Q&A: Better to Dwell as Two
Better to Dwell as Two
Question
Hello Rabbi!
A few thoughts occurred to me, and I’d be happy if the Rabbi could go over them when he has some free time; but because this is a bit long, if the Rabbi doesn’t have time then no worries.
It seems to me, on the face of it, that the analytical distinction the Rabbi makes between substantive authority and formal authority is a bit misleading, and I’ll explain with four examples:
There is a commandment to judge others favorably. And seemingly this is hard to understand: are we supposed to deceive ourselves? The simple answer is that the commandment includes two parts:
A) To stop, and raise possibilities that cast the act in a different light, just as we would want others to do for us. (=to look for merit)
B) If there is such a possibility, to behave as if the interpretation is correct (or at least, as if this might be the correct interpretation). Not to react angrily: “What do you mean you don’t have mattresses and pillows?! I worked for you for seven years!” but rather to shoulder one’s things and leave. (=to judge favorably)
Most likely this will also shape our inner attitude toward the other person, because usually the heart follows the actions. If we were right—excellent. And if not? That’s better than erring in the other direction.
Similarly with the prohibition of malicious speech: if a religious court declared someone wicked, one may relate to him that way. But after all, a religious court can also make mistakes?! (Sanhedrin 33a; Horayot 2a) And then maybe we would simply be wronging an upright person? Rather, because we are in doubt, we are allowed to behave as if it is true.
If all this is correct, one can understand a serious passage in Bava Batra 5a. Reish Lakish disagrees with Abaye and Rava as to whether “there is a presumption that a person does not pay before the due date,” or not, and the Jewish law follows Reish Lakish. The later authorities asked: what does it mean to determine Jewish law on an empirical question? (And also, how did the Talmud try to resolve it from mishnayot?)
In fact, several later authorities (Panim Meirot, I think, and others) answered that the dispute concerns the definition of a presumption—what kind of majority is needed in order to establish a presumption—and they linked it to the passage about whether we take a minority possibility into account.
But in my humble opinion it seems that the simple answer is that here we have a doubt that is very hard to clarify: how common is it for a person to pay before the due date? Therefore, in practice the religious court behaves as if this is indeed very rare, because acceptance of the Talmud includes acceptance that we will behave (so long as we do not know otherwise) as if Reish Lakish is correct.
In other words, in situations of doubt, even though on the philosophical level the Sages do not have authority in matters of fact (and in the Rabbi’s words, “cannot have”), on the practical level, for all intents and purposes, they do.
This whole line of thought brings us to the issue of “better to dwell as two.” Clearly this presumption was established on the basis of observation. It is hard to assume that Reish Lakish would say it without knowing even a single woman. But here we have two possibilities:
1) It is a psychological-behavioral observation whose force was valid for its own time and place.
2) Perhaps the Sages also learned this from the Hebrew Bible (Tanakh) itself—as Rabbi Soloveitchik holds ("Man and His Household," p. 130, and also a bit at the end of the article “Marriage.” In “This Is Sinai” it’s a bit too compressed…)—and they connected this observation to the verse “and your desire shall be to your husband,” and to the ontological difference between man and woman reflected in the creation story, and in Kabbalah, and in other places in Jewish law.
According to the second approach, if one day gender studies become as precise as the natural sciences and it turns out that there are no innate mental differences between men and women (except in verbal abilities—in which women have a statistical advantage), then we would say that apparently the Sages were mistaken in assuming that this is an ontological difference, and also in their interpretation of the Hebrew Bible (Tanakh). But so long as we are in doubt, we behave as if the Sages were right.
Again, I thought that everything depends on the person.
The Rabbi is a doctor of physics with broad knowledge in many fields, and also has Torah at his fingertips inside and out, so for him many things are clear.
If someone comes along and claims that he knows almost nothing about reality-as-it-is but only about the way-he-perceives-it; but he has accepted the Talmud upon himself (as he perceives it), and therefore even if the Talmud says that right is left he behaves as if it is right—then probably we really won’t succeed in convincing him otherwise, but at most help him discover that he himself doesn’t actually believe this.
And most of us are somewhere in the middle. “The Lord said that He would dwell in thick darkness”—as the Hasidim say, in this world, which is like fog. We give ourselves over to our beloved and do not ask ourselves whether she exists; we honor our parents and do not wonder whether perhaps we were switched at birth. But there are many things we do not know—is there or is there not a guardian in matters of sexual prohibitions? Who is right: the kashrut agencies that do not grant Passover certification to canola even for those who eat legumes (because wheat always gets mixed in along the way), or the kashrut agencies that permit it even for those who avoid legumes (because the sorting methods are good enough)? Is the poor person asking me for charity a swindler, such that it is preferable to donate only to recognized charities? And so on and so on.
Note: throughout this whole discussion I ignored the possibility that the Sages have substantive authority in evaluating reality by virtue of “The secret of the Lord is with those who fear Him, and His covenant is to make it known to them” (Sotah 4a), because I assume that the Rabbi disputes that factual assertion itself, and Rabbi Soloveitchik too (as far as I know) does not use this argument.
I would be very happy to know whether the Rabbi agrees with any of this.
All the best, and thank you
Answer
Hello.
Regarding judging favorably, there is a mistake in what you wrote. See my article here: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%A2%D7%95%D7%93-%D7%91%D7%A2%D7%A0%D7%99%D7%99%D7%9F-%D7%AA%D7%A2%D7%A8%D7%95-%D7%A9%D7%9C-%D7%90%D7%95%D7%A7%D7%94%D7%90%D7%9D/
As for the presumption that a person does not pay before the due date, this is indeed an empirical question, except that the Sages generally assumed that human nature does not change. Today, however, we are aware that it does change, and therefore what we learn from there is only the general principle that presumptions can extract money from its current holder. The question of which presumption is correct and which is not is a factual question about which the Talmud has nothing to say, and certainly they have no authority whatsoever regarding it. The same applies to “better to dwell as two.” By the way, both presumptions can definitely be tested by survey, and certainly by the impression of the sages of the given time and place. There is no problem with this at all, and we (or I) are really not in doubt on these questions. Rabbi Soloveitchik’s remarks were said as an answer to the Reform, and I have no doubt that he himself did not believe that nonsense.
If someone comes and claims that he does not know things that can be known, he is a fool. I see no point in discussing the positions of fools. If he claims that it is impossible to know, and convinces me that it really is impossible to know, then we can talk. In such a case I too would be willing to accept the presumptions established by the Talmud (although it is possible that even in such cases I would act according to the laws of doubt and not according to the Talmudic presumption—for I am in doubt, and that is what determines things).
Discussion on Answer
I haven’t read it. In any case, it’s not all that important to me what he thought. In my view, such a claim is absurd, and since he was a very intelligent person it is hard for me to assume that he believed it. But even if he did—that doesn’t really matter.
The topic of the passage there is the principal question: given a presumption, can money be extracted on its basis or not (since in principle “a matter shall be established by the testimony of two witnesses”). Even if the passage addresses this through discussion of a specific presumption, the factual determination (whether a person pays before the due date or not) has no principled importance whatsoever. It can change. What does not change is the determination that a presumption can extract money. That is the Torah in this passage; the rest is facts.
By the way, this also seems clear from the continuation of the passage, which deals generally with a legal plea of "could have said" against a presumption, and there it is certainly formulated as a principled and general question, not a factual question (whether there is a presumption or not), and it deals with any presumption and not specifically with this one.
I didn’t understand the last part. When there are two possible explanations, we should assume the more lenient one, but not as a fact—only because of the burden-of-proof consideration (to leave the person with the presumption of being upright). Such a presumption is not clarification of the facts, but a “legal” (or in this case, evaluative) consideration.
Thank you very, very much.
I’m glad we agree regarding the last point. 🙂
Regarding the passage in Bava Batra, does the Rabbi mean to say that Reish Lakish and Abaye disagreed about whether money may be extracted on the basis of a presumption? That’s a really interesting direction. Thank you
Would it enter your mind that there is an argument about the fact that a person does not tend to pay before the due date? Is there any one of them who denies that reality? And on the other hand, is there anyone who denies the fact that sometimes a person does in fact pay before the due date (when money happens to come his way)? Therefore it is clear that the question is whether such a consideration (=a presumption), which of course has exceptions (and everyone agrees about that too), is strong enough to extract money from its current holder. I find it hard to see any other interpretation of the passage.
Similarly, we find a dispute between Rav and Shmuel whether money may be extracted on the basis of a majority, and in practice we rule like Shmuel that in monetary law we do not follow the majority (although of course there are many interpretations of this, and this is not the place).
If the debate were only on the factual plane, then as far as I’m concerned it would simply be a waste of Torah study. Why should the reality of their time interest me?! By the same token you could study what kind of pants they wore then and what they used to eat. That is a matter for historians, not for students of Torah.
That’s a really beautiful explanation.
And one tiny question for the sake of completeness: does the Rabbi agree that there are different presumptions, some stronger than others (halakhically)?
That is, is it really far-fetched to say that the Amoraim disagreed regarding this specific presumption—whether money may be extracted on its basis, meaning whether to place it in the category of “strong” or “weak” presumptions?
And we decide juridically (because in truth the reality is not well-defined—how much weight to give to the possibility that perhaps money happened to come his way—but we need to decide something) that it is a “presumption”?
They can disagree regarding this presumption, as to how strong it is, but again this is not a dispute about reality. The dispute is that they disagreed about what the general criterion for presumptions is—that is, how good they need to be in order for us to extract money on their basis.
Wow, that was fast.
I assume the Rabbi has read Man and His Household? As I understand it, the whole article there is somewhat lacking in meaning if it’s only “an answer to the heretics”…
Would the Rabbi be willing to explain a little more regarding the Talmud in Bava Batra 5a? If the Sages are not discussing which presumption is correct and which is not, then what is the topic of the passage there?
I’m familiar with the Rabbi’s article on judging favorably. I didn’t mean that one should adopt a far-fetched explanation, but rather that when there are two equally plausible explanations (as the Rabbi suggests), we should behave as if the more lenient interpretation is correct. Otherwise what is the meaning of judging favorably? The equally plausible explanations exist in any case. Is it only “to look for merit”? (Presumably the Rabbi’s answer will be: yes)