Q&A: A Priori and After the Fact
A Priori and After the Fact
Question
How should one understand this phenomenon that in the halakhic system there is a distinction between the law a priori and the law after the fact? It does not appear in any other normative system!
I would understand if they told me that the law a priori is X, but in a certain situation where you cannot fulfill X, then the law is Y. But that is what is called coercion / circumstances beyond one’s control.
Here Jewish law tells me, from the outset, that the a priori rule is X and after the fact it is Y. How can that be? Isn’t this an outright lack of coherence? I can accept it when they tell me "forbidden, but exempt." Here I can understand that the act remains forbidden even after the fact, except that there is no sanction for it. But when they say "a priori forbidden, but after the fact permitted" (for example, a woman whose husband drowned in waters with no visible boundary), how can that be?
Answer
In no other system will you find a law without a punishment attached to it either. Jewish law assumes there is divine judgment. When they tell you something is forbidden a priori, they mean: do not do it, but if you did it, it does not become forbidden after the fact. If you did something that is forbidden a priori, you will be punished. What problem do you see here?
Beyond that, in the cases I recall, the a priori prohibition applies to the act, while the after-the-fact permission applies to the result. So there is no connection and no contradiction between the two. For example, it is forbidden to produce mixed fruit plantings, but the produce itself does not become forbidden. Why do you think there is a contradiction here?
I did not understand what you wanted from the example of a woman whose husband drowned in waters with no visible boundary.
Discussion on Answer
Yes, but there are also permissions "in pressing circumstances," or "a priori one should be careful," and "one who is stringent will be blessed."
The Rema writes (I do not remember where) that everywhere they permitted in a case of need, the intention is that according to the basic law it is permitted, except that they were stringent because of the views of some halakhic decisors, and in a difficult situation they revert to the basic law. But it seems to me that nowadays halakhic decisors do not really relate to it that way; rather, in a difficult situation, "it is worthwhile to rely on it in pressing circumstances." This is a mode of conduct that is not really possible for someone who knows the law itself. But it seems to me that it arose in a reality where a person does not see himself as fit to issue a halakhic ruling, but only to rely on the opinions of others ("he followed the stringent view, he followed the lenient view"), and so a reality is created in which one can estimate the price against the risk. Still, this needs explanation, and at the very least there is a need to distinguish to what extent the view that was not ruled in accordance with was rejected because of difficulties in clarifying the Talmudic passages, and to what extent not.
I do not see the difficulty. We are dealing with evidence that is not absolute, so a priori she should not remarry on that basis, but it is not enough to remove her if she has already remarried. Likewise, a migo helps one retain money but not extract it. And similarly, one witness can obligate an oath but cannot extract money.
See a short overview here: https://www.etzion.org.il/he/talmud/seder-nashim/massekhet-yevamot/%D7%99%D7%91%D7%9E%D7%95%D7%AA-%D7%93%D7%A3-%D7%A7%D7%9B%D7%90-%D7%9E%D7%99%D7%9D-%D7%A9%D7%90%D7%99%D7%9F-%D7%9C%D7%94%D7%9D-%D7%A1%D7%95%D7%A3
What I wanted from that example was precisely to reject, from the outset, your claim in the "beyond that." Indeed, there are cases where the a priori ruling concerns the act and the after-the-fact ruling concerns the result (for example, a priest marrying a divorced woman: it is forbidden, but the betrothal takes effect, and therefore he must give her a bill of divorce in order to divorce her, because they are still living in a forbidden relationship). But I am asking about cases where the act is forbidden a priori and permitted after the fact, such as a woman whose husband drowned in waters with no visible boundary, where a priori she is forbidden to remarry, but after the fact she is permitted to remain married (that is, in addition to the fact that the betrothal takes effect, she also does not need to divorce afterward, because she and her current husband are not living in a forbidden relationship, since after the fact it is permitted).
The problem I see is simple and direct. Either an act is forbidden or it is permitted. Logically it cannot be both. You can say that X is forbidden, but you were under compulsion, so fine. But that is called coercion / circumstances beyond one’s control. The concept of after the fact says more than that. It says that a priori it is forbidden, but after the fact it is permitted. But that is hard to accept. Make up your mind: either it is forbidden (with mitigating circumstances) or it is permitted (with a higher standard beyond the strict letter of the law). But not both.