Given the thought of my previous post we need to subdivide reality into three categories: that which no person could have observed, that which someone could have observed, but didn’t, and that which someone did actually observe.

There is a more elaborate example at this appendix to a seifer I might complete someday. The following covers a much smaller range of examples, but I believe it does so more clearly.
The Unobservable:

The most commonly cited case of an unobservable object is a microscopic mite, or another animal that would fall into a non-kosher class if it were large enough to be seen with the naked eye. These “bugs” are kosher. In fact, we recently had the issue of copepods appearing in the New York City tap water. These are crustaceans that can be seen, but are only identifiable by the naked eye as living things by watching their motion. (Their motion is in patterns like living beings, not following the random brownian motion of dust.)

My rebbe, Rav Dovid Lifshitz, invoked the idea in a second case. 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.
The unobservable simply don’t exist.

The Unobserved:

In the case of something that is observable but happened not to be seen, we aren’t dealing only with whether it is part of human experience, but also whether the person is culpable for not bothering to check, but more centrally to our question — how the person who is now in doubt responds to the item because of that doubt.

In this domain we have the rule of rov, following the majority.

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 assume that any given piece came from the rov – it’s kosher. Since each piece is kosher, each can be eaten, even one after the other! (According to some opinions, even mixed together as a single dish!)

I would argue that this is because the law of rov is not about how to play the odds, but about how people respond to the meat. As observed, each peice of meat is 1/3 neveilah, and it is on that state of observation that we pasqen. Not 1/3 in terms of odds of eating non-kosher, but 1/3 in terms of how we relate to each piece of meat. And thus, no piece is experienced as probably veilah, and all three are kosher; even to be eaten one after the other. Wheras if we were playing the odds about an objective reality, the odds would have combined to knowing you ate the neveilah at some point.
The Observed:

But once something observable actually has been observed, rov does not apply. For example, kol kavu’ah kemechtzah al mechtzah dami — all items for whcih the halakhah was once established, but now doubt arose as to what that halakhah is, are to be treated like a 50:50 uncertainty.

Rabbi Akiva Eiger (Shu”t #136) generalizes this and states that there are two types of birur (doubt resolution): ways that resolve what to do when the halachah is uncertain, and the question we explored in the last section – ways of applying halachah to uncertain situations. Majority only applies in the latter case.

As per above, I would argue that’s because it’s only the case of the uncertain situation that halakhah needs to rule about a reality-as-experienced that contains things in partial states. Something that is “1/3 neveilah“. Once the question is one of halakhah, one doesn’t have this existential aspect, and either something is, or isn’t.

So, had our above three pieces of meat come from three known stores, two known to be kosher and one not, but now I do not know which is which, it’s a case of kavu’ah. The meat can not be determined by majority, and therefore is not kosher (even individually). Again, because now I’m not wondering about the experiencable reality, so my wonder can not be itself treated as part of the metzi’us, the facts of the case.

One last example: the testimony of witnesses. The Torah says, “al pi shenayim o sheloshah eidim yumas hameis — on the say-so of two or three witnesses the condemned is killed.” Chazal ask, if two people is sufficient, why need it say three? The gemara uses this as proof of the concept of “terei kemei’ah — two witnesses are like 100″. The way the Shev Shemaatsa puts it, if you have two conflicting testimonies, “it is like a doubt of equal sides”, and therefore regardless if one party has only the minimal two witnesses and another has 100, the sides are equal.

Another case of an observed reality; whichever side had honest and accurate witnesses did observe what they’re testifying to. Since majority only applies in a case of an unknown but observable reality, majority does not apply in assigning credibility to conflicting testimony.
Another area where the notion of halakhah relating to human experience rather than a theoretical objective reality could help explain a difficult ruling is that of nosein ta’am in kashrus. Usually ta’am is translated “taste”, and therefore understood in terms of microscopic amounts of the food being absorbed into the walls of a hot utensil. But ta’am also has to do with thought or reason, something that “flavors” basic facts. As in ta’am hamitzvah as a term for a reason for or a lesson to be learned from a mitvah. If we take ta’am in this sense, I believe many of the more difficult halakhos involved are resolved.

If chicken soup is cooked in a milchig pot, Ashkenazim are stringent unless the soup is more than 60 times (or perhaps 59) the volume of the walls and floor of the pot itself. (Sepharadim instead rely on a non-Jew actually tasting the food.) If ta’am meant a microscopic about that could be absorbed by the metal, the Ashkenazi requirement is unjustifiable. After all, metal does not absorb anything near 1/60 of its volume, something acknowledged by the usual use of the idea of “microscopic amounts” in explaining the word ta’am. The total amount absorbed in the metal of the pot would never be anything near enough to use the entire volume as an estimate. Bitul beshishim (anullment by one part in sixty) would always apply when comparing the amount in the metal of the pot vs the amount the pot holds in the usual way.

However, if ta’am here refers to how we think of the pot, the question is a non-issue. Ashkenazim rule that thinking of the pot as a fleishig utensil lends its status to the object, whereas Sepharadim rule that it’s a question of whether a person can experience the milk that the pot is usually used with.