Torah and Torah Study, Lesson 5

Table of Contents

• Tradition versus give-and-take: Rabbi Eliezer, the majority, and truth
• Stories and citations about majority versus certainty
• Rabbi Eliezer after the excommunication: Ammon and Moab, the study hall, and criticism
• The reliability of memory and interpretation: the “hollow pipe” as consciousness
• Testimonies, human error, and the rules in the Talmud
• Rabbi Akiva as synthesis and the resolution of the dispute
• Literal conservatism and midrashic conservatism: swimsuits and a winter coat
• “What does a Frank know about Maimonides?” and the Hutner–Seridei Esh exchange of letters
• Conceptual translation, authorial intent, and halakhic implications
• Moses in Rabbi Akiva’s study hall: a law given to Moses at Sinai as translation
• The Yom Kippur example: one unit versus separate moments, fasting versus the prohibition of eating
• Gaps between schools of learning: Ponevezh, the Chazon Ish, and Slabodka
• Replicating Rav Shmuel: fixation as the peak of achievement
• Damages and conceptual analysis: negligence in guarding versus “his property caused damage”
• Setting a dog on someone else, goring, and shifting liability from the animal to the owner
• Synthesis against dichotomy: the Pnei Yehoshua’s interpretation and intuitions

Summary

General overview

The text raises the question of what the tradition of Torah really means: is the sage a “hollow pipe” who simply passes on what he received without processing it, or does transmission itself require processing, elaboration, expansion, and interpretation as well? It places this tension at the heart of the confrontations surrounding the removal of Rabban Gamliel, the excommunication of Rabbi Eliezer, and the Oven of Akhnai, presenting Rabbi Eliezer as a clear representative of an unquestioning model of tradition, as opposed to Rabbi Yehoshua and the students of Yavneh, who uphold a Torah of debate and give-and-take. From there it develops the claim that the dispute is not only about rules such as “follow the majority,” but about whether truth itself can be negotiated, about modes of interpretation, and about the fact that even “tradition” itself is not neutral, but bound up with consciousness, memory, and changing conceptual systems.

Tradition versus give-and-take: Rabbi Eliezer, the majority, and truth

The text describes Rabbi Eliezer as someone who champions the model of “a cemented cistern that does not lose a drop” and never says anything he did not hear from his teacher, and therefore is unwilling to accept majority rule when he is convinced that the tradition in his hands is true. It argues that when two sides both assume they possess a tradition from Sinai, the natural assumption is that one of the traditions has become corrupted—but each side is certain the corruption is with the other, and therefore does not see voting as a valid means of decision. It presents Maimonides as writing that something which is a tradition from Sinai is not subject to dispute, and concludes that each side views its own position as beyond doubt, and therefore rejects following the majority, which resolves only cases of doubt.

Stories and citations about majority versus certainty

The text brings the Kotzker’s story about “And truth was cast to the ground” in order to argue that a democratic majority may decide against peace, but not “against the truth.” It cites the story of Rabbi Yonatan Eybeschutz and the priest to illustrate that one follows the majority only when there is doubt—like a piece of meat bearing a kosher seal, even if “most of the shops sell non-kosher meat.” It applies this principle to Rabbi Eliezer and argues that this is why he did not accept the majority ruling and was excommunicated, even though he brought proofs and even “Heaven proved him right.”

Rabbi Eliezer after the excommunication: Ammon and Moab, the study hall, and criticism

The text quotes the incident in tractate Chagigah in which the study hall concluded that Ammon and Moab tithe during the Sabbatical year, and Rabbi Eliezer says that this is a law given to Moses at Sinai and they could simply have asked him instead of engaging in pilpul. It describes his words as reassuring but also containing a rebuke: “Do not be concerned about your count” means that in this case they were right, but with no guarantee for the future. It suggests they did not ask Rabbi Eliezer because he was under excommunication, and connects this to passages in tractate Sanhedrin about visiting him on the day of his death, to the claim that he complained that they had not come to ask him, and to the question of how Rabbi Akiva did in fact come to him and what the limits of the laws of excommunication were.

The reliability of memory and interpretation: the “hollow pipe” as consciousness

The text argues that even someone who thinks he is merely transmitting tradition is not really neutral, because reading and transmission themselves already involve interpretation, sometimes without one even being aware of it. It gives an example from the world of learning: the statement that “this is explicit Talmud” depends on interpretation, and the very fact that there is a medieval authority (Rishon) who disagrees shows that the supposedly “explicit interpretation” is not necessary. It cites the Talmud in tractate Shevuot about Rav Ami and Rav Asi, who heard a halakhah from Rav and each swore to opposite versions, explaining that the second is considered coerced, because he was convinced that this is what he heard. From that it concludes that memory and personal perception color tradition even in the absence of any lie.

Testimonies, human error, and the rules in the Talmud

The text compares this to frameworks of courtroom testimony and war investigations in order to argue that no two witnesses describe the same event in exactly the same way, even without any intention to lie. It cites the Talmudic rule that contradiction in secondary details does not invalidate testimony when it concerns matters “in which people are liable to err,” such as mistakes in the lunar cycle, in order to show that Jewish law itself recognizes that human memory tends toward deviation. It uses this to establish that tradition is not necessarily made up of “pure facts,” but passes through filters of perception.

Rabbi Akiva as synthesis and the resolution of the dispute

The text states that in the end the historical decision came out in favor of a “Torah of give-and-take” and not in favor of the tradition-model of Rabbi Eliezer and Rabban Gamliel, even though Rabban Gamliel returned to a rotation of the patriarchate and Rabbi Eliezer remained excommunicated. It presents Rabbi Akiva as “the father of the Oral Torah” and as one who creates a synthesis: he studies with Rabbi Eliezer and does not understand, then goes to Rabbi Yehoshua who explains and enables him to understand, thereby combining tradition with explanation and conceptualization. It concludes that in practice everyone does what Rabbi Akiva does; the only question is how aware they are of it on the level of ethos and consciousness.

Literal conservatism and midrashic conservatism: swimsuits and a winter coat

The text defines two types of conservatives through a parable about nomads who walked through the desert in swimsuits and reached a cold region. It says that literal conservatism preserves the bottom line “as is,” and would therefore continue wearing swimsuits, whereas midrashic conservatism preserves the principle made explicit in the underlying meaning of the action, and therefore would put on a winter coat out of fidelity to the tradition of “clothing appropriate to the weather.” It maps this sociologically: Haredim as an ethos of literal conservatism, and modern religious people as midrashic conservatism. At the same time it argues that there is really no such thing as literal conservatism, because everyone changes, but the Haredi ethos describes itself as continuation “without clever reinterpretations.”

“What does a Frank know about Maimonides?” and the Hutner–Seridei Esh exchange of letters

The text cites an exchange of letters between Rabbi Yehoshua Hutner and the Seridei Esh, Rabbi Yechiel Weinberg, around the question of whether Rav Chaim’s interpretation of Maimonides is an invention or a discovery. It presents one position according to which “I’m not interested in what Maimonides said,” because Maimonides is a book, not a person. In contrast, it presents the Seridei Esh as claiming that Rav Chaim reveals what Maimonides said rather than inventing it. It sharpens an additional distinction: one can argue not only that the author has no authority over the interpretation of his own words, but also that even if authorial intent matters, the interpreter may know “better than he himself did” what he meant, by translating him into the conceptual system of his own time.

Conceptual translation, authorial intent, and halakhic implications

The text argues that translation into a different conceptual system is not just “Hebrew versus English,” but a move that uncovers deeper layers and creates practical differences, so that an interpreter may rule “according to Maimonides’ approach” even against what Maimonides himself would have said. It distinguishes between an ideological view that says “the legislator’s intent doesn’t interest me” and an interpretive view that does seek intention, but claims that the author himself did not fully understand the depth of his own words in later concepts. It presents this as a situation in which a new formulation reveals what was already “inside” the words, even if the author himself would object.

Moses in Rabbi Akiva’s study hall: a law given to Moses at Sinai as translation

The text interprets the midrash about Moses our teacher in Rabbi Akiva’s study hall to mean that Moses does not understand the Torah being taught until he hears “a law given to Moses at Sinai” and is reassured, because the tradition is being translated in a different study hall in a way Moses himself does not understand, or would not have formulated. It advances the claim that the translators in Rabbi Akiva’s study hall are “right” in translating the halakhah into their own conceptual system, even if Moses would not have agreed or would not have recognized it as his own formulation. It uses this to show that tradition can persist through conceptual translation that moves far from the original wording and still be considered faithful to its truth.

The Yom Kippur example: one unit versus separate moments, fasting versus the prohibition of eating

The text brings a conceptual dispute about a minor who comes of age in the middle of Yom Kippur: must he continue fasting, or is the day already “lost”? It ties this to the question of whether Yom Kippur is one unit or a collection of obligations at separate moments. It proposes a conceptual analysis according to which the distinction stems from defining the commandment as an obligation of fasting, rather than as a prohibition of eating, because fasting is defined across a span of time and not at a single point in time. It argues that within this framework the conclusion can flip: if the minor had already not eaten because of educational obligation, then his continued abstention from eating becomes a fast of a whole day, and there is room to say that he must continue fasting, even if formally the idea of “one unit” had been understood differently.

Gaps between schools of learning: Ponevezh, the Chazon Ish, and Slabodka

The text describes a personal experience of moving from a Ponevezh-style school to a Chazon Ish kollel, where “there is no shared language,” and the mode of analysis seems foreign and even “crooked,” and vice versa. It argues that a dispute is not only about a particular line of reasoning, but about an entire mode of thought, and therefore stopping and listening are not enough, because one is dealing with a conceptual system one has to grow into. It also describes another kind of fixation in Ponevezh, where only what fits certain logical schemas is accepted, to the point of an unwillingness to hear a different type of analysis.

Replicating Rav Shmuel: fixation as the peak of achievement

The text recounts that in a lecture on tractate Sukkah it became clear that the lecturer’s classes were identical to the published classes of Rav Shmuel Rozovsky. The lecturer claimed that he had neither seen them nor studied that tractate with Rav Shmuel, and was pleased that he had internalized the method so deeply that he independently produced the same approach. It presents this as an example of how a person can internalize a style of thinking to the point of reproducing its results without being aware of it, and as an example of an ethos in which success is measured by complete movement within a fixed pattern. It uses this to illustrate how a conceptual system shapes both understanding and intellectual production.

Damages and conceptual analysis: negligence in guarding versus “his property caused damage”

The text presents a yeshivah-style conceptual inquiry in tractate Bava Kamma: does liability for damages stem from negligence in guarding, or from the very fact that one’s property caused damage? It explains that in his view everyone agrees that both property and negligence are required; the dispute is over which component is the basis of liability and which serves as the exemption. It describes the dispute between the Pnei Yehoshua and the Chazon Ish on page 56 regarding the burden of proof when there is no evidence and the damager claims he guarded properly, and cites a common explanation that accounts for it in terms of the ground of liability. He adds an internal examination of the Chazon Ish’s words and argues that the Chazon Ish explains it differently: the very fact that damage occurred creates a presumption of negligence, and one who claims he guarded properly is making an implausible claim, so the burden of proof is on him, similar to the rule of “the thing speaks for itself” in civil law.

Setting a dog on someone else, goring, and shifting liability from the animal to the owner

The text brings the Talmudic topic of someone who incites another person’s dog against a third person’s ox, and presents an opinion among later authorities (Acharonim) and in the Pnei Yehoshua according to which even if someone incites his own dog, he is exempt—even though that seems inconceivable if liability is based on failure to guard. It proposes an explanation that requires a view according to which, in the case of goring, the basic liability is imposed on the animal itself, and is transferred to the owner only because the animal has no money. It brings an indication from the case of an ownerless ox that gored, where the injured party acquires the ox. It concludes that in the case of inciting the dog there is an “exemption” because the dog is not itself “guilty” of damage done through incitement, and therefore there is no liability on the animal that can be transferred to the owner, even if the person’s guilt is greater.

Synthesis against dichotomy: the Pnei Yehoshua’s interpretation and intuitions

The text proposes that the Pnei Yehoshua himself does not operate with a dichotomous model of “either negligence or his property caused damage,” but rather requires the accumulation of both conditions together, without hierarchy. On that basis, one can reconcile his rulings both regarding the burden of proof and regarding incitement. It argues that if one were to present the Pnei Yehoshua with the Brisker dichotomous inquiry, he might “throw up his hands” and give up one of the rulings, whereas a different system of analysis can uncover an internal consistency that justifies the original intuitions. It concludes that a conceptual explanation can show a person what he himself is really saying, and in that way save a tradition or a halakhic ruling from a “contradiction” that arises only because of an overly restrictive conceptual framework.

Last time I spoke about the ongoing debate over the question of what tradition means. Are we basically supposed to function as hollow pipes that transmit the Torah like a baton being passed from messenger to messenger, or does the pipe have some added value? Meaning, does it process the Torah that passes through it, refine it, expand it, spell it out, and then pass it on? I said that this was probably the focus of the upheaval on that day, when Rabban Gamliel was deposed, and Rabbi Eliezer was excommunicated in the story of the Oven of Akhnai. Rabbi Eliezer, who basically championed the hollow-pipe conception—right? He never said anything he had not heard from his teacher, he was like "a plastered cistern that does not lose a drop"—there are all kinds of sources showing that this was Rabbi Eliezer’s approach. He entered into a clash with his colleague Rabbi Yehoshua and with his younger students, Rabbi Akiva and Rabbi Elazar ben Azariah and the rest of the second generation at Yavneh, around this very question. They basically could not resolve the halakhic disputes between them. I said—I compared it a bit to Beit Shammai and Beit Hillel—because once you rely on tradition, you have no way to get out of a dispute. Each person brings what he heard, and there is no room for discussion. Meaning: this is what I heard, this is apparently what was given to Moses at Sinai, and there’s nothing to talk about. And the other person has the opposite tradition. So what do you do? There’s a dispute. A vote is not an option. I talked about whether it’s a quantitative majority or a qualitative majority, but I think here that isn’t necessarily the problem. Whether Rabbi Eliezer was called a Shammite in the sense of belonging to Beit Shammai, or a Shammite in the sense of being excommunicated. Rather, the real issue was whether one can negotiate over truth. Meaning, yes? Seemingly the question is: if the assumption is that both views are traditions from Moses at Sinai, then the conclusion should be that one of the traditions got corrupted. Seemingly, specifically a quantitative majority could give some indication for discovering the truth. Yes—but each side is convinced that it did not get corrupted. As Maimonides writes, regarding something that is a tradition from Sinai, a dispute never arose over it. So each side is sure that if it received a tradition, that is definitely the correct thing, and the other side is corrupted. So he is not willing to have votes. I’m right—what do you mean, votes? It’s like the story about the Kotzker. Did I mention that? The famous story about the Kotzker: the midrash says that when the Holy One, blessed be He, wanted to create man, He consulted truth, peace, and justice. So justice and peace were… the Holy One, blessed be He… and justice were in favor, I think, and peace and truth were against—that’s how I remember it, I don’t remember exactly. And then the Holy One, blessed be He, cast truth down to the earth, as it says, "And truth was cast to the earth," and by a democratic majority of two against one they decided to create man. So the Kotzker asks: why did they cast truth down to the earth? They could also have cast peace down to the earth—why specifically truth? And he says: because if they had cast peace down and truth had remained above, then there would have been a majority of two against one against the truth—but against the truth, a majority is of no help. Meaning, in that sense—yes, I also spoke in another context about the story of Rabbi Yehonatan Eybeschutz with the priest who said to him: why don’t you go after the majority? After all, we’re the majority. So he answered: I go after the majority when I’m in doubt. If I’m not in doubt, then there is no point in following the majority. Like a piece of meat that I find in the market, where most of the stores are non-kosher, but the piece of meat has a kosher seal on it. So what am I supposed to do now? Should I assume the meat is non-kosher because most of the stores are non-kosher? No, because if I’m not in doubt, I don’t go after the majority. Majority is a rule for resolving doubts. Now if each person who holds a position is convinced he is right, then he doesn’t care if the majority vote goes against him; he will not be willing to accept the verdict. At least from Rabbi Eliezer’s side, that is explicitly what happened. It’s clear that that’s what happened there. He was not willing to accept the majority against him, because he said: I am right. Heaven proved that he was right, and he also brought proofs. I said this began with the fact that he brought proofs—how does it go there? He brought every argument in the world, something like that, and they did not accept them from him. And then comes the fundamental principle. That’s my topic today, so I’ll sharpen it a bit more. Rabbi Eliezer says: I’m telling you the facts—this is what I received from my teachers, and my teachers from their teachers, all the way back to Moses our teacher at Sinai. I’m not interested in all your dialectics. And he was unwilling to accept the rule of the majority, and therefore they excommunicated him. And afterward we saw this also in the story in tractate Hagigah, where he asked whose Sabbath gathering it had been and what new thing had been taught in the study hall, and Rabbi Yehoshua was very enthusiastic about the democratization that had taken place there, but Rabbi Eliezer told Rabbi Yosei ben Durmaskit that he had invented the wheel. Meaning, after all, if they had asked—they debated and debated and came to the conclusion that Ammon and Moab tithe during the Sabbatical year. And he told them: this is a law given to Moses at Sinai, I could have told you that. You’re doing all this dialectic there, trying to arrive at the correct Jewish law, when I have the facts— you could simply have come and asked. You see this all along the way, that this really was probably the central point of the dispute. In the end, I said briefly at the end, this dispute was apparently decided in favor of the Torah of give-and-take, not the Torah of tradition of Rabbi Eliezer and Rabban Gamliel. Rabban Gamliel himself repented, which is why they restored him to the rotation of the presidency, but Rabbi Eliezer remained excommunicated. So what about the status of Moses at Sinai? Sinai tries… But if you have someone who brings you a tradition and you have a rational proof that it isn’t correct, what do you do? No, it’s supposed to be, theoretically, if the tradition is a correct tradition and the give-and-take—who says it’s correct? That’s the question. If it were correct, people wouldn’t argue about it—people did not come to invent Torah, that’s obvious. Meaning, if it had been clear to them that Rabbi Eliezer’s tradition was correct, I assume no one would have argued with it. It’s just that there is a contrary tradition. Or a contrary line of reasoning. A contrary line of reasoning, yes, yes. If that tradition doesn’t make sense rationally, then I think it’s probably not reliable. Like Rabbi Chaim—I mentioned Rabbi Chaim, who says there is no Tosafot. What does "it exists" mean? But it could be that it got corrupted. It could be that it got corrupted. And if I have good reasoning against it, then that itself raises the question whether maybe it got corrupted. Maybe someone along the way had the opposite reasoning and arrived at this conclusion. Only if I have a contrary tradition can I argue. No, no—in the story there too, did the dispute begin from a contrary tradition? It doesn’t say what this tradition was. What really lay at the root of the matter—if there really was a good argument against it—I have no idea, it’s not recorded what the arguments were there. It says Rabbi Eliezer said—it seems pretty clear that he went in the direction of tradition, of heavenly confirmation by mystical means. What Rabbi Yehoshua said against him, I don’t know. But the fact is that Rabbi Eliezer brought every argument he had, and they did not accept them from him. So it seems their dispute with him was based on reasoning—that is, what he said did not seem logical to them, and therefore they demanded to put it to a vote. As for Ammon and Moab, that is something else. Rabbi Eliezer—they did not think that Ammon and Moab should not tithe, so why didn’t they ask Rabbi Eliezer? And indeed that—they didn’t think that; there was a dispute in the study hall, and in the end they concluded that Ammon and Moab tithe during the Sabbatical year. Was there prior knowledge? Who says? No idea. Again, I don’t know; it’s not recorded, one can guess. It doesn’t say. There was a dispute in the study hall or a clarification—I don’t even know whether it was a dispute—but they reached the conclusion that Ammon and Moab tithe during the Sabbatical year. So Rabbi Eliezer tells them: if you had asked me, I would have told you this is a law given to Moses at Sinai. Now there, in that case, he tells them: do not be concerned about your count. Meaning, do not be concerned means: you were right. Meaning, after all, you could worry, because you reached the conclusion by reasoning—who says you were right? I can reassure you. But it’s reassurance that comes with a sting, with criticism. Meaning: I’m reassuring you—don’t worry, in this case you happened to hit the mark. But who guarantees that next time you’ll hit the mark too? It’s clear that there is an approval here that carries criticism with it. And that’s why he blinded him in the end. Or rather, it wasn’t just approval—he blinded him because he was so angry about this matter. Now in that particular case there is another point. It could be that even if they had no doubt, they still did not go ask Rabbi Eliezer because he was excommunicated. After all, he criticizes them also on his deathbed, in the passages in Sanhedrin, asking why they didn’t come—aside from Rabbi Akiva, who did come—but the others did not come. Why didn’t they come? Because he was excommunicated. You can’t talk to him. Now in such a situation, even if you are open to hearing every view, you still don’t go ask him, even though he possesses a law given to Moses at Sinai that is beyond question—you don’t go ask him, and then you are basically stuck. So you vote and arrive at a conclusion. And there, it could be they did not even have a contrary tradition against the reasoning. I don’t know—I’m saying, maybe yes and maybe no. I’m only saying that after Rabbi Eliezer was excommunicated, the situation might have been even worse. Meaning, perhaps they didn’t even have contrary reasoning. Rather, they simply didn’t know the law; they tried to clarify it by one means or another and arrived at some conclusion. It could be that if Rabbi Eliezer had been there and had told them, "This is a law given to Moses at Sinai," they would have accepted it in that case, because they did not have some strong reasoning against it—maybe. I don’t know. It’s just that in that case it was already after Rabbi Eliezer had been excommunicated, so they could no longer ask him. And that’s what he criticizes them for—he says, you’re doing all this dialectic there, also on his deathbed, not just in the passage in Hagigah that we saw. I also mentioned the passage that on his deathbed—there are two passages in Sanhedrin—when they came to visit him on his deathbed, because apparently the excommunication was lifted upon his death, they apparently decided to lift it. So he complained: why didn’t you come ask? Meaning, it’s clear that there they did not refrain from asking because they thought he was wrong; they didn’t even know what he said. They simply didn’t go ask him because he was excommunicated. When someone is excommunicated, you don’t speak to him. What? I said I don’t know, I have no good explanation for that. He himself says, notes, that Rabbi Akiva did come to him. I don’t know how that could be, really, if he was excommunicated. Maybe he sat at a distance from him or something? Fine—but still, why didn’t everyone come and sit at a distance? I don’t know, there is something here that… And maybe there was a dispute. Yes, maybe there was a dispute in the laws of excommunication—whether one may come to a rabbi who is under excommunication in order to ask him a question of Jewish law or not. Could be. Really, I don’t know. Sorry—why was he excommunicated? What did he do that led to… I spoke about that in the previous class. Because he refused to accept the majority opinion. He had a tradition, and he said: if this is the truth, I’m not interested in what most people say. What difference does it make? Against the truth there is no majority. Okay. The very fact that they managed to hit the truth is confirmation of their modes of thought—that it wasn’t just a shot in the dark but… No, that’s why he told them: on the one hand, he did give them some confirmation, because he said to them: look, in this case you happened to hit upon a law given to Moses at Sinai. On the other hand, there is clearly also a rebuke here: what are you doing all this dialectic for, if you can come to me and I’ll tell you the answer? After all, next time you may not hit the mark. Yes, but when it’s something that has no answer—even he himself didn’t get everything from tradition, so now there must… No, no, clearly from the context it seems that from his standpoint everything was with him. There was no question he had trouble with. Again, that’s how the Talmud presents it. Of course, all that can only be on a general level, but maybe there were indeed questions that he did not… I don’t know. But as an approach, his principled approach was apparently that he held everything. A plastered cistern that does not lose a drop—he held everything. There, he knows everything from tradition; maybe there is no need to think about anything at all. Rabbi Eliezer the Great, supposedly, wasn’t meant to think at all; he was only supposed to search—meaning, sort and know how to retrieve the answer and transmit it. Well, it’s a little strange to think of a sage who basically does not see his role at all as someone who is supposed to think about anything, but rather as just a repository of information. By the way, many times—maybe I’ll talk about this in a moment—many times when you ask a person what he does, he’ll tell you: what do I do? I just look for information, I don’t add anything of my own. But if you actually look, you’ll see that there is interpretation going on here. Meaning, there is some added value that he himself is putting into the matter; it’s not really a neutral search. Yes, many times someone comes and says: what do you mean, the Talmud explicitly says such-and-such. But what can I do if there is a medieval authority who disagrees with him, and there is a dispute among the medieval authorities? And he says: no, I read the Talmud differently. So what you are telling me is an explicit Talmudic statement, I’m telling you is an explicit Talmudic statement according to the way you interpret the Talmud—but it can also be interpreted אחרת, it can be interpreted differently. It’s not really explicit in the Talmud. From your point of view, that’s what the Talmud seems to say to you, and that’s fine. And therefore, quite innocently—I’m not saying you are deceiving anyone—but many times a person doesn’t feel it. He doesn’t really feel that when he looks at the Talmud, he is not seeing only the Talmud; he is seeing the Talmud as he understands it. And sometimes that is not what the Talmud says, or not necessarily what the Talmud says. And all the more so when these are things that were said orally. With things that were said orally, after all, we know—there is a Talmudic passage in Shevuot. The Talmud there brings—I think I mentioned this—that Rav Ami and Rav Assi heard a certain halakhah from Rav, and each one swore that he heard what he says, and it was the opposite. Meaning, one swore that he heard X, and the other swore that he heard not-X. Then they returned to Rav and asked him who was right. So he told them that one of them was right—the Talmud doesn’t say who, because that would be slander—so one was right and the other was mistaken. Then the second one asks Rabbi Yohanan: so what, did I swear falsely? What? So he says to him: a person’s oath—except for one under compulsion. Meaning, that is called being under compulsion. Well, don’t swear—why jump to swear? No, he was sure he was right. Again, like what I said about all this: he was convinced he was right. Meaning, from his own personal perspective, that is what he heard from Rav. Meaning, he doesn’t… he has no… What? An example, according to the same principle, of the classic case of unintentional wrongdoing? That’s someone who didn’t… Not exactly. Because the classic case of unintentional wrongdoing is someone who didn’t know the law, right, but here he knew—he was sure it was permitted. What? You’re saying that "I thought it was permitted" is not unintentional wrongdoing? "I thought it was permitted" is a major question in the Talmud—what his status is. Because "I thought it was permitted" is not someone who simply doesn’t know the law. He does know—or rather, mistakenly, doesn’t matter—but in his own perception he knows. If you know, then you are allowed to rely on that, because that really is what you think. If you don’t know, then why are you making assumptions? Then behave according to the laws of doubt. So if you act differently, it could be that you’ll only be considered unintentional, and not "I thought it was permitted." You understand? But if you know, then that is called "I thought it was permitted." So there this is an example of two people saying opposite things; both heard it from their teacher and report what they heard from their teacher, and each says the opposite of the other. And he swears on it, and the Talmud says he is considered under compulsion. Why is he considered under compulsion? Because when he swore, he wasn’t just jumping in and swearing—he really was convinced that that is what he heard. Meaning, we learn from here that many times a person hears something from someone, some law, or reads some law in the Talmud—it doesn’t matter in which source—and it is obvious to him that this is what he… and he doesn’t notice that this "obvious to him" is saturated with assumptions that he brings with him from home. Actually, it is not necessarily explicitly present in the source, whether oral or written. And therefore even if Rabbi Eliezer was convinced that he heard everything from his teachers and that he was really just an object—a vessel—meaning, he didn’t need to think at all, I tend to think that he really was not just, yes, some kind of computer searching for information. Rather, what? That was his consciousness. Meaning, even when he interpreted what he heard from his teachers, it was obvious to him that this is what they meant. Meaning, he was not at all willing to consider the possibility that maybe this is your interpretation—but who says you are right? And many times that’s how it is; it’s an everyday occurrence. It’s not some far-fetched explanation. I think these are simple things. This is how it often happens. We are convinced: this is what we heard, this is what we read, this is what it says here, it’s obvious. Suddenly someone comes and says: what are you talking about? I heard the opposite, or it says the opposite here. So that means that something of me, too, is present in what I am saying, even though it seems to me that I simply got it from that source. That is what he said. And this also appears in investigating wars, events in wars—you hear from the same people about the same event—not only wars, just as a lawyer, testimony in religious court, in a civil court. No, and not only that—even witnesses who are not lying, I don’t know, in court. I’m saying that in court, someone who saw from one angle can see a different story. There are no two witnesses who tell it the same way—people with experience tell me this. There are no two witnesses who tell the story in the same way. You don’t remember something a minute after it happened—you’ve already colored in your mind some kind of situation, and it’s unclear what of it was fact and what of it was your own coloring. Really, I was told this almost never happens—you always find differences between testimonies at one level or another. Also in the Talmud itself, by the way, there is this—the Talmud talks about contradiction in detailed questioning or formal interrogation, and the Talmud says there are things where even though there is contradiction, it does not disqualify the pair of witnesses, because these are things that people commonly make mistakes about. Meaning, the day of the week or the day of the month—whether it was the seventeenth of the month or the eighteenth of the month—if there is such a contradiction in testimony, it may not necessarily invalidate it as a contradiction in the detailed questioning, because there is a presumption that people make mistakes about the intercalation of the month. So the claim, basically—and this is the point I now want to move on from; until now I was just more or less summarizing—but what I want to continue with is this: even when we talk about a Torah of tradition, the question is what counts as tradition. Is it really as-is? Meaning, is it really a hollow pipe? Or is it only the consciousness of a hollow pipe? Maybe I’ll say—maybe I’ll give an example. Maybe before I give the example, one more thing I said last time: I said that in the end, all of them were according to Rabbi Akiva, and Rabbi Akiva is considered the father of the Oral Torah. What distinguishes Rabbi Akiva on this axis? So I said: the Mishnah in Sanhedrin—the Mishnah on which this visit to Rabbi Eliezer on his deathbed is brought—the Mishnah begins by saying that Rabbi Eliezer would teach three thousand, I think, or three hundred—I don’t remember—laws about cucumbers, meaning sorcery, a kind of sorcery in cucumber fields; they used to perform sorcery there, I don’t know exactly what. He had three hundred laws relating to sorcery with cucumbers. Okay. And the Talmud says that Rabbi Akiva learned this from him. Then the Talmud asks: but wait, doesn’t it say that Rabbi Akiva learned this from Rabbi Yehoshua and not from Rabbi Eliezer? So the Talmud answers: he learned it by Rabbi Eliezer but did not understand, and then he went to Rabbi Yehoshua, who explained it to him, and then he understood. And that really expresses the synthesis that Rabbi Akiva makes between these two poles. Yes, there is a thesis, antithesis, and synthesis. The thesis is Rabbi Eliezer—the Torah of tradition. The antithesis is Rabbi Yehoshua, who was the leader of the rebels—yes?—whose Torah is a Torah of give-and-take. And Rabbi Akiva basically creates some kind of synthesis: you take the tradition, but you interpret it or explain it, and that is what determines the Jewish law. Or in other words, I would say: everyone actually does what Rabbi Akiva does. The whole question is how aware we are of it. It is more a question of ethos than a question of what we really do. Meaning, Rabbi Akiva was simply more sober, and he understood that even Rabbi Eliezer, who thinks he takes everything as-is like a hollow pipe—that isn’t true. There is always something in the middle that is interpretation. So one has to understand how to create the proper combination, the right dosage, between tradition and interpretation, and somehow those two things need to work together. So once we talked about changes in Jewish law, and there I defined two types of conservatives. I called them the simple conservative and the midrashic conservative. I gave the example of the group that walks around in bathing suits because their ancestors walked in bathing suits in the desert, and eventually they reached a cold area. So there are those who say: okay, now it’s cold, so we… they’re no longer conservatives. What? They’re no longer conservatives—why did they leave? Leave to where? They left the desert—they need to stay in the same place. No, no, the tradition was to keep walking. Wherever your feet take you—nomads. So anyway, one group says: fine, cold is cold, but we have the tradition of our ancestors in our hands; we walk in bathing suits. Just as our ancestors walked in bathing suits. We too continue to walk in bathing suits even though it’s cold. Another group says: no, it’s cold, so we put on a parka. Then I said the question is why they are putting on the parka. What is their reasoning? If their reasoning is: well, it’s cold, I don’t care about the tradition of my ancestors, then they are not traditional, they’re not conservative. But if they say: it’s cold now, and therefore I wear warm clothing, because the tradition of my ancestors is not to walk in bathing suits, but to walk in clothing suited to the weather. That is the tradition of my ancestors; it’s just that for them it was hot, so clothing suited to the weather meant a bathing suit, and for us, since it’s cold, clothing suited to the weather means warm clothes. So because it’s cold, this is the correct way to preserve the tradition of our ancestors. I called this midrashic conservatism as opposed to simple conservatism. Simple conservatism is preserving what my ancestors did as-is, without interpretations, without anything—what was, was. Midrashic conservatism makes a midrash out of what my ancestors did and preserves the midrash, not the bottom line. Okay? Then afterward I think I spoke a bit—this is generally how I operate, I no longer remember what I said where—about how to identify these groups in our own reality. Then I said there are Reform, heretics, secular people—other groups I’m not discussing. I’m talking among conservatives. And among conservatives, simple conservatism would be, say, Haredim, and midrashic conservatism would be modern religious people. Okay? More or less that is the matching sociological division. Now what else I said was that there really is no such thing as simple conservatism. Meaning, Haredim are not really simple conservatives. It is obvious that no clear-eyed Haredi thinks he serves God today in the same way Maimonides did, or Rabbi Akiva did. Obviously not. He doesn’t wear the same clothes, he doesn’t do things in the same way—obviously, things change, and everyone understands that. But the Haredi ethos is an ethos of simple conservatism. Meaning, the ethos within which you operate, even though if you are sober you understand that it’s not really literal. But still, it’s not just empty slogans for public consumption, that everything came down to Moses at Sinai and Moses our teacher wore a gartel and all sorts of things like that. Those are jokes, but they are jokes that reflect a real ethos. Meaning, that we are basically continuing the tradition as-is, without cleverness, without sophistication—we continue it just as it is. And we know that isn’t literally true, but the ethos is such an ethos. Meaning, there really is a tension between Rabbi Eliezer’s conception of himself and what he actually did. Because what he actually did—obviously, he also interpreted and did not merely transfer things from place to place. But in terms of his ethos, his ideology or his conception of what he was doing, he understood it as only as-is. He takes what his ancestors said and applies it to what happens in life. Meaning, he isn’t putting in anything of his own. Yes, that’s an example of the same issue. Now here the real question that arises is how exactly to describe this development I’m talking about here. Meaning, this relation between tradition and interpretation. There is a very interesting exchange of letters between Rabbi Yehoshua Hutner, one of the founders of the Talmudic Encyclopedia—not Yitzhak Hutner, Yehoshua Hutner—and the Seridei Esh, Rabbi Yehiel Weinberg. So they have an exchange of letters there, in which it seems to me—I no longer remember who said what—but it seems to me that Rabbi Yehoshua Hutner said, I think, though I’m no longer sure, yes—the famous joke, what does a Frank know about Maimonides? You know that one? Yes—so we say Torah insights from Rabbi Chaim with sharp, incisive distinctions in Maimonides, with magnificent conceptual structures. Then Maimonides himself comes and says: listen, that’s not what I meant, what does that have to do with what I wrote? And they tell him: leave it—what does a Frank know about Maimonides? Meaning, the conception behind this. I mean beyond the racism, I mean the principled conception behind it. It is that I am not interested in what Maimonides said. Meaning, if this is how I interpret it, then for me that is Maimonides. Maimonides is a book, not a person. Meaning, the person has no… like Agnon and Kurzweil and all those famous stories. Once an author writes a book, the book belongs to the public; you no longer own it, and you are no longer the authority to interpret it. Okay? Now, the Seridei Esh basically argued against him—or maybe it was the reverse, I no longer swear who said what—the Seridei Esh argued against him that this is not a correct argument. Meaning, Rabbi Chaim does not invent things out of nowhere. Rabbi Chaim uncovers what Maimonides said. That is his claim. Now I don’t think—and the Seridei Esh was a very clear-eyed Jew and also a kind of scholar; after all, Seridei Esh volume 4 is really research. My son was in Be’er Yaakov, in the Grodno yeshiva there, and in all innocence he went to the spiritual supervisor and asked him: tell me, where did Seridei Esh volume 4 disappear to? He was looking for volume 4. And there was some elderly mashgiach there, very conservative, and he got angry at him: what do you mean? They took it out of the library. Seridei Esh volume 4 is research—it doesn’t belong in a yeshiva library. Research by the Seridei Esh, not by some Professor Yankelovich. In any case, the Seridei Esh says that Rabbi Chaim basically uncovers what Maimonides says. It’s not true that Rabbi Chaim is inventing things and that what he says has no connection to what Maimonides meant. Now this does not mean—and this is the point I want to explain—it doesn’t mean that if Maimonides himself were here he would agree. No. The Seridei Esh too can say: what does a Frank know about Maimonides? Meaning, it could be that if Maimonides were standing here and saying: no, no, no, that’s not what I meant, then Rabbi Chaim would say: sit on the side, I determine what you said. But no—even that can be understood in two ways, and that’s what I mean relative to what we said before. One way to understand it is: Maimonides is not a person, he is a book. Meaning, what is written in the book is what determines, and what you intended interests no one. That is the conception that basically disconnects the interpretation I offer from the author’s intention. I am not even claiming to hit the author’s intention; it doesn’t interest me. But there is another possibility, and that possibility basically says: I translate what the author intended into the language or forms of thought current today, into the conceptual system current today. Now it could be that the author himself, if he came here and heard what I explain in him, would say: absolutely not, I don’t agree—but he would be mistaken, not me. He would be mistaken—not that I don’t care what he says, that’s not right. In translation into today’s language and today’s mode of thought, I know better than you what you intended. In truth, if you were living in our world, in our mode of thought, and you were thinking about this question, you would understand that what I am saying is what you meant. I once mentioned this nice insight of Rav Kook: after the Sochatchover passed away, he wrote a condolence letter to his descendants, and there he writes that about Rabbi Eliezer it says, on the one hand, that he never said anything he had not heard from his teacher, and elsewhere it says that he said things no ear had ever heard. So how can that be? If he never said anything he hadn’t heard from his teacher, then how did he say things no ear had ever heard? So he says: it means that he heard from his teacher things no ear had ever heard. Now I would add: not even his teacher. Meaning, he heard from his teacher things that even his teacher had not thought of—not only that others had not heard them. And this is Rav Ami and Rav Assi: it can happen that people hear the same thing and understand it in different ways. I am claiming that even the speaker himself did not think of what I interpreted. So does that mean I erred? No. It may be that I understood him better than he understood himself—at least when I translate it into the language and forms of thought found in my own study hall. So that’s what I want to say. Many times the person himself does not fully understand what he himself means. Meaning, if he were rooted in our forms of thought and our conceptual world, he would understand that Rabbi Chaim’s formulation really is the depth of what he meant. In translation into our language, that really is what he meant. Now sometimes this can have halakhic implications; it isn’t only a question of translation and that’s it, of speaking Hebrew or English—just a matter of language and conceptual framework. Sometimes there is a translation that has halakhic implications, and then I will rule according to Maimonides against what Maimonides himself says he intended—and I will be right, not him. By the way, that is also the case in the interpretation of statutes, when you come to interpret a law. Yes, but there it’s because of a principled conception that I am not interested at all in what the Knesset thought, because what determines is the written law. Right, but I am speaking about something else. That is the second conception, an ideological conception. I’m talking about a hermeneutic conception, not an ideological one. A hermeneutic conception says: I do want to know what Maimonides intended, but I know better than he does what he intended. That is a different conception. I think the story that illustrates this most powerfully is the midrash about Moses our teacher in Rabbi Akiva’s study hall. Yes, where he arrives in Rabbi Akiva’s study hall and his mind became weak—he understood nothing. He sat at the end, twenty rows back, and understood nothing. And then in the end he heard, "This is a law given to Moses at Sinai," and he calmed down. Why did you calm down? You understood nothing. A law given to Moses at Sinai? They’re inventing things and saying it’s a law given to Moses at Sinai—so why are you calming down? Here is where you should really start panicking now. But there was only one point that was a law given to Moses at Sinai—that’s how I understood it. I didn’t understand. I understood that there was one law that was a law given to Moses at Sinai. What about everything else? Why does that calm him? Not at all. They said those very things he didn’t understand were a law given to Moses at Sinai, and then he calmed down. Why are you calming down? The point is that a law given to Moses at Sinai, as you said it, is interpreted in Rabbi Akiva’s study hall in such a way that even you yourself do not agree with it or do not understand it—depending on what happened there, whether he did not agree or did not understand—but they are right. That really is the correct translation of a law given to Moses at Sinai into the language and conceptual system current there. And that is really the claim. And again, it may have halakhic implications. It may have halakhic implications; it’s not just emptying one language into another, from Hebrew into English. Rather, when you analyze things in a different conceptual system, you will get different implications. Let me perhaps give you an example. A more advanced conceptual system or simply a different one? Both. I think it is also more advanced, but you know, I belong to this period, so it’s no trick that I think we are more advanced. It could be that we have built another layer and another layer. That’s what I think. I mean, maybe I’m mistaken, I don’t know. What? It seems to me there is, within what we discussed, maybe three kinds of… There—you’re already doing exactly what I’m talking about. Yes, exactly. Meaning, there is one level of interpretation which is trying to understand the intention exactly, separately from the wording. Sometimes a person phrases something, and it doesn’t quite come out as what… what comes out is something whose literal meaning is different from what he intended. The second thing is the part that spoke about translation. Meaning, if Maimonides says something in a certain formulation, within one conceptual world, and I formulate it differently. But if I derive from that different laws, that’s not translation. Obviously. My claim is that the distinction between those two possibilities is not sharp. Many times you are essentially translating it or emptying it into a different conceptual system. Seemingly you are only translating, but suddenly you discover that there is a practical halakhic difference, and then it is no longer just translation. But on the other hand, my claim is that I am right. I made a translation; you are mistaken. What I did is indeed translation, and my result is the correct result from your words, and you are mistaken when you derive your result from your own words. That is the depth of what I am saying. Meaning, the point is that I claim it really is translation, even though there is a practical difference. And therefore I claim that I am right and you are wrong. Because my translation exposed something that was inside your words, and as long as you did not translate it into this conceptual system—since you do not belong to that conceptual system, you do not know it—you yourself did not understand the depth of your own words. So maybe it isn’t right to call this translation; maybe it’s just drawing further conclusions and developing them. No, but it is a way of formulating the same thing in a different conceptual system. It isn’t deduction like in geometry. You take the axioms, build a few theorems derived from them, then build a few theorems derived from those theorems—that is called continuing onward. I’m not talking about that. I’m talking about formulating the same thing in a different conceptual system and suddenly discovering things that were not exposed before in the earlier formulation. Let me give you an example. I once thought about this casually; maybe it’s a good example, let’s try it. There is a dispute over what happens if a person, from his point of view, is relevant to a fast only for part of the day—say Yom Kippur. Okay? For example, a minor who becomes an adult in the middle of Yom Kippur. Fine? So the question is whether he should fast the rest of the day until the end of Yom Kippur, or whether it’s already lost for him, he has already missed that day. So there is one formulation, the logical-mathematical one, yes, which says the question is whether Yom Kippur is made up of parts or whether Yom Kippur is one unit. Is every single moment a separate obligation, or is Yom Kippur one unit? And the practical difference: if every single moment is an obligation unto itself, then even if I missed some of the moments at the beginning of the day, the remaining moments are obligations in their own right. Why shouldn’t I fulfill them? If I didn’t do the… yes, "should one who ate garlic go on eating garlic?" The fact that I didn’t do the first parts—does that mean I shouldn’t do the later parts too? If it is one unit, then I’m done for. I can no longer do a whole day, so there is no point. Well, here I’m not… one can discuss a half-measure regarding positive commandments. But in principle there is no point in doing it any further. Now, that is one formulation. Now I ask myself: according to this, it comes out—yes—that a minor who becomes an adult in the middle of Yom Kippur, if I hold that it is one unit, then he should not have to fast the rest of the day that remains for him as an adult. Right? Now I ask myself the following question: why assume that it is one day and not made up of parts? The question of why… Now usually, following Rabbi Chaim, people are not accustomed to ask "why." Why define the obligation of Yom Kippur at all in such a way? What are the two sides here? So I’ll suggest an answer. One possibility—why see each moment as an obligation unto itself? Because there is a prohibition of eating for twenty-four hours; every single moment you are forbidden to eat. But in order to define it as one unit, the claim is that it is not at all a prohibition of eating. It is an obligation of affliction, of fasting. Right? "And you shall afflict your souls," the Torah says. It isn’t a prohibition of eating; it is an obligation of fasting. What, and is it not both? A positive commandment and a prohibition? No, I’m not speaking in terms of positive and negative commandment. As far as I’m concerned, let there even be a prohibition—a prohibition against breaking the fast. No, the distinction is not between positive and negative, but between what I am supposed to achieve. Am I supposed to achieve non-eating, or am I supposed to achieve fasting? What’s the difference? Non-eating is simply refraining from an action. Refraining from action at this moment and at that moment—there is no connection between the moments. But fasting—someone who doesn’t eat for one moment is not fasting. To fast is always over an interval, yes, over some span of time. Right? If for one moment of the day I don’t eat, am I fasting between breakfast and lunch? That is not called that I am fasting. At that moment I am not eating. So if the definition is "do not eat," then right—at that moment I am not eating. But if the definition is fasting, then by definition fasting is a day-fast. One needs to fast a day. To fast a day does not mean not eating at this moment and this moment and this moment; it means that there was not a single moment in the day when I ate. A whole day with not a single moment in which I ate. Therefore, the claim that this is one unit is based on the conception that the eating prohibitions are actually obligations of fasting; they are not prohibitions of eating. Okay? Can’t I fast now for five minutes? Won’t that be… You can, but the Torah says that the fast required of you—no, the Torah says the required fast is from evening to evening. But if I am fasting, every single moment I am fasting. I am fulfilling a commandment of fasting. No, no—you are fulfilling the commandment not to eat. Fasting is not one moment of not eating. Practically it is the same thing. Not at all. Fasting—that’s exactly the point. Fasting is by definition over a stretch of time, not at a point in time. At a point in time you are either eating or not eating. Fasting is only duration. A stretch of time that I can define however I want. Right, but the Torah defined it as twenty-four hours. So here, in this specific case, it didn’t have to be that way. In this specific case, the Torah defined it as a fasting obligation of twenty-four hours. Okay? Now if indeed that is what lies behind the conception of fasting as one unit and not as a collection of moments, then that is really the dispute. It is not a formal logical dispute over whether each moment stands alone or whether it is one unit. That is only the consequence. What lies behind it is the question whether these are prohibitions of eating or obligations of fasting. Okay? Thank you. Now let’s return to our question about the minor who becomes an adult in the middle of Yom Kippur. I claim the conclusion reverses. Earlier I said that if it is one unit, then there is no point in his continuing to fast, right? Now I ask: what was he doing until that moment? He also wasn’t eating, right? By the law of education. In general, Yom Kippur has a special educational commandment, right? So if that’s the case, if he continues not to eat, then he is fasting. Because in the end, he really did not eat all day. True, in the first part of the day he did not fulfill the commandment of fasting because he was not yet bar mitzvah. But in the rest of the day, when he does not eat, that will be fasting—it won’t merely be non-eating. Since in the end he did not eat all day. So if the definition is fasting, then the minor actually does need to continue fasting. Exactly the opposite of the conclusion in the earlier formulation, even though it is a formulation of the same thing. So imagine, say, that in Maimonides it was written—yes, this isn’t his style of thought, but suppose Maimonides wrote that Yom Kippur is one unit, and Rashba says it is each moment separately. Fine? By the way, that actually… Rashba—Ben Zion brings a Rashba like this. It’s the only medieval authority in whom an explicit statement appears about this question, whether it is each moment or one unit, and in Rashba, I think, it says that it is each moment, unless I’m remembering incorrectly. In any case, it doesn’t matter. But suppose Rashba says it is each moment, and Maimonides says it is one unit. What would the logician-formalist say? Fine—according to Maimonides the minor does not have to continue fasting. Right? Now I ask myself, wait—let’s try to understand what Maimonides said. What Maimonides really said is that it is one unit, because he understands the obligation as an obligation to fast, not a prohibition to eat. But this minor, until he developed the signs of adulthood, was also fasting—by the law of education, granted, but he was fasting. So what is the problem? Then if he continues not to eat, that won’t merely be non-eating; it will be fasting. So yes—he should continue not to eat and thereby fulfill a commandment. Okay? The other side does not necessarily reverse. There is room to discuss it. The other side does not necessarily reverse, although perhaps there is room even there to reverse it, but that is not important for the main point. Now let us imagine the following situation. Maimonides comes here and I ask him what the law is. Fine? A minor who becomes an adult in the middle of Yom Kippur, developing the signs of adulthood in the middle of Yom Kippur. Maimonides comes and says: according to my view, it is one unit. If it is one unit, then he does not continue fasting. Fine? But he also didn’t have a reasoned explanation of what "one unit" means. I don’t know—he derived it from the Talmud in some way without thinking, without expounding the rationale of the verse; that’s just how he saw it. Fine? He didn’t do the analysis. I’m saying this is all hypothetical. But he didn’t do the analysis, he didn’t put it into the conceptual system of "why"—whether this is fasting or non-eating, yes? Some Brisker-type distinction like that. He would say: what does he know about Maimonides? Meaning, he didn’t make those distinctions. Fine? Those Brisker distinctions. So he didn’t think about it. Therefore, if I had asked him, he himself would have told me that the minor does not need to continue fasting. But it could be that if he understood or heard the explanation I am suggesting for his own position—that it is one unit—and I explained to him why he thinks it is one unit, since intuitively it is one unit, though he did not give himself an account of why—now I am trying to explain to him what lay behind his own consciousness. What lay behind his consciousness is that the Torah says, "And you shall afflict your souls"—it does not say, "Do not eat." It says, "And you shall afflict your souls." One needs fasting. That is what lies behind your consciousness. Now it could be that he himself would become convinced that he had been mistaken and I was right. I am right within Maimonides, not that I am right and Maimonides was wrong. Rather, this is Maimonides’ position: that the minor should continue fasting. Meaning, many times you yourself do not think through the full meaning of what you are saying, and a different method of analysis, or a different mode of presentation, or a different conceptual system, can clarify for you yourself what you thought. Then it may happen that you discover in yourself what you think. And if you didn’t do that analysis because you didn’t have the right tools or something like that, then you yourself will err in your own view. Not that your view is wrong, but that you do not understand what your own view itself says. And I think these are things that definitely can happen. Meaning, if a person does not—if a person looks differently at what he himself says, he can arrive at different conclusions about what he himself said. And that basically means that, say, yes, if I now return to the stories about Rabbi Eliezer and about tradition versus give-and-take: Rabbi Eliezer heard from his teachers that the Torah says Yom Kippur is one unit, that the commandment to fast on Yom Kippur is one unit—a law given to Moses at Sinai, one unit. What are you doing all this dialectic for? A minor who becomes an adult in the middle of Yom Kippur can eat, does not need to fast. Now the Sages say: that doesn’t sound logical; the Torah says, "And you shall afflict your souls." He says: I don’t know, I heard that it is one unit. Fine? It could be that the Sages are more right than he is in relation to what he heard. You heard that it is one unit—but what lies behind that? What lies behind it is an obligation of fasting. If it is an obligation of fasting, then he should indeed continue fasting. Of course this is an interpretive act, not merely hearing and drawing conclusions. But on the other hand, this interpretation reveals to me what I really heard. This interpretation is not the invention of something new. Rather, if I am right—and of course I can’t be sure—but if I am right, then what I heard means that the minor should continue fasting, even though I seemingly heard that he could continue eating. Rabbi Eliezer—if you had asked him—would have told you: what do you want from me? I explicitly heard from my teachers that this is one unit; the minor should continue eating. This is a law given to Moses at Sinai. What are you doing all this dialectic with me for? And I can basically explain to him, using my method of analysis, what he heard. Not that I am going against the tradition. We spoke earlier about the question: what does it mean when there is tradition versus my reasoning? My reasoning can reveal that what the tradition says is not that—not only that the tradition got corrupted, which is what I said earlier. It could be that my reasoning reveals what the tradition really says, not that it got corrupted. It didn’t get corrupted; you just don’t understand what it is saying at all. And Rabbi Eliezer, at the beginning, he heard them explaining it to him—now he said tradition, and they explain the tradition to him. There is—what I just did is a very clear explanation. I assume that whoever heard it would accept it. You can’t always do that. When… did he disagree with them methodologically? Did he disagree with them over the interpretation? Did they have the same tradition? Either way—or he didn’t understand the interpretation, or he was unwilling to accept the interpretation. Like if Maimonides came into the world, let’s say after a very large gap, yes, to Rabbi Chaim’s study hall. Rabbi Chaim would tell him about two laws, person and object, and so on, and Maimonides would say: don’t confuse my mind. That’s what Maimonides would say to him. He wouldn’t be willing to listen; he wouldn’t grasp the conceptual system, he isn’t used to that style of analysis. But if he stopped and listened? Stopping and listening won’t help—it’s an entire world of concepts. It isn’t just stopping and listening. You need to grow up with it, internalize it, understand it. Again, the examples I’m giving are supposedly simple examples; whoever understands them would agree. But I’m giving those examples in order to illustrate something broader. There are situations in which you enter… you know, let me tell you, I once said this before: I studied in yeshiva in the Ponevezh-style school, Netivot Olam in Bnei Brak. As a ba’al teshuvah, so it was that kind of Ponevezh school, yes, Rav Shmuel and all the spin-offs. Then at a certain point I decided to go for a period to the Kollel Chazon Ish. And the guys there told me: listen, you won’t manage there. They’re Slabodka types—they’re not… there’s no one to talk to there. Meaning, you won’t agree, you won’t understand anything; you have no common language with them. It’s a waste for you to go. So I sort of laughed at them—two frogs living in some puddle and thinking it’s the Pacific Ocean. How big could the difference really be? One formulates it this way and one that way—just translate one into the other. I got there, and really I couldn’t make sense of what they were doing there. What do they want, exactly? Just strange things—so unclear, so undefined, so unsharpened, a completely different world. Afterward I also heard some study groups from people who had studied in Slabodka, and it seemed crooked to me. Now it could be that what I say also seemed crooked to them—I’m not saying otherwise. I’m not entering right now into the question of who is right. But the fact is that it seemed crooked to me. Crooked—a completely different thing. And this is Chazon Ish versus Rav Shmuel, sort of. Meaning, Chazon Ish is that commonsense householder kind of thinking—this seems reasonable to me, that doesn’t seem reasonable to me. That’s all. Without all those sophisticated logical structures, the distinctions and differentiations and the jurification of learning. Therefore, when you are in different conceptual worlds, even if they explain it to you, you still won’t accept it. It just… it doesn’t sit on your head. By the way, the criticism from the other side is criticism too. Meaning, I often tell these two stories together, that… say, in Ponevezh there is an opposite problem. In Ponevezh they are unwilling to hear anything that is not in their groove. There are things one hears and things one doesn’t hear. And that’s it—it doesn’t pass near them. Meaning, you will not succeed in convincing him of anything that departs even slightly from the logical conventions he is used to. No chance—he doesn’t hear it, meaning he isn’t willing to hear. A kind of fixation on a certain mode of thought. This and nothing else. I once told how the teacher of my shiur in Netivot Olam had been a student of Rav Shmuel Rozovsky, a very attached student of his. So we were learning tractate Sukkah. And when we learned tractate Sukkah with him, the first volume of Shiurei Rav Shmuel on Sukkah came out. It was the first volume to come out, if I remember correctly, those red volumes. So it came out for the first time. Until then there had only been notebooks of Rabbi Yosef Rozovsky and stenciled copies and the like, but not… there was nothing orderly. So we leaf through this newly published book, and it was a bit embarrassing, because we found there all the shiurim that he had taught us as-is—simply one to one. He hadn’t said a word that he got this from Rav Shmuel, or that he was saying it in the name of Rav Shmuel, or which insights were his own. He had basically presented the whole account as his own, his own innovations. It was very awkward; we didn’t know what to do with it. At some point I decided I had to ask him. So I went and asked him: Rabbi, you know, a book by Rav Shmuel came out. He said: really? I hadn’t heard. And on Sukkah. And actually, what you say is one-to-one what is written in the book—did you hear it from Rav Shmuel? So he said to me: you know what? You have just made me happier than I can describe. First of all, I haven’t seen the book. Second, I didn’t even study tractate Sukkah under Rav Shmuel at all. I didn’t hear his shiurim on tractate Sukkah. So what happened? He had acquired the mode of thought so deeply that he simply generated Rav Shmuel’s shiurim on his own. Meaning, you study the passage and you… and it was amazing—the similarity was amazing. Afterward I understood, because I too by now know how to do that not badly today, I think—but then it really wasn’t easy to understand. Meaning, this is the best example of the Ponevezh fixation. Because from his standpoint he was delighted. I would have been disappointed if something like that happened to me, because it would mean I had just duplicated Rav Shmuel—there was already one Rav Shmuel. But from his standpoint this was the height of happiness. No, no, that distinction is my formulation of Rabbi Chaim. Rabbi Chaim could have made that distinction; I don’t know of any such explicit statement. Yes, I analyzed it that way; not important. But I mean: behind the plain issue—when I studied that passage and saw this inquiry of the Arukh LaNer, and the Arukh LaNer writes that if it is one unit, then the minor can continue eating. Then I thought to myself: wait, why say it is one unit or many independent points in time? It’s fasting versus prohibition of eating. Then suddenly I came to the conclusion: wait, but if it is fasting, then in fact the conclusion is that the minor should continue fasting. And that is the opposite of what the Arukh LaNer said. So suddenly we see that conceptual analysis of the Rabbi Chaim type—yes, that Brisker type—can lead from the same premise to a different conclusion, a different halakhic conclusion. And again I say: if I take this farther, then someone who is not at all used to this style of analysis will tell me: leave it. And I think I know people even today who would not accept the analysis I just gave. One unit—you don’t ask why. Rabbi Chaim himself—we don’t ask why, we ask what. So if it is one unit and that is moments, then it is one unit and moments. I do not ask why this is one unit and why that is moments. That’s not legal. Then he will not accept my thesis. Okay? So these are things that absolutely can happen. Many times we see that a person will explain to you what he thinks and you won’t accept it. Many times you disagree with his logic. But sometimes the difference is so deep that you disagree not with a particular argument but with the whole mode of thought. This entire style of analysis seems crooked to you. The pilpulim—the kind of thing Rabbi Ovadia was always talking about when he criticized the pilpulim of the Ashkenazim. Because this was the kind of thing where he did not accept the mode of thought; he did not agree with that style of analysis. Not that he didn’t understand it—I assume he did—that’s not the point. He didn’t agree; he thought it was incorrect. Fine? Now I don’t know who was right here and who was not. I belong to the school that is not Rabbi Ovadia’s school—meaning, I do identify with this mode of analysis. But I am saying: assuming this mode of analysis is correct, then I can explain things he himself said in a way that comes out differently from what he thinks. And it is not clear that he would be right and I wrong, simply because he heard it. It may be that I am the one who is right. Because if this mode of analysis is correct, then I have in fact uncovered what he said more accurately than he himself thinks. And that absolutely can happen. Let me perhaps give you another example. There is—I think we also talked about this once—a yeshiva tendency to make dichotomous inquiries. Is this law of type A or law of type B, and then practical differences and implications and all sorts of things like that. For example, yes, one of the most famous inquiries in tractate Bava Kamma, all the opening lectures in the tractate keep grinding away at this inquiry: whether a person is liable for damage caused by his property because he was negligent in guarding it, or whether he becomes liable for the simple fact that his property caused damage. Meaning, if your property caused damage, is that itself what obligates you to pay, rather than negligence in guarding it? HaEven HaEzel—and there are earlier explanations too, but HaEven HaEzel is usually the first one to formulate it; Or Sameach before him—in any case, there are various implications they bring. Most of them, I think, aren’t real implications, but there is, say, one implication that does seem closer to the truth, and that is a dispute between Pnei Yehoshua and Chazon Ish over the question of on whom the burden of proof rests. Let’s say my ox gored your ox and I claim—maybe I should first add another introduction… What? "The burden is on the one seeking to extract money"… In a moment we’ll see whether that’s it or not—that is exactly the question. But I’ll first add another introduction. Obviously everyone agrees that two conditions are needed in order to become liable for payment. It has to be my property, and I need to have been negligent in guarding it. On that no person ever disagreed. My property at some level, yes? If I throw something or if I place another person’s animal in another person’s standing grain—it doesn’t matter. In principle it needs to be my property, and I need to have been negligent in guarding it. The dispute is not over which element is needed, but which element is the obligating cause and which element is secondary. Meaning, the question is: if negligence in guarding is what obligates me, then obviously I only have to guard something that is my property. If it isn’t my property, then there is simply no obligation on me to guard it—so why would they obligate me because of negligence in guarding? But the obligating cause is the negligence in guarding. The second conception says: no, the obligating cause is that my property caused damage. The mere fact that my property caused damage obligates me to pay. Only if I was not negligent in guarding it—sorry, if I was not negligent in guarding it—then they exempt me. That is a plea for exemption. Okay? But according to both views, you need both negligence and the fact that it is your property. Now I come to the dispute between the Chazon Ish and Pnei Yehoshua. Pnei Yehoshua is in Bava Kamma 56. The question is: my ox gored my fellow’s ox, and I claim that I guarded it properly and it gored anyway. And the other one claims: what do you mean? You caused me damage, you did not guard properly, pay. Who has to bring proof? And the practical difference, of course, is when there is no proof—whether he pays or not. Usually when people ask who has to bring proof, they don’t really mean who has to bring proof, of course. They mean: who gets the money? Who gets the money when there is no proof? If there is proof, what do I care who has to bring it? Bring whatever proof exists and that’s it. The question of who bears the burden of proof always arises when there is no proof. So whoever had to bring proof and didn’t, loses. Fine. Therefore the question is never really about bringing proof. Okay, so there is no proof. In short: who wins? That is the question. Okay? So Chazon Ish claims that the injured party wins, and Pnei Yehoshua claims that the damager wins. Now ostensibly Pnei Yehoshua is right. "The burden of proof is on the one seeking to extract money." Right? Meaning, if you didn’t bring proof that I am liable, then you can’t extract money from me. After all, the damager is the defendant, and the injured party is the plaintiff. In order to take money from me, you have to bring proof. If you didn’t bring proof, you lose. So I win. But Chazon Ish says no. Chazon Ish says the injured party wins, and the damager loses. Why? And the usual way to explain this—by the way, this is Rav Shmuel, perhaps they were drawn after him—Rav Shmuel explains that the dispute turns on this point. If what obligates me is negligence in guarding, then as long as the damager didn’t prove that there was negligence in guarding—sorry, as long as the injured party didn’t prove that the damager was negligent in guarding—there is no obligating cause. I don’t have to pay. You didn’t prove it, you didn’t meet the burden of proof. Then that is Pnei Yehoshua. But Chazon Ish learns otherwise. The mere fact that my property caused damage obligates me to pay. Only if I was not negligent does that exempt me. Meaning, negligence or non-negligence—everyone agrees that it was my property that caused damage; there is no argument about that. The question is whether I was negligent or not. Fine? That is the disputed point between them. Here I am already liable because my property caused damage. The only thing is: if I prove that I guarded it properly, I’ll be exempted. But the burden of proof is on me, because I am trying to exempt myself. Okay? Therefore the rule "the burden of proof is on the one seeking to extract money" is not relevant here. That is the claim. Now, just in passing, I once heard from Rabbi Blumentzweig—he said to me: have you actually seen the Chazon Ish inside? I said no, everyone always quotes this Chazon Ish and I never saw it. He said to me: look inside. Chazon Ish says the opposite. Everyone quotes Chazon Ish, but Chazon Ish explicitly says the opposite. Chazon Ish explains why the damager loses because his claim is implausible. Because he claims that he guarded properly. So then how did the damage happen if you guarded properly? If you guarded properly, then how did damage happen? Now that doesn’t mean it is impossible—it can happen. Otherwise, when would someone be exempt? If I guarded properly, I am exempt even though there was damage. Such a thing can happen. But since that claim is implausible, the burden of proof is on you. So what did Chazon Ish actually assume? Chazon Ish is not claiming that negligence in guarding exempts, that lack of negligence exempts. No, of course not. He also agrees that liability comes from negligence in guarding. And still the burden of proof is on me, because the assumption is that there was negligence in guarding. That is the simple assumption. If there was damage, there was probably negligence. You want to claim that damage happened despite no negligence in guarding? Prove it. That is an implausible claim. The burden of proof is on you. By the way, that is a big innovation of Chazon Ish—very characteristic of him, but still major. Because Chazon Ish is basically saying: forget possession status and formal legal rules. That is Chazon Ish’s commonsense type of thinking. Chazon Ish says possession is not a formal matter—that the money is physically with you, so you are presumed to hold it. If you are making an implausible claim, then you are not the possessor; the other side is. Even in civil tort law there is something like this—the rule called "the thing speaks for itself." That is, for the same reason as here: if the damage happened, it is a sign that you were negligent. Unless you prove otherwise, and then the burden is on you. Yes, okay. So that really is what Chazon Ish says. And therefore it follows that even according to Chazon Ish, negligence in guarding is what obligates. It’s just that the assumption is that there was negligence if there was damage. If you want to claim there wasn’t—that the damage happened despite no negligence—prove it. So that’s just an anecdote. But there is another interesting practical difference, and that is in the passage about inciting. The Talmud discusses someone who incites his fellow’s dog against the ox of another fellow. The dog bit the ox. Is he liable or exempt? Fine? Now the claim—there is a dispute there, and one side says exempt. Why exempt? Because the dog is not his. We said there are two requirements: there must be negligence in guarding, and the property must be yours. Fine? In this case the second requirement is missing. Okay. If one places another person’s animal in another person’s standing grain and this is the law of Rabbi Kones—that’s something else; there one is certainly liable, and not on the basis of damaging property or damaging person—but there one is certainly liable because I placed it there. That is not incitement. Incitement is only indirect causation. So that’s what it says there. Now a number of later authorities, among them Pnei Yehoshua, write that the same law applies even if I incite my own dog. It doesn’t matter that the dog is with someone else; I myself am that someone else. I incited my own dog against someone else’s ox, and I am exempt. Now that is astounding—completely unintelligible. Several later authorities say this—unintelligible. Why? It is a fortiori. For if I simply failed to guard my dog properly and it went out and caused damage, I am liable to pay. But here not only did I fail to guard it properly—I incited it! So then I did something much worse, and I am exempt? This somewhat resembles the Talmudic case of someone who throws a vessel off a roof and another comes and breaks it with a stick. Then the question is whether we go after the initial act or after the one who actually broke the vessel. Yes, the question is whether the vessel is considered broken from the moment it left the roof, in which case the one who broke it at the end broke a vessel that was already broken, and really the one liable is the one who threw it. Or whether we go after the breaker of the vessel—the vessel is not considered broken from the start, and it is the one below who broke it. Fine. There is an argument there that if we go after the initial act, then no one is liable. The first one because in the end the vessel is considered broken, but he didn’t actually break it, and the second one broke an already broken vessel. Yes, like the story of the rolls. Have you heard the story of the rolls? He comes into a bakery and asks for rolls. They give him rolls. He says, you know what? I changed my mind—take the rolls and give me doughnuts instead. So they give him doughnuts, he sits, eats, and walks out without paying. The bakery owner runs after him and says: tell me, you didn’t pay. He says: what do I need to pay for? For the… sorry, for the doughnuts. For the doughnuts? I gave you the rolls in exchange for them. But you didn’t pay for the rolls. For the rolls? I didn’t eat them—what do you want from me? Same thing, same as that case of throwing a vessel off the roof. The claim there is the same. Meaning, if I threw the vessel and then also broke it with a stick after that—ran quickly downstairs and broke it with a stick—then according to the view that goes after the initial act, I would be exempt, even though I did both things. If I had thrown it without breaking it at the end, I would have been liable. But because I threw it at the beginning and broke it at the end, I am exempt. Yes, same idea. Such a thing can happen. The only possible explanation for this, and here I need to shorten because it seems we’re out of time—the only possible explanation for this, in my opinion, it must be so, there can’t be another explanation, at least regarding damages of goring, and a dog bite is considered that kind of intentional damage, intent to damage and so forth—in damages of that type, the liability is on the animal, not on the person. The animal itself is liable. But the animal has no money, so the payment obligation is transferred to its owner. But basically, the one who is fundamentally liable is the animal. There are various proofs for this. For example, an ox that comes from the desert—a masterless ox that gores—then the injured party acquires the ox, even though the ox is ownerless. Now I come and take the ox, and the injured party can prevent me; he acquires the ox. Why does he acquire the ox? There is no payment obligation because the ox has no owner—so what if it gored? Because there is liability on the ox itself. Fine? And if it has an owner, then the liability passes to the owner. The owner has to pay what the ox is liable for. If so, then one can understand what Pnei Yehoshua says. Why? Because the dog would need to be liable, and then the liability would transfer to me, right? Now I incite the dog. Is the dog liable? No, of course not. It was incited—it isn’t at fault, it’s a dog, it followed an instruction it was given. There is no liability on the dog. If there is no liability on the dog, there is nothing to transfer to me. So if I simply failed to guard my dog properly and it went out, then the dog is liable, because nobody incited it; it did the damage and the liability passes to me through it. But if I incited it, then obviously more blame attaches to me, but precisely because of that the dog itself is exempt, and therefore there is no possibility of transferring liability to me. Now this is probably correct in damages of goring. I don’t think you can say it about all damagers, but at least in those kinds of damages there are not-bad proofs—hence collection from the body of the animal, half-damages for goring, no matter; there are several indications of this. In any case, now if this really is so, then it is clear that within Pnei Yehoshua lies the conception that the payment obligation is an obligation based on the very fact that my property caused damage, not on negligence in guarding. If the cause were negligence in guarding, then obviously inciting is a thousand times more than negligence in guarding, and I would certainly be liable. Rather what is meant is that it is my property: the simple fact that my property caused damage obligates me, provided that I was negligent. Why? Because if my property caused damage, then the liability falls on it, but since it is my property, its liability transfers to me. That is probably the idea. Of course, on condition that I was negligent in guarding. If I was not negligent, I say: look, it did it, but I tried to prevent it. Don’t transfer to me the liability that rests on it. You said: you only discuss negligence after deciding that it is your property. Exactly. Now this must be the conception of Pnei Yehoshua. But Pnei Yehoshua earlier said the opposite—that negligence in guarding is what obligates. Right? He said that the burden of proof is on the one seeking to extract money, that the burden of proof rests on the injured party and not on the damager. So how does that fit with what Pnei Yehoshua writes here, where the conception is that one’s property causes damage? My claim is that it is both. The obligating cause is that it is your property and negligence in guarding, without hierarchies. Not that there is one main cause and one side condition; rather there is an accumulation of two conditions that together are the obligating cause. So regarding the burden of proof, obviously as long as you have not brought proof that there was negligence in guarding, you cannot extract the money from me. Right? Because it is enough that one condition has not been fulfilled—you haven’t established a cause of liability. Okay? Regarding the question whether I become liable when I incite the dog, that too is clear, because if I incited the dog, then the dog is exempt, right? Because it is not at fault. Therefore the liability can no longer be transferred to me. Whether I was negligent or not no longer matters; there is no liability to transfer to me. So this explains both rulings of Pnei Yehoshua. Now I would bet that if we asked Pnei Yehoshua, he would not know how to explain what I just said, even though I am claiming it within Pnei Yehoshua’s own position. Rather, intuitively in the case of inciting the dog it seemed obvious to him, and intuitively here it seemed obvious to him that the burden of proof follows "the one seeking to extract money." Now he himself never asked himself the basic analytical question: is this negligence in guarding, or is it the very fact that one’s property causes damage? He never asked himself that question, because he didn’t work that way. He didn’t make Brisker-style inquiries. So he never asked the question, even though I once gave a lecture on Pnei Yehoshua and said that there really are Brisker beginnings in him—but not here. Here he did not think in that way. Because in the case of inciting the dog the result is implausible? Okay, because he said it. What? I don’t care right now whether you agree or not; I am asking what he thought. Pnei Yehoshua says it. By the way, several other later authorities say it too. Ayelet HaShachar, for example, also writes this, and there are several later authorities before him as well. In any case, what did Pnei Yehoshua think? In my opinion, I don’t know whether he would have been able to present me with a coherent picture that explains those two rulings together. If I were to pose the question to him in the dichotomous way—either negligence in guarding or your property that caused damage—then he would throw up his hands. He would say: you know what? It really does seem there is a contradiction in my words. He would retract one of the rulings. But it could be that with the method that says: wait, who says it has to be dichotomous? Maybe it is both together—not either this or that. Then suddenly I manage to restore his intuitions. And if he would not think of it in that way, then he might retract what he said, whereas the truth is that the intuition behind what he said could very well be exactly this conception—the conception of both things together. Therefore, if he is not equipped with this Brisker toolkit, this Brisker method that does the analysis and then creates a synthesis and manages to reconcile two things, then it is quite possible that he would change the law. Up to this point, does what I’m saying make sense? It’s clear that it’s… I don’t know how to explain it. Exactly. So then when you do an analysis for him, you tell him: wait, you have to retreat; it doesn’t stand up to the test. But then someone smarter, or using a different method of analysis, comes and shows him that yes, it really can hold water. Then he can in fact remain with his original intuition. Okay?