A Slave as a Master: Autonomous Halakhic Decision-Making

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[Rabbi Michael Abraham] The same thing. Meaning, there’s no difference. Both a doubt in the law and a doubt in the facts follow the presumption of possession. So why here is it discretionary judicial allocation? Because it seemed to the Sages that here it’s not right to apply “the burden of proof is on the one who seeks to extract from another”; here, it’s discretionary judicial allocation. Okay? And then he continues regarding a case where he betrothed her for twenty and gave her thirty in installments, all kinds of cases like that, so they divide it, and we would divide it, and we do not say “the burden of proof is on the one who seeks to extract from another,” and Sumchus, and they simply get into the whole… Again, I’m not getting into this whole issue at all, I’m just trying to show you the flow of the discussion. Tosafot brings this entire business into our topic that we’ve learned until now. All of the discretionary judicial allocation and “the burden of proof is on the one who seeks to extract from another,” and if it’s lying there, and likewise “they divide it” — he brings these issues in here, and he doesn’t care whether it’s a doubt in the law or a doubt in the facts. But after he finishes this whole story, he concludes as follows: “And where the Talmud does not explain anything…” In other words, where the Talmud says nothing, there isn’t one person who said this and another who said that, but rather it leaves the issue open, right? In that situation, we should say: “the burden of proof is on the one who seeks to extract from another.” “And where no Jewish law was stated, not like this master and not like that master” — good, if the Talmud said nothing, then “the burden of proof is on the one who seeks to extract from another” even in a doubt in the law, as he said above. “And where no Jewish law was stated, not like this master and not like that master” — meaning, in a place where the Talmud brought two opinions, discussed them, but did not decide the Jewish law, Tosafot says: “and the judge holds like one of them and acted — whatever he did is done.” What he did stands. “For so it says in the chapter ‘All Who Swear,’” and then he brings the Talmud we saw: “Now that it was not stated, not like this master and not like that master, one who acted like this master acted, and one who acted like that master acted. And if the judge is uncertain whose view the Jewish law follows, the burden of proof is on the one who seeks to extract from another.” What is Tosafot saying? Tosafot here goes against the medieval authorities (Rishonim) we saw in our passage, right? Tosafot is basically saying this is a sweeping rule. Everywhere that no Jewish law was stated — there are two opinions and no halakhic ruling was given between them — one must apply the instruction of the Talmud in Shevuot: “the burden of proof is on the one who seeks to extract from another”; ah, “one who acted like this master acted.” But he also explains what “one who acted like this master acted” means, right? First, we said there are two questions we ask: when is this rule applied, and what is its content? What does it mean, “one who acted like this master acted”? As for when the rule applies, we saw Rif, Rosh, and Maimonides saying: only in that specific case, it is not a sweeping rule. Tosafot says no, it’s a sweeping rule, every place where no Jewish law was stated between two opinions. As for the content of the rule, Tosafot also explains here: what is the content of the rule? That the judge can form an independent position. Where Jewish law was decided, then with all due respect to your independent position, you must act according to the established law. But where Jewish law was not decided and there are two opinions — because if there aren’t two opinions, then “the burden of proof is on the one who seeks to extract from another” — but if there are two opinions and no Jewish law was decided, then you basically have to determine your own view. If you think like Maimonides, act like Maimonides, even though there is a dispute with Rashba. And if you don’t have a position of your own, then the burden of proof is on the one who seeks to extract from another…

[Speaker D] …the burden of proof.

[Rabbi Michael Abraham] The question is whether he says that only after the fact or not — I don’t know, maybe you’re right. Not sure, maybe, maybe. But in any case he holds—

[Speaker D] No, no, there’s some kind of tone here…

[Rabbi Michael Abraham] There is a bit of an after-the-fact tone here, I agree, although on the face of it it’s not clear why, because if he takes it as a sweeping rule, then it’s a sweeping rule, period. If he had, he would have written it more explicitly. Yes, something like that. I’m not sure, I don’t know. It’s not clear. According to what Kovetz Shiurim said about Tosafot, he said that this is specifically talking about a judge who knows how to decide. Fine, let’s talk right now about a judge who knows how to decide; we’ll also understand in a moment what “knows how to decide” means. So Tosafot is basically saying that in every dispute that remains open, at least after the fact if we accept Noa’s qualification, the judge can decide according to what seems right to him, at least if he’s capable of doing so — let’s also accept what Yehudit noted — and if he has no position of his own, then “the burden of proof is on the one who seeks to extract from another.” So if I go back: what does “and where the Talmud does not explain anything, we should say: the burden of proof is on the one who seeks to extract from another” mean? “And where no Jewish law was stated, not like this master and not like that master, and the judge holds like one of them… one who acted like this master acted.” What is the difference between these two statements? Why above does he write “the burden of proof is on the one who seeks to extract from another,” and here he distinguishes between whether the judge knows or the judge does not know? What does that mean? In other words, the first case is when the Talmud says nothing, and the second case is when two opinions are brought and no ruling was given. And if the Talmud says nothing, am I forbidden to form my own position? On the contrary, all the more so I can form my own position. If the Talmud says nothing and there are no two opinions, then I’m the first one to deliberate about it, so what’s the problem? Why, if there are two opinions, would I not work with the written rules? Why? The question is: what’s the difference? What difference does it make whether the Talmud brought the two opinions, or left it open, or didn’t address it at all? I can still form my own position and act as I think. And it seems to me that Tosafot does not mean to say two different things here. It’s the same thing. In general, know that even in a doubt in the law, the rule is “the burden of proof is on the one who seeks to extract from another.” But if there are two opinions and Jewish law was decided like one of the opinions, then of course we follow it. Everything I said about “the burden of proof is on the one who seeks to extract from another” is only when no ruling was given between the two opinions. And even in such a case, if the judge has a position, then he is not obligated to rule “the burden of proof is on the one who seeks to extract from another”; he can go with what he thinks. It’s not two separate ideas; it’s the same thing. It’s all in the same place. The two opinions are not connected to “the burden of proof is on the one who seeks to extract from another.” The two opinions each say what they say. Only after there are two opinions and now there is someone in possession — what do I do with that? So if I have no position of my own, then “the burden of proof is on the one who seeks to extract from another.” If I have a position of my own, then I rule as I think. Okay. This is an interesting point — I think I mentioned the Shakh once. The Shakh, in Kuntras Tekfo Kohen, discusses the question — I think I mentioned this once when I talked about the formulation of Rabbi Abba — that seizure after the doubt arose is ineffective. If someone comes and seizes money from me that I was holding, in front of the judges, he does not become the possessor, right? Possession is determined at the moment we arrive at the religious court. That is the moment the doubt is born. Seizure after that moment does not change the situation. Seizure is effective only before the doubt arose. So the Shakh comments there: what happens if there is a legal doubt? A dispute between Rashba and Maimonides, for example. A case comes before a judge in the twenty-first century, and he knows that regarding this case there is a dispute between Maimonides and Rashba. Does possession have any meaning? After all, this possessor seized the object after the doubt arose. The doubt arose in the twelfth century when Maimonides and Rashba disagreed — or in the thirteenth century when Rashba and Maimonides disagreed. So basically possession has no significance at all in a legal doubt. So the Shakh says: not true. Precisely because of this principle. Because the judge in practice determines whether there is or is not a doubt. The fact that Maimonides and Rashba disagree does not mean I must be in doubt. They disagree — good health to them — what does that have to do with me? If I have a position and I think like Rashba, then I am not in doubt. If I am in doubt and I don’t know which of them is right, then indeed it is a state of doubt. But the doubt is not because they disagree; it is because I do not know who is right. The doubt arises in me, not in them. So the moment the doubt is born is with the present-day judge, not back then with Rashba and Maimonides. And that is basically saying the same thing as Tosafot here. He doesn’t mention Tosafot, but that’s essentially what he says: in practice the judge — so what if Rashba and Maimonides disagree? The judge before whom the case comes must decide according to what seems right to him. Except that if he has no position, then “the burden of proof is on the one who seeks to extract from another.” Okay? That’s if he has no position. And if he has a position of his own, then what? Today it’s not like that. Today when people come to a religious court and there is a dispute between Rashba and Maimonides, that’s treated as a doubt and judged according to the laws of doubt. I do not accept that view. A judge must decide according to what seems right to him. There is no authority after the Talmud. He can say: I am not sufficiently convinced to go against the majority of the medieval authorities (Rishonim). That’s legitimate. But that’s because you are not sufficiently convinced, not because of the medieval authorities (Rishonim). And if you are sufficiently convinced, then go against them. Okay?

[Speaker D] That’s what we saw in the Rosh.

[Rabbi Michael Abraham] Yes, we’ll get to the Rosh, and we’ll get to Kovetz Shiurim, I’m going step by step. So Tosafot is basically taking some sweeping rule, and this rule has a role — and there’s a discussion here also regarding the content of this rule. Because with regard to discretionary judicial allocation, you’ve already seen this, right? There is a dispute between Rashi and Rabbenu Tam; the Rosh brings it. Rabbenu Tam goes — what is discretionary judicial allocation? It means do whatever you want: draw lots, give it to your friend, and that’s Rabbenu Tam. Rashi says: do what seems right to you. Okay? What seems just to you, let’s say — natural justice — or what you get the impression of even without evidence. Those are two possibilities in the law of discretionary judicial allocation. What does “one who acted like this master acted” mean? Regarding “one who acted like this master acted,” some want to say — especially in relation to the afternoon and evening prayer, by the way; the doubt there has many halakhic decisors saying that “one who acted like this master acted” does not mean do what you think, but rather do whatever you feel like. Because both opinions are legitimate, meaning they are both…

[Speaker D] …equally right.

[Rabbi Michael Abraham] …equally right, therefore whatever you do is fine. No, you can act like Rabbi Yehuda even though you think like the Sages. It doesn’t matter, because the fact that you think like the Sages interests no one. The truth is, they are both true. What you think also doesn’t matter; it neither adds nor subtracts. The truth was ruled in Jewish law like both of them. Therefore you can do whatever you want — not according to what you think, but like Rabbenu Tam in discretionary judicial allocation.

[Speaker F] Do whatever is comfortable for you, whatever you feel like, whatever you want. It’s like Rabbenu Tam in discretionary judicial allocation, not like Rashi in discretionary judicial allocation. That’s how they explain “one who acted like this master acted.” So all of this early acceptance of the Sabbath — right, if you bring in the Sabbath early, you pray before, because basically you’re going with two… riding—

[Rabbi Michael Abraham] …two tracks, yes, you’re dancing at two weddings, riding two horses. Yes, similar. Fine, with the afternoon and evening prayer it’s the most famous. With bringing in the Sabbath, if you pray early, from plag hamincha onward, that depends on the dispute between Rabbi Yehuda and the Sages, and the question is whether I can rule like both of them in two contradictory ways. Meaning, pray both the afternoon and — no, both the afternoon and evening services in the same time slot, and maybe even evening before afternoon. Because I can pray evening in a way that makes it already no longer time for afternoon prayer, and after that pray afternoon in a way that makes it still time for afternoon prayer, ruling like Rabbi Yehuda. After all, it is permitted to go like both of them. So the medieval authorities (Rishonim), many of them, say that in two contradictory positions you may not do that. And there are many discussions among the halakhic decisors on how to understand “one who acted like this master acted” there. What? Fine. All the possibilities come up there.

[Speaker D] All the possibilities come up there.

[Rabbi Michael Abraham] But that is discretionary judicial allocation. Now—

[Speaker D] I’m saying, what is “one who acted like this master acted”?

[Rabbi Michael Abraham] “One who acted like this master acted” also — there are those who say: what does it mean? We ruled that both sides are legitimate, both sides are correct, there is no right and wrong here. Therefore, as far as I’m concerned, you the judge can draw lots. Like Rabbenu Tam, do whatever you want, because whatever you want is legitimate. That is one way to explain it. A second possibility — wait, a possibility — yes, also in Shevuot.

[Speaker E] No, do whatever you want.

[Rabbi Michael Abraham] The judge decides that he does whatever he wants. Yes. There are two opinions, they… yes, yes, that’s the approach. That is one possibility.

[Speaker E] Then it’s like discretionary judicial allocation.

[Rabbi Michael Abraham] And then it’s like Rabbenu Tam in discretionary judicial allocation. A second possibility is to do like Rashi in discretionary judicial allocation — to say: do what seems reasonable in your eyes. A third possibility is to do what Tosafot says, and that is not like Rashi in discretionary judicial allocation. What is the difference between Rashi in discretionary judicial allocation and what Tosafot says here? In Rashi’s discretionary judicial allocation, the judge says: do what natural justice says, what seems logical to you, what makes sense. Tosafot here says: do what seems halakhically correct to you. After all, you are deciding Jewish law between two halakhic positions. Each one has a rationale. Let’s say I have a feeling he’s right — that is Rashi’s discretionary judicial allocation, not Tosafot. Tosafot says: don’t go with your sense of smell; go with your halakhic reasoning. If you think Maimonides is right, go with him. It’s not an impression of the litigants; it’s an impression of Maimonides and Rashba. Or of a statement, yes, or of the Amoraim. In other words, act like the one you think is halakhically correct, not like what you think is just in this specific case. Rashi in discretionary judicial allocation still leaves it in the specific field of this case. Within this case, sniff out who seems right to you and go with him. Tosafot says no: decide the halakhic dispute. When there is a dispute between Rashba and Maimonides, you decide which of them seems right to you and rule according to your decision.

[Speaker F] Not from reality. He said that in Shevuot — there, according to what seems right to you from a distance, look at reality and decide. Right. And Tosafot tells you: don’t look at reality. Exactly. No matter what case comes before you, you need to know what you rule halakhically.

[Rabbi Michael Abraham] Why? Because discretionary judicial allocation by judges speaks precisely about a case where the doubt is factual. In a factual doubt, what does it mean to make a halakhic preference and decide? I don’t have a halakhic issue — the question is factual. At most, use your sense of smell for what the true reality is. That’s what Rashi says in discretionary judicial allocation. But in our case, the doubt is a legal one. Both legal sides have reasons. Now it may be that you hold like Maimonides and it may be that you hold like Rashba, or that you hold like Rav and Shmuel or like Rabbi Elazar. So decide what you think and rule according to what you think — you are ruling Jewish law. Not just sniffing out who is right here, whether there is a debt or no debt. Exactly — it doesn’t matter what case this is; it’s not a matter of your sense of smell regarding the litigants standing before him. It is to rule Jewish law in the case before you. Therefore this is a third option; it is not like either of Yehuda’s two options, and it expresses the point that we are speaking here about a doubt in the law, not a doubt in the facts. Ordinary discretionary judicial allocation is said about a doubt in the facts — sorry, not a doubt in the law. What are you saying? That what this means is that both sides are actually right? The Talmud ruled positively that both sides are right, and therefore whatever you do is fine, and I don’t care how you choose. Even one who says “act according to your sense of smell” could be understood that way. Act according to your sense of smell because halakhically both are right. Of course, one could also say no: since I do not know how to decide, at least use your sense of smell and make a reasonable decision. And it could also be understood as: no, it is not that both sides are right, but rather that the Talmud decided not to decide. That does not mean both sides are right; it means the Talmud decided not to decide. Now you are the judge; a case comes before you, and you have an obligation to decide. So decide. Since you can decide, decide. Every judge with respect to a factual doubt — how will the judge decide?

[Speaker D] Why in a factual doubt can’t we…

[Rabbi Michael Abraham] Why, if one wants to say that also… No, in discretionary judicial allocation by judges we do not say “decision.” In discretionary judicial allocation by judges we say either like Rashi or like Rabbenu Tam. Only in “one who acted like this master acted” does Tosafot explain it as actual decision.

[Speaker D] In discretionary judicial allocation by judges, why don’t we… why, for example…

[Rabbi Michael Abraham] Here too, what the medieval authorities (Rishonim) in our topic discuss — whether division can be true or not — all of those distinctions, all of that is within the field we spoke about earlier.

[Speaker D] The question is whether we know that in discretionary judicial allocation by judges it’s because both sides are right, or because I can’t decide, and so on.

[Rabbi Michael Abraham] And that’s all the distinctions we made in the previous passage. I’m saying, that’s what all the distinctions we made in the previous passage were about: whether division can be true, whether there is certainly a swindler, possessors, non-possessors, a monetary connection — exactly, it all enters into that system of rules there. Yes. What did you say?

[Speaker D] Not everything—

[Rabbi Michael Abraham] It is permitted; the judge decides what he thinks. Not what he wants — that is one approach — what he thinks. Just like what happens today in court? Same thing.

[Speaker D] The second one is more a matter of being above everyone, right?

[Rabbi Michael Abraham] That’s indeed what he is. They come before him and he is above everyone, yes — that’s the meaning of a judge. He is appointed in order to decide. He is the decider, and we come before him. We come to him so that he will decide, so if he is to decide, you have to give him the tools to decide, the authority to decide, yes, that’s what there is. The big problem is that in the legal world today they are concerned with certainty in law. Meaning, you know that in a given case the judge can basically do what he is impressed by, so who knows — it depends on which judge you get. And that’s a situation that a legal system doesn’t like. Because a legal system likes certainty — meaning, you know the ruling is clear, the judge in the end only has to decide which law to apply — but that’s not really how it works. Obviously, because impression from witnesses really is subjective; you can’t — on the contrary, in these respects today’s legal system is far less certain than Jewish law. It leaves much more to the impression of the judge than Jewish law does. Jewish law dictates much more to the judge what to do. In the legal world — I once went to some traffic court over small tickets like that — the judge gave us a whole speech there, with incredible nerve, gave us this whole speech: friends, know this — and we weren’t lawyers, so he explained it to us. It won’t help you at all, you won’t be able to appeal what I say, nothing, forget it. Why? He gives us a free law lecture. Why? Because basically I’ll write in the verdict not a legal consideration, but rather: “this is the impression I got from the two sides,” and you can’t appeal an impression. Because the witnesses themselves do not appear before the appellate instance. The appellate instance needs to examine the legal reasoning of the lower instance. But if the lower instance says, “this was my impression, that he is telling the truth and the other one is not,” you can’t appeal that — except in very, very rare cases. So he basically told us: friends, I’ll do whatever I want here. And he says this within a system that talks about how Jewish law is anarchy and there’s no legal certainty there and all sorts of things like that. In short, it’s an illusion — you can’t create legal certainty. It always depends on the judge, and that is true to a large extent. Meaning, I have no complaints because there’s no other way to do it. I just think he shouldn’t have waved that around too much, and should have tried as much as possible to neutralize the subjective element. But of course you can’t completely, and that’s fine, there’s nothing to do, we’re human beings. What? The judge can rule what? Right, there are certain cases where there is discretionary judicial allocation by judges. Right. The point — the point that does not exist in the legal system but does exist in Jewish law is “one who acted like this master acted.” Discretionary judicial allocation by judges exists much more in secular law than in Jewish law. Because Jewish law confines discretionary judicial allocation by judges to very, very specific cases, where it determines in advance: here the judge will do what he thinks — according to Rashi — or whatever he feels like according to Rabbenu Tam. In the legal system, everywhere the judge basically acts according to what he is impressed by. There are almost no limits in terms of impression. He’s impressed that this is right, so it’s right. There is even evidentiary weight given to a litigant, something Jewish law does not allow at all. A litigant has no evidentiary weight whatsoever. But what happens here in “one who acted like this master acted”? Here the doubt is a legal doubt. Now when there is doubt in what the legal system itself says — not a factual doubt, but what the legal system itself says — that, in the legal conception, they are not willing to accept. Because that has to be decided. There cannot be uncertainty at the legal level, as opposed to the factual level. At the factual level there is always uncertainty. I don’t know what reality is. That is the judge’s job — to determine what reality was. You can’t prescribe for him in advance what reality was in every situation. That’s his job. What you do need to give him is the legal framework in which he works. Now Jewish law — and this really is the exception — “one who acted like this master acted” is the exception, not discretionary judicial allocation by judges. Because in “one who acted like this master acted,” the legal framework leaves something open. Not the facts. I am basically saying: there are two legal views, and the judge may choose whichever one he wants as a legal instruction, not in deciding what the factual truth is. That really is a lacuna that the legal world doesn’t like. They say: there’s no such thing. Meaning, the legislator or precedent or the High Court or the Supreme Court, whatever, they have to decide which way to go because there has to be some certainty. People need to know what the law is. When we sign a contract, we need to understand the legal constraints. Based on that, we decide how to formulate the contract. In other words, there has to be certainty. You can’t function when there is no legal certainty. That really is a serious criticism. But the fact is that in Jewish law there are situations of “one who acted like this master acted.”

[Speaker D] Is that what’s not good in Jewish law? What do you mean not good?

[Rabbi Michael Abraham] That is Jewish law.

[Speaker D] In a certain sense, look, it gives freedom—

[Rabbi Michael Abraham] …to the judge, but it doesn’t let me function within that framework.

[Speaker D] Because even today—

[Rabbi Michael Abraham] We function today because we don’t go to a religious court. We go to a secular court. In other words, you can’t function in such a system. What will happen in such a system — what will happen when there is truly a halakhic legal system here? Very simple: they will decide these things. That’s obvious. The theoretical Jewish law says to the judge: do what you want. When there will be a court system that really has to work and manage full legal life and not rely on secular courts, then obviously they will decide. Some authority — Sanhedrin, I don’t know who — will determine what is nevertheless binding. Even though strictly speaking we could have determined it either way, still, for the sake of legal certainty, we will indeed fix one option. Because you have to function. I assume that’s how it was. When there was an orderly system — however long that lasted, it wasn’t very long. But when there was an orderly autonomous system in which the whole legal system really was in the hands of the religious courts. Look even today at the kamikazes sitting in the religious courts today. Even there — and that is a system responsible for actual law, with authority in its areas, right? — see how many things there don’t go according to Jewish law. A lot of custom, and custom is binding, and you can’t have each religious court doing whatever it wants or we’ll never get anywhere. And sometimes the High Court intervenes. Why? And rightly so. Even though Jewish law may allow two possibilities. But when you are a functioning legal system, you cannot do such a thing. A person making a marriage contract needs to know what rules apply to that contract. Or another contract, it doesn’t matter — divorce.

[Speaker D] Whatever the contract is, it’s kind of terrible — I mean, it’s very nice—

[Rabbi Michael Abraham] Until you walk into the religious court and see that the judge does whatever he wants. And especially when it’s against you. Then it’s problematic. And it’s problematic because I would want to arrange the contract accordingly, because I know what I’m defending myself against. Two parties want to sign a contract. That was the criticism of Aharon Barak. This doctrine of good faith, where he basically interpreted contracts according to good faith and not according to what was written in them, according to what the parties intended. There was very sharp criticism of him: it may be that you are right on the conceptual level, but you can’t conduct life this way. You can’t conduct life this way because what happens is: I take the best lawyers to draft a contract for me because I tell them, listen, I want such-and-such to happen. Now you are lawyers; write this in a way that ensures that this is what will happen. Right? That’s what I ask of you. In Aharon Barak’s time, you couldn’t do that. Because you can’t write something in a way that ensures what I want will happen, because it will depend on which judge you get. Whatever judge you get, he’ll interpret it however he wants. You can’t live like that. How am I supposed to sign a contract? It paralyzes the whole commercial market. You can’t sign contracts that way. You can’t rely on anything. Even if something is written in the contract, they won’t go by it, because it’s not in good faith, and it’s not reasonable, and this and that, and he won’t rule by it. So why did I write it? That is the problem with “one who acted like this master acted.” He can really say all that, and in the end the legal professionals interpret it. In the end it depends on approaches. Those who are closer to Aharon Barak’s approach, I assume — again, I’m not sufficiently expert — but I assume they really interpret it more freely or more in the direction of justice. Whereas the more formalist ones interpret it more closely to what is written and less to justice. And most are probably somewhere in the middle. Aharon Barak also does not do whatever he wants with the text. Obviously he still has to take into account somehow what’s written there. You have to say they didn’t mean it, and bring some proof from the wording, or something like that. They don’t just do whatever they want. He doesn’t do whatever he wants. It’s a question of degrees. What? If he doesn’t get tangled up in it.

[Speaker F] If—

[Rabbi Michael Abraham] You said what you want, yes.

[Speaker F] You told him: give him a shekel, that’s it.

[Rabbi Michael Abraham] If it didn’t enter his head at all, then of course you forgot, or took it for granted, or—

[Speaker F] To write, like for example, I give my cat, and that’s it — so okay, Puss in Boots.

[Rabbi Michael Abraham] However much you want to do, and that’s it. Okay, so I’m saying: that is the point of “one who acted like this master acted” as opposed to discretionary judicial allocation. “One who acted like this master acted” is a distinctly halakhic phenomenon. I don’t think there’s such a thing in ordinary legal systems. What? They don’t allow it? That is the dispute of the medieval authorities (Rishonim) we saw. Maimonides and Rif and Rosh try to restrict it as much as possible only to that specific dispute there, because they are not willing to accept even such a halakhic phenomenon. But Tosafot says this is a general law: anywhere there are two opinions and no ruling was given, the judge does whatever he wants. That turns the legal or halakhic system into anarchy. Anarchy in the sense that every judge does whatever he wants, of course — not that every individual does whatever he wants — but there is still something very problematic here. That is what lies behind this dispute among the medieval authorities (Rishonim). The question is whether I am willing to accept such a phenomenon of “one who acted like this master acted” within the realm of legal norms, not within the realm of facts. What we’ve been dealing with until now is facts. With facts, fine — somehow the judge has to decide what the facts are. But how can it be that the legal system appoints the judge to be a legislator? He will actually determine what the law is; he won’t just determine the reality to which the law should be applied. He will determine what the law is. That’s what today is called judicial legislation, right? That the judge, in the course of judging, actually determines what the law is, not only what the facts are. Okay? All right. Now, the irony is that Maimonides did something fairly similar to what the judge is doing now, and not being subject to rules of evidence — but that is to determine the facts. He talks about rules of evidence at the beginning of chapter 20 of the Laws of Sanhedrin. He says there is a difference between monetary law and the other laws — chapter 20 versus chapter 24 — that in monetary law the judge follows what his eyes see. And elsewhere there are rules of evidence: two witnesses, there are evidentiary rules. But even there, in monetary law, we are talking about rules of evidence, not about giving the money to whomever you want legally. The law is determined by Jewish law. When you ask what the facts were, what reality was here — if those witnesses stink, don’t accept them. It’s not like our legal system today.

[Speaker D] But in this case it might be specific because Rav and Shmuel said so, and then they’re saying this is not an ideological statement.

[Rabbi Michael Abraham] That’s exactly what I’m saying.

[Speaker D] This—

[Rabbi Michael Abraham] Exactly — Maimonides and Rif and Rosh, right, agreed.

[Speaker D] And then practically speaking, those three — that’s basically the essence of the dispute.

[Rabbi Michael Abraham] Correct. Because Tosafot goes in the anarchistic direction, and Maimonides and Rif and those three—

[Speaker D] —don’t think that specifically in that case we say Rav and Shmuel, and therefore, uh—

[Rabbi Michael Abraham] And in the rest of the Torah they would be like Tosafot? We don’t find that anywhere — on the contrary, they restrict it. The plain meaning of the Talmud is like Tosafot, after all, and nevertheless they make the effort to restrict it because they are unwilling to allow such an approach. I think so, it seems to me. Maimonides said that the law is—

[Speaker D] …what the judge sees fit?

[Rabbi Michael Abraham] On the contrary, the whole Mishneh Torah shows that his approach is exactly the opposite — he cuts decisively, he says: no, there has to be a ruling in everything. Now one has to understand — maybe one more comment. Both Maimonides and all the great halakhic decisors acted in a period when there was no Sanhedrin. Was it not clear even to Maimonides that after he wrote the Mishneh Torah, someone else could come and write the Tur or the Shulchan Arukh or write differently?

[Speaker C] Was that clear to him?

[Rabbi Michael Abraham] I think so. What — can anyone think otherwise?

[Speaker C] I don’t know, it sounds to me—

[Rabbi Michael Abraham] He sees himself as… He would have wanted that, but it’s clear to him that he is not the Sanhedrin. Factually. Doesn’t matter whether he thought he was the supreme halakhic decisor; he understood that factually that was not the case. So even when he writes the Shulchan Arukh — or Maimonides — or the Mishneh Torah, he understands that someone else will write differently. He is only claiming: in my opinion, this should be the code. But everyone who writes his own code understands that when the system returns to being active and effective — there will be a Sanhedrin and so on — this is my recommendation for what the Sanhedrin should adopt as the binding code. That’s what he is saying. Right now it is clear to him that this is not the binding code, because he is not the Sanhedrin — just technically. But in principle he claims: this should be the binding code and nothing else. In other words, when there is a Sanhedrin, I am offering them here the code — take this, adopt it. And the Tur offers his code; it doesn’t matter, everyone offers his own code. Okay? So clearly, on the practical level, Maimonides understands that he is not writing something here that binds everyone. But his approach is still reflected, one that says there ought to be one binding system. Why, where do you see him doing this? When he rules the Jewish law this way. He thinks this is correct, not just what seems right to him. Most halakhic decisors — okay, here I’m jumping ahead a bit, but I don’t know whether we’ll ever get to that “later” — basically, most halakhic decisors after the Talmud, ostensibly, after all, in many disputes — most disputes in the Talmud remain open. By now you’ve seen enough cases to notice that in most cases the Talmud does not say whose view the Jewish law follows. So how do Maimonides and Rif and the Shulchan Arukh and Rosh and everyone else rule? According to what? Ostensibly it is clear that everyone agrees with what the Rosh says: once something remains open in the Talmud, you can decide; you don’t apply the laws of doubt. There are those who want to say that if there are two opinions in the Talmud and no ruling, then you apply the laws of doubt: in a Torah-level doubt, be stringent; in a rabbinic-level doubt, be lenient — the laws of doubt. What are you talking about? Then what did all the medieval authorities (Rishonim) who ruled Jewish law do? Why didn’t they go by the laws of doubt? They ruled the law. The claim is — and this is really true, there’s something to it — that most rulings of the medieval authorities (Rishonim) are applications of rules of decision. It’s not the question of what seems right to me. Rather, if the anonymous Talmudic discussion went one way, we rule that way. If it’s Rabbi against another tanna, the Jewish law follows Rabbi against his colleague, Rabbi Akiva against his colleagues — it is applying rules. The overwhelming majority of rulings are applications of rules. You will find very few statements by medieval authorities (Rishonim) saying: the Jewish law is like this because it seems more reasonable to me than the other Amoraic opinion, because the other seems less so to them. There are some; when rules are established — as we’ve discussed more than once — anyone who thinks those rules turn this into mathematics is very mistaken. People try to establish rules, but there is disagreement over the interpretation of the rule and the application of the rules, and you will never turn this into mathematics. And here is the proof. But still, on the conceptual level, when I rule, I am not ruling according to what seems right to me. Who am I to decide who is right — Rav and Shmuel or Rabbi Elazar? I rule according to rules of decision that the Talmud itself established: if the anonymous Talmud elsewhere follows Rav and Shmuel, that means the Talmud itself ruled like Rav and Shmuel; not that I am ruling. That is the consciousness of the medieval authorities (Rishonim). There are very rare statements — in Maimonides it doesn’t say so, so I don’t know — but there are very rare statements here and there that the Jewish law follows So-and-so against So-and-so in the Talmud because his words are more persuasive. Very few. Those cases are really isolated. There are almost none. And therefore, indeed, the view is that when there are two opinions that remain in the Talmud without a decision, ostensibly it is the laws of doubt: either the Talmud’s own rules decide, and if not, then it’s the laws of doubt. I am not allowed to form an opinion of my own. Tosafot claims otherwise. Maimonides and Rif and Rosh apparently hold that way. Tosafot here says not so. Tosafot here claims: what do you mean? I decide according to what I think. Okay? And that brings us to the words of the Rosh. Because the Rosh now enters the question: even assuming we accept Tosafot’s approach, let’s say — what counts as “decided”? What counts as a decision? Who is it that binds? Let’s say the Rosh says: the Geonim ruled. Does that count as “Jewish law was stated like this master”? Meaning, Jewish law was decided like one of the sides, and I can no longer decide like the other side? Or not? The Rosh says that in his personal opinion — he brings several possibilities there — his personal view is that what is written in the Talmud is binding. Everything after the Talmud is not binding. The line is the Talmud. When I bring the Rosh, people always argue with me and say: fine, that was in the Rosh’s period, but today the line is the Shulchan Arukh. Where did they invent that from? But I don’t agree. I think the line is still the Talmud, even today. “The line” doesn’t mean there is no weight to what the Shulchan Arukh says or what Maimonides says — of course there is weight. Let’s say, in order to go against the Shulchan Arukh or against Maimonides, I have to be very, very, very sure of my opinion. But if I am sure, then yes. I’m saying this isn’t all-or-nothing. I’m just saying they do not have mandatory weight. It’s not like with the Talmud, where you cannot go against it even if you are sure it is wrong. There’s nothing to do — that is the law. Just as if the legislator said something, I may be sure he is wrong, but he determines the law, not I. The Talmud has an authoritative status, a legislating status.

[Speaker D] Then how is it not all-or-nothing? What? How is it not all-or-nothing?

[Rabbi Michael Abraham] I explained that with respect to the Talmud. The Talmud is all-or-nothing. With respect to the medieval authorities (Rishonim) and later authorities (Acharonim), since there is no formal determination that they have authority, but on the other hand there is some custom that gives weight to their words, I say: it’s not all-or-nothing. Meaning, there is weight to their words, I agree. But that doesn’t mean that whatever they say I snap to attention, or that I follow the majority, or the laws of doubt. I don’t know — I too am sitting around this table, and I begin to conduct a discussion, and whatever conclusion I reach, that is my conclusion. And sometimes I’ll say: I have an inclination, most of the great medieval authorities (Rishonim) went against me, and that is not enough for me to go against them. So I myself decide that I go like them. Then the Jewish law follows them not because they are the majority, but because I myself am not sufficiently sure and I want to go like them. In the end, I always decide. That’s the point. By contrast, with the Talmud it’s not like that. When the Talmud determined something, then the Talmud decides, not me; I am subject to it. Even if I think it is wrong — not a factual error, I mean an error in law. Okay? So that is basically the Rosh. Actually, in Kovetz Shiurim, I’m already not — let’s see a bit of Kovetz Shiurim. In Rabbi Akiva Eiger — I sent you an article afterward that you can read if you want — I wrote a bit about autonomous halakhic decision-making. It really discusses the implications of these things. I briefly mention the issue of “one who acted like this master acted,” but I continue beyond it. In Tosafot, s.v. “it was said according to this side,” I’m reading in Rabbi Akiva Eiger: “And the judge holds like one of them; whatever he did is done. And if the judge is uncertain, then the burden of proof is on the one who seeks to extract from another.” And what appears from their words is that “one who acted like this master acted,” etc., is specifically in the case of one who knows how to decide — the judge, yes, who knows how to decide. What does it mean, specifically one who knows how to decide? As opposed to what? What could be the basis for saying it speaks of one who does not know how to decide? What are you talking about? Right? The basis for saying that it speaks of someone who does not know how to decide would mean that this is not really a decision in “one who acted like this master acted”; after all, both are correct. What is there to decide? Do whatever you feel like. So if the instruction is to do whatever you feel like, then it doesn’t matter who I am. It doesn’t matter whether I know how to decide or not, because I am not making a decision.

[Speaker D] But according to Tosafot, “one who acted like this master…”

[Rabbi Michael Abraham] This was worked out as a determination. Fine, a determination—not every little kid can determine. Only someone capable of determining; that’s who it applies to. That’s what stands behind the polemic he’s conducting here with Tosafot. Okay? Yes—so, in principle, if he is a judge, then yes; as long as he sits as a judge. They wouldn’t appoint him as a judge, but in principle you don’t need authority, because basically you do whatever you want. But here you need to determine. Okay? And this requires analysis, says the Or Sameach, regarding the time of Minchah in Berakhot 27, where we follow the rule that whoever acts like this master acts, whoever acts like that master acts—it sounds from all the decisors that this applies to everyone, even if he does not know how to determine. Say I’m standing there and debating whether to pray Minchah or Ma’ariv. They don’t tell me, “Go to the city rabbi and ask him.” Do whatever you want. Any citizen, anyone, whoever wants—it doesn’t require a Torah scholar for that. Which means that there it’s not a matter of determination—“whoever acts like this master acts”—rather, there it’s a matter of casting lots. Both are correct. That’s the option: both are correct, like judicial discretion, basically. And that’s what Tosafot said: that “whoever acts like this master acts” is not judicial discretion. It’s a determination. Okay? That’s the point. And the Rosh, in chapter 1 of monetary law, wrote: where two great authorities disagree in a Jewish law ruling, a judge should not say, “I’ll do as I please.” Again: “a judge should not say, I’ll do”—that’s judicial discretion, right? “I’ll do as I please.” And if he does so, this is a false judgment. Rather, if he knows how to determine, he has permission to do so. That is “whoever acts like this master acts,” if he knows how to determine. And if he does not know how to determine, he should not extract money in a case of doubt. By the way, the Rosh says, “where two great authorities disagree”—and what are they disagreeing about? In the Talmud? Amoraim? “Two great authorities” sounds more like decisors after the Talmud. What if the dispute is in the Talmud itself? This is the Rosh we saw in Shevuot, right? There the Rosh is less liberal. If there are two opinions in the Talmud, the Rosh says no—that there, no. Only if two great authorities after the Talmud disagreed can you determine. But in the Talmud itself, no; if the Talmud did not determine, then the laws of doubt apply. Okay? You have to understand: this doesn’t contradict the Rosh we saw in Shevuot, this Rosh. Because the Rosh in Shevuot was talking about what happens when there is a dispute between Amoraim in the Talmud. There, he says, that’s Talmud—we can’t intervene. Only in that specific case, if someone follows Rabbi Elazar, that’s okay. But in general there’s no such thing as “whoever acts like this master acts.” If the Talmud did not say whose view the Jewish law follows, then the laws of doubt apply here. But if two great authorities from the post-Talmudic period disagree—great as they may be, Shulchan Arukh, Maimonides, the Geonim, doesn’t matter—the Rosh says that if I’m qualified, I can determine. And if not, then the burden of proof rests on the claimant. Yes, but there it seems—there it seems to be because if some clown does this, they won’t take the ruling seriously. And if it’s the judge, they’ll say he doesn’t know how to rule. But if it’s an expert judge, and it’s clear to everyone that he’s an expert judge, and he isn’t doing this because he doesn’t know how to rule but because that’s what should be done, then it’s just because of appearances. I don’t think that’s connected to the discussion here. Yes, and if he does not know how to determine, he should not extract money in a case of doubt, unless the burden of proof rests on the claimant. Exactly like Tosafot says. Except Tosafot says this also about the Talmud, and the Rosh says it about two great authorities who disagreed. Okay? And if the judge did not know of the dispute among the decisors, and only later it became known to him—he didn’t know at all that the decisors disagreed on this—he ruled, and then it became known to him that there is a dispute among the decisors. And he does not know how to determine, and the matter cannot be resolved. He doesn’t know how to determine, and neither do we—there is no resolution, it’s two opinions. There is no error here; rather, what he ruled stands. Even though if he had known, maybe he would have left things under “the burden of proof rests on the claimant,” because he doesn’t know how to determine between the two opinions—but since when he ruled he had not heard that there were two disagreeing decisors, and only afterward it became known to him, still, what he ruled is valid, because the Jewish law had not been decided.

[Speaker D] Like what? Like whoever acted, acted? Like Hillel and Shammai?

[Rabbi Michael Abraham] I think it’s parallel to that, yes—parallel to “whoever acted, acted,” like the Rosh in Shevuot: that if you did it, then it’s okay. True, ideally, if you had known of that dispute among the decisors, you would have had to say “the burden of proof rests on the claimant.” It seems to me this is an issue of authority.

[Speaker D] Meaning that if, without knowing there are two opinions here, I see that the Rosh says this—

[Rabbi Michael Abraham] Okay. So it says, “and he does not know how to determine.” If he knows how to determine, then he can determine anyway.

[Speaker D] If—

[Rabbi Michael Abraham] The dispute became known to him, and he hadn’t known it in real time, but now that the dispute has come to his attention, he says: okay, I understand, Rashba and Maimonides disagree; I think like Maimonides.

[Speaker D] Right, but if he doesn’t know—

[Rabbi Michael Abraham] —how to determine. But earlier he did determine. No, because he hadn’t seen the arguments of the other side; now suddenly he sees different arguments that he didn’t see before. And it’s difficult—what is different about Rabbi Natan, never mind, who said…? Fine, that says “difficulty,” never mind. So here there’s some difficulty from somewhere else. Now—item 92. In the responsa of Riban HaRosh, Rabbi Yosef ben HaRosh, called Zikhron Yosef—this is a responsa work written by one of the… The Tur is one of the sons of the Rosh, and Zikhron Yosef is another son of the Rosh, his brother. Okay? Also the brother of the Rosh, by the way, was one of the greatest medieval authorities (Rishonim), Rabbeinu Yehiel. In short, there was a whole crew here—photographed here, recommended rabbis. In a case in the city of Toledo, they agreed to rule like Maimonides except where the Rosh disagreed with him. A city in Toledo, I think, yes, and they had an agreement that wherever Maimonides has a ruling, they follow him—like the Yemenites—except where the Rosh disagrees with him. Because the Rosh, as is known, moved from France to Spain and was accepted as the central decisor of Spain. So in Toledo they decided that if the Rosh said something, then the Rosh determines it. But if not, then what Maimonides says is what goes. So the son of the Rosh writes a responsum about whether one may do such a thing. And Rabbi Rabbeinu Yosef wrote—look at this beautiful thing—that this agreement is against the words of the Rosh cited above. What you are doing is against what the Rosh himself says. Because the Rosh himself—the Rosh we saw earlier—doesn’t say that. Why? Because it says that where the judge cannot determine in a dispute, he is forbidden to say, “I’ll do according to so-and-so,” just because he is great, or because Maimonides is great, or something like that. There’s no such thing. If you know how to determine, then determine; and if not, then it’s doubt, and the burden of proof rests on the claimant. You can’t say, “I’ll do like so-and-so.” It’s a doubt; so with a Torah-level doubt we rule stringently—it doesn’t matter, in matters of prohibition. And if he did so, then this is a false judgment. And if you should say that since most of Rabbi Meir’s words were correct, should we not be concerned for the consistency of his rulings that others were found to disagree with, and therefore follow the majority? Heaven forbid to say such a thing, etc.; see there. Fine, that’s something else—Rabbi Meir who sharpened traditions, so never mind. But apparently we find in the Talmud in Eruvin 46: Rabbi Meir and Rabbi Yehudah—the Jewish law follows Rabbi Yehudah; Rabbi Yehudah and Rabbi Yosei—the Jewish law follows Rabbi Yosei; Rabbi Meir and Rabbi Yosei—the Jewish law follows Rabbi Yosei. Now, if in the case of Rabbi Yehudah, Rabbi Yosei overrides him, then in the case of Rabbi Yosei, do we even need to ask? After all, Rabbi Yosei disagrees with Rabbi Yehudah, so the Jewish law follows Rabbi Yosei, yes. Now if against Rabbi Shimon the Jewish law follows Rabbi Yehudah, then Rabbi Yosei, who is stronger than Rabbi Yehudah—since the Jewish law against Rabbi Yehudah follows Rabbi Yosei—certainly against Rabbi Shimon he would be correct, right? All the more so. What does this mean—what is he proving from here? It follows from here that the determination was based on which of the disputants is the greater authority. For if we explain that the determination is about the laws themselves and not because of the people who said them, then there is no room for an a fortiori argument.

[Speaker D] Nice, right?

[Rabbi Michael Abraham] No, because there the Talmud itself determined it. That’s fine. When the Talmud determines like Maimonides, that’s fine.

[Speaker D] You could say the Talmud itself didn’t determine—

[Rabbi Michael Abraham] They simply know what the authority is, so what’s the difference? Obviously, the Talmud is like the Great Court. The Great Court can determine. But we, who don’t have the ability to determine—so before us there are two opinions; what do we do now? The burden of proof rests on the claimant. We can’t establish that we always go with Maimonides; there’s no such thing. If we have the authority to determine like the Sanhedrin, no problem—we’ll issue a Jewish law ruling like Maimonides, and that will be our Jewish law. But if we’re not the kind of people who have authority or ability to determine, and we’re just—we simply want always to go like Maimonides—you can’t do such a thing, says the son of the Rosh. Okay? Now, what does Kovetz Shiurim prove from the Talmud in Eruvin? There were two ways to understand these personal rules. These personal rules are technical. They do not stem from greater Torah stature or from the fact that he is right; rather, one needs to establish a uniform rule so that we know how to determine Jewish law. If that were so, there would be no place for the Talmud’s a fortiori argument, right? If it’s just a technical rule that doesn’t derive from greater skill in ruling Jewish law, then what kind of a fortiori is it that if Rabbi Yehudah prevails over Rabbi Shimon, and Rabbi Yosei prevails over Rabbi Yehudah, then certainly Rabbi Yosei prevails over Rabbi Shimon? He doesn’t prevail because he’s wiser; rather, they established that when they disagree, the Jewish law follows them. There need not be transitivity in such a case. Okay? The fact that the Talmud assumes transitivity means it is really assuming that when I rule like Rabbi Yehudah against Rabbi Shimon, it is because Rabbi Yehudah is more correct. And when I rule like Rabbi Yosei against Rabbi Yehudah, that means Rabbi Yosei is more correct, so certainly he is more correct than Rabbi Shimon. Right? So what does that mean? That really we determine whose view is the Jewish law—not that we establish it, exactly like your question. Not that we establish Jewish law because we happen to like Rabbi Yosei, but because he truly is right; we determine that he is right. And the whole Talmud is—

[Speaker D] Is it always like that?

[Rabbi Michael Abraham] That’s what he wants to argue; that’s Rabbi Elchanan Wasserman’s thesis, whether he’s right or not. But from this passage in the Talmud in Eruvin, the proof is a nice proof. Meaning, he shows that these rules are not technical rules but substantive ones, because otherwise the consideration of transitivity should not be relevant at all. Right? And then he says: if so, why shouldn’t the sages of Toledo be able to determine that Maimonides is a greater authority than those who disagree with him? So what’s the problem? They too can decide that Maimonides is a greater authority and decide like the Talmud—exactly your question. So he says no: one can say that Rabbi Yosef—that is, the son of the Rosh—knew that they did not have the power to determine even this, namely who is the greater authority. Usually, when someone says, “I always go like Maimonides,” he doesn’t actually have the ability to determine that Maimonides is more correct than Rashba. Rather, what? He’s Yemenite, so he is used to Maimonides being the local authority there, so he goes with Maimonides—not because he determined that Maimonides is right. That, he says, cannot be done. Because the Talmud determined who is right; the Talmud had the ability to determine who is right, and that is perfectly fine. That is someone fit to determine. The Rosh himself also agrees with that: if I am fit, I can determine who is right. Okay? But the people of Toledo were just local people there who decided they liked Maimonides because he was Spanish—he’s from Spain—so we go with him, except where the Rosh, because the Rosh was the greatest of the sages of Spain in their time. So that takes precedence over Maimonides, who was a Spanish sage from an earlier generation. Okay? So you see that the consideration has already become not one of greater or lesser stature, but a kind of local loyalty or local authority, or like Rabbi Ovadia said, that the Shulchan Arukh is the jurisdiction of Maran—the Land of Israel is the jurisdiction of the Shulchan Arukh, and therefore everyone must rule in accordance with the Shulchan Arukh. That is a technical statement, not because he is right. So that, he says, cannot be done. Now, he himself does not accept the words of the son of the Rosh, and most decisors do not accept it. A fact: today, for example, Ashkenazim accepted the Rema, and Sephardim the Shulchan Arukh. That is against the son of the Rosh. According to the son of the Rosh you cannot do such a thing. So what is this thing? Decide who is right. I really think that’s the case—I really think this is incorrect. Sephardim should not go by the Shulchan Arukh, and Ashkenazim should not go by the Rema. They should go, as HaGashashim say, “Did you go with your father or your mother? I went with the guys.” Meaning, I go with whoever I think is right—not with the Rema and not with the Mechaber. Whoever I think is right. If I have no way to determine, then perhaps there is room for custom. “If you do not know, O fairest among women, go out in the footsteps of the flock,” as the Jerusalem Talmud says. Meaning, if you do not know whose view the Jewish law follows, then there is room to follow custom. If there is no custom, then the burden of proof rests on the claimant, or with a Torah-level doubt we rule stringently, okay—that is when you don’t know. But if you can determine, then determine. Where have we found that custom determines the law, where have we found that custom determines the law in a place where I know that the law is not that way? It’s ridiculous.

[Speaker D] But today there are thousands of customs.

[Rabbi Michael Abraham] No problem—let them ask their rabbi. But the question is what their rabbi will do, not what they will do. I’m speaking about decisors; I’m not speaking about ordinary people.

[Speaker F] I—

[Rabbi Michael Abraham] I’m speaking about decisors.

[Speaker F] Who today can know—

[Speaker D] What’s right? What do you mean? Every—

[Rabbi Michael Abraham] Anyone, any Torah scholar. What do you mean? “Right” according to what seems right to me. How did the Rema know he was right? It seemed right to him. The Shulchan Arukh didn’t accept it. So what—the Shulchan Arukh was talking nonsense? He wasn’t talking nonsense, right? That was the opinion of the Rema. And if he is a Torah scholar, he has the right to formulate his own opinion. Now, today too there are Torah scholars, and they have the right to formulate their own opinion. That doesn’t mean they are greater than the Rema or the Shulchan Arukh—they don’t need to be greater. Look, I already see I’m not going to get there; I’ll send you the article I wrote, and look there—in the article I also discuss the question of who is considered qualified. Who is someone who can determine. And my claim is that in order to be qualified you do not need to be Moses our teacher, nor the Rema, nor Maimonides. You need to be someone skilled in issuing Jewish law rulings and who knows how to do it. And if you are smaller than they were, you still have an obligation to determine what seems right to you—as long as you are a Torah scholar. If you’re just shooting into the air, then it’s not serious, it’s just a joke.

[Speaker D] What? How is that connected?

[Rabbi Michael Abraham] That’s against the Sanhedrin. That’s something else. The Sanhedrin is something else. What? What? So I wrote there one possible criterion. Students asked me when I taught this, so I said one possible criterion is—what? Basically I formulated it this way: you don’t need to be Moses our teacher, or Rav Ashi, or Maimonides, or the Shulchan Arukh. All of them—their smallest finger is thicker than my waist, that’s obvious. And still, if I have my own position, and I’m a Torah scholar who knows how to determine Jewish law, then I have to determine Jewish law. Not because I am greater than they are. The Talmud says that the reason the Jewish law was not ruled according to Rabbi Meir is that his colleagues could not get to the bottom of his reasoning. And if they could not get to the bottom of his reasoning, then surely they should not have to rule according to him, right?

[Speaker C] Wherever they don’t agree with him, it’s simply because they didn’t understand him. So the Jewish law won’t follow him.

[Rabbi Michael Abraham] Well, because if it doesn’t seem to me that the Jewish law follows him—even if he is greater than I am, and even if it’s clear to me that the fact I don’t understand him, that I don’t agree with him, is because I don’t understand him—it doesn’t matter. If I am a Torah scholar and have the ability to determine, then I have to determine and do what I think. There’s also that in the Talmud, about someone who knows how to permit firstborn animals, right? “If he permitted firstborns, let him not permit.” “My nephew went down to Babylonia.” Rabbi Hiyya there. Yes, no, that’s ordination. There it’s talking about—yes. What? I can’t hear. No.

[Speaker D] Because she knows, say, to decide whether the Tanakh—say you have this tradition—and to decide whether you’re going according to—

[Rabbi Michael Abraham] Do you know the Jewish law sources? Do you know what to do with them? If yes, then yes.

[Speaker D] No, and even without that. So what?

[Rabbi Michael Abraham] You’ll cast lots against explicit opinions and decide? You can—

[Speaker D] Go according to what you go by… you can decide that you go by the Shulchan Arukh, and in certain things by the Ben Ish Chai. Well, that’s what I said.

[Rabbi Michael Abraham] I said, I said: if you don’t know how to determine, then either the burden of proof rests on the claimant or else custom. If the custom is to follow the Shulchan Arukh, no problem—that’s fine. There is room for a custom to follow the Shulchan Arukh when you don’t know.

[Speaker D] Also people who have a fixed custom, and in this I go according to—because that’s their custom. And okay, I go according to—because that’s their custom. You recognize this if you are a Torah scholar who knows how to determine, and specifically here you think that—there’s no problem.

[Rabbi Michael Abraham] But if I have no position, then yes, yes. But if I have no position, then I go with the custom. But if I do have a position, I do what my position says.

[Speaker A] But it’s not that… but it’s not that… here, we talked about this, it takes us back to the matter of Minchah and plag ha-Minchah. It’s not that there sometimes I—

[Rabbi Michael Abraham] No, Minchah and plag ha-Minchah—there is no substantive determination there. According to many decisors, you can do what you want because both are genuinely correct. I’m talking about cases where there is a dispute. Okay? And the claim, basically—I’ll formulate it this way. You know the Hasidic story about Zusha, Rabbi Zusha of Anipoli, one of the holy brothers of Anipoli. He says that when he gets to heaven, they won’t ask him why he wasn’t Moses our teacher; they’ll ask him why he wasn’t Zusha. So I say: when are you allowed to determine? Not when you’re Moses our teacher—when you’re Zusha. Meaning, when you yourself are formed and, with your own abilities, have brought them from potential into actuality—that is, you’re already a Torah scholar at the level you can reach—then determine on your own. You don’t have to be like Moses our teacher or like the Shulchan Arukh—for yourself. Or if you are a community rabbi, then for the community, it doesn’t matter. He cannot choose whom he follows. To choose whom he follows is a false judgment, as the Rosh says. It happens. It happens, and the Rosh and his son do not agree with it. It happens—I agree. What I’m saying is not accepted. But I go in their method; I think it is not correct, it is not okay, it is a false judgment. You have to do what you think—or the laws of doubt, or custom. Right: if not, then you have a rabbi, ask him. Ask your rabbi.

[Speaker C] Every person needs to have someone who is his rabbi—

[Rabbi Michael Abraham] Fine. You fixed your rabbi and you do that—that’s fine. Whatever he wants. Obviously, obviously.

[Speaker C] And if there is no—

[Speaker D] A rabbi who does this—

[Rabbi Michael Abraham] —say, he decides he alone… No, you can’t. Only if you have, only if you have the ability for halakhic determination—that that is your path.

[Speaker C] You can’t, but you—

[Speaker D] You can’t do that.

[Rabbi Michael Abraham] You can’t do that. If you have halakhic ability, and you enter the topic and reach the conclusion that this is the right way to act, even if there is no rabbi who says so—do it.

[Speaker C] Who does that? Who acts like that in practice? Which rabbi in practice does that?

[Rabbi Michael Abraham] I do. Who? I do. In different doses, yes, true. Now then, the criterion basically—I told the people there the criterion. What’s the criterion? Sometimes I come back to a topic a year after I studied it, two or three years after I studied it, again. I read the summary and I say: wow, what nonsense I wrote here. So that means I’m still not Zusha. Meaning, I myself am still not yet formed. And it’s not only that I disagree with someone else—I myself am not yet myself. If I come back to a topic and I see, yes, this really is what I think—what I thought there, I still think—then that means I’ve already formed. That means I’m already Zusha. Now I can determine for myself. Not because I’m greater than Moses our teacher or than Maimonides, but because I’m already me. And when I am—“if I am not I, then who am I at all,” as was said—meaning, if I am, if I am already me, then I am permitted to determine. That’s the criterion, you know. Okay? In any case, what?

[Speaker A] Do you reach that state where you really feel whole about something?

[Rabbi Michael Abraham] Yes. I, for example, think I’m in that state. I took these criteria from my own biography. Meaning, there were stages when I returned to earlier summaries and saw that I… realized that I had been talking nonsense. So it was clear to me that what I had been so terribly convinced of there and so on—that meant I still wasn’t formed enough. Now I’m also sure I’m not talking nonsense and everything is fine—and maybe in another year I’ll think I’m talking nonsense now—but I already have experience, because I look at topics from the past and I see that I’m still more or less in the same position, so that means I’m already more or less formed. Sometimes I do change my mind—we’re human beings—but in general I’m already formed. If I’m already formed, I can determine for myself. That’s the criterion I know how to offer. I don’t have a source for it, but it seems to me a reasonable criterion. Fine, I’ll stop here. I’ll just tell you that I’ll send you an article—if you want to read it, it basically starts from this point. That is, it starts from this point and shows that in fact almost all the decisors until the sixteenth century more or less acted this way. Starting, in my opinion, with Terumat HaDeshen, some deviation began, which today has reached its peak: everything is precedent-based, and when there is a dispute you have to act according to the laws of doubt. In my view that is completely absurd. Meaning, if there is a dispute, then formulate a position and decide according to what you think—or what they think. Yes. But you said earlier that if there are rules of ruling, then yes, because that’s Talmud. The Talmud gave rules of ruling. But post-Talmudic rules of ruling were invented only from the sixteenth century onward. The Shulchan Arukh and all the rules of the Shulchan Arukh and all this ridiculous literature. And it has no basis; this literature is simply a collection of inventions with no basis. And they decided—they produce rules out of thin air just to exempt themselves from having to determine, of course. And then we follow the rules—what do you want? The Shulchan Arukh. What Shulchan Arukh? There are two opinions in the Shulchan Arukh. Yes, but in the Shulchan Arukh there is an anonymous ruling and afterward “some say,” so there is a rule that “anonymous ruling and afterward some say”—where did that rule get conjured up from? From the clouds, I don’t know where from. There is no such Shulchan Arukh and no such rule. They invented the rule, and now you go with the rules. I say that in the end, this method today really is the more prevalent method. And again, it’s a matter of dosage. Every decisor does a little of this and a little of that. The whole question is how much autonomous ruling versus how much precedent-based ruling there is in him. Obviously this is not a binary dispute. But the scale tilts very heavily toward the precedent-based direction at the expense of the autonomous direction. And I’m trying to show here, with various sources, that show this—even though I don’t need it… because I don’t care if there weren’t such sources. But I’m saying: for someone who also wants sources, there are sources that say this too, and somehow the whole thing changed. The controversy around the Shulchan Arukh, which seems to me to have been a very strong point along the way, there was a polemic around the Shulchan Arukh.

[Speaker D] They agree with precedent-based ruling and nevertheless… yes.

[Rabbi Michael Abraham] I’m saying again, there are degrees. Almost always, the decisor’s own opinion does somehow enter in. It’s not true—there is no decisor who is a mathematician or something like that. But there are degrees. Mourner’s Kaddish is total nonsense, because Mourner’s Kaddish has nothing at all to do with the decisor’s opinion. Jewish law has nothing to say about it. What’s the problem if she says it? There’s no question. If there were a question, then I’d say: fine, let’s see what I think this way or that way. I’m saying: that’s a different problem. There it’s a technocratic problem; it’s a grotesque example of precedent-ism. It’s creating precedent where there is no halakhic question. I’m talking about when there is a halakhic question. Even when there is a halakhic question, precedents have no mandatory status. What’s the question? What’s the problem with her saying Mourner’s Kaddish?

[Speaker C] What’s the prohibition?

[Rabbi Michael Abraham] I don’t know. They don’t know either.

[Speaker C] There isn’t one. They don’t know either. There isn’t one. Maybe like they say that in ancient synagogues in the Land of Israel there was no women’s section, so what—did women pray randomly?

[Rabbi Michael Abraham] Okay, maybe. Who said not?

[Speaker C] Or that women didn’t come to synagogue?

[Rabbi Michael Abraham] Maybe—that could also be. Who said not? But who said? This women’s section is an invention whose only source is some aggadic passage in the Talmud in Sukkah. That’s all. And it became some Torah-level principle after the Reform simply challenged it. There is no such Torah-level principle. Not even rabbinic, in my opinion it’s doubtful that it’s even rabbinic. It’s a custom to pray separately. Fine. Yes, yes. It’s not depressing—one has to think. And one has to act in order to advance what one believes in. And I also assume the other side isn’t complete nonsense either; everyone champions his own opinion. Rabbi, my book. Yours? Yes, yes.

[Speaker E] Thank you very much. He has—

[Speaker D] Eight. Nineteen hours. Three hours.