Q&A: Changes in Jewish Law
Changes in Jewish Law
Question
The Rabbi, as is well known, argues that a halakhic ruling that was formed on the basis of a mistaken or irrelevant underlying assumption ought to change in light of the actual situation. My question is that this assumption suffers from the naturalistic fallacy (trying to derive an “ought” from an “is”). Who says that we even know what the underlying assumption of the Jewish law is? Even in places where it has been explained, it can be interpreted in all sorts of different ways, and Rabbi Gedaliah Nadel’s interpretations on this issue are well known—for example regarding lice on the Sabbath, where he says it is not a matter of empirical reality but of psychology, and similarly in many other topics. If so, how can Jewish law be changed on the basis of changes in reality, when perhaps those are not the causes of the law in the first place?
Answer
Nobody said so. We do the best we can, and that’s what there is. A judge has only what his eyes can see. Even if you’re worried that maybe you made a mistake, I explained that the same concern exists even if you do not interpret it that way. Maybe that’s where you made the mistake.
And this has not the slightest connection to the naturalistic fallacy. It’s just a concern about making an error.
Discussion on Answer
Although I have explained all this more than once, I’ll try to spell it out a bit, because it is clear that you do not understand.
When we are in such a dilemma, the situation is always as follows: there is an instruction X. I find for it an explanation A that seems reasonable to me. From that I infer a conclusion Y, which could be a different application of X under current circumstances, or some qualification, and the like. Therefore I indeed propose inferring Y. You challenge me and ask: how do you know the explanation is A? Perhaps there is another explanation, B, and maybe from it Y would not follow; rather X would remain as it is.
To that I answered you that, to the same extent, it is possible that explanation A is in fact correct (and there is no explanation B), and then if you follow X, you yourself will be making a mistake.
Now the question that remains is: on whom does the burden of proof lie? My claim is that the burden of proof is on you, since explanation A is reasonable by any standard. When I have a reasonable explanation, the claim that perhaps despite that it is not correct and there is some other explanation B that nobody can point to is merely a skeptical claim. About that I say: doubt does not override certainty, and a judge has only what his eyes can see. This rule applies to any situation in which I am supposed to make a halakhic-interpretive decision. It does not deal only with judges.
The rule that passive omission is preferable applies in a situation where neither of the two options has any advantage. But here A does have an advantage. Note that according to your approach, no interpretation of anything has any place at all. It is always possible that maybe I was mistaken and maybe there is another interpretation. About that precisely it was said: a judge has only what his eyes can see. If you have a reasonable interpretation, I do not take into account claims that maybe I was wrong and there is another interpretation. To raise a genuine doubt, you have to present another interpretation that is equally reasonable. See Babylonian Talmud, Shabbat 30a, “your wife is my wife and you are my son,” and Ein Ayah there.
Now let us assume for the sake of continuing the discussion that A really has no advantage over B. You claim that in such a case one should act according to the rule that passive omission is preferable. To that I say: 1. Correct—but that is only on the assumption that A has no advantage. But as I noted, it does have an advantage, because it is reasonable. 2. Even if there is no advantage, “passive omission is preferable” does not mean one should always stick with X. Sometimes Y is precisely the preferable passive omission. For example, if the price of adopting X is more severe than that of adopting Y. Take as an example a situation in which we have a dispute whether women should be deemed valid as witnesses, and now a woman comes to testify that Reuven robbed Shimon. What does the rule that passive omission is preferable mean in such a case? To disqualify the woman as has been customary until now? Perhaps the rule is to accept her testimony and save the oppressed from his oppressor? After all, in simple factual terms, when a woman comes today and testifies, she is probably telling the truth. Therefore the factual truth is that so-and-so really did rob someone, but you claim that Jewish law forbids accepting a woman’s testimony. And I claim that it does not forbid it. Are you suggesting that because of your concern we should leave the money in the robber’s hands? Is that what “passive omission is preferable” means? Absolutely not. And we have not yet even begun to discuss situations in which the passive omission is דווקא to accept Y. There are such situations too.
What does it mean that a judge has only what his eyes can see? Who says you even have the lenses to look at this? That saying—”a judge has only what his eyes can see”—applies in places that are part of the force of his authority. It’s not that anything a person thinks, based on his own opinion, he can just decide that way. As for the concern that I may be mistaken even if I interpret it differently—maybe passive omission is preferable.