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.
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.
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);
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.
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.