Lecture on Positivism and Rule-Following in Halakha

Table of Contents

• Legal approaches: positivism versus casuism
• The halakhic question and the claim of historical change
• Wittgenstein and learning rules from examples
• Philosophy of science: Carr versus Bacon and theory-dependence
• Application in Jewish law: rule, examples, and a critique of certainty
• Interpretations of “et” and the dynamic between rule and exception
• Temurah, forgotten laws, and the hermeneutic principles
• Grammar and language as a model: rules as a product, not as constitutive
• Halakhic intuition, “the fifth part of the Shulchan Arukh,” and who is qualified
• Nachmanides on the limits of Talmudic proof
• Talmudic examples: suspicion toward rules and preference for casuism
• Rules of halakhic ruling, exceptions, and criticism of later “made-up innovations”

Summary

General overview

The lecture sets up a fundamental dispute between a positivist approach, which sees law and Jewish law as a system of rigid rules from which conclusions are deduced, and a casuistic approach, which sees decision-making as dependent on cases, precedents, and analogies. The speaker argues that in later generations Jewish law tends to present itself in a more positivist and mathematical way, but in practice this is only an imagined ideal, because rules are created out of examples and always rest on intuition and common sense. He emphasizes that it is impossible to reach a certain halakhic ruling through rules and logic alone, and that the art of halakhic decision-making is a necessary maneuver between rules and mature halakhic intuition.

Legal approaches: positivism versus casuism

Positivism sees the legal system as a set of rules established by the legislator, and the judge is supposed to derive the correct answer from them by means of deductive logical inference rules. A casuistic approach sees legal reasoning as based on previous cases and precedents, and on analogy from case to case rather than deduction from a general law. The speaker points to the implications for the question of who determines the binding principles—written law or earlier courts—and to the difference between rigid deduction and softer tools of resemblance and comparison.

The halakhic question and the claim of historical change

The central question is presented in relation to Jewish law: is the halakhic decisor supposed to apply logical rules to a set of binding principles in order to derive answers, or is the decision a casuistic move of analogies drawn from cases? The speaker argues that the closer we get to our own time, the more a positivist outlook takes over in Jewish law, reducing the room for maneuver of the halakhic decisor and assuming that everything is already found in the sources. By contrast, in the Mishnah, the Talmud, the Geonim, and the medieval authorities (Rishonim), what stands out more is a system of cases and analogies with few rigid rules. He describes how students become “mathematicians and logicians,” even though the early sources are built mainly as chains of cases and laws.

Wittgenstein and learning rules from examples

Ludwig Wittgenstein is brought in through the argument of Following a Rule to show that every rule is learned and functions through examples that end with “and so on,” and therefore there is no guarantee that the student derives the same rule the teacher intended. The speaker illustrates this with a psychometric question about the sequence 3, 5, 7, where the answer “9” is not necessary, because one can justify infinitely many rules that lead to any fourth number, and he presents success here as conformity to common sense more than intellectual superiority. He describes teaching a child to count up to a thousand and expecting him to continue “on his own,” and explains that someone who continues differently can justify it, but still will not be considered someone who learned the rule. Therefore educational systems inevitably filter out those who do not “speak the language” of the instruction. In the course of the discussion, it also comes up that radical feminist criticism can claim there is “male language and female language,” and the speaker notes the possibility of a “fusion of horizons,” but emphasizes the limits of learning when the linguistic-conceptual gap is too deep.

Philosophy of science: Carr versus Bacon and theory-dependence

The speaker cites Carr from his book What Is History? against the description of Francis Bacon according to which science begins with collecting facts and ends with theory through induction. Carr’s claim is that there is no way to know which facts to collect without a prior theory that defines relevance. Research therefore begins with a vague theory, collects facts accordingly, refines the theory, and goes back and forth in this way. From this, the speaker argues that trust in rules as a “pure” result of facts is unjustified, and that there can be no pure positivist system, because the rule is always partial, intuition-dependent, and open to revision in light of new facts.

Application in Jewish law: rule, examples, and a critique of certainty

The example “women are exempt from positive commandments that are time-bound” is presented as a rule built from examples of commandments from which women are exempt, but the speaker argues that any set of examples can be generalized in infinitely many ways, so the choice of rule rests on prior “common sense” that narrows down what counts as reasonable. He asks why “dependence on time” should even seem like a relevant parameter, and mentions the attempt of Abudarham to find an explanation, alongside other claims that this is “a tradition from Sinai,” together with the remark that, in the speaker’s words, these things “really do not stand up to the test of the facts.” The conclusion is that anyone who thinks it is possible to work with rules and arrive at unequivocal answers is living under an illusion, because the rules are not precisely defined and different people will apply even a given rule differently.

Interpretations of “et” and the dynamic between rule and exception

The Talmud in tractate Pesachim 22b is brought regarding Shimon HaAmsuni, who used to interpret every occurrence of “et” in the Torah until he reached “You shall fear the Lord your God,” at which point he stopped, and his students concluded that if there is even one verse that cannot be interpreted, then the whole rule collapses—and he accepted “reward for refraining.” Rabbi Akiva introduced a new interpretation, that “You shall fear the Lord your God” comes to include Torah scholars, in order to save the rule. The speaker interprets this as a science-like pattern: a counterexample that refutes a rule versus a workaround that allows one to preserve it, and from this he concludes that the rule was not accepted “from Sinai” but was built from examples, and therefore its force is limited.

Temurah, forgotten laws, and the hermeneutic principles

The Talmud in tractate Temurah is brought concerning “three thousand laws were forgotten during the mourning period for Moses,” and “one thousand seven hundred a fortiori inferences, verbal analogies, and scribal fine points” that were forgotten and then restored by Othniel son of Kenaz “through his dialectical reasoning.” The speaker argues that a halakhah given to Moses at Sinai cannot be reconstructed if it was forgotten, and therefore reconstruction through dialectical reasoning teaches that the hermeneutic principles themselves were not from Sinai but were created out of an attempt to extract rules from the examples that remained. He presents a position according to which the scholars are right that the hermeneutic principles developed over the course of history and were influenced by other cultures, and the medieval authorities (Rishonim) are right in the sense that the midrashic mode of reading was given at Sinai, but its conceptualization into rules was done later. He cites the words of Maimonides, that “with regard to something that is a halakhah given to Moses at Sinai… no dispute ever arose,” in order to explain why the disputes between Rabbi Yishmael and Rabbi Akiva over the hermeneutic principles support the idea that this is a human conceptualization.

Grammar and language as a model: rules as a product, not as constitutive

The speaker compares this to the rules of grammar in a spoken language, which are created after the language already exists in a community, and therefore have many exceptions. He argues that a native speaker learns from examples and applies them creatively even in new contexts, while an “ulpan” student relies on rules and may mistakenly correct others because he imagines that the rules constitute the language. From here the claim is that, just as in language, so too in law and in Jewish law, a purely positivist use of rules leads to mistakes, and the required precision comes from listening to the “ear” and not only to the formula.

Halakhic intuition, “the fifth part of the Shulchan Arukh,” and who is qualified

The speaker argues that halakhic ruling requires a combination of rules with intuition and common sense regarding when and how to apply them, and that one should never go only with one side. He identifies the Chazon Ish’s “fifth part of the Shulchan Arukh” as that same intuition that guides when it is right to apply the Shulchan Arukh and when it is not. In response to the question whether one should follow intuition in a halakhic question, he qualifies that it depends on whose intuition we are talking about, and emphasizes that proper intuition is built only through mastery and prolonged contact with the material, whereas a beginner needs to stick to the rules or ask a rabbi.

Nachmanides on the limits of Talmudic proof

A passage from Nachmanides in the introduction to Milchamot Hashem against the Baal HaMaor is cited, where he states that there are no “conclusive proofs” and no “absolute difficulties” in disputes among the interpreters of the Talmud, and that in this wisdom there is no clear demonstration like “geometry and astronomical observation.” Nachmanides sets the goal as striving for “the agreement of sound reason” rather than mathematical certainty, and the speaker uses this to argue that a ruling is not the product of formal logic alone, but of reasonable judgment within complex material.

Talmudic examples: suspicion toward rules and preference for casuism

The Mishnah in tractate Bava Kamma, which lists the primary categories of damages and adds “the common denominator among them,” is cited, and the speaker emphasizes the Talmud’s question, “What does ‘the common denominator among them’ come to include?” as expressing surprise at the very need for a rule, as though the examples themselves were enough. He presents this as proof that the Talmud is casuistic, and that the system of cases comes before trust in an abstract rule. The Talmud in tractate Kiddushin is cited regarding the exceptions to the rule “women are exempt from positive commandments that are time-bound,” and regarding Rabbi Yochanan’s statement, “We do not derive from general rules, even in a place where ‘except’ is stated,” as a declaration that the rule does not close the system even when the exceptions are explicitly listed.

Rules of halakhic ruling, exceptions, and criticism of later “made-up innovations”

The rule “in disputes between Abaye and Rava, the Jewish law follows Rava except…” together with the mnemonic Ya’al Kegam is cited, and the speaker argues that Maimonides rules like Abaye even beyond those six cases, interpreting this as a practical illustration of the principle that “we do not derive from general rules, even in a place where ‘except’ is stated.” He adds that there are Amoraim who ruled like Beit Shammai even though a heavenly voice established that the Jewish law follows Beit Hillel, and explains that the rule is useful when there is no substantive decision, but it does not decide matters when “we know what to do.” In closing, he criticizes rules attributed to the medieval authorities (Rishonim) and later authorities (Acharonim), as well as rules that circulate around the Shulchan Arukh and Maimonides, and argues that clinging to them “like the horns of the altar” emasculates the halakhic decisor’s ability to be committed to what is right in the situation, because sometimes “what Jewish law demands” is not what comes out of the rules.

Okay. Today we’re going to deal a bit with the question of rules—rules and particulars in Jewish law, and more generally as well. This is of course a very broad topic, and I’ll try to touch on a few of its basic principles so we can get some sort of overall picture, as much as time allows. The background to this is really a major debate about legal systems. There are—let’s say, schematically—two polar conceptions of how we understand a legal system. You can call them positivism and perhaps natural law; there are various aspects to this, and I’ll try to focus on one particular aspect.

One of the central features of the approach called positivism is that it sees the legal system as basically a set of rules, created for example by the legislator, and the judge’s role is to derive from those rules the correct legal answer to the case before him, using only logical rules of inference. In other words, the legislator gives us a set of rules, and the judge is supposed to apply to this set of assumptions or principles, these data, a collection of logical inference rules, and produce the conclusion relevant to the case before him.

Opposed to that is another conception—not exactly natural law, really. This antithesis to positivism might better be called what is known as a casuistic conception. A casuistic conception sees legal reasoning differently. You’re not supposed to take the principles set by the legislator, the laws, as premises from which you derive the conclusion by logical tools. Rather, you are supposed to use precedent cases, earlier cases, and make analogies to the case before you. One of the central markers of the difference between these two conceptions is the question of what tools I use. The positivist conception says that I use deductive tools, meaning rigid logical inference rules—yes, like: all human beings are mortal, Socrates is a human being, conclusion: Socrates is mortal. The conclusion follows necessarily from the premises, and that is a valid logical inference. Okay, that’s deduction.

By contrast, in casuistic legal systems, in casuistic conceptions of law, we use softer tools—tools of analogy from case to case, not derivation of a particular case from a general law. So we have one case and we try to see which of the prior cases or precedents dealt with similar situations, and try to infer the conclusion from those previous cases to the case before us. Obviously this has many implications: who really determines the principles by which I decide the ruling—the legislator, or previous panels of previous courts? Am I relying on statutory law, on enacted law, or am I using precedents set by earlier courts and basically making analogies to the cases they dealt with?

I’m bringing all this as background because the question I wanted to discuss here is exactly this question, but with respect to Jewish law. Is Jewish law—or the halakhic decisor—basically supposed to take some set of rules? We have basic halakhic principles, Torah-level laws, rabbinic laws, the Shulchan Arukh, say, as a kind of metaphor for the collection of binding principles. And what the decisor is supposed to do is to take that collection of principles, apply logical rules of inference to them, and derive from them the answer to the question before him. That is basically a conception in which Jewish law is some collection of rigid rules, and the decisor is supposed to work with logical inferential tools, period.

Yes, I think German law tends more in that direction; British law is perhaps the clearest example of the casuistic conception, the conception that relies on precedents and on cases. So in the halakhic context too, as I said before, the same question basically arises.

And I think that the closer we come to our own time—that is, the later we are in history—the more the positivist conception takes over in Jewish law as well. Meaning, Jewish law increasingly sees itself—both halakhic decisors and those who study Jewish law—as people whose role is basically to apply logical inference rules to precedents. The precedents bind me; I have to see what they say about the case before me. There is less and less room for maneuver for the decisor to play with softer modes of thought, analogies, to see whether the rules belong here or don’t belong here, to extend them in some way.

Of course people do this; I’m using very extreme and dichotomous formulations. Obviously it is done, but the dosage keeps decreasing. In other words, the conception is that more and more we are becoming mathematicians and logicians. Whereas when you look in the writings of later authorities (Acharonim), and then further back to the medieval authorities (Rishonim), and the Geonim, and of course the Talmud / Talmudic text, and not to mention the Mishnah—we encounter the system more and more in a casuistic form. Not as a system of rules, but as a system of cases, of one kind or another: make this analogy, make that analogy. You’ll find very few rigid rules in the Mishnah. In the Talmud a bit more, but still not many. Usually the discussion is about cases. In such-and-such a case, this is the law. In such-and-such a case, this is the law. What do I do in another case? I don’t have a rule. So I have to find which case is similar and try to make analogies and infer a conclusion for the case before me.

That’s how it was in the past. Over time we become more and more mathematicians—yes, more and more we are applying logical rules and logical analysis to the precedents or rules we received from our rabbis. We see them as rules, basically. We didn’t always receive rules from them, but we see them as rules. And from our perspective, our role is increasingly shrinking into being a kind of computer—yes, just carrying out the relevant inference for the case before us. With the assumption that basically everything is already in the sources. And whatever is not there is not relevant—or, that everything is in the sources, except that what is in the sources is Jewish law, and whatever is beyond the rules, whatever the rules have nothing to say about—maybe there are such things, but that isn’t interesting, that doesn’t belong to Jewish law.

With your permission, I’m not going to address the chats here, because otherwise I’ll get scattered. So if there are questions, I’ll devote a few minutes after the class and try to answer them, okay?

So that is basically the discussion. Now, as I said, this discussion exists both in the legal world and, I think, it is worth raising it in the halakhic world as well. People speak about it less explicitly there, although of course implicitly you can see it in all sorts of places, but it is less on the table in the halakhic context. And I want to discuss it a bit in the general context and of course also with respect to the halakhic context.

Now, to discuss it seriously, we need to understand a bit what rules are. How are rules formed? What is their meaning? What is their relationship to particulars? And again, one could talk about this at length; I’m doing everything telegraphically today because I’m trying to cover a broad subject in a relatively short time.

I’ll begin perhaps with an argument by Ludwig Wittgenstein. He was considered, perhaps by many, the greatest philosopher of the twentieth century. And he argued—this argument is called in the philosophical world “following a rule.” In other words, what does it mean to follow a rule? How does that work?

So Ludwig Wittgenstein says the following. Suppose you have a psychometric exam, and they give you three numbers: three, five, and seven. And they ask you what comes next—yes, classic psychometric test questions. They ask what the next number is. So I think the first thing that comes to mind, I assume, would be the number nine. Right? Three, five, seven, nine—a simple arithmetic sequence with a difference of two. But of course that is not necessary. It could also be eleven, for example. Because three, five, and seven are three prime numbers, right? Nine isn’t prime. The next prime is eleven, right?

Now that’s just two examples. In fact, I can prove very easily that whatever number you want to put in the fourth place, I can prove that it fits. If you want to put negative five and three quarters there as the next number, no problem. I can build you a rule such that when n equals one it gives three, when n equals two it gives five, when n equals three it gives seven, and when n equals four it gives negative five and three quarters. No problem. These are four equations with four unknowns; you can find the four coefficients and build that rule. You can build an ad hoc rule for any number you put in the fourth place. Or in other words, any continuation of the sequence can be justified.

So now we ask ourselves: what is the significance of someone who succeeded on the psychometric exam? Someone who answered correctly on the psychometric exam—is he smarter than the others? No, not at all. He is simply more suited to common sense—not common wisdom, common sense—the common sense of people. In other words, his head is more conformist, that’s all. He is very uncreative. The psychometric exam makes sure that people who are too creative won’t get into the university, and therefore anyone who gives an answer other than the trivial, expected one will be removed from the field—even though, I’m telling you again, with every such sequence, without exception, I can give you a principle that justifies any continuation. Any continuation whatsoever.

So why do they choose specifically nine, and he gets the points on the psychometric exam? Because he’s conformist, meaning he thinks the way we want him to think. By the way, that’s not so absurd, because after all, when I teach him in class, I teach him on the assumption of conformist thinking. That’s how I teach. If someone understands me differently from the way I am usually understood, then he simply won’t understand what I am trying to teach. So if I want to select for myself the students who will understand what I teach, maybe that really is the right way to do it.

Wait, wait, Rabbi, you’re saying so many things with so many difficult words, some of them new, and so fast, that it takes effort to follow you. So I too am asking for just a little moderation for the sake of the very young and the very old. But I want to ask for a second: I hear what you’re saying, and I’m asking myself whether this comes only from the conservatism of the system, or whether it’s almost a conspiracy, seriously. In other words, is there some conscious intention here to advance only the people who will preserve the system, and then…

No, no. As I said in the last minute, neither this nor that. There is a third possibility. I want to choose those people who will be able to learn from me.

But choosing those people who can learn from me assumes that I have the knowledge and the ability, and that the best thing is to continue me.

That’s the assumption in the university. If not, then I should be the student and he should be the lecturer.

No, and the assumption is—at least in my view—that a teacher of real stature will want to find the people who will break through beyond him.

But I have to teach them for that, and I cannot teach them if they don’t understand the language I’m speaking. After that, the question of how to foster creativity is an excellent question. I’ll give you an example—actually I want Wittgenstein’s own example. I want to teach a child to count. Okay? Now I say to him, look, I’m going to teach you to count: one, two, three, four, five, in base ten, right? Nine, ten, and then it’s eleven, twelve, thirteen, nineteen, twenty, thirty, a hundred, and so on, yes? Etcetera. I get up to a thousand. How long can I keep going with him? I don’t have the energy. From here on, understand the continuation yourself, right? Such teaching always ends with “etcetera.” It’s one, two, three, nine, ten, twenty, a hundred, a thousand, etcetera.

Now think about a person whose head is built differently from mine—not less smart, but differently. He won’t understand what this “etcetera” means. We finish counting to a thousand, and I ask him what the next number is, and he’ll say negative 1,754. Now he can justify it: from one to a thousand it goes like this, and the next one is negative 1,754. I will never in my life be able to teach such a person to count.

But if I understand you correctly, then you’re saying from the outset, by definition, that educational systems will miss an important part of people, who will have to develop in another way, not through the system.

Correct, correct. Anyone who wasn’t accepted to the department she wanted—I’ve thrown the ball into your court. No, that is definitely correct. Meaning, one should—but I’ll say again, I don’t attribute this either to conspiracy or to arrogance or to any bad motives. It’s necessity; necessity is not to be condemned. I cannot admit to my class someone who won’t understand what I’m teaching. There’s no point, simply no point.

And everything I teach—and this is Wittgenstein’s claim, this is the bottom line—Wittgenstein claims that whenever I teach some rule, even in mathematics, the most logical field, the most general, the most positivist field on earth—even there, how do I teach the rule? Always through examples that end with “etcetera.” I give him an example and say: know that this rule works according to these examples, and understand for yourself how to continue. But if he continues it in a way I didn’t mean, then he didn’t grasp the rule. I won’t succeed in teaching him the rules. I’m using examples and failing to teach him the rules.

And therefore there is no choice but to filter people in such a way that they speak the language in which I teach, and to hope that those people, despite speaking the same language as I do, will be creative and can later break out in their own directions. But someone who is so different from me that he doesn’t even speak my language, he will have to learn differently from me. He will not be able to learn from me; there’s nothing to be done.

I, for example, if I were Minister of Education—and that’s not currently on the table—would try to think how one could create channels, stages, platforms, so that people who did not fit into this system could still somehow make their voice heard and move forward. One of the problems here is that in most cases, most people do think in similar ways. Meaning, when you teach people mathematics, in the end they grasp the rules. Some more, some less, but they grasp the rules. So fortunately—though it has costs—people do have similar patterns. We do speak a similar language.

Now, it’s true that here and there we miss people who think entirely differently, and they’re not stupider, they simply think differently, and we won’t be able to teach them, there’s nothing to be done. But still, there’s nothing to be done. I don’t know—if a Minister of Education tries to assign a teacher to each such student, he’ll have to keep the entire rest of the population as teachers. That would be problematic; I don’t see a solution in the background. There’s no choice, we’re doomed to miss some of these people, and I think it’s a relatively small minority, but there is such a minority, yes, and there’s nothing to be done.

By the way, some feminist claims—even radical feminism, in some versions—basically make the same claim about male language and female language.

Certainly.

Fields that developed through male thinking—even in Jewish law, if I return to Jewish law—fields that developed through male thinking, it may be that a woman who thinks a bit differently is not necessarily more foolish if she doesn’t understand this or doesn’t draw the conclusions men draw. Rather, she thinks differently, and who says she is wrong? Maybe I’m wrong. Then on the one hand that is true, but on the other hand I have no way to teach her. I’m speaking in extreme terms, of course, because there is what’s called a fusion of horizons, yes? Gadamer speaks about this in hermeneutics—how one can nonetheless fuse horizons between writer and reader, or between creator and consumer of a work, and so on. But in principle, yes, there is a problem here.

But if I may say just one more word, and I don’t want to dominate the discussion—if we manage to instill in teachers the awareness that they should move a little away from the position of the all-knowing one, even though they know much more, and be more attentive to the people who come, then maybe something else will grow.

First of all, your optimism that teachers know much more—I’m glad to hear it; I’m not always so optimistic. And second, it seems to me there are several problems there that are much harder than this one. We’re still stuck with teaching the people who do think like the teacher. Before we get to teaching the people who don’t think like the teacher, it seems to me our situation would already be pretty good. In other words, I’m talking about missing the 90 percent who can learn from him, not the 10 percent who can’t.

Rabbi, it’s midday. Can we continue?

Osnat, can we continue the class please, Osnati?

That’s exactly what I just told him, and it was to clarify things for people who needed clarification.

You were very skillful; there are many people for whom this is new.

Fine, but this really is a side topic, so let’s move on a bit.

Basically, the claim is that rules are formed in people from examples. Even the didactics of learning rules are based on examples. I show people examples, and from that I hope they will derive the relevant rule. But as I said, there is never any guarantee that they actually derived the correct rule. It can always be that when they generalized, they generalized it differently from me.

There are examples of this also in the context of philosophy of science. I’ll perhaps give one more glance at philosophy of science before I enter more into Jewish law. There is, in a book by a historian named Carr, a British historian from the beginning of the twentieth century, called What Is History?—and in that book he deals with the methodology of historical research. And he brings in Francis Bacon, basically. Francis Bacon, a philosopher of the sixteenth century, basically built the inductive logic according to which science works. And he says: how do we build a scientific theory? We gather facts, analyze them, try to generalize from them, and that is how we create a scientific theory—by induction from the examples we observed.

The historian Carr says: that cannot be right. Even though if you ask many scientists, that’s what they’ll tell you even today, it simply cannot be right. Why? Think, for example, of someone who wants to investigate why Napoleon lost at the Battle of Waterloo. Okay? So what is he supposed to do according to Francis Bacon? Gather the facts, analyze them, understand them, generalize them into some general conclusion, and then he’ll have some overall explanation for why Napoleon lost, and maybe it will fit other battles too; perhaps one can learn from it how to win other battles.

Now let’s imagine that we are historians approaching this research and wanting to collect the facts. Which facts are we supposed to collect? What was the average height of Napoleon’s soldiers compared to Wellington’s and Blücher’s? What was the name of the adjutant of the fourth regiment? At what time did the sun rise? There are countless facts. How do I know which facts to collect? You’ll tell me: what do you mean? The relevant facts. Some facts are not relevant. The name of the commander’s mother doesn’t seem relevant, right? But the morale of the soldiers does sound relevant, or the equipment, the weapons the two sides had—that sounds relevant. Why does it seem relevant to us? As long as we don’t have the theory that tells us what the important parameters are for victory in battle—think that I don’t have the theory yet; I still know nothing; this is the first battle I’ve ever encountered, okay? Then I have no way to know which facts are relevant and which are not. All these assumptions that I gather relevant facts—the relevance of facts is theory-dependent.

Meaning, if the theory is that to win a battle you need better equipment and longer-range artillery, or I don’t know exactly what, then I can ask myself: okay, whose cannons had greater range? But as long as I don’t know the theory—and I’m trying to arrive at the theory, after all; I gather facts in order to reach the theory—how do I know which facts to gather? Think that I know nothing about the theory, yes, of course that’s an extreme formulation, but I know nothing about what governs victory or defeat in battle, what the controlling parameters are. I know nothing, I’m beginning the research from zero—there is no way to determine which fact is relevant, and there are countless facts. So how do I know which facts to collect, and on the basis of which facts to make my generalization?

Clearly, I come to the collection of facts already with some general idea—flexible, vague, but still some idea, some sense of what might be relevant and what not. Otherwise there is no way to sort the facts into relevant and irrelevant. So that means I do not begin with the facts and end with the theory. I begin with a vague, flexible, highly non-definitive theory, gather facts, examine the theory again, revise it, what’s called articulation, refinement, then I return to the facts, gather more facts, return to the theory. A kind of back-and-forth until somehow I arrive at a theory that stands the test of all the facts and all the different battles I can later check and see whether they fit my theory.

That means I don’t start from the examples and end with the rule. There is a more complex process here, one that begins with some intuitive grasp of the rule, then gathers examples according to that intuitive grasp, then returns and checks that intuitive grasp—does it work, does it not work, refine it, return to the domain of facts, check myself again against the facts, and so on. In other words, the great trust we have in rules is of course unjustified, because rules are the result of generalization on the basis of facts. But on the other hand, it’s not true that I begin from facts and end with a rule.

In other words, if I formulate this more generally—and there are more examples in the history of science—if I formulate it more generally, then as a rule, yes, I would say that basically when you are a positivist who thinks we really operate on the basis of rules, you are living under an illusion. It’s not a question of what is right to do; the question is what is possible to do. There is no way to create a purely positivist system. No such animal exists. It’s an illusion of all kinds of nerds who think everything is science, law is science too, everything is science—nonsense. There is no such thing. There is no way to create a positivist system.

Why? First, because the rules begin before the facts in a vague form. Besides, without the facts the rules are not correct or not complete. I need the examples in order to produce the rule, and I can never know that I have arrived at the precise and complete formulation of the rule. I’m always in a game between the facts and the rule. If I apply the rule to the facts, it may be that I’m applying it in its incomplete and imprecise form. Maybe the very fact I’m speaking about belongs to those facts that the rule, in its current state, still does not explain; maybe it still needs further refinement in order to explain them.

The same thing, by the way, happens in Jewish law. When I generate a halakhic rule—yes, positive commandments dependent on time, women are exempt—how do I know that? Because I know all sorts of examples, sorry, examples of commandments from which women are exempt. I ask myself: what do all these examples have in common? Ah, they are all time-dependent. So apparently all positive commandments dependent on time—women are exempt. But that’s not exactly so, because maybe there is some other common denominator in that set of examples? Surely there is. There are lots of common denominators for every set of examples—that’s Wittgenstein’s following-a-rule point. Any set of examples can be generalized in infinitely many ways. There is even a mathematical proof of that statement: any set of examples can be generalized in infinitely many ways.

So that means that basically any set of examples, in Jewish law too, I could have found some rule that unifies them; I could have found infinitely many rules that unify them, and each of those rules would determine something else regarding the commandments from which women are exempt. Maybe it’s all commandments that begin with the letters from mem to tav, and commandments beginning from aleph to ayin women are obligated in. Also a rule. Doesn’t sound—

But the question is, what is the truth?

I don’t know what the truth is. I have no idea. I know the examples. That’s what I know—the examples. I ask myself what the rule is. I don’t know. From these examples I can arrive at many rules. What am I supposed to do? Basically, apply my common sense, exactly as we saw with Carr. What does that mean? Somehow it seems to me that time-dependence could be a relevant parameter, but the letter with which the commandment begins does not sound reasonable to me as the determining parameter. But again, I am already assuming some assumption that preceded the generalization, right? I am not fed only by the examples, because from the examples themselves I could have reached many generalizations. I choose a generalization because I basically have some preliminary sense of what is even in the realm of possibility and what is not, giving me some boundaries for my generalizations.

Then of course one can discuss this—many people will say, who said that time-dependence is a relevant parameter? On the face of it, that sounds like something you just invented. Why should women be exempt from something that depends on time? What’s the connection? It sounds bizarre. Why is that a relevant parameter? Very good question. It’s no accident that the Abudarham tries to find some explanation—that women are exempt because they are to be left free for their work in the home and things like that. In my opinion that doesn’t really stand up to the test of the halakhic facts, but it’s no wonder he at least looks for an explanation. He looks for one because otherwise it really isn’t clear why the Sages chose specifically this point.

And of course that leads other people to say: no, this is a tradition from Sinai, that the important parameter is time-dependence, yes, that commandments dependent on time are the ones from which women are exempt—that is a tradition from Sinai. And the derivations brought in the Talmud are only supports, or merely supporting exegesis, things like that. That too really does not stand up to the test of the facts; it is also not correct. It’s simply not correct.

In short, life is complicated. “Life is complicated” means that anyone who thinks he will be able to work with rules and arrive at checked, exact, unambiguous answers is living under an illusion. Not because it’s false, not because one needs to be cautious, but because it simply isn’t well-defined—you can’t do it. Even if you want to, you can’t do it. And anyone who lives under the illusion that he is doing it—I can show him that he isn’t doing it; he only lives under the illusion that he is doing it. Because I’ll show him where his rule came from—it came from himself. The very same rule that I give to two people, even after I already tell them the rule, they will apply differently to the same case. So this is not mathematics. Even if I give you the rule, it is not mathematics. There are countless examples of this. I’ll perhaps bring a few later.

So this feeling as though there is a positivist option—not only in Jewish law, by the way, but especially in Jewish law—is nonsense. There is no such thing. There is no such option.

I’ll perhaps give you a nice example from the development of the interpretive principles. Yes, the most mathematical system I could imagine. We have a list of thirteen interpretive principles—the thirteen principles by which the Torah is expounded according to Rabbi Ishmael. An a fortiori inference, verbal analogy, a paradigm built from one verse, a paradigm built from two verses. Thirteen actual rules, a logical arsenal, fully defined and precise. One can use them in exegetical inference from the Torah. Okay, wonderful. Now let’s see how this thing works.

Take a look at the Talmud in tractate Pesachim 22a. You can learn many things from it, but let’s touch one point there. The Talmud discusses the question of what we derive from “its flesh.” It’s a Mishnah regarding an ox that gored; the topic itself isn’t important right now. From there they derive what is secondary to its flesh: offspring, the value of offspring, hide, and all sorts of things that are secondary to the ox, not the ox itself. Okay. The Talmud says: “And the other one does not expound ‘et.’” In other words, one tanna derives something from the word “et,” what is secondary to its flesh—“its flesh” comes to include what is secondary to its flesh—and the other one does not expound the word “et.” What do you mean “et”? It says “et.”

The Talmud says, as it was taught—and this is the important part for our purposes: as it was taught, Shimon HaAmsuni, and some say Nehemiah HaAmsuni, used to expound every occurrence of “et” in the Torah. Yes, every occurrence of the word “et” in the Torah he would expound, what it comes to include. Once he reached “You shall fear the Lord your God,” he stopped. He could not find what to derive from the word “et” in the verse “You shall fear the Lord your God.” Why not? I assume because what could one include that would in some way resemble the Holy One, blessed be He? Meaning, something that just as one fears the Holy One, blessed be He, one should also fear that. “To whom will you liken Me, that I should be equal?” Nothing can be compared to the Holy One, blessed be He. So he said: fine, here I cannot find what to include from this word—and he stopped. So he apparently concluded that one need not expound the word “et.”

His students said to him: Rabbi, what will become of all the occurrences of “et” that you already expounded? In short, they’re saying to him: you are not making a local decision that from this verse you derive nothing. If from this verse you derive nothing, that means that the rule that every “et” always comes to include something is not correct. And therefore in the other verses too, where you included something based on “et,” we should give that up. And indeed he said to them—he said to them: just as I received reward for the exposition, so I receive reward for the withdrawal. He said to them: correct, you are right. All the expositions I taught you until now from all the occurrences of “et” in the Torah—throw them in the trash; they are not right.

Until Rabbi Akiva came and expounded “You shall fear the Lord your God” to include Torah scholars. Yes, Rabbi Akiva basically says: true, nothing can be compared to the Holy One, blessed be He—but I choose the thing that is least dissimilar. So Torah scholars are the least dissimilar, and since one must include something from the word “et,” one must include Torah scholars. From here we learn the notion of reverence for Torah scholars.

But notice what is happening here. Basically, we have a rule: the word “et” comes to include. A rule in the school of Rabbi Akiva, a rule that the word “et” always comes to include something. Shimon HaAmsuni tests it against the various cases and expounds accordingly; he is a positivist. He applies it to every single word in the Torah. Wherever it says “et,” he includes something. Because that is an application of the sweeping rule that every “et” comes to include. Of course there is still the question of what exactly to include, and the rule does not tell us that. And here, of course, the interpreter has freedom. But let’s leave that aside for the moment. Let’s assume for now that I ignore that aspect.

Suddenly he encounters a counterexample. What does he say? Seemingly I would have said: fine, he leaves it unresolved and moves on, but of course he keeps all the previous expositions. What, because you have one counterexample you throw away the rule? The answer is yes. If I have a counterexample, I throw away the rule. Why? Because the rule was built from the examples. It is not a rule that came from Sinai. It is a rule built from the examples. And if it does not fit all the examples, then apparently this rule is not correct—like Popper’s principle, that a theory disproved by experiment should be thrown into the trash. A theory can be tested experimentally in order to try to refute it. If it fails the test, you throw it away and replace it with another theory.

Shimon HaAmsuni did the same. He built a theory that the words “et” come to include. It worked very well in many verses. Then he got stuck on one verse that refuted the theory. So he gave it up. Then Rabbi Akiva comes and says to him: no, I am not giving it up. Why not? Because I have confidence in this theory, and therefore you are right that here it is strained to include something with respect to the Holy One, blessed be He, but in order to save this rule, I am willing to adopt a strained interpretation.

What does that actually mean? That the tannaim here disputed whether there is such a rule, that from the word “et” one always includes something, or whether there is no such rule. On what basis—how is this argument conducted? Exactly like a scientific argument, against examples. Shimon HaAmsuni brought a counterexample that refutes the rule. Rabbi Akiva found some answer that preserves the rule. And had Rabbi Akiva not found one, it could be that he too would have given up the rule. Why? Because if this rule had descended from Sinai, and we had received from the Holy One, blessed be He, that the word “et” always comes to include, then no doubt they would have kept that rule even if they had not found what to derive in this verse. There is such a rule; the Holy One, blessed be He, said so. So here I don’t know what to derive—fine, unresolved, I don’t know what to derive—but I would not throw away the rule I received from the Holy One, blessed be He.

Here there is a clear indication that we did not receive this rule from the Holy One, blessed be He. We built this rule ourselves. Meaning: interpretive rules—in this case it is not one of the thirteen principles of Rabbi Ishmael, it is a rule from the school of Rabbi Akiva, inclusion from the word “et,” one of Rabbi Akiva’s rules—but it doesn’t matter. This is true of the entire system of rules. These rules were built by the Sages in light of examples, and therefore they have very limited significance. And if there are examples in which they do not work, then it is not clear that I should force the issue. It may be that one should give up the rule, say that this rule is not correct—at least in this example it does not work. Then I will not apply it to that example. I will not make the contortion that Rabbi Akiva proposes making here.

No—if it doesn’t fit and it seems strained to me, then I won’t do it. Because who says this rule is even correct? And where does this whole thing even begin? There is a Talmudic passage in Temurah: “Rabbi Yehuda said in the name of Shmuel: three thousand halakhot were forgotten during the mourning period for Moses.” They said to Joshua: ask—ask in heaven what those laws are. We lost them during the mourning period for Moses; the greatest of the generation died, everyone was in mourning. Everyone was in mourning, but a mourner is forbidden to study Torah. Now they mourned Moses for thirty days, so for thirty days all of Israel did not study Torah. No wonder many laws were forgotten. Remember that the laws at that time were not written down; they were transmitted orally. And if for thirty days all of Israel does not study, no wonder many laws were forgotten.

Again, not necessarily a historical account as such; it is of course aggadic literature, but it comes to say something. They said to Joshua: ask. He said to them: “It is not in heaven.” They said to Samuel: ask. He said to them: “These are the commandments”—a prophet is no longer permitted to introduce anything new. A prophet is not authorized to bring us laws. Rabbi Yitzhak said: if a tradition was lost when its masters died, it was forgotten during the mourning period for Moses. They said to Pinchas: ask. He said to them: “It is not in heaven.” They said to Elazar: ask. He said to them: “These are the commandments”—a prophet is no longer permitted to introduce anything new.

Fine. Then later with Joshua and so on. But in the baraita it was taught—and this is the part more important for our purposes: one thousand seven hundred a fortiori inferences, verbal analogies, and scribal details were forgotten during the mourning period for Moses. Rabbi Abbahu said: nevertheless, Othniel ben Kenaz restored them through his dialectical reasoning, as it is said: “And Othniel ben Kenaz, the brother of Caleb, captured it, and he gave him his daughter Achsah as a wife.”

What happened there? One thousand seven hundred a fortiori inferences and verbal analogies—basically laws derived through interpretive principles—and scribal details, no matter right now, were forgotten. And Othniel ben Kenaz restored them through his reasoning. Above, when laws were forgotten, it does not say that someone restored them through reasoning. Why not? Because a law transmitted from Moses at Sinai is simply a set of laws transmitted by tradition; there is no way to reconstruct them. If you forgot, it’s gone, lost. There is no way to reconstruct it.

What happens with laws derived through verbal analogies and a fortiori inferences, derived through interpretive principles? How did Othniel ben Kenaz restore them? The answer is that I think the interpretive principles were not given to Moses at Sinai at all, even though all the medieval authorities (Rishonim) agree that the interpretive principles are a law transmitted to Moses at Sinai, and almost all researchers claim that the interpretive principles are not a law transmitted to Moses at Sinai, but rather things that developed over the course of history and were also influenced by other cultures. I think both sides are right here in a certain sense.

What do I mean? The interpretive principles were not given to Moses at Sinai. What was given to Moses at Sinai was the mode of reading called exegesis, just like a language. The Holy One, blessed be He, sat and read the verses with him in an interpretive way and also in a plain-sense way. But during the mourning period for Moses, the laws were forgotten, and the people of Israel no longer knew the exegetical language. They had not had time to learn the exegetical language. What do you do? You begin to go through the examples that we still remember. There are many we forgot, and many remained. Let’s go through the examples we still remember and try to extract rules from them. Which rules actually underlie the world of exegesis?

Suddenly we discover: there is a fortiori reasoning; there is verbal analogy; the same word appears in two passages, and we compare them. There is light and heavy, one can infer from the lighter to the heavier, and all sorts of such interpretive principles. Little by little, Othniel ben Kenaz restored some. And little by little, over the course of history, more and more interpretive principles are created.

So on the one hand, the researchers are right that this was born over the course of history; on the other hand, the medieval authorities (Rishonim) are right when they say this is a law transmitted to Moses at Sinai. Why? Because what was done over the course of history was only conceptualization. But the mode of reading of exegesis was given to Moses at Sinai. The transition to a set of conceptualized and formulated rules was carried out by the Sages over the generations. Because of forgetting, they tried to generate interpretive rules from the examples they received, and then various systems of interpretation were built. And therefore there are disputes there.

About something that is a law transmitted to Moses at Sinai, Maimonides says, no dispute ever arose. So how are there disputes here in the world of exegesis? A very big dispute between Rabbi Ishmael and Rabbi Akiva—completely different interpretive principles, general-and-particular or inclusion-and-exclusion. Disputes arose because interpretive principles, unlike the world of exegesis itself, are not a law transmitted to Moses at Sinai. The interpretive principles are the conceptualization of the Sages trying to understand the rules of this language called the language of exegesis.

By the way, just like spoken language. In spoken language, grammatical rules are rules we create after the language already exists. Nobody—no council of language sages sat down and built in advance a set of grammatical rules, and the language was then built from them. It went the other way. The language began to form naturally in a community of speakers, and people speak it to one another. Then gradually people come and try to extract from the various speech patterns some set of grammatical rules—how this language is actually built. And therefore there are indeed many exceptions to grammatical rules. Why? Because the language was not created from the rules; on the contrary, the rules were created from the examples of the language.

So we do not always succeed in creating rules that fit all the examples, because the rules are not really truly real. The rules are simply tools we use to make it easier for us to orient ourselves in the speaking patterns of the language. Therefore someone who is a native speaker, someone born into a home where the language is spoken, does not use rules. He learns the language from examples. We see how we return to casuistry. He learns the language from examples, and from that he knows how to speak. He uses examples he heard and manages to apply them to speech he never heard before, new speech. When he writes a poem, for example, that is really using linguistic forms he has never seen before—that shows how creative he is. But all of us use language in contexts we never heard before. The more creative people there are, the more so, but everyone uses language also in contexts not previously heard. He applies from examples he heard in the past to what he now wants to say.

Therefore, even when there are rules, the rules are formed from the examples. Now suddenly once there are rules, someone who came out of an ulpan and learned the language through rules—he did not learn it in his parents’ home—he needs rules. He does not know how to function in a casuistic way. So he is taught in a positivist way, taught according to the rules. Then he goes out into the street and starts correcting people at every turn. Why? Because he thinks these rules constitute the language. But they do not. Usually he is mistaken, not the speakers on the street. Usually he is mistaken, because he doesn’t know that there are many exceptions. And the person who knows and understands the simple natural rhythm of the language knows better how to speak in any situation than someone who comes with the set of rules he learned in ulpan.

Since language, like every intellectual system, like every scientific system, like every legal system, and of course also the halakhic system—anyone who wants to use rules to produce results in a positivist way will be mistaken in many cases. And the one who goes against the rules because his ear hears that here the rule should not be applied—or at least not in this way—is more correct.

Therefore interpretive principles, or language rules, are all just examples of the positivist failure. The failure of that conception which thinks that if I go with a set of formulated rules and derive from them answers in every situation that interests me, I will arrive at certain and correct answers. Big mistake. Because the rules from which you start are not precise rules. They are approximations of the spoken language. In the case of Jewish law, they are approximations to the halakhic mode of thinking. And the halakhic mode of thinking is based much more on intuition than on a set of rules.

There is perhaps a citation I brought here from Nachmanides that says this very nicely, a very well-known citation in the introduction to his Milchamot, his commentary on the Rif. But the question is: aren’t there such things? Aren’t there rules? That’s a speculative question that I don’t know how to answer. What I do know how to answer is that the rules in our hands are not binding. Because I don’t know if these are the correct rules. Maybe there are such rules, but I can’t know. So from my perspective, de facto, what difference does it make? Whether the problem is epistemic or the problem is essential, why should I care? Practically speaking, I cannot place full trust in the rules I have.

You always have to do two things: on the one hand go with the rules, and on the other hand stay attentive to your intuition. Understand whether you think it is correct to apply these rules here or not. Never go only with one of these sides, because then you will err. The halakhic art is the art of maneuvering between working with rules and the intuition that tells me how and when to apply them, if at all.

So how does one render halakhic rulings? What Maimonides… what the Chazon Ish, sorry, would call the fifth section of the Shulchan Arukh. Because after all there are only four sections of the Shulchan Arukh. The fifth section of the Shulchan Arukh is that very intuition that tells me when it is right to apply the Shulchan Arukh and when it is not. That is basically what he means to say.

Yes, someone wanted to comment?

Yes, so when I have a halakhic question, should I go by intuition?

That depends—for whom? Whose intuition? It needs to be the intuition of someone who is deeply expert in the halakhic world for me to be able to trust it. It’s like a person who arrived from the United States and doesn’t know Hebrew. Now he comes to Israel, they taught him the rules in ulpan. Now he has an intuition that here it isn’t right to apply the rules, but he just came out of ulpan. Do you think he should go with the rules or with his intuition? Obviously with the rules. Obviously with the rules, because his intuition is based on nothing. To build intuition you need some familiarity. After you gain familiarity, meet people on the street, speak with people, see when people deviate from the rules and how they deviate from the rules, then gradually you’ll develop intuition yourself too. But someone who does not have that intuition, who has not rubbed up against the material enough—it is not right to rely on his intuition. Either let him ask a rabbi, or let him follow the rules. There is no choice. That’s what rules are for.

What I’m talking about here—the combination of intuition and rules—this speaks to people of Jewish law, to people who already have the skill and the experience and have built their halakhic intuition.

Let’s read a passage from Nachmanides. Nachmanides here speaks about his aim when he defends the Rif. Just one second, I’ll just read… yes, here.

“And you, the reader of my book, do not say in your heart that all my replies to the Rabbi, Rabbi Zerachiah”—that is the בעל המאור, the author of HaMaor, against whose objections to the Rif Nachmanides writes his work—“do not say in your heart that all my replies to Rabbi Zerachiah of blessed memory are, in my eyes, conclusive and compelling replies that force you to admit them despite your stubbornness, so that you may pride yourself if you can cast doubt on one of them before its students. Or burden your mind to squeeze through the eye of a needle in order to reject the force of my proofs. It is not so. For every student of our Talmud knows that in the disputes among its commentators there are no absolute proofs, nor in most objections are there decisive conclusions, for in this wisdom there is no clear demonstration such as in arithmetic, geometry, or astronomical observation. Rather, let us exert all our strength, and it is enough for us… with the agreement of sound reason. And this is the limit of our capacity and the intention of every wise man and God-fearing person in the wisdom of the Talmud.”

He says: there is no mathematics in the Talmud. No, there are no absolute objections and no absolute answers. One can always force things this way or that way. We pile up proofs, we try to see what enters more smoothly with common sense, what fits the passages better and what less—and that is all. That is what we know how to do. Anyone who insists will always be able to show that perhaps the other opinion can also be maintained and some strained answer found. But that is not the way of the Talmud. The way of the Talmud is that we seek what common sense says, not what mathematics says.

Because if we go with mathematics, everyone can set up his own mathematical structure. If you adopt your assumptions, make your generalizations, you can reach any result you want. The essential wisdom of the Talmud is precisely not the mathematical part, but the intuitive part that tells me what makes sense and what does not. Because mathematics anyone can do. No problem—I can set up for you a set of assumptions from which I can explain to you with signs and wonders why the Maharsha is right. Another set of assumptions with which I can explain to you with signs and wonders why the Maharam is right. And both are right, and the judge’s wife is right too, everyone is right. But that is not how one decides Jewish law. One does not decide Jewish law with rules and with logic. One decides Jewish law with common sense—what is plausible and what is not.

Now look, I’ll give a few examples—it took me much longer than I planned, but I’ll give you a few examples where perhaps you can see this in the Talmud itself, and with that I’ll conclude.

The Mishnah at the beginning of Bava Kamma brings four primary categories of damage: the ox, the pit, the grazer, and the fire. The ox is not like the grazer, and the grazer is not like the ox—in short, distinctions are made among them, and so on. “Their common denominator,” I’ve moved here to the end of the Mishnah, “is that it is their way to cause damage, and their supervision is upon you, and when they cause damage, the damager is liable to pay compensation from the best of his land.” In other words, there are various primary categories of damage, each with interesting characteristics of one kind or another, each with different features: ox, pit, fire, horn, tooth, foot, and so forth. But there is a common denominator to all of them: they tend to cause damage, and you have to guard them, they are your property, and therefore if they caused damage, you have to pay.

So basically we have the rule, we have the examples—these are the primary categories of damage—and we have the rule. The Mishnah gives the rule at the end. Now look at the amazing Talmud on 6a: “Their common denominator”—what does that come to include? The Talmud asks: you gave me four primary categories of damage with the examples. Why did you give me the rule that unites them all? It’s unnecessary. What does it come to teach?

Now if I saw that, I’d tear my hair out. It’s the opposite of logic. If you give me the rule, then I would ask why you gave me the examples. After all, you gave me the rule; the examples are just particular cases, right? The Mishnah usually gives cases; it does not give rules. Examples, cases—that’s the way of the Mishnah; it is very casuistic. Okay? Here the Mishnah did us a favor and gave us the rule too, not only the examples. What does the Talmud do? The Talmud says: wait, who needs the rule? You already gave me the examples! Once they finally did you the kindness of giving you the rule for once, instead of leaving you to generalize from the examples as you like, you ask why we need the rule? Ask why we need the examples. Ask why they didn’t give rules in all the mishnayot instead of giving cases.

And then the Talmud answers that it comes to include his stone, his knife, his load, and so on—some case that is basically learned from this common denominator. Rashi writes there on this question: “their common denominator is that it is their way to cause damage,” which implies: any case whose way is to cause damage and whose supervision is upon you. And what might this come to include? What do you mean, what does it come to teach—that any case whose way is to cause damage and whose supervision is upon you, you must pay? That is all the laws of damages in one sentence. Is that something unnecessary? It is the only thing that needs to be written.

Clearly, the Talmud understands that the Mishnah deals in examples and not rules not because it is primitive or too foolish, but because it does not trust rules. It has much more trust in examples. The Talmud is casuistic and not positivist, like British law—the common law—and not like German law. The whole Talmud is constructed in an associative, casuistic way. Very few rules. And if there are rules, there are always disputes over how to apply them and what exactly the rule is. In short, the rules are something post factum of post factum. Therefore, once a rule does appear, the Talmud is astonished: why bring it at all? It is simply unnecessary. Give me the examples, and I’ll make an analogy—the casuistic move—from the cases in the Mishnah to the cases before me.

We are much greater with analogy than with logic. That is quite surprising. Logic, seemingly, is a necessary tool, a certain tool, the best there is. No. Because the assumptions on which logic is built are assumptions that emerged from generalizations, and those generalizations do not work in many cases. Better to use your nose. Let’s see.

We do also use rules. As I said, because as history advances, more and more rules are formed—just as with interpretive principles—because we are less and less equipped with the original intuition that was given to us at Mount Sinai. We need more and more rules to compensate us for the lack of intuition. But still, we are supposed to maneuver between our intuition and the rules we received, and see how and when to apply them.

And many times there is a rule, and the Sages rule against it and disregard it, even without giving reasons.

I’ll give you an example. Actually before the example, another one—the Talmud in Kiddushin. The Talmud says: “Our rabbis taught: which are positive commandments dependent on time? Sukkah, lulav, shofar, fringes, and tefillin. And which are not time-dependent? Mezuzah, parapet, returning a lost object, sending away the mother bird,” and so on. The Talmud asks: “Is this really a rule?” What do you mean “a rule”? After all, matzah, rejoicing, and hakhel are positive commandments dependent on time, and women are obligated in them. So there are positive commandments dependent on time for which women are obligated—there are exceptions to this rule. And furthermore, Rabbi Yohanan said: “One does not derive from general rules, even in a place where an exception is explicitly stated.”

That’s amazing. What does that mean? If they tell me all positive commandments dependent on time, women are exempt, then I understand—the meaning is that this is the generalization, there are a few exceptions, but they gave you the rule. But here, no. They tell you: all positive commandments dependent on time, women are exempt, except for matzah, rejoicing, and hakhel. Rabbi Yohanan says: true, but maybe there’s another one too. Now what formulation could be more precise than that? They tell you not only the rule but also list the exceptions. Wait, but there is another exception. Don’t make such a fuss; there’s another exception, so what?

In other words, even where the rule is formulated in the most precise way imaginable, we are not impressed by it. And if there is one exception, then there can be another exception too, so what?

I’ll give you an example with which I’ll conclude. One of the rules stated—look, there are rules like: between Rabbi Shimon and Rabbi Yehuda, the law follows Rabbi Shimon, or something like that. These rules always have exceptions, because they are rules without listed exceptions. It’s a rule, but sometimes it doesn’t hold. But there are rules with listed exceptions. Between Abaye and Rava, the law follows Rava except in six cases, which the Talmud explicitly lists in several places. There is a famous mnemonic called YaAL KGaM—yod, ayin, lamed, kuf, gimel, mem. These stand for “unaware despair,” “conspiring witnesses,” “a beam standing on its own,” and so on—the yod, ayin, lamed, and so forth—six cases.

Maimonides rules like Abaye in additional cases. For example, on “you shall not form factions,” he rules like Abaye. For example, on the issue of “what was done does not take effect,” according to some interpreters of him, he rules like Abaye. I don’t understand. There is a rule here that tells you: the law follows Rava except in those six cases. An explicit Talmudic rule. You don’t argue on the Talmud. Maimonides is bound by what is written in the Talmud. Maimonides says: very good, there are six; I’m telling you there are a few more. There are places where it seems to me that the law follows Abaye, so there too I rule like Abaye. And what about the rule that the law follows Rava except in those six cases? On this we learned the so-called rule of Rabbi Yohanan: one does not derive from general rules, even in a place where an exception is explicitly stated. The rule that says there are no rules.

This is the most important rule in the Talmud. You need to use your nose. And if it seems to you that Abaye is right, then rule like him. There are places where the Amoraim ruled like Beit Shammai. Amoraim—long after the tannaitic period—despite the heavenly voice that went out and said that in every place the law follows Beit Hillel, and the words of Beit Shammai in place of Beit Hillel are not even considered Mishnah. They don’t count as Mishnah at all. And the Amoraim rule like Beit Shammai in certain cases. Why? Because this rule that the law follows Beit Hillel is a nice rule. If I don’t know what to do, I’ll go with it. But if I do know what to do, then I do what I think.

And I’m talking about rules of the Mishnah that bind the Sages of the Talmud, and rules of the Talmud that bind the medieval authorities (Rishonim). Not to mention the rules later invented for us by the medieval and later authorities, often in a completely unconvincing way, to which people today cling as though they were the horns of the altar. These are rules under very limited warranty. Even if they are correct, still they are under limited warranty. And if there is a place where it is not right to apply them, then don’t apply them. There is no need.

All right, that’s what I managed for today. I had thought of a few more things, but this is what there is.

Rabbi, can you give an example of a rule of the medieval authorities (Rishonim)?

There are examples—there are all sorts of rules in the Shulchan Arukh, which always kill me. There is a collection of rules about the Shulchan Arukh: when he brings two opinions, if there is an anonymous ruling and then “there are those who say,” then the law follows the anonymous ruling. The Shulchan Arukh never dreamed of these rules. Who invented them? Even assuming one must follow the Shulchan Arukh at all—which on that too I tend to be skeptical—but even if so, who said so? Where did they invent these rules from? They found all sorts of examples, or one line of reasoning, or another line of reasoning—fine. Sometimes it’s right, sometimes it isn’t. But this clinging to rules is absurd.

There are rules in Maimonides too—how to rule according to Maimonides when he says this, when he says that. These are all inventions. Inventions to which, in most cases, I do not grant even minimal credit. But even when they do deserve some credit, one must be careful not to take them too far.

The positivist conception strikes us in a terrible way, because it really cripples the decisor’s ability to address the situation before him in a freer way—not freer in the sense of being free of commitment, but in the opposite sense: in the sense of what is truly right to do in this situation. That is the real commitment. Not commitment to rules, but commitment to what is right. “Right” not in my opinion, but right in the sense of what Jewish law demands from me. Because many times what Jewish law demands from me is not what comes out of the rules.

Thank you very much, happy new year.

And to you as well, happy new year. And you enlightened us tremendously, as every year, as always.

Okay. So have a joyful holiday and a happy new year. Thank you very, very much, thanks to everyone. Thank you very much, Rabbi Michael. Stay another minute before you all leave. Thank you very much, Rabbi Michael. You encounter Rabbi Michael here in the Elul program in order to understand that you need to study with him for a whole year to begin to understand what he is saying. I invite you to join the classes. Welcome.

Just a second before you leave. Any response to this advertisement? Shall we settle on twenty percent?

We’ll talk about it privately, we’ll close only afterward and that’s it.

But the classes aren’t only for doctoral students? Because I’m interested.

What? We have some exceptional cases where one needs… Anyone who needs special pull should speak to me.

Dear friends, one second before you go get a sandwich, I want to say something about today and tomorrow.