Changes in Halakha, Lesson 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Midrashic conservatism versus simplistic conservatism and reform
- The two components of the argument for change: factual change and a meta-halakhic claim
- The example of disqualifying women as witnesses and the difficulty of grounding a reason
- Other witness disqualifications as an example of meta-halakhic grounding: a wicked person as a witness
- Derivations, Torah-level law, and rabbinic teachings in Maimonides
- The Meiri and the change in attitude toward non-Jews: factual change without explicit meta-halakhic grounding
- Proof versus reasoning, and the claim that there is no obligation to prove when there is no counterproof
- Doubt, “passive omission,” and the cost of leaving the existing situation in place
- Exceptions in women’s testimony: Terumat HaDeshen, the Noda B’Yehuda, and murder in a mikveh
- Symmetry between the “innovator” and the “conservative,” and claims like “do not form separate factions” and stability
- The naturalistic fallacy and the bridge principle in Jewish law
- The example of “a person does not repay before the due date” and the meaning of studying the topic
Summary
General Overview
The argument in favor of Orthodox change in Jewish law, in the model of midrashic conservatism, rests on two components: a factual change in reality and a layer of meta-halakhic justification showing that the original law rested on that same factual parameter that has changed. A factual change is relatively easy to show, but the main difficulty is justifying meta-halakhically why the Sages established the law in the first place, especially when we do not have a clear reason in hand and there is no systematic requirement to derive the reason of the verse. From this it is argued that in many disputes, the two sides are not really in positions of “proponent” versus “defender,” because leaving the situation as it is also carries costs, and sometimes there is no neutral “passive omission.” In the end, a philosophical framework of the “naturalistic fallacy” is presented to clarify that Jewish law is not the facts and is not only the practical outcome, but mainly a “bridge principle” connecting facts to norms. Therefore, the eternity of Jewish law is compatible with changes in reality so long as the bridge principles are preserved.
Midrashic Conservatism versus Simplistic Conservatism and Reform
The Reform argument for change rests on “the winds blowing today” and on what is not “realistic” or “acceptable,” even if that overrides commitment to what was practiced before. The simplistic conservative says that the Sages prohibited it and therefore it cannot be permitted, and the simple conservative may not even recognize that there is any problem at all in women’s testimony. The midrashic conservative seeks to preserve commitment to Jewish law by means of interpretation that allows internal change, and presents a factual change followed by a justification showing that the old law stemmed from that very reality.
The Two Components of the Argument for Change: Factual Change and a Meta-Halakhic Claim
The midrashic-conservative argument has to show that a relevant reality has changed, such as the status of women as educated and involved in economic and public life, as opposed to the period of the Sages. The factual claim alone is not enough, because it does not in itself establish a need for normative change. The meta-halakhic claim is the difficult one, because it has to show that the original ruling was based on that same factual parameter, and not on some other foundation that does not depend on the changes of time.
The Example of Disqualifying Women as Witnesses and the Difficulty of Grounding a Reason
The disqualification is learned from the derivation “Then the two men shall stand… men and not women,” and this is described as a “very dubious” midrash, one that even contradicts accepted rules of interpretation in which “men” includes women as well. It is argued that there is no clear hint as to why the Sages disqualified women from testimony, and explanations like “women are light-minded” are described as inventions that have no binding source proving that they are the basis of the disqualification. Even if later authorities bring such connections, the very fact that they appear in a written text is not proof, and it is said that there is an “exaggerated attitude toward written texts,” as though the writing itself creates grounding.
Other Witness Disqualifications as an Example of Meta-Halakhic Grounding: A Wicked Person as a Witness
With other witness disqualifications, such as a “wicked person,” one can examine whether the disqualification is due to suspicion of lying or a “status disqualification,” and such analyses are indeed carried out within the halakhic world. It is argued that contemporary decisors validate Sabbath desecrators as witnesses by means of concepts like “a child captured among non-Jews,” thereby creating both factual change and a meta-halakhic justification that the disqualification is built either on suspicion of lying or on social-moral meaning that has changed. When one can show that the disqualification is rooted in suspicion of lying, it becomes easier to justify change, because the “relevant parameter” on which the law rested is clearly identified.
Derivations, Torah-Level Law, and Rabbinic Teachings in Maimonides
It is said that almost every Torah-level law is the product of interpretation, and a law that is not the product of interpretation is called “something the Sadducees agree with,” because it is explicit in the Torah, and such cases are almost nonexistent. It is argued that all the derivations and learnings of the Sages are “quasi-Torah-level” by virtue of their authority, while at the same time it is brought that Maimonides, in the second root, writes that something derived from interpretation has the status of “rabbinic teachings,” noting that there is a dispute about exactly what he means and suggesting an interpretation that this means rabbinic on the halakhic level.
The Meiri and the Change in Attitude toward Non-Jews: Factual Change without Explicit Meta-Halakhic Grounding
The Meiri is presented as one who introduced a “very radical” halakhic change regarding non-Jews based on the determination that they are “bound by the norms of the nations” and are not like the ancient idolaters, thereby supplying the component of factual change. It is argued that the Meiri “nowhere” takes the trouble to ground the meta-halakhic interpretation explaining that the halakhic attitude toward a non-Jew stemmed from inhuman or wicked behavior, and therefore it is hard to present the second justification. A possibility is suggested that the Meiri was not Reform but rather a midrashic conservative, and that for him the meta-halakhic assumption was “self-evident” without explicit proof, because the Sages generally do not give reasons, especially in Torah-level law.
Proof versus Reasoning, and the Claim That There Is No Obligation to Prove When There Is No Counterproof
It is argued that reasoning is required on two planes, but reasoning is not necessarily proof, especially on the meta-halakhic plane where it is sometimes impossible to prove the reason historically. When there is no opposing proof and the topic remains open, a position is presented according to which a reasonable interpretation is sufficient in order to act, similar to the way the Meiri acted. It is argued that the simplistic conservative also does not present proof for an alternative reason, and therefore there is no justification for giving automatic preference to leaving the situation unchanged.
Doubt, “Passive Omission,” and the Cost of Leaving the Existing Situation in Place
It is said that “passive omission is preferable” is a common solution when two possibilities are balanced, but here it is argued that “passive omission” is not necessarily cost-free. In the example of two women testifying about theft, it is argued that leaving the money in the thief’s possession is itself an action with moral and halakhic cost, and therefore one can claim that the burden of proof lies דווקא on the one who wants to leave the money with him. It is brought that in most situations there is no solution “without costs,” and the feeling that continuing the existing state is “the safe route” is described as an illusion.
Exceptions in Women’s Testimony: Terumat HaDeshen, the Noda B’Yehuda, and Murder in a Mikveh
A case is cited from Terumat HaDeshen of “two women who saw a murder in a mikveh,” and it is said that “it is inconceivable” that the murderer should go free merely because women are disqualified from testimony, and therefore he is executed on the basis of their testimony. It is also brought that the Noda B’Yehuda repeats the same point, with a distinction that one of them ties it to rabbinic law and the other to Torah-level law, without deciding here which is which. The example serves to show that there is internal tension within the system regarding the disqualification of women as witnesses, and that there are circumstances in which the system itself is unwilling to pay the price of that disqualification.
Symmetry between the “Innovator” and the “Conservative,” and Claims like “Do Not Form Separate Factions” and Stability
It is argued that common discourse always places the person seeking change on the defensive, with claims like “do not form separate factions,” “the burden of proof is on the one making a change,” and fear of undermining stability, but it is argued that these claims can operate just as well against the simplistic conservative. It is argued that according to the midrashic conservative, one who refuses to accept testimony from someone who appears trustworthy is undermining a basic halakhic principle, and therefore the simplistic conservative too can be seen as someone who “comes to change” Jewish law as understood within the midrashic framework. An example is brought from the Puah Institute about a conference where women were not allowed to speak so as not to distance Haredim, and it is said that one hardly ever hears the opposite claim, namely that the Haredim should change in order to allow participation by those who require women to speak.
The Naturalistic Fallacy and the Bridge Principle in Jewish Law
The “naturalistic fallacy” is explained as the mistake of deriving “ought” from “is,” and the need is presented for an additional principle connecting fact and judgment. It is argued that the same is true in Jewish law: factual change is not enough to justify halakhic change without a bridge principle showing how the relevant fact generates the norm. Within this framework it is argued that Jewish law is not the fact and is not only the practical conclusion, but rather the bridge principles are what remain forever, while the facts change and the application changes accordingly.
The Example of “A Person Does Not Repay Before the Due Date” and the Meaning of Studying the Topic
A presumption is cited from tractate Bava Batra: “A person does not repay before the due date,” and it is said that if reality has changed and today people do repay early because of economic considerations such as the permissive business arrangement and interest, then the halakhic outcome will also change, and the one who claims “I have repaid” will be believed by virtue of “the burden of proof is on the claimant.” It is argued that the purpose of studying the topic is not to preserve the factual estimate itself, but to learn the principle that a presumption can affect possession of money, which is a bridge principle that remains relevant even when reality changes. The point concludes that Torah is not “the bottom line,” but rather a framework of “if the fact is such-and-such, then the law is such-and-such,” and therefore the eternity of Torah is compatible with changes in the world.
Full Transcript
[Speaker B] Once
[Rabbi Michael Abraham] Last time I ended by saying that if we want to propose an argument in favor of change in Jewish law—and I’m talking about Orthodox change in Jewish law, what we called, meaning, midrashic conservatism, yes, in the classification I suggested in previous sessions—then it has to contain two components. Take an example: someone who wants to validate women as witnesses nowadays. How exactly can such an argument be built? If I say: this isn’t realistic today, it isn’t accepted, there’s no such thing, therefore women should be accepted as witnesses—that’s what we’ll call a Reform argument. The conservative basically says there’s nothing to change; meaning, he doesn’t even recognize that there is any problem with women’s testimony at all. The Reform person says, look at the winds blowing today; meaning, there are things that override commitment to what used to be practiced. But the two types of conservatives—the simplistic conservative says: what are you talking about, the Sages prohibited it, and since that’s the case, it can’t be permitted. And the midrashic conservative proposes an interpretation that does allow validating women. How does such an interpretation work? It begins, first of all, with a factual change. In other words, it says that the state of women in that period, in the time of the Sages, was such that it justified disqualifying them as witnesses. Meaning, they weren’t involved in economic life, public life, out in the street; they were at home, they weren’t educated, whatever, all sorts of parameters like that. And today that has changed. And because there was a factual change, the Jewish law regarding women also needs to change. The women of today are not the women of the past, basically. As I said at the end of last time, that assumption alone is not enough. Meaning, you have to say there was a factual change, but a factual change by itself cannot determine the need for a normative change, because you have to show that the law that was established then was founded on that same factual situation to which you’re pointing. Meaning, that the reason women were disqualified as witnesses then was because they were not involved, not educated, and so on. You’ve shown that once they weren’t and now they are. Meaning, you have to show that the change took place in the parameter relevant to the law under discussion. Okay? Now, the assumption about factual change is a factual assumption. All in all, it’s fairly easy to persuade and be persuaded on that point—that once things were like this and today the situation is different. So factual change is the easy part. The meta-halakhic interpretation is much harder to prove or persuade people about. Because go prove that the reason the Sages disqualified women as witnesses—even though this is a Torah-level disqualification, yes, but it comes through a derivation, so that’s why I’m saying this is the Sages—the reason the Sages disqualified women as witnesses was because of that factual state, that they weren’t educated, weren’t involved, and so on. How do you prove something like that? That aspect is really the hard aspect in the debate. And therefore, a lot of times people don’t notice that such a debate is not being conducted on the right plane. Because there are people who propose change and say: what do you mean, there was a factual change—are you denying that there was a factual change? It’s hard to deny that. Meaning, obviously such a change occurred. The point is that such a change is not enough to say that therefore there also has to be a halakhic change. You have to show that this factual parameter is the relevant parameter for the Jewish law in question. And then all kinds of arguments begin about reasons and things like that, and you don’t know why women were disqualified as witnesses, and we do not derive the reason of the verse.
[Speaker D] How does Maimonides manage to be convinced that in the Third Temple there won’t be sacrifices? Here it isn’t a rabbinic decree; it’s Torah-level law, and he interprets the reasons of the Creator of the world, not the reasons of the Sages’ decrees.
[Rabbi Michael Abraham] First of all, I don’t know of such a Maimonides. Is there such a Maimonides?
[Speaker E] It’s in the Guide for the Perplexed, and it’s a factual change.
[Rabbi Michael Abraham] No, in the Guide for the Perplexed he says what the reason for sacrifices is. You can infer from that some conclusion that once there is no need to deal with idolatry, maybe there will be no need for sacrifices. I don’t remember Maimonides saying that—maybe—but I don’t remember Maimonides saying anything like that. Rabbi Kook talks about it.
[Speaker D] Maybe.
[Speaker F] The reason.
[Rabbi Michael Abraham] That passage in the Guide for the Perplexed there about sacrifices—I don’t remember Maimonides—I said, I’m not so familiar with the Guide for the Perplexed. This distinction between Torah-level law and rabbinic law, as though it’s easier—easier to change Torah-level law.
[Speaker D] Easier to change Torah-level law? Of course. Why?
[Rabbi Michael Abraham] Because you don’t need a religious court greater in wisdom and number. What?
[Speaker D] You don’t need a religious court greater in wisdom and number. Obviously, we talked about that. A person is acting within the Torah, right? Before that. What’s the problem?
[Rabbi Michael Abraham] You’re doing interpretation. Fine, I’ll talk about that—I already talked about it, but I’ll go over it again for you. I always thought interpretation was for rabbinic law and not for Torah-level law. Suddenly interpretation.
[Speaker G] Almost every Torah-level law is the product of interpretation.
[Rabbi Michael Abraham] A Torah-level law that is not the product of interpretation is called something the Sadducees agree with—that is, something written explicitly in the Torah. How many of those are there? Almost none. There’s almost no Torah-level law that isn’t the product of interpretation.
[Speaker H] There are all kinds of—wait. Yes. There are various laws that were updated and change. Women are trusted; you can rely on them for checking for leaven in the house and things like that, all kinds of things. If you look in Rabbi Moshe Feinstein, there are all kinds of rulings he gives.
[Rabbi Michael Abraham] Yes, for them that’s Jewish law. I’m not at all sure that that’s actually Jewish law. That’s a factual assessment in the time of the Sages or the medieval authorities, whatever, and today our factual assessment is different. But let me get to that in a minute. I’m on the way there, okay? Then we’ll see whether I answer that or not.
[Speaker I] All the derivations and all the learnings that the Sages derive are quasi-Torah-level, because their authority is behind them. Rabbinic teachings.
[Rabbi Michael Abraham] And in the second root he says that something that emerges from a derivation has the status of rabbinic teachings—the status of rabbinic teachings. Maimonides writes that. Now there are disputes about exactly what he means. Does he mean that halakhically it’s Torah-level law, but the scribes are the ones who created it, or does he really mean that it’s rabbinic on the halakhic level? I tend to think the latter, but we’ll talk about that in one of the coming topics. Anyway, as I said before, once we want to make a conservative change—yes, what I called midrashic conservatism—then we need to make both claims in order to ground such a change. Usually people make the factual claim, because of course that one is easier to make. But the more important claim, the one that is usually actually in dispute, is the meta-halakhic claim. And that’s hard to show. Meaning, it’s very hard to show why the Sages disqualified women as witnesses. It says, “Then the two men shall stand”—I mentioned this—“Then the two men who have the dispute shall stand before the Lord,” men and not women. I already mentioned that this is a very dubious midrash; usually when it says “men,” it means both men and women are included. Meaning, it contradicts the Sages’ own interpretive rules. The whole business is very dubious, but bottom line, the Sages derive it. Now the question is: on what basis? There is no hint at all as to why the Sages disqualified women as witnesses. Everything people propose there—women are light-minded, women this, women that—it’s all inventions with no root or branch. There’s no source for it. You can say maybe it’s so, maybe it’s not so, but there is no statement of the Sages explaining why this was done.
[Speaker D] Really there’s no source for it? The Sages do say that.
[Rabbi Michael Abraham] They say it, but the question is whether there was a reason behind this. Or maybe not—it’s just a derivation: it says men and not women, and that’s it. If there’s no—if there’s no logic behind it—
[Speaker D] Is there a connection between “they are light-minded” and disqualifying testimony?
[Rabbi Michael Abraham] At least there’s no proven connection. And therefore, suppose today you say they are not light-minded, or that they are educated, or whatever—the change… but who said that this factual change is the basis of the disqualification? You have to show that. You know, regarding witness disqualifications generally, in the third chapter of Sanhedrin, there are several witness disqualifications: relatives, wicked people, yes, an interested party, a friend, an enemy, and the like. For each of them there’s a discussion that arises mainly among the later authorities, a bit among the medieval authorities, in the Talmud almost not at all, on the question of what the foundation of this disqualification is. Is this disqualification due to suspicion of lying? Is this disqualification what they call a status disqualification? Meaning, a disqualification that doesn’t depend on my suspecting that the testimony may be false. And there are various indications one way or another to decide whether the disqualification is of this type or that type. Such clarifications are made in the halakhic world. Also regarding a wicked person, by the way. Because today people want to discuss validating a wicked person as a witness. And by wicked person I mean someone who, say, desecrates the Sabbath. Okay? He’s wicked and in principle he should be disqualified as a witness. There are many decisors today who say that someone who desecrates the Sabbath today, because he’s like a child captured among non-Jews or someone who isn’t committed, is not considered wicked for this purpose. Meaning, he is fit as a witness—a kind of halakhic change. But again, this change needs justification. How do you justify it? First, you create this concept of a child captured among non-Jews, that today the wicked person is not exactly the same as a Sabbath desecrator used to be. But beyond that, you have to show that the disqualification of a wicked person as a witness is founded on this point, on the identification involved in that wickedness, and that today this has changed. Now that has to be shown—and it is shown. What is the disqualification of a wicked person? If it’s because a wicked person is suspected of lying, then there’s no problem. It’s very easy to make this argument, because you’re basically saying that today someone who desecrates the Sabbath is not suspected of testifying falsely. That no longer goes together with moral wickedness today. Apparently once it did. So if you can show that the disqualification of a wicked person is rooted in suspicion of lying, then it’s easier for you to claim that today it can be changed. Because you know where it comes from. You have some kind of evidence for the meta-halakhic foundation, not for the factual change itself. Okay? In the context of women, I don’t know a good argument for this. There are some statements in later authorities here and there that connect it to “women are light-minded,” but that’s not enough for me to say it at the same price. And it’s written—as I already told you—yes, it may be written in a book in Rashi script and bound in gold letters, but that doesn’t mean there’s evidence for it. It only means someone else invented it before we did. I think I told this story once: they came to the Hatam Sofer—there was an argument in a synagogue about saying Kaddish, I think. Only one person said Kaddish, that was their custom, and the question was whether the one with a yahrzeit should say it, or someone else—some dispute over who exactly should say Kaddish. So the Hatam Sofer told them: toss a coin. So they said—then he said, wait, the Magen Avraham writes that I come first, so to speak. He said: yes, because the Magen Avraham also tossed a coin. Basically what he meant was: so it’s written in the Magen Avraham—so what if it’s written? There’s no source for it; you can decide whatever you want. The fact that some decisor wrote it doesn’t mean there’s proof. I can write it too, and then it’ll be written—so what? There’s an exaggerated attitude toward written texts among us. Anyway, I felt that a bit—with your forgiveness—about things you said today in the Jewish law class. You brought in the Taz and the Magen Avraham there, yes, I think the Vilna Gaon on the gloss too. Fine, but no, not to offend—that’s how people act, that’s the Jewish law that… Yes, I read it, I brought… one hundred percent, perfectly fine. Fine. He also wrote it, you know—toss a coin, what shall I read. Anyway, back to our topic. If I want to make an argument for halakhic change, I need to justify it on two planes: factual change and a meta-halakhic claim. Okay, let’s summarize what I’ve said up to now. A meta-halakhic claim means that the factual parameter that changed is the parameter relevant to the law we’re discussing. That part is the hard part. And usually you won’t find any reference to it in all the debates about halakhic changes. You won’t find it. Meaning, these people wave around the factual change—how can you deny that reality has changed?—and those people say what are you talking about, everything is holy, complete, hidden, I don’t know exactly what. Nobody discusses the meta-halakhic question. Usually the reason is that you can’t really discuss it. How do you know why the Sages did this? Maybe this way, maybe that way. I can suggest arguments; you can suggest opposite arguments. It’s very hard to know what to do. And that brings me back to the Meiri. Someone already noted this in the previous session—or the session before—a correct point. When we look at the Meiri, then as I said before, the Meiri basically made a very radical halakhic change regarding non-Jews. And if this really is a matter of interpretation, of midrashic conservatism, then he should have justified it on the two planes we’ve discussed. First, to say that the non-Jews of his time are bound by the norms of the nations, unlike the ancient non-Jews, the ancient idolaters, and then he would have shown that there is factual change, a change in reality. But the Meiri, nowhere as far as I remember—and we’re talking about dozens and dozens of places—nowhere does the Meiri bother to show the meta-halakhic interpretation. Meaning, that the attitude toward the non-Jew stemmed from their wickedness, from their wicked behavior, from their inhuman behavior, and then you could say that if today they behave humanely, then reality has changed and the Jewish law changes. The Meiri did not do that. The Meiri only pointed to the factual aspect, very much like what characterizes today’s debates and various proposals. And why? Because of course it’s very hard to show. It’s hard to show that the Sages related to non-Jews the way they did because of their inhuman behavior. And again, it’s not hard to show that the Sages saw non-Jews as behaving in an inhuman way—that’s very easy to show.
[Speaker L] That was probably his assumption. Yes, that it was only that, and that’s it.
[Rabbi Michael Abraham] Okay. So I’m saying: it’s not hard to show that the Sages related that way to non-Jews. What is hard to show is that this attitude is what underlies the halakhic attitude toward the non-Jew, just like “women are light-minded.” In the Sages there is “women are light-minded,” but in the Sages there is no statement that because of this they disqualified them as witnesses. That’s already an inference you can make at your own risk.
[Speaker M] Yes, okay, that’s—
[Rabbi Michael Abraham] Same thing, from my point of view, right—to show that this is the relevant parameter. So how should we relate to this? You can of course say that the Meiri was Reform and not midrashic conservative, but it seems to me that’s not necessary. I think it’s more plausible—at least to me it seems more plausible—to say that he was indeed a midrashic conservative, and basically the claim, as someone noted last time I think, is that for the Meiri this was self-evident. That’s how he understood it; that’s the interpretation he gave the matter. He has no proof, he has no proof, but that’s what he thought.
[Speaker E] The very fact that it isn’t written—maybe if the meta-halakhic reason had been written, I mean if the meta-halakhic reason had been written, where would it be written? In the Meiri? If not there, then in the Sages. But the very fact that it isn’t written, then you go with what’s self-evident.
[Rabbi Michael Abraham] Not necessarily. The Sages generally don’t explain their words, certainly not in Torah-level laws. Here we’re dealing with Torah-level law. In rabbinic laws, many times there is an explanation of why they enacted something, why they decreed something. But in Torah-level laws, very often the Sages explain nothing at all, and we do not derive the reason of the verse. Halakhically, it’s even problematic to talk about reasons. So the fact that the Sages didn’t mention it—that’s not… even in the context of decrees and enactments, by the way, in a large proportion of cases the Sages didn’t mention the reason. And some decisors want to argue that in a place where the Sages did mention the reason for a decree or enactment, then indeed you can change it. Even though usually with enactments, even if the reason is gone the enactment remains, but where the reason is mentioned—like, one should not read by candlelight lest one tilt the lamp—there maybe you really can change it because that’s why they mentioned the reason.
[Speaker D] What about where the Torah itself mentions the reason? “Do not do as the deeds of… the deeds of Canaan.”
[Rabbi Michael Abraham] In Sanhedrin 21 there is a tannaitic dispute about this matter: “He shall not have many wives, lest his heart turn aside.” There the dispute among the tannaim—according to Maimonides it’s three tannaim, and according to Nachmanides it’s two tannaim. Interesting issue there. And this is a dispute in which Rabbi Shimon and Rabbi Yehuda—who do and do not derive the reason of the verse—reverse positions. Meaning, in a place where the reason is not written, Rabbi Shimon derives the reason of the verse and Rabbi Yehuda does not. We rule like Rabbi Yehuda. But where the Torah writes the reason, it reverses. Rabbi Shimon says: why did it write the reason? After all, I would have derived the reason even if it had not been written. So why was it written? Apparently it’s an additional prohibition. It’s not the reason for the first prohibition—it’s another prohibition. There is a prohibition on having many wives, and there is a prohibition that his heart should not turn aside. Now if that’s the case, it follows that the prohibition on having many wives is not because his heart will turn aside; it’s a different prohibition. So specifically according to Rabbi Shimon, who usually derives the reason of the verse, in a place where the reason is mentioned he doesn’t derive it. In contrast, Rabbi Yehuda, where the reason is mentioned, does derive it; where the reason is not mentioned, he doesn’t derive it. If the reason is mentioned—fine, then he derives it. According to Maimonides there is a first anonymous opinion and the law actually follows that, and that’s another whole topic. Maybe we’ll talk about that another time too.
[Speaker J] Anyway, when the Sages had this stringency that they forbade desecrating the Sabbath in order to save a non-Jew because non-Jews behave in such-and-such a way, the fact is that they didn’t apply this principle to Jews who behave in such-and-such a way.
[Rabbi Michael Abraham] Who says they didn’t? There is some statement somewhere—very rare, but there is. The Or HaChaim, for example, writes this.
[Speaker J] Yes, but not the Sages.
[Rabbi Michael Abraham] Fine, he interprets the Sages. The Sages didn’t say anything. But when the Sages spoke of Jews, he says, they were speaking about Jews who observe the commandments. In their time there wasn’t really anything else. There was the occasional sinner, but the basic conception was that a Jew is generally someone who keeps the commandments. Sinners, fine, everybody commits transgressions, but generally he keeps the commandments. But the decisors don’t agree with that. The claim is that maybe this is some kind of presumption or something like that—that a Jew may return in repentance, may yet keep the commandments. Non-Jews are already in a fixed state, as though they already abandoned the seven Noahide commandments. “He arose and released their money to Israel,” as it says, because He saw that they do not keep the seven commandments. In any case, I’m saying the Meiri does not make the meta-halakhic assumption; he speaks only about the factual change. And it is very reasonable to interpret or understand that apparently this was self-evident to him. And that says something very interesting, because it basically means: true, in order to argue in favor of halakhic change I need to bring reasoning on two planes, both on the factual plane and on the meta-halakhic plane. But reasoning does not mean proof. I do not have to bring proof for my reasoning, neither in facts nor in meta-halakhic matters—unless there is counterproof. If there is counterproof, and prove to me that women were not disqualified for that reason, then I can’t offer any interpretations. But if there is no counterproof, at the moment the question is open. I don’t know why the Sages disqualified women. What do you do when I don’t know? No, why? I would say the opposite.
[Speaker N] Why continue the situation as it is?
[Rabbi Michael Abraham] I would say: if I have an interpretation that seems reasonable to me, and there’s no evidence against it, why assume that this interpretation is no good?
[Speaker H] That’s what the Meiri does.
[Rabbi Michael Abraham] Right, and that’s what the Meiri does.
[Speaker H] And Maimonides doesn’t do that. He gives many reasons for commandments, but he doesn’t apply them because the situation changed. No, because he derives… sacrifices—he gives a reason and he doesn’t say, okay, then we’ll cancel…
[Rabbi Michael Abraham] As for sacrifices, there is even a contradiction in Maimonides at the end of the laws of misuse of consecrated property. But I’m saying: Maimonides generally probably won’t do this because we do not derive the reason of the verse. And this is something we’ll want to discuss—how this relates to the fact that we do not derive the reason of the verse. Because what I’m basically saying now is to derive the reason of the verse. Suppose I know the reason for a Torah-level law; then in a situation where circumstances have changed, I can change it. What is that if not deriving the reason of the verse? After all, halakhically we rule that we do not derive the reason of the verse. So in Maimonides, he probably generally won’t do this because we do not derive the reason of the verse. But let’s leave that aside for the moment; I still want to get to it later. So what I basically want to say is this—and this is the conservative instinct. We’re back to the conservative question. I have a proposal to validate women as witnesses, say—let’s go back to the example. The situation, the factual change, is agreed upon. It’s agreed that there was a factual change. The question is: what about the meta-halakhic side? Did the disqualification of women as witnesses stem from lack of education, involvement in life, and so on, or from some other reason? I don’t know. There’s no proof either way. Not for this side and not for that side. There’s no proof for the other side either. I don’t know of proof in either direction. So what do you do? Usually, as you said, many people say: fine, then we leave the situation as it is; the burden of proof is on the one who wants to change. Right? And I’m saying that’s not correct. Certainly not necessarily. Why? Very often it’s true that passive omission is preferable—that’s a common principle when there are two balanced possibilities. If there are, say, two positive commandments in conflict, or two prohibitions in conflict, the rule is that passive omission is preferable. Since both sides are balanced, you have no reason to go in one direction rather than the other, so the solution is that passive omission is preferable. But what does passive omission mean? Maybe we should devote a whole class to that one time. What is passive omission? Does passive omission always mean doing nothing, or choosing the minimal cost? Because here, if for example I don’t accept women as witnesses, okay? What does that mean? It means there is a thief standing before me—I know he is a thief, after all, because there are two women here testifying that he is a thief, and my assumption is that they are telling the truth—and I’m going to leave the money with him? Is that passive omission? Yes. I’m not sure. Physically, it’s passive omission.
[Speaker D] Even if they’re light-minded and don’t understand commerce, they saw the thief then too, and even then their testimony was disqualified.
[Rabbi Michael Abraham] Fine, obviously, because back then we really thought maybe he wasn’t a thief. Why? Today the governor of the Bank of Israel comes to you—doesn’t she understand economics? Doesn’t she know how things work? And she testifies to you that Reuven stole from Shimon.
[Speaker D] But even then, even one who—sorry—was at home all her life, sees someone steal. What she saw, she saw. What she saw, she saw.
[Rabbi Michael Abraham] But she doesn’t understand the context. She doesn’t understand that in such a context this isn’t called stealing; it’s called the game is over and I took what’s mine, whatever. I’m saying on the principled level it could be the result of not understanding how things work. But today women are with me in all these places, so they understand. Now I’m saying: I see a woman testifying that Reuven stole from Shimon. Now it’s true that physically passive omission means doing nothing, not taking the money out. But there is definitely room for an argument saying that the one who wants to tell me to leave the money with the thief—the burden of proof is on him. After all, now I know he’s a thief through these two women, and I believe them. They understand what’s going on, and they’re saying that Reuven is a thief. Now you want me to leave the money with the thief without proof? You bring me proof that will force me to leave the money with the thief. That’s passive omission. I don’t think we need to get to Shaarei Yosher here. Why should we get to Shaarei Yosher here? I’m speaking now within Jewish law; I’m not with him in meta-halakhics. I want to claim now—the argument in favor of halakhic change says that today, basically, from the standpoint of the Holy One, blessed be He, women are fit as witnesses. That’s the claim of those in favor of changing. Those who say no, say no—women are disqualified as witnesses. Now I’m in doubt; I don’t know. And two women come and testify that Reuven stole from Shimon. Now understand: both sides agree on the factual change, that today women understand what they see. Both sides agree on that, right? The dispute is only in meta-halakhics. So everyone agrees that Reuven is a thief. Now I ask: on whom is the burden of proof? Is the burden of proof on the one who tells me to leave the money with him, or is the burden of proof on the one who tells me to take it from him?
[Speaker K] They both know that according to Torah monetary law, the money remains with the thief. Because if he took it as theft, there is a presumption of possession here. Fine, but I—
[Rabbi Michael Abraham] I’m saying it’s not exactly like that, because in a place where I have two valid witnesses that he stole, that may undermine the presumption. The presumption—he also won’t get the presumption on the side that did act—meaning there’s a lot here, fine, this would require getting into the laws of presumptions.
[Speaker B] There’s a presumption in a doubtful case of seizure. We don’t take money out, I think.
[Rabbi Michael Abraham] If I have two witnesses against two witnesses, for example, then that’s what… two against two is a Torah-level doubt. If two against two is a Torah-level doubt, then there is no presumption in a case of two against two. Why? It’s still a monetary doubt; there’s two against two. In a place where, because if these two are right and those aren’t—leave me alone with presumptions. It breaks the presumption too. A presumption applies when it exists on both sides of the doubt, so since you’re in doubt you leave it in its prior status. But here it may be that on the side that women are valid witnesses, the presumption has no significance—it’s like two against two. There’s an amoraic dispute whether two against two is a Torah-level doubt or a rabbinic-level doubt. But on the side that two against two is a Torah-level doubt—
[Speaker H] You can only take money out in monetary law. But now regarding whether this is libation wine or not, then here we would be stringent. Explicitly, explicitly stringent in matters of prohibition.
[Rabbi Michael Abraham] In matters of prohibition, women are valid. What do you mean? One witness is believed in matters of prohibition; we learn that from a menstruating woman. No problem. In matters of prohibition, women are valid from the outset.
[Speaker H] The problem is that I’m leaving the money with the thief. That’s not clear, but there’s a dilemma there. Now this meat—is it non-kosher when maybe it isn’t?
[Rabbi Michael Abraham] Be stringent. Yes, fine, but there it’s not a problem because a woman is valid there anyway.
[Speaker H] Or not a woman—idol worship. Really, anyone is valid.
[Rabbi Michael Abraham] In matters of prohibition, everybody is valid unless someone is suspected of lying. But the formal witness disqualifications don’t exist there.
[Speaker H] He touched some wine. Now the question is, maybe really the prohibition of libation wine is only because he is wicked.
[Rabbi Michael Abraham] Ah, that’s a doubt not in the laws of evidence. Meaning, a doubt about the prohibition itself, not a doubt about evidence. A doubt whether there is a prohibition or not. Then that’s just an ordinary doubt in prohibition, and we are stringent.
[Speaker H] So—
[Rabbi Michael Abraham] If it’s a Torah-level prohibition, then its doubt is treated stringently.
[Speaker H] And today’s wine is not Torah-level.
[Rabbi Michael Abraham] So I’m saying: that’s a doubt in prohibition; it’s not a doubt in the laws of evidence. So if it’s a doubt in prohibition, a Torah-level doubt in prohibition is treated stringently.
[Speaker H] Okay, so we won’t make all the economic calculations here. Possibly. Possibly.
[Rabbi Michael Abraham] Because there isn’t so much of a price for stringency there. At most you were stringent. Here there is a price. You’re letting the thief walk away with the money. The point is this: many times passive omission is not automatic. Passive omission may simply be a kind of minimal-cost solution. And once I have another minimal cost—if I say take the money from the thief, what happened? First of all, I returned the money to its owner, so I’ve already gained something. And maybe I committed a prohibition by relying on disqualified witnesses. Is that worse than letting the thief walk away with the money? And therefore, in the case of doubt, I prefer that side.
[Speaker D] Also, why don’t you say this about two brothers?
[Rabbi Michael Abraham] There? Because there the Torah itself says otherwise.
[Speaker D] Two completely righteous brothers, friends?
[Rabbi Michael Abraham] It doesn’t matter. The Torah itself says not like that. In the case of two brothers, the Torah itself says: even though you believe them, do not judge on that basis.
[Speaker D] Maybe at the root, maybe at the root of this whole thing, we understand something else: not all justice is in our hands. We’re commanded according to rules, and whatever we miss, the Creator of the world corrects—and not to take the money.
[Rabbi Michael Abraham] One hundred percent. So I’ll also do it according to my rules, and if I made a mistake, the Creator of the world will correct it. No—what? Anyone can say that. I’m not changing the rules. I’m not changing the rules; you’re changing the rules. I’m claiming that the rule is the rule of the midrashic conservative. You need to go with a coat and not with a bathing suit.
[Speaker D] That’s the rule. By the way, the Meiri himself isn’t accepted on this issue.
[Rabbi Michael Abraham] What does it mean, “isn’t accepted”?
[Speaker D] After all, that same ruling that all non-Jews are no longer what they used to be—a great many halakhic decisors to this day don’t really accept him. So to use him as proof is a bit…
[Rabbi Michael Abraham] I’m not using him as proof. I would say this even without him. That’s not the proof. And the other halakhic decisors don’t agree with him—that’s the conservative instinct we talked about. They don’t agree, what can you do. Anyway, the point is that when I’m in doubt, when I’m in doubt, it doesn’t automatically mean that you have to continue the current state of affairs and that the burden of proof is on whoever comes to change it. Because the question is: what counts as changing? After all, the argument between the midrashic conservative and the plain-text conservative is over the question: what is the law that we are coming to change? The plain-text conservative says the law is to walk around in a bathing suit. The midrashic conservative says the law is to wear clothing appropriate to the weather. So who is coming to change now? In my view, someone who says women are disqualified from testimony is the one coming to change the Jewish law. Because Jewish law says that whoever is disqualified from testimony is someone who isn’t involved in economic life. Women today are valid witnesses. What are you doing changing the Jewish law? The burden of proof is on you.
[Speaker L] You can also give a situation even before this, where a woman sees—two women see—that he’s a robber, and they know it, he came with a gun and knows that the other one is—like, the money was always in his possession or something like that—and still they didn’t accept it.
[Rabbi Michael Abraham] Right, no distinctions. Because the basic assumption is that women don’t understand, so even if there happened to be a case—then yes.
[Speaker L] By the way, Terumat HaDeshen brings—it’s obvious to everyone, this is—
[Rabbi Michael Abraham] Meaning, there’s an exceptional case; Jewish law doesn’t go by exceptional cases. In general they say women aren’t believed. There are women who measure up to Moses and Aaron; there are women where you’re sure they understood the matter—fine—but in general, no. And because the line isn’t sharp, we disqualify them from testimony. There are after all…
[Speaker K] Besides, this is something that’s a personal disqualification. What?
[Rabbi Michael Abraham] Maybe, but that’s the debate here—the question is whether it’s like this or like that, a personal disqualification in the case of women, yes.
[Speaker K] In any case, Terumat HaDeshen, uh—
[Rabbi Michael Abraham] Yes, Terumat HaDeshen. I think I once mentioned Agatha Christie’s book, right, Murder in the Mikveh. Terumat HaDeshen talks about two women who saw a murder in the mikveh. What would the law be? Women are disqualified from testimony. So if you want to murder a woman, no problem—you have a foolproof method. Go into the mikveh, murder her there, a women’s mikveh. No one can testify against you. It can happen in front of all Israel. Meaning, all the women in the world can see you, and it won’t help at all—you walk free. He says, such a thing is inconceivable; this man is executed. Women will testify that he murdered, and he will be executed. The Noda B’Yehuda also repeats the same point. One of them says it’s rabbinic and one says it’s Torah-level—I don’t remember which is which. One of them says it’s a Torah-level law. So he says that women are in fact believed—there’s still something else here, maybe. Fine, so I’m saying there’s room to discuss this matter. In any event, what I want to claim is that the fact that you need to raise both arguments in order to be a midrashic conservative—both the factual change and the meta-halakhic claim—that’s true. But you don’t necessarily have to prove both of those arguments. The factual change is usually fairly easy to prove; presumably it does need to be proven, to see that once it was like this and today it’s different. But on the meta-halakhic issue, many times we have a problem—we don’t know how to prove it. What do you do in that situation? So what, just because we don’t know how to prove it? If I have a reasonable interpretation that says this is the reason, then fine, I go with it. That’s my interpretation, and that’s what I go with. Someone who says maybe there’s another explanation—maybe. Uncertainty doesn’t override certainty. Why does the fact that there’s no proof give you the advantage—you, the plain-text conservative? You also didn’t bring proof for your alternative view. Nobody brought proof. We don’t know. So what do we do? When we don’t know, we interpret, don’t we? That’s always how it is in Jewish law. If I don’t know, I make some interpretation. As long as there’s no proof against me, then I say: if this interpretation seems reasonable, I go with it. What’s the problem? What’s wrong with that?
[Speaker D] Maybe you’d say, for example, because of what you said—that even for murder women aren’t… they’re disqualified from testimony. In a murder case, whether I understand how things work or not has nothing to do with it. None of us is an expert in murder. Someone testifying about murder—whether man or woman—will usually, God willing, be seeing it for the first and last time. So that explanation…
[Rabbi Michael Abraham] I think it goes beyond that. Meaning, many times there’s an understanding of how things work. Murder also has to be premeditated.
[Speaker D] I’m not testifying about that. As a witness I’m just saying: I saw him stab.
[Rabbi Michael Abraham] That’s not interesting.
[Speaker D] Why isn’t a woman good for that?
[Rabbi Michael Abraham] That’s gossip.
[Speaker D] Why isn’t a woman good?
[Rabbi Michael Abraham] If you come and testify in order to impose punishment on him, then come. If not, don’t come.
[Speaker D] I’m talking about a woman’s testimony. Why isn’t a woman good?
[Rabbi Michael Abraham] I’m saying: if there are no witnesses and prior warning, then for purposes of not imposing punishment, there’s no point in coming. What are we judging for?
[Speaker D] What does that have to do with it now? I’m asking you how “their judgment is light” as a reasonable explanation connects to disqualifying them in murder cases.
[Rabbi Michael Abraham] I said earlier—and then you told me no, we’re talking without witnesses and warning, not for punishment. Without punishment, we don’t conduct a legal case.
[Speaker D] In the example you gave, I’m asking you: maybe your explanation isn’t reasonable, that it’s because “their judgment is light.” The fact is that even in murder cases, where I heard that argument is totally irrelevant, they’re still disqualified from testimony.
[Rabbi Michael Abraham] I’m saying: who says it’s irrelevant there? You need to understand how things unfold. When you see someone stabbing someone, you don’t know what he did beforehand, what happened afterward, how the people involved behaved there in the street, in the market, wherever it was. You have to know the context.
[Speaker D] That’s the judge’s job to investigate, the dayan’s. He just says: I’m saying what I saw, and the judge will interpret.
[Rabbi Michael Abraham] No, because he wasn’t there. He has to get it out of you, and the question is whether you can describe to him the relevant facts. Anyway, I’m saying it doesn’t matter right now—you can argue about that point. I’m bringing it only as an example of the process of change. Because with proof, many times there’s this feeling that whoever wants to change has to bring the proof, and many times that jams the whole thing up because you can’t bring proofs. In the meta-halakhic realm it’s often very difficult to bring proof. Sometimes you can, but often it’s hard, hard to bring the proof. What’s called—I need to write the book so that the next generation will be the proof. And then the question is: what do we do in that sort of situation? So what we do in that sort of situation, in my view, is interpret. And if you don’t know what the reason is, then interpret as best you can. And if you were wrong, the Holy One, blessed be He, will fix it, as you said earlier.
[Speaker I] But the interpretation has to be accepted by everyone, otherwise it’ll be…
[Rabbi Michael Abraham] I don’t know if by everyone, but it has to be a reasonable interpretation.
[Speaker I] Reasonable? Yes, but otherwise the people…
[Rabbi Michael Abraham] Right, but conservatism also has to be accepted by everyone, because otherwise the catastrophe will be… I’m saying: every argument you raise against the innovator, you can raise against the conservative. Because you have to remember that from the innovator’s point of view, the conservative is the reformer—the simplistic conservative. He’s actually deviating from the halakhic principle. The halakhic principle says to accept testimony from people who are trustworthy, and he wants, even though here there are two trustworthy women, that we should not accept their testimony—let him bring proof. Why go against Jewish law? You have to understand: this defensive posture of the innovator is a posture the conservative obviously enjoys very much, because he always puts the innovator in a defensive position: wait, prove it, who says so, maybe the Holy One, blessed be He, means something else? Fine, maybe the Holy One, blessed be He, means what I say. You prove your conservatism. What advantage does this have over that? That’s why I began with this parable of midrashic testimony and simplistic conservatism, because both are conservative. Each one is preserving Jewish law. Yes, like I said: someone could come and say it says, “If a man’s ox gores his neighbor’s ox.” Fine, so if a dog bites, then you don’t have to pay, because it says “ox.” But we interpret, right? We say, fine, if it says “ox,” the meaning is that Scripture speaks of what is common. In other words, any property of mine that causes damage—I have to pay. The other guy will say: who says? Bring proof. It says “ox”; I don’t know. We make interpretations like that at every step. Why? Because where there isn’t—the text never stands on its own; it’s always a function of interpretation. There is almost no Jewish law in the world that is not the product of some interpretive considerations. Okay? So to say that when we interpret we need to bring proofs—that’s naive. True, if there is counter-evidence, then no. But if there is no counter-evidence and it’s open in both directions, then what is reasonable is reasonable. Yes.
[Speaker F] How does this maybe run up a bit against the fact that these kinds of interpretations were mainly in the period of the Talmud, the medieval authorities? So what happened in the last 200–300 years—people didn’t do it?
[Rabbi Michael Abraham] In practice they do it all the time, they just admit it less. Yes. They do too little of it for my taste, but they do, they do.
[Speaker N] And in a situation like this, where you can’t prove historically that it was this way or that way, what about the issue of “do not form separate factions”? In the end we’ll basically wind up with two neighborhoods? What does “do not form separate factions” mean? That’s exactly the conservatism—join him… “do not form separate factions”… all the time—
[Rabbi Michael Abraham] That’s exactly the same point. They constantly put someone trying to make a change into this kind of position: wait, “do not form separate factions,” wait, you have no proof, wait, maybe it’s otherwise. And I say the same thing: wait, you have no proof, wait, maybe it’s otherwise, wait, “do not form separate factions.” Exactly the same. It’s always this argument. Yes, this came up at the Puah Institute—there was some conference a while ago where they didn’t let women speak, a medical-halakhic conference dealing among other things with gynecology, and they didn’t let women speak. You know why? Because of the… because of the Haredim who participated in the conference. Haredim, of course, also means Haredi knitted-kippah people. We wanted everyone to feel comfortable and for everyone to participate and so on. For some reason you never hear the argument that the Haredim ought to allow a woman to speak, because if they want the participation also of those who insist that women speak, then they need to allow women to speak so that they feel comfortable. Right?
[Speaker D] Yes, they’ll also feel uncomfortable.
[Rabbi Michael Abraham] It always goes in one direction. Meaning, the conservative is always the attacker and the innovator is the one on defense. And I’m saying: once you look at this bathing-suit example, then you understand there’s no attacker and defender here. There are two claims here, and each side simply has the right to hold its position, but they are in the same position. They are in the same position. Okay. Maybe I’ll bring an interesting example. There’s a yeshiva joke about… You know the passage at the end of the first chapter of Ketubot? It talks about an abandoned infant. Someone who finds an abandoned infant—what’s his status? So if in that place there is a majority of non-Jews, then he has the presumption of a non-Jew. If there is a majority of Jews, then he’s treated as a Jew. What happens if it’s fifty-fifty? Fifty-fifty is a doubt. Fine? What happens in a case of doubt? So in a doubt you always go stringently. But the problem is that there are things where there is no such thing as stringency and leniency. For example, what happens regarding Torah study? As a Jew he is obligated. As a non-Jew, not only is he not obligated—as a non-Jew it’s forbidden for him. So what do the laws of doubt say here? Here the laws of doubt provide no way out… You can’t play it safe. There’s no passive omission here, right? There’s no way out without a cost. If you tell him to study, it could be that as a non-Jew he is committing a transgression. If you tell him not to study, then as a Jew he is committing a transgression. So basically, okay, this is a situation where there is no solution that counts as the stringent one. Both sides are stringency—or leniency, however you want to put it. There’s no easy solution. There’s no solution where you play it safe and pay no price. And in most of the cases we’re talking about, that’s the situation, contrary to what people think. There’s no solution without costs. Leaving the situation as it is—women continuing to be disqualified from testimony, or the attitude toward the non-Jew remaining what it used to be—that’s not a cost-free situation. But somehow the feeling is always, let’s play it safe, what can happen, we’ll keep it going and that’s that, and whoever changes things is in the weaker position—meaning he has to bring the proofs. I’m saying: there are costs to leaving the situation as it was too. Meaning, it’s not… there is a cost in both directions; it’s not a situation where you can just apply the laws of doubt in a simple way. And therefore many times the discourse—and in this discourse both sides are partners to it, many times. The innovators also operate with this consciousness that they are the ones making changes and are therefore in the weaker position, and the burden of proof is on them, and “do not form separate factions,” and all sorts of things of that kind. I’m saying we need to get out of that many times. Many times the situation is completely symmetrical. And once the situation is symmetrical, you have to decide who is right. And if not, then there’s a dispute. Fine—there can be a dispute too.
[Speaker D] There’s also the argument of stability—that the changer is in the weaker position because he undermines the stability of Jewish law.
[Rabbi Michael Abraham] Right, and I also say: the plain-text conservative undermines the stability of Jewish law. Jewish law always said to accept witnesses who are valid, and suddenly you tell me to take a valid witness and not accept him—you’re undermining the stability of Jewish law. The question is: what is Jewish law? After all, the whole argument is over what Jewish law is—that’s exactly the point. You cling to the bathing suit, and I cling to the principle, not to the bathing suit. So all of us are clinging to something; the argument is what to cling to.
[Speaker D] Except that in the bathing-suit example, flip it around: earlier they were in the snow and they entered a hot place, and suddenly the whole story sounds completely different. Same here—before, people were dressed. Your bathing-suit story is nice, but it’s fabricated, because you started from the bathing suit and asked to get dressed. Flip it and see how bad it sounds. And that’s how it sounds today after a hundred years.
[Rabbi Michael Abraham] No, I’m saying it sounds bad not justly. As far as I’m concerned it’s exactly the same thing, the reverse story.
[Speaker D] No, because then going with a bathing suit could have another thousand reasons in that region besides the issue of adapting to…
[Rabbi Michael Abraham] Okay, fine, maybe yes and maybe no.
[Speaker D] Putting a coat on you interferes with something else.
[Rabbi Michael Abraham] I don’t know, that’s just our problem. But sure, it could interfere with something else—certainly according to the view of hidden reasons. Who knows what the hidden reasons are? Certainly the non-obvious ones. In any event, the point is this—look. There is something standing at the foundation of the matter. Basically this leads us to the question: what is Jewish law? You need to understand that this point about change is really the question of what Jewish law is. And here I want to sharpen a very important point. Maybe I mentioned it once in the discussion about Choshen Mishpat, but I want to sharpen it. There’s what in philosophy is called the naturalistic fallacy. The naturalistic fallacy means that if you derive an “ought” from an “is”—that is, if there’s something that is a fact, say this wall is brown, okay? And I say therefore this wall is beautiful. Then that’s a fallacious argument philosophically. Why? Because the fact that the wall is brown is a fact, and the fact that the wall is beautiful is a judgment, an aesthetic judgment. A judgment can never… you can’t derive it from facts. What you need in order for the argument to be valid is another principle. A principle that says that what is brown is beautiful, for example in this case. Doesn’t matter—what’s dark is beautiful, or whatever—but some additional principle. What is the nature of this additional principle? This additional principle is basically a bridge principle between facts and judgments. “What is brown”—fact—“is beautiful”—judgment. Right? Meaning, if I want a valid argument whose conclusion is a judgment, then among the premises there has to be something besides a fact. Because if the premises contain only facts, you can never derive a judgment from them. There always has to be some bridge principle among the premises, a principle that moves me from the fact to the judgment. The same thing in moral judgment. In moral judgment too. To say it’s forbidden to hit someone because it hurts him—that’s an invalid argument. Why? Because the fact that it hurts him is a fact, and the fact that it’s forbidden to hit him is a norm, a judgment, ethical in this case rather than aesthetic, but it’s still a judgment. You need to say that it’s forbidden to cause another person pain. Once again, that’s a bridge principle connecting the factual plane to the normative plane. Okay? And in Jewish law as well, it’s the same. When you say there’s a change—say, a social change, say that people used to be one way and today they’re another way—that isn’t enough to say that Jewish law today should be different. You need a bridge principle. A principle that says that the disqualification of women from testimony stemmed from the fact that they were not educated. Look at the bridge that principle creates. The fact that they were not educated—that’s the fact. The fact that they are disqualified from testimony—that’s the judgment, the halakhic judgment in this case. Okay? Any argument that ends in Jewish law, in a norm, in a judgment, is an argument whose premises must contain something beyond a fact. There has to be some bridge principle in order to avoid the naturalistic fallacy. That is really what stands behind the argument I made here. Now look what this actually means. When I ask myself: what is Jewish law? When I say that I’m faithful to Jewish law—then I ask, what is Jewish law? Is Jewish law the fact? Is Jewish law the conclusion? Or is Jewish law the bridge principle? The conclusion can’t be what Jewish law is, because the argument leads to the conclusion. Meaning, if the conclusion is Jewish law, then that means the premises leading to the conclusion are what Jewish law is, right? When I say women are disqualified from testimony—fine? So women are disqualified from testimony because of a certain fact. Never mind right now whether I’m right that the fact is that they weren’t educated or not. I’m not even necessarily claiming that; I’m saying it’s just an illustrative claim. Okay? Women—say, the fact that women are not educated; bridge principle: whoever is not educated is disqualified from testimony; conclusion: women are disqualified from testimony. Okay? If I accept that argument—and any other argument would be the same, I’m taking it only as an example, okay?—what is the Jewish law here? Is it that women are disqualified from testimony? No, that’s just a result. Jewish law is the two premises. It’s the bridge. Now let’s see: which of the two premises? After all, it’s obvious that the fact that women are not educated is not Jewish law. It’s a fact, it’s a life reality. And if that changes, what, is the change against Jewish law? Is there something sacred about life reality? No. Reality was like that. And therefore it’s pretty clear that Jewish law is the bridge principles. Certainly at the Torah level. Wait, wait—everything is Torah level, that’s what I’m talking about now.
[Speaker D] Two brothers testifying—how does that fit in?
[Rabbi Michael Abraham] All of it, all of it. That too is Torah-level, that too is a bridge principle. Two brothers testifying means: they are two brothers—that’s a fact, they are relatives. There is a bridge principle that says relatives should be disqualified from testimony. Conclusion: two brothers are disqualified from testimony. This doesn’t depend specifically on the innovative argument. Every conception of Jewish law is like that. It’s not specifically connected to innovation. The conservative too has to offer some argument. It doesn’t matter.
[Speaker O] This is not the terminology people use in everyday life.
[Rabbi Michael Abraham] When I say “the law”…
[Speaker O] …is that I can’t—I have to stop when the traffic light is red. I’m not talking—I’m not saying all the reasons why it’s so, okay? I’m not talking about facts and this and that; I’m saying this is what Jewish law now determined must be done.
[Rabbi Michael Abraham] No, fine, terminology.
[Speaker O] But I’m asking: in Jewish law too, when people say “what is the Jewish law here,” they mean what do I have to do, not the reasons and not the—
[Rabbi Michael Abraham] That brings me back to the question of deriving the reason of the verse. The question—well, I keep running away from it because we’ll have to discuss it separately sometime—but when you say we don’t derive the reason of the verse, that doesn’t mean there are no reasons. It means either that you can’t know them—though I don’t think it even means that, but never mind. But when you’re saying something else now, assuming there really are reasons for this law, then what stands behind this law is that specific reason. Therefore it’s quite clear that when you ask yourself what the Holy One, blessed be He, wants—leave aside the term “Jewish law,” which is a bit loaded—the Holy One, blessed be He, wants the bridge principle. Its result is this result, and maybe you’re also forbidden to tamper with it, and we don’t derive the reason of the verse, all true. But when you ask in an essential sense, without all the technical limitations that we don’t derive the reason of the verse, the Holy One, blessed be He, wants the bridge principle. Fine? Maybe it’s dangerous, maybe not—fine, those are technical considerations. I’ll give an example, maybe one I mentioned when we talked about Choshen Mishpat. Suppose in the Talmud in Bava Batra there’s the presumption that a person does not repay before the due date. Suppose that today it’s common that a person does repay before the due date, because today there is a heter iska; a person pays interest on loans, and if he has money then many people want to get rid of their loan already and repay it early. So someone comes and claims: I repaid before the due date. But it says in the Talmud that a person does not repay before the due date—meaning again, he has to pay once more. What do we do today? It’s pretty clear that if the reality is that today people do repay before the due date, then he will indeed be believed. The burden of proof is on the claimant; after all, the lender is the claimant, so the burden of proof is on the one seeking to extract. The burden of proof is on the one seeking to extract, and the person will be believed. Why? What is written in Bava Batra, after all, is that a person does not repay before the due date—that’s the Jewish law.
[Speaker D] The Jewish law isn’t that; it’s a factual presumption.
[Rabbi Michael Abraham] Right? That’s the result, the result of the halakhic inference that was correct for its time. But reality has changed—today people do repay before the due date—and therefore the halakhic result will also be different. And why? What is preserved? Ask me: what’s the point of studying the passage in Bava Batra today? Maybe it’s a waste of Torah study? Why should we study the passage? Is it no longer relevant? It’s very relevant. Because what we learn in that passage is not at all the reality that a person does not repay before the due date. That reality can change. What we learn from that passage is that if there is a presumption, it can extract money. That’s what we learn from that passage. If there is a presumption against you, it can extract money. You see what we learned? A bridge principle. We didn’t learn the presumption itself—that a person does not repay before the due date. That’s a fact, that people don’t repay before the due date, so today the fact has changed. The presumption that a person does not repay before the due date is a fact. The halakhic ruling that we do extract the money is a result of applying a bridge principle to the fact. If people generally do not repay before the due date, then there is a presumption against you when you say “I repaid.” There is a presumption against you. Once there is a presumption against you, the bridge principle says: there is a presumption against you—that is a factual determination—and we extract money from you—that is a normative determination. Conclusion: if a person claims “I repaid” before the due date, we extract money from him. You see the same argument pattern. What is Jewish law here? Is the Jewish law that a person is not believed to claim “I repaid before the due date”? Of course not. The Jewish law is that when there is a presumption against you, we extract money from you. And that’s what we learn from the passage in Bava Batra. You have to study it, you have to study it well, and you have to get into the question of when a person repays before the due date and when he does not in order to understand the situation there—not because it’s relevant today. Today a person repays before the due date. That doesn’t matter. What I learn there from the passage is not the estimate of how people behave; that can change. What I learn from there is the bridge principle: that if there is a presumption against you, we extract money from you. Meaning, Torah is a bridge principle. Torah is not the bottom line. And if that’s so, then returning to our matter, the midrashic conservative is basically saying that the Torah is not “go around in a bathing suit.” The Torah is “wear clothing appropriate to the weather.” That’s the bridge principle. The fact that then the weather required going around in a bathing suit—that fact has changed. And what I preserve—and this is the Jewish law that is eternal and must be preserved, and here I’m closing the circle with which we opened, about the eternity of the Torah and that it is forbidden to change it, and so on—that changes nothing. Because the Torah that must not be changed is the bridge principles; it is not the facts. The facts change, the world changes all the time. So what? Torah does not deal with facts. It deals with instruction about what to do when there are facts—which, in other words, means bridge principles. If the fact is such-and-such, then the Jewish law is such-and-such; and if the fact is such-and-such, then the Jewish law is such-and-such. Fine, I’ll sharpen this a bit more in the next lesson because I’m already out of time, but that’s the principle, that’s the punch line.