Q&A: In His Hand, Reason, and Scripture
In His Hand, Reason, and Scripture
Question
Regarding the laws of migo, possession status, prior ownership, etc., which the Rabbi calls legal reasoning: did the Sages learn them from some source? After all, this is a logical argument, but there is also logic not to say so. Is a verse necessarily required in order to decide, as with legal reasoning? Seemingly, regarding possession status and migo, it sounds as though only in the initial assumption did the Talmud think they were learned from a verse (“I gave my daughter…” “Who is the litigant…”), but in the conclusion the Talmud rejects that and says, “If it is reason, why do I need a verse?”
And regarding the reasoning of “it is in his power,” is the explanation (as I understood from the Rabbi based on the words of the Rosh in Gittin) that since it is in his power to decide the law however he wants, he determines for himself whether the matter is permitted or forbidden—he becomes the new judge? But if this “in his power” does not give me credibility that I am speaking the truth, why would the religious court give me the ability to decide the law however I like? After all, maybe I did not divorce her, and then she would still remain forbidden to everyone in the world. And why should I care that it is in your power to do so, if I still do not believe you that you actually did it? I still cannot allow this woman to marry another man.
Answer
Legal reasoning, by its very nature, is not statistical reasoning; that is, it is not based on the idea that the probability is higher that the outcome is true. There are other considerations that can lead to accepting evidence or an argument, even if it has no statistical advantage. For example, “the burden of proof rests on the one who seeks to extract from another” does not mean that the person currently holding the item is more likely to be right. But there is legal logic in acting that way (giving an advantage to the current possessor). Regarding migo, the advantage appears in Maimonides, chapter 6 of the laws of Claims and Counterclaims, and in my booklet on migo. Migo as the strength of a claim, and “it is in his power,” are based on a person’s power to bring about the result himself, and the legal logic says that if so, the entire matter is under his control, and therefore he is trusted regarding it.
Of course, one can continue asking about these reasonings themselves: how do we know them, and why are they correct? But that is not something that can be resolved in this way, because the questions will not stop until a statistical reasoning is brought, or at least a consequentialist one. My assumption is that everyone understands these reasonings intuitively, and that is enough for me. See also columns 226–228 for examples from the world of law and a discussion.
Discussion on Answer
From reason.
For each such reasoning, one has to examine carefully whether, as a general rule, it really does advance consequentialism. In particular cases clearly not, but as a general rule it is certainly possible that some of them do. Like possession status, and like the general difference between positive action and passive omission. Because another kind of world would be worse (practically and psychologically), they established (people, or perhaps even morality itself, long may it live) a different sweeping rule. Many of my questions here on the site are mapped in my mind into a classification of reasonings: whether they are consequentialist or legal, and when they are legal, whether in practice, by assessment as a general rule, they advance a desirable and recognized result or not. And those that do not pass the test, maybe really can be thrown into the trash—because they faded away, or even if they did not fade away, they should be thrown out because they harm the advancement of desirable outcomes. To throw out even those that do pass the general test when in a particular case they are void—that is another matter. For the ear tests words as the palate tastes food.
But I will say one thing cautiously, and please delete this message afterward, that there is something sick and terrifying about pure consequentialism once it gets lodged in the heart and takes root. All my life I have turned this over backward and forward without rest, even though intellectually I do hold on to one particular side, without being able to incline elsewhere. On the outside, consequentialism, and externally deontology; but deep inside, for years now, I have been inclined to lodge with consequentialism. And the Talmud (as you wrote in “Two Wagons”) specializes in direct discussion of non-consequentialist principles. And when I try to get to the bottom of my own mind, this is the point that draws me especially to the Talmud and to Rabbi Shimon, up to your writings, which look this issue in the face openly and subtly, to clarify it for our hearts, define it, and weigh it. “Look and answer me, Lord my God; give light to my eyes, lest I sleep the sleep of death.”
Why delete it? Very interesting reflections.
All right.
I really do understand the intuition to say this, but I would definitely also understand someone who argued that as long as the reasoning is not statistical, then it is irrelevant. So my question is: where did the Sages learn that one should rely on legal reasoning rather than statistical reasoning?