nothing to argue—then that means that the claim “murder is forbidden” too can be judged in terms of truth or falsehood. And if someone says murder is permitted, then in my view at least he is mistaken. I am arguing. But if I am right, he is wrong, and vice versa; it cannot be that both of us are right. What does this mean? It means that in the world there is—and this is what is called moral realism—there is in the world some additional kind of fact: abstract facts, facts that are not seen with the eyes or touched with the hands, but some sort of facts that say murder is forbidden, theft is forbidden, one ought to help others—moral facts, ethical facts. And the claim “murder is forbidden” is true because when I claim that factually in the world there is something that says murder is forbidden, when I say murder is forbidden, that in some sense corresponds to what is happening in the world, to what exists in the world. And this is what is generally called moral realism. Moral realism means that moral facts are real in some sense; they exist, they characterize the world itself. This is not a matter of our subjective tastes and smells. Okay, that is the meaning of moral facts. Now, this does not mean there is some simple way to settle arguments, because after all we do not see this with the senses. So if someone says: look, I don’t see the fact that murder is forbidden, and I say I do see the fact that murder is forbidden, then I don’t really have a way to convince him or a way to win the argument. But the fact that I have no way to win the argument is like the case of the billion ants. I have no technical way to prove it to him, but I still claim that I am right and he is wrong, and what I am saying is a claim. I just don’t have a practical way to decide what is true and false here and to convince the other person. But as with the billion ants, I still claim that this is true, and whoever says otherwise is wicked; he is morally mistaken. Okay, so the fact that I have no way to decide does not mean this is not a claim. It is a claim, perhaps one that cannot be decided here in a simple way. I think it can also be decided—not only that it is a claim. It can be decided not through simple observation, because really ask yourselves: how is such observation carried out? How do I reach the conclusion that murder is forbidden? Apparently we have some kind of ability to perceive the idea of morality or something like that, moral truth, and to understand that murder is forbidden, that theft is forbidden. Now if someone does not see that, it may be that I have some way to bring him to a place from which he will see it. That way is basically not logic but rhetoric. For example, I describe some literary situation to him and try to bring him into the situation so that for once he will understand or experience directly what it means to murder, and suddenly he will understand that it is not okay. And that is not a logical argument. I cannot take premises and infer conclusions from them. But I can persuade. So here I am trying to show that not only is this a claim in the theoretical-hypothetical sense, like the billion ants, but it is also a claim one can debate and persuade about. And the fact that in moral debates—sometimes, not always, but sometimes—human beings persuade and are persuaded, sometimes a person changes his moral opinion, means that this feeling that often accompanies us—that moral arguments are futile, that nobody ever wins or loses and there is no way to persuade, that it is all gut feeling—is not correct. First of all, I said that’s not right: this is a factual claim, not a gut feeling. Second, I claim that not only is this a factual claim, it is not even a factual claim like the billion ants, but a factual claim that at least sometimes one can also make progress on and reach a decision about what is right and what is not right—which is even more far-reaching. No, I claim yes, because if there were moral realism and that were all, then one could still ask: fine, I understand there are these facts. One could ask who created those facts as well? Why are they here? Evolution, the Big Bang, explain physical reality. The question is who created these facts. I ask more than that: who gives them authority? Without some factor that gives them authority, a factor with authority that gives them force, I do not see why I should obey them, why I should act according to them. Beyond the question of who is right—why should there be right at all? Even if there are no arguments. So there are facts—so what? Who gives these facts authority and obligates me to obey them? These are two different things: who created them, and who gave them authority. Okay? It is almost the same thing, because to create them and to give them authority is the same with moral facts. To create a table is simply to create it and bring it into existence, but to create a moral fact means to give it authority. That is what creation means there, because that is the meaning of a moral fact. In analytic philosophy too they distinguish between descriptive and prescriptive statements. Descriptive statements are statements that describe. I describe the fact that there is a table here; earlier I used the term indicative statement. A prescriptive statement is one that instructs me to do something or forbids me from doing something. It has some charge; it is not neutral. The fact that there is a table here—there is a table here, so what conclusion should I draw from that? Draw whatever conclusion you want. The fact that there is a table here depends on nothing; it is simply there. A moral fact is a charged fact; it is not a neutral fact. Its existence is supposed to move me to action or to prevent me from action. Yes? There is what is called in philosophy the naturalistic fallacy. What is the naturalistic fallacy? It means deriving a normative conclusion from a factual premise. For example, I say: this wall is white, therefore this wall is beautiful. That is a fallacious argument, an invalid one. Because the fact that this wall is white is a fact. The claim that this wall is beautiful is a judgment. A judgment is never the result of a fact. For the argument to be valid, what do you need? To add another intermediate premise: that white is beautiful, or that whatever has color is beautiful, or walls are beautiful, or whatever you want—but some premise mediating between the factual domain and the domain of judgment. Meaning, facts alone cannot generate a judgment, cannot generate a norm—not an ethical norm and not an aesthetic norm. If I say, for example, when I hit someone it hurts him, therefore it is forbidden to hit—that too is an invalid argument. Because the fact that it hurts him is a fact; the claim that it is forbidden to hit is a judgment—here an ethical judgment, not an aesthetic one, but still a judgment. You need to assume another premise, that it is forbidden to cause pain, that if something causes pain then it is forbidden. Right? Without that, it won’t be an argument. That premise is not a purely factual premise; it has a normative dimension, right? The word “forbidden” appears in it, or the word “beautiful” in the aesthetic example appears in “whatever is white is beautiful.” And you must insert into the premises something that also contains a normative component in order to reach a normative conclusion. From premises that are entirely factual, one cannot derive a normative conclusion. Fine? So what this means is that when I have an ethical fact—we were talking about realism, yes—an ethical fact, how do I derive from that that I am forbidden to murder? Seemingly, there is the naturalistic fallacy. The fact exists; from that you cannot derive the norm, the “forbidden.” I say: no, the naturalistic fallacy exists in relation to physical facts. Ethical facts—that is the whole difference—ethical facts are charged facts. The moment you understand that fact, it is also clear what it says. That is not detached from its being a fact. These are facts of a different kind. Okay? It’s almost the same thing. For example, if someone comes and says to me: look, I know that murder is forbidden, but why should that make me not murder? I understand that morally murder is forbidden, fine—but why shouldn’t I murder? I feel like murdering. Why obey morality? That is a misunderstanding. Because if you understand that it is immoral to murder, that is a charged statement, not a neutral statement like there is a table here, or hitting someone hurts him. That is neutral. When you say it is immoral to murder or murder is forbidden, that is not a neutral fact; it is a fact with a charge, a charge that moves you to action or stops you from action. Fine? If you do not understand that, then you do not really understand that murder is immoral. You are reciting words; you do not really understand. And likewise, if someone comes and says: I believe that God exists and that He commanded, but why obey? Then you do not understand the concept of God. The concept of God means, built in, this is an ethical fact—not even an ethical fact, meaning: there is an object here whose commands have binding status, that one must obey. That is the concept of God. By the way, in the Bible “elohim” means judges. Why? Because what a judge says one must obey—not because he is right but because he is a judge. Meaning, such a standing that by virtue of your having that standing, what you say is binding—that is “elohim.” Fine? Therefore the source of this whole matter is really the Holy One, blessed be He, Himself. He is called God because what He says must be obeyed. One cannot say, I believe in God but why obey what He says? Then you do not believe in God. Maybe you believe in the one who created the world, but when you say He is God, you are saying that He has authority over me. That is the concept of God. It is not detached from the fact that He exists. The fact that He is God means that there is authority in what He commands. Okay? The same is true here regarding ethical facts. Good. So now I return to us. I explained that when we grasp morality in the simple sense, it is a realist grasp: there are moral facts. Now you understand why I connect the relation between Jewish law and morality to the same thing as the relation between Jewish law and facts. Because they are facts. Now if the moral fact is that such a thing is not deception—let us return to the passage—that is how I understand it. Now the sages come and tell me: look, this is deception. But there cannot be authority over that; these are facts. If factually this is not deception, what help is it that they say it is? After all, it is an objective fact, just as if they told me there is no table here. If they tell me there is no table here and I see a table here, I cannot accept what they say even if I want to, because I understand that there is a table here. To accept what they say would mean to think there is no table here, but I think there is. That is not the same as behaving in a way that I think is not—say, halakhically. Because laws are not facts, unlike morality. Jewish laws are norms that are subjective only to the Jewish people; they are not facts. They are demanded of us and not of the gentile. So here one can tell me: look, obey the sages even though in your opinion they are not right. What is being demanded of you is not to think they are right; what is being demanded is to act according to their instructions. Even if they are not right, no problem—you are allowed to think they are not right. But in morality, if you think that the factual claim is that murder is forbidden, one cannot demand that you murder even though you understand that murder is forbidden, because if murder is forbidden that means I do not murder. That is built into the ethical fact. So therefore there it resembles the relation between halakhic authority and facts, not the relation between halakhic authority and Jewish laws. And therefore I claim that a moral novelty that exists here in Jewish law is the same as a factual novelty—I have gained nothing. Only a halakhic novelty can be heard here in Jewish law. Now perhaps one can say—and this is something one can say—that here there is some kind of “we compel regarding the trait of Sodom.” What does that mean? There are places where the sages have authority to make enactments, to act in a way that even though the Torah did not determine that this is how one must act or is forbidden to act, the sages—in the realm of enactments and decrees, “do not turn aside”—have authority to add things beyond what is written in the Torah. Why do they add them? Because they think that this is the right way to act. Now if they think this is the moral way to act, they have the right to establish it as a halakhic obligation, and now it binds halakhically, not morally. Then it is possible that I disagree with them morally and I do not accept what they say as a moral decision, because morally I think it is incorrect. But because there is “do not turn aside,” on the halakhic level I must obey what they say. That is the meaning of “we compel regarding the trait of Sodom.” “We compel regarding the trait of Sodom” means: we cannot force you to think it is moral to do this, but because there is “do not turn aside,” we have the right to demand that you do it even though you think it is immoral, because you are obligated to obey us. We established it because in our opinion this is also the moral reality, but on that point you may argue with us. We demand that you behave this way, and when you do not behave this way, you have committed a halakhic transgression, not a moral one. Because Jewish law gives the sages the authority to determine things even if they are not correct. So that is the place—now this is a big question, because in the case of “we compel regarding the trait of Sodom” the Talmud says explicitly that the sages compel regarding the trait of Sodom; they demand that you behave this way even though you may disagree. Here it does not say that they compel, and it says nothing of the kind. Also in our discussion here—this is deception, that isn’t deception, it isn’t nice to do this, it is nice to do that. It does not address the religious court and say: if you see such a thing, do such-and-such. It addresses the person himself and says: don’t do this because it is deception. So here it is not entirely clear whether the sages brought this into the halakhic sphere or whether they are merely expressing a moral position on the question. If it is the first way, then I also have to do it, even if I think this is not deception or the opposite. But if the sages also established it as a binding halakhic determination, then I need to do it halakhically even though morally I think it is not immoral. Okay? It depends very much. Let’s say I really think that such a thing contains no deception. Then it could be that I would not do it—yes, because it doesn’t bind. If the sages say: you know what, we obligate you even though you disagree with us, and you have the right to disagree with us—then I would be obligated halakhically to do it even though morally I disagree with them. And that of course sharpens even more the next claim that I want to spend a little time on, because I don’t have much time left—and that is the question whether dissonance between Jewish law and morality is possible. Because that is what came out for us here, basically. Right? And I am basically reaching the conclusion that Jewish law requires me to act in a way that in my view is immoral, but I must obey because that is the law. What? “For to Your mercy reaches to the bird’s nest”—we silence him. Fine, that depends on how one understands that Mishnah there. Maimonides in the Guide argues that it is not correct to say that there is a contradiction between that and morality. It depends how one understands that Mishnah. In principle, according to the simple understanding, yes, correct. Now I really do want to talk a little about this matter. My claim is first of all that morality is universal by definition. There is no such thing as Jewish morality. Jewish morality is an oxymoron. Because if that determination is a correct moral determination, then everyone in the world must act that way. So why does Jewish law address only Jews and not ask gentiles at all to do it? I’m not talking about the seven Noahide commandments; I’m talking about the rest of Jewish law, which is unique to Jews. Right? If that is really what every person is required to do because it is the moral imperative, then all gentiles too should act that way. Now you might say: fine, but this is an extra virtue that maybe gentiles are not required to attain. So I would say: fine, maybe they aren’t required, but surely there would still be merit if they did it, right? And we know that’s not so. Gentiles are not required at all—in fact there are things even forbidden to them. A gentile who observes the Sabbath is even forbidden to do so. Certainly it is not even expected of them as going beyond the letter of the law to do these things. That means this does not belong to morality. Because morality by definition is universal. If you reached the conclusion that morality requires or forbids something, then all people in the world are obligated to do it or forbidden to do it. There is no such thing as morality that addresses only Jews. There can be certain virtues required of Jews more than gentiles—that I’m not sure about, let’s say at least it is logically definable. But one cannot define something as a moral obligation that applies only to Jews and not to gentiles. Yes, for example in civil law—one of the seven Noahide commandments is the commandment of laws. Yes, but their laws, according to accepted views, do not have to be examined according to all the details of Jewish civil law. Rather, there should be some binding legal system that creates order there. Now if Jewish civil law is ultimate justice, then why not? I would expect that the gentile legal system should also study Jewish civil law—we didn’t create it for them?—and operate according to it. Why is this not required of gentiles if this is what is moral? Rather, clearly it is not. Jewish civil law—even Jewish civil law, which seemingly relates to justice and morality—no, this is a religious halakhic command, not a moral command. Now let’s try to do this a bit more systematically. Look, I divide Jewish law into three categories. One category is laws that, let’s say, correspond to principles of morality: do not murder, do not steal, and so on. A second category is laws that contradict moral principles: kill the Sabbath desecrator, mamzerim, kill all the Amalekites including babies and everything, and so forth. And a third category is principles that are a-moral—not anti-moral and not corresponding to morality, but neutral: the prohibition on eating pork. The prohibition on eating pork has nothing to do with morality or immorality, or corpse impurity, or whatever. Let’s call these religious principles, all right? Now why does the third category already raise the problem? We also saw earlier the trait of Sodom and so on. Because there are anti-moral laws there. How can that be? Does the Holy One, blessed be He, not want us to be moral people? It says “and you shall do what is upright and good.” By the way, “and you shall do what is upright and good” is written, but no one counts that as a commandment. Why not? Right, because morality is detached from Jewish law. But anti-morality—that is, that Jewish law should be anti-moral, that there should be something in Jewish law beyond morality and that Jewish law should go against morality—why? The Holy One, blessed be He, wants us to behave morally. So that is the problem that troubles people, and therefore the whole discussion of Jewish law and morality begins. But I say, let us leave that aside for a moment. Let’s look at the a-moral laws. From the a-moral laws I can show that Jewish law certainly has goals besides moral goals, right? Obviously. Otherwise there would be no a-moral laws. The laws would overlap with moral rules. If there are a-moral laws in Jewish law, that means Jewish law has additional goals beyond moral goals. It has religious goals. Right? Eating pork—I don’t know—it harms netzaḥ in hod, I don’t know what. So it is forbidden, eating pork is forbidden. I don’t know exactly why. Corpse impurity, or however you want to call it. So these are not moral goals. If you did it, you are not morally worse, and therefore gentiles too have no problem eating pork; from the standpoint of Jewish law it is perfectly fine for them to eat pork. But it is religiously flawed. Fine? Not spiritually—well, not morally. And if so, let us return to the anti-moral laws. Then the difficulty of Jewish law and morality is no longer so disturbing. Because, for example, let us ask ourselves a fateful question. There is an argument whether it is worth eating chocolate. One says it is worth it because it is very tasty, the other says it is not worth it because it makes you fat. Who is right? Both are right. It is both tasty and fattening. That is by definition. Everything tasty is fattening; what isn’t fattening isn’t tasty. So the claim is that both are right. So what is the argument about? Exactly—it is about weighting. That is, which weighs more: the taste, the pleasure, versus health, aesthetics, depending on why one doesn’t want to get fat. Fine? That is the argument. There is no factual dispute; both sides are right. When I say, for example, the killing of Amalek—that is one of the laws we call anti-moral—I say this: clearly, when the Torah says to kill Amalek, it is not indifferent to the moral dimension involved. Rather, there is a religious goal for which Amalek must be killed. And we know the Torah has religious goals, because that follows clearly from the a-moral laws, right? Now I say: if that is so, then there is no principled obstacle to there sometimes being a clash between a religious goal and a moral principle. So killing Amalek is supposed to lead to a religious goal, and for that reason we were commanded to kill Amalek. Ah, but this is immoral? Correct. So there is a clash here. It is not because this morality is distorted and in truth killing Amalek is the highest morality. No, it is not the highest morality. It is not moral to kill Amalek. But there is a religious goal that justifies violating moral rules. Just as I eat the chocolate because it is tasty and in my view that justifies the risk that I will get fat. Sometimes there is a clash between values and one outweighs the other; that does not mean I am not committed to both. I am committed to both. But there is a clash here, and I need to decide which one prevails. So too regarding Jewish law and morality, I say: this is, in my opinion, the ultimate solution to the problems of Jewish law and morality. I do not need to tunnel underground and explain why killing Amalek is the most moral thing imaginable. That is nonsense and not persuasive. Obviously it is not moral to kill Amalekite babies. But on the other hand, there is presumably some religious goal for which we were commanded to kill Amalek, and there is a conflict between the religious value and the moral value. What does one do in such a conflict? There is no choice. Whenever you choose one value, it will always be at the expense of the other, and vice versa. By the way, there are conflicts even within the moral world itself. When you go to war, you kill people. Right? And behold, the value of survival, say, outweighs the value of the prohibition on murder, right? Now even within morality there are clashes. So what, because of that I am indifferent to murder? No. I am not at all indifferent to human life. What can one do? But here there is a religious value that outweighs the moral value. Okay? And that is in my opinion the correct solution to the problem of Jewish law and morality. It is not that the Holy One, blessed be He, doesn’t care about morality. He does care. But in places where there is a religious value, and there is no choice, it overrides the moral value, and therefore we nevertheless do it. From a secular perspective, which does not recognize the existence of religious values but only moral values, of course there is criticism of this, because you are behaving immorally. One needs to explain to him: no—not that this is morality. One need not explain to him that this is the highest morality and that he is confused. No. Why assume this is morality? What does this have to do with morality? Obviously, even from a religious perspective this is completely true: it is a moral transgression. Only the moral transgression is pushed aside in favor of fulfilling the religious value. Therefore I have no argument with him at all. The argument with him is not an argument on the moral plane. It is an argument on the religious plane. I think there is a religious value that overrides it; he does not recognize the existence of religious values, and therefore for him all that remains is a moral transgression. And it is no wonder that he criticizes me. But at least I can explain to him that according to my position it is not that I am indifferent to morality or that I have a different moral theory, that I am wicked from his standpoint. No—I believe in the same moral values as he does. Morality is universal; it does not depend on worldview. But I have a religious value that outweighs that value. I want to claim more than that. I want to move to the third category—the commandments, no, the genuinely moral commandments. The a-moral ones are purely religious. The anti-moral ones are where there is a clash. What happens with the moral commandments? With the moral commandments, something very interesting happens. There is after all the question: why was there any need to command them at all? We would know them by reason anyway, right? In fact, the Holy One, blessed be He, turns to Cain and says, “Where is Abel your brother?” and holds him liable for murder even before there was any commandment. So the assumption is that Cain should have understood this on his own even without a command. So why is there a command? The answer is: the command is needed in order to tell you that besides the moral prohibition there is also a religious prohibition here. Therefore there is no connection. The moral understanding does not render the need for a religious command superfluous. The religious command says that when you murder, besides being morally flawed, you are also religiously flawed. Two independent entities. And that basically means—notice—that the claim is that even the moral laws are not speaking about morality. Even laws that do correspond to morality do not come to innovate the moral value. The moral value I would know without them. That means that from this perspective Jewish law comes out entirely detached from morality—all three categories of it. Jewish law is a sphere completely separate from the moral sphere. And that is exactly why I said earlier that the sages have nothing to say in that sphere. That is in the factual sphere, and regarding that I am supposed to form a view just as with facts. The mandate given to the sages, or the authority given to the sages, is to decide Jewish laws. But Jewish law is a category entirely detached from morality. If the sages decide something, I will do it because that is what Jewish law requires. It does not mean I agree with them that this is what morality says as well. Absolutely not. As for morality, what I think is what it says. For example, we know that in the context of moral laws there are also very strange things. For example, one who murders in such-and-such a way, right? Indirectly, by causation, by confining, by bringing the fire close to the object and not the object to the fire—he is exempt in some of these cases. Why? His level of wickedness is exactly the same. At the moral level he is fully a murderer. What do I care that he did it indirectly or with his left hand? He intended to murder and he murdered, only he did it this way. So what? He is completely wicked, exactly like someone who murders directly with his own hands. The answer is: right, he is fully a murderer morally. But at the halakhic level there is an exemption if you do it this way. You are wicked to exactly the same extent, but under moral law and not under halakhic law. I don’t know whether this is what is called liability in the hands of Heaven—that requires discussion. Okay? So that is exactly the point, and therefore there is no need to be troubled by the fact that Jewish law contains all kinds of formal exemptions like these that do not fit morality. The answer is: because even in the laws that supposedly do correspond to morality—even there, and therefore the definitions there are halakhic definitions. It has nothing to do with moral modes of thought. Whether by mistake or not by mistake, there is a religious value in being moral, but that religious value is qualified. It depends: if you do it indirectly, then there is no religious problem here of course, but the moral problem remains. There is no religious problem. You didn’t damage netzaḥ in hod, but you did damage the fabric of a proper human society. It is wrong. It is immoral. The case of the beautiful captive woman, for example—there was a big polemic before the appointment of the Chief Military Rabbi, when they saw what he had written, namely that there is no problem with the beautiful captive woman, that one may rape gentile female captives in wartime. That is the law of the beautiful captive woman, the Torah section of the beautiful captive woman. Then people attacked him—what do you mean, how can one appoint such a military rabbi? And he started apologetics, and everyone started apologetics: no, not true, this is the highest morality. Not highest morality. And the answer is very simple: they simply did not understand this thesis of separation that I have now made. What should be said to them is: look, when the Torah says there is no halakhic problem in raping a captive woman, what it means is that there is no halakhic problem. But morally this is an utterly ugly act. If you ask me whether to do it, the answer is absolutely not. I would also punish you for it. I would punish you at the moral level. What the Torah says is that the religious layer was not overlaid here, the religious level of the matter is absent. Fine, the Torah spoke against the evil inclination, whatever. But the entire discussion there is only on the religious plane. On the moral plane it is obvious that this is an ugly act, and the Torah too sees it as an ugly act morally. And therefore there is no problem at all. You don’t need to defend yourself before anyone; there is no need for apologetics to explain why actually the Torah is superior morality and all that—this is all nonsense. It reminds me of the claim—yes, Rabbi Dessler writes somewhere that when a person lies for the sake of peace—there are several reasons why one may lie—it is not really a lie at all. Why? Because it is a lie that is permitted. A lie is by essence something ugly. This is a lie that is permitted, so it is not a lie at all. Now that statement infuriates me. Obviously it is a lie. But it is a lie that is overridden by another value. Yet there is still a flaw, because you lied. Right? Another value overrides this value. And again, the same claim—the willingness to live in a complex world where, when there is a clash between two values and I choose one, that does not mean I am indifferent to the other. It does not mean the other does not exist. It does not mean it has been permitted away. It is deferred. The value that is deferred still exists, only the other value overrides it. Therefore, to lie here is a lie in every respect. And it may even damage the soul, whatever, that is already a metaphysical question. Okay? But it is a lie. That is a price I pay. Obviously it is still a lie. And problematic too. But yes, there are situations where I have no choice, and in order to gain the more important value I need to harm the less important value. There is nothing to be done. Fine, I’ll stop here because that’s it, and next time we’ll really begin the Talmud. Here I talked about the Talmud, but I mean the continuation. We’ll talk—I’ll begin the second part of the Mishnah, actually. Namely the case of one who betroths within thirty days, after thirty days, the continuation of the Mishnah.