Q&A: A Self-Fulfilling Prophecy in Jewish Law
A Self-Fulfilling Prophecy in Jewish Law
Question
Is there any discussion of a situation in which the very publication of a halakhic ruling causes it to become true? For example, in the law of protest regarding a three-year presumption of ownership, does the person protest because that is the Jewish law, or would he have protested regardless? And if he would have protested regardless, does that strengthen this assumption?
So too with the rule that a person does not repay a debt before its due date.
In addition, is there any connection to the legal fiction that everyone knows the law? For example, in the rule that a person does not render his intercourse promiscuous intercourse, is the definition of promiscuity the halakhic definition of intercourse without betrothal, or the human/social definition, and is there any practical difference?
Answer
The situation is more complex. At first there was a natural situation in which people would protest within three years; from that the Jewish law of presumption was established, and now the law in turn circles back and influences the protest.
To the best of my understanding, there is no legal fiction that everyone knows the law. If there is no knowledge, we do not assume that there is.
I also went crazy when I was first in yeshiva trying to understand what is going on here. Because there is another option too (the most abstract one, or the one furthest from reality): Jewish law says what reality is supposed to be, and that is how one ought to act even if in practice we see that people do not act that way. Reality is supposed to conform itself to the law. Or, Jewish law points to an inner reality, which is the ideal reality, and we have to make sure that reality is like that. For example, with the presumption of “it is better to dwell as two than to dwell alone, etc.,” which points to the nature of women, and to the idea that this is how their nature ought to be as the Holy One, blessed be He, created them; and any deviation from this is a sickness and a corruption, and one should conduct oneself according to Jewish law based on how reality ought to be. It seems to me that this is the Brisker approach (especially as reflected in Rabbi Soloveitchik’s article “This Is Sinai”).
But really, for the sake of understanding, at least at first one has to think according to the approach that this reflects the social reality as it existed in their time. That way, at least, the Talmudic passages are clear. One can still ask why they did not go out to the marketplace and check what the reality actually was. And even on that approach, what exactly is the difference between a presumption and a majority? Indeed, I have a strong tendency (from the mathematician in me) toward the approach I presented at the beginning.
Especially regarding “a person does not render his intercourse promiscuous intercourse,” in light of contemporary reality this seems completely backwards. It does not seem at all that there is any connection between sexual relations and marriage. But apparently there was a social reality then (a real one, not a halakhic one) of promiscuity and marriage—this was connected to the status of the different women each man had, and to marriage as reflecting a person’s social status. That is, to the institution of concubinage, etc.