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Table of Contents
- Opening of the lecture and its connection to Holocaust Remembrance Day
- Context in learning and in research, and the distinction between the context of discovery and the context of justification
- Debate over the example of sanctifying God’s name and Chaim Soloveitchik’s comment
- Moving to the role of context in halakhic ruling and two mechanisms
- An example from the Holocaust for the first mechanism: Responsa from the Depths and the question of cooking on the Sabbath in the ghetto
- An example from the Holocaust for the second mechanism: “There are no monetary laws in the ghetto” and Rabbi Gibraltar
- Analogies for understanding the limits of ruling without experiencing reality: “Mary’s room” and Rabbi Chaim’s frying-pan myth
- A response to Adina’s comment and radicalizing the role of context to the point of “there are no disputes”
- An attempt to conceptualize, in halakhic terms, the nullification of monetary law in the ghetto through Rabbi Shimon in Sha’arei Yosher
- “A different normative world” and the elevator parable
- The role of the halakhic decisor versus the questioner, and implications for remote halakhic rulings
- Participants’ responses, additional analogies, and comments on intuition in halakhic ruling
- The story of Rabbi Sinai Adler and Jewish law during the Holocaust as a way of holding on to life
- Follow-up questions after the close and additional comments
Summary
General Overview
The team opens the Zoom lecture with an introduction by Rabbi David and then hands the floor to Rabbi Mikhi, who frames the lecture against the background of the week’s events and Holocaust Remembrance Day. Rabbi Mikhi presents a distinction between the academic attitude toward context and yeshiva-style learning, arguing that one can accept research theses about the formation of halakhic methods without those theses determining the actual halakhic ruling itself, by means of the distinction between the context of discovery and the context of justification. From there he moves to argue that context plays a role in halakhic ruling in two different ways: sometimes it merely decides between existing halakhic options under pressing circumstances, and sometimes it changes the options themselves to the point of creating a different normative world, especially in extreme circumstances like the Holocaust or in a large gap between the halakhic decisor and the lived reality of the questioner. Throughout the discussion, participants raise objections and questions, and he concludes with implications for the role of the halakhic decisor, the limits of remote halakhic ruling, and examples that extend the idea to contemporary issues as well.
Opening of the lecture and its connection to Holocaust Remembrance Day
Rabbi David opens the meeting within the Zoom system and connects the lecture to the events of the week and to Holocaust Remembrance Day on Tuesday. Rabbi Mikhi begins from a proposal to address his attitude toward research, but chooses instead to discuss a subject connected to Holocaust Remembrance Day, with an opening remark that will provide context for what follows.
Context in learning and in research, and the distinction between the context of discovery and the context of justification
Rabbi Mikhi describes an academic claim that traditional learning ignores the context in which texts were created, whereas the academic world focuses on context, comparison, philology, and textual considerations. He gives the example of attributing the difference between the Tosafists and Maimonides regarding sanctifying God’s name to the context of the Crusades as opposed to a less turbulent environment, and presents the traditional resistance to the idea that sages are influenced by their surroundings. Rabbi Mikhi rejects that denial and argues that it is unnecessary anyway, applying the philosophical distinction formulated by Hans Reichenbach between the context of discovery and the context of justification, so that context can explain how a method came into being without determining whether it holds up halakhically. He argues that one can still discuss the reasoning, the fit with Talmudic passages, and the practical implications even if the research thesis about the origin is correct, and in that way one can remain a loyal yeshiva student without needing the research explanation in order to justify the ruling.
Debate over the example of sanctifying God’s name and Chaim Soloveitchik’s comment
A participant comments that what is attributed to academia regarding sanctifying God’s name in Ashkenaz is not the full range of opinions, citing Chaim Soloveitchik’s view that the reaction was popular rather than halakhic, and that the Tosafists defended it through aggadic literature rather than from halakhic passages. Rabbi Mikhi replies that the example is meant to illustrate the structure of the distinction, not to decide the research question, and adds that one can speak instead about the view of later authorities (Acharonim), if preferred, and that he is not entering the issue of how representative Chaim Soloveitchik’s scholarly approach is.
Moving to the role of context in halakhic ruling and two mechanisms
Rabbi Mikhi argues that context carries greater weight in halakhic ruling than in learning, because learning maps out the halakhic possibilities in principle, detached from pressure or emergency, and afterward the halakhic decisor decides what to do in practice within the present context. He defines two ways in which context operates in halakhic ruling: in one way it affects the choice among halakhic paths that already exist, and in a second way it changes the paths themselves so that the halakhic outcome becomes completely different, not just a selection among alternatives.
An example from the Holocaust for the first mechanism: Responsa from the Depths and the question of cooking on the Sabbath in the ghetto
Rabbi Mikhi brings an example from Responsa from the Depths by Rabbi Ephraim Oshry of the Kovno Ghetto, describing a question by a student named Aryeh Kovoshnik, may God avenge his blood, about working in a kitchen in a way that would require cooking on the Sabbath in order to avoid forced labor at the airport, and about eating the soup cooked on the Sabbath. Rabbi Mikhi points out that the responsum stretches over pages of give-and-take among disputes about food cooked on the Sabbath and among Maimonides, the Tur, Rashi, Ritva, and Hagahot Asheri, including discussion of labor not needed for its own sake and of the principle that “the Merciful One exempts one under coercion,” but in the end the permission rests on coercion and life-threatening danger. He argues that this structure shows how, in pressing circumstances, one chooses the lenient halakhic path, and sometimes this amounts to a full permission, while adding that the very halakhic engagement itself served an educational and existential purpose: preserving Jewish law within a situation where, seemingly, one could have just said “saving life” and finished the matter. A participant notes that Rabbi Oshry wrote this retrospectively from the United States, and Rabbi Mikhi replies that the later editing did happen, but the very need for the question and the presentation of the halakhic discussion expresses a bond to the rabbi and to life, and he emphasizes that the example serves to illustrate the first mechanism.
An example from the Holocaust for the second mechanism: “There are no monetary laws in the ghetto” and Rabbi Gibraltar
Rabbi Mikhi cites descriptions from articles in the Yated Ne’eman supplement about Rabbi Gibraltar, who consistently maintained that in the ghetto there are no monetary laws and no laws of ownership acquisition, and therefore loans, theft, and ownership have no meaning there. He tells of Rabbi Gibraltar refusing to accept repayment of a loan after the Holocaust, claiming that the money had not been his. Rabbi Mikhi also cites a case involving taking a coat from the dead in the context of life-threatening cold, within a framework in which the coat was regarded as ownerless. He recounts that a halakhic decisor in the field of monetary law attacked this approach and said it was “obviously incorrect,” and Rabbi Mikhi objects sharply to the assumption behind that criticism—namely, that one can fully apply ordinary categories of Jewish law without having lived through the extreme reality. He argues that there are situations in which a person who did not live the situation cannot issue a halakhic ruling about it, because the context is not merely a consideration in choosing an option but changes the normative reality itself.
Analogies for understanding the limits of ruling without experiencing reality: “Mary’s room” and Rabbi Chaim’s frying-pan myth
Rabbi Mikhi uses the example of “Mary’s room,” in which an optics expert who has lived her whole life in black and white does not know what red is until she actually sees color, and he argues that theoretical expertise does not replace experience. He also brings the Lithuanian myth that Rabbi Chaim “removed the frying pans from the kitchen” in order to describe a situation in which a frying pan is merely a theoretical construct, and argues that someone who does not know the practical reality of a frying pan cannot issue a halakhic ruling about it, even if he is a great scholar. Rabbi Mikhi concedes that there are questions that do not require the experiential element, but argues that many do, and therefore distance from the real world can make halakhic ruling impossible.
A response to Adina’s comment and radicalizing the role of context to the point of “there are no disputes”
Rabbi Mikhi refers to a comment by Adina in the chat and formulates an extreme edge-case according to which, if everything is context, it would turn out that there are no disputes between halakhic approaches at all; rather, every position is correct in its own context, and the decision is made by identifying a similarity between the context of the halakhic decisor and the context of the sages. He presents this as a caricature that sharpens the point, but not as a full description of reality.
An attempt to conceptualize, in halakhic terms, the nullification of monetary law in the ghetto through Rabbi Shimon in Sha’arei Yosher
Rabbi Mikhi proposes that the position “there are no monetary laws in the ghetto” can be understood as an extreme extension of the rule concerning an object swept away by the sea, but emphasizes that it is deeper than that because “we are all inside the sea” and there is no stable concept of ownership. He explains, through Rabbi Shimon in Sha’arei Yosher, that the laws of acquisition are a pre-halakhic concept belonging to the “theory of legal systems,” defined by society, and upon that basis the Torah imposes the prohibition of “do not steal” and the religious layer. He argues that when there is no effective system of norms and law regulating ownership, there is no infrastructure for acquisition, and therefore the level of prohibitions does not apply in the same way. On that basis he explains how, in the ghetto, one can understand the collapse of the concepts of loan, theft, and ownership.
“A different normative world” and the elevator parable
Rabbi Mikhi illustrates the idea of a changed normative world with the parable of two people in an elevator that is falling and is about to crash within a minute, where a demand not to hand over a pen out of concern for theft becomes, in his eyes, experientially incomprehensible. He argues that in such situations a person can feel that the ordinary rules are simply irrelevant, and therefore this is not merely a permission to violate a prohibition but the absence of the category of prohibition as it existed before.
The role of the halakhic decisor versus the questioner, and implications for remote halakhic rulings
Rabbi Mikhi argues that in the first mechanism the halakhic decisor maps out the possibilities and the questioner decides in accordance with his distress, fear of Heaven, and the prices he is willing to pay, whereas in the second mechanism a decision is required from a halakhic decisor who understands when the normative framework itself exists and when it does not. He emphasizes that extremity is not only the Holocaust but also the distance between the halakhic decisor and the questioner. Therefore, a decisor who does not live in the world of the questioner may fail to understand the practical and psychological meaning of the situation and may be unable to map the “option space.” He gives as an example the question of women’s singing and the possibility that the prohibition depends on the context of erotic thoughts, and argues that a decisor who cannot grasp aesthetic pleasure that is not erotic cannot rule in that reality in a way that truly understands the context. He also cites examples of questions about egalitarian prayer quorums, where conservative decisors do not understand the social and personal world in which the questions are being asked, and argues that the gap can make the Jewish law they sketch incompatible with the reality on which they are being asked to rule.
Participants’ responses, additional analogies, and comments on intuition in halakhic ruling
A participant brings the example of Ilan Ramon and a spacecraft as a non-normative reality in which it is unclear how Jewish law applies, and compares the work of an engineer to that of a doctor in order to ask whether the halakhic decisor works from the general to the particular or from the particular to the general. Rabbi Mikhi replies using Michael Polanyi and the example of Stradivarius, saying that the problem is the transmission of “use” and intuition, not only of rules, and argues that the question is not just top-down or bottom-up but the relation between intuition and justification. He describes the possibility that a halakhic decisor knows the answer intuitively and only afterward seeks to conceptualize and justify it, and argues that this is legitimate as long as there is integrity to retreat if the justification does not hold. A participant comments that a great halakhic decisor would not necessarily accept the distinction between the role of the decisor and the role of the questioner, and Rabbi Mikhi replies that the distinction he proposes is normative, and that even if both decisions are decisions of a halakhic decisor, there is an essential difference between choosing among alternatives and changing the normative world that defines those alternatives.
The story of Rabbi Sinai Adler and Jewish law during the Holocaust as a way of holding on to life
At the end, a story is told that they heard from Rabbi Sinai Adler, who had been in Theresienstadt, passed through Auschwitz, and was in Mauthausen, and would seek out halakhic discussions during forced labor and again at night when he returned. Rabbi Sinai Adler describes a situation on the eve of Passover in Mauthausen in which he received a piece of bread and considered saving it so as not to eat bread on the night of the Seder, but another Torah scholar said that according to Jewish law it was preferable to eat it immediately so as not to enter into the prohibitions of owning leaven on Passover, and he emphasizes that the halakhic discussion itself gave vitality and strength to survive. Rabbi Mikhi adds to this a story cited by Rabbi Gibraltar that Avraham Dov-Ber Kahana-Shapiro, author of Davar Avraham, instructed students in Kovno to be careful not to eat legumes, because perhaps that stringency would stand in their merit, and presents this as another example of the role of context.
Follow-up questions after the close and additional comments
After the formal lecture ends, a short exchange takes place in which Rabbi Yehuda asks for the sources about Rabbi Gibraltar, and it is said that the reference appears in Rabbi Mikhi’s article. A comment also comes up about Talmudic research that sometimes claims that the Talmud did not understand earlier Amoraim because of a corrupted tradition. Rabbi Yehuda brings a statement attributed to the Chatam Sofer according to which, if one issued a responsum and later found a source that contradicts it, the fact that the source was not remembered at the time of the ruling itself carries significance, and it is said that Rabbi Mikhi would connect to that less. Rabbi Yehuda asks how one can conceptualize Rabbi Gibraltar’s ruling from the outside if the reality is so foreign, and Rabbi Mikhi replies that for those who were not there, the ruling serves as testimony; outside criticism is possible, but it must take into account the possibility that the ordinary categories are not relevant to the situation, and that ignoring that possibility is itself what provoked him.
Full Transcript
[Speaker A] Within the Zoom system, the first part is Rabbi David’s opening. Welcome, everyone. We’re continuing with Rabbi Mikhi, and it’s impossible to ignore the events of the week, so this week’s lecture will be in our usual format but of course with a connection to Holocaust Remembrance Day on Tuesday. Please, Rabbi Mikhi, the floor is yours.
[Rabbi Michael Abraham] Okay, first of all, hello. I was thinking—Rabbi David suggested that I… we’ve already had a few discussions in the past about the attitude toward research and its status. This is a group of opposites in two opposite senses, I think. Rabbi David is involved in research more than I am; I hardly deal with it at all. But on the other hand, I told him that if I reached some research conclusion, then I would adopt it even for Jewish law, and he said he doesn’t agree with that. So there’s an interesting reversal here. So he suggested that I say something about—talk also about my attitude toward research. So I decided, since this is Holocaust Remembrance Day, to deal specifically with something a bit different, but I’ll still open with some sort of remark.
[Speaker C] There’s noise coming from somewhere, I think maybe Rabbi Bass, maybe it’s from you.
[Rabbi Michael Abraham] Mute yourselves, and whoever wants to speak should just join in. So maybe I’ll start with some kind of remark that will give context for what I’m going to continue with, but this really isn’t my main topic. Usually there’s a certain accusation, and to some extent a justified one, by academic learners against traditional learning—I am a yeshiva student, so in that sense I’m on the traditional side—that there’s some kind of ignoring of context. Meaning, when you want to check what a certain text says, you don’t look at the context in which it was created, at the study hall of the author of the text, and of course philological and textual considerations of one kind or another. In the academic world they focus, to a greater or lesser degree, but there maybe you could say the focus is the occupation with context and comparisons, with philology of the text itself. I once spoke about this when we doctoral students had some event with—his name slipped my mind—where he gave the academic side and I gave the yeshiva side, and we tried a bit to make it into a panel.
[Speaker C] Aharon Amit.
[Rabbi Michael Abraham] Yes, exactly, Aharon Amit. And I think that’s where I gave this example, the example I use in order to say concisely how I relate to these things. And again, this is very, very rough and there are a lot of nuances, but let’s take as an example the well-known dispute—people commonly present it as a principled dispute—between the sages of France, the Tosafists, and the sages of Spain regarding sanctifying God’s name. The sages of France are more stringent, more demanding, more exacting on this issue of sanctifying God’s name, while the sages of Spain, with Maimonides at their head, are more moderate in this context. And several people have already pointed this out—and again, I’m not some great expert in matters of research—but several have pointed this out and argued that this is basically a result of context. Meaning, the sages of France operated in the environment of the Crusades and responded to, let’s call them, more aggressive threats, and they thought the walls had to be fortified more in order to cope with those threats, and therefore they were more demanding, more stringent, more exacting in the context of self-sacrifice and sanctifying God’s name. And the sages of Spain—again, of course there were ups and downs—but in general they lived in a somewhat less turbulent environment in that sense, and therefore their attitude was more balanced, let’s put it that way. Now, the traditional learner who hears this sort of analysis—and right now I’ve spoken only about context, not philology and things like that—he usually tends to think, yes, I’ve heard with my own ears from various traditional learners who explain: no, no, they were heavenly angels, they weren’t influenced by their surroundings at all, it was just them and the Holy One, blessed be He, and ideas. Meaning, context and environment are totally irrelevant to them; they are outside the four cubits of Jewish law, and therefore they are not influenced at all. Meaning, it isn’t necessary in order to be the loyal yeshiva student like me. That is, you can accept the research thesis and still remain a loyal yeshiva student, because in philosophy of science they make a distinction between the context of discovery and the context of justification. Hans Reichenbach was the first to formulate this. When a person proposes a new scientific theory, you can ask him: how did you come up with this? How did you think of it? My grandmother appeared to me in a dream together with Elijah the Prophet, and the two of them recited, as a duet, the formulas that I’m presenting to you. That’s what’s called the context of discovery. The claim of philosophers of science is that this explanation shouldn’t interest scientists, and not philosophers of science either. Maybe it should interest psychologists. But it isn’t unimportant because it isn’t true; it isn’t important because it just isn’t relevant. Meaning, what needs to be checked in a scientific theory is the context of justification and not the context of discovery. The context of discovery is how I arrived at the theory. The context of justification is whether it stands the empirical test, meaning whether it works or doesn’t work, whether it’s true or false, regardless of how I discovered it. So in this context I want to apply that distinction here and say that the question of how context gave rise to a halakhic approach—in the previous example regarding self-sacrifice and sanctifying God’s name—it’s possible that this thesis is correct. It needs to be checked with research tools, but if it’s done properly, then it’s possible that this thesis is correct.
[Speaker D] Can I make a comment about that? Yes, yes. What you’re attributing to academia regarding sanctifying God’s name in Ashkenaz—that isn’t all the views. Chaim Soloveitchik, what he says is actually the opposite: that it wasn’t a halakhic matter. Ordinary people, it was a popular reaction, and afterward the Tosafists defended people who were holy, and their whole argument was from aggadic literature and not from halakhic passages.
[Rabbi Michael Abraham] Well, that doesn’t matter, but still.
[Speaker D] Yes, yes, it matters a lot, because if so there’s no halakhic argument. There’s an aggadic argument saying these people were holy.
[Rabbi Michael Abraham] Fine, but there is a halakhic method here of the Tosafists. Why do I care how they got to it? In the end, the method is a halakhic method.
[Speaker D] So again, according to what Professor Chaim Soloveitchik claims, in the end it isn’t really a halakhic matter.
[Rabbi Michael Abraham] You don’t rule that way in Jewish law.
[Speaker D] Right, right. That’s what’s good.
[Rabbi Michael Abraham] Let’s say that the later authorities (Acharonim) don’t accept that, and from their standpoint it is a halakhic method. Okay. So let’s talk about the later authorities’ method, not the Tosafists’ method. By the way, Chaim Soloveitchik isn’t a classic academic researcher; from the little I know of him, he’s actually pretty yeshiva-style. So it’s not clear how representative he is, but fine, I’m not getting into that thesis at all. As I said, I’m not versed in that world. I’m just using it as an example. So the claim I want to make is that the formation of the halakhic method out of context belongs to the context of discovery. Meaning, what caused the Tosafists or Maimonides to formulate one halakhic method or another. But the question of whether that method holds water, what reasoning stands behind it—that is, the substantive discussion of that method—can be conducted entirely detached from the context. Meaning, you can discuss that method, check how it fits with the Talmudic passages, if it doesn’t fit, what its practical implications are, whether it makes sense, doesn’t make sense—everyone can check halakhic methods in his own way—and you can form a position about it even if all the researchers are right, without needing the research explanation. And again, very briefly, just to defend the yeshiva boys who ignore context. I once did this theoretically.
[Speaker E] Yes, but can I ask something? Okay. I’m saying, seemingly, you could say that if there really is a context, then the context is also connected to the context of justification. Because if the way the context affected the formation of the thing changes when the conditions change, then maybe the claim is that the halakhic position should also change accordingly, and the passage, say, would be interpreted differently given different contexts. Here—this is exactly my topic.
[Rabbi Michael Abraham] That’s exactly my topic, so you really set me up perfectly. But really, one more sentence: in this context I’m talking about a process that is basically—again, it doesn’t have to be this way—but basically not conscious. I’m not talking about a conscious decision. The only way—or maybe not even the right way—but it’s a pressing circumstance, a time of persecution, I don’t know exactly, that’s another discussion. Right now I’m talking about some explanation that we can say is unconscious, at least in principle from our perspective it’s unconscious, and somehow it caused people, even unconsciously, to adopt that view. They both would explain it to themselves—even to themselves—not through context; they wouldn’t explain it the way I’m explaining them. I, as a “yeshiva student,” in quotation marks, explain them in substantive terms. Simply from the Talmudic passages, from one reasoning or another. That’s why I’m talking about this. And exactly the next stage I want to discuss is precisely what you commented on. Meaning, that there are places where context enters consciously into the halakhic consideration. And that’s why I prefaced with that only as an introduction, but I want to enter this issue, to fulfill my obligation to Rabbi David. And now I want to get into our topic, and I want to say that indeed sometimes context does play a role in halakhic analysis, let’s put it that way. I think this happens much more in the context of halakhic ruling than in the context of learning. Meaning, in terms of learning, when I study the passage and study the methods, I can learn like a full-fledged yeshiva student, and considerations of pressing circumstances and so on, in principle, don’t come in. I check what the halakhic possibilities are in every situation before me, and I do that by means of a kind of analysis that is detached—again, you need to understand what situation we’re talking about—but not the constraints and not emergency circumstances and not a time of persecution and all sorts of things like that. I look at what such a situation dictates on the halakhic level. But after I have the various options that I’ve raised out of halakhic analysis—that’s the yeshiva student—now comes the halakhic decisor. And the decisor has to decide: okay, what do we do in this situation? And here it’s obvious that context enters. So at least in the context of halakhic ruling—and again, I’m making very sharp distinctions here, and clearly it’s not as sharp as I’m presenting it, but for the sake of simplicity I’m still doing it this way—in the context of halakhic ruling there definitely is importance to context, of course even in the classical view; this has nothing to do with academia at all. It’s just that the reference to context will often be a reference to the context in which I myself am located, not the context of the Tosafists and Maimonides, but rather: now I have the method of Tosafot and the method of Maimonides, and now I ask myself how I am supposed to act here. And here it may be that I do take my context into account, and now if I take…
[Speaker C] Amichai, you’re also on mute and you’ve disappeared on us for a few minutes.
[Rabbi Michael Abraham] One moment, my internet just disconnected for some reason, sorry. Can you hear now? Yes.
[Speaker F] Okay, so go on, it’s fine.
[Rabbi Michael Abraham] The claim—what I want to say—is there
[Speaker E] There’s also a comment from Adina, if you saw it, just so you know, to draw your attention. I didn’t see it. In the chat. Forget it, continue.
[Rabbi Michael Abraham] I don’t see it. In any case,
[Speaker E] So
[Rabbi Michael Abraham] when a halakhic decisor takes context into account, he also doesn’t really check the context—usually he doesn’t really check the context—in which the Tosafists or Maimonides operated. That too an ordinary traditional decisor generally doesn’t do, but of course he does take into account the context in which he himself operates. Here context certainly enters the equation. Now I want to make a claim, basically, that context enters halakhic ruling in two forms, or on two planes. One plane is like I described earlier: after I’ve reached the conclusion that there are several halakhic paths before me, and they are better, less good, with certain costs, other costs—now I need to decide which of them I choose in a given situation with all the constraints and everything that I’m now taking into account. Context obviously affects the choice among the various options. In a pressing circumstance, I may choose a lenient path; “Rabbi Shimon is worthy to be relied upon in a pressing circumstance,” and so on. In other places it may be that one has to be stringent because the context requires stringency, perhaps. Sometimes this way, sometimes that way. But context says: let’s choose which path we’re selecting from among the halakhic paths that stand before us. That’s one form or one way in which context enters. The second form, which in my view is more interesting, is that context reshapes the paths themselves. It’s not that I make the choice among the paths in context; rather, in a different context it turns out that the halakhic result itself is completely different. It isn’t the result that would emerge outside that context. Now, for the moment this still sounds a bit general, so I’ll bring an example—examples—and I hope it will come out clearer. But that’s the framework. Now I want to use examples from the Holocaust in order to demonstrate these two ways, and afterward make a few comments about their significance. For the first way, I took an example—of course there are many examples—Responsa from the Depths. Yes, the well-known responsa of Rabbi Ephraim Oshry, who was in the Kovno Ghetto together with the Davar Avraham and a few other important Jews. He answered people’s questions there and collected them on little scraps of paper and such. He apparently didn’t have books, didn’t have writing materials, or—well, he wasn’t living in an orderly world. And after the Holocaust he organized it and published five volumes of Responsa from the Depths, where he also expanded and brought the sources, meaning this wasn’t just a straight copy of the scraps, but the substance was apparently on the scraps, if I understood correctly, and there he just organized it so it could be read in a more comfortable and orderly fashion. Now I just chose one example; there are a lot of examples of the same kind. One example is about the law of cooking on the Sabbath inside the ghetto, section 5 in Responsa from the Depths. Just randomly; there is nothing special here, but it’s one among many. I won’t read the whole thing inside. What interests me is just the structure. Okay, in general, today I won’t go so much into the sources, because what matters more to me is to present the picture. For me, the sources are an illustration. So look, the question: “These things I remember and pour out my soul within me, for in the days of the accursed wicked we had no restoration, and every single day they would take out of the ghetto more than a thousand people in order to force them into backbreaking labor at the airport and torture them with their burdens. And behold, a certain student came before me, a God-fearing one, may God avenge their blood”—afterward he was apparently murdered there, perished there—“and his soul was in his question: since he has the possibility of entering work in the kitchen, at the place where the black soup was cooked from beans, which the Germans would distribute to the Jews together with one hundred grams of bread per day; however, the difficulty is that there he will be compelled and forced to work in cooking even on the Sabbath. But since by doing so he will be saved from the hard forced labor at the airport, which consumes the soul and breaks the body, perhaps this also involves saving life? For since he will be saved from hard and crushing labor, and will be able to eat and satisfy his hungry soul with the black soup as much as his soul and body desire, and his body will thereby become more resilient and he will be able to endure so as not to collapse from the general hunger prevailing in the ghetto.” So yes, that’s one consideration. “And he also asks whether it is permitted for him himself, on the Sabbath day, to eat from the black soup that he cooks on the Sabbath”—food cooked on the Sabbath. So the question is both about the cooking itself and about food cooked on the Sabbath. So let’s stop here for a moment. What would you answer to such a thing?
[Speaker F] If it’s saving life, then that breaks all the rules in the first place.
[Rabbi Michael Abraham] Right. Maybe I would stop it in three words: saving life overrides everything. Meaning, do whatever you need in order to survive. Right? No need to go into detail here. The responsum stretches over several pages. Look, just to get an impression. The answer: “In tractate Hullin 15a we read: We learned: one who cooks on the Sabbath inadvertently may eat; deliberately may not eat—these are the words of Rabbi Meir. Rabbi Yehuda says: inadvertently he may eat after the Sabbath; deliberately he may never eat. Rabbi Yohanan the Sandalmaker says: inadvertently, after the Sabbath others may eat but not he himself; deliberately, it may never be eaten, neither by him nor by others.” Yes, the Mishnah about the well-known dispute over food cooked on the Sabbath. Afterward, Maimonides in chapter 6 of the laws of Sabbath rules this way, but the Tur in section 318 rules this way. “And behold, all the above obviously do not even mention forbidding it until enough time has passed”—that’s Tosafot and Rashi’s discussion of “until enough time has passed.” In tractate Bava Kamma it says, what’s the reason of Rabbi Yohanan the Sandalmaker, yes, all sorts of discussions. “And behold, the Ritva in tractate Ketubot 34 wrote”—and this is about what may never be eaten. The Ritva says there is no issue of others at all except according to Rabbi Yohanan the Sandalmaker; for everyone else it’s only the person himself. But Hagahot Asheri there, section 318, wrote: “I saw that someone wrote that one for whom it was cooked also has the same law as the one himself,” meaning the person for whom it was cooked is treated like the actual cook. He’s not like “others.” The practical implication is when he is allowed to eat and whether and when he is allowed to eat. However, in the book Rosh Yosef on tractate Sabbath 72, regarding someone who is being coerced—there’s really a wonderful line of reasoning here, until I saw it here I didn’t know it; several later authorities (Acharonim) bring it—that if one must choose one thing, either desecrating the Sabbath or eating forbidden food, carrion, he should choose desecrating the Sabbath, because Sabbath desecration is under coercion and is considered labor not needed for its own sake, and is only rabbinic.” Yes, if you’re doing this thing in order to save yourself, then you’re not doing it because you need the labor itself but in order to save yourself, so it’s labor not needed for its own sake. Remember the stick-gatherer—who gathered there in order to teach the Jewish people that despite the decree that they would not enter the Land, they were still obligated by the Torah and there is a death penalty for desecrating the Sabbath—and he basically gathered sticks for the sake of sanctifying God’s name. He wanted them to execute him for Sabbath desecration in order to teach the Jewish people that Jewish law still obligated them. And Tosafot asks on that: why did they kill him? After all, it was labor not needed for its own sake. Meaning, he did it in order to teach them and not because he needed it, so it’s labor not needed for its own sake. Fine, that objection is hard on the question because at the time they didn’t know; if they had known, the lesson wouldn’t have been conveyed. But Tosafot’s conception is exactly this conception: that once you do something for another reason, to achieve another result, that’s labor not needed for its own sake. And there’s a lot to analyze there, but I won’t get into that here. He brings several other later authorities who discuss this, and so on, regarding labor not needed for its own sake. He continues—you can see there’s a long discussion of this whole story, the Jerusalem Talmud, Maharik writes the same thing, Shevut Ya’akov, Havot Ya’ir. Now he says, here are the concluding lines: “And according to this, in our case, where the accursed wicked forced the Jews to labor at all kinds of hard labor on the Sabbath, and if they did not obey them they would kill them in all kinds of deaths and tortures, then certainly this coercion is coercion involving death, and certainly one must permit these miserable people to desecrate the Sabbath, for the Merciful One exempts one under coercion.” Yes, what we would obviously have answered in the first line, right? It has nothing to do with the whole discussion until now. Whether it’s rabbinic, Torah-level, others, not others, himself—what does it matter? Labor not needed for its own sake. You say: the Merciful One exempts one under coercion, there’s danger to life, finished. “And if they did not obey them they would kill them”—yes, coercion of death, sorry—“then certainly this coercion is coercion involving death, and certainly one must permit these miserable people to desecrate the Sabbath, for the Merciful One exempts one under coercion. And all the more so since here there is actual life-endangerment. And something similar I saw in the responsa Yad Shalom, who wrote that someone under coercion of death”—again, the labor not needed for its own sake is like Maharik—“returning to the law, from all the above it seems to me that one should permit the questioner to work in cooking on the Sabbath in the kitchen, for in any case the accursed wicked would force him to work in hard labor at the airport on the Sabbath. If so, what practical difference is there in what work he will be forced to desecrate the Sabbath—whether in another job or in cooking? And in any event he will not violate a Torah-level prohibition, for one who desecrates the Sabbath under coercion is considered labor not needed for its own sake and is prohibited only rabbinically.” And if it were Torah-level, then what? It’s still saving life, it doesn’t matter. You see, the whole discussion is unnecessary, in short. “And therefore it certainly seems that he is permitted to work in cooking on the Sabbath, for by doing so he will also have a bit of food to revive his soul. And there is also no prohibition at all for him to eat the black soup that he cooks on the Sabbath, and in such a case, according to everyone, food cooked on the Sabbath is not forbidden, for this eating involves saving life. All the more so it is permitted for other Jews to eat the soup, because they are not the cooks, so for them the law is more lenient, because saving life is great, for it overrides the Sabbath.” You understand that these last two paragraphs completely render unnecessary the entire detailed discussion he gave until that point. It’s simply that saving life overrides the Sabbath, that’s all. What does it matter now whether it’s rabbinic or Torah-level, according to the Ritva, according to Maimonides, others? Fine—saving life, finished, that’s it. It was clear that this was important to him; he writes this also in the introduction, in the introduction to the responsa in general. This whole story was not at all really the basis for the answer. During the Holocaust, I assume that what happened there was simply that there was really no point in asking halakhic questions at all. Do what you need to do. Survival considerations are the main considerations—perhaps in a certain sense the only ones—in such an extreme state. And therefore really there is nothing to discuss in terms of Jewish law at all. What do halakhic discussions have to do with it? There’s no point in opening a code of Jewish law, no point in opening the Talmud. Do what you need, that’s all. Against that he was fighting, of course. Because his goal was to show: it’s still with us. We still make the halakhic calculation, and after the halakhic calculation is over, then we decide what to do. True, the whole story is actually unnecessary, because in the end you conclude that it’s coercion and saving life and everything is permitted, but there is some educational purpose here, and indeed everything is unnecessary. This entire responsum is unnecessary. In fact, most of his responsa—I don’t know if most, but many of his responsa—are simply unnecessary. And I think what he says in the introduction comes exactly to say that. To say: what we basically did there, also what I’m trying to show in the responsa when I print it, is to show that there is still engagement with Jewish law and people came to ask halakhic questions, and this despite the fact that a person could simply say everything is permitted, that’s it, saving life, there’s no need to deal with the matter at all. But for our purposes, I just want to return to our discussion. What we see here is really the first mechanism I presented. The first mechanism basically says: once there are extreme circumstances, very pressing conditions, danger to life, then obviously you choose the lenient path. In this case, of course, this is total leniency, but if there were several paths before you, in a pressing circumstance you can choose the lenient path. It doesn’t change the halakhic reasoning itself; it tells me which of the halakhic paths to choose, and if I’m dealing with danger to life, then here, I’ll choose this path and I don’t need to choose that one. That’s the simple mechanism.
[Speaker F] Rabbi Mikhi, with your permission. I think this isn’t a very representative example. One has to understand that Rabbi Oshry wrote these things retrospectively. I mentioned that. Everything he wrote, he wrote from his more comfortable desk when he was already in New York and in the United States after the war. He took those little notes in which he had said things immediately, without any give-and-take at all, just as you said.
[Rabbi Michael Abraham] No, no, I don’t think so. I mean, I think in my opinion he also did some of this there. He didn’t write the…
[Speaker F] I’m almost convinced—I can’t prove it, but I’m almost convinced—that he didn’t.
[Rabbi Michael Abraham] The very fact that people came to ask—that itself says something. After all, everybody knows that saving life overrides everything.
[Speaker F] They just—
[Speaker E] People don’t come ask a rabbi only in order to get a halakhic answer. People come ask a rabbi in order to live, in order to connect to him.
[Rabbi Michael Abraham] Right, and that’s why I’m saying that part of this whole matter of turning to a rabbi and turning to Jewish law is something that comes to express something. I also said that he wrote this in the United States after the Holocaust. But he himself writes this—he writes it in the introduction, this isn’t speculation. He writes that he wrote these responsa, and I think he also—I don’t remember his exact wording anymore—said them in a certain way in order to show that we are still engaged in Jewish law even though in fact it was unnecessary. But for our purposes here, I’m less concerned with the question of what his intentions were. For our purposes here, this is simply an illustration of the first mechanism I spoke about. When there is pressure, danger to life, distress of one sort or another, we can choose a more lenient path. It can still be that there is lenient and more lenient. If you can do it on the rabbinic level and not on the Torah level, then do it on the rabbinic level. But if not, then of course even something prohibited on the Torah level will be permitted. So this mechanism represented here, I think, is the ordinary mechanism by which in a pressing situation I am more lenient, I choose a more lenient course. I want to move to the second mechanism, which in my view is more interesting. This is the mechanism in which the circumstances change the options themselves; they are not a consideration for choosing among the options, but rather they change the option itself. And here I want to—I’ll do this orally because I don’t have a written source. It’s an article I once wrote when I read a series of articles in the supplement of Yated Ne’eman. And some Jew there, by the name of Rabbi Gibraltar, wrote that his father had been in the ghetto, also in the Kovno ghetto with the Davar Avraham. Now, Rabbi Gibraltar the father—the son, I don’t remember whether he was a child in the Holocaust or wasn’t there at all, I don’t remember at the moment—but he describes what his father went through. Among other things, he describes a kind of position that Rabbi Gibraltar consistently held: that in the ghetto there are no monetary laws. There are no laws of acquisition. There is no ownership of property, no theft, no loan, no… all property laws are nullified in the ghetto. And therefore, for example, he lent people money; after the Holocaust they came to repay the loan, and he said, you have nothing to repay me, the money wasn’t mine. Or there was a discussion about taking a coat from the dead—there a coat was literally a matter of danger to life. People were dying and there was dangerously cold weather there, and having a coat or not having a coat was literally a matter of life and death. The question was whether you could take the coat or whether it passes to the heirs. So he says no, the coat is ownerless. Meaning, you can take it. And this isn’t a leniency or a stringency; it’s simply a different halakhic conception. And he says: there are no monetary laws in the ghetto. Now following that series—this was a series of several articles, I don’t remember how many, three or four—following that series there was an article by some halakhic decisor who deals with monetary law, and he says, well, that’s obviously not correct. He didn’t have the books, he couldn’t exactly make all the considerations, and so on. Then he explained why this has no basis at all, it’s simply not true. So I got very angry, because my anger is part of the essence of the issue, which is why I’m mentioning it here. That’s what I want to talk about. I think the mistake of that man who criticized Rabbi Gibraltar’s position was not in his halakhic judgment; it was in his basic assumption. His basic assumption was that Gibraltar stated one position, you can state another position, you can argue, you can claim he’s wrong, and that’s perfectly fine—check whether he grounded his words, and maybe he really was wrong. That’s allowed; a person can make a mistake. I think there are extreme situations in which you have no idea how things are perceived when you are living in such a condition. You have no idea. You are in such a different world that you cannot form an opinion about such a situation. You simply cannot. It would be nonsense to form an opinion about such a situation. If you take the ordinary categories, and you’re a great expert in all of the Shulchan Arukh and its commentaries and Ketzot and all of Choshen Mishpat, but you are not living the situation—if you are not living the situation, you cannot issue a halakhic ruling about it. You understand that once again context is entering here, but it enters in a completely different way. Here the context determines the ruling—not the choice among existing options, but the ruling itself changes because of the context. Now I’ll sharpen this further. There’s a famous example among philosophers called Mary’s room. There’s even a Wikipedia entry for anyone who wants it. Mary was a physicist, an expert in optics, a genius, she knew everything that happens in the field of optics, but all her life she lived and worked in a room that was entirely black and white. Everything was black and white. She was a great expert in optics and in colors and how every color behaves, refraction and interference and whatever you like, but she had never seen a color in her life. Meaning, she was only an expert in optics. Okay? Now she leaves the room, and suddenly she sees—yes, there’s a world outside. And there are colors: red, green, yellow, all kinds of things. The question is whether she learned something new. That’s how philosophers usually ask it. It sounds a little strange; if you’re not a philosopher you don’t even understand the question. But the question is whether she learned something new. And of course she did. What do you mean? She’s a great expert in optics, she knows how every color behaves and everything is fine, but she doesn’t know what the color red is. So she can’t say anything about what red means, whether it’s worth using red in some painting or in some place if you want that kind of aesthetic, right? She has no connection to that. Even though she is an expert in colors in the physical sense. Or if I take an example more connected to Jewish law, then the Lithuanian myth says that Rabbi Chaim took the frying pans out of the kitchen. Yes, it’s a well-known saying. What does that mean? From Rabbi Chaim’s point of view, a frying pan is a theoretical construct. It’s not a cooking or frying utensil. It’s a construct. This construct has a definition—he has no idea what it looks like, of course. He has a construct; they fry there instead of cooking there, and there are various laws—it’s the law of a frying pan as distinct from the law of a pot. Okay? Now let’s assume for the sake of discussion—and of course stories about saints are always exaggerated—but let’s assume for the sake of discussion that he really never saw a frying pan and doesn’t know the difference between frying and cooking except for understanding that one is in oil and one is in water and things of that sort. Can Rabbi Chaim issue a halakhic ruling about frying pans? Obviously not. Anyone who lets him issue a halakhic ruling about frying pans—that’s simply completely absurd. He is an enormous expert in Jewish law, in all the marvelous halakhic constructs, and he knows how to connect one matter to another and do everything necessary. But he doesn’t know what a frying pan is. If he doesn’t know what a frying pan is, he cannot rule about it. If you don’t understand the difference between cooking and frying unless you’ve tasted it, unless you’ve seen it with your own eyes, unless you’ve experienced it yourself—how can you issue a halakhic ruling that there is a difference between frying and cooking? Meaning, you can be a tremendous expert in principles, like Mary with optics, but if you haven’t experienced it yourself—not for nothing, another myth about Rabbi Chaim says that whenever a halakhic question was asked there, he would refer it to Rabbi Simcha Zelig, the judge. He had to—he was the rabbi of Brisk; I don’t know why they paid him there, because he didn’t answer questions. Meaning, he sent people to Rabbi Simcha Zelig. But it’s the same idea. And I think that’s really true. Someone who has never seen a frying pan, for whom a frying pan is a theoretical construct, cannot issue a halakhic ruling about frying pans. He can be a tremendous scholar and give general lectures on the subject of frying pans, frying, cooking, and all that. But to issue a ruling—no, absolutely not.
[Speaker E] But who says that every question concerning frying pans—sorry for interrupting—please, please.
[Speaker H] No, no, it’s okay, I’m afraid I’ll say something silly, so it’s better if you speak first.
[Speaker E] No, no, no more or less. I’m saying: who says that every question concerning frying pans requires the relevant component connected to familiarity with a frying pan, actual experiential familiarity?
[Rabbi Michael Abraham] It may be that there are questions that don’t, but there are also quite a few questions that do. So now, what the criterion is—I don’t know. But in principle, when you come to issue a ruling about frying pans, I would stay away from it.
[Speaker E] So by that same logic one could say that Rabbi Gibraltar could absorb that criticism, since the criticism the critic leveled against him didn’t include the relevant components for understanding this entity called monetary law or acquisition law.
[Rabbi Michael Abraham] That could be. I’ll come back to that in a moment. It could be, but it isn’t. And I’ll explain in a moment why I think it isn’t. It could be, and on the principled level it’s clear that you can criticize someone who was in the ghetto on a halakhic conception—I’m not denying the possibility. I’m denying the necessity that that’s what is going on here. Meaning, the critic didn’t take into account at all the possibility that maybe there is something here that touches not only on the theoretical principles in which you are expert, but something in your perception of reality is also required for issuing this halakhic ruling, and as I explained there in the article, I also explained what. And I think there really is something there that was genuinely missing in that critique. So on the principled level I certainly accept that one can criticize someone’s halakhic position even if he is in an extreme state, a state different from mine. But I oppose the conception that does not even take into account the possibility that maybe you can’t. That there are situations in which you can’t. That’s the important point. There is such an aspect too—I’m not saying it’s the only one, but there is such an aspect, and it is very important. And scholars—and as someone formed in the yeshiva world, I know: these rulings were written in blood. Meaning, I know how I myself used to think about things until I suddenly realized that there are limits to this theoretical, analytical, abstract thinking, and how important it is to be inside the situation in order to make decisions. So that’s a process I myself went through, so I’m speaking from bitter personal experience. You said you wanted to say something?
[Speaker D] Yes, if I may say a few things.
[Speaker H] I want to come back here to Adina’s earlier comment in the chat. Adina wrote that if you take the inquiry all the way, the context, then basically this inquiry would say that the whole way we understand the words of the Tannaim and Amoraim is wrong, because they said it in a certain context. And precisely the way you’re presenting it now, because they spoke about some reality that I don’t understand, and maybe even the medieval authorities (Rishonim) no longer understood, then basically a disconnect is created between the words of the Tannaim and Amoraim, who said things in a particular, concrete context, about their frying pan, which is not our frying pan. And actually this approach creates a break; it doesn’t allow the development of Jewish law over the generations once the understanding of reality has changed.
[Rabbi Michael Abraham] So I’ll get to that in a moment, but since you mentioned Adina’s question, which I hadn’t seen, I’ll answer it. I really think—this is a sentence I was just about to say exactly when the connection dropped and then I didn’t return to it, so you reminded me. If you take this all the way—again, this is of course very extreme, almost a caricature—but if you take it all the way, then in effect it comes out that there are no disputes at all. Meaning, everything that the Tosafists and Maimonides say is not really a dispute; rather, under the circumstances of the Tosafists, Maimonides too would have said that, and under the circumstances of Maimonides, the Tosafists too would have said that, because everything is context.
[Speaker H] And basically we can’t understand at all what they were talking about, because each one spoke in some reality that I don’t understand.
[Rabbi Michael Abraham] There’s no way at all to communicate with what they said. That, Adina, I’ll get to in a moment. So I’m saying, if I take it all the way, then when I now have to make decisions on this matter, all I need to do is check whether my context resembles the context of the Tosafists or of Maimonides. It’s not deciding a dispute. There is no dispute here at all. It’s simply a double Shulchan Arukh. Under these circumstances one should do this; under those circumstances one should do that. The question is simply under which circumstances I’m operating. But that is of course a caricature. As for Naama’s question, I’ll come back to it in a moment because it really is important. Ari, Rabbi Ari, did you want to comment on something?
[Speaker A] I just wanted to remind everyone that we should hear Naama, that’s all. We’ve discharged our obligation, it’s fine.
[Speaker D] I hope you know that you’re exaggerating. I said I’m exaggerating. Fine. Rabbi Chaim and Rabbi Simcha Zelig both came out too, by the way.
[Rabbi Michael Abraham] As for Rabbi Chaim, I said I’m exaggerating, and about the inquiry too I said I’m exaggerating. And I said that despite the exaggeration, I think it captures an important point. It’s like a caricature. A caricature takes the nose you have on your face and turns it into a watermelon—but there is a mole there. Meaning, something needs sharpening. Fine.
[Speaker D] So just a comment: Rabbi Chaim and Rabbi Simcha Zelig discussed the same matter. Rabbi Chaim was upstairs and Rabbi Simcha Zelig was downstairs. A question came to Rabbi Chaim, and he sent it downstairs to Rabbi Simcha Zelig. And Rabbi Simcha Zelig ruled according to Rabbi Chaim’s rulings. Right. So he thought he was ruling according to Rabbi Chaim. What Rabbi Soloveitchik said about Rabbi Chaim’s rulings was that he couldn’t rule because he was concerned for every opinion among the medieval authorities (Rishonim).
[Rabbi Michael Abraham] That’s how he put it. By the way, I have a slightly different explanation, but—
[Speaker D] I’m saying what Rabbi Soloveitchik said about his grandfather. He said he was concerned for all the methods, and sometimes he had a question and sent it to another decisor and said: rule, and don’t tell me the reasoning, because if you tell me the reasoning, that will be the end of it.
[Rabbi Michael Abraham] It’s precise that he relied on him then.
[Speaker D] In my view it wasn’t because he couldn’t rule, but because that other person had authority. Because of the authority, not because of the—
[Rabbi Michael Abraham] When you have very high analytical ability, you understand both sides fully. And you lose the ability to decide between them. I think that’s a better explanation than saying he was concerned for all the methods. If you’re concerned for all the methods, rule stringently.
[Speaker D] And in that same context Rabbi Soloveitchik told how, when his wife was in the hospital, he caused the whole kitchen to become non-kosher because he ruled in accordance with Maimonides.
[Rabbi Michael Abraham] Anyway, returning to our subject. So the claim I want to make is this. I’m going back now to the example of the ghetto, of monetary law in the ghetto. The claim is basically this: one could have gone in the direction of a lost object swept away by the sea. If, from my point of view, what Rabbi Gibraltar said is testimony, not a position—that is, he says to me: listen, as someone who lived inside that situation, I’m telling you that in such a situation there are no monetary laws. So I’m not now going to argue with him—even though, again, they argued with him even in the ghetto itself, meaning it wasn’t a position accepted by everyone. But let’s say for the sake of discussion that I see such a position. I’m not going to argue with him because it’s clear to me that he’s not speaking on the level of the ordinary halakhic tools, which I assume he also knew. These are not esoteric tools that require books; anyone understands this. Rather, he was saying something entirely different there. He wanted to make the claim I’m making here: when you live this situation, all the tools that I too know are not relevant. There is no acquisition law here. And therefore accept what I’m telling you, because you are far from this situation and I am living this situation, and I’m telling you that this is what someone who lives inside it understands. Now if that is the assumption, what remains for me is simply to try to understand or conceptualize what he said. I’m not arguing with him, but I do want to place it within the ordinary halakhic framework. Then the claim—well, I won’t do this at length because one could elaborate a lot—in principle one could have gone here by way of a lost object swept away by the sea. There too it basically means the ownership is uprooted, depending somewhat on the various views, but never mind—the ownership is uprooted, and this is basically some kind of very large-scale version of that. But it really is an expansion of the concept of a lost object swept away by the sea. Meaning, you can’t acquire it even afterward, once it becomes that kind of lost object; there is no—after all, we’re all in the sea. Meaning, it’s not that I’m on dry land and the object is in the sea, and the object currently has no owner but if I acquire it then it will be mine because the first owner lost his ownership. No—even I have no ownership. There is no ownership. The concepts of ownership do not exist. I think this is not disconnected from that category, but it is deeper, more foundational. And the claim is—yes, Rabbi Shimon, famously in Sha’arei Yosher, basically argues—not getting into his proofs and reasons right now—but Rabbi Shimon basically argues that acquisition law is a pre-halakhic concept, what he calls legal theory. Meaning, legal theory is basically this: we determine the concepts of ownership, and then the Torah comes and says—that society determines it, let’s say, or the legal system determines it, and this is something pre-halakhic—and on top of that the Torah comes and says: if you violate another person’s ownership, you have violated the prohibition of theft. It places on it what we might call a religious dimension. But there is some dimension prior to the religious dimension, namely the legal dimension. And within the legal dimension are the laws of acquisition, and in my view theft too exists on the legal dimension—it is not just an abstract definition of ownership. The prohibition of theft itself has a legal dimension and a halakhic dimension. I’ve had arguments about this with various people, but never mind, that’s not important for our purposes here. In any case, the claim is that where there is no effective legal system, there are no acquisition laws. Once there are no acquisition laws, the whole foundation collapses, and automatically there is nothing on which to place the second story. Meaning, you can’t speak about ‘do not steal,’ you can’t speak about loans, because there is no ownership. The Torah presupposes ownership, but it does not define when there is ownership and when there isn’t. That society defines, or reality defines. After there is ownership, the Torah says what to do in a situation where there is ownership.
[Speaker G] What he’s saying is that ordinary human norms determine it; meaning, it doesn’t have to be an effective legal system with power.
[Rabbi Michael Abraham] Fine, correct, but the rules existed in the ghetto too.
[Speaker G] No, no, I—
[Rabbi Michael Abraham] I think that’s what Rabbi Gibraltar wanted to claim. Rabbi Gibraltar wanted to claim that in a place where any child can shoot you in the head and take all your property, and no one will come to him with complaints—sorry, no one will come to him with complaints, no one will take it from him, you can’t sue him—in a place where there is no system of norms at all, no legal system, no system at all that regulates matters of property, there are no monetary laws. There are no acquisition laws. Once there are no acquisition laws, I think that’s what he meant to say. I’m doing this very briefly because I’m only trying to illustrate. For me this is not my topic; it is only an example of the mechanism I want to discuss. So the claim is basically that once there are no monetary laws, automatically there is no loan, no damages, no theft, no anything, because there is no acquisition. And the concept of acquisition is a pre-halakhic concept; there is no point discussing it in halakhic categories. Therefore you search in vain in the Shulchan Arukh for a statement of when there is ownership and when there isn’t, and whether in a ghetto—
[Speaker E] I think this is a very un-Rabbi-Shimon reading of Rabbi Shimon, because it basically understands the concept of pre-halakhic in a formal rather than a concrete sense. The pre-halakhic infrastructure of monetary law is an infrastructure connected to human reality. Human reality does not necessarily require a legal system to enforce laws for that.
[Rabbi Michael Abraham] Also according to Jewish law there was reality there too, in the sense of normality, even without a legal system. Who says? I wasn’t there. I’m claiming that Rabbi Gibraltar—again, I said there were people there who disagreed with him—but Rabbi Gibraltar basically wanted to claim exactly this. He wanted to claim that in a situation of this kind there is no regulation of ownership at all. That is much stronger than saying there is no legal system. The lack of a legal system is of course an expression of that, but this is much stronger than that. And therefore he claims that in such a situation all the implications of monetary law do not exist. That is my proposal for interpreting his words. Now, one can argue about it, but I want to use it only as an example, so it’s not my subject. What does this actually mean? What this means is exactly like with the frying pans or like Mary’s optics. What I want to claim is that when you find yourself in extreme circumstances like the ghetto there, he was not permitting people to steal because it was a pressing situation. That is not the first mechanism, which says that because there is pressure I choose one option from among several options. He claimed that in such pathological, such extreme, such distant-from-normal situations, there is some kind of different halakhic determination; it is simply a completely different normative world. The entire ordinary normative world is not relevant there. In this connection the example that always comes to my mind is this: two people are in an elevator, and the cable snaps and the elevator is plunging from the fifth floor to the ground at tremendous speed; you know you’re going to die in another minute. Both of you—two people are in the elevator, both will be dead in a minute. I say to the person next to me: give me a pen, I want to write a farewell letter to my loved ones. He says no, I don’t agree. Theft—you may not take it. Now I say: I don’t know, I haven’t been in such a situation and I hope I never will be, but if someone is inside such a situation, I wouldn’t be surprised if he says, come on, this isn’t called theft. What meaning does it have now that this pen is yours? That in another minute it will be smashed in your pocket? So yes, on the formal halakhic level there is no permission for this. On the formal halakhic level it is his as long as he’s here, and afterward it belongs to his heirs. But when you are inside such a situation—and I think it’s a good analogy for the ghetto—when you are in such a situation, it may be that you have some very deep feeling that in this situation the ordinary rules are no longer relevant. They do not exist here in this state. And therefore in such a state I take your pen by force.
[Speaker C] In legal theory they would call that defenses or something like that.
[Rabbi Michael Abraham] What do you mean?
[Speaker C] Like, when the situation is not normal, there is sometimes justification for committing an offense, and that’s basically what this means.
[Rabbi Michael Abraham] No, it’s not justification or excuse. Not a kind of excuse. There is the justification of necessity, and the other thing—I don’t remember what it’s called there in law. Yes. I don’t mean excuse.
[Speaker C] I know you don’t mean that. I’m saying that there you say there is no offense at all because there is no ownership at all, ownership has no meaning.
[Rabbi Michael Abraham] Not that I permit you to violate theft because of pressure or distress, but rather there is no theft in such a situation. Now I don’t know—I haven’t been in such a situation—but I claim that someone who is in such a situation can, from his own personal experience, arrive at the conclusion that in such a situation there is no ownership. It’s a foolish game, and there is no ownership in such a situation.
[Speaker H] But are there commandments, is there morality, or is there nothing? Are there commandments, is there morality, or is there nothing?
[Rabbi Michael Abraham] I assume—you’re asking me as someone who wasn’t in that situation—so I’ll tell you yes. When I’m in such a situation—hopefully that will never happen—maybe I’ll give you a different answer, I don’t know. Honestly, I don’t know. I’m saying: if this hadn’t come to me from these articles by Rabbi Gibraltar, I would never have thought in this way at all. It woke me up to think that there is some aspect here that the armchair critic misses. With your construct, everything is wonderful, but you are assuming some sort of normative world or some full regulation like that—who says it is even relevant to this pathological situation? Now I really need to finish, so I just want to point to one implication, or a few implications briefly, and with that I’ll finish. The claim I want to make—actually, sorry, one sentence before the implications. The one who is supposed to make the decision in the first type of case—that is, which option among the several before me to choose, whether the pressing circumstance allows me this or that—I claimed that the decisor is supposed to tell him: these are the paths before you; this is glatt, this is after the fact, this is prohibited rabbinically, this is prohibited on the Torah level, this carries karet. Now you decide what you do in the situation. You know your distress, you know your fear of Heaven, you know what price it exacts from you and what prices you are willing to pay—you need to make the decision, not me. I merely draw the map for you. And I can even bring proofs for that; it’s a completely different conception of the role of a halakhic decisor. A decisor is not supposed to make decisions; he is a halakhic expert, he is supposed to draw the options before you, that’s all. You need to decide; every person needs to decide for himself. That’s in the first mechanism. In the second mechanism, in my opinion, it is indeed a decision for a decisor, because in the second mechanism the ordinary householder who is there in the ghetto feels that there are no monetary laws, but he doesn’t know what monetary laws are—you know when they exist and when they don’t. Once you know when they exist, you can also know when they don’t. Meaning, you really do need to enter into a situation where you understand that this is what Jewish law says in this situation—not, this is what seems to me in this situation; that’s not the same thing. An ordinary person will say: look, it doesn’t seem reasonable to me that there should be ownership here, and therefore there is no theft and no anything. I don’t give that a lot of credit. But if a decisor who is there says it, then the decisor is basically telling me: I am telling you, this is the Jewish law in this situation—not just what I think, but to the best of my understanding this is what Jewish law says in this situation. Therefore I think the second mechanism is entrusted to the decisor and not to the questioner. Now I won’t get into why this belongs to the questioner and that to the decisor, because I don’t have time, but that is one implication I want to mention here, and you can begin to see the implications. I want to point out that when I speak here about extreme circumstances, extreme does not necessarily mean only monetary law, life-and-death law, Holocaust, dangers, and terrible things of that kind. Extreme can even mean the distance between the situation and the decisor. Here I come to Naama’s earlier question. Meaning, if the decisor is very far from the world in which the questioner lives, he doesn’t really understand how people experience life there, then he cannot issue rulings for such a world. And this applies even to more minor questions, not only to fateful questions. One example—of course one can argue about it, but again just as an illustration—is a woman singing, going to a performance by a female singer, okay? Now if you think this is a formal prohibition—listening to a woman sing, ‘a woman’s voice is nakedness’—fine, okay, then it’s forbidden, a decisor can tell everyone it is forbidden and that’s that. But if you understand it as a prohibition that is the result of improper thoughts or concern for improper thoughts, where the context is very, very significant in analyzing the prohibition, then in such a case if a Haredi decisor who sits within his own four cubits—not necessarily Haredi, a decisor from the old generation who sits within his own four cubits and never in his life imagined hearing such a thing—he cannot issue a ruling on such a question. He is sure that when I tell him I am going to such a performance because I have aesthetic enjoyment from that singer’s music, he says to me, come on, that’s the evil inclination speaking through your throat—and he may even be right, I don’t know. But I think not; I think there are people who go because of aesthetic enjoyment and not because of all kinds of sinful thoughts. Now he sometimes—not always, but sometimes—won’t be able to grasp this at all; he won’t accept that explanation even if I give it to him, because it is obvious to him that that is not the case. He doesn’t live in this world. Various questions about egalitarian prayer quorums that always come before conservative decisors, decisors from the older generation—not necessarily from the older generation, but conservative decisors—that just isn’t their world at all. They don’t understand what these things mean to people, what the significance of each decision is, whether a woman does or does not get called to the Torah. So from their point of view there is no dilemma. And again I say: I’m not talking about the fact that they don’t understand that one has to be lenient, because otherwise there will be a problem; I’m not speaking on that level. I’m speaking on the level that they do not understand that there the Jewish law is different, because it is a different world that you do not know, and in that world the Jewish law is different from the Jewish law you think it is. And so there are—and again, each such case can be argued—but I’m trying to illustrate the principle. The principle is that circumstances play two kinds of roles. One is choosing one option from among several options—pressing circumstances and so on, or stringency, or safeguards, or whatever. And the second mechanism is that sometimes a change in circumstances, especially if it is very extreme or very drastic, can simply change the normative system in which you are operating. The rules become different. It’s not that you choose option C rather than option D; rather, the options themselves are not what they were—they are different options. You simply cannot draw the map of options at all if you are not experiencing the situation from within. Okay.
[Speaker F] Rabbi Michi, I’d like three comments, with your permission. First of all, just incidentally, when you speak about a very, very non-normative reality, I thought about Ilan Ramon, may he rest in peace. Alone in his spacecraft—that’s a reality where I don’t even know whether Jewish law applies there or not. And that’s just another, somewhat nicer example than one connected with Holocaust Remembrance Day. Second point: I once—I’m an engineer by training—and I argued that there is an essential difference between the work of an engineer and the work of a doctor. Because the doctor says: bring me the diagnosis, bring me—not the diagnosis, bring me the findings, and from the particulars I move to the general, and I try to connect those findings and say what this patient is suffering from, and then hopefully to find a cure. The engineer goes from the general to the particular. You come to the engineer and say: I want a bridge over this river, sixteen meters wide, two hundred meters long, capable of carrying such-and-such a number of tons at one time, and so forth. Then from that general requirement he has to go to the textbooks, get into the particulars, and say how to do everything else: what foundations, what materials, what reinforcements, how many supports, and so on. The question is where the decisor falls: is his work like that of the doctor or like that of the engineer? On the face of it, it somewhat resembles the two alternatives you mentioned earlier, to some extent—as though if I choose the alternatives, sorry. At first glance it seems that the decisor is like the doctor. Rabbi Adler once told me in the name of Rabbi Soloveitchik that Rabbi Soloveitchik claimed that when a question came to him, he usually already knew the answer before he got into the details. And I assume that this is a world not of particular and general, or particular or general, but perhaps general and particular, maybe general and particular and general, I don’t know which. That’s the second remark; I’m not sure exactly how it connects to what you said, but maybe it does somewhat. Third remark: with all due respect to your analysis and your attempt to give categories for the relevance of context as opposed to details, when you go to a real decisor, a great decisor, he is not necessarily going to agree that he should present alternatives and let the questioner choose. He will also tell you: as far as I’m concerned there is no difference between the two things. I as a decisor must decide what Jewish law says in every case, and I may also say, or perhaps find in certain cases, that the law does not apply at all, by its nature it does not apply, as you said. Therefore he will say: it actually doesn’t matter, these are all decisions. Therefore I say it doesn’t entirely matter. You go to a real decisor, and the decisor says: let me decide whether this is merely a problem of alternatives, whether it’s a problem of context, whether it’s a problem of knowing the reality.
[Rabbi Michael Abraham] If that decisor—just one more sentence.
[Speaker F] If that decisor is expert in monetary law but not expert in stains, then if he is an honest person he’ll say: go to the first floor, as was said earlier, because I’m not expert in that. If he is not expert in a certain world and thinks that in that world there is room for Jewish law, then he must step aside and say: I’m not expert, go elsewhere. But the decisions are the same decisions in my view, and there’s no need for the sharp categorization that you’re making.
[Rabbi Michael Abraham] So I’ll say briefly. First of all, regarding the second point: there is a philosopher of science named Michael Polanyi, and he gave an example of the importance of use as opposed to study, to use our Torah-world terminology. He says: Stradivarius, the legendary violin maker—he says that with all the precise equipment we have today, people still do not manage to produce violins of the quality Stradivarius produced. And his claim is that Stradivarius’s apprentice—if we take Stradivarius as an engineer—the apprentice did not really learn from Stradivarius a set of rules that he then applied to the violin, because that could also be transmitted onward. That is not information that gets lost along the way. What is hard to transmit by tradition is the use, that intuitive feel: you tap on the wood and understand at what angle to plane it so that it will make a good violin. So even the engineer—the distinction you made between engineer and doctor is, in my view, not accurate, at least not accurate if not outright wrong. And therefore I don’t know how to answer where to place the decisor, because I think the thesis and antithesis are not really distinct from one another. Beyond that, what you said at the end about Rabbi Soloveitchik and knowing the answer before getting into the details—I don’t think that has to do with whether you go bottom-up or top-down. Rather the question is whether intuition precedes justification or whether justification creates the answer. But that is not a question of rules versus particulars. Sometimes I intuitively understand that this has to be the answer. Now I try to conceptualize it, define it, find the proofs for it. That’s what is being discussed in that context, and there are many stories about Rabbi Soloveitchik on this point. Rabbi Shapira told me that everyone who says this about Rabbi Soloveitchik is wicked—he told me this exactly a few weeks ago at some study day at Bar-Ilan. Never mind. Then I made this distinction to him. I said to him: if you say whatever you want and then justify it, that’s not—well, that’s Reform. But if you say: this is what seems right to me intuitively—not what I want, but what seems right to me—and afterward you provide the justification, that, in my opinion, is true in many, many cases of decisors. Therefore I don’t think it specifically relates to rules versus particulars or top-down and bottom-up, but rather to the question whether you are, let’s call it, a positivist or a natural-law person. I don’t know whether you proceed by some sort of deduction—not deduction, that’s not quite right—but by some rigorous reasoning, or whether you rely on your intuition and afterward build the justification around the intuition. And on this matter I think that a great many decisors go by the second path, and that is perfectly fine. I see no problem with it as long as they are honest enough that if it doesn’t fit with the justifications that come afterward, they know how to retreat from that intuition. And the last thing I want to say is that if I ask many decisors about many of the things I say, they’ll tell me they disagree, and that is not an argument that tends to make much impression on me. I think this is what should be done. This is not a factual claim about what a decisor does; it is a normative claim about what a decisor should do. Now on that matter I understand that I do not enjoy the agreement of all decisors, and that’s fine. But if you want to claim that a great decisor can always enter the situation—that I do not accept. I think it’s not true. A great decisor—even if he is great—on the contrary, his greatness lies in saying: here I step aside. And that is absolutely right. I will give him the ruling, I will give him the ruling and he will tell me: I step aside. But at the end of the day, leave me the ruling.
[Speaker F] I said the same thing, I said the decisor… it can’t be that we don’t have a disagreement. My disagreement with you is that all the decisions are decisions of a decisor, and your categorization between things where one chooses among alternatives and a reality in which you say the law does not exist at all—that categorization is not so important. That is a decision the decisor has to make.
[Rabbi Michael Abraham] No, but the question is whether the decisor makes a decision to choose one option out of five, or whether the decisor says the one option that exists is this and not that. Not to choose one out of two, but the options are different. So even if both decisions belong to decisors—which I don’t agree with—but even if both decisions belong to decisors, it is not the same decision; these are two completely different decisions. The decision that right now there is danger to life and therefore you should be permitted to work on the Sabbath—that is a decision of the first kind. A decisor says that, let’s say, no matter. That’s a decision of the first kind. The decision that in this situation the ordinary monetary laws do not apply—that is a decision of a different kind. Even if a decisor makes it, I don’t care, but it is a different decision.
[Speaker F] True, but these are still two decisions within the world of halakhic ruling, in my view.
[Rabbi Michael Abraham] Fine, whether a decisor does that or not—I said I’m not getting into that, I have my proofs and arguments—but they are still two different decisions. About that, yes, that is what I spoke about here, and on that I do think I am right.
[Speaker A] Okay, thank you to Rabbi Michi. Any more comments, questions, responses? Rabbi Yehuda wants to say something?
[Speaker E] Is it possible to stay and ask without burdening the others? Because I’m not sure what I’m claiming is interesting to the others…
[Rabbi Michael Abraham] Whoever wants is free to leave.
[Speaker E] After they leave, after they leave.
[Rabbi Michael Abraham] Everything’s fine, speak. Whoever wants can quietly leave.
[Speaker A] Please, let’s wrap it up like this, Rabbi Yehuda had to leave. Let’s have some kind of closing before… to offer some comment, actually maybe not from the angle Rabbi Michi discussed, but since we’re talking here about the Holocaust, this issue of Jewish law in the Holocaust—I once had the privilege of hearing this from a dear Jew, Rabbi Sinai Adler, who’s well known to everyone, who was the rabbi of Ashdod, and after his wife passed away he moved to Kollel Meretz. Every year on the Tenth of Tevet, if I’m not mistaken, Kollel Meretz would devote a lesson to one of the halakhic questions that troubled him during the Holocaust. At the time he wasn’t a halakhic decisor, he was just—well, it’s not nice to say it like this—but basically a yeshiva student who, at age twenty-five, was pulled out of the yeshiva in Czechoslovakia, and he was taken to Theresienstadt, and after a year in Theresienstadt he went through Auschwitz, briefly, on the way to a long period in Mauthausen, where he went through—the last place on the route, whether it was a death march from there or something like that. And the amazing thing he always used to tell was: from Mauthausen, as you know, people weren’t going on picnics. And it’s interesting that the discussions—he would look for people for halakhic discussions during forced labor, and when they came back late at night they would discuss various things. And once again, I’ll give one example, a story he told. One Passover eve—one Passover he spent in Theresienstadt, there was even a Seder there. The year after that, he spent Passover in Mauthausen. So not that… but there was nothing to eat, and they gave him a piece of bread on Passover eve in the afternoon. So he thought to himself that he wouldn’t eat it, and would save it until morning, so that on Seder night he wouldn’t eat leavened food. Then he told this to another Torah scholar who was there with him in Mauthausen, and the man told him that from a halakhic standpoint it was preferable to eat it immediately so as not to get into the issue of possessing leavened food and having it seen and found in one’s possession.
[Rabbi Michael Abraham] That’s excision, not just possessing it.
[Speaker A] What? Right, excision—on Passover eve it’s even more severe. Now, what’s interesting in light of what we said earlier: it’s obvious to all of us that that piece of bread, the hundred grams they got there as a daily ration, was a matter of saving life, and in Mauthausen there was nothing else. But he explained to us: that nourishment, that’s what gave us our vitality, that gave us the strength to survive in those camps.
[Rabbi Michael Abraham] You know, by the way, Rabbi Gibraltar, I think, brings that the Divrei Avraham ruled there in Kovno that the yeshiva students should be careful not to eat legumes. He said, it’s a matter of saving life, that’s all true, but in any case we’re going to die—maybe the merit of this stringency will help us, that the Holy One, blessed be He, will nevertheless save us. It’s an amazing story to my mind. It’s hard to understand its justification, but that’s what he writes there.
[Speaker A] That’s—
[Speaker F] Again, an example of context.
[Rabbi Michael Abraham] Right.
[Speaker A] Thank you very much to Rabbi Michi, in any case it was fascinating.
[Speaker H] Thank you, thank you very much.
[Speaker A] Anyone who wants to keep the debate going—Rabbi Michi isn’t closing the link—you’re welcome to keep arguing. Good evening, everyone, and in about a month we’ll meet for the next lesson. Goodbye, everyone.
[Speaker C] Thank you, thank you very much, Ari, thank you.
[Speaker G] Good night.
[Speaker C] It leaves you wanting more.
[Speaker G] Totally. Rabbi Michi? Yes. First of all, really amazing.
[Rabbi Michael Abraham] You’re coming through choppy, I can’t hear you, you’re disappearing. Rabbi Paz, can you hear me? Because they can’t hear you. Rabbi Yehuda, you wanted to say something, so maybe until he comes back to us…
[Speaker G] Amazing stories. If you have the material from Rabbi Gibraltar—I saw you have a dinosaur, I’m only speaking from memory.
[Rabbi Michael Abraham] No, I don’t have the original source, the articles in the original. But the reference appears in the article I wrote about it; it says there in which issue of Yated it appears, so you can track it down. Do you want me to send it to you? I’ll send you the article.
[Speaker G] I’d be happy to, thank you so much. Just two things. First, Adina Sternberg’s comment didn’t get the attention it deserved. Look at the chat, you’ll see—she made an important comment.
[Rabbi Michael Abraham] The chat was already gone when I looked for it afterward, once I got back.
[Speaker G] Just to mention that in Simcha Emanuel’s book, she says that Talmudic research also deals with, as you say, context, but also very often with situations where the claim is that the Talmud simply did not understand what earlier Amoraim said. As if the tradition was corrupted and a few words were transmitted, and their original meaning was completely different from how they were later understood. So that’s something entirely different from everything that…
[Rabbi Michael Abraham] Something entirely different, even though the answer—
[Speaker G] —to it is very similar, but—
[Rabbi Michael Abraham] That needs to be discussed separately.
[Speaker G] But okay, fine, my lesson was dealing more with that kind of context.
[Rabbi Michael Abraham] Yes. No, no, that wasn’t a response to your lesson.
[Speaker G] Okay, okay. When you say that a halakhic decisor has to be honest enough that even if his intuition led him in a certain direction, if afterward he finds sources that say the opposite then he has to retract, I just want to note that the Chatam Sofer says explicitly that if he gave someone a responsum, and afterward someone comes and says to him—do you know this?—listen, there’s a Talmudic passage that says otherwise, and the truth is I hadn’t seen it, I forgot that passage when I answered him, and if I had remembered it I would have answered differently—nevertheless, since the Holy One, blessed be He, didn’t allow me, he says explicitly that righteous people—
[Rabbi Michael Abraham] The Holy One, blessed be He, does not bring a stumbling block through them.
[Speaker G] Since the Holy One, blessed be He, didn’t allow me to remember that Talmudic passage in time, that means, he tells him, that Jewish law is not a matter of Talmud but rather prophecy from heaven in every generation. Let’s—
[Rabbi Michael Abraham] Let’s just say that’s a part Rabbi Michael connected with less. Yes, I think so too.
[Speaker G] You’re disappearing on us, Abbas.
[Speaker E] I wanted to ask something else. I didn’t fully understand—can you hear me, Michael? Now I hear you. Go ahead, Rabbi Yehuda, speak. The point I didn’t understand is this: on the one hand, when Naama asked you about morality—whether there is morality in reality and so on—you said, I don’t know, because I’m not in that extremely extreme reality. On the other hand, you assumed that you are capable of understanding why there are no monetary laws there. Meaning, Rabbi Gibraltar’s position was that there are no monetary laws, and if I understand correctly he didn’t explain why, and you proposed some understanding. One version: maybe it’s an extension of property washed away by the sea. Another version: that the whole foundation of legal theory simply isn’t relevant, and therefore there are no laws of ownership. But if you truly are not there, if the reality is so different, then how can one even presume to offer an understanding of Rabbi Gibraltar’s position?
[Rabbi Michael Abraham] There’s an assumption here that, after all, human nature is one and the same. They too are human beings, they live in our world, it’s not completely disconnected—you don’t have to take it to such an extreme place. My claim is that if he tells me that this was his basic experience, first of all I believe him. Now, I can still try—maybe I won’t always succeed—but I can try to fit that into the accepted patterns of Jewish law, maybe understand what in them should be preserved and what should be changed in light of his testimony. But I’m still working inside that system.
[Speaker E] No, but at that point it already undermines itself. Precisely because the moment you succeed in fitting it into accepted halakhic patterns, that means that in fact you do succeed in relating to the reality using the existing tools. Maybe—and again—the point is more discovery than context of justification. Meaning, he discovered it, he discovered that position through being in the extreme reality, but why he discovered it no longer interests me. As long as I know how to justify it in conventional halakhic language, that means there is a bridge between the ordinary conventions and the reality.
[Rabbi Michael Abraham] I agree, with one limitation. The limitation is exactly the argument I had earlier—I don’t remember, maybe it was with Rabbi David, I don’t remember with whom—who said, wait, but who says? It could be that if there are norms, even if there is no legal system, the laws of ownership still remain fully in force. Now here Rabbi Gibraltar tells me: look, as between those two options, I for my part don’t know how to answer that, but Rabbi Gibraltar says to me, as someone who lived inside it, I’m telling you that in such a situation there are no laws of ownership. And in that sense, I can’t—the justification I find would not replace Rabbi Gibraltar’s testimony.
[Speaker E] Right, but I believe him as testimony, except the testimony is not relevant, because I believe you that that’s how you felt—but what relevance does your feeling have to a halakhic ruling? After all, in the end, as you said at the end of the lesson, it’s not that just some person says reality is different; he says it as a halakhic decisor. As a halakhic decisor he does not function as a witness, but has an element of decision. In the sense that the very ruling that there are no monetary laws is not only… not only a testimonial component, it’s a testimonial component plus a judicial component. Now, in the judicial component he can be wrong. Obviously.
[Rabbi Michael Abraham] What I—
[Speaker E] Believing him about his experience doesn’t—
[Rabbi Michael Abraham] They’re understood as two completely different stories. Obviously he issued a halakhic ruling there—what, is there any doubt?
[Speaker E] No, I—
[Rabbi Michael Abraham] I’m talking about myself, as someone making decisions now, not about what he did there. For me, his ruling there is testimony, because I wasn’t there. He himself certainly issued a halakhic ruling and did not merely function as a witness; he was a judge.
[Speaker E] But we’re talking about—you criticized the criticism leveled at him. So basically the question is whether, now from here, from our point in time, one could criticize his halakhic position. Now? One can, it’s possible, but you—
[Rabbi Michael Abraham] You need to be aware that such criticism is not necessarily justified, even if in your ordinary categories the criticism is correct. Because it may be that the person is telling you: listen, accept what I’m telling you—I experienced this situation, and in this situation all those categories just don’t apply. Understand: if he had said, look, ah, you caught me, you’re right, I missed that point—fine, then you criticized him and everything is okay. But his subtext was this: ah, you caught me—he missed the main principle, and suddenly it was clear to him that there is no—there could be nothing that would still uphold Rabbi Gibraltar’s words. Because after all, he had caught him according to the regular rules. And that’s what bothered me, not the criticism itself.
[Speaker E] So it was a bit of a dialogue of the deaf, basically.
[Rabbi Michael Abraham] In a certain sense, yes.
[Speaker E] His main claim was something that—
[Rabbi Michael Abraham] He doesn’t accept this category that I argued in favor of the gaon. It may be that he doesn’t accept the claim that someone who lived through the situation has an advantage, and can determine for me that in such a situation there are no monetary laws.
[Speaker E] But that was Gibraltar’s main claim, wasn’t it?
[Rabbi Michael Abraham] Yes. And maybe the fellow who wrote the criticism wouldn’t accept my argument, this claim that says Rabbi Gibraltar has some advantage because he experienced it over someone who didn’t. Maybe he doesn’t accept that thesis; he’s the type of those Rabbi Chaim-style people who discuss washbasins as constructions. So he can disagree with that thesis. I don’t agree with him, I think he’s wrong, but yes.
[Speaker E] Interesting, interesting, very interesting.
[Rabbi Michael Abraham] What do you say, Rabbi David?
[Speaker G] No, just—it’s not really relevant, but it’s interesting in the context you’re talking about. Rabbi Simcha Emanuel has a book, It Shall Be Told to the Generation, something like that, and he tells about his mother, who was in a camp together with him, the whole family—I don’t remember the name of the camp now. There was a situation where on the Sabbath she had some sort of trial, a kind of trial for a disciplinary offense she had committed there in the camp—I don’t remember exactly what the story was—and she had to speak and defend herself.
[Speaker E] Oop, he disappeared. So meanwhile I’ll tell you something about the first thing you said. You presented the difference between yourself and Rabbi David, that Rabbi David deals more with research. Yes, sorry. Fine.
[Speaker G] And in the end she died there of starvation, and at the end of the story he says—he tells her story and says, “You established the Sabbath, You desired its sacrifices,” as if she cut her words short in the disciplinary hearing so that a Jew writing the protocol would not have to do more labor on the Sabbath, and because of that she lost two days’ worth of bread and in the end died. So he says about that, “You established the Sabbath, You desired its sacrifices,” as it were. And I simply remember that, I think, every Sabbath Musaf prayer, every time anew when I say those words, I remember this different meaning that he pours into them. So that’s just in a distant connection to what you’re saying—it’s obviously not the core of what you’re talking about, but still.
[Speaker E] I’ll just tell you something that relates to both of you. Rabbi Michael presented at the beginning of the lesson that he characterized you, Rabbi David, as someone who deals with research, but your position is that you don’t mix research into Jewish law, whereas he is not research-oriented—he’s a yeshiva student—but if he sees fit to use research, then he won’t have any problem ruling accordingly. So I think that’s somewhat interdependent. Meaning, maybe what gives you the freedom and the willingness and the lack of fear to engage in research is the understanding that it will never change your world of Jewish law. You exaggerate my fear of Heaven, Rabbi Yehuda. What?
[Rabbi Michael Abraham] You exaggerate my fear of Heaven—I don’t avoid research because I’m afraid it will move me away from Jewish law; it just seems interesting to me.
[Speaker E] Right, that’s what I wanted to say—that in your case I’m not sure you can say it the other way around, but it could work the other way around.
[Speaker G] At Tel Aviv University once I spoke about a heter iska, I spoke about legal fictions, and one student said: if I were religious—if I were really religious—I wouldn’t use such legal fictions.
[Rabbi Michael Abraham] It’s not—
[Speaker G] —such a great feat if you—
[Rabbi Michael Abraham] —simply don’t engage. Exactly. Fine. Okay, Wolfson once told me that the Chazon Ish has extremely lenient rulings in the laws of the Sabbatical year.
[Speaker G] Certainly that’s true.
[Rabbi Michael Abraham] And what forced him into that was because he doesn’t accept the sale permit—meaning, somehow you have to manage.
[Speaker G] It’s deeper than that, explicitly: in order to show that it’s possible without the sale permit, so that people would not need the sale permit, he created truly astonishing leniencies so that people would not rely on the sale permit.
[Rabbi Michael Abraham] He also told me that with my radical worldview I can allow myself that, because my children studied there in the cheder. So I don’t have a problem, I can say whatever I want—I have an insurance certificate. So that’s already more similar to what you said earlier. Yes, yes.
[Speaker G] Okay, more power to you—
[Rabbi Michael Abraham] Great. Okay, good night, goodbye. Good night, thank you very much. Good night, thank you very much.
[Speaker G] Bye, bye.
