Aaron Alexander

Certainty, Obviously

With so much heated debate around how to make complex financial decisions with public funds, it may be helpful to illustrate a few legal principles from within the Jewish tradition that can help animate — and perhaps influence — the discussions.

One essential civil law principle worth noting: ha-motzi mei-haveiro, alav ha-re’aya — the one who comes to extract money shoulders the burden of proof. In other words, the status quo is generally upheld until the plaintiff can make a compelling case for a court-imposed collection.  To be sure, the bar is usually set high for retrieval. Witnesses are critical, as well as written documentation.

The application of other principles inform the above. Jewish Law (here, civil law) often determines rulings by a logical equation of “that which is certain“ vs. “that which is uncertain.” Certainty, obviously, is generally given more weight (bari ve-shema, bari adif). And, according to some Talmudic authorities, certainly can even be asserted without supporting evidence, especially if the claim is thought to be courageous. The admitted doubt of one party–and the confidence of the other–as to what took place, is sufficient to render a ruling.

The intricacies of these legal principles provide for an indeterminate number of outcomes based on holistic factors. But beneath the particulars, core concerns emerge which drive consensus on monetary quandries.

  • More spending/collection requires substantial evidence
  • Claims for money with doubt-filled assertions and no fact-based assessments are specious, and easy to dismiss
  •  Facts matter. It is only when they can’t be provided that first-hand and differing accounts are taken seriously and weighed for the the likelihood of their respective conditions.

How can these principles and values be applied to specific cases, let’s say around the discretionary use of public funds for security concerns? They can provide a set of important questions and assumptions:

  1. Is the expense necessary? This includes both first-hand accounts as well as documentation. The bar is high, so the evidence must be thorough.  Consequences of action or inaction must be taken into account.
  2. Are there claims of certainty and uncertainty? If the evidence leads to more certainty from one side, that ought to be preferred by decision makers. Only without supporting evidence can uncertainty be elevated, all things being equal, to that of certainty.

Application is complicated, of course. It’s easy to map on one set of principles to a case that ought to be governed by a different group of principles. But any specific articulation of law lends itself to an expanded understanding of how to thoughtfully assess a similar case.  It must be done carefully, and the assumptions could very well be dismissed, but it is important to use the tools provided when the stakes are so high.

Whether the question is personal, communal, national, or global–when money is extracted from one party by another–a cogent and credible case must be made for the appropriation of these funds.

For that we should be certain.

About the Author
Rabbi Aaron Alexander is Co-Senior Rabbi of Adas Israel Congregation in Washington, D.C. He previously served as Associate Dean of the Ziegler School of Rabbinic Studies at American Jewish University.
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