Rabbi Meir’s Rhetoric

Rav Meir disagrees with the other sages on a number of topics involving logic.

1- When framing a tenai, a condition on a business dealing, an oath, a pledge or the like, the majority opinion and the halakhah is that for a condition to be binding, it must be stated in both the positive and the negative. In other words, the person or contract must state what will happen if the condition is met, and what will not happen if the condition is not met. So, an example conditional oath might be, “I will donate this cow to the Temple if my child arrives home in the next day, and I will not donate it if my child does not arrive by then.” Rav Meir holds that the tenai is binding even without the second, negative, clause.

It would seem that Rav Meir is a believer in the dictum that “the exception proves the rule”. That if I say “I would never eat a garlic bagel” it implies that in general I would eat bagels, which is why I singled out the particular kind I wouldn’t eat. Whereas from a strict logical point of view, if I didn’t eat bagels at all, it remains true that I wouldn’t eat garlic ones either. Rav Meir is basic himself on a rule of rhetoric — I wouldn’t have phrased it as an exception if the rule (that I generally do eat bagels) wasn’t true. So to Rav Meir, the positive implies the negative condition.

The Chakhamim, on the other hand, are being more formal about it. Not judging it by laws of rhetoric, but by laws of logic. And therefore the negative clause DOES need to be spelled out explicitely.

This dispute in oaths and contracts. When it comes to interpreting Chumash, all the sages do deduce the negative case from the positive one. Perhaps because the Torah’s parsimony with words makes it even more compelling to assume that the conditional wouldn’t be there if the case weren’t the exception to the rule. (The exception thus proving the existence of the rule.)

The pasuq states (Shemos 22:10)

שְׁבֻעַת ה תִּהְיֶה בֵּין שְׁנֵיהֶם אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ וְלָקַח בְּעָלָיו וְלֹא יְשַׁלֵּם.

The oath of Hashem will be between the two of them, if he did not put his hand against [i.e. break] his peer’s work, then the owner shall accept [the oath] and he need not pay.

If a rentor takes an oath that he didn’t damage the rented item, he need not pay the owner. But what if he didn’t take an oath? For example, what if he were someone already suspect of making false oaths, and the court doesn’t want to tempt him into lying again to make an oath that isn’t trustworthy anyway? The Yerushalmi Shavuos 7:1 (vilna 33b) opens by assuming that Rabbi Meir would have to conclude that the verse implies that in that case, the rentor would indeed have to pay. After all, stating a condition implies that if it isn’t met, the reverse conclusion holds. But Rabbi Chiya concludes that in when it comes to verses, the Chakhamim and R’ Meir would agree.

Perhaps because rules of rhetoric only apply to how people speak. And so, when we talk about the exception proving the existence of the rule, this is only when a person bothers making a condition. The rules of rhetoric for the chumash are the rules of derashah – they operate somewhat differently. Even under Rabbi Yishma’el’s “diberah Torah belashon benei adam – the Torah is written in human language. That rule speaks to what kinds of things are subject to derashah, the meanings of phrases, not analyzing syntax. {Although, Rabbi Meir is a student of Rabbi Aqiva, Rabbi Yishma’el’s disputant on this point.) Rabbi Yishmael says that the meaning of a word includes idiom; Rabbi Meir goes further and says it even includes usual intent.

2- A second case is when there is a list of clauses in an oath, or a number of contracts on one parchment with one set of witnesses’ signatures (Yerushalmi Shavuos 26b). Rabbi Yehudah holds that if a person swears not to eat “wheat and barley and spelt”, with the connecting vav meaning and between them and he happens to eat all three, he sinned only one time. However, if the grains were simply listed with no conjunctive — “wheat, barley, spelt” — then each of three is its oath, and therefore eating all three types of grain would be three violations. Rabbi Meir says the reverse — with the vavs eating all three would be three sins, and without, one sin.

Similarly, consider the case of when two contracts are written on the same parchment, but the whole thing is only signed once, on the bottom. Rabbi Yehudah says that if the second contract begins “Ve-” (and) then the signatures apply to both contracts, but without it, the second contract is valid but the first contract is not signed and unenforceable. Rabbi Meir again says the reverse: with the ve- the witnesses only validate the second contract, and without it — both.

This also appears to be a question of logic vs rhetoric. Rabbi Yehudah feels that since the vav means “and”, it inclusion explicitly binds the two parts into one whole. Otherwise, they remain independent. Rabbi Meir is using rules of rhetoric. The fact that the person didn’t even bother pausing to connect the clauses verbally shows how tightly coupled they are in his intent. Thus, without that ve-, R’ Meir feels they are more connected.

3- There is a notion in the halakhos of contracts called an asmachta, where the clause is so outrageous, it clearly wasn’t made seriously, and since one clause of the whole contract is invalid, the contract as a whole is void. (This is a problem that needs to be avoided if a prenup were added to the kesuvah. Is the groom promising something that he had no intent of honoring because the odds of divorce seemed so outrageous at the time of marriage?)

In Sanhedrin 3:2 (mishnah, not Y-mi), the chakhamim rule that if someone promises to accept a ruling of a court that includes his father, the other party’s father, or even three cow hands, the court’s ruling is valid. Rabbi Meir says that the person can indeed reneg.

Because Rabbi Meir looks to how people talk rather than what was actually said, he has a much broader scope to the rule of asmachta than the majority opinion. Such a claim would clearly be a boast about the strength of his case, and not an actual promise to accept the ruling, and therefore Rabbi Meir takes it as such. This too is beyond “belashon benei adam” of Rabbi Yishma’el, where we are talking about idiom, not intent.

4- A case that may not seem related is whether one may neglect a minority possibility. In general, we say that if the permitted is more likely than the prohibited we can neglect the minority and assum the item is permitted. Such as if three pieces of fat were mixed up, two from areas in the animal where the fat is permissible, one a prohibited fat, one may pick a piece up and eat it. However, “Rav Meir chayash lemi’utei — Rav Meir does worry about the minority.”

This doesn’t sound like a logic issue, except that I have already suggested that Rabbinic logic doesn’t deal in true-false black-and-white questions. (In technical terms: it’s multivalent, not boolean.) So that questions of more vs. less likely would be viewed by our sages as logical ones.

It would seem that while the sages can rule that a halachic state depends on an item’s more likely physical state, but Rabbi Meir, dealing in rhetoric rather than logic, would have to worry about a person’s niggling “what if?”

More on this topic:

In The Semitic Perspective I listed a number of differences between what I called the Yefetic perspective and the Semitic one.  Differences that are sometimes so fundamental, they can group the various schools of Western, Yefetic, philosophy — whether we speak of Aristotle to Derrida — into one camp by comparison.

One of these differences is that in general, it doesn’t appear that Chazal embraced simple true-false all-or-nothing logic. In Aristotle’s world, something is either true or false, and ideas like exactly where the line is between red and purple are addressed as secondary, exceptions to the norm. It was only in the 20th century that Western Logic started exploring systems where sets have blurry edges. Like “tall” in “a tall man”. Someone who is 6’6″ is definitely tall, someone who is 5’4″ is certainly not. But what about people just around at the edge?

In Jewish Thought, it is quite the reverse — everything is a matter of degree, and all-or-nothing situations are the degenerate case where the options happen to lay at the ends of the spectrum. And this runs from Leah being called the “senu’ah”, the “hated” wife of Yaaqov, all the way through history to the Yiddishism of calling someone “not dumb” or “not ugly”. In reality Leah was not hated, although certainly less loved than Rachel. Attributes are always meant in a relative sense, it is taken for granted that the reader who sees a contrast between “beloved” and “hated” would see them as comparative, not absolutes. In my second example, the person who attempts to avoid an ayin hara by voicing a compliment in the negative is basing it on the idea that the listener will assume that their calling someone “not stupid” is because their bright, but technically the words include also the average and so no conspicuous bravado is uttered. In halakhah we find this idea recognized when we have rules telling us when we can ignore the chance that something came from the minority of possibilities (e.g. a piece of meat in a store where nearly all the butchers are kosher) or simply improbable.

Note, though, that if we were concerned with minorities, as R’ Meir does, there would be only two logical states — definitely permitted, and everything else.

This might even be connected to Rabbi Meir being willing to learn from Acher, the sage Elisha ben Avuyah after he chose Greek wisdom over Torah. Is it that Rabbi Meir’s logic ends up being the Greek two-valued sort, which gave him an affinity to Acher’s spin on things? Was it his like of rhetoric over abstract logic that made him more immune to the negative elements in Acher’s teachings? More likely it was both — the constant awareness that comes from seeing the world slightly differently than the sages made him alert to Acher’s divergences.

 

Tum’ah in a Private Domain

A central theme in this “Phenomenology” category of this blog is an extension of an idea from a responsum by R’ Aqiva Eiger. That extension isn’t really part of this observation, but since I’m revisiting the topic, I’m categorizing it here anyway. To save you looking up a prior post and me figuring out another way to explain RAE’s position:

Rav Aqiva Eiger (teshuvah #136) divides [the laws of cases of ignorance, how to rule when the realia of a situation isn’t known] 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 same distinction appears to underly a dispute in the Yerushalmi, Nazir 8:1 (vilna ed 40a). There is a rule that in a safeiq tum’ah birshus harabim, a doubt about whether something in the public domain became tamei, we assume it’s tamei. (And a converse rule that safeiq tum’ah birshus hayachid, where a similar doubt exists about something in a private domain, we assume it’s tahor.)

This rule is tested in two cases. In the first: “נזיר שנטמא בספק רשות היחיד ואינו בפסח ר’ הושעיא רבה אמר הנזיר מגלח ר’ יוחנן אמר אין הנזיר מגלח.” A nazir may or may not have become tamei when he was in a public thoroughfare. The problem is that a nazir who is tamei has to restart his nezirus in a process that includes shaving all his hair. But, if the nazirus is intact because he didn’t become tamei, he is not permitted to cut his hair at all! Thus, neither error is “safe”; neither is simply being stringent.

R’ Hoshea Rabba says the nazir should shave his head.

R’ Yochanan says he does not.

The second case, “יחיד שנטמא בספק רשות היחיד בפסח רבי הושעיה אמר ידחה לפסח שני רבי יוחנן אמר משלחין אותו דרך רחוקה.” In the days when there is a Beis haMiqdash, a person got tamei too shortly before Pesach to being the qorban Pesach with everyone else would bring the qorban a month late on Pesach sheini. Again the Yershalmi poses a doubt in which neither assumption is a pure stringency. If we assume he is tamei and he isn’t, then he both missed the qorban Pesach and on Pesach sheini he brought a non-offering (since he wasn’t obligated) on the altar. If we assume a tamei person isn’t tamei, he would bringing the qorban Pesach in impurity.

R’ Hoshea Rabba says he waits to Pesach sheini.

R’ Yochanan tells him to avoid the problem — he should flee to a place too far from the Beis haMiqdash to be obligated to come for the qorban and thereby eligible for Pesach sheini either way.

(I couldn’t find a parallel in the Bavli. Anyone?)

As the Penei Mosheh and Qorban ha’Eidah (the acharonim on the sides of the daf) both explain, this is the underlying dispute:

R’ Hoshea Rabba holds that safeiq tum’ah bereshus hayachid renders the person tamei as if we were sure. So, the nazir is definitely a nazir tamei and must shear his hair and restart nezirus. And the person definitely is disqualified from his qorban Pesach on Pesach, and eligible for Pesach Sheini.

In contrast, R’ Yochanan considers safeiq tum’ah brh”y to be a rule for how to deal with a doubt. It is insufficient grounds to permit the nazir to cut his hair because he might be tahor and a haircut would be prohibited. So, he outwaits his nezirus, cuts his hair then, and then, in case he was tamei, starts over. Which is why R’ Yochanan also needs a way to circumvent the Pesach sheini issue. In both cases, he tells the potentially tamei person to worry about both possibilities.

I believe this is the same distinction as the one I generalized from R Aqiva Eiger:

R’ Hosheia is saying that safeiq tum’ah brh”h is a rule for dealing with doubt in facts of the ground. The halakhah established in cases of encountering maybe tum’ah, or maybe encoutering definite tum’ah, is that if one is in a public area the halachic state is tamei and in a private area, tahor. A mapping from a doubtful reality to a definite law.

Rav Yochanan holds these are rules in determining the how to act when the halakhah is unknown. We do not establish a definite law, and therefore we need to know what to presume so that we could continue acting — act stringently and assume it’s tamei if the possible contact is in a public area, and leniently when in a private one. But when neither option is more stringent than the other, as in our two cases, Rav Yochanan tells you to be stringent in both ways.

Aristotle, Science and Halakhah

ר’ יצחק בי רבי אלעזר שאל זרק מרשות היחיד לרשות הרבים ונזכר עד שהוא ברשות הרבים. על דעתיה דר’ עקיבה יעשה כמי שנחה בר”ה ויהא חייב שתים. א”ר חונה לא חייב ר’ עקיבה אלא ע”י רה”י השנייה. רבי אבהו אומר בשם ר’ אלעזר בשם ר’ יוחנן היה עומד בר”ה וזרק למעלה מעשרה. רואין שאם תפול אם נחה בתוך ד’ אמות פטור ואם לאו חייב. והתני שמואל מרה”י לרה”י ורה”י באמצע רואין שאם תפול נחה בתוך ד’ אמות פטור ואם לאו חייב. תמן את אמר אין ר”ה מצטרפת. והכא את אמר ר”ה מצטרפת. א”ר חונה תמן שאם תפול קרקע שתחתיה רשות היחיד. ברם הכא שאם תפול קרקע שתחתיה רשות הרבים.

Rabbi Yitzchaq of Rabbi Eliezer’s beis medrash asked: If someone threw an item from a private domain to a public domain [on Shabbos, while unaware either that it was Shabbos or that he was about to violate Shabbos] and remembers before the item enters the public domain. By the reasoning of Rabbi Aqiva, it should be made to be like someone who put it down in the public domain, and he should be obligated in two [sacrifices for violating Shabbos through forgetfulness]. Rabbi Chunah said: Rabbi Aqiva would not obligate except if it went through a second public domain.

Rabbi Avohu says in the name of Rabbi Elazer, in the name of Rabbi Yochanan: Someone who was standing in a public domain and through an item above 10 [tefachim]. We see if it would fall. If it would come to rest within 4 amos , he would not be culpable [although he did violate Shabbos rabbinically -- patur aval assur]. And if it would not, he would be culpable [because enough was already done in error to require the offering].

But didn’t Shemuel recite the teaching that [something thrown] from private domain to private domain with a public domain between them, we look to see if it were to fall, whether it would be within 4 amos [of the first private domain, the thrower] would not be culpable, but if not, he is culpable? Over there [in our original case] you say the public domain does not connect [to the private one], but over here [in Rav Avohu's case] you say a public domain does connect?

Rabbi Chuna said: Over there is a case where if it were to fall, the ground under it is private domain. Whereas over here if it were to fall, the ground under it was [already] public domain.

Yerushalmi Shabbos 11:1, vilna 65a

The numerous amoraim in this gemara, most clearly Rabbi Chuna’s second statement at the end of my quote, assume  that when an object falls, it falls down to the ground it is directly over. Not as Newton showed, that a thrown object follows a trajectory, a parabola.

Which means that this page from last week’s daf yomi gives me an excuse to discuss Aristotelian physics and whether it should still play a role in Judaism. I visited the topic once before, in my discussion of the Rambam’s understanding of mal’akhim.

According to Artisotle, action starts with an intellect. The intellect moves an object by imparting impetus to it. Since no one had separated out the concept of friction (including air drag), there was no law of conservation of impetus; it’s not just another word for momentum. So, eventually impetus would run out, and the object would stop moving. This is why Aristotelians, including the Rambam, believed that the spheres (the stars, planets, sun and moon, or the transparent spinning shells in which they are embedded and which give them their paths in the sky) were intellects. Similarly, this is the role of angels — they are the chain of intellects necessary to turn G-d’s Will into physical action.

In the case of a thrown object, Aristotelian physics would expect the object to move diagonally upward in the direction thrown, go through a short curve as the impetus runs out, and then the object would fall straight down. Something like this:

A medieval study of the paths of various launched objects.

This  is clearly also what our amora’im expected when they discuss where the object would land if it would fall right then. As opposed to Newton’s model, where the object would continue along the parabola, landing beyond where it was at the moment the thrower remembered it was Shabbos.

“Cartoon physics”, the world as drawn by animators, also usually assumes that thrown objects — or characters who run off cliffs — follow Aristotelian trajectories, not Newtonian parabolic ones. Why is that relevant? Because it says something about Aristotelian physics and how it relates to instinct. Aristotle didn’t experiment and systematize the results. He made a system out of the results of how the world should work by speculation. He performed “Natural Philosophy”, not “Science”. Thus, many of his results match our instincts, particularly in cases where they don’t match reality.

How this disjoin between our expectations and reality plays out in professional baseball players is interesting.  On the one hand, they must have learned with some part of their minds the true path of the ball, because they do manage to be in the right place at the right time. On the other, they still slip into the language of “getting under the ball” as though being directly under the ball is relevant. Here’s a psychologist’s description, from “Going, Going, Gone! The Psychology of Baseball” by Ian Herbert in the April 2007 issue of the Association for Psychological Science’s journal, “Observer”:

Like hitting, fielding also seems like it should be a mental and physical impossibility — which makes it fascinating to psychology researchers. If you put a player in the outfield and make him stay put, he is actually quite bad at predicting where a ball is going to land, yet he will run effortlessly to that spot when allowed to do so. How?

One of the first theories developed to explain fly-ball catching was developed by physicist Seville Chapman, who hypothesized that fielders used the acceleration of the ball to help them determine where the ball will land. To simplify the problem for experimental purposes, balls were only hit directly at the fielders, who then moved either forward or backward in order to keep the ball moving at a constant speed through their field of vision — so, they started with their eyes on home plate and then moved in a way that kept their eyes moving straight up at a constant speed until they made the catch. If they moved too far forward, the ball would move more quickly through their field of vision and go over their head. If they moved too far backwards, the ball would appear to die in front of them.

This theory seemed too simple to Mike McBeath, a psychologist at Arizona State. For one thing, Chapman’s model predicted that fielders would use the same process for balls hit to their left or right, simply making a sideways calculation along with the basic speed calculation. But that would mean balls hit to the side should be harder to catch, and McBeath (and every sandlot outfielder) knows that’s simply not the case. Any outfielder will tell you that a ball hit directly at him is the most difficult to catch, so McBeath reasoned instead that, when a ball is hit directly at a fielder, the fielder lacks some crucial bit of information for making the catch.

He came up with a method that was similar to Chapman’s but included an extra piece: He hypothesized that fielders kept the ball moving through their field of vision in a straight but diagonal line. So if the outfielder is looking at home plate when the ball is hit, he then keeps his eyes on the ball and runs so his head moves along a constant angle until the ball is directly above him, which is when he snags it. To test this, McBeath had fielders put video cameras on their shoulders, and the cameras moved in this manner.

Yet ask any Major Leaguers about this, and you’ll get blank stares. McBeath did talk to pro outfielders, and responses ranged from “Beats me” to “You’re full of it.” That’s because there’s no conscious processing involved; it’s all taking place at the level of instinct, even though the geometry is sophisticated.

I see, therefore, two possible resolutions to how to deal with our gemara given the advances in science.

1- One can fit the amoraim to Newton. What causes the parabola? Well, there are three forces acting on the object: the throw of the hand, the pull of gravity, and the drag of the air it is flying through. If we are trying to isolate what the person did during the period of forgetting, we should mentally “shut off” the throw of the hand at the moment they remembered it was Shabbos. In which case, the remaining forward motion that happens after remembering isn’t part of the forgotten action, and could be ignored. We pretend as though it were to fall straight down, without the vector added by his hand. This notion that it’s a pretense isn’t in the gemara, but there is no reason to believe that such a fiction (pretend the momentum disappeared) vs. thinking it would really occur is relevant to the halakhah.

2- Taking a major step back, we can ask whether the halakhah actually depends on the science. After all, the role of halakhah is to refine our souls.  (Connect to G-d, ennoble ourselves, perfect our middos, our thought, however you define the refinement.) In the posts in this category I have argued that this implies that illusions are no less relevant than reality, and innate expectations of how the world works more important than how it really does.

If we are so hard-wired to think that objects move in a certain way, such that even professionals who rely on predicting where a thrown object would be cannot fully escape it — isn’t that the reality halakhah must address? Which approach to throwing an object in a public domain better relates to the person’s responses, more closely addresses the forces that shape him: Newtonian Physics, although more accurate in describing what actually happens; or Aristotelian Physics, which catalogs our expectations and our relationship to what happens?

Halakhah and Phenomenology – Symbolic Logic

This will only be of interest to people who care about Symbolic Logic and about the rules of birur, of resolution of doubt in halachic questions. But I found something I wrote back in 1994, and didn’t want to lose it, so I’m blogging it here. Hopefully I will have time to put up something of more general interest in the near future.

Earlier in this series we distinguished between cases that are qavu’ah and those where we say kol deparish, that is, those doubts that are between established items, and those where we have an amorphous set of items. The basis of my theory is a statement by Rabbi Aqiva Eiger (shu”t #136) that there are two types of doubt, and each has its own mechanism for birur, for clarification.

The case of qavu’ah is one where the reality was once established. So in principle, there is a specific halakhah assigned already to this case. The doubt is in what that halakhah is. In this situation, we do not invoke rules like rov (majority), and every doubt is treated identically to an equal one.

The case of kol deparish is one where the reality was never established; this item never before stood out from the rest of the set. Therefore, we are assigning a halakhah to a case where the physical reality is in doubt. Here, majority is allowed.

See the posts in the above links for more detail. Here I want to add a mathematical analysis.

Boolean logic takes the approach that logic could be understood as a type of algebra. The complex statement “A OR B” is true if either “A” or “B” (or both) is found to be true. This is usually shown as a table, much like the addition or multiplication tables:

ORfalsetrue
falsefalsetrue
truetruetrue

Aside from “OR”, it defines other operators, like “AND” (true only when both clauses are true) …

ANDfalsetrue
falsefalsefalse
truefalsetrue

… “NOR” …

NORfalsetrue
falsetruefalse
truefalsefalse

… “NOT” …


NOT
falsetrue
truefalse

… etc… Like algebra, it defines distributive rules, associative rules, and so on – way of simplifying our “expression”. One pair which we will look at is de Morgan’s rules.

De Morgan showed that

(NOT A) AND (NOT B) = NOT (A OR B)

This sounds more complicated than it is. It helps to give an example. Saying “I am not going to the store, and I am not going to the school” is equivalent to saying “I am not going to the store or to school.” Similarly,

(NOT A) OR (NOT B) = NOT (A AND B).

Or, in English: Saying, “I am either missing work or missing my dinner” is the same as “I am not both attending work and having my dinner.”

Unlike boolean algebra, Qavu’ah Logic (hereafter QL) has three states — mutar, mechtza, asur (when speaking of prohibitions; patur, mechtzah, chayav when speaking of obligations). Kol qavu’ah kemectzah al mechtzah dami – all doubts about something that once had an established metzius is like half-vs-half, and we therefore respond to each half Safeiq Logic (SL) has 5, because it adds mi’ut and rov.

The case of sefeiq sefeiqa is much like a symbolic logic OR operator. You have two questions. If either were resolved “mutar” the result would be “mutar“. If both are assur, than the resulting ruling is assur.

assurmutar
assurassur mutar
mutarmutarmutar

Under QL, we add the case of unknown and therefore, a sefeiq sefeiqa would yield this truth table:

QLassurmechtzamutar
assurassurmechtza mutar
mechtzamechtzamechtzamutar
mutarmutarmutarmutar

Once we say that safeiq is a valid answer, and not just a way of saying that the answer is unknown, we have to understand what is meant by a sefeiq sefeiqa. In a sefeiq sefeiqa, the status of a case is subject to two doubts. If the resolution of either doubt were “mutar” the ruling as a whole is mutar. Sefeiq sefeiqa is much like the Boolean logic notion of OR.

In much the same way, we can make a more complicated table for our 5-state SL. To make this table, I used the rules that “mi’ut bemaqom safeiq - a minority in a situation where there is already a doubt, keman deleisi dami - is as though it does not exist”, and sefeiq sefeiqa.

SLassurmi’utmechtzarovmutar
assurassurmi’utmechtzarov mutar
mi’utmi’utmi’utmechtzarovmutar
mechtzamechtzamechtzarovmutarmutar
rovrovrovmutarmutarmutar
mutarmutarmutarmutarmutarmutar

(This table also presumes the opinion of the Rashba, the Sheiv Shemaatsa, et al, who hold that sefeiq sefeiqa is a kind of rov — thus the entry at the center of the table:

mechtza OR mechtza = rov

The R’ Shimon Shkop holds that sefeiq sefeiqa works because one safeiq reduces the question to a derabbanan, and the second is a safeiq derabbanan lequlah. See item #2 in this entry. In which case, that cell of the table should read “kemechtza derabbanan” a new value that violates this whole symbolic logic notion. However, I didn’t know of this machloqes back in 1994. So, let’s continue aliba deSheiv Shemaatsa…)

Negation (NOT) is defined intuitively, the gemara assumes a majority indicating A is equivalent to a minority indicating not-A.


NOT
assurmutar
mi’utrov
mechtzamechtza
rovmi’ut
mutarassur

In parallel to sefeiq sefeiqa toward leniency is a sefeiq sefeiqa as grounds for stringency. In that case, something is permissible only if both criteria are found to be in the permissive possibility. It seems to be the direct reflection of the sefeiq sefeiqa we outlined above. The notion in boolean logic:

NOT (A AND B) = (NOT A) OR (NOT B)

de Morgan’s law holds for SL as well.

The distributive law, however, doesn’t. In boolean algebra,

(A AND B) OR (A AND C)  =  A AND (B OR C)

But what if we

Let A = B = C = mechtzah

The left describes two sefeiq sefeiqos lechumerah. The right is A “AND” a sefeiq sefeiqa lequlah.

(mechtza AND mechtza) OR (mechtza AND mechtza)  ≠  mechtza AND (mechtza OR mechtza)
                assur OR assur mechtza AND mutar
		    assurmetchtza

Halakhah and Phenomenology – Addendum: Placebos

One more thought about my “Halakhah and Phenomenology” series….

A basic assumption behind the series is that what justifies looking at the world as experienced and as it could be directly experienced is the idea that this is what shapes a person and makes the deep down changes in character, in how the person relates to Hashem, other people and themselves. That all of one’s intellectual knowledge of the science involved only impacts the person on a more surface level, that any emotions brought about because of it do not make the same existential change.

Well, Time Magazine recently carried a story that supports this notion (click on title for full story):

Placebos Work Even if You Know They’re Fake:
by Maia Szalavitz Monday, December 27, 2010

Physicians have long believed that some form of deception is essential to the placebo effect: after all, if you tell people that you’re giving them a fake drug, why would they respond by getting better? But new research suggests that it may one day be possible to use placebos in everyday medicine without misleading patients into thinking they might get active treatment…

So, it would seem that knowing intellectually that something is a placebo doesn’t operate on a level low enough to invalidate the placebo effect. Similarly, knowing intellectually that a maggot didn’t spontaneously generate from the meat doesn’t change the psychospiritual effects of eating that maggot. The difference between spontaneous generation and birth from a microscopic egg cannot be experienced, and therefore doesn’t impact our deep level responses.

Halakhah and Phenomenology – The Unknown and Bitul

The Yerushami (Challah 3:5) discusses the case of when bread which didn’t have challah taken (or flour which didn’t have terumah taken from it), fell into a quantity of already separated bread. The gemara says the cases are different whether one takes challah from already separated and permissable dough instead of taking challah from another dough to permit its use, or one is taking this dough’s challah from itself. The gemara asks using the parallel case of terumah (20a-b)

מה בין המוציא ממנו עליו מה בין המוציא ממנו למקום אחר?
בשעה שהוא מוציא ממנו עליו הואיל ואין אותו הטבל ראוי להיעשות תרומה כיוצא בו חולין שבו מבטלין אותו. בשעה שהוא מוציא ממנו למקום אחר הואיל ואותו הטבל יכול להעשות חולין כיוצא בו לא (כ:) אמר רבי יוסי הדא אמרה טבל שנתערב’ בתרומה הואיל ואתו הטבל יכול להעשות בתרומה כיוצא בו לא בטל.

What is the difference whether one takes from it on itself, and what is the difference when one takes from it for the sake of another place['s flour]?

When he takes from itself [as terumah] on it, since this un-separated flour is not capable of becoming entirely terumah [as one cannot separate 100% of the flour as a gift to the kohanim, some must be left for the owner], the secular [flour] which is in it annuls it [by bitul, by being in overwhelming proportion].

When he takes from it [as terumah] for [flour] which is somewhere else, since this unseparated flour can become chullin just like it is, no [it does not annul it].

Rabbi Yosi said: this tells [you that] separated flour that was mixed with terumah, since this tevel could become terumah like it — it is not annulled.

This is an intriguing thing.

Tevel, unseparated flour, has terumah within it that is holy, but it must also contain secular flour as well — since one may not declare their terumah to be 100% of the crop. When this tevel falls into separated flour it seems that both come into play into the same speck of flour.

1- The speck is holy, because some percentage of the wheat terumah, and without separation it could well be this speck.

2- Yet, if the flour in question were definitely terumah, it would nullify by falling into a far greater heap of permissable grain. Because it has the potentiality of becoming the secular grain after the separation, it is of the same kind as the greater heap, and we invoke “min bemino eino bateil — something does not get annulled when mixed with its own kind.”

We treat each speck of wheat as though it’s in both states simultaneously. It’s holy because of one possible outcome, and that holiness does not get annulled because of the possibility of the other outcome.

This parallels what we saw about how doubt is treated as a mixture. Or, as the Bavli put it “isah” — literally: dough or mixture — “lashon safeiq hu — is a term of doubt.” When we deal with doubt about the underlying realia of a case, we do not deal with the unknown objective realities, but we instead providing a ruling by treating doubt itself as the phenomenological reality (world as we experience it) about which to rule. And since we think “maybe it’s X, maybe it’s Y” that resulting reality is an admixture of both. As I wrote then:

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.

Here too, the state of the flour is unknown because it is determined in the future. We do not rule as though it is in one of two distinct states, but treat the terumah and secular states as though they co-exist.

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.

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.

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.)

Halakhah and Phenomenology – The Very Small, Tastes and Birkhas haChamah

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. (See the posts in the “Forks” category.) 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”.

This actually means paying attention to three questions — what can be perceived first-hand, what was perceived and what is known by the individual in question.

Perceived and known: Well, if you see the ham and you know it’s ham, it’s obviously prohibited.

Not perceivable: This includes microscopic mites on one’s food. Knowing they’re there doesn’t change the halakhah; they simply don’t have mamashus. Since a microscopic bug can’t enter our direct experience, the impact of eating it is not the same as the impact of eating a bug we could have seen.

My Rebbe, R. Dovid Lifshitzzt”l (Yeshivas Rabbeinu Yitzchaq Elchanan, Fall 1984 or perhaps Spring 1985), used a similar idea to explain a different problem. The Gemara explains that maggots found within a piece of meat are kosher.
The reason given is that they were born from the meat, an idea known in the history of science as “spontaneous generation”. Therefore, halachah treats the maggots identically to the meat.

Spontaneous generation has since been disproven. Maggots come from microscopic eggs, not abiogenetically from the meat. Now that we know that the underlying science is wrong, need we conclude that the halachic ruling is also wrong?

Rav Dovid taught that the halachic ruling is still applicable, because the microscopic eggs and maggot larvae are not visible, and therefore (like the insects in our first example), lack mamashus. The only cause for the current presence of maggots that we can see is the meat. Viewing the question in terms of human experience, the meat is the only source of
the maggots. Bugs or eggs that are too small to be seen, while we might cerebrally know they are there, can’t have the existential impact as those I could, and ought to have, noticed unaided.

Perceivable but not objectively real: e.g. Ta’am and Birkhas haChamah

There are responses that are normal human responses to an object or event, but have no objective trigger. Sometimes halakhah tries to weed out this attachment to falsehood by not recognizing it. Other times the Torah finds it more useful to channel that reaction.

In my humble opinion, an example of this second case is the concept of ta’am as used in the laws of kashrus. The usual approach is to define “ta’am” in the empirical sense, the taste of the item. And therefore it is usually explained in terms of microscopic particles of food trapped inside the metal. E.g. a meat pot is described as having particles of meat trapped inside it. And there are cases where ta’am can be determined by having a non-Jew taste the mixture.  (Or a kohein check a mixture of food that contains a tiny amount of terumah.) If an amount falls in (or is mixed in by a non-Jew who is not doing it to intentionally feed to someone who is subject to the laws of kashrus) that is less than one in 60 it can be nullified IF it can’t be detected by taste. Such as a drop of milk falling into a pot of stew. In such a case the Shulchan Arukh (and Sepharadim) have a non-Jew check the taste, while the Rama prohibits (105:1-2).

However, there are cases where we assume a ta’am and even Sepharadim don’t ask anyone to check for us. (See YD 92:5,7 and 105:5). E.g. If milk fell on the outside of the same pot, the pot is meaty. The very same less than 1/60 drop is harder to nullify if it falls on the outside surface of the pot than in the stew itself?!

And why don’t Ashkenazim have a non-Jew taste the product, if it’s all about sensory taste?

Also, this explanation involving microscopic particles of food absorbed into the pot defies the principle we invoked with respect to microscopic bugs — it can’t be seen or tasted, but it does count?

I would therefore suggest the novel approach that ta’am here is meant in the psychological sense, the purpose or motivation of an idea. A meaty pot isn’t meaty because there is any physical meat trapped in it, but because we can’t disentangle our association to the pot from its historical use for meat. (And halakhah doesn’t ask us to change that.)

If the pot was used for meat and I didn’t know, then it’s a matter of neglect on my part. I should know that in the realm of human experience, not personally but of humanity as a whole, this pot is branded “meaty”. Yes, physical taste is one way of having a mental association, and therefore there are times Sepharadim believe it’s the only such association. But it’s not the only way the food can be experientially linked to prior foods.

Admittedly this case is speculative. So is the next one…

Birkhas haChamah

There is no astronomical event specific to this berakhah. The equinox was on March 20th this year, and we will be making the berakhah be”H on April 8th. This is because our estimate for the year for the purposes of this berakhah is that of Mar Shemu’el, where the year is 365-1/4 days exactly. (The same estimate as the Juilan year.) Over time, the rough level of that estimate adds up. Rav Adda proposed a more accurate estimate 365.2424 or so, and that is what we use in the 19 year cycle of months. For that matter, the 19 year cycle dates back to galus Bavel (where either they learned it from us, because the Babylonians did start using it in 499 BCE, or we learned it from them) — so we knew a better estimate when the halakhah of making birkhas haChamah mentioned in the beraisa.

The actual words of the beraisa are:

To which the gemara asks: “ואימת הוי — and when is this?”

“אמר אביי כל כ״ח שנין — Abayei says: Every 27 years, והדר מחזור ונפלה תקופת ניסן בשבתאי באורתא דתלת נגהי ארבע — …when the cycle renews and the ‘season of Nissan’ [vernal equinox] falls in Saturn, on the evening of Tuesday going into Wednesday.” The berakhah is then made in the next morning, when we next see the sun.

The reference to Saturn is an astrological concept. Each of the seven visible moving astronomical objects (Saturn, Jupiter, Mars, Sun, Venus, Mercury, Moon) rule over the world for an hour. During the course of a week, this pattern completes 24 such cycles. Saturn rules at sunset the evening before Wednesday, when the day begins halachically. Therefore, the sun returning to the equinox position when Saturn is ruling is defined as it being back in the place where it was created. Notice that this rule of Saturn has no corresponding astronomical event. For that matter, the Rambam rejects such astrology, and yet codifies birkhas hachamah.

And the Rambam, Ramban and Ran conclude the sun was created toward the end of Elul, not in Nissan. (Rashi and Tosafos conclude it was created in Nissan. Tosafos say it was “conceived” in Tishrei, and explain our liturgy accordingly.) And yet all three support the current practice of birkhas haChamah on a Wednesday in Nissan as an anniversary of the sun’s creation (or is we say like Rashi, placement in the sky) on the first Wednesday. Or, that it was the hypothetical beginning of the cycle the sun started in mid-way, when it was created a half a year later.

And was that Wednesday even measurable as time on a calendar? R’ Soloveitchik notes that in Qabbalah, the six days are really 6 of the sephiros. According to the Rambam they are logical causal steps in the development of creation, and not intervals  of time. (See the last block quote in this earlier post.) Rav Dessler understands the Ramban as saying that time during this period was entirely unlike the stream we experience. The Maharal also considers the element of time part of why the story of creation is considered by the mishnah to be a mystery. (See this post.) And yet none of them raise these issues as problems with respect to the observance of birkhas haChamah.

We live in a period of history in which science and technology are making great progress. The zeitgeist therefore gives them a very central role. It is natural for us to seek an explanatation for ta’am in terms of microscopic particles, even though Chazal couldn’t have shared that chemical notion of how taste works, and we know from the word’s other uses that that’s not how Hebrew reflects our relationship to taste. We also assume birkhas haChamah is speaking of the sun going back to a physical position.

The gemara concludes the dispute about when creation and numerous other events happens by saying that we count years from Tishrei, as that’s about physical age, but tequfos from Nissan. Age is done in physical years. Tequfos aren’t the passing of time, it’s astrology in the sense of how we perceive the heavens rather than how they objectively are astronomically. For all we know they are exactly 365-1/4 days, a third kind of year in addition to the tropical one (one apparent orbit of the sun) or the sideral (one apparent orbit of the constellations, which was 20m24.5128s longer than the tropical year in 2000 CE). Tequfos are measured from the more spiritual new year, the month in which we became a people, Nissan. Note that both are experiences, the passage of time, astrology, not abstractions of science.

This is why the approach to birkhas haChamah is mythic. In the technical sense; choosing ideas for their import, not their historicity. Some may be historical, others not, but that’s not what’s relevent because the whole thing isn’t a from scientific historian approach to the world.

It seems quite clear that the purpose of Birkhas haChamah was more pedagogic. There was a need to create a cause to bless G-d “who makes the act of creation” rarely enough for the blessing to be a major life event (unlike saying it on every thunderstorm, or when seeing the ocean, a large sea, a desert or being in an earthquake) but yet frequent enough to be remembered from one generation to the next. The thing we are thanking Hashem for is constant, He constantly creates anew and sustains us. The reason for the berakhah is thus not a physical event, but a cause for remembering that fact.

(Aside from the fact that many of the claims, e.g. much that is said about the “sun being exactly back in the same place” at birkhas hachamah, are just wrong. And rather than serving to advance faith, they give the scoffer straw-men with which they reinforce their skepticism. With respect to aggadic stories, the Rambam [introduction to his commentary to chapter Cheileq in Sanhedrin] 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.  Here too, by confusing a mythic perspective for a scientific one, people are being pushed into two very similar camps. The correct approach is (3) to realize that the Torah convey deeper truths via hint and riddle. As Rav Hirsch would say, to use metaphore to help us internalize abstract truths.)

As I opened, halakhah need not address what is, but rather how we can shape people. The academic strives for an objective study of the material. Trying in that way to obtain a freedom from negi’os (personal stake) and therefore greater accuracy. Talmud Torah is inherently different. The whole point is to acheive unity with the Torah being studied; to see it from the inside, as it sees itself, and to be shaped by that perception. The scientist and the talmud chakham approach their displines with very different attitudes. We should respect that same division and avoid making scientific claims about mitzvos. It is unnecessary to reexplain the kashrus of maggots, the notion of ta’am in a mixture or on a utensil, or the cause of birkhas hachamah as scientific theory advances, because none of them were based on the objective realities of science.

I hope to continue this discussion in a future post on understanding the rules of birur, resolving what to do in uncertain situations, by invoking the distinction between things that are unknown because they were never perceived vs. things that are unknown because the results of the perception got lost or confused. With that I will have discussed all the possibilities: perceived and known (trivial case); imperceptible (doesn’t count whether or not it’s known); perveption without an actual object; and in the future post – perceptible but never happend to be perceived nor known; as well as perceivable and once perceived, but now unknown.

In a third post I would like to discuss a different issue — is belief in mitzvos having cosmological impact beyond their effect on the people doing them consistent with this notion that halakhah is about human perception?