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.


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.)


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.)

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