Halakhah and Phenomenology – Chazaqah

At this point we’re so far mid-stream, that unlike the previous post, I’m not going to summarize the basic thesis or even pretend to try to translate terms already used. Instead, I will just point out the conclusions so far with respect to birur from just the last two posts (parts 2 and 3). Then we’ll discuss the concept of “chazaqah” and conclude with an observation of how these rules of birur interplay.

There are two sorts of logic used:

Qavu’ah logic: the reality was once experienced, so the halakhah was once established, but now unknown. This includes cases of qavu’ah, eidus and hapeh she’asar, so far. The doubt remains a doubt, and therefore is ruled stringently if in Torahitic law, and leniently in rabbinic law.

Parish logic: the scientific reality is within the realm of human experience, but never actually was experienced. Therefore, people relate to the item in terms of personal doubt. It’s the doubt that becomes the topic that we decide halakhah upon. Rov isn’t what is more probable as treated in a mathematical, statistical, way. It’s not estimates about scientific reality, it’s mental attitude. And since people do think in terms of “maybe” and probably — including the possibility of believing contradictory maybes or probabilities at once — in these cases majority is considered.

Chazaqah

In normal situations of testimony, the words of a witness (or, via migo, those of a litigant), by establishing that the reality was observed, put us in the realm of qavu’ah as opposed to that of parish. Once testimony is accepted, rules for resolving a safeiq by allowing certain assumptions about the underlying situation (e.g. rov) become irrelevant.

One class of rules of birur, doubt resolution, is chazaqah. There are two subcategories of chazaqah (the following terminology is that of the Revucha diShmaatsa on the Shev Shma’atsa cited below):

1- The first is chazaqah dimei’ikara, where we assume that things remain the way they were last perceived until someone experiences otherwise. For example, a chalaf (knife used for shechitah) is supposed to be checked before each shechitah), but if it wasn’t the meat is still kosher. The knife has a chazaqah of being kosher since the last time it was checked. If the knife is lost and can’t be checked, the meat is kosher.

1b- If the knife is checked, and is found to be flawed, then the chazaqah is called a chazaqah de’ikka rei’usa (a chazaqah where there exists a flaw). Which in general would still have some significance (Shev Shmaat’sa 1:7,8). However, here it is trumped by the chazqah the meat holds, that before it was slaughtered it wasn’t kosher. (Rambam Hil’ Shechitah 1:24, Shulchan Aruch YD 18:11)

2- The second kind of chazaqah is the chazaqah disvara. These are rules of nature or human nature that we can presume were obeyed. An example is “ein adam chotei velo lo”, a person won’t sin unless he’s trying to personally benefit from it.

I think these two kinds of chazaqah actually operate on two different levels.

According to the Shev Shma’atsa (6:22), of the two, only chazaqah dimei’ikara has authority in the face of two conflicting sets of eidim. Meaning that if two witnesses testify for the prosecution and two testify for the defense, but an initial state was once known, we still assume the items involved are in their initial state.

Chazaqah disvara, the Shev Shma’atsa continues, adds no credibility to that side’s argument beyond the other. If the defense not only has witnesses, but his side of the case is also supported by a lack of motive (as we said “ein adam chotei velo lo“), it is still considered by the court to still remain a balanced dispute.

Why the difference?

A chazaqah dimei’ikarah is a situation where reality has been experienced. The chazaqah tells us not to reopen the doubt. It therefore operates in the same domain as qavu’ah and as testimony. If halakhah must address the world as experienced, this is how people last experienced the world.

It’s like leaving a room in which someone is sitting in a chair reading. When you come back 8 hours later, you see the person in the same chair with the same book. Our natural assumption is that the person is still reading. It is possible, though, that they got up and only returned shortly before we did — but it’s not natural to consider that possibility; it’s at best a second reaction. We relate to objects given their last known state, and assume no change until we have reason to believe otherwise. That is the reality, the world-as-experienced, and thus halakhah is determined on the same level as the conflicting witnesses.

A chazaqah disvarah is much like rov. A rule of thumb tells us which possibility is the more likely — when in doubt, assuming things went as they usually do. Chazaqah is even stronger than that, giving us the power to assume things went according to the norm, and we needn’t even consider that this might be the exceptional case.  But still, it’s parish logic.

Once we have eidim, though, we can’t look at the situation in terms of the various alternatives. One and only one of them was experienced by whichever eidim are being honest, and therefore a halakhah for that specific case already exists. Chazaqah disvara resolves the wrong kind of doubt for this situation, and therefore adds nothing to the argument.

But beyond establishing that a chazaqah disvara is a kind of super-rov, and using that to explain the Shev Shmaatsa’s distinction, I don’t have much to say about it. So in the next section of this post, we will only be discussing the chazaqah demei’ikara, and therefore I will follow the usual convention of not using an adjective to distinguish the two.

Interaction of Rules

The mishnah on Qiddushin 64 discusses the case of a dying man r”l who says he has children. Abayei adds to the case (because of a contrast to a halakhah in a related beraisa) that we didn’t know anything about his having children. Therefore after his death, she stands in a chazaqah of not being a yevamah — she obviously wasn’t one before he died!

The man stood to gain nothing from his claim. This is a case of “mah li leshaqeir” (“what do I gain by lying?”) which is similar enough to migo to be considered a subtype by numerous rishonim ad loc. Credibility is given to the claimant again because assuming he is lying would make his action irrational. Here it’s a different reason then the existence of a better lie (migo) but the point is the same.

So, permitting her to remarry is supported by a chazaqah, but prohibiting her is a migo (or a migo-like structure).
The man is believed. The conclusion of the gemara is that a migo “trumps” a chazaqah.

This fits nicely within the model we have been developing. The presumption of the chazaqah dimei’ikara is only a chazaqah, a presumption, and can only apply in the absence of a new, credible po’al experience. It tells us to continue with what was last perceived about the reality.  Migo established a new observation; the claimant establishes a new perception, and thus a new halakhah.

Notice, this means something very unexpected.

1- We just said that given a chazaqah supporting one side’s position, and a migo supporting the other, the migo has the stronger claim.

2- In the previous section we saw that migo in the context of conflicting testimonies has no weight (as we said earlier, this is because we don’t compare quantities of testimony);

and yet:

3- chazaqah in the case of conflicting testimonies does factor in.

To highlight the oddity, note that cases (2) and (3) imply that:

3b- If the chazaqah and the migo conflicted in the situation where contradictory testimonies were also presented (trei utrei), the migo would be ignored, the chazaqah would not. Unlike case (1), the same situation in the absence of trei utrei, where migo would have priority over chazaqah!

This non-intuitive conclusion can also be explained using our model for qavu’ah logic. The two rules differ on the time of the reality that is established.

In the case of a chazaqah, we are establishing a halakhah based on the perception at an earlier point in time than the moment in question. When we have no later perception, we have to carry that reality forward in time. People naturally assume the world didn’t change — only until they learn otherwise.

The witnesses are in conflict about the reality at the time in question. Migo as well is about the present, not the past. Therefore all of these carry more evidentiary weight than a chazaqah from the past.

On a given question of qavu’ah, where we know something was perceived but we don’t know what, we said that quantity doesn’t matter. Therefore, with the migo added into the balance of eidim, it’s like more eidim added to the balance — the sides are still considered equally. (Again: This is the notion that once halakhah is established, we don’t play “Russian Roulette” with minority chances of violating it. It is only in considering the perception of a reality that we allow the fuzziness of doubt be the reality, and thus consider which is more likely as a factor.)

And so, revisting this odd triangle with rationals:

1- Migo usually has a stronger claim than chazaqah because it’s about a perception of reality closer to the time in question.

2- But it has no weight once the question of that later reality was rendered unresolvable by a dispute over what it was.

3- In which case, we can still fall back on the earlier perception, chazaqah.

Conclusion

And all of this halachic discourse of the past three posts was grounded on the idea that we resolve doubt in reality psychologically, including thinking “it probably was…”, whereas we do not in doubt in something that was attested to — either subsequently lost in a mixture (qavu’ah), time went by and something might have changed (chazaqah demei’kara), or we don’t know which person really accurately is reporting their perception (conflicting testimony or the claimant is a litigant but migo or hapeh she’asar gives him some credibility).

Because we base halakhah on how it will cause people to react, not on unexperiencable objective realities that will do little to help a person ascend the Mountain of G-d.

Aggadic Stories, History and Halakhah

Someone raised on Avodah the following question (see the posts listed here under two different subject lines, “Kinyan on Shabbos??” and “Kinyan on Shabbos? (Har Sinai)” ). The first Shavuos was on a Shabbos. Didn’t we acquire the Torah — doesn’t this imply a qinyan on Shabbos — which is prohibited? What about our being made avadim, servants, of the Almighty? And the event is compared to a wedding, which we don’t perform on Shabbos.

I answered on-list on a technical level — a qinyan is allowed on Shabbos if it’s for the sake of a mitzvah or according to others for the sake of Shabbos. And what could be more for the sake of Shabbos than giving us the covenant that includes Shabbos? (It was previously commanded at Marah, but it’s the version given at Horeb that is binding today.) The Rama famously performed a wedding that was scheduled for Friday but ran late into Shabbos. (There were extreme circumstances, but still, he permitted it.) Etc…

However, I think there is a meta-issue that is more significant to discuss, and therefore I’m elaborating on the Avodah post where I raised that issue here.

The comparison of matan Torah to a qinyan, a wedding or avdus isn’t necessarily halachic. It is more reasonable to think it’s on an aggadic level, and this whole question doesn’t really begin.

Also, given my attitude toward the historical accuracy of aggadita, I wouldn’t assume that placing Matan Torah on Shabbos is a historical claim. Nor would I assume it isn’t. The point is to provide a, not a study of history. History and legend were blindly mixed because the question is just off topic to talmud Torah.

This is actually easier to support mesoretically than assuming that these narratives were intended as historical assertions (in addition to their metaphor). See R’ Daniel Eidensohn’s “Da’as Torah”. Despite what is presented as the “frum” answer today, this is the position of R’ Saadia Gaon, the Rambam, his son R’ Avraham, the Maharsha, the Maharal, the Vilna Gaon, R’ Hirsch, R’ Yisrael Salanter, etc… Because someone might be surprised that this is the actual normative traditional attitude toward aggadita, I’ll give two sources that I already had on-hand.

The first I posted recently. With respect to aggadic stories, the Rambam (introduction to his commentary to chapter Cheileq in Sanhedrin, a little before his list of the 13 articles of faith, identifies three categories of people, two wrong camps, and one right one. The erroneous approaches are: (1) Those who take all the fantastical claims of the stories as literal, find them absurd, and ridicule the Torah for it; and (2) Those who take them as literal, take them seriously, and therefore believe in an absurd distortion of the Torah. The correct approach is (3) to realize that the Torah convey deeper truths via hint and riddle. (Which he laments is a class of students of the Torah that is small and far between, a class in the sense that “the sun is in the class of all suns.)

And from Rav Yisrael Salanter:

We are living now in the period following the German conquest of several districts of France. The German Kaiser has now become the mighty sovereign of many isolated provinces, which he has united into one mighty state. In order to immortalize its victory, the German government changed the appearance of the eagle in its national emblem, making it two-headed instead of one-headed (as it was until now). Historians, writers and poets praise the conquest with exaggerated descriptions. I myself have read the lines, “The German eagle has spread its wings from Memel to Metz. One of its claws grips Koeln, while the other is in Baden.” Instead of detailed and realistic descriptions of international wars, what they record for posterity are symbols and hints that are only well understood by the generation in which the events occurred.

With the changes of time, memory of the events will fade, and all that will remain will be the terse symbolic account. A long time from now, people will read that in German a two-headed eagle spread its wings for 500 miles. Perhaps they will laugh at this, just as they laugh at [the stories in] the aggada.

The same thing happened to us. Chazal used terse symbolic language to describe the events of and before their time, and they recorded the Torah’s wisdom and mussar in epigrams. These sayings were only understood by the people of their generations, and by mequbalim of later generations.

The notion that the forefathers observed the entire Torah, even Rabbinic rulings, is also an aggadic story, and is no more likely or not to be historical. But it’s not even made about the generation in question.

ALL THAT SAID, it seems to be the rules of aggadic stories, even the ones that aren’t historical, that they do not have any of the “good guys” doing something we wouldn’t. And so we still find commentaries trying to justify things on a halachic basis. This shouldn’t be taken to mean they assumed the events actually occurred!

Which was the thing I was trying to do here. I don’t think there is any reason to believe there actually was a qinyan of any sort done on Shabbos as part of Matan Torah. Still, because Chazal use that metaphoric language, it must be able to work halachically — or else they would have chosen different metaphors.

Of Qorbanos and Flowers

I’m curious to know how many of us who believe we’re supposed to want a restoration of the sacrifices actually anticipate it. I must confess that I’m too 21st cent for that, and generally during Mussaf or Qorbanos (or parts of the liturgy that discuss sacrifices) my thought is asking G-d to help me learn how to want them, to realize what I’m missing on an emotional level.

On an intellectual level, I think of it in terms of a parallel to buying my wife flowers. She doesn’t need the flowers. Most of the time, she never even looks at the flowers, and doesn’t even notice them at the Shabbos table except when they get in the way of seeing someone. (Of course, other wives could well appreciate their beauty more, but I think the next point still stands.)

Giving my wife flowers isn’t about the flowers, but about the giving. Human beings in a relationship have a need to give. And we feel more appreciated and loved when we see someone make the effort to give. While we all like our toys, and it’s not only the thought that counts (in real, non-idealized people), the thought is much of the gift.

We also like to share meals with those we love. There is something very primal about “breaking bread together”.

Look how the Torah describes sacrifices. They aren’t first commanded. Qayin and Hevel naturally come up with them. Noach is overcome by gratitude (and perhaps a hefty load of survivor guilt, which would explain his desire to lose himself in wine) and makes an offering, etc… The laws of qorbanos don’t come with a claim that they are the invention the notion of offering something to G-d. Rather, they channel and embellish a natural inclination.

If we were feeling an equally deep emotional attachment to G-d, we would also feel this need to give. Not only meaningful gifts, but also gestures as gestures. It is only when the gesture is used instead of the meaningful gift, when we offered sacrifices in an attempt to keep G-d happy while we took advantage of the poor, the widow and the orphan, that G-d put an end to them. A bunch of roses won’t wallpaper over having an affair. Instead it would increase a wife’s anger at her husband’s transparent attempt to manipulate her. Is this not the metaphor of Hoshea who is told to marry a prostitute (either in reality or within the prophetic vision)  “‘כִּי-זָנֹה תִזְנֶה הָאָרֶץ, מֵאַחֲרֵי ה — because the land is prostituting itself from after G-d.” (Hoshea 1:2)  As Hashem tells Yeshaiah, “לֹא תוֹסִיפוּ, הָבִיא מִנְחַת-שָׁוְא–קְטֹרֶת תּוֹעֵבָה הִיא, לִי; חֹדֶשׁ וְשַׁבָּת קְרֹא מִקְרָא, לֹא-אוּכַל אָוֶן וַעֲצָרָה. — Do not conitnue to bring me empty bread-offerings, incense of disgust it is do Me, the new month, Shabbos and the calling of the holidays — I can no longer stand it alongside the sin and iniquity!” (Yeshaiah 1:13)

For the Torah to tell us to curtail that need to make gestures of affection, to give gifts just for the sake of giving and to share a meal (as much as possible) would be to force an artificiality and lack of authenticity on the notion of loving G-d. Instead, Vayiqra layers more meaning atop the basic primal notion.

As I said at the top, standing here after two millenia of exile, I no longer feel driven by a need to give to Him. There is something incomplete in my ahavas Hashem, love of G-d. I thank him though that He brought me to the point that I at least feel sad over that incompletion.

Halakhah and Phenomenology – The Unperceived

Back on April 6th, I posted my previous entry to this series. The notion I’m exploring here is that:

(1) Halakhah is about changing the one who performs it (as the Chinukh puts it “האדם נפעל לפי פעולתו”) and therefore

(2) One can understand various aspects of halakhah by thinking of it in terms of the world as it is experienced or should be experienced, rather than looking at things in more scientific terms.

In part 1, I explored the basic premise and two categories:

  • Cases where the scientific reality is outside the realm of possible experience: e.g. microscopic bugs and maggot eggs.
  • Cases where a person’s associations are normal human nature, not to be weeded out, but do not reflect realities. The examples here were the laws of milchig, fleishig or treif utensils, and the “return of the cycle of the sun” of birkhas hachamah.

In part 2, I started looking at the rules of birur – how to determine what to do in cases of doubt. This topic will continue here (part 3) and in the next post in the series (as I now plan things). The introduction, though should really be read in full. The key point that must be kept in mind for all three posts about birur is:

Rav Aqiva Eiger (teshuvah #136) divides these laws into two types:

  • ways of applying the halakhah to an uncertain situation and
  • resolving what to do when the halakhah is uncertain

In other words, the doubt could be about the reality, and now we need a halakhah, or the halakhah could have once been set, but now we don’t know what it is.

[T]wo principles. The first is “kol qavu’ah kemechtzah al mechtzah dami” (anything that’s established is like half against half). It is specitically this rule that we There is no playing odds, a doubt is a doubt whether it’s 50:50 or 90:10. For Torahitic laws we would have to assume the stricter possibility, and for Rabbinic ones, the more lenient side.

The other rule is “kol deparish meirubah parish” (anything that leaves the group [can be assumed to have] left the majority). Here we see that majority is a deciding factor. The first case is called “qavu’ah” (established), the second “parish” (separated). How does “qadu’ah” differ from “parish“? When is majority ignored, and when is it a determining factor?

Tosafos (Zivachim 72b, “Ela amar Rava”) write “qavuah only applies to a thing that is known”…

Combining the two: when no one ever knew the situation, we can rely on majority to determine reality. But in cases where there were witnesses or the state was once known and now forgotten, the halakhah was once established (qavu’ah) and we cannot use majority to determine doubt in halakhah.

Part 2 discussed cases of where the reality was once witnesses: actual qavu’ah, testimony (which side has more witnesses doesn’t matter, once both has a set of at least two),  migo and hapeh she’asar. This post will address how halakhah uses the concept of majority in the context of the perceivable that wasn’t actually perceived.

Rov

Suppose there are three pieces of meat, two of which came from a kosher source, and one from a non-kosher source, but we don’t know which is which. This is a case of parish, so we can use rov — assume that any given piece came from the majority (rov)– it’s kosher.

Here’s the strange part: Since each piece is kosher, each can be eaten, even one after the other! Tosafos (Chullin 100a), Tosafos Rid (BB 31b), Rashba (seen in the Beis Yoseif YD 109) hold that this is true ONLY if eaten at separate times., but the Rosh (Chullin ad loc, 7:35) permits even a stew containing the three combined! How can this be? After all, when all is said and done, wasn’t one of the pieces of meat the non-kosher one? Didn’t the person, at some point in time, eat that non-kosher piece?

R YB Soloveitchik (Yarchei Kalah Shiur, August 1982) discussed the topic of bein hashemashos (twilight) as seen in halakhah. The case he brought was that of an esrog that is used only for part of Sukkos. The gemara concludes that since it was sanctified for a mitzvah on a given day, it may not be used for personal enjoyment (e.g. eaten) on that day. And bein hashemashos (Bh”Sh) is included in that day. However, there is a safeiq whether Bh”Sh is part of the previous day or part of the next day. Therefor, since it is holy for Bh”Sh, it is not to be used the entire next day either.

Rav Soloveitchik points out the obvious dilemma. There are only two possibilities:

  1. Twighlight is part of the first day. In which case, the esrog is holy and prohibited until the end of the first day, which would be the end of bein hashemashos. Or,
  2. It is part of the second day. Then, the esrog should be prohibited until the start of Bh”Sh.

If you want to play safe, then prohibit personal use until the end of Bh”Sh. Prohibiting it the entire next day is declaring bein hashmashos to be actually part of both days. It continues holiness from the previous day, and thereby continues it into the next as well.

According to Rav Soloveitchik, this is not just an oddity about Bh”Sh, but a point about safeiq in general. Safeiq does not mean “either A or not-A, but I don’t know which”. but is itself a third valid state. Similarly, he writes in Ish haHalakhah that halachic logic is multivalent, it isn’t the simple true-vs.-false of Aristotelian logic. There is no law of excluded middle asserting that every claim must be either true or false and no other alternative exists.

We also have indication from the language of the gemara that safeiq is treated as a combination of the two options. When describing the widow of a kohein that may or may not have lineage that would invalidate him for that role, the expression used is “almanas isah”, literally: “a dough’s widow”. (Kesuvos 14a. The rishonim ad loc debate the nature of the uncertainty in this case.) The doubt is called a “dough”, a mixture.

We also saw non-Aristotilian nature of halakhic logic when looking at Rav Tzadoq haKohein’s explanation of “eilu va’eilu” and halachic plurality. I quoted from (Resisei Laila, #17).

Whenever a new thing about the Torah is found by a wise person, simultaneously arises its opposite… When it comes to the realm of po’al (action), it can’t be that two [contradictory] things are true simultaneously. In the realm of machashavah (thought) on the other hand, it is impossible for a person to think about one thing without considering the opposite.

This idea allows us to answer our two questions of birur: how all three pieces of meat may be eaten, and how bein hashmashos can be treated as though it is the part of both days. In a case of parish, where the physical reality was unknown, the person inevitably reflects on both possibilities. As Rav Tzadoq said about machloqes – in the world of the mind, we entertain both possibilities at once. The questionis therefore not one of unknown physics, but one of known perceptive state — the person will be mentally conflicted.

In the case of Bh”Sh, twighlight is equally thought of us both days, and therefore is both. That’s how we experience it.

In the case of the three pieces of meat, the person’s perception of each is “probably from a kosher cut”. That is the reality we must judge. It is true for each peice, therefore each peice is kosher. And then the Rosh says this is true eternally, while most rishonim say that if we combine them into a stew, our perception changes, or at least halakhah wants to encourage it to and therefore the halakhah does as well.

The rule for parish is not the statistics of a particular possible scientific, objective, realities, it’s a psychology of “probabily good meat” that is assigned a halakhah of definitely kosher.

Hod shebiGevurah

Given that we’re a little shy on prophets right now, we have to find G-d’s word as He relays it as the Author of history. Looking at these “coincidences” He allows to crop up.

One of them is the convergance of meanings the Jewish People assign to the 27th of Nissan.

In the sefiras ha’omer, today is day 12, which the Qabbalists teach corresponds to the sefirah of Hod as it is manifest as part of the week’s sefirah of Gevurah. In other words, somehow day 12 has/represents the aspect of Divine Will which we perceive as the humility inherent in self-control.

More recently, most of the Jewish world assigned today as a day to remember the Holocaust. I am not getting into the question of its religious significance, if any. Looking at this “coincidence” as simply a historical artifact created / permitted by the Almighty…

During the omer, my email signature generator poses thought-questions related to the sefiros of the day. Today’s is “Hod shebiGevurah: What aspect of judgment forces the “judge” into submission?” And it struck me.

Nothing speaks to “Where was G-d during the Holocaust?” more than Hod shebiGevurah. G-d “held himself back” from acting, even though it caused the world to question Him.

R’ Moshe Feinstein: Blessing the sun – and a child

The following was outright copied from Da’as Torah, a blog maintained by R’ Daniel Eidensohn (who, among other things, is the compiler of Yad Moshe, the index to Rav Moshe Feinstein’s responsa, “Igros Moshe”). It was just too beautiful not to repeat:

Every 28 years there is a special blessing made on the sun. It is in commemoration of the sun returning to the position it was in when the world was created. On one of those special occasions a large crowd gathered in front of Rav Moshe Feinstein’s apartment building on the Lower East Side of New York. It was just before sunrise and they had come to say the blessing with him.

However shortly before the designated time for saying the blessing, a father brought his young son to Rav Moshe’s apartment to receive a beracha from the great sage. Time was short but he just wanted to take advantage of this opportunity. Rav Moshe greeted them warmly and then seemed agitated about something. “I am sure your son – like other children – would like to have a candy but I can’t remember where my wife put it.”

He started opening and closing the kitchen cabinets trying to locate the candy. The crowd was getting impatient and yet Rav Moshe kept looking. Rav Moshe was focused on one thing – the happiness of that child. However being short in physical stature he couldn’t reach the upper cabinets. So he climbed up on the kitchen counter to reach them and he continued systematically searching. Finally he found it and climbed down from the counter.

He quickly gave the child the candy – and a beracha - and then hurried downstairs. The opportunity to bless the sun – while important – could wait a little while. The greater importance was making sure that the child had a pleasant and memorable experience meeting a genuine talmid chachom.

Halakhah and Phenomenology – The Actually Perceived

In the previous post, I presented the idea that

The Chinukh repeatedly explains various mitzvos by explaining “ha’adam nif’al lefi pe’ulaso — a person is affected according to his action.” Contemporary hashkafos differ over what halachic life is supposed to cause, whether the ideal is better described as “wholeness”, perfecting the image of G-d, or “attachment” to G-d…. But notice that both agree in describing the role of halakhah in terms of the change is causes on the self — whether perfecting him in a mussar sense, refining him in a Hirschian sense, bringing him experientially in a relationship with the A-lmighty, as Chassidim do, etc…

One thing this implies is that halakhah need not be concerned with determining an objective reality. Rather, it has to deal with that which has impact on the person — the world as it’s experienced. Perhaps this is why the realia to which we apply halakhah is called metzi’us, literally “what is found”, and substantive elements of the metzi’us are said to have mamashus, they can “be felt”.

Then I discussed the cases of where the objective reality was outside of the realm of perception (e.g. microscopic mites in our food), or that there is a perception that doesn’t have an external objective cause, but are ubiquitous to human psychology. The latter was more speculative, using this notion as a means of explaining what ta’am is in the halakhos of kashrus of mixtures and in understanding the point of birkhas hachamah.

In following posts (with perhaps a break for timely topics, with birkhas hachamah and Pesach nearly here), I would like to discuss cases of ignorance, how to rule when the realia of a situation isn’t known. I believe that in this realm too, the notion of identifying the realia with the world as people can observe it is helpful in understanding the laws of birur (clarification [of doubt]).

Rav Aqiva Eiger (teshuvah #136) divides these laws into two types:

  • ways of applying the halakhah to an uncertain situation and
  • resolving what to do when the halakhah is uncertain

In other words, the doubt could be about the reality, and now we need a halakhah, or the halakhah could have once been set, but now we don’t know what it is.

Before looking at each category separately, let’s look at the problem Rabbi Aqiva Eiger was addressing. There is an oft quoted beraisa that contrasts two kinds of halachic uncertainty.

[A city has] nine stores all of which sell shechted meat, and one store that sells neveilah meat (meat killed in other ways). Someone buys from one of them, but he doesn’t know which of them he bought from. His doubt makes the meat prohibited.

But if the meat were just found, one may follow rov (the majority).

-Pesachim 9b, Kesuvos 15a, Chullin 95a, Niddah 18a

The beraisa contrasts two principles. The first is “kol qavu’ah kemechtzah al mechtzah dami” (anything that’s established is like half against half). It is specitically this rule that we There is no playing odds, a doubt is a doubt whether it’s 50:50 or 90:10. For Torahitic laws we would have to assume the stricter possibility, and for Rabbinic ones, the more lenient side.

The other rule is “kol deparish meirubah parish” (anything that leaves the group [can be assumed to have] left the majority). Here we see that majority is a deciding factor. The first case is called “qavu’ah” (established), the second “parish” (separated). How does “qadu’ah” differ from “parish“? When is majority ignored, and when is it a determining factor?

Tosafos (Zivachim 72b, “Ela amar Rava”) write “qavuah only applies to a thing that is known”.  Rabbi Aqiva Eiger explains that the piece of meat bought from the known store had an established halakhah. The buyer knew the state of the meat. We therefore call the halakhah qavu’ah” — established. However, now it got mixed up, and we don’t know what that halakhah is.  The doubt is in the halakhah.

However, if the meat is simply found, then the uncertainty begins one step earlier. We don’t know the state of the meat. The doubt is in the reality, what part of the set this item was parish – separated from.

The Perceived but Unknown – Qavu’ah Logic

Two are like 100

When a matter of issur veheter (permissibility vs. prohibition) is to be resolved, we can rely on the testimony of a single witness. Without that witness we would have a situation of safeiq, of not knowing the situation to which we need to assign the halakhah.  lose, we need a greater level of testimony. The pasuk says, “al pi shnayim eidim o al pi
sheloshah eidim yaqum davar
– by the words of two witnesses or three witnesses the matter shall be established” (Devarim 19:15). Why must Hashem write “or three witnesses”? If two witnesses were sufficient, then of course we would believe three! What does the Torah teach by using the extra phrase?

The Gemara Makos (quoted by Rashi ad loc) concludes that the extra words teach us that if more than two witnesses were to arrive, they are still to be treated as one kat (set). As a single set they have no more credibility than any other set. In the terminology normally used, “terei kemei’ah“, two witnesses have the same credibility as even 100. If a case comes to court and two witnesses testify on behalf of one side and a hundred on behalf of the other, beis din (court) gives equal weight to each testimony.

The Shev Shma’atsa says about cases where each side presents witnesses in its support, “Since we have two [witnesses] and two [witnesses] in all cases our sqfeiq is an equal safeiq, even where we have a majority.”(Shma’atsa 6, ch. 22)  This wording echoes the rule for qavu’ah, “it is like a half vs. a half”.

When two witnesses face one hundred, and we’re trying to determine which side is telling the truth, we are assuming that one of the sides is being honest. In other words, at least two people were there to perceive the reality. Our doubt over who to believe is similar to a doubt in qavu’ah, in that it’s doubt about the halakhah, not reality-as-experienced. Therefore, although it is more probable that the 100 are telling the truth, we ignore the odds.

Migo

Normally the claims of each of the litigants are treated equally skeptically. One exception is the rule of migo. If a person has a choice of two claims to win his case, and he makes the weaker of the two, he is believed. We say that had he wanted to lie, he would have chosen the best of his alternatives. For example, one litigant claims that a person borrows money without a contract. The other says he borrowed it but had already returned it. If there was not reason for the second party to admit the loan ever occurred, beis din accepts his claim. Had he wanted to lie, he would have denied the entire incident. The Ba’alei Tosafos (Bava Kama 72b) rule in the case where one side has witnesses in its support, and the other has both witnesses and mido. Had the second side come with two sets of witnesses, he would have no more credibility than the first (terei kemei’ah). Since migo is has less evidential power than witnesses, they conclude that adding migo to his case could not help him any more than a second set of witnesses would. This conclusion supports the idea that migo does not operate by some special mechanism, but rather is a modified form of testimony, a means by which the testimony of a litigant is rendered more credible.

Hapeh she’Asar

A second situation where we abide by a litigant’s claim is hapeh she’asar hu hapeh shehitir (the mouth that prohibited, that is the same mouth that permitted). Suppose we had a situation where there were three claims:

  1. A woman claims “Yes, I was once married, but I received a divorce in a given location”.
  2. Two witnesses arrive and say that there was no divorce performed at that location.
  3. Another two witnesses come and discredit the testimony of the first witnesses.

“We live by her mouth”, and she may remarry. (Yerushalmi Kesuvos 2:5) The reason being that the only undisputed claim is hers, and if we are to believe her that she was married, why not believe her that she received a divorce as well? And if we discredit her testimony, then there’s not grounds for saying she was ever married to begin with.

Unlike migo or the other situations, in the case of hapeh she’asar we need not assume the claim is true. The logic is that since discounting the testimony in its entirety would lead to the same result as believing it, there’s no reason to resolve the honesty of the claim. What hapeh she’asar tells us, though, is that we need not consider the possibility that half the claim is true, but the rest is not. (e.g. The woman was telling the truth in that she was married, but the divorce was false.)

Summary:

In the first section I explored the difference between looking for the world-as-it-is and addressing the world as we are capable of relating to it, objective reality vs. perceivable reality. Now we started exploring beyond what could be perceived to discussion how observation, the fact that something actually was perceived, changes how we related to that fact.

The Tosafos identify the case of “qavu’ah” as being one where the halakhah is established. Rabbi Aqiva Eiger makes a distinction between doubt in the reality about which we are ruling, and doubt in the ruling itself. His classification places the line at situations that were observed, in which there is a halakhah, those which were not. Thus we find that majority doesn’t play a role where the reality was observed — whether we’re speaking of the majority of similar cases or the majority of those who claim to have been observers. This will serve in interesting (I hope!) contrast to cases where the matter is perceptible, but wasn’t actually observed. In the next post we’ll discuss the question — why in these case does majority matter?

All of this relating back to the original point, the notion that regardless of how we expect the mitzvos to influence the person performing it (refining him, perfecting his intellect or his middos, brining him close to G-d, etc…) they can be explained in terms of impact on the person. And therefore, we should be able to explain specific halakhos not in light of the thing-in-itself but in terms of both how we relate to it and also how we ought to relate.

(I’m going to end here. My original plan was to cover both types of birur in one post, but I now see I’m going to need three. In the next post I shall cover cases where we use parish logic and consider issues like majority. And I see that my notes on chazaqah (presumption) in particular are long enough to warrant its own posting.)