Symposium on Eli Hirsch’s “Talmudic Destiny” 28 July–04 August

First and foremost, I would like to thank Eli Hirsch for his serious response to my comments. My apologies for not clarifying things sufficiently. In my attempt to spare the general reader the jargon of conceptual Talmudic analysis, or at least to translate things into more philosophical terminology, something was apparently lost. I will try to clarify the three questions Hirsch raised in response to my comments by means of a general sketch of the various elements involved in a halakhic transaction or status change and the conventional wisdom regarding two possible models that emerge from such a sketch. In addition, although this is just a response to a response, I would like to address Hirsch’s theory regarding Rashi’s position and the possibility of a third alternative other than Hirsch’s presented position and the new Hawthornian position sketched out in John Hawthorne’s comment and Hirsch’s response.
In the tradition of conceptual analysis adopted by most modern practitioners of Talmud study, the Halakhic transaction or status change (kinyan) can be viewed as consisting of three elements: i) The mental state, the da’at, of the agent or agents that effect the transaction, ii) the action, the ma’aseh kinyan, that effects the transaction, transfer or change and iii) the result, the chalut, of the said transaction. As a matter of theoretical interest, but also possible practical difference, we may raise the question as to the exact role of factors (i) and (ii) in generating the eventual result (iii). On a broad plane, without differentiating between particular types of transactions or status changes at this point in time, the conventional wisdom outlines two possible poles as theoretical models. In model one, which we may call for now the da’at model, it is the mental state of the agent or agents that plays the fundamentally primary role in generating (iii), the chalut. Any requirement of (ii), such as the writing of a contract, exchange of money, verbal statement, or even the physical movement of some object should be viewed as no more than an “expression” of the mental state, the da’at that actually accomplishes the transaction. In model two, things are the reverse if not an actual mirror image. Calling this for now, the “ma’aseh kinyan” model, here it is the action, not the mental state that carries out the fundamentally primary role of generating (iii), the chalut. The role of the mental state is no more than to either legally allow the transfer and transaction carried out by the “ma’aseh” or perhaps to define the said action on a certain formal level.
Now when I referred to the “idealist” model of Halakhic transactions I meant something like the “da’at” model of Halakhic transactions sketched above and when I referred to the “physicalist” model I meant something like the “ma’aseh kinyan” model sketched above. Perhaps this will help clear things up. On the “idealist” or “da’at” model or prejudice I accused Hirsch of adopting, it is the mental state, the da’at that does the work, the actual transfer and generation of the “chalut”. The action taken upon the object to be transferred or have its status changed whether a verbal or even physical action is no more than an expression of a given mental state. For this perspective, I agree with Hirsch that the “minimal criteria of reference theory” is certainly correct and there is no problem in breirah cases provided one is an Ockhamist. As long as one refers successfully to the object to be transferred at time “t”, the time of the transaction, we can say that there is sufficient “da’at” to carry out the transaction at time “t”. One can not raise a “ma’aseh” based objection to breirah cases as the ma’aseh is no more than an expression of da’at, already assumed to be sufficient on the “minimal theory of reference” and Ockhamian account.
As a parenthetical note, it is important to point out that this model is often attributed to Rabbi Chaim Soloveitchik, known as Rabbi Chaim of Brisk. It was explicitly asserted by Rabbi Avraham Karelitz, often referred to as the Chazon Ish and may certainly have influenced Rabbi Aharon Kotler, one of Hirsch’s central sources for his treatment of breirah. In my opinion, there exists near definitive evidence that this model originates in Rashi and Tosfot on numerous Talmudic topics including that of breirah. Hirsch’s intuitions are right on.
What I tried to point out in interpreting Ramban and through counterexamples is that there exists the possibility of the second model and this carries implications for both i) the criteria for transactions and ii) the question of breirah. While not necessarily the case, in my opinion the “ma’aseh kinyan” model just sketched should be viewed as reflecting the “physicalist” model I outlined. Precisely because the world of Halakhic transactions is viewed on the model of physical events, a “ma’aseh kinyan”, interpreted as a real world action on a particular object, not just as an expression of a mental state, is the key factor in effecting a transaction. It would seem to me that such a version of transactions would lead to a stronger criteria for transactions than the theory of “minimal criteria of reference” and have specific implications for breirah. To perform a real word action upon a real word object requires more than just clarity of mental state, referring to the object and coherent speech. It requires, pointing to the object in a way that allows the “connection” of action “x” the ma’aseh kinyan performed on object “y” to the said object at time “t”, the time of action. To utilize a poor analogy, consider the billiard ball model often utilized to illustrate the conceptual schema of Newtonian mechanics. A cue ball cannot impact or effect the movement of some ball upon the table without actually touching it. So too, the ma’aseh kinyan must “connect” in some strong sense to the object it impacts.
This may be clearer if we return to the “breirah” issue. At time ‘t’ we can talk of “the house that my wife will choose”, but we cannot pick out, point to, or even “strongly” refer to as a hard fact the house that my will choose. After all that has not yet been determined and on the theory of the “ein breirist” cannot be determined retroactively. Hence there is no specific house that we can view as being subject to a “physicalist” type of “ma’aseh kinyan”. I take this as being the import of Ramban’s comments that in “breirah” the what of the matter is unclear at time ‘t’, the time of the transaction. From a “physicalist” perspective one cannot perform an action at time ‘t’ upon an unclear “what of the matter”. Again, admittedly, such is not the case from an “idealist” perspective where the “ma’aseh kinyan” is no more than an expression of mental clarity regarding some object described by the sentence “the house that my wife will choose”.
Regarding, Hirsch’s second question to me, how would the “physicalist model” differentiate between “breirah” and “tenai”, I believe that I have already more or less addressed this in my original comments. Ramban himself views these two categories as fundamentally different, what vs. whether. I believe this distinction is sustainable in light of my clarification above. In breirah the lack of clarity as to what at time ‘t’ generates an intractable problem of lack of “connection” between the physicalist’s ma’aseh kinyan and the supposed entity effected at time ‘t’. In “tenai” there no such lack of clarity as to what exists at time ‘t’ and consequently no such problem of ma’aseh kinyan at time ‘t’. At the time of the accomplishment of the condition the outstanding logical problem of whether is resolved and the transaction is considered valid as of time ‘t’. While one may still object that this requires some sort of retroactivity and we are here dealing with the position of the “ein breirist” this objection can be handled relatively easily by moving “tenai” to the realm of intent, i.e. claiming that according to the “ein breirist” one can retrospectively clarify intent, the question of whether, but not occurrences in the real world, i.e. what. Alternatively, one can relay upon the view that tenai milta achriti hi, that tenai is a minor matter having no real bearing on the transaction itself and therefore once clarified at time ‘t-1’, the actual transaction itself performed at time ‘t’ is valid as of time ‘t’. While the details of any of these latter two claims still need to be worked out, I would maintain that the breira – tenai distinction can be defended according to the “physicalist” model.
Regarding Hirsch’s third question, the attempted counterexample of the “deep pool” case; great case! But I am not really sure why this is a problem. It seems to me that this is not a “breirah” case at all. In this case, which of the pools is the deeper pool is an objective hard fact as of time ‘t’. It is already “settled”. It is just not known by the agents of the transaction which of them is in fact deeper at time ‘t’ until later on at time ‘t-1’. This would seem to be a matter of retrospectively knowing at time ‘t-1’ something which could in principle have been know at ‘t’ but for some reason or another was not. On the assumption that temporary ignorance does not affect the meaning of terms or reference, talking about the “deeper pool” as of time ‘t’ would seem to be sufficient for the “stronger” type of reference, the one that singles out a particular object in the world at time ‘t’ required by the “physicalist” model. Or maybe not.

Regarding Rashi and the central thesis of Hirsch’s paper, I refrained from commenting in my original response for two reasons. First and foremost, I was not sure that I had much to add to his great ideas. Second, Hirsch follows the conventional wisdom regarding the position of Rashi as expressed in Mishnat Rebbe Aharon to Gittin 25a. I have my doubts whether this conventional wisdom is wholly accurate. As my two statements seem to contradict, I will try to explain and from there proceed to what seems to me like a variation on some of Hirsch’s ideas.
Ironically, none of the three texts of Rashi cited by Hirsch in footnote (1) dictate the position of “permanent safek” as elaborated by Hirsch. However, there is a fourth comment of Rashi found at Meila 22b s.v. rabi yehuda which certainly does. Moreover, the comments of Mahri found in Tosfot Eiruvin 37b s.v. elah referenced by Hirsch in footnote 35 certainly indicate that such a position exists in the Ashkenazic tradition. Nevertheless, the scope of this position may be crucial for interpreting it, and hence some brief explanation is in order. We may distinguish between what I will call “normal” cases of “permanent safek” and what I will call “peculiar” cases of “permanent safek”. In “normal” cases, the “safek” is generated by some understandable mechanism. The relationship to “breirah” consists of the fact that the “ein breirist” rejects retroactive clarification and hence the safek remains intact. The three cases cited by Hirsch in footnote (1) all conform to this model. I will go in Hirsch’s order. Case (1): Rashi Gittin 25a s.v. lekuchot hen comments on the case of inheritance where the mechanism of inheritance leaves a doubt as to whether portion ‘a’ of the father’s land goes to brother ‘x’ with ‘b’ going to brother ‘y’ or the reverse. Given the position of “ein breirah”, this doubt\apportionment cannot be clarified retroactively and the division of the land later performed by the brothers has a status of a sale reversible by the jubilee year. Here the position of “ein breira” is no more than a necessary condition for the persistence of this “normal safek”. Case (2): Rashi Gittin 74a s.v. rabi yosi comments on the case of where Reuven attempts to divorce his wife while using ambiguous terminology regarding the timing of the divorce. According to Rabbi Yosi the terminology of the Mishnah should be interpreted as meaning “the day before I die” and her status is that of safek, or “divorced and not divorced” each and every day. Rashi comments that Rabbi Yosi holds “ein breirah” and hence Reuven living or dying the next day after any given day does not resolve the safek regarding the previous day. Again this conforms to our previous model. The safek is generated by the fact that on any given day ‘d’, Reuven may die the next day ‘d-1’. Given that “ein breirah”, the safek cannot be retroactively clarified. Again, “ein breirah” is no more than a necessary condition for the persistence of a “normal safek”. Case (3): Rashi Eruvin 37b s.v. Va’chachamim omrim comments on the case of a “wise man”, one trusted on matters of tithes who purchases vegetables for himself and a “man of the people”, one considered suspect on the matter of tithes. The original purchase leaves a safek as to which portion of the vegetables is intended for which party. Given the position of “ein breirah”, this doubt cannot be retroactively clarified and hence the transfer to the “man of the people” at time ‘t-1’ is viewed as a sale rather than a transfer of an already determined portion. This requires the “wise man” to tithe before the resell in accord with the rules of “demai”. Once again, we face a “normal safek” generated by the original purchase. The role of “ein breirah” is no more than necessary condition that leaves the original safek intact.
It seems to me, that nothing about these cases, nor Rashi’s comments to them says anything about “destiny”, “thinking about the future” or the like in any deep or interesting way. Rashi simply notes that the “ein breirist” rejects retroactive clarification and hence certain cases of safek, generated in a perfectly understandable fashion persist. Such is not the case in our next case, not quoted by Hirsch.
Case (4): Rashi to Meila 22b s.v. rabi yehuda comments on one of the classic cases of breirah, the case of “two measures”. In this case, Reuven claims that he is currently tithing the “two measures” that he will actually separate at some later point in time ‘t-1’. While according to the “yesh breirist” it is permissible to drink of the formerly untithed wine immediately as of time ‘t’, according to the “ein breirist” it is forbidden. Obviously, this is the Talmudic forerunner of Hirsch’s “the house that Reuven’s wife will choose”. Now according to the normal rules of things, we may expect that according to the “ein breirist” the batch of wine which had been untithed has a status of “tevel” and cannot be consumed by anyone, even one of priestly descent. The actual act of tithing that happens at time ‘t-1’ cannot be retroactively moved to time ‘t’ and one would expect that the wine remains unaffected, i.e. tevel at time ‘t’. But Rashi comments that the wine is forbidden in consumption as “each and every cup may be the one’s tithed”. In other words there is a “safek” regarding which “two measures” were tithed at time ‘t’ and this doubt cannot be retroactively clarified by the actual act of tithing at time ‘t-1’. While this need not concern us for now, the Halakhic bottom line is that one of priestly descent can consume of the wine as it has been tithed. What need concern us is that somehow, even according to the “ein breirist” some kind of act of tithing has occurred at time ‘t-1’ which generates a safek. I view this as the “peculiar” case of “permanent safek”. Nothing obvious has happened at time ‘t’ that explains the generation of the safek at time ‘t’. There is no obvious act of tithing that occurs at time ‘t’ by talking of that which will happen at time ‘t-1’. It would seem that perhaps there is something essential to the position of the “ein breirist” that helps generate the safek and the role of “ein breirah” seems to be something more than just leaving a previous “normal” safek intact.
I have often tried to explain this Rashi, albeit with minimal success, with the vague theory that i) intent is sufficient for an act of tithing, and ii) tithing can affect a batch on a general plane, leaving it a matter of doubt which parts of a batch have been defined as the tithed part. My thinking about Hirsch’s enlightening comments in his Talmudic Destiny and his definition of the PPI principle in his response to Hawthorne’s comments now make me think of Rashi’s position in the following fashion: i) It is a matter of soft fact that as of time ‘t’ that there are “two measures that Reuven will separate” ii) Whether as due to a particular local rule regarding tithing or a general “idealist” perspective regarding Halakhic transactions and status changes, the theory of “minimum criteria of reference” is sufficient to generate a status\result of tithing. iii) Consequently, Reuven’s act of tithing at time ‘t’ is valid and the “two measures that Reuven will separate” have the status of tithed measures as of time ‘t’. iv) But in the world of real objects and real world actors it is not know at points between time ‘t’ and ‘t-1’ which of the set of all two measures are those two, i.e. there is a safek on each cup. v) Due to PPI, or something like it, which I take as a nice philosophical formulation of “ein breirah” this safek\indefiniteness as of time ‘t’ cannot be retroactively resolved, nor even retrospectively viewed as anything other than a safek. vi) Consequently, we are left with Rashi’s famed position of “permanent safek”.
Now it is not clear to me, whether my distinction between “normal” cases of “permanent safek” and the “peculiar” case of “permanent safek” was really necessary to make this argument for Rashi. Nevertheless, I think the distinction highlights the fact that the resources created by Hirsch’s analysis are only necessary to explain the Rashi on Meila 25a and that the distinction thereby limits the scope of the supposed difficult position of Rashi. On the other hand, if we think about it, I have simply used the resources provided by Hirsch to reconvert the “peculiar” case into the logical equivalent of the “normal” case, where the position of “ein breira” in fact has nothing to do with the creation of the safek. It is merely, a necessary condition for the persistence of the permanent safek. I have in fact worked hard to render the distinction mute and generate a general position for Rashi.
What is clear to me is that what I have outlined here is certainly different than the Hawthornian position, the claim that there are “hard facts”, “something in the cards” as of time ‘t’ that facilitates the transaction but somehow may have changed or worked out differently by time ‘t-1’. This claim strikes me as counterintuitive as an explanation of the safek. Moreover, I am not sure how we can maintain a “hard fact” as of time ‘t’ that posits a certain future while simultaneously maintaining that that future is not the one that eventually works out at time ‘t-1’.
To get to the heart of the matter, I am not really sure whether the position I have outlined is the same or different than Hirsch’s thesis. But on further thought, it seems somewhat different. It seems to me that Hirsch’s claims about Rashi’s position regarding any given two measures are correct. For any given two measures it is “indefinitely true” and simultaneously “indefinitely false” that they are “the two measures Reuven will choose”. But I am not sure that this has anything to do with “objective muddle” or “the superposition of contrary states” on analogy to quantum mechanics. Rather it is simply the result of i) the validity of the tithing at time ‘t’ of whatever two measures will be chosen at ‘t-1’, ii) the safek at time ‘t’ regarding which two measures those are, and iii) the fact of “ein breira”, the impossibility of retroactively clarifying certain kinds of indefinite situations. To put this a little bit differently, “objective muddle” might be the result of Rashi’s position on “ein breira” but there is no theory or metaphysical fact of “objective muddle that constitutes the cause of Rashi’s position on “ein breira”. Or yet in another way, let us consider R. Aharon Kotler’s claim, viewed as incomprehensible by Hirsch that “only prophecy” can resolve “breirah” cases according to the “ein breirist” of Rashi. While Hirsch’s “metaphysical objective muddle as cause” theory cannot “make sense” of this comment, it strikes me as eminently reasonable. If we know for certain as of time ‘t’, not by some probabilistic evidentiary rule such as “rov” or “chazaka”, that “x” are the two measures Reuven will choose then the muddle is never created at time ‘t’. As such, we need not be troubled by “ein breirah”. Despite the impossibility of retroactive resolution, one can drink of the wine, provided one does not drink those two measures picked out by the prophetic revelation.
Two last comments regarding “objective muddle” and “breirah”. First, although I have denied the “objective muddle” or “superposition of contrary states” as the grounds for explaining Rashi and “breirah”, there is certainly much room for this kind of analogy in explaining Talmudic sugyot. Rabbi Joseph Soloveitchik often explained the topic of “bein ha’shmashot” the halakhic category of twilight, termed “safek yom safek laila” not as a case of doubt whether the time period of twilight is either day or night but as a case of both, in other words an “objective muddle”, or “superposition of contrary states” simultaneously possessing properties of both. I am unaware as to whether R. Soloveitchik ever drew the analogy to the Copenhagen interpretation of quantum mechanics but I am quite certain that is what he had in mind. On a similar note, in many of his meta-halakhic writings he claimed that the Halakha operates with “non-standard” logic and even went so far as to state that Halakha denied the law of the excluded middle. I also think that Hirsch’s claim in footnote 36 regarding cases of “safek” marriage in certain types of cases is but the tip of the iceberg regarding similar cases and indicates that numerous Talmudic topics may be amenable to this kind of treatment.
Second, while Hirsch has devoted the lion’s share of his efforts to working through the prism of Rashi, I have tried to show that Rashi is not that interesting. Although I am not sure that this is an argument, except for the brief exception of Tosfot at Gittin 74b, Rashi’s supposedly difficult position is never mentioned or attacked in the entire medieval literature on “breirah”. In fact, Tosfot at Eruvin 37b quotes “Rashi’s position” in the name of Mahri approvingly. In contrast, it seems to me that the actual position of “ein breirah” as defined by Hirsch and for some reason attributed specifically to Rashi, his PPI, is the truly interesting claim.

PPI: If it is indeterminate at time t whether a proposition p is true at t, then it is always indeterminate whether p is true at t. In terms of facts, the principle says that if it is indeterminate at time t whether a certain fact obtains at t, then it is always indeterminate whether that fact obtains at t.

This is fascinating. In my opinion, what is says about the impossibility of retroactivity in general, to say nothing of its perspective on time and knowledge remains to be worked out on both the Talmudic and philosophical levels.