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11 - Ḥazakah: presumptive state

Published online by Cambridge University Press:  06 January 2010

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Summary

The principle of ḥazakah is found in numerous Talmudic passages. It is probably the most ubiquitous of all Talmudic themes. The term is from a root meaning ‘to be strong’, ‘to persist in’, ‘to grasp’, hence ḥazakah means’ to follow the presumptive state’, ‘that which has been seized hold of. Where there is a doubt in law or in the circumstances of a given case, the matter under consideration is not treated as a mere doubt but as if it were a certainty. It remains in that presumptive state which obtained when the doubt arose. If, for instance, there is a doubt whether a given piece of meat is kasher, it is forbidden but only as a doubtful prohibition. But if the doubt arose whether an animal had been properly slaughtered it is treated as forbidden as if it were a certainty, because here there is a presumptive state, the animal while alive being forbidden. Similarly, if a husband delivered to his wife a doubtful get she is treated as a married woman not by doubt but by certainty, since before the get had been delivered she had the presumptive status of a married woman and she remains in this state until she has definitely emerged from it. Thus ḥazakah determines the law in all cases of doubt so that the matter is no longer treated as doubtful. Naturally, ḥazakah does not tell us anything about the actuality of the law or the circumstances. It does not tell us, for instance, that where there are doubts regarding the slaughtering of the animal the animal has not really been slaughtered correctly.

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The Talmudic Argument
A Study in Talmudic Reasoning and Methodology
, pp. 110 - 114
Publisher: Cambridge University Press
Print publication year: 1984

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