Changes in Jewish Law, Lesson 7

Table of Contents

• Examples of a reason that has lapsed while customs remain
• The gap between what is “right” and what is “required,” and the danger to the system
• Halakhic truth versus formal authority
• Purim as a lesson in breaking rules and the status of the Scroll of Esther
• The closing of the Talmud as the canonization of an open text
• The Talmudic distrust of rules and bottom-up thinking
• Rules as language: approximation, not positivist deduction
• Tavi, Rabban Gamliel’s slave, teaching Torah to slaves, and women’s Torah study
• Epicycles and deferents: exceptions that generate more rules
• Scientific explanation, Carl Hempel, and the fact that rules come after the facts
• Halakhic intuition and Rabbi Soloveitchik
• The will of God, reasoning, and the distinction between creating a rule and making a claim about reality
• Wittgenstein: you can’t “follow a rule” without an inner pattern
• Fundamentalism, criticism, and the gap between ethos and practice
• Authority, the “great rabbis of the generation,” and the gap between full obedience and real life
• The Sanhedrin: authority meant for controlled change, and the problem of its absence

Summary

General Overview

The speaker lays out a principled predicament within serving God that stems from the widening gap between what one is supposed to do in the formal halakhic sense and what is actually right to do. He argues that this gap has grown especially because of the pace at which the world changes and because there has been no Sanhedrin for thousands of years. He presents the halakhic framework as a system designed to preserve continuity and stability, even at the price of a certain amount of dissonance, but warns that when the “dosage” of that dissonance becomes too great, the system shoots itself in the foot and loses people. Within that, he argues that there is such a thing as “halakhic truth” that is not necessarily identical with what is actually decided within the framework, and he grounds this in the Kesef Mishneh in the Laws of Rebels and in the Derashot HaRan regarding the rebellious elder. He wants to understand how one can respond to this without dismantling the framework, and he prefaces that with a broad discussion about the meaning of rules, the way the Sages and halakhic decisors in practice depart from them and create “sub-rules” to explain exceptions, and the gap between the ethos of “we do not change things” and the practice of controlled change.

Examples of a reason that has lapsed while customs remain

The speaker rejects the description of simple adaptation to a new reality as merely the “plain explanation,” and wants to focus on the tangle in which the reason changes but the framework continues to obligate. He gives the example of adorning Jerusalem with fruits during the bringing of first-fruits, and notes that Rabban Yohanan ben Zakkai abolished this after the destruction of the Temple and the cessation of the bringing of first-fruits, at which point formal questions arise about being “greater in wisdom and number” and about authority to make changes. He compares this to the story of “the broom of the Rebbe of Gur,” in which an incidental detail becomes a fixed practice, and so a reality emerges in which people preserve an action even when its original meaning no longer exists.

The gap between what is “right” and what is “required,” and the danger to the system

The speaker defines one side of the equation as formal “constraints” that do not allow change without certain conditions, and the other side as “need,” arising from the fact that what is being done is not necessarily actually “right.” He argues that the dissonance is bearable when it is small, because it is “the price paid for the wholeness of the system,” much like any legal system, but when the tension grows it becomes unbearable and undermines the value of preservation itself. He points to a feeling that today the gap has become “very significant,” gives as an example “all the pilpulim about kitniyot,” and argues that this contributes to losing people and to multiplying questions even among those who remain within the framework. He emphasizes that the motivation for change is not personal convenience but distress over fidelity to what the Holy One, blessed be He, expects, and warns that a framework that takes up “eighty percent of the space” will ultimately push people toward the exit.

Halakhic truth versus formal authority

The speaker presents the assumption that there is “halakhic truth” that is not identical with the formal determination of those in authority, and argues that the statement “whatever they decide is what is right” does not stand up to scrutiny. He cites the Kesef Mishneh in chapter 2 of the Laws of Rebels, which explains the rule that one does not dispute the Talmud as a framework rule, not as an assumption that the medieval authorities (Rishonim) were always right. He cites the Derashot HaRan on the rebellious elder as proof that the framework can override the substance even when the sage “knows that they are mistaken,” and therefore the tension is a built-in part of the system and not a malfunction. But there are situations in which the “dosage” becomes too heavy and requires open discussion on the table.

Purim as a lesson in breaking rules and the status of the Scroll of Esther

The speaker presents Purim as teaching “one of its main lessons,” namely breaking rules, and illustrates this through the laws of reading the Megillah even when part of the text has been erased, unlike a Torah scroll, which is invalidated by even one letter. He describes the Scroll of Esther as standing “on the seam between the Written Torah and the Oral Torah,” both historically and essentially, and explains that the Sages intentionally established leniencies in order to commemorate that seam in response to “Write me down for future generations.” He adds that people customarily wear “rabbinically prohibited mixtures” on Purim and that Purim includes rule-breaking such as becoming intoxicated, and from there he moves to the broader idea of a non-absolute attitude toward rules.

The closing of the Talmud as the canonization of an open text

The speaker argues that the closing of the Talmud was a “brilliant decision” in light of the scattering of the Jewish people after the Babylonian center was destabilized, much like the closing of the Mishnah after the destruction of the Temple in order to create a framework at a time of dispersion. He stresses that they could have sealed a decisive “Kitzur Shulchan Arukh,” a code of bottom-line rulings, but instead they canonized a text of give-and-take that mostly remains without a final line. He interprets this as a choice to close off a “form of discourse” and a study hall, not to close off outcomes, so that within that framework one can reach different outcomes and still remain faithful to the Talmud.

The Talmudic distrust of rules and bottom-up thinking

The speaker describes the Talmud as casuistic, associative, and sparing in its use of rules. He gives as an example the rule in the Mishnah in Bava Kamma, “the common denominator among them,” and the Talmud’s question, “What case does ‘the common denominator’ come to include?” which reduces the rule to the addition of one specific case. He cites the passage in Kiddushin about “all positive commandments dependent on time, women are exempt from,” and the Talmud’s response, “one does not derive from general rules, even where an exception is stated,” and argues that this teaches us not to take rules too seriously even when they were formulated with precision. He argues that the original mode of thought is “bottom-up,” from cases to rules, whereas afterward human beings try to turn this into a “top-down” process of deriving the particulars from the rule.

Rules as language: approximation, not positivist deduction

The speaker objects to a positivist conception of a logical system from which one “derives” particulars, and argues that no system actually works that way. He uses the analogy of learning Hebrew in an ulpan: the rules provide orientation, but the language is alive and came before the rules, and the rules are created after the fact and are therefore full of exceptions. He argues that the same is true of the rules of the Torah and the Sages—they are not absolute—and gives as an example the rule “follow the majority,” which is narrowed by so many qualifications that almost nobody actually rules in a simple way by “following the majority.”

Tavi, Rabban Gamliel’s slave, teaching Torah to slaves, and women’s Torah study

The speaker cites the passage about Tavi, Rabban Gamliel’s slave, and the question of how Rabban Gamliel taught him Torah if “it is forbidden to teach Torah to slaves,” and he brings the Ritva, who distinguishes that “a worthy slave is permitted.” He describes the move as a response to a reality in which “it cannot be that they were talking about these kinds of people,” and he parallels this to a contemporary feeling about the prohibition on women’s Torah study, where one stands before reality and says, “It cannot be that they were talking about these kinds of women.” He presents the process as the creation of a new rule to justify a prior moral-religious intuition, not as the application of a preexisting rule.

Epicycles and deferents: exceptions that generate more rules

The speaker uses the analogy of Ptolemaic cosmology, with circles and sub-circles, to explain how more and more rules are added in order to fit a reality that does not submit to a simple rule. He describes the proliferation of sub-rules in Jewish law, such as “the law follows Rava except in YAL KGM” and the accompanying qualifications, and presents this as a necessary phenomenon because human explanation operates in terms of rules. He argues that the number of rules grows “exponentially” over the generations, and that sometimes “for the sake of half a case you invent an entire branch” in order to justify a departure.

Scientific explanation, Carl Hempel, and the fact that rules come after the facts

The speaker invokes Carl Hempel and the “deductive-nomological model” to describe how human beings explain phenomena by means of a general law from which the case is derived. He points to the paradox that scientific explanation sometimes explains the familiar by means of the unfamiliar, but argues that the main point is that the need for rules is structural. He concludes that rules are built in order to organize facts that have already been decided, and therefore they are an approximation and not necessarily “that from which the halakhot originally came.” He stresses that he uses rules because “we have no other way to think.”

Halakhic intuition and Rabbi Soloveitchik

The speaker cites Rabbi Soloveitchik as saying that almost every rabbi writing a responsum “knows the answer a moment before he opens the first book,” and only afterward constructs the response that will lead to the result. He presents this not as criticism but as a description of a proper mode of operation in which one starts from an intuition about the will of God and then builds a system of reasons and rules that organizes it. He warns that proceeding “only according to the rules” can lead to terrible things, and gives the Nuremberg Laws as an illustration of logical justification without critical thought.

The will of God, reasoning, and the distinction between creating a rule and making a claim about reality

The speaker clarifies that when he “creates a rule,” he does so as an interpretation of the will of God and not as an arbitrary invention, and he compares this to scientists who create or discover a law and by means of it make a claim about reality. He emphasizes that reasoning in Jewish law is an attempt to describe the principle behind the “garment,” and not only the verbal formulation, and therefore it may be that “one does not teach Torah to slaves” applies only to a certain kind of slave, much like a rule about clothing that is fitted to the weather. He presents the tension between the written rule and the deeper principle as the center of decision and exception.

Wittgenstein: you can’t “follow a rule” without an inner pattern

The speaker cites Wittgenstein’s argument about following a rule through the example of a numerical sequence, where one can fit a function that would also justify the answer “minus seven and a third,” and he argues that there is no way to prove deductively what the correct rule is. He concludes that a rule can be taught only to someone who already carries within himself a pattern for understanding the rule, and compares this to Noam Chomsky’s idea of innate linguistic capacities. He uses this to describe Jewish law as a framework within which there is maneuvering, decision-making, and application that require judgment and not mechanical deduction.

Fundamentalism, criticism, and the gap between ethos and practice

The speaker defines fundamentalism as a refusal to subject principles to critical examination, and argues that a religious outlook can be pushed in that direction if criticism of interpretation is identified as criticism of the Holy One, blessed be He. He states that one is obligated to criticize human interpretations of what the Holy One, blessed be He, said, and that halakhic decisors throughout the generations did not in practice enslave themselves to rules but rather amended, carved out exceptions, and added sub-rules as needed. He argues that there is an ethos of “Moses received the Torah at Sinai” and “its general principles and details were given at Sinai” as a normative statement, not a historical one, whose purpose is to obligate an attitude of holiness toward the framework, but in practice most things are created throughout history by means of interpretation.

Authority, the “great rabbis of the generation,” and the gap between full obedience and real life

The speaker relies on the fact that in practice people do not operate according to a model of absolute obedience to the great rabbis of the generation, and he gives as an example responsa of Rabbi Ovadia Yosef that many people do not actually follow in matters such as educational tracks for their children. He argues that it is not enough to say “I have no authority” in order to describe the situation, because everyone in any case exercises judgment and chooses among different frameworks. He emphasizes that he is trying to present a principled framework that explains how changes are made, and not merely to collect “a whole lot of rulings” showing changes in practice without understanding their meaning.

The Sanhedrin: authority meant for controlled change, and the problem of its absence

The speaker describes the absence of the Sanhedrin as an unfortunate historical accident since “the year one hundred and fourteen,” and argues that this creates a real difficulty in the ability to change Jewish law formally. He presents the role of the Sanhedrin not as static preservation but as the ability to make change in a controlled way through a broad body of seventy-one voices, in order to prevent everyone from doing as he pleases. He admits that he is concerned about who would populate a Sanhedrin “today,” but on the principled level he longs for such authority in order to enable change when needed. He concludes by saying that there are things that can be done even without a Sanhedrin, especially when situations are acute, and hints that he will continue to spell this out later in the series after Purim and Shushan Purim.

But that’s not it, that’s not the thing, not mathematics with a board and chalk. What you described just now is excellent, it’s true, but it’s not that. What you described is the plain meaning. It makes no difference that you came to a different climate, so you keep wearing the appropriate clothing. Right? No, a swimsuit. No, that’s what I’m saying. When you examine the examples—I’ll give you an example: adorning Jerusalem with fruit, okay? The custom was to adorn Jerusalem with fruit—this is in the Talmud, tractate Beitzah—they used to adorn Jerusalem with fruit when they brought up the first-fruits. Rabban Yohanan ben Zakkai abolished this; they stopped bringing the first-fruits, the Temple was destroyed, and he abolished it. They start discussing there changes in Jewish law: whether he was greater in wisdom and number, whether the religious court of Rabban Yohanan ben Zakkai was or wasn’t greater in wisdom and number, and so on. Why is that relevant? The moment the reason has lapsed, then this is really an interpretive change—basically, what are you saying? What I needed was to adorn the bringing of the first-fruits, but there is no bringing of first-fruits. It’s like the broom of the Rebbe of Gur, right? You know that story—that before they lit candles, the Rebbe of Gur said to his attendant: take away the broom from here. There was some broom leaning against the wall. So the attendant asked him, why? He said, because next year when all the Hasidim light candles, they’ll light candles with a broom standing next to the menorah. Get rid of it. So he removed it. What happened the next year? All the Hasidim put a broom there, removed it, and lit candles. Meaning, you understand? That’s basically the situation all of us are in. That’s exactly the situation all of us are in.

Anyway, so where was I? So that’s basically the tangle—that’s one side of the equation. The other side of the equation is the need—those are the constraints, but there’s also the need. What need? The need is that there’s some gap between what we do and what is right to do. Because these principles are formal principles. There’s something formal—you can’t change unless such-and-such conditions are met. But there’s no claim here that it isn’t right to change. As I said before, on the contrary: the people of interpretive conservatism will say to those who keep walking around in swimsuits: you are violating the will of God; He wants us to wear a suit with a parka, because it’s cold. Why does the Great Court want that? Huh? Okay, but still, at the end of the day, we are doing something wrong. Okay? There is some dissonance between what we have to do from the standpoint of Jewish law and what is right to do.

Now, this dissonance exists many times, and as long as it’s in small doses, it’s not terrible. It’s not terrible because, okay, we pay some price for the integrity of the system. We’re prepared to do things that aren’t right. Because we know we don’t want to dismantle the framework, we don’t want to dismantle the system. This is true, by the way, in every legal system, including the laws of the Knesset. There are certain laws that not everyone likes; as long as they haven’t been changed, we’re not supposed to violate them. Why? Because we don’t want to dismantle the system. If we have a commitment or a desire to see the system functioning, that’s part of the price that has to be paid.

The problem arises when the level of these tensions increases. Given the pace of change in the world in recent years, and we’re stuck without a Sanhedrin—a regrettable historical accident going on for several thousand years already—the gap between what is right and what we have to do keeps growing exponentially. Now in that situation a tension is created, and I don’t think we can remain indifferent to it. Precisely someone who wants the system to continue realizes that the system is trapping itself, that is, shooting itself in the foot. If I understood that everything we are supposed to do is also actually right, okay, then there’s no problem, no tension. But if—and this is what I emphasized, and I brought the Kesef Mishneh in chapter 2 of the Laws of Rebels—the Kesef Mishneh says that the reason we do not disagree with the Talmud, or the Amoraim did not disagree with the Tannaim, and so on, is not because the Tannaim were always right, but because there is such a rule that we accepted upon ourselves so that there would be a framework within which we do not disagree.

But I say: in a place where—just to give an extreme example—where eighty or ninety percent of the things I do are not right, and I do them only in order to preserve the framework—but what am I preserving the framework for? For the remaining ten percent? It starts losing its value. All these things were said in a place where you have three percent, five percent, ten percent of things that are just the price. I do it, I know it’s not right, but it preserves the framework. Today there is a feeling—among people who allow themselves to give an accounting; there are some whose hearts do not reveal themselves to their mouths—that the gap is already becoming very significant, and something in this whole business is stuck. All these pilpulim about legumes, whether it’s possible or impossible, the mind just can’t tolerate it. There is something problematic here, and the question is what to do with it. How much can I do? How much can I do eighty percent of things for the sake of the holiness of the framework, and ten or twenty percent because they are really what ought to be done? That’s problematic.

I mean, even on the practical level, we are losing a great many people, a great many, because of this tension. Even someone who is still willing to continue—he’s willing to continue, but with many questions. Now, is that a relevant consideration? I think yes. Meaning, we have to see what can be done, and without dismantling the framework. That is not a simple question. On the one hand, I’m describing the motivation for why this matters. It matters not because it’s hard for me, not because I don’t feel like it, not because it makes life difficult for me, but because this is not what the Holy One, blessed be He, wants. I’m talking about a distress that is inside the world of serving God. I’m not talking about a tension between what I feel like doing, what is comfortable for me to do, and what I need to do. That’s relatively easy—not always easy, but easier at least on the theoretical level—to manage, because that’s what needs to be done. But here, that’s not what needs to be done. My distress is on the level of what the Holy One, blessed be He, expects from me, not on the level of me versus Him. Okay? So here there’s a problem. The framework can’t take up eighty percent of the space. That’s not reasonable. The framework is around the edges. Fine. So if some psychological or social subconscious turns the framework into one hundred percent, we need to find a way out. That’s what I’m going to talk about. Right now I’m only laying out the problem.

Okay, so that is the framework within which the whole thing is being conducted. One more introduction before I go into the matter itself. Yes. Maimonides, when he ruled as he ruled eight hundred years ago, more or less, he too identified the reality—he knew there was no Sanhedrin and he knew a gap had been created, perhaps a smaller one—so still he ruled as he ruled. Because that’s the assumption—what do you mean? Maimonides didn’t decide this on his own; these are Talmudic discussions. Obviously. I’m not disputing that this is the assumption. Even though there was tension in his time too. In every period there was tension; sometimes more and sometimes less, but it was always something that accompanied us. You can’t say there is no “right.” If you look from within Jewish law, you can say there is no “right.” What they determine is what is right. That’s the framework. What they determine is what is right. But to say that, you need an assumption that that isn’t true. So that requires some discussion. Didn’t we talk about pluralism and tension once? We did. Okay, so there I said that, in my opinion, there is halakhic truth. I don’t think that whatever they decide is the halakhic truth. In my opinion, that doesn’t stand up to any test. So yes, you’re right—that is an assumption I’m making here all the time, but we already talked about it.

Does Maimonides assume that? No, he doesn’t agree. Maimonides assumes—he also assumed—that there is halakhic truth; only the framework sometimes overrides it. I brought the Derashot HaRan. Derashot HaRan says about the rebellious elder: how can we demand that he obey the Sanhedrin when he knows they are mistaken? We’re talking about a Torah scholar qualified to issue rulings, not some ordinary citizen. So he says: because the framework is more important than the substance. That’s his answer. He does not say that because what they rule is the truth. So then what’s the problem? There’s no dissonance, no tension. If what they rule is the truth, then what does it mean to say “you know they are mistaken”? They aren’t mistaken. By definition, what they rule is the truth. No, that’s not correct. There is an assumption that there is halakhic truth, and we live in tension. Sometimes there is tension between the framework and what is right to do. And tension is okay. I don’t think there is any problem with that on the principled level. Fine—when we are committed to many values, they sometimes conflict. I’m only saying that there are situations in which the dosage is already too heavy. Then a problem is created, one that I feel we must pay much more attention to than is usually given.

Not only pay attention to it, but put it on the table. Because many halakhic decisors do things, but they are not willing to put it on the table. We spoke about that a bit. Fine, I’ll talk about it more. So that’s the point, that’s the framework within which the business is being conducted.

Now I want to give an introduction that really hints at what is coming, based on something we already discussed once: the significance of rules. How far do we follow rules? Didn’t we talk about that? That’s exactly today’s little Torah thought. I just remembered. I think Purim—no, this time it’s okay, I’m with you this time—Purim, I think, is one of its main lessons, given the season, the breaking of rules. On Purim we do a lot of things that go against what is standard. Think about the laws we heard today: that you read the Megillah even when a considerable part of its text has been erased—if the majority or the main part remains, then it’s okay. So it’s okay. We’re used to the idea that in a Torah scroll, every letter can invalidate the scroll. What kind of thing is this? The Scroll of Esther is called a book, called a letter, all kinds of things. There are a lot of… there are things there that are like a Torah scroll and things that are not.

Purim itself, by the way, lies on the seam between Written Torah and Oral Torah, historically too. The end of the exile after the First Temple, which is exactly the seam between Written Torah and Oral Torah. And the Sages intentionally established rules in order to show us and preserve that. They were lenient on purpose. They were not lenient after the fact. Meaning, there is intentionally such a law in order to say—after all, Esther requested, “Write me for the generations.” Right? What does “write me for the generations” mean? Put me into Written Torah. And the Sages, as it were, answered her—but not completely. It is a little Written Torah and a little Oral Torah—yes, Tanakh. A little Written Torah and a little Oral Torah. Historically as well, and from the standpoint of the Scroll of Esther itself in various ways. And they do all kinds of things there too. It was customary to wear rabbinically prohibited mixed fabrics on Purim. You know, there is such a law. There are no costumes without rabbinically prohibited mixed fabrics. I think there’s an idea of wearing rabbinically prohibited mixed fabrics in order to break this rule that one may not wear mixed fabrics. On Purim, rules are broken. One day on which rules are broken.

The idea behind this—we get drunk. What? We get drunk. A lot of rules get broken there. What’s the idea behind it? I’ve spoken about this too before, and I remember saying: when they sealed the Talmud—why is it forbidden to disagree with the Talmud? So as I said, in my view it was a brilliant decision in historical perspective. I don’t know whether those who made the decision knew what was coming and did it consciously, but it turned out that it really was a brilliant decision. Because the Jewish people were facing dispersion, in the fifth, sixth, seventh century. Yes, very soon the center in Babylonia was about to scatter throughout the world. Until then there had been, overall, a fairly clear center in Babylonia; there was a bit in the Land of Israel; the Exilarch was like the king, like a Sanhedrin and so on. Right? In place of “the scepter shall not depart from Judah, nor the ruler’s staff from between his feet”—these are the heads of the exiles in Babylonia. But in the end this situation begins to unravel.

So the Sages think: okay, what do we do with this whole business? Exactly like with the Mishnah after the destruction of the Temple, by the way. The Mishnah was sealed after the destruction precisely in order to create some sort of framework, as we were scattering. They close some text. Before the next dispersal, that of the Babylonian exile, where too we still sat within an organized governmental structure, with courts and the great academies and so on. The moment that was about to disperse, they sealed the Talmud. There is a mechanism to this; that’s why it seems to me it may even have been conscious. Okay? And what they did there was something very interesting. I would have thought: if you already need to seal something in order to establish a framework, then seal some kind of code, a Kitzur Shulchan Arukh. Write what one must do and what is forbidden. The Talmud says nothing. There is give-and-take: this one says this, that one has objections and answers, and in the end you’re often left without any bottom line at all. In most topics they do not state the bottom line at all. This is the text they close in order to create a framework? How do you do that? Write a Maimonides. Write a Shulchan Arukh—even if you want it more open. Write a Kitzur Shulchan Arukh that really seals the law. What? Write some closed text. No—they didn’t do that. Right?

And in the end what they did was choose something very interesting. They gave canonization to an open text. They closed an open text. What does that mean? It means there is a framework for discussion, but within it there is room for many possibilities, and we know how many disputes there are, and everyone is faithful to the Talmud. And still there are disputes from one extreme to the other, and everyone is inside. Not only is everyone inside, but there is the possibility to speak and argue. Why? Because they sealed the Talmud, because there is give-and-take. You know how the thing works. Fine, you’ve reached different conclusions; you’re a person, you think differently. But I can bring you proofs, I can try to persuade you, you can persuade me, I’ll bring evidence from here and there. There is discourse, meaning there is a certain conversation within which we conduct ourselves. It defines the study hall; it does not define the results. The Sages did not want to define the results. Or the Sages who sealed the Talmud—never mind right now the later generations—did not want to define results; they wanted to define a framework for discussion. That’s obvious. Otherwise you wouldn’t seal such a text.

The result can change and all that? What? The result can change. Yes, that’s exactly what came out. Right. Because they understood—or de facto this is what came out—that in every place it would take on a different meaning for each person. As far as they were concerned, that was fine. That’s what they closed. They closed the form of the discourse; they did not close what you would do with it. Within that form of discourse, you can arrive at many results.

Now what does this mean, actually—and here I’m reaching the general discussion. Already in the Talmud itself you can see that the whole attitude toward rules is a very dismissive one, very qualified. First of all, look at the way the Talmud is written: a highly associative text. There are almost no rules. There are cases—it’s casuistic, yes? Some case here, another case there, some sort of thing where it’s not “tell me what the definition is, what the rule is, and I’ll know what to do.” Instead, “that woman sent there and did such-and-such, and now you have to understand what happened there and apply it to other cases.” You say, “The burden of proof is on the one seeking to extract payment,” there are… “we do not say migo in order to extract”—I’m actually quoting rules that were stated, but never mind. Here and there there are rules. Fine, say rules, say everything in the form of rules, and that’s it. There are a few rules here and there; it’s rare. And even those rules—how many sub-rules are there within them.

Why don’t they do that? They don’t do it because in the Talmud there is a principled view against rules. I’ll give you two examples; I think I spoke about this once. One example: the Mishnah at the beginning of tractate Bava Kamma says there are four primary categories of damages. It ends with: “The common denominator among them is that their way is to cause damage, and it is your responsibility to guard them, and when they cause damage, the damager is obligated to pay damages from the best of his land.” There is a rule at the end. Okay, wonderful, finally the Mishnah gave me a rule, right? Now I know what to do—not only the examples, the ox, the pit, the grazer, and the fire—there’s a rule. Page 6—what does it say? “The common denominator” comes to include what? Why did you bring the rule? The one time they gave me a rule, “the common denominator” comes to include his stone, his knife, and his load that he left on top of the roof and they fell in a normal wind and caused damage—or whatever, even stranger cases that appear there, some four suggestions. What? That’s what the rule came to teach? It came to include some weird additional case like that? Everything is backwards. Meaning, if you tell me a rule, ask me why you brought the examples, not why you brought the rule. The rule is very clear. What do you mean? There is no confidence in rules at all. No confidence in rules. Give me the examples, and I’ll more or less understand what to do. That’s how they think. They think bottom-up, not top-down. That’s all Talmudic thinking. Later we try to produce rules out of it. And then suddenly, once they become rules, we work top-down. Meaning, from the rules we try to derive the results. But originally it worked the other way around. That’s how you receive cases. We made the rules, not the Talmud.

Even more: there is a Talmudic passage in Kiddushin. The Talmud says there: every positive commandment dependent on time, women are exempt from, except for A, B, and C. Five exceptions, or four, or something like that. Okay. The Talmud says: but what about the commandment of Hakhel? There’s another one—a time-bound positive commandment for which women are obligated. The Talmud says: fine, we do not derive from general rules, even where it says “except.” Anyone who doesn’t laugh when reading that Talmudic passage, in my opinion, just hasn’t understood it. It’s obvious that the passage is ironic—maybe not cynical, but ironic. What does it mean? What is it really saying? Look, if it had said merely that every time-bound positive commandment women are exempt from, fine—there are exceptions, they didn’t go into all the details, they stated the principle, okay. But here they did go into details. They said: every time-bound positive commandment women are exempt from, except A, B, C, period. Wait, there’s also D. Fine, don’t make a fuss, there’s also D. “We do not derive from general rules even where it says ‘except.’” Even where the wording is precise, even then we do not derive from general rules. And what does that mean? Huh? What does that obligate you toward reality? I understand them to be saying: my friend, don’t make such a big deal out of rules. The one time they gave you a rule, don’t take it too seriously. That’s what they’re saying. No, obviously that’s the case. And that’s what the Sages did throughout the generations, down to today. Only this age is different. But that’s what they actually did. They didn’t take rules seriously, and rightly so. The rules guide us, the rules give us certain directions of looking; this is not deduction. A positivist conception says: there are rules, and from them we derive the particulars, as in law or in philosophy, yes? There is some system of rules, and from that we derive the details, and that’s it—it’s a logical system. What nonsense. The Sages did not believe in that, and neither do I, and it isn’t true. No system is like that; no system can be like that.

Like a system of language rules—we were just talking about this—a system of language rules. Yes, someone studies in ulpan all the rules of exactly how to speak Hebrew. Then he goes out into the street and sees all the natives speaking however they want. He starts correcting them. Who’s right? Obviously they are, in most cases. Why? Because language cannot be forced into rules. You learned rules to help you start entering in, to get orientation. But in the end, obviously, language has its own rhythm. Language is a living thing. It developed before the rules; the rules came afterward. Language developed when the community began speaking it, and a language developed. Then people came and tried to define the ways we speak by means of rules. But there really are no rules. They’re not true rules. They’re rules that came ad hoc, so they have all kinds of exceptions here and there, because it’s the best approximation we found. And we need to formulate it—why? Because you can’t teach a person a language, at least when he’s an adult, without taking him through rules. Children can manage without that.

What about religion and rules? What about Choshen Mishpat? Are those rules absolute? The language rules of the Sages and the Torah—are they absolute? Unequivocally not absolute. On the last Ninth of Av we talked about this. On the last Ninth of Av—the wisdom is mostly not with individuals. The majority does not err. Of course. That’s an interpretation of the rule, but every single thing—we subject everything to interpretation. No, whether you adopted “majority in wisdom” or “majority of heads,” it doesn’t matter. No—what do you mean adopted? But how did the debate arise? There was a rule, right? How did the debate arise? There is a rule. So what’s the problem? Because that rule is an open rule. Then they say: wait, we don’t follow the majority when these are later authorities and those are earlier ones, or when they didn’t sit together—Choshen Mishpat, section 25—or when… there’s nothing left of that rule. Does anyone today go by the majority? Not a chance. No halakhic decisor today follows the majority. Tosafot rule whatever suits your view, and then you issue a ruling. I’m not saying there is no such rule. I’m saying: you are within the framework and you maneuver inside it.

We now—when I was teaching in the kollel at Bar-Ilan, I taught the topic at the beginning of chapter two about Tavi and Rabban Gamliel. You saw that Tavi his servant was a Torah scholar, and he knew that slaves are exempt from the sukkah, so he slept under the bed. So the medieval and later authorities ask: how did Rabban Gamliel teach him Torah? It is forbidden to teach Torah to slaves—a Talmudic passage in Ketubot says it is forbidden to teach Torah to slaves. So the Ritva says: well, a worthy slave is permitted. Where is that written? There’s some derivation from some tiny point of a letter or something—where did he get that from? Because there is a rule: it is forbidden to teach Torah to slaves. Now I am standing before Tavi, and I see the man, I know him. It cannot be that they were talking about someone like this. Come on. It cannot be that they were talking about someone like this. Obviously I need to teach him Torah.

By the way, that same feeling is what people have today regarding teaching women. Forget all the formal excuses—there is a prohibition. You stand before women—come on—it cannot be that they were talking about these women. What is the problem with teaching women Torah? It cannot be that they were talking about these women. So no. No. I have no argument. It just cannot be. They weren’t talking about a worthy slave. And now there is already a rule: for a worthy slave, you may teach Torah. Right? A rule has now been created. What does that mean?

I’ll maybe give a parable—a parable from Ptolemaic cosmology. They thought that the paths of the stars had to be circles, because a circle is something wonderfully perfect. Okay? The problem is that reality doesn’t really obey that beautiful rule, and in fact they move in elliptical orbits, as we know. Right? But they knew it too. So what did they do? They said: there is a circle, and then here—ah, that doesn’t… add a small circle here, another small circle there. Those are called epicycles and deferents. And then they added, and within this circle it still didn’t work, so they added another circle. That’s how they tried to construct an ellipse. From circles, they needed infinitely many circles of different sizes in order for the envelope to be exactly an ellipse. So they went quite a long way in that direction. They didn’t get to infinity, but they got pretty far. Meaning, add many circles and sub-circles and so on in order to produce the ellipse.

And if I take the circle here as a parable for a rule, then I say: why do we produce rules? Because we cannot think without rules. When you try to interpret something, you interpret it by means of rules. Maybe I once spoke about Carl Hempel, the philosopher of science. He says: what is a scientific explanation? How do we explain a phenomenon in the scientific world? He calls it the deductive-nomological model. Nomos means law, right? It’s a model that says: I find the general law from which the phenomenon can be deduced deductively. Let’s say I want to explain the tides. What do I do? I establish that there is a general law, the law of gravitation: every two masses attract one another, okay? And from that law I can derive the phenomenon of the tides, because there is a moon and there is water, and they attract one another, and thus tides are formed. That is an explanation—the model of scientific explanation.

Notice—maybe I don’t remember whether I spoke about this before or not—it may be worth noticing that this explanation, unlike common explanations which reduce the unfamiliar to the familiar, is an explanation that reduces the familiar to the unfamiliar. Usually, when you explain something, you take something not understood and ground it in understandable principles, right? Or familiar ones. There is a committee checking why the plane crashed. So it finds some crack in the wing. Okay? And then what does that mean? We already know how the rules work. If there is a crack in the wing, the wing breaks and the plane crashes. We already know the rules of aerodynamics. So what does it mean? We examine the phenomena, and then we can ground them in rules we already know, right? That is an explanation. We take a phenomenon we didn’t know what it was and explain it in terms of principles that are understandable to us. The deductive-nomological model works in reverse. We take a familiar phenomenon, tides. We explain it in terms of a law that nobody knew existed until Newton formulated it, the law of gravitation. We create something unfamiliar in order to explain the familiar thing. A bit odd. Some people got a little confused by that philosophically. Wait—something here doesn’t make sense. That’s not an explanation. Explanation means taking something unfamiliar and explaining it by means of familiar things, not creating unfamiliar things in order to explain the familiar thing. Okay? But what… fine… it’s a different model… obviously… it’s another model… okay… put the emphasis on the unfamiliar… fine… why not.

So too here: we create rules from which the details appearing in the Talmud can be explained. Why do we do that? Not necessarily because those rules are correct, but because when we need to explain something, that’s how we are built. Explanation has to proceed in terms of rules. Whenever you explain something, you bring a rule that shows why it is correct. That is called an explanation, right? We don’t know how to think otherwise. We produce the rules because we cannot think otherwise. But that doesn’t mean these rules are true rules. On the contrary, it means these rules came after the facts, not before the facts. The question whether these rules are true or not—I tend to think not. It’s an approximation. The best approximation we found, like in language.

What does “true” mean? “True” would mean that these laws came from it. That originally the Holy One, blessed be He, thought that women are exempt from time-bound positive commandments, and then He said, okay, so as a result of that they will be exempt from sukkah and every such thing. No—it works the other way around. He exempted them from sukkah, exempted them from this, exempted them from that, and we understand that the rule is that women are exempt from time-bound positive commandments. Tavi the servant of Rabban Gamliel—at age fifteen he knows in these words, okay, at age fifteen he knows—how do I know? So I say: then I produce rules. I’m not saying that’s true; it’s only an approximation.

No? So what? In science too I work like that. What does that have to do with it? Am I sure all the laws of science are true? No. But I use those rules and I build planes based on them, because that’s what I have and that’s how I think, and sometimes I’m wrong. I very much hope that in most cases I’m right. That’s what I’ve got. I’m not going against the rules here. I’m trying to understand; I’m trying to explain the significance of using them. I use rules—I have no other way. I’m also some sort of human being. We think in rules; we have no other way to think.

So basically what we… okay, laws are cases, specific instances. Jewish law—not sure—you need to tie the right shoelace before the left shoelace. What, that’s a rule? That’s not a rule, that’s an instruction. The law that women are exempt from sukkah. And the servant who was in… that’s a living law. It’s a detail that turns out to contain several sub-details: a worthy slave and an unworthy slave. Everything is relative. Relative to what’s above it, it’s a detail; relative to what’s below it, it’s a rule. It depends how you look; there’s a hierarchy. It’s a detail—not to teach slaves Torah—it’s part of the whole treatment of slaves, which has principles of its own. Now the Torah suddenly… that detail too splits: there are these kinds of slaves, there are those kinds of slaves, teaching them so they’ll learn on their own—that’s already details once the Talmud does that. So once details are created, it has already become a sort of rule.

So what we are doing, because we are human beings, is that whenever we interpret facts we always do it in terms of rules. So what we do is again circles with epicycles and deferents. We add another rule, and then there’s a sub-rule that describes the exceptions, and then someone comes and says there’s another sub-sub-rule that describes those exceptions. But these are rules we produce because reality kicks back; it refuses to submit to a simple system of rules, just like language. Therefore Jewish law: Abaye and Rava—the law follows Rava except in YAL KGM. If the law follows Rava, then let it always follow Rava—what are these six exceptions? Not to mention, of course, that there are other places where the law follows Abaye besides YAL KGM, so even that rule isn’t really… And then everyone asks, yes yes, but when Abaye and Rava are speaking in the name of Tannaim, then no, then that wasn’t said. Where is that written? In the works of the masters of the rules who invented it. Why? Because you are facing a reality that refuses to submit to those rules. So you—there’s no choice. I’m not mocking this, by the way. I’m presenting it cynically, but I’m completely there. We have no way to do this differently. Because we need to discipline, we need to think systematically. Systematic thinking is always with rules. So if I find that something is an exception, I need to explain why it is an exception. And the moment I explain it, I’ve created a rule. Now that rule too won’t always work, so someone will create another sub-rule. And that’s how, if you look through the generations, just count the books on the shelf in the library and you’ll see that over the generations the number of rules grows exponentially. And that’s how we constantly arrive at “anonymous view” and then “some say” in the Shulchan Arukh—which is already a sort of law made up of really bizarre and ridiculous rules, though to be fair there are sensible rules too. And these rules are rules created in order to explain various exceptions. Because explanations are always in terms of rules.

But notice what comes first. First I decided that one may teach Tavi. Only afterward someone comes: wait, but Rabban Gamliel, the president of the Sanhedrin, teaches Tavi? But it is forbidden to teach Torah to slaves. So someone comes—this wasn’t Rabban Gamliel at all, it was the Rogatchover in the twentieth century—and he said: a worthy slave is permitted. Rabban Gamliel did not do it because of that. He did it because he saw Tavi. He says: someone like this—it cannot be that one is forbidden to teach him Torah. This is not the image of a slave that the Sages were speaking about. And that’s also what Meiri said. Meiri saw the gentiles around him and said: these are not the gentiles the Sages are describing to me. So he doesn’t know—I don’t know what the rules are and what this is and by which rule it goes—I’m telling you, here it simply cannot be.

So I come and try to rationalize, and then I try to define it in terms of rules, and to define that in fact these laws are laws against a moral background and not an ethnic or faith-based one or whatever it might be. Meiri was somewhat aware of this, that’s pretty clear. But he didn’t establish some such rule there and then go by it, and he didn’t prove that rule at all. He simply stood before a reality that made it obvious to him that this was right. Rabbi Soloveitchik writes somewhere, it seems to me, that almost every—no, not almost—he says every person answering a halakhic question basically knows the answer a moment before he opens the first book. He already knows what the answer to the question will be. Then he opens the books and builds a responsum that will lead him to that result. I’m not sure he’s right that extremely, but clearly there’s a lot of truth in it. Because you begin with the intuition, and then you build the rules that will organize things so that the intuition works—and this is not criticism. That’s how it works. That’s how it works, and that’s how it should work.

If we want to go only by the rules, we arrive at terrible things. The Nuremberg Laws worked that way. Sorry for the—Godwin’s law, they call it, the apology after three seconds in a discussion. In the Nuremberg Laws, a person formulated the argument of interpretive conservatism about the fact that we want to preserve the rules, which are really the will of God. Right. So on the one hand the rules are the will of God, and they basically have some sort of Platonic existence. And then suddenly now there is no rule. Right—you’re confusing me completely. Okay, that’s perfectly fine. First of all, it’s a sign that you’re following. Second, I myself don’t have to be consistent if the Sages weren’t consistent. And third, I think I am consistent. It seems to me that maybe—I’ll get to that in a second, okay? But I’ll already say, based on what I’ve just said, and then I’ll add something else.

The claim is that the rule I created is a rule that I created. Now what does “I created” mean? I arrived at it, but it is my assessment of what the Holy One, blessed be He, wants. But it is an assessment. He did not tell me that rule. In my interpretation I arrived at the conclusion that this is the rule that describes His will. Now for me, that is His will. This is what I spoke about with work clothes. That doesn’t mean I didn’t create the rule—I did create the rule. How did they know that the Holy One, blessed be He, was speaking about hot weather? Because it seemed logical to them. So they created the rule, like scientists. Do scientists create the rule or discover it, uncover it? One can argue about that. But even if they create the rule, they are saying something about reality. The fact that I created the rule and before me no one knew it, doesn’t mean this rule has no correlate in reality. I’m trying to describe the facts. Therefore I need to be aware that this is an approximate description and a rule that I created. I hope it is right, but if there’s an exception—fine? In that sense, yes.

For reasoning, for Jewish law and reasoning, reality comes first and then rules are created. And here this is not “drawn from authority.” When we speak about Torah, the motivation does not come from “this is how we think.” No—this is how we think the Holy One, blessed be He, wants. Not “this is how we think.” One has to be careful. I’m not talking about “this is how I think”; that is not the point. This is what I assume the Holy One, blessed be He, wants. And when I speak about reasoning, I mean that. But how do you know? You know it from Torah or from reasoning. But everything rests on—you aspire, you seek the will of that authority. And if I have a collection of rules—if He didn’t tell you the rule—then when you have a new case that doesn’t exactly fit all these details, even if He had told me the rule, I still wouldn’t have had a way. There is a famous argument of Wittgenstein—following a rule. Wittgenstein says there is no such thing as following a rule. You cannot give rules. On the philosophical level—we won’t get into that.

Wittgenstein basically says this. He says, suppose we give a psychometric test—I don’t know if we spoke about this too, I don’t remember anymore. A psychometric test: one, two, three, four, five, next? Obviously you’ll say six. Congratulations, you’ve been admitted to the university. And I say minus seven and a third. How will you prove that you’re right? You say the series is a-sub-n equals n, right? One, two, three, four. I’ll propose to you another series that when n equals one gives one, when n equals two gives two, when n equals three gives three, and when n equals six gives minus seven and a third. And again, how do you build such a series? So he does it there in about two minutes. He says: that’s not a problem. It’s six equations with six unknowns, simply a polynomial a plus bn plus cn squared plus dn cubed—you have six coefficients. Force it so that for n=1 it is one, for n=2 it is two, and for n=6 it is minus seven and a third. No problem. It’s a six-by-six calculation; you can solve it.

And what about infinitely many? What infinitely many? What do you mean infinitely many? Never mind—what difference does it make? Solve an infinite system of equations. Maybe you can’t solve it, but it exists. So someone solved it by divine inspiration. It doesn’t matter whether I have the technical ability to solve it. In order for it to be hard to solve, it doesn’t need to be infinite. You certainly know that even with computers you cannot solve a system beyond—I don’t know how many—not very many. Yes, I once read a book on the philosophy of mathematics and saw such an algorithm.

The rules basically mean that you have points in space and you draw a line, probably a linear line, a straight line that tries to be linear—or at least a polynomial line. Right. And what you’re basically saying right now is what? That there is no line, or that there is a line with singular points? Or that the line is not linear? Because if you say there is no line, then you’re pulling the rug out from under everything. It relates to my previous question. Exactly! I’m saying there is a line, but not necessarily a linear one. Maybe it’s a linear approximation to a parabolic line in this region, or a linear approximation to some line, and Tavi is apparently a singular point on the line. No—look, the original turned it from a point into a whole set of points: a worthy slave. And that is exactly what I’m saying. So now he has created a new line, but that line too is already not linear; it’s kind of a sine wave around the… yes, but there too you’ll find exceptions, and then you’ll produce yet another degree of the polynomial, add another one.

Rabban Gamliel did not make a rule. He did—this is my speculation. Rabban Gamliel sees Tavi—I don’t know what happened there—but Rabban Gamliel sees Tavi, and it is obvious to him that this is not right. Then the commentators come and turn that into a rule. Many times that’s how it works. Even in the Talmud itself rules do not appear. I assume it’s not that they hid the rules from us—they didn’t think in terms of rules. They say: in this case the law is such-and-such, in that case the law is such-and-such. We come now and produce rules from those cases. And that’s right again—it’s not criticism. That’s what we need to do. I have no other way to preserve an a fortiori argument, basically. You have one segment and you extrapolate. Right, exactly. So an a fortiori argument is also a kind of interpolation, basically—you assume you have those lines, that there is some principle behind them. Right, exactly! Just like in science. There too there is the same debate—whether there really is a real line or whether it’s all just something we produce.

I actually think there is a real line and we are trying to approach it. The form of the rule… Maimonides relies on Rabban Gamliel when he says that this is not what was intended. Maimonides relies on “why do I need a verse? It is reasoning.” But even reasoning has to be some sort of… right, he’s a worthy slave—why can’t he be a pious person? He’s here, part of our community, obligated in commandments like a woman, he’s a worthy slave, everything’s fine. So why not teach him Torah? That’s what he relies on. I don’t think one needs more than that. It’s exactly simple: why do I need a verse where there is reasoning? What? “Why do I need a verse? It is reasoning.” No—but there is a verse saying not to teach a slave Torah. You can say that’s the… you can say there is a verse: one does not teach slaves Torah. Wait, but my reasoning says this can’t be. In a cold place you don’t need to wear elegant clothes. There is a verse saying wear elegant clothes. The question is whether that verse is the verse, or the principle behind it. Exactly—that’s the point. “One does not teach slaves”—translated into the language of work clothes—that means one does not teach slaves only because they are the sort who must not be taught Torah; those are unworthy slaves. Fine. But if I have a worthy slave, then that was not said about him, exactly like cold weather. Okay, this is a prototype for all these things.

And then it seems to me that here too what happens is that Maimonides and Rabban Gamliel try to align them all, and the number of circles becomes the number of items. Right, and that creates a slanted line. Right, and then you attach rules—here, this is the circle of this case—and still we never quite get to the point where the number of rules equals the number of particulars, although on the principled level it may be that if we keep going we’ll get there. We’re very close. You can say close, and then you’ll see classifications that suddenly you don’t understand where they came from—for half a case you invented an entire branch, because you need to account for why that half-case is exceptional. Of course. Yes, exactly. Fine, but you need to account for why this case is exceptional. Unless you abandon the rule. No, you can’t abandon the rule. How would I understand the world? How would I draw a conclusion from another case? I don’t know.

It’s dichotomous in science. Abandon the rule, see what happens, and proceed. No—you have to systematize things, and in the end it helps me. It doesn’t matter that the system gets complicated. In most cases I already cover them with the first rule. Overall, I’ll cover most cases. That’s the idea, as with grammar rules. What happens with grammar rules? We know every grammar rule has many exceptions, right? Except for that rule. So in practice the first rule they give is a rule that constitutes… the next rule will already cover very few cases. The next rule after that covers still fewer, and so on. So that’s okay—it gives me some understanding. Never mind that to cover all the cases you may need as many rules as particulars. That is true. But at the same time it is also true that the first rule still covers eighty percent. It’s the eighty-twenty rule.

You know, once I was learning with the guys in yeshiva; we were learning tractate Sukkah. I told them: look, let’s learn—I think—one page a day, or something like that, maybe a folio, I don’t remember anymore. And I’ll show you that eighty percent of what we would have learned in-depth, we’ll also manage at this pace. Because on twenty percent of the material we spend eighty percent of the time. And the twenty percent—this isn’t criticism—those are the more subtle and fine points, so you need to define them more precisely, and that takes more time. If you wanted to understand the basic principles, you could do it very quickly. You could do it very quickly. And it’s exactly the same thing here. The first rule overall covers most cases. It’s a good approximation, and that’s the value of rules. Someone who then deals with an exception, fine, there’s another little rule. These rules are already a bit less important; they cover far fewer cases. But fine, we want to systematize, so we need to use rules. And that is completely okay.

I started with Abaye and Rava because of the six exceptions, except in YAL KGM. So that itself says that this rule is basically a descriptive rule, not an a priori rule. Right? It’s a rule that came after we ruled on the disputes between Abaye and Rava, collected what came out, and it turned out that the law always follows Rava, except in YAL KGM. So they established that rule. Rabbi Elchanan writes in Eruvin—there is a series of rules there: Rabbi Yosei and Rabbi Shimon, the law follows Rabbi Yosei; Rabbi Shimon and Rabbi Yehuda, and all sorts of things like that. So the Kovetz Shiurim there discusses these rules a bit. And he says—he discusses and proves—that at least some of those rules are not descriptive rules but rather substantive rules. Why? Because the Talmud there says—I don’t remember which three Tannaim these were—between Tanna A and Tanna B the law follows Tanna B; between Tanna B and Tanna C the law follows Tanna C. Now the question arises: what about Tanna A and Tanna C? So if I assume transitivity, it comes out that between Tanna C and Tanna A, the law follows Tanna C. Rabbi Elchanan asks: why? If it’s only a descriptive rule, not really because he is wiser or something, it just happened to come out that way—then what justifies assuming transitivity? It doesn’t have to preserve transitivity. If you assume that he is wiser than this one and this one is wiser than that one, then it is transitive. So there, in that case, he argues that the rules are substantive and not merely descriptive. I’m not sure he’s right, by the way, because it could be that the descriptive rules hint at the fact that he is wiser. It’s a rule created afterward, but then you say: well, if the law follows him everywhere, then maybe he is wiser. Never mind. I’m just giving an example. There are such discussions here and there, about how to relate to these kinds of rules.

After all, “the law follows Rabban Gamliel in our Mishnah, except for…” Erev, Tzidon, and final proof. Every such rule is always “except for these few,” and then of course you find another one: no no, that’s in our Mishnah, not in a baraita, or… It’s always like that. But fine, in most cases that rule works. So what all this means is that one has to be extremely careful with rules. Rules are very helpful; we cannot function without them, but sometimes we cannot function with them either. Meaning, one must not become enslaved to them. When you smell that something… or in other words, I’ll formulate it like this.

There’s the new book that just came out. I talk there about the relation between skepticism and fundamentalism. And I argue that a fundamentalist is someone who does not subject his principles to critical examination. No matter what he does—whether he behaves extremely, whether he murders. There can be a fundamentalist of helping others. He helps others in an uncompromising, absolute way; he is unwilling to put that to a critical test, then he is a fundamentalist. He’s a fundamentalist who is nice to live next to, unlike other fundamentalists around whom one should be a bit careful with a hand on one’s neck. But philosophically he is a fundamentalist. Fundamentalism is someone who does not subject his principles to critical examination.

But very often a religious outlook is naturally fundamentalist. Who are you to criticize the Holy One, blessed be He? What do you mean? I’m not criticizing the Holy One, blessed be He. The question is what the Holy One, blessed be He, said. I am criticizing people’s interpretation of what the Holy One, blessed be He, said. And that must be done. Otherwise you are a fundamentalist. You have a system of rules, received from our rabbis, from our greatest commentators, whatever you want. We received a system of rules. Use this faculty. There are places where you need to understand: here there is some issue—add some deferent. Meaning, this is a sub-rule. It can’t be that here it goes through. That’s how the rules were created. That’s how the Sages worked in the Talmud; that’s how the Sages worked throughout history.

Only what? There is a difference between ethos and practice. On the table, almost no one puts this there. Okay? There is an ethos like this: Moses received the Torah from Sinai and transmitted it to Joshua, and Joshua to the elders. Everything we received—like we started with Maimonides, that whole chain we started with—that is utter nonsense. It would be slander against him to think he believed that. He was wise. Obviously not. After all, most things were created throughout history. That’s obvious. So what does that mean? That’s the ethos; we live within it. “Its general principles and its details were given at Sinai,” as with the Sabbatical year, yes? “Just as the general principles and details of the Sabbatical year were given at Sinai, so too all our general principles and details were given at Sinai.” Oh, come on. But the rules of derivation weren’t given at Sinai. The general principles and details—what do you mean, the rules of derivation? The general principles and details, all the details. Fine—but historically they weren’t given at Sinai. Normatively they were given at Sinai. That is a normative statement. It is a statement saying: you need to relate to all the rules and details as if they were things given at Sinai. Because these are the things we drew, by our interpretation, out of the Torah that was given at Sinai. What difference does it make whether historically the Holy One, blessed be He, gave it or not? He gave us something basic, and we work on it, because without that it is impossible. Without interpretation you can do nothing. And this interpretation, for us, is what the Holy One, blessed be He, gave. That is a normative statement, not a historical statement.

But if it is a normative statement, then one must understand: something comes to us—use your head. It may be that something here doesn’t fit, or the rules, or the interpretation we gave the things—perhaps here it doesn’t apply, perhaps here it is not relevant. One must always apply some criticism to the things we uphold. Not because this is criticism of the Holy One, blessed be He, as the people who threaten anyone who wants change always say—as though they were saying, who are you to go against the Torah and against the command of the Holy One—I’m not going against the Torah. On the contrary, you are going against the Torah. I want to know what is written in the Torah. But there has to be some authority for the group that can… of course, there is a Sanhedrin, authority, okay, that’s a topic we already discussed and will come back to, and I can already see we are not really getting there.

I’ll say this: I feel that I’m listening to you very attentively, and I keep returning to the same difficulty. You’re speaking to me as if I’m Rabbi Ovadia Yosef. There’s a basic difficulty here. Let’s go back to the same answer. There is some kind of fundamentalism here, I think, in that I do not disagree with the great rabbis of the generation. And in that I’m a fundamentalist in the broad sense, no? I think that’s the rule for most people, for the mainstream—that you would not replace your opinion with one against the opinion of the great rabbis of the generation. So we need to accept their decisions. Who are the great rabbis of the generation? And who is… yes, and who are the great rabbis of the generation? Fine. And what does it even mean to listen to him? There are things Rabbi Ovadia writes that you do not do. I didn’t say—I said that I don’t have the authority to exercise absolute discretion. But you don’t do what he says! That’s something else. Okay. No, I know you, but it’s obvious—even I don’t, everyone doesn’t. What do you mean? Rabbi Ovadia has a responsum about whether to send your child to a yeshiva of only sacred studies—I don’t know. Rabbi Ovadia says only sacred studies, and even if the child wants it and the parents don’t want it, he doesn’t need to listen to them. There’s such a responsum in several places. If? I don’t know—many here wouldn’t agree with him on that. What? Right. I’m no longer worked up about that, and I’m part of the… I wasn’t talking about you.

You’re arriving at some other framework, you’re arriving at some other framework than what we have today. Today there is a framework—wait a second, I’ll get to the practical side later. For now I’m still at the principled framework. I’m not at the practical side yet; I can already see I’ll need another session. But they start from Sabbath. What? Okay. Starting from Sabbath. I’ll get to the practical side—that’s my goal—but I want to place things in context. That’s why it’s important to me to understand the framework within which… I could have brought you tons of rulings that make changes. I have them here, I collected them, I have plenty. Plenty. They make wild changes against the rules, against whatever you want. So what? Everyone does what he wants—that’s not the point. I want to place it in a framework in order to understand where yes and where no and how one does it and what it means. And why it is permitted and why—otherwise without that it has no significance. What? Yes, exactly. Right. And then that rule gets broken. Okay, but that is how we work. It’s an ambivalent attitude toward rules. On the one hand I can’t do without the rules. On the other hand one must be careful not to become enslaved to them. Rules are an approximation.

Someone who writes a poem according to the rules of language—you can throw the poem in the trash; there’s no need to read it at all. Obviously it’s worthless. But if he doesn’t know the rules of language, you can also throw the poem in the trash. He knows the rules, and he understands where it is right to round them off, to bypass them a little, to play with them. It’s a very delicate game. But that—this is Talmud. I began with the sealing of the Talmud. The sealing of the Talmud is exactly this game. On the one hand it was sealed—there are rules, one may not disagree, we defined a framework. But what an anarchic framework, so elastic, so kind of… That is exactly the point. There is some framework, I don’t want to break it, but the framework itself is something within which one can play so much. That is exactly the point. That’s how all rules should be treated. Not only the authority of the Talmud.

Maybe that’s free choice, maybe that’s it. Free choice—otherwise you wouldn’t be a human being, you’d be a robot. So yes, certainly, I agree—it’s an expression of free choice, yes, correct. Here too our free choice comes to expression, right. Otherwise someone who goes by the rules and justifies an atrocious act because that’s what comes out of the rules—I have no doubt he is simply not working according to the rules; he is a fundamentalist. He can prove to me logically that this is what comes out of the rules, but he did not apply critical thinking and did not understand that here you had to do something—add some deferent. Where is that written? It’s not written anywhere. It doesn’t need to be written. You need to use your head.

As Wittgenstein says too—and I didn’t finish Wittgenstein’s example. What is the conclusion? One, two, three, four, five, next is minus seven and a third, or whatever you want. So what is the conclusion here? The conclusion is that overall, you cannot teach a person a rule unless he already knows it before you opened your mouth. When we say to someone—I’m teaching a child to count. We counted one, two, three, four, five, a hundred, nine hundred, a thousand, ten thousand, and so on. I reached ten thousand. Great, I said to him, we’ve finished the lessons, now you start counting. Fine, thank God he succeeded in business, he needs to count his money. He’s already got more than ten thousand. How does he continue counting? He didn’t learn that in class, but he learned the rule. Fine, I hear him, and I say to him, so come count the money in the register for me. He reaches ten thousand: minus seven and a third. That’s the next number. Wait, I don’t understand—I taught you ten thousand numbers, I pounded my brain and yours, and you still don’t get what I’m talking about? He won’t understand what you want. He’ll explain to me why that’s the sequence, just as I explained to you earlier: the sequence is one, two, three, ten thousand, minus seven and a third. I’ll show you the polynomial that gives it, my friend.

So how will you explain how one can teach a child to count? Only because within him there is already a conception of what counting is. If he were built differently from me—if he would construct that polynomial and not the polynomial n, yes, the sequence n, but some other sequence that gives me minus seven and a third—I would not be able to teach him this. All in all, I teach a person only things he already knows. He knows them, but they are inaccessible to him, he doesn’t know how to use them, but I reveal to him things or patterns that are already within him. Noam Chomsky the linguist, yes, speaks about the fact that within every person there is some set of linguistic abilities with which he is born. Because without that, language could not be created. We are born with linguistic capacities. Now within that one can build many languages. Right—there are many languages in the world, but they all obey some very flexible, very general set of language capacities that exists in all of us. Therefore an American who comes here can learn Hebrew, or vice versa. Because it’s all built on the same pattern, which is universal and exists in all of us.

In a certain sense, that is also what is happening here. This system of rules is a framework within which we maneuver. But okay—but maneuver. And we need constantly to keep an open mind. So if I just finish the introduction—I’ve finished the introduction—I’ll finish the introduction by saying: basically I began with the distress. There is a problem here, the exponential gap between what is right to do and what has to be done, okay? And it is growing in a crazy way all the time. Now when there is a large gap, and in a very large percentage of Jewish law, that is already a distress that cannot be ignored. But there are rules. The rules for how one changes Jewish law—Torah law, everything—you need to do it with a court greater in wisdom and number. And so every attempt to change always gets stuck. We don’t have the authority, we don’t have this, we don’t have that. And many times they create “we don’t have authority” even in places where we do. Never mind, we’ll bring examples of that too.

Today we do not have authority to do this exactly by Torah law. The Sanhedrin ceased in the year 114, the Great Court ended. We have no Great Court. We have no authority today to establish a Jewish holiday—I don’t know—Haredi, never mind, but Rabbi Shaul Yisraeli, who is not Haredi, closer to us. We have no authority today to determine what constitutes a communal need. Why don’t we have authority? What existed in the seventeenth century that doesn’t exist today? “The judge in your own days”—what do you mean? Never mind. In any case there are rules where indeed there is no authority—there is no Sanhedrin. But it’s a rule. And in a place where you understand that there is a serious problem here, you can’t apply that rule. So you depart from it. That is basically the framework.

Now I will show you that throughout the generations they departed from it, and afterward created epicycle-and-deferent rules to explain those departures. Since we always define this in interpretive terms—yes, that interpretation that says you don’t need to wear leather clothes, you need to wear clothes suited to the weather, and then there’s no problem. Then I explain to you why in fact I didn’t depart. But that is adding a deferent. Okay? And that’s what people do all the time. All I’m saying is that this has to be put on the table, and it isn’t bad, it isn’t terrible. On the other hand, one has to be careful, because it’s very easy to break the whole framework and be left with nothing. And in my view the Talmud is really the prototype: the desire not to break the framework, to put everything… to put some kind of framework, but to allow immense degrees of freedom within it. And I think that is a paradigm for all time. That’s what people are always doing; they just don’t say it. And the ethos is that we change nothing.

Abaye and Rava—that’s where I once brought what my uncle said, that Abaye and Rava studied in Yiddish. They knew how to learn, so obviously anyone who knows how to learn learns in Yiddish. What kind of question is that? Now obviously he himself doesn’t believe that, but the ethos is indeed essential. He is not stating it as a historical experience, but as a normative one. And we spoke about that earlier. Meaning, obviously, as far as I’m concerned Abaye and Rava studied in Yiddish. In today’s reality, Abaye and Rava too would study in Yiddish—that’s really what he wants to say. Meaning, there is a difference between what we do in practice—and in practice we are always making interpretations and things and departing from the rules and all that. All the greatest halakhic authorities, even the most conservative ones, do it—let there be no illusion—and they do it a lot. But in the ethos, we change nothing. We have rules, we have arguments, we have precedents, we do not budge. That’s the discourse.

And such a discourse has a price. It also has benefit. All the same, we do need to preserve the framework, as with the Talmud. And I do not disparage that at all, truly. I’m telling you: if people had gone all the way with what I am saying today, we would not be here. Truly, we would not be here today, unequivocally. As much as I think I’m right, huh? You broke a vessel—okay—so I need to check myself. Usually I check myself again if everyone agrees with me. But I’m saying that truly we would not be here today. I’m saying it very sharply because I know these are relatively unusual things to hear. Only because of that. And I’m relying on the fact that there are also enough people who will stop it, so that somewhere in the middle, it will build something right. No, really—it will build something right.

I’m not saying this is really how one ought to conduct oneself, because if you put it on the table and conduct yourself this way, nothing will remain. If they had done this eight hundred years ago, five hundred years ago, we would not be here today. That’s obvious. But if they had done what today’s halakhic decisors do, five hundred years ago, we also would not be here today. Then it would have broken from the other direction. If instead of sealing the Talmud they had sealed a Kitzur Shulchan Arukh, we would not be here today. And if they had sealed nothing, we also would not be here today. The game is to make a closure like the Talmud. Meaning, there are rules, but there is also common sense. Yes, exactly.

Now we have no Sanhedrin, and that is a terrible calamity. Just as today, if they were to build a Sanhedrin, I would run away to Australia—I already told you—but I know who would populate it today… yes, so I know who would be there, I told you. But on the principled level it is a historical pathology, because that is the role of a Sanhedrin. Why was this authority created? It was created not in order to preserve, but in order to change. But to change in a controlled way. Because if everyone does it, it’s chaos. Why do you need a Sanhedrin? You need a Sanhedrin because change is possible, not because change is impossible. It just needs to be done in a controlled way, by a body that will weigh considerations, with the best sages, with a multiplicity of voices, the greatest court possible, seventy-one people. Not for nothing—not a court of three. Because truly, in matters with which the Sanhedrin deals, you need seventy voices of many different kinds.

To change the rules or to change Jewish law? Both. To add epicycles, if you like—what difference does it make? In practice it’s to depart from the rules, so they will establish a sub-rule that here one may depart from the rule. That’s what they always did. It’s not… The concept of a Sanhedrin, the yearning for authority—people yearn for an authority that will be a Sanhedrin. I yearn for that authority so that it will change, not so that it will preserve. Today we don’t change because there is no authority to change, not because we are preserving due to lack of authority to change. To preserve? No—people say there are all sorts of people running wild; if there were a Sanhedrin then “do not turn aside,” whatever they determined, everyone would do, and it would be a marvelous world. Everyone would do what the Sanhedrin says. My hair stands on end when I think about it. But I look forward to a Sanhedrin so that it will be possible to change, not so that it will be possible not to change.

Now beyond waiting for a Sanhedrin, there is also what we can do ourselves. Before—and in any case it doesn’t matter, because what will happen doesn’t depend on what I hope for. But I’m saying that beyond hoping for a Sanhedrin to do it—that’s easy—there are things that can be done without a Sanhedrin, especially when the matters are really acute. So… welcome. Okay, we’ll apparently need at least one more session for this series. In two weeks. Agreed? Okay, great, that’s Rabbi Elgazi. In two weeks it’s not here, it’s Purim. It’s Shushan Purim. Obviously, Shushan Purim. Be blessed. Thank God.