Doubt and Probability—in Halakhah, in Thought, and in General—Lesson 47
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Introduction: Double doubt and two majorities
- Positive doubt: calculating a probabilistic majority
- The example of the ten stores and probability
- Probabilistic calculation of a piece of meat
- The sources: Maimonides and the Rivash on doubts
- Reality versus intuitive feeling
- Summary: two sources for leniency in double doubt
- The Rashba: majority of sides versus probability
- Kiddushin and monetary implications
- The principle of a single coercive circumstance
- The rule of a reversible double doubt
- Conclusion and Sabbath announcements
Summary
General overview
A continuation of the discussion of the topic of double doubt as an extension of the rule of two majorities in permitting agunot. The lecture examines why double doubt allows leniency, whereas an ordinary Torah-level doubt requires stringency, with a central distinction between positive doubt and negative doubt.
Positive versus negative doubt in double doubt
In a positive doubt case, such as ten stores, one can make a probabilistic calculation and reach a result of about 75% in favor of permission, and then the permission comes by the law of majority, not by the law of double doubt. Therefore, the whole discussion of double doubt is relevant only when the doubts are negative—that is, when there is no information and we assume the possibilities are evenly balanced.
The Rivash’s approach: a doubt followed by a majority toward prohibition
When the first doubt is negative and the second is not evenly balanced but rather a majority toward prohibition, one may not be lenient. The reason is that in a negative doubt there is no real knowledge that the distribution is actually fifty-fifty, so one cannot combine the minority of permission from the second majority into one total. Only when both doubts are negative and evenly balanced—double doubt—does Jewish law permit.
Why negative double doubt permits
There are two possible sources for leniency: (a) from a probabilistic standpoint, even a double negative doubt increases the likelihood of permission; (b) Jewish law established an independent rule that where the concern is remote enough—two doubts—one may be lenient. That is a halakhic decision, not the result of a calculation.
The debate: reality versus consciousness in the laws of doubt
A discussion with participants about whether subjective feeling determines the law or objective data does. The Rabbi argues that Jewish law follows the data: a person who mistakenly thinks that a 30% probability is a majority does not become prohibited because of his feeling. Consciousness is relevant only where no calculation is possible, and then one may go by working assumptions.
Self-imposed prohibition
A special rule: a person who becomes convinced that something is prohibited—it is prohibited for him, even if Jewish law permits it. But this is a special novelty—according to some views it comes under the law of a vow—and not part of the core laws of doubt. This shows that generally Jewish law does not take subjective feeling into account.
The Rashba: majority of sides and reversible double doubt
Later, the lecture discusses the principle of a reversible double doubt—where one can reverse the order of the doubts and still reach the same result—and its implications for kiddushin and for monetary questions.
Full Transcript
[Rabbi Michael Abraham] Okay, so we’re basically dealing with the topic of double doubt as a continuation of the rule of two majorities in permitting agunot, and I said that in both of these topics we’re really dealing with probabilistic multiplication. The tree looks very similar: two branches, and each of those two branches also splits into two branches, so graphically the tree looks very similar. The difference is that in the case of two majorities, each node is not balanced; in other words, there is a majority and a minority—a majority toward permission and a minority toward prohibition—and the second majority is also a majority toward permission and a minority toward prohibition. In double doubt, each node is a balanced node, but the structure, the graph itself, looks exactly the same. I said that the commentators raise the question: why, in double doubt, do we allow ourselves to be lenient? In an ordinary case of doubt, a Torah-level doubt requires stringency, but if there is a double doubt, then one may be lenient. The question is why.
So I said that if we’re talking about a positive doubt, then in the case of double doubt it’s really a case of seventy-five percent toward permission and twenty-five percent toward prohibition; what we have is simply following the majority. So that’s why in double doubt one can be lenient—because we follow the majority. But if we are indeed talking about positive doubts, then the whole law of double doubt is unnecessary. It’s unnecessary because there is already a law that says to follow the majority. Double doubt is only the form for calculating the majority and reaching the conclusion that we have a seventy-five percent majority toward permission, but that’s only a method of calculation. In the end, once I’ve concluded that there is a majority toward permission, I’m allowed to be lenient not because of the law of double doubt; I’m allowed to be lenient because of the law of majority, that one may follow the majority. Therefore it is clear that in double doubt too, exactly as we saw in two majorities, the whole discussion is relevant only when the doubts are negative and not when the doubts are positive.
Now yes, think for example about ten stores, okay? There are ten stores in the city that sell meat. Let’s say five sell kosher meat and five sell non-kosher meat, but even from the stores that sell non-kosher meat, only the majority of what they sell is non-kosher meat, while there is also a minority of kosher meat in those stores, okay? So you understand that what we have here is basically some kind of double doubt toward permission, right? If it came from a kosher store, then it’s permitted. If it came from a prohibited store, then again it splits: if it’s a kosher piece from the prohibited store then it’s permitted, and if it’s a prohibited piece from the prohibited store then it’s prohibited. So it basically splits. The difference is that here, in the case of the stores, where this is a majority present before us, the majority is a positive majority, not a negative majority. The majority is a positive majority. I know there are five stores this way and five stores that way; that means this is a calculated fifty percent, not that there are two possibilities and, because I have no information, I assume they are balanced. No—here I do have information. It’s like a coin that I know is fair, not a coin about which I know nothing. That’s the example I used. Therefore, here we are dealing with a positive majority.
Now what does that mean, practically? That the permission—for instance, I found a piece of meat in the market—the permission to take it doesn’t require the law of double doubt at all. Why? Because I know how to make a probabilistic calculation and say that there is a majority toward permission here, right? Fifty percent if it’s from the kosher stores, plus let’s say another twenty percent if it came from the non-kosher stores, where among those stores sixty percent is non-kosher and forty percent is kosher. So out of that fifty percent, twenty percent is kosher, and that joins the fifty percent kosher from the kosher stores, so I have seventy percent that this piece is kosher. If I have seventy percent that this piece is kosher, then I can go lenient not because of the law of double doubt but because of the law of majority. It’s just like a majority of stores, as if seven out of the ten stores were kosher—it’s exactly the same thing. So the whole use of the principle of double doubt is irrelevant when the doubts are positive. When the doubts are positive, I simply make the calculation, and if the result is that I have a majority, then no problem, I follow the majority.
Something like this we saw in the Ketzot, in the addendum there, in chapter 18, in Shema’teta I, chapter 18, where he brought in the name of the Rivash: what happens when I have a doubt, and on the side of prohibition I have a majority—I have a majority on the side of… wait. Yes, the side of prohibition has a majority toward prohibition and a minority toward permission. In other words, there is another doubt, but that doubt is not balanced. There is a majority toward prohibition and a minority toward permission, okay? So seemingly, says the Rivash, on the probabilistic level I have fifty percent that it’s kosher, and out of the other fifty percent I have some additional minority that is kosher—say another five percent or ten percent—and together with the first fifty percent I have sixty percent. So why is it that only in double doubt do I permit, but in a case of a doubt followed by a majority toward prohibition—not a balanced node, but rather a majority toward prohibition—that is not permitted? Why not? I have a majority toward permission here.
The answer is that we are talking here about a doubt where the first doubt is a negative doubt. So it is not true that you really have fifty-fifty. You have no information, and because of the absence of information you assume that the possibilities are balanced, as if it were fifty-fifty. But the truth is that maybe it’s actually thirty-seventy, and then if out of the seventy you have another, I don’t know, another fifteen percent, add that to the thirty and you have only forty-five percent toward permission. In such a situation, you do not know for certain that you have a majority toward permission, and therefore they did not permit it. But in a situation where both doubts are balanced negative doubts, there they did permit, even though there too it’s not certain that you have a majority toward permission, because those are also negative doubts. But there Jewish law permits, okay?
But in a case where the first is a doubt and the second is a majority toward prohibition—if the first doubt is a negative doubt—Jewish law does not permit. And that is exactly a reflection of the principle I mentioned: when we are talking about a positive doubt, we do not need the laws of double doubt at all. We simply make the probabilistic calculation, and if I have a calculation that yields a number in the end, then if that number is a majority I follow it; I don’t need the laws of double doubt. The laws of double doubt arise only where I have no possibility of calculation. Meaning, it may be that I have a majority toward prohibition, it may be that I have a majority toward permission. In such a situation, only if there is double doubt am I allowed to be lenient. Why lenient? Even though negative double doubt can still theoretically involve a majority toward prohibition—it could be. But they tell me: look, there’s no end to this; it’s a remote concern, and because it is double doubt, I am allowed to be lenient, allowed to be lenient halakhically. It is not the result of a probabilistic calculation. But only in double doubt, not in a doubt followed by a majority—a majority toward prohibition.
Okay, so that’s what we saw last time, but I return to the question: why really can one be lenient in double doubt? So one possibility is—as we said—if this is a positive doubt, then one simply follows the regular law of majority, so that’s not interesting, that’s not the laws of double doubt; we are simply lenient because of the law of majority. So we are talking about a negative doubt, okay? So if it is a negative doubt, why is one permitted to be lenient in double doubt? After all, there may actually even be a majority toward prohibition here. I don’t know; I have no information. I have doubt twice, yes, double doubt, but in principle—in reality itself—there may be a majority toward prohibition, and the question is why I am allowed to rely on this. Seemingly I should have gone with the regular laws of doubt: I’m in doubt, I know nothing. So if I’m in doubt, in short, what is the difference between negative double doubt and a single negative doubt? In a single negative doubt I have to be stringent. Why do I have to be stringent? Because there is some possibility that there is a majority toward prohibition here, or half toward prohibition, or a majority toward prohibition, right? I don’t know, because I have no information. But in double doubt too there is also the possibility that there is a majority toward prohibition here, or fifty-fifty. So what difference does it make whether it is double doubt or one doubt? I have no information—why should that matter?
[Speaker B] Yeah, but generally—
[Speaker C] But the feeling is that the difference is entirely perceptual, intuitive, a matter of consciousness—not in reality.
[Rabbi Michael Abraham] Right, that’s exactly my question—so what?
[Speaker C] So maybe that’s the answer—that’s what matters. That’s what matters, right. Reality doesn’t really interest us. There’s really nothing in reality. Electrons, protons—that’s not what interests us.
[Rabbi Michael Abraham] And when I know the reality, then it does interest me.
[Speaker C] Yes, but when I’m speaking in a situation—
[Rabbi Michael Abraham] Where I don’t know the reality.
[Speaker C] Yes, because I perceive it in a certain way.
[Rabbi Michael Abraham] If you’re speaking only about a situation where I don’t know reality, then you don’t need your formulation that I don’t care about reality. In a place where I don’t know reality, I’m allowed to make working assumptions about it.
[Speaker C] No, no, I’m saying the opposite. I want to infer from this that even when it’s supposedly not known to me—what does it mean that reality is known to me? It all depends on how I grasp it. What does it mean that I know it? It means how I perceive it.
[Rabbi Michael Abraham] No—the thing itself. No, that can’t be right. Think, for example, about a situation where reality itself is a positive doubt of fifty-fifty, okay? Or where you know there is a positive majority of sixty-forty, okay? I know it—say six stores out of ten. Now, the religious court knows that, but the person himself lives with the feeling that really there is a majority toward prohibition here, or fifty-fifty. In your view, would it be prohibited for him? No. Obviously not. Reality itself determines it, not consciousness. Consciousness determines only in a place where there is no calculation. In a place where there is no calculation, they say you may follow working assumptions.
[Speaker C] I have intuition, he says—I have intuition, I know, they convinced me of such-and-such, but my intuition says, screams, that everything is the opposite. So they’ll tell him, say, eat this pork, you really feel physically, consciously, that it’s pork—eat it, eat it, because formally it satisfies some criterion of double positive doubt. Yes, factually. I’m saying that the whole concept of “factually” is hanging by a thread.
[Rabbi Michael Abraham] That can’t be. According to your approach, basically everything would have to depend not on the knowledge I have but on how I feel about it.
[Speaker C] But—
[Speaker D] Jewish law doesn’t fit with that.
[Rabbi Michael Abraham] Jewish law works according to the data I have, not according to my knowledge, according to my interpretation of it.
[Speaker C] Because we have rational tools and so on.
[Rabbi Michael Abraham] But if a person is foolish, he doesn’t know rational tools, he thinks that 30% is a majority, okay, he doesn’t know—then it still won’t be prohibited for him because of that. We don’t find anywhere that anyone prohibits something like that. The data determine it. In a place where there is no calculation, where the data do not determine it—that is a negative doubt—there one can follow working assumptions. Because there’s no other way, so I need to establish halakhic rules. But I don’t think there is any logic in formulating this as a general principle for all the laws of doubt.
[Speaker C] Suppose a person—I don’t know—they introduced him to someone, I don’t know if it’s a good example, but he is certain that the woman they introduced to him is already married. He was convinced, he dreamed it, some holy man revealed it to him, he feels that’s the case. They tell him: listen, we checked the data, that holy man doesn’t count, that evidence doesn’t count, rationally the information is enough for us to say she is unmarried and the marriage is valid. Okay, so would the Rabbi really tell him: listen, you are one hundred percent convinced? He says: I was not convinced by the arguments of the religious court, not at all. I’m certain that she is—
[Rabbi Michael Abraham] Obviously it is completely permitted—were it not for what they noted here in the chat, Avi—were it not for the law of self-imposed prohibition. That’s a special novelty. It’s not a special novelty, that’s the whole story. No, it’s not the whole story. What are you talking about? The point is that the law of self-imposed prohibition is a special novelty; according to some views it is prohibited under the law of a vow. It’s not really a prohibition in the same way forbidden meat is.
[Speaker C] Right, but a vow is also a vow—what is a vow?
[Rabbi Michael Abraham] You’re claiming that this is the law of forbidden meat itself.
[Speaker C] At root it’s really self-imposed prohibition. Usually we don’t make self-imposed prohibition for anything because we listen to what society tells us and what the religious court tells us and what Jewish law tells us. But if we have an inner voice that tells us she is one hundred percent prohibited to me, then the fact that someone says otherwise and didn’t convince me—I can’t, and that’s exactly self-imposed prohibition, that’s the story.
[Rabbi Michael Abraham] No, that’s exactly the point. According to your view we wouldn’t need the law of self-imposed prohibition at all; it would follow from the basic law of majority and doubt.
[Speaker C] Fine, but usually we don’t use that.
[Rabbi Michael Abraham] What do you mean, “usually”? Usually when you don’t pay attention to it there’s no problem; only when you do pay attention, then—
[Speaker C] Suddenly this law of self-imposed prohibition pops up. Usually we’re all a herd. We look at what they tell us; if the religious court tells you it’s kosher, you say it’s kosher.
[Rabbi Michael Abraham] You’re restating the law. I agree with the law, because that law is a correct law in Jewish law, but its rationale is the rationale of self-imposed prohibition; it is not the ordinary laws of majority. It’s a different rationale. The ordinary laws of majority operate on the objective plane.
[Speaker C] I’m claiming that self-imposed prohibition exists throughout all of Jewish law; it’s just that usually our self-imposed prohibition isn’t really ours because we don’t think independently—we look at what people tell us.
[Rabbi Michael Abraham] The Shulchan Arukh says it is permitted. No—that’s not right. According to your view, all the laws of majority are really just self-imposed prohibition. Yes. But that’s not correct.
[Speaker C] Obviously that’s not correct. And the fact that it only works to prohibit, not to permit—that’s not, like—
[Rabbi Michael Abraham] We don’t find such a thing anywhere. Obviously it’s not correct. And the fact that we don’t find it—yes, that also says something. It’s a special novelty, like a vow, as the later authorities say: if you think it is prohibited, then you yourself have in effect prohibited it to yourself, but not that it is really prohibited for you. It’s not really prohibited for you.
[Speaker C] But why is that important—how did you prohibit it to yourself? Why? I mean, let’s say I have a very limited IQ—that’s true in principle too. So factually it’s true, so what is this—
[Rabbi Michael Abraham] But sir, you are prohibiting to yourself something that is actually permitted. That’s the whole idea of those later authorities.
[Speaker C] But I’m not prohibiting it; I’m explicitly saying it’s not a vow. I don’t want to get into the laws of vows, I’m just—
[Rabbi Michael Abraham] They treat it like a vow.
[Speaker C] Why? Not at all.
[Rabbi Michael Abraham] That’s the law of self-imposed prohibition.
[Speaker C] But it needs to be investigated.
[Rabbi Michael Abraham] Okay, so investigate it. Nobody connects it to the regular laws of majority. It’s not—there’s no connection. It’s a completely different plane of discussion. Okay.
[Speaker F] Strong evidence that it has nothing to do with the laws of majority is that self-imposed prohibition applies only for prohibition. You can’t permit something on the basis of self-imposed prohibition just because someone thinks something is permitted.
[Speaker C] Right, I didn’t say that everyone is independently allowed to make himself his own Torah and religion.
[Rabbi Michael Abraham] No, exactly—
[Speaker C] What I said is that when it becomes—
[Rabbi Michael Abraham] Exactly. What would then determine it is your subjective relation to reality and not reality. So why does it work only for prohibition and not for permission?
[Speaker C] No, I didn’t say that. If I could permit myself anything I want, then we would be living—
[Rabbi Michael Abraham] But Jewish law permits it for you!
[Speaker C] Yes, so I have to listen to Jewish law.
[Rabbi Michael Abraham] But, but—I mean, Jewish law is supposed to determine it according to your subjective relation to reality. So Jewish law permits it for you—what’s the problem?
[Speaker C] I’m not saying that—
[Rabbi Michael Abraham] So what is the difference between prohibiting and permitting? If Jewish law is determined by your consciousness and not by the data themselves, then what difference does it make whether it’s—but your consciousness—
[Speaker C] Your consciousness obligates you to listen, in your consciousness, to what everyone says. You’re not supposed to be the smartest person in the world.
[Rabbi Michael Abraham] I don’t understand. Now you’ve erased what you said. No! Why? Then just listen to what they say and put your own consciousness aside. Fine.
[Speaker B] Rabbi, but regarding the question of why double doubt is not like an ordinary doubt, because even if it’s negative, in the end you still assume that it’s presumably fifty-fifty.
[Rabbi Michael Abraham] Fifty-fifty, but you see that, for example, in the Ketzot they don’t assume that. The Rivash.
[Speaker B] Why not? Why not?
[Rabbi Michael Abraham] That’s what he says—we learned this in the previous lecture.
[Speaker B] No, no, obviously there’s a difference. In the end it’s obvious that there is a difference between negative and positive. But in the end, when you have two negatives, then I can understand that it’s better than one negative.
[Rabbi Michael Abraham] Obviously. Also one negative followed by a majority is better than one negative.
[Speaker B] No, obviously when you have—no, because you have a majority, though.
[Rabbi Michael Abraham] No, a majority on that side of the prohibition. Is there more than fifty percent toward permission? No, there is fifty—
[Speaker B] percent—
[Rabbi Michael Abraham] toward permission, and in the fifty percent toward prohibition it splits eighty-twenty: eighty toward prohibition, twenty toward permission. So you have a majority, you have a majority toward permission—why is it prohibited?
[Speaker D] A majority toward prohibition, not permission.
[Speaker B] What? A majority toward permission—why is it permitted? Yes.
[Rabbi Michael Abraham] No, a majority toward prohibition.
[Speaker D] A majority toward prohibition, yes. No, you said permission and prohibition.
[Rabbi Michael Abraham] No, overall there is a majority toward permission. There is a majority on the branch of prohibition—a majority toward prohibition and a minority toward permission. Now do the calculation. So you have fifty percent that it is permitted, and out of the other fifty percent, ten percent is permitted and forty percent is prohibited. So when you count everything together, you have sixty percent toward permission and forty percent toward prohibition. So why is it prohibited? So says the Rivash—that’s what we learned in the previous lecture—that the majority, where the first doubt is a negative doubt and not a positive one, means it is not true that you have sixty percent toward permission. Maybe you have only twenty percent toward permission. After all, you don’t know—assume the majority.
[Speaker B] I understand. And now the Rabbi’s question is why, in a case of doubt plus doubt, it’s not like that either—right? Exactly. When they are negative?
[Rabbi Michael Abraham] Yes, right.
[Speaker D] In column 613 you called this a “reasonable doubt,” what you just said.
[Rabbi Michael Abraham] I don’t remember dealing there with reasonable doubt. Why, what does that have to do with this?
[Speaker D] Because you once spoke about which kind of doubt we call reasonable, and it was exactly about the negative kind.
[Rabbi Michael Abraham] I don’t remember such a thing. In two majorities we spoke about an overwhelming majority, an absolute majority, a reasonable majority, an ordinary majority. I don’t remember talking about that in the context of doubts. I don’t know. Send me a link later; maybe I’ll look. I don’t remember.
Okay, in any case, I don’t think it appears in column 613, because I use it in the lectures here too. So the claim is that we need to find an explanation for why double doubt is permitted—what makes it different from a single doubt in negative doubts. So there are two possible ways to understand this.
[Speaker C] Rabbi, Rabbi, Rabbi, again, an example: we talked about the agunah, right? If the agunah says: I personally saw that he died, I saw it. Now if from the standpoint of the rules of the religious court it is not accepted, for whatever reason, it is not accepted, then it is totally prohibited. She asks the religious court, and they tell her it’s prohibited. She knows and is one hundred percent convinced that it is permitted. So what does the Rabbi think she should do? Suppose she has the opportunity to marry and it won’t harm anything with anyone else. Is it prohibited for her or permitted for her?
[Rabbi Michael Abraham] What do you mean, is it prohibited or permitted for her? If she saw that her husband died, let her marry. Why should she not—
[Speaker C] But the religious court, Jewish law, the halakhic rules, everything prohibits it.
[Rabbi Michael Abraham] The halakhic rules are nothing. She doesn’t need to go ask the religious court at all.
[Speaker C] But she asked, and they said it’s prohibited.
[Rabbi Michael Abraham] She asked—so cancel the question. The religious court has to tell her it is prohibited. It doesn’t matter. Even if they ask her and she says she is convinced that the husband is dead.
[Speaker C] If the halakhic rules—if she called a rabbi and said: what should I do? I saw him dead, I saw him dead, and I have a chance to marry him under conditions—what would you answer her?
[Rabbi Michael Abraham] Marry. Ah! Exactly, so self-imposed prohibition is not—
[Speaker C] only prohibition, it’s also permission.
[Rabbi Michael Abraham] No, my dear fellow! Are you asking according to your own view? If you ask me whether to marry, I say no. But if you ask me what I would do if I were you—I would marry.
[Speaker C] Exactly, so self-imposed prohibition is not only prohibition, it’s also permission.
[Rabbi Michael Abraham] No, I didn’t understand. Not because of self-imposed prohibition. The severe prohibition of a married woman. No, it’s not because of self-imposed prohibition, because in self-imposed prohibition I myself would rule it prohibited for her. Here I say: no, I am not permitting it for you, but if you want to marry without asking me, do what you want. In self-imposed prohibition, I instruct her that it is prohibited.
[Speaker C] Right, but if she asks him what the Rabbi would do in her place, you say the Rabbi would say that he would permit it.
[Rabbi Michael Abraham] What I would do in her place is not a legal ruling. That’s exactly the difference.
[Speaker C] Right, but that’s the thing itself.
[Rabbi Michael Abraham] For prohibition, I issue a ruling of prohibition—not just what I would do in her place. Right, right. But for permission it’s not like that. For permission, if she asks me what I would do in her place, I would marry. But if she asks me whether it is permitted? It is prohibited.
[Speaker C] So that’s it—this whole focus on what I say from the outside is hanging by a thread. In the end the Rabbi says that if he were in her place, as one living here in Israel, he says he would permit it.
[Rabbi Michael Abraham] I would really marry, absolutely. What does that have to do with anything? She knows the husband is dead. But from the standpoint of the laws of evidence in the religious court, the husband is not dead.
[Speaker C] Right, and in the end what determines it is what she feels.
[Rabbi Michael Abraham] No, that’s not what determines it. Halakhically, what determines it is what the religious court says, and the religious court will prohibit it to her.
[Speaker C] Right, but the Rabbi says that in a case where—
[Rabbi Michael Abraham] And it’s the same question as someone who is liable for death—he desecrated the Sabbath, okay? In front of witnesses and after warning, he is liable for death. Now they offer him a chance to escape prison before the agent of the religious court comes to hang him. Is he allowed to escape prison? It could be yes. Certainly. Why? Why? After all, the religious court has an obligation—yes, this is of course the Socrates case—to kill him, but I do not have an obligation to commit suicide. If I—just as I say to him: if I were in your place, I would escape. Does that mean he is not liable for death? Of course he is liable for death.
[Speaker C] Yes, but he also has to feel, while living, that he is liable for death.
[Rabbi Michael Abraham] If he feels he is liable for death… he escapes because it’s preservation of life, not because he thinks he is exempt from death. He agrees that he is liable for death. So what? But he wants to escape—it’s preservation of life. More than that: if he asked me, I would say that in his place I would escape. Absolutely. Why not?
[Speaker C] If the Rabbi knows that the Holy One, blessed be He, thinks he deserves to die—
[Rabbi Michael Abraham] The Holy One, blessed be He—His will… right, the Holy One’s will is His concern, and I am not appointed, not appointed to enable the Holy One to kill him, even if he deserves death. Let Him do what He understands, and I’ll do what I understand. Like with the fulfillment of the dreams of Joseph and his brothers, with the well-known Nachmanides: the obligation is not placed on you to fulfill the dreams you dreamed from the Holy One, blessed be He. Leave Him to realize His own plans; you should act with your own interests and considerations.
[Speaker C] In total contradiction to the will of God?
[Rabbi Michael Abraham] What does “in contradiction to the will of God” mean? The will of God is that the religious court should kill him, but there is no… I will run away, and let the religious court try to kill me. Okay, come on, we’ve drifted far away here; let’s get back. So in the end, the question of why in double doubt we allow ourselves to be lenient has two possible answers, yes? I said that positively speaking, it comes by the law of majority, the ordinary law of majority. There is simply a greater chance that it is permitted, so there is no problem—when it is a positive doubt. If it is a negative doubt, and then the halakhic discussions of the laws of double doubt begin, there are two explanations.
One explanation is according to Maimonides, who says that a Torah-level doubt requiring stringency is a rabbinic law. So if you have double doubt, then it is a doubt about a rabbinic prohibition, because the first doubt created an obligation to be stringent on a rabbinic level, and the second doubt says: I am in doubt whether that rabbinic obligation applies to me. And in a rabbinic doubt one may be lenient. That’s what the Rashba writes in explaining Maimonides’ view. And according to Maimonides, who holds that a Torah-level doubt requiring stringency is a rabbinic law, it is clear why double doubt is permitted, because it is a rabbinic doubt, and in a rabbinic doubt one may be lenient.
But the Rashba himself disagrees with Maimonides. He holds that a Torah-level doubt requiring stringency is a Torah law. So double doubt is a Torah doubt. A Torah doubt plus another doubt—surely you have to be stringent. So that only strengthens the question. Therefore, the Rashba claims that double doubt works by the law of majority—but he is talking about a majority of sides, not a statistical majority. A majority of sides. And this is where I ended last lecture.
A majority of sides means that when you draw this tree, it has four endpoints, yes? A node, and from each node there are two more branches. There are four endpoints below. There are three sides toward permission and one side toward prohibition. So there is in fact a majority of sides toward permission. Notice: this is not a probabilistic majority, not a majority of chances. It could be that those three sides together amount only to forty percent, because this is all negative, I have no idea, I don’t know. But when I count the sides, I have a majority of sides toward permission. And the law of double doubt says that even when you have a majority of sides, one may follow the majority, even though there is not necessarily any probabilistic majority here. Probabilistically, there may be no majority here. But if you know that there is no probabilistic majority, then there is nothing to discuss; then of course it is prohibited. But if you have no information—these are negative doubts—then you are allowed to count sides and treat that as if, as if it were chances. Meaning: follow the majority of sides.
In a certain sense, this is simply an extension of a single negative doubt. What happens in a single negative doubt? There too I have no information. It could be sixty-forty, it could be forty-sixty, it could be fifty-fifty—I have no information at all, right? So what do they tell me? Since you have a side toward permission and a side toward prohibition, and you don’t know how much each side weighs, but you do have a side toward permission and a side toward prohibition, then look at the sides and not the chances. So in a single doubt you have one side toward prohibition and one side toward permission—that’s a tie, so in a Torah-level doubt you have to be stringent. In double doubt you have three sides toward permission and one side toward prohibition. Therefore there one may be lenient, because we follow the majority of sides. That’s the Rashba’s claim.
Now, maybe I’ll remind you of something we already discussed—Rabbi Shimon Shkop in Sha’arei Yosher, gate 3—where he talks about a majority present before us. He says that a majority present before us is not probability. And I said that I agree with him, but not for his reason. Because you can’t make a representative sample—we already discussed that—it’s not a scientific generalization. But he claims it’s not probability. So then why do we really follow the majority? And how do we learn it from the religious court, where it says, “follow the majority”? What does that have to do with a piece that separated from stores? What is the connection? In the religious court, it’s not that one of the judges separated and I ask whether he belongs to the pair that prohibits or to the individual who permits. No judge separated; all three are sitting in the court. I’m asking what the law is after each one has expressed his opinion. So they tell me that we follow the majority. How is that connected to the law of following the majority in pieces of meat, where I assume that it came from the majority of stores? There is no connection between the two things.
So Rabbi Shimon Shkop says: what we do—and we learn the law of a majority present before us from the religious court, yes? That’s the Talmudic passage in Hullin that we saw—so Rabbi Shimon Shkop says that in the religious court, each judge in effect places a side upon the case. Let’s say there are two judges who obligate Reuven and one judge who exempts him, okay? Each judge imposes a side on Reuven. From the standpoint of that judge, this is a side to obligate him. This judge gives a side to obligate him. This judge gives a side to exempt him. So there is a majority of sides here. I am really following the majority of sides. I look at the case, not at the judges. We are not talking here about a majority of judges; we’re talking about the case. I have two sides that come to prohibit him and one side that comes to permit him. And we follow the majority of sides. That is the law of a majority present before us according to Rabbi Shimon Shkop.
And therefore he says that this is exactly like stores. That’s why we learn stores from the religious court. Why? What happens with stores? I have ten stores, nine kosher and one non-kosher. I found a piece of meat in the street. Every store could potentially be the source of that piece. In other words, each store places a certain side upon the piece. From the standpoint of store A, the piece is permitted; store B, permitted; store C, permitted—all the way to store I. Store J—the piece from store J is prohibited. So there are nine sides to permit the piece and one side to prohibit the piece. So there is a majority of sides here, and the law of a majority present before us is learned from the religious court, where we follow the majority of sides. To my mind, that’s a wonderful explanation. Because it is not talking about a statistical majority. I said that in a majority present before us, and also in the religious court, this is not really a statistical majority, as people usually think. And therefore what we are doing there is following the sides instead of following probabilities.
Which means that what the Rashba says is also what happens in double doubt. In double doubt too, we don’t know the probabilities. It’s not statistical. So what do I do when I don’t know how to make the statistical calculation, when I don’t have the numerical data? I count sides, exactly as in a majority present before us. We learn it from the religious court—maybe that is even the source of “follow the majority” in the religious court itself. So I count sides and I follow the majority of sides. And again, this is a majority of sides and not a majority of chances. In a majority not present before us, it is a majority of chances; in a majority present before us, it is a majority of sides. Double doubt is parallel to a majority present before us. We follow the majority of sides. That is the novelty in the law of double doubt.
Now, of course, according to this there is room to wonder whether the law of double doubt is really a special law, or whether it is basically just the law of majority. After all, we learn it from the religious court: “follow the majority.” So in a way, the comment I made earlier comes back: why do we need the law of double doubt at all? Let it follow from the law of majority. In other words, they permit by the law of majority, because we know that in a majority present before us, a majority of sides also counts as a majority—not only a majority of chances, as in a majority not present before us, but also in a majority present before us, where it is a majority of sides and not of chances, and that too has the law of majority. So in double doubt, it is basically by the law of a majority present before us. It may be that this is really the law of double doubt. I don’t know. Maybe that really is the law. So that is the Rashba, okay?
[Speaker B] Rabbi, but when you define a side, do the sides have to be balanced in order for them to count as sides?
[Rabbi Michael Abraham] In a moment, in a moment, I’m about to get to that question—that’s the million-dollar question here. So basically we are supposed to count sides in these situations.
[Speaker C] But now there’s a question: why count sides?
[Rabbi Michael Abraham] What do you mean, why?
[Speaker C] Why count all kinds of things? Why specifically count sides? If statistically it doesn’t affect the probability—
[Rabbi Michael Abraham] Why doesn’t it affect it? There could be some correlation, though.
[Speaker C] Okay, so why count?
[Rabbi Michael Abraham] I use the sides as some kind of representation, estimate, or something like that, of the real probability.
[Speaker C] The sides are not something in reality; they’re something in our consciousness, even in law. It’s something people determined.
[Rabbi Michael Abraham] And that’s what I’m getting to now. And that’s what I’m getting to now. This is a very important point. Essentially, the important point here is that the concept of “sides” is a halakhic concept, not a probabilistic one. Meaning, this whole business of negative doubts is really not a probabilistic matter at all. Not because probability isn’t important to us. Probability is very important to us; it’s just that here we don’t have that tool, we have no way to make the probabilistic calculation. So the Sages say: where you don’t have the probabilistic tool, we create a substitute by counting sides. But counting sides is of course not a probabilistic calculation. The sides are also divided up in ways that in practice depend on us. If you remember, I drew up above, this diagram. Let’s say here I have a doubt whether it’s pig or cow. Sorry, I didn’t share. One second. Yes, look at the diagram here. I have a piece of meat. I don’t know whether it’s forbidden fat or permitted fat, and I don’t know whether it’s from a pig or a cow. Okay? Now if it’s from a pig, then it’s not kosher whether it’s forbidden fat or permitted fat. If it’s from a cow, then if it’s forbidden fat it’s not kosher, and if it’s permitted fat it is kosher. Right? Now how many sides are there here? Three. Two that are not kosher and one that is kosher, right? But in fact I could have drawn four. If it’s pig, whether forbidden fat or permitted fat, it’s not kosher; if it’s cow, forbidden fat is not kosher and permitted fat is kosher. Right? Which diagram is the correct one? There is no correct diagram; you can draw it this way, you can draw it that way. But notice: here it comes out as two sides toward prohibition against one toward permission, and in this representation there are three sides toward prohibition and one toward permission. In other words, the question is whether pig forbidden fat and pig permitted fat are two sides toward prohibition or one side toward prohibition. You can define it this way and you can define it that way. That is obviously not a probabilistic question; it has nothing to do with probability. Which means that defining the concept of “sides” is in fact left to us. It’s a question of our everyday logic, how we classify things, what we call a separate side, a distinct side. It’s not a probabilistic question. When the doubts are positive doubts, then the question doesn’t arise. Every side is simply the possibility, when there are fifty-percent possibilities. Right? Think, for example, if I have a doubt whether it’s pig or cow, but the pig could be a warthog, could be an Australian pig, or an African pig. Fine? So how many sides do I have here? Cow, warthog, African pig, Australian pig—four sides, with three sides toward prohibition, the three kinds of pig, and one side toward permission, the cow. Would we also say there that we prohibit because of majority, because there’s a majority of sides toward prohibition? Probably not. It’s just an ordinary doubt whether it’s pig or cow. Cows too come in all kinds—Dutch cows, this kind of cow, that kind of cow. I can divide it into whatever number of sides you want. So why do I decide that the two sides are pig or cow and that’s it, without splitting the pig and the cow themselves into various possibilities? Because somehow in my intuitive logic—I don’t even know what to call it—it seems, why should I care whether it’s this kind of pig or that kind of pig? Pig is prohibited. But that can’t be the whole story, because if that were so, then in a graph like this too, the three sides of non-kosher—why should I care why it’s not kosher? Bottom line, it’s not kosher. So I have one side that’s not kosher, which is all three of these, and one side that is kosher, which is this one. So there are only two sides, one kosher and one not kosher, and I should have been stringent even though this is a double doubt. But no, here I decide it’s three sides against one. Why? Why not say that kosher is one side and non-kosher is the other side? Here we move to the next stage. And here I want to—we actually saw this Tosafot in Ketubot; let me remind you. Tosafot in Ketubot—again, I’ll share for a moment. So I begin—this is the Gemara we saw. Rabbi Elazar said: “One who says, ‘I found an open opening,’ is believed to prohibit her to him.” The Gemara asks: Why? “And why? It is a double doubt: a doubt whether it was under him, a doubt whether it was not under him; and even if you say it was under him, a doubt whether it was by force, a doubt whether willingly.” Right? The question is when she had intercourse. If she had intercourse before she was betrothed to him, then it does not prohibit her to him. If after she was betrothed to him, then it depends: if by force, she is not prohibited to him; if willingly, she is prohibited to him. So basically this is a graph like the one we saw above, a double doubt, right? Like this graph. There’s a doubt whether it was under him—yes?—then if willingly she is not fit, meaning she is prohibited to him, and if by force she is permitted to him. And if it was not under him, then in both cases she is fit—well, that’s another case—but in both cases she is permitted to him. So there are three sides in which she is permitted and one side in which she is prohibited; therefore it is a double doubt. So the Gemara asks: right, then why do you say he is believed to prohibit her to him? There’s a double doubt here. So the Gemara answers: in the wife of a priest; it was necessary only for the wife of a priest. And if you want, say instead: in the wife of an Israelite, and for example where her father accepted betrothal for her when she was less than three years and one day old. Right? So in the case of the wife of a priest, there is no difference between force and willingness, so all that remains is the doubt whether it was under him or not under him. So there is only one doubt, and therefore Rabbi Elazar says he is believed to prohibit her to him. The second answer: we are talking about the wife of an Israelite, not the wife of a priest, but her father accepted the betrothal when she was under three. So if she had intercourse before the betrothal when she was three—her virginity would return, meaning the signs of virginity would close, and the husband would not have discovered an “open opening” there. Therefore there is no doubt that she had intercourse under him; it can’t be that she had intercourse not under him. All that remains is only the doubt whether it was by force or willingly, and therefore this is one doubt, and he is believed to prohibit her to him. Tosafot asks: “And if you say”—I think we read this Tosafot—but “And if you say, there is still a double doubt.” There is still a double doubt. We’re now talking about someone whose father accepted betrothal for her when she was under three. “And if you say: there is still a double doubt: a doubt whether by force, a doubt whether willingly; and even if you say willingly, a doubt whether she was a minor, and the seduction of a minor is considered force.” Right? The question is whether he seduced her or raped her. So what? So you want to tell me that if her father accepted betrothal when she was under three, then there is only one doubt and therefore he is believed to prohibit her to him. Tosafot says: what do you mean? Even in such a case it is a double doubt and she should be permitted; he should not be believed to prohibit her to him. What is the double doubt? She was betrothed when under three, right—her father accepted betrothal on her behalf when she was under three. Okay, now what are the doubts? There is no doubt that she did not have intercourse before the betrothal, right? That there is no doubt about. But if she had intercourse after the betrothal, the question is whether that happened when she was a minor, before age twelve, or after age twelve. And then—no, meaning, no, before age twelve or after age twelve. And why does that matter? Because if she had intercourse by force, she is not prohibited. But even if she had intercourse willingly, if she was a minor, the seduction of a minor is also considered force. And therefore if someone seduced my wife when she was a minor, she is not prohibited to me even though it wasn’t by force, it was willingly, because the consent of a minor is not consent—yes, very common in our parts. Fine? When a minor agrees, that’s not called agreement; that’s true in the legal world too, right? So that’s what the Gemara says: the seduction of a minor is force. And therefore Tosafot says: even if he accepted betrothal for her when she was under three, there is still a double doubt: a doubt whether by force, a doubt whether willingly, and even if it was willingly, if she was a minor it is still considered force. So Tosafot answers: yes, that’s the double doubt, essentially. So let’s say it this way: if it had been not under him, she would be permitted in any case. Sorry, “not under him” can’t apply, because she was under three. If it was by force, then she is permitted in any case, whether she was a minor or an adult. If it was willingly, then if she is a minor she is permitted, and if she is an adult she is prohibited. That’s a double doubt, right? So Tosafot says: then why does Rabbi Elazar say he is believed to prohibit her to him? It’s a double doubt; with a double doubt she should be permitted to him. Tosafot says: “And one can say that the term ‘force’ is one single category.” That’s a nice insight. The authors of the rules… The claim is, says Tosafot, that a situation like this is not called a double doubt. Why? Because force with a minor—the seduction of a minor—is force, so it joins the “force” side of the graph. After all, the structure is this: if she was violated, then she is permitted to him whether she is a minor or an adult. If she was seduced, then as a minor she is permitted, and as an adult she is prohibited. But a seduced minor really belongs on that side; it is a case of force. And therefore in practice there are not four sides, three of which are permitted and one prohibited; there are only two sides like below: one side on which she is permitted because everything was under force, no matter what kind of force—this kind of force, that kind of force—but it’s all some kind of force; and one side on which she is prohibited because it was willingly, as an adult, willing as an adult. And therefore, says Tosafot, this is not called a double doubt; the category “force” is one single category. In other words, sides like these, which are really just a specification of the same side itself, are like the warthog, Australian pig, and African pig. Those are not distinctions we make. Bottom line, what matters is whether it was by force or willingly. There are many kinds of force—after all, maybe he tied her up, maybe he threatened her with a gun—there too I could have lots and lots of doubts. Or it was willingly. But if it wasn’t willingly, maybe he tied her up, maybe he held her hands, maybe he threatened her with a gun; there could be all sorts of sides like the warthog—yes, it’s the same idea. We’re not interested in those sides, right? Bottom line, what matters is whether she was coerced; I don’t care exactly how the coercion was carried out. So Tosafot says: the seduction of a minor is simply another kind of coercion.
[Speaker B] But because you do that, doesn’t coercion become much more likely? Meaning, if I say okay, maybe by force when she was an adult, or maybe she was a minor and that too I define as coercion, then what you define as coercion already becomes much more plausible than non-coercion.
[Rabbi Michael Abraham] What does “plausible” have to do with it? We have sides here. I’m counting sides.
[Speaker B] No, but there’s a side here that already becomes much stronger, the side of coercion.
[Rabbi Michael Abraham] There is no stronger side, none. You have sides. All the sides here are equal—equal negatively, but equal. And now I’m saying: says Tosafot, this is not four sides; it’s two sides, because all the sides of permission—why is she permitted? She is permitted because she was coerced. It’s just that the coercion can be: she was a coerced minor, or a coerced adult, or a seduced minor, which is also coercion. Three types of coercion—so what? I can give you more types of coercion that may have been there. Bottom line, it’s one side that she was coerced and one side that she was seduced, that’s all. Therefore it is not a double doubt; it’s one doubt with two sides, not four sides. That’s Tosafot’s answer. Now of course the question arises: then why wouldn’t we say that in every double doubt it’s not four sides but two? Look at this, okay? Let’s take this double doubt. After all, altogether there are three sides on which she is permitted and one side on which she is prohibited—and that is true in every double doubt, right? This is the generic diagram of a double doubt. Forget the specific case right now; this is the generic diagram of a double doubt. Even think of the wife of an Israelite where he found an open opening: a doubt whether under him or not under him, a doubt whether by force or willingly. Fine? So if it was not under him, whether by force or willingly she is permitted; if it was under him, then by force she is permitted and willingly she is prohibited. Fine? Let’s say this represents our double doubt from the Gemara in Ketubot. Now I say: here too, the category “coercion” is one category. In the end you have three sides on which she is permitted, meaning she was not prohibited to him—there was no forbidden intercourse there—or one side where there was forbidden intercourse. So there is one side to permit and one side to prohibit, and this is one doubt, not a double doubt. If you say the idea that “the category ‘coercion’ is one single category,” then you haven’t left any case that would count as a double doubt. Every double doubt has three sides to permit—fine, those three sides are one category of permission.
[Speaker B] Just ask simply: let’s make it prohibition and permission, period, without looking at the reason for the prohibition at all.
[Rabbi Michael Abraham] Right, that’s what he’s asking, no? So ask that—that’s exactly what he’s asking.
[Speaker B] Ah, okay, fine, but Tosafot says I say that only about the reasons for the prohibition, not about the prohibition itself. So maybe one can ask why. Meaning, the question is why.
[Rabbi Michael Abraham] Fine, but that’s the answer. Tosafot’s answer is: you can’t say in this case that there is a side to permit and a side to prohibit. Why? Because Tosafot does not say “the category of permission is one category.” Tosafot says “the category of coercion is one category.” What does that mean? In the case of this minor, whether she was a seduced minor or a coerced adult, in both cases if you ask yourself why she is permitted, what they share is not merely that she is permitted, but also the reason why she is permitted—and the reason is that she was coerced. So I say: why should I care what type of coercion it was? Bottom line, the reason for permission is coercion. Right? And since that is so, the category “coercion” is one category, so this is not two sides, it is one side. Okay? Wait, wait, one second. In contrast, in the case of the Gemara in Ketubot, where I say “a doubt whether under him or not under him, and if under him, a doubt whether by force or willingly”—if it was under him by force, then what is the basis for permission? That a coerced woman is not prohibited, right? Unless she is the wife of a priest, but for an Israelite, a coerced woman is not prohibited. If it was not under him, the reason for permission is not that. If it was not under him, then she simply did not have intercourse under him, and that’s why she is permitted. So there, the permission—the ground of permission—is not one single ground. They are different grounds of permission. Therefore in such a case we do not say “the category of coercion is one category.” That is called different sides for permission. In other words, exactly what you said earlier: when Tosafot says “the category of coercion is one category,” Tosafot means that the grounds of permission are the same ground. Different shades of the same ground. That is not called different sides. It’s like the warthog, the regular pig, and the Australian pig. Fine? But in the case of “I found an open opening,” where the possibilities are under him or not under him, by force or willingly, there the grounds of permission are different. In one case it’s because of coercion, and in the second case it’s because it was not under him—not because it was coercion; it could even have been willingly. Therefore the grounds of permission are different, so those are two different sides. So you see, this is an excellent demonstration that the concept of “sides” is a halakhic concept and not a probabilistic one. Meaning, if the grounds of permission are different, that is called different sides. So when I need to decide whether the sides are different or not, I do not look at probabilities. I look at the roots of permission. Are these sides permitted because of halakhic ground A or halakhic ground B? If they are two different halakhic grounds, then they are two sides. And after I classify the sides and determine how many are for permission and how many for prohibition, then I say: I follow the majority of sides. But the classification of the sides itself has nothing to do with probability at all. It’s a question of how Jewish law sees it. And therefore it makes no sense to say “the category of kosher is one category.” All the sides here for kosherness are one side. No. We are talking about the grounds. Now I’ll explain a bit why—people asked earlier why it is like this. When we talk about doubt, let me remind you how I began this whole class, these last two classes dealing with double doubt. I started from this very simple graph. Remember it? This. What is it? This graph does not talk about doubts at all. This graph talks about a situation in which you have some factual state X, and a halakhic norm Y applies to it. Okay? And that is the regular structure of Jewish law. The structure of Jewish law is always like this: there are certain circumstances, and a certain halakhic norm applies to those circumstances. When we want to determine what the law is in given circumstances, our first move is to clarify what the circumstances are. Is it forbidden fat or permitted fat? Is she a married woman or not? Was it under him or not under him? It doesn’t matter—factual questions. After we clarify the factual questions, we apply a halakhic norm to them. If I have a doubt about what the relevant factual circumstances are, then the graphs of doubt are formed. This is one doubt, then a double doubt, and so on. What does that mean? It starts from the question: I have a doubt on the factual level. At the moment I said I’m focusing only on factual doubts and not on legal doubts. I have a doubt on the factual level: what are the factual circumstances? But for every given set of factual circumstances, the law is known. I just do not know what the factual circumstances are, and therefore I am in doubt. That means that by its essence the concept of doubt does not deal with the question of which law to attach to these facts. The concept of doubt deals with the question of what the facts are. My doubt is about what reality is, what the facts are. For each possibility within that doubt, I have a known norm that says—I know what norm applies to each such side. I just don’t know whether the fact is this way: whether it is forbidden fat or permitted fat, whether it was under him or not under him. But for the side where it was under him, I know what the law is, and for the side where it was not under him I also know what the law is. So my doubt is how to identify reality. Therefore, says Tosafot, as we explained earlier, when we say “the category of doubt is one category,” or that counting sides is determined by how many factual sides I have, not by how many halakhic sides I have. Halakhically there are always only two sides: either she is permitted or she is prohibited. But “the category of doubt is one category”—it’s not that there are three different sides and all three say she is permitted, so I’ll say “the category of kosherness is one category.” No. I say “the category of coercion is one category”—sorry, not “the category of kosherness is one category.” Why not? Because my doubt is about reality: was there coercion here or not? About the ground of the law, not the law itself. Doubt always deals with the ground of the law, not the law. And since that is so, the counting of the sides of the doubt are sides that are separated from one another through the question of whether they are different grounds of law, not through the question of whether the law is the same law or a different law. Because if it were separated according to the law, then every doubt, and anything else you want, would always be just one doubt. Either it is permitted or it is prohibited. Those are the two possibilities. Right? Therefore it is very important to understand this background that starts the whole story. And by the way, this has many implications that people very often miss, and that leads them to all sorts of nonsense. This conception says: at the foundation of Jewish law there always lies a factual determination. First of all you have to understand what reality is. After I understand what reality is, I apply a halakhic norm to it. And the law is not reality. The law is the norms that apply to each reality. Meaning, to this reality this law applies; to that reality that law applies. Right? So I’ve more than once mentioned the example of—but here actually the reverse. Just one second. “There is a presumption that a person does not pay before the due date.” Right? Usually we are used to thinking that the Gemara taught us facts: that a person does not tend to pay his debt within the term, before the due date arrives. But that’s not true. Jewish law does not deal in facts. Facts are for the court to determine. And if you live in a society where people do pay within the term, then there is no such presumption. Ah, but there’s a Gemara; we don’t argue with the Gemara. I’m not arguing with the Gemara. The Gemara did not come to establish the factual determination. Factually, things can change from place to place and from time to time. The Gemara establishes that if there is a majority of people who do not pay within the term, then the burden of proof really lies on the one who claims he paid within the term. And the law in this sugya is not the factual claim that a person does not pay within the term, but the halakhic determination that if it is true that the facts are that a person does not pay within the term, then the burden of proof is on him if he claims that he paid within the term; he is the one who will need to bring proof. And in very many places you can see this—various accusations, suggestions for innovations in Jewish law, there are always accusations that you’re Reform. Right? You propose a change in Jewish law or an adaptation of Jewish law to a new reality, and you’re Reform. And this is the same misunderstanding. When reality changes, the law that pertains to it changes as well. That is not reform. Reform means changing the law even when reality has not changed. Fine? If reality has changed, that is not called changing the law. The very same law, in a different reality, determines a different ruling—that’s obvious. Jewish law is always law per factual situation. If the factual situation is this, then this is the law. If the factual situation is that, then that is the law. And therefore “the category of doubt is one category” is really a principle that pertains to the grounds of the law and not to the law itself. Because my doubts deal with X and not with Y. My doubts are: what is X? As for Y, every time you tell me what X is, I will tell you what the relevant Y is for it. And therefore, “the category of doubt is one category”… yes?
[Speaker C] It could also be phrased the other way around: from this Tosafot it comes out that our way of looking at the facts, at reality, is a normative way of looking. We don’t… our perception of the world is not some objective, passive perception, but a normative one. We see reality through the lens of what it means for us to do or not do—functionally, halakhically, morally, whatever. And therefore Tosafot says there’s no difference whether it’s by force or willingly; normatively it’s the same thing, so we see it as one thing. Because our perception is a normative perception of reality.
[Rabbi Michael Abraham] I wouldn’t say “our perception,” because that’s what the law is. “The category of coercion is one category” is not a statement about human perception. “The category of coercion is one category” is a statement about Jewish law. If Jewish law calls this coercion and that coercion, then for us that is one category. And this is only, as I said earlier, in a situation where the doubts are negative. If the doubts are positive, this whole discussion is irrelevant. I don’t care what he sees or doesn’t see. We do the calculation and see whether there is a majority or not. Now, so that’s regarding “the category of coercion is one category.” That is one principle in the laws of double doubt. There is another principle in the laws of double doubt called a “reversible double doubt.” What does that mean? There is also old Tosafot in Ketubot on page 9. Let me preface by saying that a woman who marries when she is not a virgin receives a ketubah of one hundred zuz, not two hundred. Fine? Now, if the husband claims “I found an open opening,” that has two implications. If she had intercourse under him, then she becomes prohibited to him assuming it was willingly and not by force. If she had intercourse not under him, before the betrothal, then she is not prohibited to him. So there is no implication in terms of prohibition. But there is a monetary implication. Because if she had intercourse not under him, then she was already non-virginal when he betrothed her, and so her ketubah should be one hundred, not two hundred. And then the monetary discussion remains intact. And Tosafot there states—it learns this from the Gemara, doesn’t matter—that with regard to money the husband was believed to cause her to lose the ketubah when he says, “I found an open opening.” Why? Because there it is only one doubt: a doubt whether under him or not under him; force or willingness is irrelevant here. So therefore he was believed with respect to money, even though with respect to prohibition he was not believed because it is a double doubt. Tosafot asks: why is the husband believed to make her lose money when he says “I found an open opening”? There is a double doubt there. One doubt is whether the husband is even competent to tell what an “open opening” is. Right? The husband decided after intercourse that his wife’s opening was open, meaning she was not a virgin. And especially you have to remember that generally we are talking about first intercourse, right? So the husband hasn’t really done this before; he has no real expertise to determine whether the opening is open or not. Tosafot says: first of all I have a doubt whether the husband identified correctly. If you ask, then the whole Gemara discussion—what, then why is it a double doubt? It’s a triple doubt: a doubt whether under him or not under him, a doubt whether by force or willingly, and a doubt whether there was even an open opening at all—maybe he simply didn’t identify it correctly. The answer is no, because regarding the prohibition, what determines it is self-imposed prohibition. What matters is what he thinks. And if he thinks it was an open opening, I don’t care whether he knows how to distinguish or not; that’s what he thinks. So by the rule of self-imposed prohibition, the whole discussion there is about prohibition. But with money, the question is what he owes her, and what he owes her depends on reality, not on what he thinks. Therefore Tosafot’s claim is that there is a double doubt here. Even regarding money there is a double doubt. A doubt whether under him or not under him, because if it was under him then she deserves two hundred—she was a virgin and not previously non-virginal. If it was not under him then she deserves one hundred. All this assuming there really was an open opening. But if the husband didn’t know, then there is no open opening. So she still deserves two hundred. So essentially, says Tosafot, this is a double doubt. Why does Tosafot say the—yes, Tosafot raises the question: this is a double doubt, so why does the Gemara say it is one doubt? So Tosafot…
[Speaker C] Why is he believed at all to extract money from her? What? I didn’t understand. Why is he believed in monetary terms against her? By what authority?
[Rabbi Michael Abraham] What do you mean by what authority? If the opening is open… it’s not that they ask why he’s believed; if the opening is open, then she doesn’t deserve it. The question is whether he is believed in the sense—do you mean why don’t we suspect that he is lying?
[Speaker C] Yes. She says…
[Rabbi Michael Abraham] She denies it, after all. She says it wasn’t open. We still suspect that maybe he isn’t expert—that, yes, we do suspect, but… not that he’s lying. He’s not believed as one witness. Fine? For money, one witness is not enough. I don’t remember at the moment…
[Speaker E] Why is the doubt in his favor and not in her favor? Why is the doubt in his favor and not in her favor? Maybe under him… no, because he isn’t giving her money, right?
[Rabbi Michael Abraham] No, the opposite. Tosafot infers from the Gemara that he does not have to give her money, and Tosafot asks about that: why? He really should have to give her money, because this is a double doubt.
[Speaker D] Tosafot holds that he does have to give her two hundred, exactly the opposite.
[Speaker E] But the Gemara says he doesn’t have to give her. Why does the Gemara say in his favor?
[Rabbi Michael Abraham] If there is a doubt.
[Speaker E] That’s what Tosafot is asking.
[Rabbi Michael Abraham] That is Tosafot’s question; we’re still at the question stage.
[Speaker E] No, no, no—without the extra doubt that Tosafot adds. Because even the doubt Tosafot adds…
[Rabbi Michael Abraham] I already explained earlier: no, the doubt of force or willingness is not relevant here. There is only the doubt whether under him or not under him.
[Speaker E] Yes, fine, okay, one doubt. Ah, the principle that one who seeks to extract from another bears the burden, so to speak. Yes. Okay, and how does Tosafot connect the doubt whether he is not expert with whether he is expert? Because it doesn’t line up… it isn’t the same story, it doesn’t branch like all the other examples…
[Rabbi Michael Abraham] Wait, wait, one second—we’ll get to that in a moment. So Tosafot asks, yes, essentially there is a double doubt here regarding money as well. So the answer of Tosafot—or not Tosafot but the old Tosafot, also printed there on the page—is: “And some explain,” says the old Tosafot, “that here it is not considered a double doubt, because they cannot be reversed. And one cannot say first: a doubt whether by force or willingly, and if you say willingly, a doubt whether he is expert in ‘open opening’ or not. And therefore it is considered only one doubt.” So this is another principle. Above we saw the principle that “the category of coercion is one category,” that when there is a common category for all the sides in one direction they are not counted as different sides but as one side. That was the first principle we discussed, “the category of coercion is one category.” Here there is another principle: a double doubt has to be reversible in order to count as a double doubt. If it is not reversible, then it is considered a single doubt, not a double doubt. What does that mean? Let’s try to do the analysis. The double doubt here is basically that I have a doubt whether he is expert or not expert in “open opening,” and thus whether she really was non-virginal or not; maybe he just made a mistake. And the second doubt is whether it was under him or not under him. Right? Now Tosafot says—let’s go back to the diagram for a second. Right, so I say like this: “permitted” here means, say, she gets two hundred, for our purposes. So I say: I have a doubt whether he is expert or not expert. If he is not expert, fine, then basically there is no open opening. Okay? So therefore in any case she gets two hundred if there is no open opening. And if he is expert, and there was an opening, there is still the question whether it was under him, in which case she gets two hundred, or not under him, in which case she gets one hundred. Okay? Now let’s try to reverse the order of the doubts. I say: let’s suppose I have a doubt whether he is expert or not expert. On the side that he is expert, there was an open opening. The question is whether it was under him or not under him. On the side that he is expert, there was an opening; the question is whether it was under him, in which case she gets two hundred, or not under him, in which case she gets one hundred. But on the side that he is not expert, then basically there is no open opening, right? Is there now another doubt at that junction? If there is no opening, then what is there to discuss as to whether it was before him or under him? It didn’t happen at all. In other words, the order in which the doubts are presented is not symmetrical.
[Speaker D] This tree…
[Rabbi Michael Abraham] Is not relevant if yes.
[Speaker D] What? This tree is not relevant if…
[Rabbi Michael Abraham] Yes, because of one side of presenting the doubts. If you present the first doubt as whether it was under him or not under him—sorry, as whether it was under him or not under him. Then you say maybe it was under him, in which case she gets two hundred, and even if it was not under him, it could be that he isn’t expert.
[Speaker D] Yes, but this tree is one-sided. Because if he isn’t expert…
[Rabbi Michael Abraham] And if you say the other way, if you say that the first doubt is whether he is expert or not expert, then on the side that he isn’t expert that means there was no opening there at all. That’s it. So there is nothing to discuss as to whether the opening arose before him or under him. There is no opening. The second doubt cannot be formulated. Let’s try to go back for a moment to the regular double doubt of the Gemara, right? There is a doubt whether under him or not under him; if it was not under him, whether by force or willingly she is permitted; if it was under him, by force she is permitted and willingly she is prohibited. I can doubt it in reverse. If it was by force, then whether under him or not under him she is permitted; if it was willingly, then if not under him she is permitted and if under him she is prohibited. You see that I can present the two doubts: I can present doubt A as being at this junction and doubt B at those junctions, or doubt B as being at this junction and doubts A at those junctions. There is no problem; both formulations are valid. Right? That is called a reversible doubt. You can present doubt A as the first doubt and B as the second, or B as the first and A as the second. But in the case of Tosafot’s double doubt, there the old Tosafot says it is not reversible. You must present the doubt of force or willingness first, because if you present the doubt of expertise in “open opening” first, then on the side where he is not expert in “open opening” and there was no opening at all, there is nothing to discuss as to whether it happened under him or not under him. It did not
[Speaker E] happen at all. Sorry, Rabbi, I’m not sure I remember correctly, but what the Rabbi mentioned earlier regarding cow and pig—whether it’s permitted fat or forbidden fat—that too was the issue, right? I didn’t understand. Also
[Rabbi Michael Abraham] There too it is reversible immediately.
[Speaker E] If it’s cow, I’m in doubt whether it’s
[Rabbi Michael Abraham] forbidden fat or permitted fat, and if it’s pig I’m in doubt whether it’s forbidden fat
[Speaker E] or permitted fat.
[Rabbi Michael Abraham] But if on one side I’m in doubt whether it’s forbidden fat or permitted fat, on the side that it’s forbidden fat
[Speaker E] the question is whether it’s cow
[Rabbi Michael Abraham] or pig; on the side that it’s permitted fat the question is whether it’s cow or pig. But that changes nothing. Same thing. Ah no, that’s exactly the point. Here there is a mistake made by several later authorities, a serious mistake, who indeed ask the same question you’re asking. And it’s incorrect. Because I am not asking whether there is a practical legal difference to this doubt. I’m asking whether it can even be raised at all. And that takes us back to what I said earlier: doubt and double doubt deal with the grounds of obligation in reality, not the halakhic determination about the given reality. And when I talk about the grounds of obligation, not the halakhic norm—so what? Legally it comes out the same law. But that is always true in a double doubt. After all, it is always true in a double doubt that on one branch both of its sub-branches come out permitted, and on the other branch one comes out permitted and one prohibited. And it is still called four sides. That is why it was so important to sharpen for you all along that our doubts concern the grounds of obligation and not the obligation itself. Jewish law always comes upon given circumstances, and the doubts apply to the circumstances.
[Speaker E] So does that also answer the question you asked earlier, whether to consider three possibilities or four possibilities there?
[Rabbi Michael Abraham] There?
[Speaker E] Whether to split the… yes.
[Rabbi Michael Abraham] Right, exactly. And I’m claiming it’s always four. It’s always four. True, these two are not interesting. But that’s unimportant because Jewish law gives them the same rule. Fine. But the rule does not join sides into one. The ground of the rule joins sides into one.
[Speaker D] So what is the point of splitting it, by the way?
[Rabbi Michael Abraham] In order to have the standard structure of a double doubt: three sides for permission and one for prohibition.
[Speaker D] Meaning only in order to compare two against two, that’s all. Yes.
[Rabbi Michael Abraham] That’s the generic schema of a double doubt. After all, in the end, look—even if you don’t split it here, you still have a majority of sides for permission, because it’s two sides against one, not three against one. So it doesn’t matter for the calculation, but it’s much easier to think about it this way. Because once I present it as four different sides, it becomes much easier to understand the requirement of the old Tosafot that the double doubt be reversible.
[Speaker D] I didn’t understand. Here on one side of permission I sort of just mark a check, so I don’t need to split it. But I understood that generically, as a sort of engineering model, I need to see it as two-two.
[Rabbi Michael Abraham] Right. So now notice. We basically have two rules. One rule is that where the category of doubt is one category, it is not counted as two sides but as one side. The grounds of obligation connect sides. They determine how many sides there are—not the rule, but the ground of the rule. The second rule is that a double doubt has to be reversible. If it is not reversible, it is a single doubt and one must be stringent with it. It is not a double doubt. Now, I explained the first rule, that the category of doubt is one category, right? I explained that sides are not a probabilistic concept but a halakhic concept. Therefore when we count sides, we count them according to the number of halakhic grounds that cause them. And that makes very good sense in the whole line of thinking behind double doubt: one counts sides and follows the majority of sides, as Rashba says. What is the logic behind the rule that a double doubt has to be reversible? Now here the Rema of Fano wants to make the following claim. Why does a double doubt have to be reversible? Because otherwise you have a doubt as to how to present the doubt. There is one way to present it as a double doubt with four branches in the standard presentation, but if you present doubt B as the first doubt then you’re left with one doubt; you can’t present the second doubt. Okay. So in essence, which of the two ways is correct? You have a doubt. And when there is doubt, one must be stringent—a Torah-level doubt is treated stringently. That is the claim of the Rema of Fano. Why does that not make sense? For several reasons. But the primary reason, in my view, is that you have a doubt about which side—about how to present it—but even on the side where you present it as a graph of two possibilities rather than four, it is still prohibited only out of doubt. So this is really a double doubt. On the side where the graph is the generic graph of four sides and we follow the majority toward permission, it is permitted. On the side where the graph is a graph of only two sides, then a Torah-level doubt is treated stringently and we go toward prohibition. And you have a doubt whether this presentation is correct or that presentation is correct. So that is a double doubt. A doubt whether there is a doubt of prohibition. Therefore we should have been lenient. Why should I care that there are two possible ways to present the graph?
[Speaker B] A triple doubt? Like, a doubt whether we even have a double doubt? No, there is…
[Rabbi Michael Abraham] You have sides of doubt. On one side of the doubt you have a double doubt, but on the other side of the doubt you have only one doubt. Right?
[Speaker B] Right, and that is prohibited.
[Rabbi Michael Abraham] So the double doubt… okay, I understand. On the other hand it’s lenient, so it goes leniently, fine. But here there is an ordinary double doubt.
[Speaker C] So—but what does it mean, there is a doubt? Is there really—do we truly not know what is correct? Is there even any reality here of what is correct?
[Rabbi Michael Abraham] How you can present the graph of the doubt.
[Speaker C] What do you mean you don’t know? You don’t know halakhically? You don’t know factually? You don’t know psychologically? What? Halakhically!
[Rabbi Michael Abraham] Halakhically: what is the correct way to present the—what is the correct order in which to present the doubts?
[Speaker C] Is there somewhere it says what is correct?
[Rabbi Michael Abraham] We don’t know that. No, God knows, presumably; I have no idea, but I don’t know.
[Speaker E] Fine, but when it is reversible, then I have no doubt how to present it; there is only one way to present it.
[Rabbi Michael Abraham] No, according to the second way it is not a double doubt, it is a single doubt—but you can still present it. You have a doubt whether he is expert in “open opening” or not expert in “open opening,” right? Now if he is not expert in “open opening,” then I have no reason to doubt whether it was under him or not under him, so it remains prohibited—sorry, permitted in any case. It’s not that there is no rule here; there is a rule here, and the rule is the rule of a single doubt, not a double doubt. The question is whether the graph is a graph of a single doubt or a graph of a double doubt.
[Speaker D] No, but on the other hand I can present—present, so to speak, first the doubt, and then on that doubt ask whether I have a doubt about the doubt itself. Right, exactly, and then it reverses.
[Rabbi Michael Abraham] No, what do you mean it reverses? That’s a double doubt. I have a doubt whether to be in doubt.
[Speaker D] Right, exactly.
[Rabbi Michael Abraham] And what—you’re saying that the double doubt of the Rema of Fano itself is also not reversible?
[Speaker D] That’s what I’m saying, yes.
[Rabbi Michael Abraham] My head is already starting to smoke. Interesting question. No, I don’t agree — it does reverse. How? I’m saying, I’m in doubt whether he is expert in identifying an open entrance or not expert in identifying an open entrance, right? And even if you want to say that he is expert in identifying an open entrance, and then there’s a problem, yes? Still, it could be that the problem is of the type of a double doubt and not of the type of a single doubt.
[Speaker D] But I’m still left with one side again — how does it reverse on me?
[Rabbi Michael Abraham] No, it does reverse. The doubt of the Rema of Fano — not the doubt of Tosafot, but the double doubt of the Rema of Fano, whether this is a doubt or a double doubt — that itself is a doubt, and that doubt does reverse.
[Speaker D] Right, you need to diagram the—
[Rabbi Michael Abraham] This, because it’s a bit — like I said — this thing is already making smoke come out of the ears, but it definitely reverses.
[Speaker B] But the case in Tosafot is also a reversing double doubt, right? A minor, younger than — younger than the age — that’s Tosafot’s second answer in his first question — that’s also a reversing double doubt, no? Meaning, if I say that she was a minor, then I can’t say it was under coercion or willingly, because that’s it, it was already under coercion.
[Rabbi Michael Abraham] That wouldn’t be the opposite, so you’re arguing that it doesn’t reverse, not that it does reverse.
[Speaker B] Sorry, it doesn’t reverse, sorry. I mean, not only this case, right?
[Rabbi Michael Abraham] That too. I’ll get to it, I’ll get to it — not today anymore, but I’ll get to it in the next class. Good comment, I’ll get to it. Very many later authorities identify these two rules — that there it is one single doubt, and that a double doubt has to be able to reverse — in their view, it’s the same rule. I don’t agree at all, but many later authorities and many learners get confused between these two rules; to them it looks like the same rule. I’ll show you that that’s not always correct. Meaning, there are cases where it is correct and cases where it isn’t, but we’ll really do that in the next class.
[Speaker D] The question is whether that’s a generalization that applies to all the laws, or only here you can play with it, in this case?
[Rabbi Michael Abraham] No, I didn’t understand.
[Speaker D] I’m saying that in the case of a minor, yes? We have many possibilities — not in the case of a minor, sorry — in the case of “I found an open entrance,” so you have a lot to play with: expert, not expert, permitted, not permitted, with him, not with him. The question is whether this rule can also be attached to, pasted onto, another law as well.
[Rabbi Michael Abraham] Each law has to be considered on its own. You have to check what structure comes out; I can’t give you a general answer.
[Speaker D] No, that’s what I said — when we have a Jewish law, as a rule, one law…
[Rabbi Michael Abraham] There are different schemata. There are schemata in which the double doubt does not reverse, and schemata in which it does, and in the schemata where it does not reverse, Tosafot Yeshanim says that we have to treat it as one doubt
[Speaker D] and not as a double doubt. Meaning, according to Tosafot Yeshanim, I understand that in another law, supposedly, where I don’t have many possibilities, then there will never be…
[Rabbi Michael Abraham] It could be that there’s a little room here to engage in some pilpul on this matter, whether this really is the double doubt of the Rema of Fano, because I can argue that it’s not a doubt. Both presentations are correct. Not that I have a doubt which one of them is correct — both are correct. That’s what someone asked earlier: what does the Holy One, blessed be He, know — which of them is correct? No, both are correct. Exactly. Someone can count it this way, someone can count it that way. If that’s so, then yes, you can bring in the Rema of Fano, because it isn’t a double doubt. It’s both this and that. It’s not that I’m in doubt whether it’s this or that. And since on that side there is a prohibition, and it is both this and that, and not a doubt whether it’s this or that, then it is prohibited.
[Speaker D] And that isn’t connected to the assumption you’re making in this case? After all, it’s negative.
[Rabbi Michael Abraham] It doesn’t matter. It’s all negative, otherwise we wouldn’t even begin the discussion. The whole discussion is about negative doubts.
[Speaker D] That’s what I’m saying, and then it depends on my assumptions. No,
[Rabbi Michael Abraham] But my assumptions are that when there is a negative doubt, it’s evenly balanced — those are my assumptions.
[Speaker D] Of course,
[Rabbi Michael Abraham] There is room to discuss whether I can present the doubts in any order. All the doubts are negative; the whole class, the whole discussion, is about negative doubts.
[Speaker D] No, no, I lost it — the consideration is equal, it slipped my mind a bit.
[Rabbi Michael Abraham] Okay, friends. That’s it for now. Any comments or questions?
[Speaker B] Right, the Rabbi didn’t answer exactly, because he didn’t address the question of the sides — whether they need to be equally balanced or not, right? I mean, the question still stands. Meaning, do I need a side that is evenly balanced? Say, what the Rabbi brought from the Rivash — I mean, suppose I have a question where I’m asking about the facts, but most chances are that the facts are like this and then it would be permitted, or that the facts are like this and then it would be prohibited? I didn’t understand.
[Rabbi Michael Abraham] Meaning that it isn’t…
[Speaker B] Let’s say we have the tree that branches out. At first there is a side of permission, let’s say, and then we have a majority toward prohibition but a minority toward permission, and then overall, in the aggregate, I say that it’s permitted, right?
[Rabbi Michael Abraham] No,
[Speaker B] If—
[Rabbi Michael Abraham] If the first doubt is a negative doubt, then it isn’t permitted, because you don’t know that you have a majority for permission. Negative.
[Speaker B] No, but by the law of sides, though, no?
[Rabbi Michael Abraham] The law of sides applies only where the doubts are evenly balanced. Ah, I understand. That’s in the definition of doubt. Okay, fine.
[Speaker B] It—
[Speaker D] There was a question regarding a religious court — are they all equally weighted? What does that mean? That if there are two against one, yes? So someone asked whether to relate to the—
[Rabbi Michael Abraham] No, that’s a different discussion — whether we follow the quantitative majority or the qualitative majority. That’s a different difficulty, it’s not…
[Speaker D] No, I thought that was what they were asking.
[Rabbi Michael Abraham] Okay, friends, have a peaceful Sabbath, good tidings. Bye bye, thank you very much, thank you very much, have a good new month, good tidings.