Q&A: Double Doubt Against a Presumption
Double Doubt Against a Presumption
Question
There is a discussion (see the Wikishiva entry on double doubt, section “initial presumption”) whether a double doubt overrides an initial presumption. For example (brought by the Rema): a bird stands under a presumption of prohibition, and its wing was broken; there is a doubt whether this happened while it was alive or after slaughter, and even if you say it happened while alive, perhaps the lung was not perforated. Does a double doubt in favor of permission override the presumption of prohibition? According to the Rashba it does, just as a majority is stronger than a presumption. [And perhaps according to Tosafot a double doubt can even extract money.] But in the Shakh it appears that only three doubts together override a presumption, apparently because the presumption decides the first doubt, then its force is weakened, so the second doubt is one doubt and the third creates a double doubt. And the view of the Masa’at Binyamin is that even several doubts do not help against a presumption.
I heard of a discussion that appears in the Noda B’Yehuda (Even HaEzer, second edition, siman 54, se’if katan 32). He threw betrothal money; it was doubtful whether it landed closer to her, and then he threw a second time, again with doubt whether it landed closer to her, and so he continued and threw a thousand times. Is she betrothed because of double doubt, or does the presumption that she is unmarried come and decide each doubt in turn, so that it goes on deciding them all, and we leave the woman in her prior status that she is not betrothed? The Noda B’Yehuda inclines to accept that she is not betrothed, because the presumption decides even a thousand doubts one after another. And logically too it seems obvious that it cannot be that for every presumption in the world we would have to remember whether we already used it once to decide a doubt and whether its force has now weakened or not.
It comes out that when doubts arise one after another, the presumption goes and decides them all. But when the doubts arise simultaneously, the presumption does not decide at all (according to the Rashba), or decides only one doubt (according to the Shakh).
What is the reasoning here?
Answer
As for the first part, I assume the basis of the discussion is the question whether a double doubt is an actual ground for permission, or whether it is still considered a state of doubt for which there is only an instruction for practice to be lenient. If it is a state of doubt, then the presumption comes and decides it stringently. If it is considered decided, then there is no doubt here, and the presumption is simply irrelevant. However, the Rashba’s view is that double doubt operates by the law of majority (a majority of possibilities), and therefore it seems that according to him, the reason double doubt overrides the presumption is not because there is a determination and the presumption is irrelevant, but because a majority overrides a presumption even in situations of doubt. In any case, it is clear that the discussion is legal/halakhic and not probabilistic.
The difference between doubts that arise simultaneously and doubts that arise one after another is also unrelated to probability. When they come one after another, the determination is made on each doubt separately. Once the doubt has been decided, we are left with the result: prohibition. And now a new presumption is created, since after the first throw the woman is under the presumption of being a married woman. Note well: I am arguing not as you suggested. The reasoning is not that the first presumption has not lost its force, or that one presumption overcomes many doubts. In every discussion we reconsider whether there is or is not a presumption. And each time, after each doubt, we decided the law stringently, and therefore a new presumption was created. She is again under the presumption of being a married woman. But when the doubts arise simultaneously, then the determination is made on all of them together, and we return to the law of double doubt in the face of a presumption.
The Noda B’Yehuda’s case reminds me of the law of the two paths, and there it is even more novel. In the case of the two paths, he is certainly impure if he walked on both. In the series of doubts regarding betrothal, there is only a high probability, but not certainty.
Discussion on Answer
A. On second thought, that too is possible.
B. I don’t think presumptions combine or reawaken. A presumption is an instruction about what to do in situations of doubt. After the first doubt was decided by force of the presumption, the situation now is that the woman is considered married. That itself constitutes a presumption. If you want, call it a continuation of the previous presumption, from which they all came. It doesn’t matter. Therefore, if another doubt now arises, we will again follow the presumption, because it instructs us what to do in a situation of doubt. And so on. Finality of litigation means that once the matter has been decided, we forget what happened up to that point. A practical difference would be in a case where the question arises only after all the throws of the bill of divorce were completed, even though they were done one after another. There perhaps it would be like doubts that arose simultaneously.
The question whether she is a married woman is a question of legal-halakhic status, not a question of fact. The ruling determines her legal-halakhic status, and in doing so removes the doubts that had existed before it. On the factual question whether she was given a valid bill of divorce—the answer is yes, with very high probability. But on the question whether she is divorced, the answer is no. And if you ask: from where do the Sages get authority to determine this? It may be that the principle of finality of litigation serves them here to uproot divorces, and after all, the Sages do have such authority (since marriage and divorce are done subject to their authority).
Your point from mamzer status actually supports this. After all, a doubtful mamzer is not a mamzer. You see from this that personal status is not a factual matter but a legal-halakhic status. It is a determination of the religious court, not a fact.
This is unrelated to conspiring witnesses, because there the question is factual: did they lie? That is not a question of legal status. They are executed because they are liars, and if factually they are not liars, there is no justification at all to execute them.
C. The opposite. I meant the claim that in the case of the two paths, even when there is a “whichever way you look at it” in one person who walked on both, he is not impure if the ruling about him was made after each case separately. He is declared impure when the ruling addresses both cases together. At the moment I don’t have time to check who holds this and who disagrees. In any case, according to that view there is a situation where he is certainly impure, and yet finality of litigation says he is pure. That is unlike the repeated throws of the bill of divorce, where there is only a high probability that she is divorced, not certainty.
B. You are saying: each earlier one is decided in turn. But in Jewish law it is accepted that in nullification by majority, it can reawaken, and we do not say that the earlier one was nullified once and for all, even if in the meantime the person became aware of the nullification. So why doesn’t the second doubt cause the first to reawaken?
Finality of litigation is to grant force—for example, witnesses who were validated based on majority or on a presumption of validity are accepted to testify in capital and monetary cases, even though we do not directly stone or burn someone purely on the basis of such an initial presumption. But if there is something that cancels the presumption, it would seem one should say: the first doubt meets the second doubt and reawakens, and now there is a double doubt against whatever presumption there may be.
C. Who says there is such a view in the two-paths case—that if the ruling was made after each case separately, he is exempt? I know the matter only from Rabbi Shimon Shakop, 1:7, s.v. “and it has been explained.” This is his wording:
“Also in the Pri Chadash I found that he proved that where there is a ‘whichever way you look at it,’ it is not permitted even in a case of doubt regarding impurity.
Only his proof is not sufficient, for what he proved from the two paths—that if he walked on the first and did not get sprinkled and immerse, and then walked on the second and handled pure foods or entered the Temple, he is liable—is not so much of a proof. For one could say that the reality of the impurity was not nullified, and when it later becomes clarified that he was definitely impure, he is indeed liable. But regarding the prohibition, one might have said that it was nullified and turned into permission, because the reality of impurity and the laws of prohibitions that result from that impurity, such as eating consecrated food or entering the Temple, are separate matters.
But this can be proved from the case that if he walked on the first and entered the Temple, and afterwards was sprinkled and immersed, and then walked on the second and afterward entered the Temple, he is liable for a sin-offering. From this there is conclusive proof that even the prohibition of entering the Temple was not permitted when he entered the Temple at a time when he had a doubt of impurity in the public domain.”
And his intent is as he wrote in chapter 2 on Mishnah Shevuot 19: if he walked on the first and entered, was sprinkled, repeated, and immersed, and afterward walked on the second and entered, he is liable. And there in the Gemara it sounds like this part of the Mishnah is discussing even a case where he remembered that he had walked on the first at the time he walked on the second. So we see that “whichever way you look at it” overcomes finality of litigation in the case of doubt regarding impurity in the public domain.
B. I don’t think “reawakening” would be said if there were a court ruling after the first majority. The example you brought is not what is usually called finality of litigation. It is a legal concept saying that after the ruling, one does not reopen it again. It is somewhat connected to the diminution of the court’s dignity, which is discussed in the Talmud in several places. In the cases you brought, this is reliance on a ruling while ignoring its basis. That is a bit different.
C. When I have more time, I’ll look into it.
B. What do you mean by a court ruling? A person knows that the first amount was nullified, and then a bit more falls in, and we still say it reawakens (Rema, Yoreh De’ah 99:6: “A prohibition that was nullified, for example because there was sixty against it, etc., reawakens and becomes prohibited, whether it became known in the meantime or not”). Are you saying that if he not only knew himself that the first amount was nullified, but also brought two witnesses to court and they wrote him a ruling that the food is permitted to eat—then if more falls in, there would no longer be reawakening? And in the chain of doubts in the Noda B’Yehuda case, if they did not go to court between one throwing of the bill of divorce and another, then do even doubts one after another combine against the presumption? I didn’t understand.
Your claim that even if a valid bill of divorce was given, the Sages can uproot the divorce sounds very strange to me. Was the matter dependent on the authority of the Sages and not on Torah law?
Indeed. That is what I meant.
“Uprooting” is a Torah-level law, not a rabbinic one. But here it is not really an actual uprooting. What I wrote is that there is a halakhic determination here, and the power to make it may be grounded in that authority to uproot. That is evidence that they have such power.
What do you mean, “indeed, that is what I meant”? Are you being sarcastic?
No. I really did mean that.
And perhaps is there any proof for this point? [That a determination becomes fixed according to the knowledge of the religious court, but according to an individual’s knowledge it does not become fixed?]
That is exactly the reasoning of finality of litigation. In the Talmudic discussions about the diminution of the court’s dignity, that is precisely what is being discussed.
The issue of the court’s dignity is when new evidence comes to light, not when the situation changes. If someone eats half an olive-bulk of forbidden fat, and then the court examines his case and rules him exempt, and he continues and eats another half olive-bulk, would he not get lashes? Here another new doubt was born, and now a new decision is made on the whole picture.
Even when new evidence comes to light, some are concerned for the court’s dignity, and that is the meaning of a ruling as ending the litigation. As for someone who ate half an olive-bulk, that cannot happen. If it is within the time needed to eat a half-loaf, then he cannot be judged until the time passes. And if he ate the second half after that time, then he would not get lashes.
When the situation remains exactly as it was and only new evidence arrives, then one may worry about the court’s dignity—to say that in this situation the court erred before and is now correcting itself. But if the situation itself changes—another prohibition was added, or another doubt was added—then there is no slight at all in a new and opposite ruling, because for that earlier situation the law was one way, and for a different situation the law is another way. What slight is there here? Who ever heard of a connection between the court’s dignity and reawakening?
What you are actually maintaining here is that if he threw five bills of divorce one after another and each one was doubtful whether it landed closer to her, then the woman is divorced by force of double doubt against the presumption—unlike the Noda B’Yehuda. And if the court sat in judgment between one throw and the next, then she is not divorced.
See here, and the connection that the Ra’avan makes to “the judgment stands” as to why the power of the court is effective:
https://he.wikipedia.org/wiki/%D7%96%D7%99%D7%9C%D7%95%D7%AA%D7%90_%D7%93%D7%91%D7%99_%D7%93%D7%99%D7%A0%D7%90
By the way, even according to Rashbam, who ties this to an issue of appearance, even when new evidence came about the case there should not, by your logic, be any concern for the court’s dignity either (the new witnesses are like reawakening). But the Ra’avan and those who agree with him see this as a principle of finality of litigation.
Indeed, that is correct. Beyond the explanations, I have almost no doubt that in practice every religious court would rule that way.
I read it. Comparing new witnesses to reawakening is an even more far-fetched novelty, and there is clearly a significant distinction. If there is proof that reawakening is limited specifically to a case where there was no court ruling on the first nullification—fine. But you are introducing this comparison on your own, without any necessity, and it is really astonishing. In the Noda B’Yehuda, doubts one after another do not combine against the presumption even without a court in the middle.
In the example of a court between two half-olive-bulks of forbidden fat, you said that technically the court would not rule anything there but would wait. One can give another clear example: an ox gored a first time and went to court, and they established that it was not yet a habitual gorer; a second time and they established it as habitual; a third time and they established it as habitual—there you have the court’s dignity!
I also remember seeing quotations that halakhic decisors in matters of agunot praise themselves that no mishap occurred through them where the supposedly dead husband came walking in alive. Recently I also saw in the book Avir HaRo’im about Rabbi Ovadia that he praised himself, with Heaven’s help, that no such mishap had happened to him, even though he permitted many agunot. But why is that considered a mishap? He ruled according to Jewish law, and even if the dead man were to appear tomorrow and then an identical case came up regarding a parallel agunah, obviously he would still rule that she is permitted. Rather, if there is an error in a ruling about reality, no matter why, that is a slight to the court.
A habitual goring ox is not a good example. There the whole procedure appears explicitly in the Torah itself: “and warning was given to its owner.” That process is always conducted in stages.
He discusses it only legally.
A. Even a majority that overcomes a presumption could be because the majority has decided the matter and therefore the presumption is irrelevant, not because the majority wrestles with the presumption and defeats it. So even in the Rashba, where double doubt is like a majority and thus stronger than a presumption, one could explain it that way. Why not? [I had thought to understand the three-way dispute about double doubt against a presumption differently, but there’s no practical difference.]
B. You explained that it is not the same presumption that decides a thousand doubts one after another, but rather each presumption in its time decides one doubt. Meaning: the first presumption decided the first doubt and created a second presumption, which then served as the basis for a third presumption, and so on. How does that improve the situation? 1. Why doesn’t the first doubt reawaken when the second doubt arises and join to form a double doubt? 2. If one presumption cannot stand against a thousand doubts, then how do the presumptions that come because of it succeed together? 3. If there is a probability as close as we like to 1 against the presumption, how can it make sense legally to go against the probability, when Jewish law is in fact determined according to reality itself? For example, if she received a thousand bills of divorce, each one doubtful whether it landed closer to her, and then went and married another man and gave birth, there is almost a probability of 1 that the child is not a mamzer, and yet we would rule that the child is a mamzer and consign him to an especially difficult life. But according to your own approach, for example, it cannot be that conspiring witnesses are executed purely because of a scriptural decree.
C. You wrote that in the case of the two paths, if there is a “whichever way you look at it” that he is impure, then he is impure (Rabbi Shimon Shakop, 1:7, sharpens this by bringing the proof from a case where he walked on one path and entered the Temple, immersed, then walked on the second path and entered the Temple—where he is liable for a sin-offering, even though for each individual entry we had ruled him exempt). I did not understand in what sense this is more novel than the Noda B’Yehuda case.