Zalman Rothschild, reviewing 'The Birth of Doubt' by Moshe Halbertal, writes in Marginalia
One of Halbertal’s case-studies is of doubt surrounding the legal status of meat. The Babylonian Talmud – redacted in the late rabbinic period (seventh century CE) – records the following rule: if one forgets from which store he purchased a piece of meat, then despite the fact that nine out of ten neighborhood stores are owned and operated by Jews, if even one is owned and operated by a non-Jew, the piece of meat is deemed not kosher.
This sounds reasonable. When buying meat one should remember which shop one bought it from so as to kvetch about what a rogue the owner is.
However, if one chances upon a piece of abandoned meat in the street, then even if only a slight majority of neighborhood stores are owned and operated by Jewish butchers, the slightly greater probability that the meat originated from a kosher butchery renders it kosher.
Coz guys scouring the streets for discarded pieces of meat really oughtn't to be held to too strict a halachic standard. Say ess gezunterheit- eat in good health- and leave it at that.
The puzzling disparate treatment of two hypothetical pieces of meat in the same neighborhood is grounded by the Talmud in the formalistic legal distinction between that which is “fixed in its place” and that which is “uprooted from its source” – a justification Halbertal rightly finds unsatisfactory.
Why? What is 'fixed in place' is a sample drawn from an homogenous population. What is 'uprooted from its source' belongs to an heterogenous population. Thus, if there are two things it can be- kosher or non kosher- the probability is equal unless we know something about the original population.
Obviously, having homogenous populations with a known probability distributions is better because this reduces uncertainty.
Halbertal helpfully locates an earlier parallel source which offers a different type of distinction: this time not between purchased meat and found meat, but between two types of purchases, one from a store and the other from a booth at the market. With respect to a store, any degree of doubt regarding the meat renders it unkosher.
This makes sense. A store run by a reputable businessman will acquire kosher certification or, at least, show concern to maintain standards and thus a good reputation. Shops in Golders Green are likely to prominently display Kosher certification unless they aren't in fact kosher. But, equally, booths selling 'Granny Cohen's meat pies' at a Charity event should be deemed to be kosher even though they have no certification because it would not be practical to inquire as to the reputation of the bubbe in question.
But in the case of the market, only doubt involving a fifty or higher percent probability that the meat is unkosher renders it unfit for consumption. In other words, even if a slim majority of the butchers selling meat in the market are Jewish, that slight probability tilts the scale such that one may assume the meat is kosher. Although the fifty-one percent probability is the same if the meat was purchased from a shop or a booth in a market, Jewish law treats them differently. Why? Here, Halbertal offers a compelling explanation.
The only 'compelling explanation' is Statistical. It seems that the Rabbis had adopted the correct decision rule. This is no great surprise given that Robert Aumann has found far more sophisticated game theoretic solution concepts in the Talmud.
Halbertal makes sense of these disparate and seemingly arbitrary standards for determining permissible consumption by drawing attention to the early rabbis’ sensitivity to the chaotic nature of the public marketplace and human frailty.
Back then, everything was equally 'chaotic'; human frailty was greater and obtained within private dwelling places just as much as in the public market place.
Early rabbinic authorities appreciated that a purchaser of meat in a busy market is more prone to forgetting from whom he made his purchases.
I forget where I bought my bread. But if it hadn't been from a local shop or supermarket, I'd remember that. All we need is a habit of shopping responsible rather than dealing with shady vendors operating out of the back of a van.
The anxiety surrounding doubt as to the source of the meat and a responsive draconian rule requiring one to assume the worst when in doubt would disincentivize merchants from participating in public markets.
No it wouldn't. It would incentivize 'certification' which creates a 'separating equilibrium' which in turn incentivizes reputable vendors with scale and scope economies to enter the market in a big way. Before there was writing, there were seals which certified quality and quantity across a vast trading networks.
The earliest stratum of rabbinic law,
appears two or three thousand years after sophisticated trading networks and regulated markets had established themselves in the region
with great foresight and sensitivity, established a rule according to which the Jewish merchant can enter the marketplace armed with confidence that an entire system of laws would be implicated in any situation of legal doubt, and that this system of laws does not stringently require him to dispose of anything he purchased for which he does not have near certainty that it is kosher.
The problem with this view is that Jewish law developed later than norms of commercial activity. The distinction between 'booths' and 'stores' argues for a sophisticated economic life with specialist retail enterprises as well as the more traditional 'market day' stalls.
On its face, Halbertal is merely doing the work of a diligent philologist. He is tracing parallel sources, noting their discrepancies, and parsing their differences – a service of undoubtable value to scholars of early rabbinics. In fact, he is doing more than just making a philological scholarly contribution. He is also subtly demonstrating how a rule from Judaism’s foundational era has significant implications for early rabbinic values and priorities even as it was passed over by later Jewish legal authorities.
Philologists aren't required to be commercially savvy. Yet commerce predates written language by thousands of years. It is merely a legal fiction that first there is a principle and then there are cases where that principle applies. The truth is that the arrow of causality flies in the opposite direction.
Conducting a textual archeological dig of sorts, he unearths an early stratum of Jewish law that has been obscured by eighteen centuries of Jewish legal discourse. In doing so, he foregrounds a forgotten value that can rightly be called a founding principle of Jewish law. That value can be described as recognizing the power of doubt and destabilizing it in the face of religious-legal anxiety.
It appears that standardization and certification of tradable goods was a feature of very ancient civilizations like that of the Indus Valley which were in fact linked up to each other through international trade. As the Jews developed into a mercantile people, they, quite naturally, adopted the commercial law of other, more ancient nations and Empires. What was distinctive about Jewish legal reasoning was its 'game theoretic' embrace of 'defeasibility'. This meant that they were less reliant on exogenous rulings and had a 'principle of harmonious construction' such that 'in-group' transactions could burgeon without reliance on external enforcement mechanisms- i.e. appeal to non-Jewish judicial authorities. This is also a feature of other successful mercantile sects. What made Judaism exceptional was the quality of the intellect expended on such matters. As a result, we now have Nobel Laureate Robert Aumann- himself, no doubt, descended from Rabbinic scholars- finding Game Theory in the Talmud.
Halbertal provides another example of rabbinic sensitivity to the phenomenon of doubt, this time from the laws of purity and impurity. These laws, discussed extensively in the Hebrew Bible, have as their design the aim of segregation. If one is deemed impure because one has touched a corpse, for example, one is instructed to separate from society until the impurity is lifted. One’s own impurity is contagious and causes those with whom one comes into contact to become impure as well.
All ancient cultures had similar rules.
Thus, Biblical law created a stringent set of rules surrounding impurity, which early Jewish law further developed. But, as Halbertal deftly shows, it developed these laws with an unexpected twist.
One way of resolving doubts is by having a 'buck stopped' juristic process- i.e. a local court. It may be that centers of the Jewish diaspora competed with each other by making such juristic processes protocol bound and ratiocinative in a compelling and attractive manner. The extraordinary efflorescence of mathematical and scientific discovery among the Law Minded Ashkenazi may have some connection with their previous over-cultivation of Rabbinic reasoning. But that connection was negative for people like Solomon Maimon. Legalism needed to be dialled down so laws in nature could be discovered.
Early rabbinic law provided a system of rules for when one is in a state of doubt over whether one had touched an impure object.
So did Hinduism. The higher the pathogen load the more elaborate (and useless) such ritual rules are.
Because impurity was taken very seriously in the Hebrew Bible, early rabbinic law took great care to treat it with comparable seriousness (even as much of it was irrelevant in the era in which these laws were codified). Thus, when one is not sure whether one touched a corpse, early Jewish law mandates that one assume the worst; absent surety to the contrary, one who has doubt whether one came into contact with something impure must segregate from society.
This makes sense from the pathogen avoidance point of view. We must segregate returning astronauts coz everybody knows they are infested with alien viruses and will probably turn into shape shifting lizard people.
But, strangely, early rabbinic law inserted a wildly different rule for doubts regarding whether one came into contact with impurity in the public domain.
So as not to be reduced to a laughing stock.
There, the rule is flipped; one can assume the best and is deemed pure absent surety that one in fact did come into contact with impurity.
Coz everybody else is okay. What do you think is going to happen to me if I go to the shops? Will I turn into a werewolf?
Early Jewish law’s opposite rules for the private and public domain resulted in a peculiar outcome: if an elderly person on her death bed about whom there is uncertainty whether she is alive or dead is moved from her home to the public domain, she is considered alive and pure and anyone who touches her is deemed pure, too. But the moment she is moved back to her home, upon crossing the threshold she is considered dead and impure, and anyone who touches her is in turn deemed impure, as well.
Makes sense. If she's being moved out of her house for medical attention, or something similar, chances are she is alive. In any case, if she is dead, the fact will soon be apparent.
Halebrtal explains the disparate treatment of the private and public domain similarly to how he explains its divergent rules regarding the status of meat. The rationale governing these purity rules is that uncertainty should not trigger paralyzing religious dread such that one can no longer enter public spheres and interact with society.
The Jewish Religion, like other Religions, needed to instill 'overpowering religious dread' of entering the Holy Sanctuary when drunk or on a dare. But pathogen stress, too, militated for a common set of rule-set.
The rules pertaining to uncertainty with respect to the status of meat and impurity were thus designed, in Halbertal’s view, precisely to enable entering spaces that invite uncertainty – the market in the case of forbidden foods, and the public domain with respect to impurity.
The opposite is more likely. The necessity of entering public spaces, which were likely to be under foreign authority, would militate for Rabbis interpreting ritual law in a permissive manner
By bringing attention to the very first encounters with uncertainty in early rabbinic literature (the Mishna and Tosefta), Halbertal insightfully demonstrates the ways in which early Jewish legal authorities were keenly interested in “demarcate[ing] and limit[ing] the destabilizing power of doubt and fear of uncertainty.” The heaps of laws surrounding states of uncertainty – which Halbertal correctly describes as some of the most complex areas of Jewish law – were not designed, by virtue of their sheer volume and complexity, to increase anxiety but to quell it. Early rabbinic engagement with doubt was thus an expression of liberation, not legal bondage.
Or was driven by the simple desire for survival or not being disintermediated entirely.
Its intent was not to compound hair-splitting laws on top of likely never-to-be-experienced hypotheticals for the sake of burdening Jews with laws where none previously existed,
Yet, Solomon Maimon says this is exactly what was happening in Eighteenth Century Poland.
thereby adding to their already extensive repertoire of rules. Rather, this complex system was intended to free up the Jewish practitioner.
But just rejecting the thing and joining a Reform Synagogue was more effective.
The alternative to a system of norms surrounding legal doubts is not license to do as one pleases when confronted with doubt, but paralyzing religious anxiety.
Or ignoring the orthodox and doing well in life.
The default, according to Halbertal, is to assume the worst in any situation involving doubt. Thus, a merchant who frequents the public market and forgets from whom he purchased meat would err on the side of stringency – as did Jewish sectarians, in Halbertal’s estimation – and assume the meat is not kosher. The rabbinic rule that so long as fifty-one percent of the butchers at the market are Jewish, meat about which there is doubt is deemed kosher encourages societal engagement. With laws of doubt in place, one could enter the market confident that Jewish law allows for human error and provides a ready system of detailed and forgiving laws to which one could resort when needed.
Ultimately, the Law is a service industry. At the margin, jurisdiction shopping occurs. But tipping points may be reached where the thing simply disappears or is confined to a lunatic fringe.
Those concerned with Jewish law’s foundational period and the values on which it is premised will find in The Birth of Doubt not only an erudite scholarly study of some of the most complicated laws in rabbinic literature, but also a timely reflection on several important values – one of which is the early rabbinic agenda of advancing engagement with society.
The best way to engage with Society is to accept mainstread endoxa and mores. Surely that is not what Rabbinical Judaism proposes? Instead, it is a rational, protocol bound, juristic process which, under Diaspora conditions, had a competitive element. It is competition- which may appear as 'blind' and 'wasteful' as Evolution itself- which conquers Knightian Uncertainty. However, as Robert Aumann pointed out, Rabbinical Judaism rejects unanimity- i.e. valorizes diversity as a source of robustness. I may add that it rejects the 'bat kol', the voice from Heaven which gives Certainty, preferring protocol bound ratiocinative mechanisms founded in Doubt. It also has a notion of 'halachah vein morin kein'- the law, which if known, forbids its own application. Nevertheless, as Solomon Maimon pointed out, Judaism has at times faced a problem of hypertrophying laws and regulations. Doubt itself, it seems, can have a paralysing or fossilising effect.
In The Birth of Doubt, Halbertal not only unearths a particular phenomenon regarding a few specific laws, but brings awareness to a gestalt that, if taken seriously, compels one to see early Jewish law in a different light.
Surely, it is preferable to see it in the same light as its current operation? Mussar ethics is itself a suave economia which finds equitable workarounds for a rigid akriebia.
It pushes one to reckon with its deep humanity and see it not as a draconian and exacting system of norms concerned only with obedience and perfection, but also as a deeply humanistic enterprise that took into serious consideration other human needs.
And, as such, is a reflection of God's care for Creation. The reason Judaism has survived is not because it is humanistic or rational or ethical. It is because God created the World and will populate the Hereafter according to His Lawful Will.