Q&A: The Current Presumption
The Current Presumption
Question
Hello. There is a dispute over whether we follow the current presumption, when there are no other presumptions or factors. What are the underlying rationales behind the dispute on both sides? Thanks.
Answer
When you look for a distinction between a presumption moving forward in time and a presumption moving backward, there are two concepts involved in the question. So naturally one should look for the distinction in one of those two concepts, or in some combination of them: 1. One can explain that the question is how to relate to the asymmetry of the time axis. If time flows forward, then presumptions should go forward. But if that is only a claim about us, and time is static, then there is no reason to distinguish between forward and backward flow. 2. But one can also explain that the question is about the presumption itself: if it is just a legal guideline, then it is not reasonable to distinguish between the two directions of flow. If there is a real assumption of continuity, then perhaps that is true only going forward.
Discussion on Answer
Because such judgment is made in Jewish law. Outside Jewish law, it is not clear that we would judge things the same way.
Why would it be that from within Jewish law we would judge such abstract things differently?
If the judgment were based on statistics, you’d be right. But a legal framework is certainly different across different legal systems. In Jewish law, such an approach was established for various reasons: simplicity, efficiency, legal truth—as distinct from factual truth. Other legal systems can establish a different approach, and so can realms outside the legal world. Think about the distinction between not saving someone and killing him. In both cases, you caused a person’s death and could have prevented it, and still legally and halakhically there is a big difference. That difference can depend on different legal conceptions.
Hello Rabbi,
How does the Rabbi understand "a real assumption of continuity"?
Seemingly, if there were a real assumption of continuity here, we should have seen this statistically—that the option indicated by the prior presumption would occur more often, no?
I don’t understand the question. There is no real assumption of continuity here. This is a legal assumption.
That is exactly the question. If it is a legal assumption, then that is a "guideline," in your wording above. What is the second possibility of "a real assumption of continuity"?
I didn’t understand the question. The possibility of real continuity means exactly what it sounds like—that it is actually true statistically. A possibility which, as stated, is not correct.
Hello Rabbi, and sorry for the pestering,
What the Rabbi wrote to explain the view of one who holds that we do not follow the current presumption—because he understands presumption as a real assumption of continuity—is that meant to explain that opinion even though that assumption is not actually correct?
When I wrote "a real assumption of continuity," I did not mean something statistical. The guideline is to view it as though this is the truth, and not merely as a guideline. Something like this comes up regarding the mother’s presumption—whether it helps for the daughter. On the assumption that the presumption clarifies the truth, the mother is fit, and consequently so is the daughter. If it is only a guideline, then not necessarily. And there too it is clear that the presumption does not actually clarify. That side is to view it as though it were clarifying reality.
Thank you very much, Rabbi, now I understand.
Why treat the guideline as though it were the truth—because it gives us a more coherent picture?
(There is no contradiction between the mother and the daughter, or between parts of an animal, because we rely on the same presumption.)
That is, of course, the general rule of a guideline. The discussion is what the guideline is: whether to relate as though this rule has also clarified the truth for us—it is much more legally sensible not to make distinctions between rules of clarification—or not. It is indeed more coherent.
Thank you. Since we’ve come to this, the concept of presumption is not necessarily halakhic / of Jewish law. A question about judging an unclear reality could affect various fields. So why is the discussion about the form of perspective considered Torah study, rather than a philosophical discussion?