Q&A: The Migo Paradox
The Migo Paradox
Question
Hello Rabbi, I wanted to ask the well-known question regarding migo. When a person makes a claim that is not especially strong for him, while he could have made a claim that would have been better for him, we say migo. The question is this: from the moment the person knows the laws of migo, he automatically knows that his actual claim helps him more, and so the whole migo is nullified.
Answer
Hello Eitan.
I’ve now been reminded of the case of “he bent down and whispered” in Bava Batra 30b, where the person creates the migo for himself with his own hands, and there your question certainly applies. But really, one can raise it in almost any case.
I’ll just note that there are some types of migo that are not exposed to this difficulty. For example, a migo where the better claim gives a substantive advantage in itself (meaning there is reason to make it even though I know I’ll have migo with the second claim). For example, someone who could claim two hundred and instead claimed one hundred.
It should also be noted that in monetary law, a religious court has authority (though nowadays less so, as written by the Rif and Maimonides at the beginning of chapters 20 and 24 of the laws of Sanhedrin) to act as it sees fit and is not bound by the formal laws of evidence. So specifically in monetary matters this is not so difficult, because the religious court decides what is reasonable under the circumstances and assesses whether the person before it is being manipulative or not. But of course migo also exists in non-monetary contexts (such as at the beginning of tractate Ketubot regarding an “open entrance,” and so on).
It is customary to answer this in one of two ways: 1. Even if you cancel the migo, it will come back into existence. This is a loop, like the Ran in Bava Metzia 30a regarding the red heifer on which a yoke was placed with the owner’s consent; see there and in Tosafot. However, even here it is still not clear why one should stop specifically at the point where there is migo.
And perhaps the fact that the religious court can also choose not to accept the migo (see my remarks above) creates a situation in which the person cannot be certain, and therefore it is preferable for him to make the genuinely better claim.
2. Migo has an aspect of legal force as a claim, not only the reasoning of “why would I lie.” And that exists here too, as in a migo involving brazenness. However, the “why would I lie” side is indeed problematic.
See about this at length inmy pamphlets here.
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Questioner (another one):
I thought of an analogy from electronics that resembles the migo paradox. Two NOT gates are connected to each other in a circuit (output 1 to input 2). At first there will be oscillation between a logical “0” voltage level and a logical “1” voltage level. It seems to me that after some time the circuit should converge to some finite intermediate voltage level that is neither logical 0 nor logical 1. Maybe that teaches that in any paradox of this sort, the final solution is some intermediate solution between the two states. In our case one could say that the migo is only half-effective, and therefore one still has to take it into account.
Oren
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Rabbi:
First, it seems to me that perhaps you mean a single gate connected back to itself (connecting the output back to the input). With two gates in series there is actually no paradox at all, because the structure is simply: – 1 – 0 – 1 –
In any case, in your analogy you moved from the logic of the circuit to its electronics. Logically this is a paradox with no way out, but from the standpoint of electronics it seems to me that the result depends on the electronic implementation of the gates. There are implementations in which what you get is a short circuit (connecting two different voltages directly together will burn the wire. Only if there is some resistance in the connection can one speak about averaging). So I think it is better to talk about the logic without getting into the electronics.
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Questioner:
Yes, I got mixed up between two gates and one. As for the analogy, perhaps the migo paradox in the logical world also remains unsolved, or oscillates forever between “0” and “1,” and only when you bring it down into the practical-legal world does it receive a kind of averaging (or a kind of “superposition”) between its two possible values, so that its final outcome remains the same as it was before we raised the paradox.
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Rabbi:
Indeed, that is the situation. As I wrote, the religious court decides whether to use migo or not (to collapse the wave function one way or the other).
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Shua:
Regarding the question why stop specifically at the point where there is migo: I think the answer here is simple. The religious court has to operate according to a single general principle. To establish a principle that there is no migo leads to false rulings whose falsity is obvious (because the migo will immediately stand up and wave Mount Zion with its hand). To establish a principle that there is migo leaves us with an even split at most (or against a presumption in a migo used to extract money). In the red-heifer case the two sides are evenly balanced, and therefore in order to stop specifically on one side you really do need an additional principle (for example, that we go stringently, like “we compare toward stringency,” and not by the law of doubt).
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Rabbi:
I didn’t understand the claim. Even if there were no migo, why would the ruling necessarily be false? The person makes his claim and the religious court will decide whether he is right or not. And certainly if you take into account Maimonides and the Rif, that in monetary matters the religious court is not bound by the laws of evidence and can rule otherwise. Also, I did not understand why, when there is migo, we are left with a fifty-fifty. On the contrary, if there is no migo then the person will simply lie with the better claim, and that’s that.
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Shua:
If we establish as a rule that we do not believe a claim of “I paid” (but we do believe “the document is forged”), and then someone comes and claims “I paid” and we do not believe him, then we clash directly with “why would I lie,” and the ruling is certainly mistaken (or at least highly likely to be. The religious court would need penetrating eagle eyes to overcome, by visual judgment alone, such a strong consideration).
If we establish as a rule that we do believe “I paid” (just as we believe “forged”), then indeed we have no special reason to think the ruling is correct, that the person is telling the truth, but we also have no special reason to think it is incorrect, that he is lying; and for present purposes it is fifty-fifty whether he is lying or credible.
Therefore one cannot establish a general principle that “I paid” is not credible, but one certainly can establish that “I paid” is credible. I seem to have missed the contradiction to this argument.
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Rabbi:
We do not believe “I paid” by force of a migo from “forged,” but we can believe him on its own terms (according to the judges’ own assessment). So it is not true that we simply will not believe him, and I do not understand why one needs such penetrating eyes. This is no different from any other situation where the judges form an impression of the person standing before them.
And on the other side, where one does believe “I paid,” it follows from your words that we simply believe him, not by force of migo. But that does not explain the credibility of migo. You believe him because of doubt, since the claimant is the one seeking to extract money and the burden of proof is on him. That is all.
It seems to me that another explanation can also be offered. Suppose there were no migo in the world. In that case, liars would indeed not be able to claim “I paid,” but they would choose the best claim available to them (“forged”), and would still win the case. So denying migo would not help convict a single liar. By contrast, if there is credibility through migo, then the litigant will tell the truth, because he wins whether he says “I paid” or “forged,” and therefore he will choose the correct claim and be believed through the legal rule of “since he could have said.”
This is probably the essence of Maimonides’ words in Laws of Claims and Defenses 6:1:
When litigants come before a religious court, and one claims and says: “This man has one hundred zuz of mine, because I lent it to him, or deposited it with him, or he robbed me of it,” or “I have wages due from him,” and anything similar, and the defendant answers and says: “I owe nothing,” or “You have nothing in my possession,” or “Your claim is false” — this is not a proper answer. Rather, the religious court says to the defendant: respond to his claim and explain the response just as he explained his claim, and say whether you borrowed from him or did not borrow, whether he deposited with you or did not deposit, whether you robbed him or did not rob him, whether you hired him or did not hire him, and similarly with the other claims. And why do we not accept this answer from him? Lest he be mistaken in his understanding and come to swear falsely, for it is possible that he did lend him, as claimed, and this one repaid the debt to his son or wife, or gave him a gift corresponding to the debt, and in his own mind he imagines that he is discharged from the debt. Therefore they say to him: how can you say “I owe nothing”? Perhaps by law you are obligated to pay and do not know it. Rather, explain the matter to the judges and they will tell you whether you are liable or not liable. And even if he were a great sage, they say to him: you lose nothing by responding to his claim and informing us how you are not liable — whether because the matter never happened, or because it did happen and you repaid him — for we judge everywhere by the rule of “since he could have said.”
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Shua:
[I’m coming back to this again because it interests me, though I don’t have anything especially new to add. Most likely you understood exactly what I’m saying, and I’m the one who didn’t understand the rejection, but bribery doesn’t keep its hands out of the plate.]
I suggest that accepting migo is not because it has real substance, but because the alternative is worse. If we do not accept migo — whether as a general rule or by leaving the decision to the judges’ discretion in a way that gives some preference to a certain claim (for example “forged”) — then we arrive at an impasse. Maybe in exceptional cases the judges can indeed ignore the migo as they see fit, but does the judges’ principled freedom render all the legal rules superfluous? This rule is no worse than all the other rules that judges can ignore according to the approaches you mentioned. I do not believe the claim “I paid” because of “doubt”; I accept the claim “I paid” because one cannot establish any other general principle. And in my opinion, incidentally, independently of this, not believing migo is stranger than not believing a hundred witnesses.
As for the other explanation you proposed [I understand that the gain is that we avoid causing the public to sin by speaking lies in religious court], I did not understand how it escapes the difficulty that is hard on “my” explanation (though in my own view both explanations should be resolved similarly). Now that the liars made the mistake of believing they would be believed even with “I paid,” let us outsmart them, and according to the judges’ impression we will not believe one who says “I paid.”
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Rabbi:
What I argued is that if this is what migo is, then you are not believing the person by force of migo. I remind you that migo is treated as evidence. Second, as I said, accepting an uncertain claim sounds very strange.
Third, in my opinion there is no difference at all between rejecting a hundred witnesses and rejecting migo. If the judges see a problem, they will reject it. True, in practice this will happen less with a hundred witnesses, because there is indeed less chance of a problem with their testimony. In other words, the strength of the evidence does not determine how difficult it is for the judges to discern whether it is false or not. It does determine the underlying falsehood itself, but that is not what you wrote when you spoke about the judges’ penetrating eyes.
As I understand it, my explanation does not suffer from all the problems of the explanation you proposed (see above; there are several). According to my view, the litigant really is believed through migo. He is telling the truth that he paid, and we know this is true because if it were a lie he would have claimed “forged” (for the migo of “I paid” can be rejected by force of the judges’ own assessment, so why would he take the risk? True, the claim “forged” can also be rejected in the same way — but that is a claim, not evidence. Claims are not rejected so easily, because claims are not testimony whose truth or falsehood the judges are supposed to determine. Claims mainly determine the litigant’s legal standing — on whom lies the burden of proof, and so on). I also added that the alternative of denying migo altogether is of no help whatsoever, since no liar would lose the case because of it, as Maimonides explains at the beginning of chapter 6 of the laws of Claims and Defenses that I cited.
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Shua:
Now I understand. Thanks.
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Rabbi:
With pleasure.
Discussion on Answer
First, it is clear that one must also add legal force as a claim:
1. Why is a migo involving brazenness effective? After all, that person would not have dared make such an insolent claim. Without legal force as a claim, it is hard to explain.
2. The same applies to a migo that is argued on behalf of an heir (from which later authorities proved the concept of legal force as a claim).
3. A husband who says “this is my son” is believed to exempt his wife from levirate marriage by migo, since he could divorce her. The medieval authorities (Nachmanides and Rashbam) disagreed whether he is believed to permit her to a priest. If he is not believed to permit her to a priest, then clearly the migo is not only “why would I lie” (because if he has credibility that this is his son and she is exempt from levirate marriage, there is no reason to forbid her to a priest).
And many more proofs were brought by the later authorities.
If indeed we are speaking of a naive person unfamiliar with the legal system, I said that it is not likely he would think of complicated migos. Even “I paid” with a migo from “forged” is a nontrivial migo. After all, there is a document against me, and fundamentally there is no way to claim against a document that it is forged; only by rabbinic enactment are documents validated. How can we assume every ignoramus would know that? I need to look, because there are examples of very complicated migos.
Beyond that, none of the commentators explained migo this way, so at the very least we need to understand how they understood it.
And beyond that, according to your approach, would you not give credibility through migo to intelligent people? And beyond that, in later lectures you’ll see that there are simple answers to these questions and no need to make assumptions about the litigant’s ignorance.
1. One could answer that there is a clash here between two presumptions: the presumption that a person does not brazenly deny is relatively weak compared to the presumption that a lying person does not make a claim that is only half-helpful to him (especially in monetary matters). In such a case, the migo presumption overrides, and therefore only it is taken into account.
2. What is the source in the Talmud that we argue migo on behalf of an heir? I tried looking a bit in Bava Batra 70b and in Gittin 2b, Tosafot beginning with “And if there is,” but I didn’t understand it so well from there.
3. It may be that my approach is proof that he is believed to permit her to a priest. And even if he is not believed, one could answer that the Sages imposed a special stringency concerning lineage, and did not rely on the migo presumption in priestly prohibitions.
4. As for granting credibility through migo to sages, it may indeed be that if we understand that the person before us knows how to exploit the migo mechanism for his own benefit, then all the laws of migo do not apply to him.
1. The burden of proof is on the one invoking migo. If there is a possibility yes and a possibility no, then there is no proof here at all.
2. This is a dispute among the medieval authorities. See for example here: http://www.yeshiva.org.il/wiki/index.php?title=%D7%98%D7%95%D7%A2%D7%A0%D7%99%D7%9F_%D7%9C%D7%99%D7%95%D7%A8%D7%A9_%D7%95%D7%98%D7%95%D7%A2%D7%A0%D7%99%D7%9F_%D7%9C%D7%9C%D7%95%D7%A7%D7%97
3. But according to Rashbam, he indeed is not believed in this.
4. We do not find that this was ruled that way. In principle it is possible. I too suggested in the booklet that in monetary matters the religious court acts according to what seems right to it in any case, so with migo too they would act that way.
In any event, even if in the Talmud you manage to explain it this way, the position of most medieval and later authorities also requires explanation.
1. I meant that the weight of the concern about brazenness is low relative to the weight of the migo presumption, and therefore we neglect the issue of brazenness in the equation and relate only to the migo presumption.
2. I thought a bit more about this, and it seems to me that one can ask a more basic question regarding the whole matter of arguing some claim on behalf of orphans. How do we know that the father would have made this claim at all? Necessarily one must answer that in “we argue on behalf of the orphans” there is a special rule under which we simulate a hypothetical trial between the father and his claimant, and out of all the possible trials that can be imagined we take the one in which the result for the father is best, and that one we apply to the orphans. This does not contradict the possibility that migo is based on the presumption that a person does not lie halfway.
Another point regarding common sense: any conception that turns the use of migo into a technical move detached from logic has to bring proof of a scriptural decree that this is how migo must be treated, because only such proofs can explain why one should act against reason and logic. To the best of my knowledge, there is no derashah or scriptural decree of any kind that compels such a conception.
What the later authorities there argue is that this simulation cannot give the orphans a migo of “why would I lie.” After all, the migo is based on the fact that if the father had claimed “I paid,” he would have had a migo from “they were lost by unavoidable accident,” which proves that he is not lying. But when the religious court argues “I paid” on their behalf, there is no sense in saying that they have evidence in their favor that they are not lying. There is no evidence at all. On the contrary, perhaps if the father had been sued he would have admitted and paid? There is no sense in placing at their disposal a migo that functions as evidence. What we argue on their behalf are claims, but not pieces of evidence that do not really exist.
That is precisely the question we are dealing with: is migo really technical and lacking logic, such that one would need a verse? That is exactly what Rabbi Breisch challenged in the “sort of electricity” argument. To that I will try to respond later on. I want to argue that there is logic here (legal logic, even if not factual-probabilistic), and one does not necessarily need a verse.
The idea is that one of the possible trials would be a trial in which the father claimed “I paid,” and the religious court would believe him because of the migo presumption, and therefore would treat the document as paid. Now we apply to the orphans the result of that trial (let’s call it the migo trial) and believe them that the document was paid — not because of their own credibility, but because of the possibility that their father could have made such a claim and won because of migo. One can think of it as if we legally conjure their father up as a fiction, start prompting him and extracting possible arguments from him, and the best argument he has is the one we assume he would have made.
The point I am trying to get at is that it is inconceivable that we would accept a migo claim as valid in a place where we understand that the migo presumption does not exist, for various reasons such as:
1. There is good reason to assume the claimant is aware of the power of migo and exploits it improperly
2. There is good reason to assume the claimant is not aware of the stronger argument he could have made
3. There is good reason to assume the claimant refrained from making the stronger argument for other reasons
Your first point is clear. And about that I said that “we argue on their behalf” transfers claims to the orphans, not evidence. If the father could have claimed “I paid,” we make that claim on behalf of the orphans. But if the father’s claim of “I paid” would not have been accepted on its own, but only thanks to migo, and the orphans have no migo, then there is no sense in making that claim on their behalf. After all, the father did not actually claim “I paid”; he only could have claimed it. Who says he would in fact have claimed it? Maybe he would have admitted? In such a situation we would still argue “I paid” for them, but we would not grant them the benefit of the migo.
As for your next three claims, they are certainly reasonable if migo were only “why would I lie.” But the claim of the later authorities is that there is something more in migo, and if that is true then one can use migo even in those situations, and one does not even need a verse for that (because it is a legal reasoning). In the continuation of the lectures I will address this.
Following up on this question: yesterday in the lecture I raised the possibility that the logic of the migo claim emerges from the assumption and presumption that the average person in the Talmudic period was not aware of legal sophistications that exploit the rule of migo, and those who were aware of them would in any case not exploit them, because they were intelligent enough to understand the severity of lying and deceit. This possibility could solve many paradoxes regarding migo, and also spare us intricate pilpulim and complicated conceptual definitions. You answered that the weakness of this possibility is that it does not fit complicated migo arguments that the average person is not aware of. I wanted to ask which migo arguments you had in mind (one or two examples). And even if we say there are such examples, why not force an answer for those few examples and save all the oddities that exist in the common understanding of migo?