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Halakhah and Phenomenology - Chazaqah

Posted: 24 Apr 2009 10:33 AM PDT
http://feedproxy.google.com/~r/Aspaqlaria/~3/srODmFS4qxc/halakhah-and-phenomenology-4.shtml


At this point were so far mid-stream, that unlike the previous post, Im 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  
well discuss the concept of chazaqah and conclude with an observation of  
how these rules of birur interplay.

There are two sorts of logic used:

Qavuah logic: the reality was once experienced, so the halakhah was once  
established, but now unknown. This includes cases of qavuah, eidus and  
hapeh sheasar, 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. Its the doubt that becomes the topic  
that we decide halakhah upon. Rov isnt what is more probable as treated in  
a mathematical, statistical, way. Its not estimates about scientific  
reality, its 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.
Chazaqah

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 qavuah 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 Shmaatsa 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 cant 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 deikka reiusa (a chazaqah where there exists a flaw).  
Which in general would still have some significance (Shev Shmaatsa 1:7,8).  
However, here it is trumped by the chazqah the meat holds, that before it  
was slaughtered it wasnt 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 Shmaatsa continues, adds no credibility to that  
sides 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 qavuah and as testimony. If halakhah must address the world  
as experienced, this is how people last experienced the world.

Its 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 its not natural to consider that possibility; its 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, its 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 Shmaatsas distinction, I dont have much to  
say about it. So in the next section of this post, we will only be  
discussing the chazaqah demeiikara, 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 rl who says  
he has children. Abayei adds to the case (because of a contrast to a  
halakhah in a related beraisa) that we didnt know anything about his having  
children. Therefore after his death, she stands in a chazaqah of not being  
a yevamah  she obviously wasnt 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 its a different reason then the existence of a better lie  
(migo) but the point is the same.
So, permitting her to remarry is supported by a chazaqah, but prohibiting  
her is a migo (or a migo-like structure).
The man is believed. The conclusion of the gemara is that a migo trumps a  
chazaqah.

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);

and yet:

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  
qavuah 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 didnt 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 qavuah, where we know something was perceived but we  
dont know what, we said that quantity doesnt matter. Therefore, with the  
migo added into the balance of eidim, its like more eidim added to the  
balance  the sides are still considered equally. (Again: This is the notion  
that once halakhah is established, we dont 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 its 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.
Conclusion

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 (qavuah), time went by  
and something might have changed (chazaqah demeikara), or we dont know  
which person really accurately is reporting their perception (conflicting  
testimony or the claimant is a litigant but migo or hapeh sheasar 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.



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