Changes in Jewish Law and the Eternity of the Torah

And of course this is where the rupture lies: why should I be obligated by that? I serve the Holy One, blessed be He; I do not serve Rabbi Akiva or Rabbi Yehuda HaNasi or Maimonides, and not even the Shulchan Arukh. So in what sense do things that people develop, that people add over the generations, obligate me? Here of course an explanation is needed. Why should I be obligated by that? I serve the Holy One, blessed be He; I do not serve Rabbi Akiva or Rabbi Yehuda HaNasi or Maimonides, not even the Shulchan Arukh. So in what sense do things that develop humanly, that people add over the generations, obligate me? How can one make such a claim?

By the way, this very difficulty is what brings people to one of two extreme conceptions. Either the extreme conservative conception, which says that everything in our hands was transmitted to Moses at Sinai—because they are unwilling to accept that something not transmitted to Moses at Sinai could nevertheless be binding. So people are forced into a conception that in my view is completely disconnected from what emerges from the sources: that everything in our hands was transmitted to Moses at Sinai. And the other side of the coin, which shares the same assumption, is the side that says: then in fact I am not obligated. I am obligated to the Written Torah—something like Sadduceeism, or whatever other similar approaches—you know, I’m obligated to what was transmitted to Moses at Sinai. All the rest is invention; it does not obligate me.

These are two extreme and apparently opposite conceptions, but they sit on the same intellectual foundation. The intellectual foundation says that obligation is based on authenticity. Without authenticity there is no obligation. Therefore either there is no obligation, or there is authenticity—but I have to synchronize authenticity with obligation. I reject this very linkage. I think one need not assume authenticity in order to be obligated.

So in what sense do we nevertheless speak about the eternity of Torah? After all, we do relate to Torah as something we received from the Holy One, blessed be He, and in some sense what is in our hands does need to be connected to what we received from the Holy One, blessed be He. And how should we understand this principle of Maimonides—not in a naive way, but in a more realistic way? That brings me to the question of changes and responses to changing realities. How exactly does Jewish law develop, get updated, or change—call it whatever term you want.

I’ll perhaps begin with two examples to explain what I am not talking about. There are quite a few examples like this; I’ll take two: Tosafot in tractate Avodah Zarah on page 15, and a similar Tosafot at the beginning of the chapter “What Is Interest” in Bava Metzia about the laws of interest—that chapter deals with matters of interest. Tosafot writes in both places and brings examples of certain laws that we do not observe, even though they are Torah-level or rabbinic laws, or laws that are straight from the Talmud and undisputed—and nevertheless we do not observe them.

In Avodah Zarah 15 they discuss the laws of selling large animals to a gentile. It is forbidden to sell a large animal to a gentile because there is concern that he will use it for labor, and one’s animal must rest on the Sabbath; if the animal is mine, then it has to keep Sabbath, so they forbade selling a large animal to a gentile. Tosafot says: but today, this is everyday reality—everyone sells animals to gentiles. So what do we do with that? Likewise Tosafot in tractate Avodah Zarah also talks about a law in the laws of interest: an agent, agency of a gentile for a Jew and vice versa in order to transfer interest. According to the Talmud, this is forbidden, and yet Tosafot says: we do it today; everyone does it today. The question is how—how do we understand such a thing?

So Tosafot says: because there is no choice; we live in a situation where it is impossible to keep these laws. Now I’m not getting into the question of what exactly the halakhic justification is for this kind of argument. It’s a complicated question, because Tosafot is not talking about saving life. If it were a matter of saving life, then there would be no problem; that’s the law, that saving life overrides the whole Torah. Tosafot is talking about a situation in which ordinary life—the ability to make a living, to live reasonably—is impaired. But one can still live. Tosafot says: even that is sufficient grounds not to observe agreed-upon laws that are stated explicitly in the Talmud in a clear way. That’s an interesting claim, but it’s not my topic here. Why? Because Tosafot here is not talking about a change in Jewish law. Tosafot here is talking about freezing it. “Freezing” means: in a certain situation I do not observe the law, but I am not claiming that it is incorrect. I am not claiming that the law should be changed because a different reality dictates a different law. No, no—that is the correct law for this reality as well. So what is the issue? We simply cannot observe it right now; it is not within our ability.

Fine. Again, I’m not entering into the question of the theoretical justification for this kind of halakhic argument, but it’s a different argument. I’m not speaking about that argument. I’m talking about arguments that speak of changes in Jewish law, not about temporary non-observance, a temporary freezing of Jewish law.

I’ll perhaps give an example that is somewhat closer, though still not exactly it. For example, the Talmud brings a dispute regarding “You shall not form separate factions”—“do not make yourselves into separate groups.” The Talmud says that there must not be two religious courts in one city, or two synagogues in one city. Do you know a city that does not have two synagogues? Even Robinson Crusoe on a deserted island builds two synagogues. So here it is fairly clear—and by the way I don’t really know explicit discussions by halakhic decisors on this point—but somehow everyone accepts it as if it were obvious, in a certain sense perhaps not even requiring explanation.

I think the basis of this is the feeling that our reality is different, and what is called “one city” today is not a geographical unit. Once, a city was a geographical unit. Today, in the virtual world—we are giving a lecture on Zoom right now, so this is the easiest place to illustrate it. I personally, for example, argue that one can join a prayer quorum by Zoom. Meaning, physically you have to see part of the quorum in order to join; there are all sorts of rules in Jewish law about exactly how one joins. But on Zoom, I can be here while my heart is in the East and I am at the far end of the West, and still, in my opinion, because of how we perceive our reality today, we are actually in one place, one site. “Site”—I mean that literally. We are in one place, right? It’s a virtual place, but it’s one place. And in our lives today, anyone who understands our lives today understands that this really does mean being in one place. In my view, one can join a prayer quorum in such a case.

To me this is much simpler than all kinds of tricks people tried to come up with to avoid that, because at the time they wanted to know how to make prayer quorums work with Zoom and so on. So they started inventing tricks: go out to the balcony and see the tip of the hat of that guy praying downstairs and somehow join the quorum. I think Zoom is much smoother. But that’s only an example of what I wanted to talk about here. The example I’m bringing is that we view our reality today such that a city in the geographical sense is no longer a meaningful unit. The more meaningful unit is some kind of community in a more virtual sense. Therefore, if there are two synagogues in one city, one praying in the Yemenite rite and one praying in, I don’t know, the Ashkenazic rite, that is not called two synagogues in one city. It is two synagogues in two different cities: the Yemenite city and the Ashkenazic city. The fact that geographically we live in the same city makes no difference; what determines things is a kind of virtual identity, not a geographical identity.

By the way, the same is true more generally with customs. Originally, the binding custom was the local custom. How did we get to the point where the binding custom is the ethnic custom, the custom of one’s origin and community? I go from place to place, but if I’m Hungarian—yes, in fact my parents are from Budapest—then I am supposed to follow the custom of Hungarian Jewry. I’m not in Hungary and I’ve never been in Hungary except once on a visit; I’m a native-born Israeli. Why does the custom of Hungary obligate me? Is it the custom of the place or the custom of the ancestors? It’s not the custom of the place. But originally it was the custom of the place. Rather, because place today has become something unimportant in a dynamic world, a world in which people move from place to place and place is no longer the important coordinate defining our location—let’s say location in the metaphorical sense—if there are coordinates that are more meaningful, more stable, more continuously with us, then somehow we slid, without even noticing and without giving ourselves any account of it, from custom of place to custom of ethnic community. And from a geographical “do not form separate factions” to an ethnic “do not form separate factions.” There you have it—without even noticing, and without giving ourselves any account of it. There is a result of changed circumstances causing a halakhic change. That’s already closer. But even that is still not strong enough.

I’ll give you a stronger example. I’ll do it briefly, because we really don’t have much time. A stronger example is the well-known words of Meiri, which he repeats in very many places, to the effect that all the laws the Talmud establishes regarding gentiles are not relevant to the gentiles of his time. That is what Meiri claims. He’s not coming to intermarry with gentiles, but he’s talking about stealing from a gentile, withholding repayment of his loan, returning lost property to a gentile, all the sanctions and all the discriminations made between Jews and gentiles—none of that applies. Why? Because, says Meiri, the gentiles of our time are bound by the norms of civilized nations. They do not behave the way gentiles used to behave; they behave decently, reasonably, humanely, at a reasonable moral level. And therefore all the Talmudic laws regarding gentiles—he repeats this consistently in dozens upon dozens of places—are null and void.

Now this is a revolution, and not for nothing did this revolution provoke a great many arguments and a great many people. People claim that this was written under pressure from the censor, and of course we know all these tricks; sometimes it’s even true, there are things written only because of fear of censorship. In Meiri’s case there are several indications that this is not so, that this is not the situation there. He wrote this seriously; there are articles about it, and I won’t go into those indications right now, but it’s fairly clear that when he writes it, he means what he says, not because of censorship.

This is already a revolutionary change, and here I’ll pose the question: what is the difference between this and the changes proposed by Reform? Or is there no difference? Maybe Meiri was Reform? Why was Meiri comfortable proposing this kind of change? It’s a dramatic change, especially for people living among gentiles. We in Israel perhaps experience it less as a daily matter, but for people living among gentiles it is daily life for them. These are dozens upon dozens of laws, if not more, that one encounters in ordinary life. And Meiri canceled them.

By the way, Meiri says more than that. In the eighth chapter of Yoma, Meiri writes that it is permitted—not merely permitted, required—to desecrate the Sabbath by a Torah-level act of labor in order to save the life of a gentile, even though according to the Talmudic law this is forbidden; we are speaking about an offense punishable by stoning. Sabbath desecration is considered as severe as the whole Torah. Meiri permits the most severe prohibition there is on the basis of reasoning, because the gentiles of our time are not like the gentiles of old; therefore it is permitted to desecrate the Sabbath to save their lives. And that is far more far-reaching than permitting, say, or forbidding stealing from them, or requiring the return of lost property to a gentile, and the like.

How are we to understand this proposal—or not proposal, but this halakhic ruling—of Meiri, and why is it not Reform? As of course everyone immediately jumps to say nowadays whenever someone raises such a suggestion: that’s Reform. So why isn’t it? What is the difference between this and that?

I want to give you an example that may illustrate the basic point. An example I once got from a good friend of mine—not religious, but we liked philosophizing about all sorts of topics—and he gave me the following example. Think about a group of people walking around in swimsuits in the desert. They’re dressed in swimsuits; it’s hot there. Their fathers, their forefathers, all walked around in swimsuits. Fine, some tribe in Africa, whatever. At a certain point they arrive in a colder area. They keep walking, walking, and the desert ends. They reach a colder region. The group splits into two subgroups. One group says: it’s cold, we’re putting on parkas. The second group says: it’s cold, true, but we have the tradition of our ancestors in our hands; they walked in swimsuits, and we too will continue to walk in swimsuits.

Okay, so if I ask you who here is conservative and who is Reform, I assume you would all agree that the first group is the Reform group and the second group is the conservative one. Now let’s think about a third group. There is a group that says: we are putting on parkas because it’s cold. But notice their reasoning. Their reasoning is that our ancestors wore swimsuits because it was hot and that was the clothing suited to the weather. Now we are in a cold place, and therefore, since the tradition of our ancestors is in our hands, we too will wear clothing suited to the weather, and therefore we will wear parkas.

Notice: the bottom line resembles the bottom line of the first group, but the reasoning is different. The first group said: I’m wearing a parka because it’s cold. That’s Reformist, heretical, whatever you want to call it. But the third group says: I’m wearing a parka because it’s cold, but it doesn’t stop there. It says: I think that in doing so I am continuing the tradition of my ancestors, because the tradition of my ancestors does not mean to walk around in swimsuits; the tradition of my ancestors means to wear clothing suited to the weather. In their case, when it was hot, clothing suited to the weather was a swimsuit. In our case, when it’s cold, clothing suited to the weather is a parka.

According to this conception, notice that the third group relates to the second group as Reformists. Those who continue to wear swimsuits because “the tradition of our ancestors is in our hands”—they are Reformists; they are violating the law. Why? Because the law does not say to wear swimsuits; the law says to wear clothing suited to the weather. They are not keeping the law. Do you understand the difference between the first and the third group? The first group says: we are wearing parkas; if you want to wear swimsuits, good health to you, everyone can do whatever they feel like. The third group does not say: we’re doing whatever we feel like. They say: this is what we must do as the authentic continuers of the tradition of our ancestors. This is how one continues the tradition of one’s ancestors in the new circumstances. That is a completely different picture.

If I were to ask you now about this group—whether it is conservative or Reform—I think it is an entirely conservative group, no less conservative than the group that continues with swimsuits. The difference between them is the question of what exactly is being preserved. What is the principle we are supposed to preserve? The first group preserves the principle that one should wear swimsuits. The second group says there is no such principle. Our tradition does not say one must wear swimsuits. It says one must wear clothing suited to the weather. And that principle we will preserve with all our strength; we are great conservatives. We will preserve it, and anyone who does not do so is in the wrong—in a conservative conception.

Now, with our criminal minds, of course we suspect them, because what they are doing is convenient. They are wearing parkas in cold weather, right? It’s convenient to do that. But that suspicion may just be in our criminal minds, because their reasoning is reasoning that can definitely be heard. This is the conception—you know it—the conception of “too good to be kosher.” That is, some things are just too convenient not to be forbidden. As though sometimes it’s permitted—convenient and pleasant things are permitted. It is not automatically the case that whatever is pleasant and comfortable must be forbidden. That is basically what the third group is claiming.

So therefore I’ll call this now conservatism—let’s call it midrashic conservatism, not simplistic or literal conservatism. Literal conservatism takes the tradition as is: our ancestors wore swimsuits and so we wear swimsuits, according to the plain meaning. Midrashic conservatism preserves the tradition but gives it a midrash. You wore swimsuits, that’s true, but you wore them because you lived in a hot region. Therefore the principle that needs preserving is not the principle that says one should wear swimsuits, but the principle that says one should wear clothing suited to the weather. And now from this point on, I am a fanatical conservative. But what I preserve, what I am preserving, is a midrash; it is not the plain meaning. I am interpreting the tradition I received.

[Speaker J] So therefore both groups—the conservative group is the fourth group, the one that preserves the argument over who’s right.

[Rabbi Michael Abraham] Okay, it’s like the judge’s wife, right? You’re right and you’re right too, yes. So the claim is that what distinguishes these two groups is the existence of midrash. The question is whether you preserve the tradition as-is, plainly, or whether you interpret it through midrash—but remain completely faithful to it. Because you truly and sincerely believe that the midrash is the correct meaning of the tradition. It’s not that you’re playing games because it’s convenient for you to wear a coat because you’re cold. That’s not okay. I’m talking about someone for whom, true, it’s also convenient, but he’s doing it genuinely. He really thinks that this is what the tradition says. And if that’s so, then he is no less conservative than the first one. Now I’ll ask another question: what distinguishes him from the Reform person? The one who wears a coat just because he feels like wearing a coat, because he’s cold. Here too, what distinguishes him from the Reform person is the existence of midrash. The Reform person wears a coat without resorting to midrash. He knows: I’m not continuing my ancestors’ tradition—so what? I’m not obligated to my ancestors’ tradition. So he is Reform at the moment—“Reform” is a complex definition—heretical, fine? Not obligated. The midrashic conservative, in the bottom line, looks like the Reform person. What distinguishes them is the reasoning. In order to do what the Reform person does, the midrashic conservative must produce a midrash. Only then does he allow himself to wear a coat. And in that sense, the midrash is the indication that what we have here is really conservatism and not lack of commitment.

So if that’s the case, we suddenly discover that you can preserve Jewish law and think that what you’re doing is exactly what was given to Moses at Sinai, but what you actually do—if someone were to film what you do—would not look in any way like what Moses our teacher did. And that is of course true. What we do today does not resemble in any way what Moses our teacher did, there’s no question about that. But the claim is that the things we do today are the result of interpretation, or what I earlier called midrash, on what we received from Moses our teacher. And in that sense we preserve what we received from Moses our teacher, but not as-is; rather, we preserve it according to the interpretations and conceptions that we understand from what we received. And therefore, in the bottom line, it can be very different from what happened there.

Yes, there’s some genius who doesn’t believe that people who study in Hebrew know how to learn at all. What, the only people who know how to learn are the ones who learn in Yiddish. So I said to him, did Abaye and Rava also learn in Yiddish? He says, certainly, of course—what do you mean? After all, they knew how to learn. Meaning, nothing can change from the plain meaning of what existed in the past. No, I’m not even willing to do midrash. My conservatism objects even to midrashim, not only to Reform. Okay?

So let’s look at the same issue from another angle. I’ll show you an example of midrash. There is a Talmudic passage in tractate Bava Batra on page 5. The Talmud there discusses the presumption that a person does not repay before the due date. What does that mean? Suppose someone claims money from me that I borrowed from him, a hundred shekels, and I say to the person: that never happened, I never borrowed. Then the burden of proof is on the claimant, because he has to bring proof in order to get the hundred shekels from me. What happens if I say: true, I borrowed from you, but I repaid it? So the Talmud says it depends. Suppose the loan was for thirty days. If I claim that I repaid within the thirty days, I am not believed. If I claim that I repaid after the thirty days, I am believed, because the burden of proof is on the claimant—he wants money from me, let him prove that I didn’t repay. But if I claim that I repaid within the time, I am not believed. Why am I not believed? The Talmud says: there is a presumption that a person does not repay before the due date. A person who can hold onto money for thirty days does not get rid of it after a week. If you can hold onto the money for thirty days, you’ll hold onto it for thirty days. And if you claim that you repaid earlier, that is not reasonable. Or at least, the burden of proof is on you. It could be, it’s not impossible, but the burden of proof is on you. Okay? That’s what the Talmud says.

Now I ask you: what would happen in an environment where the common practice is to repay loans early? Suppose some sort of mentality developed, I don’t know, a business arrangement that allows charging interest, okay? So in effect, obviously I have an interest in repaying before the due date, right? I don’t want to accumulate interest. If someone can pay off a mortgage because a large sum falls into his hands at some stage, then he pays off the mortgage early so as not to accumulate interest. Okay? Now he comes to a religious court, the bank sues him, says: you took a mortgage from us and didn’t repay. What do you mean, I paid off the mortgage early. What are you talking about? There’s a Talmud: there is a presumption that a person does not repay before the due date. What is the religious court supposed to rule in such a situation?

So a sane religious court should say: very nice, with all due respect to the Talmud that says there is a presumption that a person does not repay before the due date, for us it is clear that the reality is different. That presumption is not correct for our times, because in our world people do repay before the due date for all sorts of reasons, not important at the moment. Is this called not fulfilling the halakhic instruction of the Talmud? Obviously not. It does not contradict the halakhic instruction of the Talmud, because the reality is a different reality.

Now I’ll ask the other side of the same question: is that page of the Talmud still relevant? Maybe we can tear out page 5 of Bava Batra and throw it in the trash. Not even put it away respectfully, because it’s no longer Torah at all. We can throw it in the trash, because it’s no longer relevant. What do I have to learn from this passage? This passage speaks about a situation in which there is a presumption that a person does not repay before the due date. Today it is irrelevant, and that’s it. My claim—and I’m abbreviating because we are really running out of time—is that this is not true. Not only am I not contradicting the Talmud, but what I do I learned from the Talmud. Not only does it not contradict the Talmud, but the Talmudic passage is just as current today as it was then. Why? Because what do I learn from the Talmud? What is the Talmud trying to teach me? Is it trying to teach me the psychological fact that people are not inclined to repay before the due date? For that I go to the psychology department, I ask people, they’ll do a survey among people—if anyone even needs this, we all know it—and we’ll find out the relevant psychological facts. The Talmud’s purpose is not to teach us facts. Not psychological facts, not other facts, not any fact of any kind.

So what do we learn from this passage? What we learn from this passage is a normative principle, a legal halakhic principle—not a fact. And what is that principle? This principle says that if there is a psychological presumption that a person does not repay before the due date, then the rule that the burden of proof is on the claimant is overridden. In principle, when I claim that I repaid, the burden of proof lies on the claimant, right? The Talmud says: yes, but if there is a presumption against me when I say that I repaid within the time, and the presumption says it is not reasonable that you repaid within the time—the psychologists tell me people don’t do that—if so, then that presumption has halakhic standing and it transfers the burden of proof to me. Now I will have to prove that I repaid, and you will not have to prove that I did not repay. That is a halakhic statement. The novelty of the Talmud is not the fact that people do not repay before the due date. The novelty of the Talmud is the legal-halakhic norm that says that if such a fact exists, it has legal standing and changes procedure: it places the burden of proof on the defendant and not on the claimant. That is a normative principle, not a factual one.

And this principle—that is the principle the Talmud teaches me. And now let’s return to us. Now I’m talking about our situation. In our situation, people do repay before the due date. I look in the Talmud and I see what I learned from it. I learned from the Talmud that the basic rule is that the burden of proof is on the claimant—the claimant has to bring evidence. But if there is a presumption—it is of course circumstance-dependent; in every place and every time there are presumptions according to that place and time, according to what people do in that place and time—now according to those presumptions I will determine what the burden of proof is. I am not enslaved to the rule that the burden of proof is on the claimant. It depends. If there is an opposing presumption, then yes; if there is no opposing presumption, then no. All that I learned from Bava Batra page 5. Even though the presumption discussed by the Talmud, that a person does not repay before the due date, is no longer relevant today. Since what the Talmud taught me is not at all the fact that a person does not repay before the due date. The Talmud is not interested in teaching me facts—that is not its mandate, that is not what interests it, that is not what matters to it. And that is also not what is called Jewish law. What is called Jewish law is the instruction that applies to given facts.

This is a very important point that many, many people miss. People think that Jewish law states the fact that a person does not repay before the due date; that is how it is ruled by the halakhic decisors—look in the books of rulings, you’ll see it there. But that is a major mistake in understanding what Jewish law is. Jewish law is not the factual determination. Jewish law is what norm applies to the facts, to the reality described by that factual determination. And that really is Jewish law, and we are obligated by what the Talmud says. Here I am not disagreeing with the Talmud. I am only claiming that the Talmud does not say that the burden of proof is on the claimant simpliciter. The Talmud says that the burden of proof is on the claimant unless there is a presumption against him. And if there is a presumption against him, then indeed the burden of proof is on the defendant. That is what the Talmud says. Now, is there a presumption or is there not a presumption? I look around at how people behave, I check, I look, I see. If people behave like in the Talmud, then what applies here is the law that appears in the Talmud. If they behave differently, there is no holiness in people’s behavior. If people behave differently, then one has to apply the principles that appear in the Talmud to the new reality, and the result can be completely the opposite. But even if the result is completely the opposite, that is not a deviation from the instruction of the Talmud—it is the correct continuation of it.

Someone today who would apply the instruction of the Talmud and place the burden of proof on the defendant, saying to him, a person does not repay before the due date—he is deviating from Jewish law. Even though he is going according to the Talmud and placing the burden of proof on the defendant—yes, with the mortgage, I heard you paid it off, so prove it, because a person does not repay before the due date. Someone who rules that way, even though that is what the Talmud says and that is what is ruled in all the halakhic decisors, is deviating from Jewish law; he is ruling against Jewish law. And why? Because Jewish law does not determine the fact. Jewish law does not deal with facts. Jewish law deals with norms.

There is a gap—you could say almost an unbridgeable one—between facts and norms. In philosophy this is sometimes called the naturalistic fallacy, or “ought-is” in the language of David Hume. The gap between the ought, what should be, and the is, what exists. Facts do not dictate anything about what should be. What should be is a normative determination that relates to given facts; it is not derived from the facts. And someone who derives a norm from facts without examining his argument—I’m telling you, his argument is invalid. If someone says, for example: this painting has three colors in it—red, yellow, and green—and therefore this painting is beautiful. That argument is invalid logically, because its premises are facts. That this painting has red, yellow, and green in it is a fact. But the conclusion that the painting is beautiful is a judgment. You cannot derive a judgment from facts. Someone who derives a judgment from facts is making an invalid move, something logically defective, because the conclusion does not necessarily follow from the premises. For the conclusion to follow from the premises, you need to add what I call a bridge principle. A principle that bridges between the facts and the judgment, or between the facts and the norm. For example: anything that has colors—more than three colors—is a beautiful painting. If someone adopts that premise too, now his argument is valid. This painting has red, yellow, and green; every painting that has at least three colors is beautiful—those are my two premises; conclusion: this painting is beautiful. That is a valid argument. But without the bridge principle, if I take only the factual premise, it is impossible to derive the normative conclusion from it.

Now notice that this is exactly the structure that appeared for us regarding swimsuits. And what did the midrash of the swimsuits do? In the midrash of the swimsuits, it basically said: that our ancestors wore swimsuits is a fact, I agree. But their tradition does not transmit facts to us; it transmits norms to us. Now the question is: what is the norm? So one person says, the norm is that one is obligated to wear swimsuits. How do you know? Because our ancestors wore swimsuits. But that our ancestors wore swimsuits is a fact. To say that one is obligated to wear swimsuits is a norm. You cannot derive a norm from a fact. The transition from fact to norm requires a bridge principle. Therefore, the naïve conservative who says that if our ancestors wore swimsuits then we too must wear swimsuits deceives himself into thinking he is not doing midrash—but he is doing midrash. And his midrash says: our ancestors did not merely happen to wear swimsuits, but rather there is an obligation to wear swimsuits. Who told you that? Maybe they wore swimsuits simply because it was hot? Because he assumes that premise. Ah, so you have an additional premise. Your premise is not only that our ancestors wore swimsuits, but that this wearing of swimsuits is essential, that there is an obligation to wear swimsuits. I, as a midrashic conservative, disagree with you. My midrash is different. I claim that our ancestors wore swimsuits because there is an obligation to wear clothing suited to the weather, and not because there is an obligation to wear swimsuits.

In other words, what I want to claim is that in this parable of swimsuits, the tradition that transmits the obligation to me transmits a norm to me. There is a very common mistake people make where they confuse norms with facts. I agree with the facts: our ancestors wore swimsuits. I do not agree with your normative conclusion that there is an obligation to wear swimsuits. It may be that the obligation is to wear clothing suited to the weather. Therefore, until you show me what the bridge principle is, or what your midrash is, you cannot diagnose whether I am Reform or conservative. If I present you with a midrash, then you’ll see that I am conservative. I preserve the principle we received in the tradition. It’s just that the principle we received in the tradition is not that a witness who testifies that he repaid within the time is not believed. That’s not correct. That principle is a fact that was true then. The principle we received is that if there is a counter-presumption, the burden of proof is on you. Let’s see whether there is a counter-presumption. Today there is no such presumption. I repaid within the time because that is a reasonable practice; many people do it. There is no such presumption.

So in other words, what I want to claim—and I’ll finish here already—is that a halakhic ruling is always built in the following way, and people do not understand this, and it solves many problems that people struggle with; I don’t have time to get into it here. A halakhic ruling is always built as follows: you need to check what the facts are, you need to determine what principles determine from given facts what the relevant norm is, and then you can define what the binding norm is in the situation. Only then. And therefore, whenever I examine whether a norm is relevant to what exists today, I need to check two things. First: what are the facts today? And second: what are the bridge principles, or what are the relevant midrashim?

If we return to the examples I gave earlier, what Meiri did with non-Jews is exactly this. He said: what is written in the Talmud, that it is forbidden to return a lost item to a non-Jew, that it is permitted to rob a non-Jew, to evade repayment of his loan, all fine, his money is ownerless. Meiri says: that is not what is written in the Talmud. What is written in the Talmud is that non-Jews who do not behave like human beings—this is the way one should relate to them. And in the time of the Talmud, non-Jews did not behave like human beings. Meiri says, fine, but today the non-Jews around us behave perfectly decently. If so, the true continuation of the Talmud relevant to our reality today is to observe these laws also with respect to non-Jews, and to violate the Sabbath in order to save the life of a non-Jew. And someone who does not do this is a transgressor—you need to understand that. Meiri is not saying, I’m allowed to do this. Meiri is claiming: this is what I have to do if I am faithful to Jewish law. Someone who does not do it is a transgressor.

Someone who keeps wearing swimsuits even though the weather is cold—maybe he is self-sacrificing and has tremendous devotion, but he is self-sacrificing for the wrong principle; he is self-sacrificing for a transgression. Therefore, many times we admire people who preserve with great boldness all sorts of principles that are not relevant today, who walk around in a shtreimel in the Israeli heatwave—but I don’t know. I have appreciation for their devotion, but I have contempt for their halakhic and realistic understanding. In other words, you do not really understand what needs to be preserved here. What needs to be preserved is not what was, but the mode of relating to reality. He is not truly Reform, because in fact he is not preserving the bridge principles. He is preserving the facts where the facts are not correct. And the principle… after all, someone who wears a swimsuit in cold weather is violating the Jewish law that one must wear clothing suited to the weather. He is not preserving the bridge principle.

And as we saw with the presumption that a person does not repay before the due date, Torah is not the facts; Torah is the bridge principle. That is Torah. And therefore that is what must be preserved. So many of the changes that seem very threatening and very frightening, and always bring out people’s immediate cry—wait, that’s Reform, it can’t be—they are entirely legitimate changes. Not only legitimate, but the conservatism is a criminal conservatism. Meaning, someone who opposes change is in fact deviating from Jewish law; he is not observing Jewish law. Because in the new reality, not only is it permitted to do this—in the new reality, this is what one ought to do. If you continue to act as it says in the Shulchan Arukh, or as the Talmud said, in a different reality, you are a transgressor. You are violating the Jewish law of the Shulchan Arukh, not my Jewish law. Because the Shulchan Arukh applied it to a different reality; in our reality, he too would have said to do something else.

And this is often what people do not understand: conservatism is supposed to preserve bridge principles, not bottom lines and not facts. The bottom lines can be the opposite, and that is precisely what true conservatism would be. If you are a true conservative, then in a different reality there must be a different bottom line. Otherwise you are not preserving the relationship between facts and norms, the bridge principle. Okay, this was short and I did it a bit telegraphically, but if anyone wants to ask something or comment, now is the time.

[Speaker C] First of all I want to—can you hear me?

[Speaker H] We can hear.

[Speaker E] We can hear.

[Speaker C] So first of all I want to thank you for the fascinating and challenging lecture. But I have a few comments, and I’ll say them briefly, although I think we could continue this discussion for many more hours. First of all, you presented your remarks as though this were some kind of innovation, and you spoke about Meiri. To me at least it seems obvious that these things were already done by the Sages. The Sages did it regarding the stubborn and rebellious son, the Sages did it regarding the wayward wife, the Sages did it in the case of Mari bar Isak and the transfer of the burden of proof in the case of a deceitful litigant. In other words, this thing is not some great innovation; it was already done by the Sages. A second comment—and this is what bothers me somewhat in the approach you presented—there is a very interesting High Court case, and by the way some of what you said reminded me of Aharon Barak, I don’t know whether that’s a compliment or not. There is a very, very interesting High Court case called Sadeh. What happened there was that a prisoner worked within the prison service, and he argued that the salary he received was lower than the minimum wage. And he wanted them to add to it, to complete it to minimum wage. Then there was a fascinating discussion in the Supreme Court: what is the principle of the Minimum Wage Law? Judge Barak said that the Minimum Wage Law comes to ensure decent subsistence. So they said: if it comes to ensure decent subsistence, then you have that within the prison service, you don’t need an addition. Judge Cheshin said in that same ruling that the principle is to ensure the value of labor, and therefore if the prisoner works within the prison service, they need to add to it for him. In other words, my difficulty with what you said is the identification of the principle. Who identifies the principle? Who determines what the normative principle is according to which we must rule today? And here I see a difficulty.

[Rabbi Michael Abraham] So I’ll answer that briefly, because really this is what I would have had to continue with here if I had more time, but I’ll answer briefly. First of all, the fact that what I’m saying is not innovative—that is exactly what I’m arguing. It is not innovative precisely because it appears innovative in the eyes of people of our generation, and many people who are faithful to Jewish law and halakhic decisors who are faithful to Jewish law in our generation. That is exactly my point. That throughout history this was always done, and following the Reform movement somehow we became constricted, and so things that are self-evident seem to people unacceptable. If you look at the discussions around what Meiri wrote, you’ll see that almost no one among the halakhic decisors accepts it. He wrote that yes, no matter—but almost no one among today’s halakhic decisors, including decisors from… even relatively modern ones, also do not accept it, because they are not willing to accept that kind of thinking, even though it is quite clear that the Sages did it, certainly did it, and generations after them somewhat less. And in our generation today people are a bit less daring, at least to say that they do it, although in my opinion they still do it. Like with “do not form separate factions,” which I mentioned earlier. So the fact that it isn’t being used is exactly the point. What I am trying to show is simply to uncover a hidden conception that already exists in the history of the Sages. That is clear.

As for the legal examples you mentioned, here this essentially brings us back, of course, to the question of purposive interpretation versus literal interpretation. What I called midrash, in legal academia is called purposive interpretation. And basically, in the two examples you brought—both Cheshin and Barak—both of them engaged in purposive interpretation.

[Speaker A] Both of them came and said—

[Rabbi Michael Abraham] What did this minimum wage law come to achieve? Right. A conservative literalist could have come and said: I don’t know, it says minimum wage, so it’s minimum wage. I’m not interested in what it came to ensure—decent subsistence or compensation for labor or whatever it may be. Those are exactly the three conceptions I’m talking about here. Absolutely, that is exactly right. And the question of purposive interpretation is exactly what distinguishes the conservative literalist from the midrashic conservative. And the same debate existed around Aharon Barak, and in this respect, from my point of view, it is a compliment—I’m with him.

And the question of how much of this you do and how far you go with it leads me to your last question: who determines what the bridge principle is, or what the midrash is that stands behind the Jewish law? On that I would need to give another two or three lectures in order to exhaust the issue, but let’s say for the sake of discussion here, I’ll put it this way. Suppose there were a Sanhedrin here today, and the whole question of authority would disappear or would not be disputed. Then I claim that this is what they would have needed to do. Okay? That is enough. What do we do when there is no Sanhedrin? What do we do in our time? Good question. I have many answers to it; I’ve written many articles and books about it, but I can’t get into it here.

[Speaker J] I just want to comment briefly, in a few words. You began with Maimonides about the Torah being received from Sinai, and what was received is from Sinai. We have this question whether the Torah, at the time it was given, anticipated modern development and halakhic entrenchment. And I’ll give the example of what I mean. You took easier examples, but an example of halakhic entrenchment is the best example—the issue of interest. If you read and look at the issue of interest, where it is written, in what contexts. The three times it appears in the Torah, it speaks about the poor person. From the beginning of the halakhic discussions, this was at the beginning of an economy that was developing, and Jewish law began to get entrenched in speaking not about the poor person but about the beginning of a developing economy. And they started inventing all sorts of devices that may still have been possible in those periods. We have reached a period in which Jewish law—the economy—is highly, highly developed, and you have the possibility of coming and saying: let’s read the text and see where it belongs and what it is talking about. In fact it is talking about the poor person, not to go in the directions of the heter iska, which is an entrenchment that is completely beside the point in interpretation, but rather to come and say: the Torah is Torah that spoke about the issue of the poor person; therefore the whole matter of the heter iska is not relevant. The fact that we began these discussions thousands of years ago or hundreds of years ago and found these solutions does not mean we have to continue entrenching ourselves in this.

[Rabbi Michael Abraham] I’ll answer you briefly. First of all, I completely agree. Second, I don’t think this example is more radical than Meiri’s example. You think I brought easy examples—they aren’t easier. Meiri permits violating the Sabbath; that is more radical than permitting interest. Third, there are halakhic decisors who say what you are saying. There are halakhic decisors who say what you are saying—for example, they claim that there is no prohibition of interest regarding banks at all, quite radically. That’s a concept that did not exist in the period when the laws of interest were formulated. Fourth, Rabbi Ariel has written more than once—our teacher Rabbi Yaakov Ariel, who overall is a relatively conservative decisor, at least in my sense—has written more than once that the heter iska means exactly the opposite of what you said. The heter iska is exactly what he says, it is not a trick. A heter iska means that I give you money—you know what an iska is in the Talmud? An iska in the Talmud is that I give you money, half of it as a loan and half of it as a deposit, you conduct business with it, profit from it, and half the profit goes to me on the loan. A partnership, a partnership, yes. Rabbi Ariel says: if you make a heter iska, it’s not a permit, it’s true—it’s a business transaction, not interest. Interest is when it’s a loan and you return to me more than what you took. But if you conducted business for me and I profited, that’s not interest at all—it’s not a trick, on the contrary. The whole idea of the heter iska is exactly what you’re saying—not a trick.

What happens, though, is that today they make heter iska arrangements for situations where the loan is taken for consumption and not for doing business. And that is a trick. And on that Rabbi Ariel indeed argues that there is no heter iska in such a situation. Because the heter iska is not a permit; it truly is not interest when you are doing a business venture. You can’t apply a heter iska to such a thing. Consumption loans—Rabbi Ariel argues—are subject to the prohibition of interest. Now, one can come at a further level and argue that consumption loans for luxuries, not for the elementary needs of a poor person, perhaps the prohibition of interest does not apply to them at all. But that takes the same principle one step further, and I’m willing to accept that too. I’m only saying that this mode of thinking regarding interest is actually a good example, because here quite a few halakhic decisors do say this. Here specifically one need not be so critical of the existing halakhic decisors, because they do engage in this kind of thinking about interest. In other places less so. On the status of women, for example, they do it less. And I think that there definitely is room there for similar steps. Anyone else?

[Speaker J] And what would Meiri say about that same non-Jew who opens a bottle of wine?

[Rabbi Michael Abraham] That is an excellent question. Most commentators…

[Speaker G] What would Meiri say about libation wine—why only that?

[Rabbi Michael Abraham] I once wrote an article about this, and part of the article was devoted to getting out from under the common perception of Meiri’s commentators, who claim that in his view Christians are not idolaters, and therefore all the sanctions in the Talmud do not apply to them. And then indeed there is no very far-reaching statement here, because there are interpretations among the medieval authorities that write this, that all this discriminatory attitude toward non-Jews applies only to idolaters. Except that Meiri lived in a Christian Catholic environment—not just Christian; this was before the Reformation, before Protestantism. And this Catholic environment—yes, Meiri was Maimonidean, following Maimonides—and he never writes anywhere that he disagrees with Maimonides on this point, that Christians are idolaters. And when you look at Meiri’s texts, he also does not write that. In my opinion, Meiri argues that Christians are civilized idolaters. Meaning, they are idolaters, but they behave in a reasonably human way; they are not deniers of the prohibition of idolatry. So what is the implication? The implication is exactly what you said. The sanctions directed at non-Jews who do not behave like human beings are not relevant to them, because they do behave decently. But the sanctions directed at idolaters, such as the prohibitions—for example, to prohibit libation wine or ordinary wine handled by them—that remains. They are still idolaters. That is exactly the point. Okay? Anyone else?

[Speaker I] And what do you do with “you shall not show them favor”?

[Rabbi Michael Abraham] In what sense?

[Speaker I] “You shall not show them favor,” with non-Jews—it’s not only a matter of interest and medical treatment. “You shall not show them favor,” it has rules. Not to give them a foothold in the land, not to show them grace, not to give them an undeserved gift.

[Rabbi Michael Abraham] First of all, already among the medieval authorities it appears that some say “you shall not show them favor” applies only to idolaters; some of the medieval authorities say it applies only to the seven nations that were in the land and no longer exist today. So here already among the medieval authorities there is a range of views if you want not to apply “you shall not show them favor” to the non-Jews of our time—most non-Jews in our day, if not all of them. Beyond that, one can certainly apply Meiri’s idea also to “you shall not show them favor”; that too can be understood that way.

[Speaker C] Well, I want to thank Rabbi Dr. Michael Abraham for this most enlightening lecture, and we’d be happy to stay in touch. And I personally would be very happy to hear two more lectures in connection with the principle. In any case, thank you very much, and we very much appreciate your agreeing to speak with us. Thank you very much.

[Speaker K] Thank you very much, happy holiday. Festive regards. Bye.