Halakhah and Phenomenology – The Unperceived

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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.


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.

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    […] parallels what we saw about how doubt is treated as a mixture. Or, as the Bavli put it “isah” — literally: dough or mixture […]

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