The Oral Talmud: Episode 12 - The Ideal Person (Sanhedrin 17a-17b)
SHOW NOTES
“And in Jewish law, if you get 23 Jews to agree on something? You know something is wrong!” - Benay Lappe
Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today.
Come and learn Benay’s favorite text in all Talmud: L’Taher et HaSheretz! Here the Rabbis ask what qualities are required in someone who will serve in the ancient Jewish court system, the Sanhedrin. We get two very different, absolutely radical opinions, and the second will be our jumping off point for the next few episodes.
Are the story sections and legal sections of Talmud really all that different? How do they relate to each other? When do we desire unanimity, and when is it a sign of a greater problem? Who do we want in charge of decisions of life and death? How do the Rabbis teach us to overturn Torah this time?
This week’s text: Who is Fit for the Sanhedrin (Sanhedrin 17a-17b)
Access the Sefaria Source Sheet to explore key Talmud texts and find the original video of our discussion. The Oral Talmud is a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. If you’re enjoying this podcast, please help us keep both fabulous Jewish organizations going with a one-time or monthly tax-deductible donation.
Further Learning
[1] Robert Cover's "Nomos & Narrative" (PDF link)
[2] Alav HaShalom (wikipedia)
[3] "Fauci Blames 'Anti-Science Bias' for People Not Following COVID-19 Rules" (Article on Newsweek)
[4] "A Sanhedrin that executes someone once in seven/seventy years is a bloody court" - Makkot 7a
[5] Alan Dershowitz "Letters to a Young Lawyer" (on Goodreads)
[6] If the Sanhedrin witnesses the murder, the recuse themselves: ???
[7] Yochanan ben Zakkai's deathbed (clip from Ep 1 on Instagram)
[8] Rabban Gamliel's Criteria for who can be in the Beit Midrash - Oral Talmud Episode 7
[9] Maggie Anton, author of Rashi's Daughters (Maggie's Website)
[10] "The Iranian Talmud: Reading the Bavli in Its Sasanian Context" by Shai Secunda (via PennPress)
[11] Rabbi Natan Margalit (his Website) - no source for his work on Talmud rhetoric to aim memorization (Chiastic strurcture on wikipedia)
[12] Richard Elliot Friedman, Oral Traditions (his website)
[13] Joseph, Coat Many Colours - Genesis 37:3
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DAN: This is The Oral Talmud - Episode 12: The Ideal Person. Welcome to The Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…
BENAY: …and I’m Benay Lappe.
DAN: The Oral Talmud is our weekly deep dive study partnership, in which we try to figure out how voices from the Talmud – voices from 1500 to 2000 years ago – can help us think in new ways about Judaism today.
We’re starting a new text today, which will be the jumping off point for our next few episodes. So, if this conversation sparks a ton of ideas for you (and your study partner, if you have one), you’re in luck because we’ll be sticking to this theme for a few weeks.
Our text today looks at the qualities that the sages of the Talmud thought should be required in a person before they could serve on the ancient Jewish court, the Sanhedrin. We think that this text, and others like it that we will look at in future weeks, point to the qualities that the sages thought were important for human beings in general to develop – what BENAY calls the “Jewish kind of person” that the Rabbinic project aimed to bring about.
A quick reminder - this episode was recorded in the Summer of 2020, so there are a few timely references to Dr. Anthony Fauci and to the movement to Defund the Police, which were generating national attention during that time.
Each episode of The Oral Talmud has a Source Sheet linked in the show notes on a web site called Sefaria where you can find pretty much any Jewish text in the original and in translation. If you wish, you can follow along with the texts we discuss and share them with your study partners or just listen to our conversation!
One request before we get started – if you’re enjoying listening, could you please rate and review The Oral Talmud on whatever podcast platform you use to listen to the show. It helps other people find the podcast and gives more people an opportunity to find out what’s so great about the Talmud.
And now, The Oral Talmud…
DAN: So today we are going to look at a text that is the first text that we're covering on this show that's not structured as a story as what the, you can call aggadah or something that's basically structured in the form of a story – but rather something that's structured as what's called halakha, really a legal text or something that's structured as more or less an analytical, rule-oriented text, that's trying to get at, “well, what are we supposed to do” in more direct terms.
I think that one thing, Benay, I would just ask you to reflect a little bit about as you set it up also, is like, is there really a difference? You know, meaning are, are the story texts really just kind of legal texts in a different form and vice versa? Or do you see a really profound difference between those?
BENAY: Well, it used to be seen, um, as a completely different kind of literature. That is the, the story stuff was seen as not that important and extraneous and extra. And the stuff that you sort of quote"e teach women, that's okay if they learn it because it's, it's, it's not all that important big sticky on that whole thing. Um, and the legal stuff, that's really the important stuff.
And with Robert Cover, alav haShalom, he, he started saying, oh. When, maybe 25 or so years ago that, wait a minute, we're miss, pardon me?
DAN: I think it was a lot longer. Sadly.
BENAY: Was it a lot longer? Okay. So maybe that's when I read his piece, uh, which is in the Harvard Law Review called Nomos and Narrative. Um, and I think he was the first person to really say, Hey, you've all missed the fact that the story stuff and the legal stuff are actually intertwined in a very, um, important way. And, uh, Barry Wimpfheimer, who we had on our show also fleshes this out in his work.
And that is the new idea, is that the quote unquote “stories” actually problematize, complexify, and challenge the legal material to essentially say, “Hey, you know, we, we have this nice, clear statement of law or debate about law, but you know what, it's actually more complex. My lived life experience tells me, and here's a story from our experience that makes that simple statement of law, uh, too simple. And we, we need to destabilize it and we need to complexify it.”
And as a queer person whose lived life experience really reveals the inadequacy of simple understandings of how the world should be including law, this feels very, very resonant and true for me. And I think it's, it's, um, if you read it as a queer person or through the lens of knowing what the ways that your life experience challenge accepted ideas, you go, “oh wow. I, I see what this story is doing.” Mm. So, um, they, they are intertwined, I think.
DAN: Yeah. I think that's a something we should return to again and again, that question because uh, for sure, for sure. It's what you're saying.
And I wonder even more whether the story stuff is actually the most important legal stuff. And the tragedy of putting it in the realm of, you know what, of course I would say, which should be in an honored position of things that are for women. But what they meant was that it was a dishonor position. That it's, uh, just for women that, that, that stuff, it's like they threw out effectively the most important stuff. And that comes from all kinds of complex reasons.
But that if you think about it, sort of evolutionarily, if you think about humans as basically animals. That we're hardwired to learn through storytelling. I've actually been increasingly frustrated as a post-enlightenment person at how much people are not hardwired to learn through factual reason and analysis. Actually, there was something just the other day where Dr. Fauci, you know, who's the head of, of our response to the coronavirus, was kind of lamenting in a, in a certain way that, you know, they're just these people out there who, like, they're just, uh, oriented not to listen to science, you know, whoever you're talking about.
But I actually think that that's not unusual, meaning it's, it's actually hard for people as creatures. It's hard for them, hard for us to take in ideas that are merely put out there as ideas. And it's actually extremely easy to take in ideas in the form of a story or maybe other types of, uh. So say technologies that pass along wisdom, like Proverbs or songs or all these kind of technologies and in some ways like that analytical stuff is the, the least easy to take in.
And you, and so it's either the case that the, that the rabbis understood that, and therefore they put them more important stuff in the form of stories – or they didn't understand it, and tragically, a lot of their, their stuff is not really, was never really all that effective because they failed to put it in the form of stories.
BENAY: I think they did understand it, which is why there's this constant back and forth between argumentation about law, and stories which inform, push, undermine, destabilize, complexify that law and it.
I think it was in part the effort, the, the, the misunderstanding of the quote unquote “story,” which led to the, um, deemphasis in, in the sort of mental, uh, sifting out of that, those narratives which left a document that people have as a - partly as a result, misread as a code. And it, it's, it's left the Talmud, um, victim of, of kind of a misunderstanding because it, it, it's been read largely without the realization of the importance of all of the narratives and therefore becomes code. And that's never what it was intended to be.
DAN: Hmm.
BENAY: Um.
DAN: All right. Well, so let's, so tell us a little bit about this setup for this particular text.
BENAY: Okay, so this, this is the first passage that we're discussing on this show that is not in the category of quote unquote story or aggadah, but it's a legal, um, passage. And it's in the tractate of Sanhedrin, which deals generally with courts judicial processes.
The Sanhedrin is the big, um, court and court system. So this Tractate is dealing with the various levels of courts, uh, evidentiary procedures, requirements for judges, punishments, meted out by courts. Um, so that's our general, um, court. (I'm getting a, are you? Am I okay? )
DAN: You're okay.
BENAY: Okay. So that's the general, um, context and the tractate that we're in. So I just wanna set this up by describing just the tiniest bit about the court system.
So this is Jewish Judicial System 101. So there are three kinds of quarts. There is a beit din, that's a court of three. There is a Sanhedrin, a lower Sanhedrin, which is a court of 23. And a high Sanhedrin, or a Great Sanhedrin, which is a court of 71.
And each of these courts deals with a different kind of case. So, unlike our legal system that divides up over civil and criminal, the Jewish legal system divides up over what kind of punishment would be meted out if a person were guilty.
So is it a monetary case or is it a capital case? So if it's a monetary case, meaning a case which, uh, the punishment for a guilty party would be a fine – that's adjudicated by a court of three, that's a Sanhedrin.
If we have a capital case, a case for which a defendant if found guilty would be executed. Um, that's dealt with by a court of 23 – and P.S. um, the rabbis found capital punishment, which was, uh, described and called for in Torah, they found it very distasteful, and it said that “a Sanhedrin, that found someone guilty of a capital crime in seven years and others say in 70 years was a kind of bloody court.” So they, they did everything they could to make that not happen.
And finally, the court of 71, the Great Sanhedrin, dealt with cases like Declarations of War, um, Setting the Calendar, Declaring a False Profit, uh, Appointing Judges to the court of 70 of uh, 23 and so on.
Okay, so that's a little bit about the legal system. And our text deals with the court of 23: A Sanhedrin that is adjudicating capital cases and deciding life and death for the defendant. Okay. Um, so here we go.
DAN: Okay. So, um, so. Let's, uh, start. Yeah.
BENAY: I, I, I think I'll throw one more thing in, which is even though I feel like saying I love this text. This is my favorite text. Every single time we learn something, this is actually my favorite text – if there's only one text that I could ever teach, right? If you're gonna give me one hour and you're gonna, you're gonna say, “Hey, BENAY, tell me something about the Talmud. Gimme an example.” This is the text. I always choose. This one.
DAN: It's, we should, we shoulda built the episode that way. We should market. That would be good marketing. Tell me.
BENAY: Sorry. Okay.
DAN: Okay. So, so let's, uh, start. So, um, so the way that, oops. Um, so the way the text starts is as follows:
“Rav Kahanah says in a Sanhedrin - and as you say, a Sanhedrin of 23, where all judges saw fit to convict the defendant. They acquit him.”
So if every, if there's a majority, oh, sorry. If there's a unanimous verdict, it's an acquittal, right? I think we have to, I think we have to start there.
BENAY: Right? So, so the, the, the, the text opens up with a kind of procedural statement. It says, if there is a unanimous verdict in a capital case – every one of the 23 judges votes: Guilty. Guilty, guilty, guilty. Straight down the line to convict. What do we do to the defendant? We set him free.
DAN: Right?
BENAY: So very counter of,
DAN: of, of the American legal system.
BENAY: Exactly the opposite, right? In the American legal system, obviously you could talk more to this than I can. The only time we feel comfortable that we can execute someone in a capital case is when there is a unanimous vote for guilty. Right?
DAN: Right, right. Uh, okay. For, for criminal case – I mean, for civil cases it's different, but, or it could be different, but in criminal cases and for sure, in a death penalty case, it has to be unanimous. That's, that's, uh, you know, obvious, right?
BENAY: Right. Exactly. And in Jewish law, if you get 23 Jews to agree on something, you know something is wrong.
DAN: Right,
BENAY: So it's unanimity of the verdict, which is what calls the verdict into suspicion. And if, if this is the case that everyone agrees, we immediately, um, set the defendant free.
Now, after having said that, this is Rav Kahana who puts this forward. Rav Kahana is in the first generation of what we call amoraim, which is the second stage of rabbis. This is, uh, early third century. Um, the gemara or the editor now puts in the question, “what?! wait a minute, why would we do that? Why would we let the defendant go free if every single one of the 23 judges agrees that he's guilty?” Okay. And here, here comes the answer.
DAN: So the Gamara asks: “What is the reasoning for this rule? It is, the reasoning is since it is learned as a tradition that the suspension of the trial overnight is necessary to create the possibility of an acquittal. And those judges saw fit to convict him. And, and as those judges all saw it fit to convict them, they will not see any further possibility to acquit him.”
So can you explain that?
BENAY: Yeah. Okay. So the, the editor puts in the question, “why, what is the reason that you would, uh, acquit and set free this defendant? If all 23 judges up it?” For sure, a majority, um, found him guilty and the, the editor goes on to say, wait a minute, how come we're not gonna follow the procedure that we know we're supposed to follow anytime a majority rules for conviction.
And we know that the standard rule is if there's any majority, they do what's called a halanot din, which is basically, basically means a sleep on it, a sleepover judgment. And that means that you will, you have to hold over till the next day, the declaration of the verdict - and all the judges have to stay up all night, not eat or drink, and deliberate again on their guilty verdict – in the hopes that after the overnight deliberation, they would take a revote and the revote would show innocent. In other words, there would not be a majority for guilt and the defendant would be exonerated.
And the rule is also that those judges who had ruled innocent on the first day, cannot change their vote to guilty on the revote the next day. But those who had voted, voted guilty could change their vote. So they stay up all night re-arguing the case in the hopes that they'll revote the next day and find the defendant innocent. So the, the editor, the gemara is asking, “Wait a minute, how come in this case, we have a majority, we're not doing this sleepover process?”
And the answer is – and, and the original is, is actually much more beautiful than this translation. The, the original says “these, these guys already are not gonna see him. They don't see him.” In other words, there would be no use in doing a sleepover process. Because we can tell by the mere fact that they've all agreed to Guilty, that not a single one could have said, “wait a minute, I'm not sure.” Or “I think he's innocent,” that they're not truly seeing this person. They're looking at someone who looks screamingly guilty, right?
They look at someone who on, on this person's appearance or at the first consideration of the evidence, um, there's certainty and it's the certainty, which is evidence that the defendant hasn't been truly seen. And if these guys aren't gonna truly see this defendant. They know that there's no hope in the re-deliberation. So I, we, we should sit with that for a minute.
DAN: I mean, I, I think just, this is a technical point, but I think that maybe one of the differences in the legal system described here versus the American or the Anglo-American legal system, is that in the Anglo-American legal system, there's a understanding, an expectation, that the charged party would have a lawyer, and that it's the lawyer's job to provide the vigorous defense. And, you know, that comes into American legal ethics. That it, you know, Alan Dershowitz has written about this and many, many others, right? That the idea that, that you, there's almost a, a obligation within the Anglo-American legal system that your defense counsel provides the most vigorous possible defense, even if it comes right up to the – in fact, I think Alan Dershowitz would say that it must come right up to the ethical line, but not cross it – but that it must come all the way up to the ethical line, because if not, then the, then the defense attorney hasn't really done what is necessary to be done in order to create a fair trial: which is to give the person the best possible defense. And maybe if you have that level of defense, you can give the jury, in this case the jury a different – you know, which I think of the Sanhedrin is analogous to the jury – It has a different role in that since somebody else has played the, the role of the defense attorney, then maybe you could say that unanimity is not as bad, let's say. But, but maybe, maybe not.
I think what's interesting here, if I'm understanding you correctly, is that the notion that there is unanimity, or the fact of unanimity suggests that there's no point in having this overnight, you know, reconsideration because there's nobody really around to give a real defense. There's nobody – you know, it all becomes a theoretical exercise.
BENAY: Yeah.
DAN: They all play the role of advocate. But that's different from, I really believe that this person shouldn't be convicted.
BENAY: Yeah, there's something in the unanimity which implies that true investigation and evaluation hasn't been done. And that, you know, it's as if a mistrial is being called because the judges have been seen as inadequate, and no amount of further process is going to make them more adequate. They are somehow prejudiced to the actual truth of this defendant. There's something going on which is not gonna be solved by reconsideration. And I think that's, I think that's really interesting.
And that launches them into the question of, okay, so who these people are who are sitting on the Sanhedrin is really important, because – Go ahead!
DAN: To that though, can I, uh, – one thing that you, that idea makes me think about is political orthodoxies. And the idea that – I know that a lot of, um, let's say moderate liberals these days, I hear them, I see them on Facebook complaining about the expectation that they should be swept into a particular political movement that they might feel is too radical for them.
And as opposed to an idea that it would be okay to have a debate. Here, I'm talking about progressive to radical circles. I'm not talking about with, you know, conservatives or whatever on the right. But I'm hearing this within the left, that there's concern, that there's an expectation that if you don't sort of fully endorse the most, the more radical perspectives that, that you should just stay quiet. And I'm not sure that, that's only a perception from those who are more like less left of center, that I think that might actually be what the folks who are much farther to the left actually would prefer. And I guess I wonder - we don't have to necessarily talk about it, but I think it's interesting to ponder - whether there's some musar here, you know, some lessons for us across the political spectrum to say that we, we shouldn't actually, we shouldn't, we shouldn't even want that kind of complete endorsement, of even a political view that we strongly believe in.
Like we, we should want debate in society, as much as we want the outcome that we're trying to achieve. I think it's complex and it's not so clear. It depends on the situation. It depends how far gone society is, but I, I do, I do feel like that's what hit me as I was listening to you talk. I was like, well, maybe, maybe there is actually something to say here about our, our political culture and not only of penalty cases.
BENAY: Yeah, I think you're absolutely right. It's very difficult to express, not even so much disagreement, but desire to interrogate assumptions or aspects of a political stance, which you may agree with or you may be largely with. Because there's the perception that it is going to undermine the case – or that it reveals your own, um, you know, moral impurity somehow that you're not – it, it's, I think you're right.
DAN: And then I like the idea though, like, I think it would be interesting, what would it mean to truly embrace this idea that if everybody is with us, we gotta stop. Yeah. You know? Right. If everybody's with us, we better slow this thing down because something is wrong here. Let's make sure that we're actually creating room for dissent. I, yeah. That resonates with me.
BENAY: Yeah, absolutely.
On the other side, what's coming up for me at this particular moment is, you know, the, the whole question about defunding the police.
DAN: mm-hmm.
BENAY: And the efforts that have been made to reform and train and, you know, put restrictions and. And they haven't worked. And they haven't worked. And they haven't worked. And the, you know, you know, maybe this is also suggesting the people involved, the police, maybe so deeply shaped by the racist assumptions of our culture that they, they have to be dismissed, in other words.
You know, as the text says they, they already can't see this person, they can't see the defendant. There's no way they're gonna be able to see the people on the street and treat them fairly. So there's, there's something that resonates.
DAN: Yeah. I absolutely think that's what this is saying, you know? Mm-hmm. It's where I've been trying to explain to people that.
What does defund the police mean? You know, I think fundamentally it means that reform is not possible, right? It doesn't mean there shouldn't be people out there protecting the peace. It should mean that let's start a new organization. We can call them The Shmlice, you know - rabbi, shmabbi - there would be the, they would do a lot of the same things they were doing before, but it would be a new beginning, and we would structure it with certain assumptions and certain practices that were foundational and that could not be abrogated. And those things, for historical reasons and racist reasons - those, those things were there - this is what structural racism means, right? Those things were there from the beginning. They actually can't be undone.
So you start over. It's not the worst thing in the world to start over, you know? And, and it doesn't mean that, you know, if all the police officers are dismissed 'cause you've defunded the police. It doesn't mean they can't be hired as a shmaliceman. You know? I mean, it, they may, they may or may not, but, but it doesn't mean that everybody all of a sudden all the right. You know? But it, that's sort of fundamentally what it means.
And, and I think that the idea that it's the, it's the unanimity that's the problem. It's the, the idea that there's an expectation of this is how the police have to behave. That's, that ipso facto is a problem if people are talking that way, that that's gotta be stopped.
BENAY: Right. And for, for me, the, the equivalent of the unanimity is the understanding, the realization that when you live in a racist society, you are going to hold racist views and unknowingly act in racist ways. Unless you build a system with anti-racist and self-aware, a new, a new worldview.
And this court is being understood to be structurally racist, in other words, systemically, um, growing out of a problematic set of assumptions. And I think that's what the text is implying when it says these guys can't, cannot possibly see this defendant.
DAN: Yes.
BENAY: They have to. It, it, it's not so much that the defendant is being dismissed, it's really the 23 judges who are being deemed inadequate.
DAN: Right. And I mean, it's interesting like just to try to follow the particular case of a criminal case, a capital offense. Right. You, you would – Let's say, right.
When do you achieve unanimity? I mean, you, you can achieve unanimity for all kinds of terrible reasons like racism, but you can also achieve unanimity because like there was a video and there was a smoking, a smoking gun video, literally. Right? And you actually saw it. Right? And so like, how could there not be unanimity? But, but I think there's a suggestion that it's the fact of unanimity even in the case. – I mean, I guess I, I wanna play this out. I wanna think it, think about it. 'cause there's this like, you know, you, you often do in law or in Talmud, is
take the really hard case. Like it's a serial killer. It's a serial killer where there was a video. Right. You know, and it's like, how could there not be unanimity? Well, well there suggested, there should be still some way to say that. Not quite. Like “maybe he had a hard childhood.” You know, I don't know what the, what the, well, well
BENAY: The Talmud actually deals with that. Okay. I, I, I think the, the, the case that illustrates what you're talking about is that the Talmud says in Jewish law requires a court of 23 who themselves have witnessed the murder in front of their eyes. Right. The murder happens in front of the 23. You know what happens?
DAN: I'm, I'm assuming it is not guilty.
BENAY: Those 23 have to recuse themselves
DAN: Yeah.
BENAY: From the court. And a different 23 have to judge the case. Hmm. I'm not sure what to do with that. In other words, there's a case where there's a video essentially.
DAN: Right,
BENAY: right.
DAN: And if all 23 still convicted, then you would be not guilty.
BENAY: Absolutely.
DAN: I mean it, but so it just, it raises the question for me, like, what, what is it that, um, you know, and I, and I asked this question, not, not necessarily with the assumption that this must be the best possible rule, but on the sense that we're giving it the credit of that there's real wisdom here.
What is the wisdom? You know, what is it trying to say to us? That, that even in the most egregious case of, of, uh, criminal wrongdoing, that there should not only should we have some degree of compassion, some degree of listening for what's called in American law, mitigating circumstances, but that we should have so much of that compassion that at least one person is so filled with it that they cannot even cross the line to say conviction, even if there's a video.
Right. So that's a lot. That, that, that's really a lot of, of compassion, empathy, whatever we wanna call it.
BENAY: And I think it's healthy doubt and skepticism. Skepticism of the law, right? Which is requiring me to execute this person, uhhuh, as well as skepticism. And I think that that's where this text goes. It's going to be going to the possibility that what was going on for the judges for, for Rav Kahanah in saying that the defendant should be exonerated is not only an indictment of these 23 – but of the law, these 23 are bound to uphold, which is that the defendant should be executed and the capital. Okay, so
DAN: Is this only for capital cases, by the way?
BENAY: yes, I, as far as I know Uhhuh, that's, yeah,
DAN: I mean, because there certainly, there certainly are, are different laws for capital cases and American law as well. You know, there's, there's, and that it still requires unanimity, but there's, you know, there the law treats it in a, in a different way. So it's interesting. Mm-hmm.
It's interesting if this is only for capital cases because. You know, part of me thinks like this should be for every criminal case. You know, if the, if the wisdom is, is right for capital cases, it should be true for, for other criminal cases because there are a lot of other ways in which people are oppressed to by the law, short of being executed as we know from our society.
And it would be interesting to imagine a, a world in which, again, we had that much compassion and that much understanding of the root causes, et cetera, that we say, you know, there's gotta be at least one person who's so moved by that, that they, that they would refuse to convict only, only then can we be sure that at least there was a reasonable conversation among the judges.
BENAY: Yeah. And I think it has to do with the necessity to look at something or someone and understand that there's something beyond what you can perceive. And it's not only compassion, but it's the recognition that: what is apparent is not complete. What is obvious is not necessarily so, um, that your perception may be, uh, inaccurate. Right.
It's a kind of humility and, um, recognition that we, that we really shouldn't be so sure. And if there's not a single person in this court of 23 that has that ability to say, “Hey, I, we shouldn't be so sure,” you, you know, this, this is a, uh, an invalid, uh, procedure – that it's a mistrial.
DAN: Yeah. You know, it's interesting because I actually was once the lone holdout juror that caused a mistrial in a case. It was actually a drunk driving case. I was, you know, I'm a lawyer and what I took away from that was that as a defense lawyer, you def like – as a prosecutor, what I took away from that was that as a prosecutor, you never wanna have a lawyer on the jury because lawyers oriented to taking the idea of innocent until proven guilty really seriously. And the other jurors were much more on the idea of, uh, you know, does the weight of the evidence show that she was guilty? And it did, you know, and, but as I said, that wasn't the standard. The standard was guilt beyond a reasonable doubt. And they couldn't quite wrap their minds around that and didn't want to – you know.
Now the question though is that I, there was definitely a vigorous debate on that jury because of me. So if I had not been a holdout, she would've been convicted in 10 minutes. Mm-hmm. Instead, you know, we went for a number of hours and we really had it out. I wasn't convinced - they weren’t convinced. But actually there's a reasonable case to be made there, that that was a very legitimate conversation and she should have been held guilty at the end of it because 11 out of 12 people voted for her guilt and there was a vigorous conversation. That's not how the American system works.
The American system instead essentially gave me veto power over her conviction. And in, in a way, I got a twofer, right? Because I got a vigorous conversation and I was still able to prevent her from being found guilty. When I was done with the whole thing I actually had, you know, one of those moments like you described on Yochanan ben Zakkai’s death bed. I mean, I had a lot of sense of guilt. Maybe I didn't do the right thing, you know, maybe, maybe I, uh, let somebody off who's gonna.
You know, the other jurors were saying drunk driving is a really bad offense – And I was like, yes, I agree. It's a bad offense. Yeah. That's why I don't wanna convict somebody who may not have been guilty. And there was all kinds of reason to suspect that there was some wrongdoing on the part of the police, but at the end of the day, you know, maybe 11 out of 12, so maybe it should have gone the other way. So it's interesting to see like, just take a particular case that I experienced, you know, and say, actually maybe this would've worked better.
BENAY: That's, it's really interesting because the way the Jewish legal system works, that person would've been convicted.
DAN: Right,
BENAY: right,
DAN: right. And but, but the fact that, that the un, if it was just that unanimity, if it, if, if unanimity is allowed to convict, then you could get the 10 minute, you know, ah, she's guilty. Guilty. You know? Right. And that, that I definitely agree. Shouldn't be allowed to just, everybody sit down, you'll, you'll go around. Everybody agrees “she's guilty.” Conviction. And that is how the American system does allow that. And so I like the idea that, that no, not only, uh right.
We have to make sure that the real conversation happens. I love the idea of the overnight. You know, that has to go overnight. Whatever the toolbox is. Makes a lot of sense to me.
BENAY: And what's interesting about the overnight requirement is that the overnight requirement is not only there for when they take the final vote to convict. Anytime there's new additional evidence, there has to be an overnight deliberation of that evidence. They can't come to any conclusions when there's new evidence without an overnight. It, it's, it's interesting.
DAN: Yeah. Okay. Continue.
BENAY: Okay. Okay. So having gotten that out, the text now goes into, and you have to always understand the editor as – The Talmud is the product of the editor, and the message of the Talmud is the message of what the editor wants to put together, you know, next to one another. The editor is putting together teachings from different people in different generations in order to create something that he wants to say.
And now comes, immediately after this, the question, the debate over what are the requirements for someone to sit on a Sanhedrin that's going to be adjudicating capital cases.
What kind of person do we need to determine life and death for somebody else? What do you need to be like to be able to, to make such a weighty decision best? And, and for me, this is code for: what, what's this ultimate human being that our entire Jewish enterprise is out to create? What would that, what would that person be like? How would they think? What character traits and qualities would they have? Because that, that ultimate ideal-ish, I hate to say “ideal,” but I can't find the other better word. What, what would that person, um, do on a court?
But by extension, what kind of world would we have if everyone were that kind of person? That's what we want, ultimately, every, every human being to be as close as possible to that ideal judge on a, on a 23 person Sanhedrin.
Okay, so now we have a debate, a dispute, in fact, between two rabbis. Okay? So the first rabbi is Rabbi Yohannan, and we'll go back to our text.
DAN: Okay. So Rabbi Yohannan says “they place on the Sanhedrin this great Sanhedrin only men of high stature and of wisdom, and of pleasant appearance.”
Does high stature here mean height or, or like pedigree?
BENAY: Well, um, it's unclear. Um, Rashi tells us that, actually it is exactly what it says: It's height .
DAN: Tall. Okay.
BENAY: It's tall people! Just simply tall people. Okay. So – Rabbi Yohanan starts out and he says "there are six or seven - I forget at the moment - number of qualifications that anyone who sits on the Sanhedrin needs.
The first one is they have to be just simply tall.
DAN: Tall, Wise
BENAY: Wise, okay. Good looking. Okay, so once you put tall and good looking together in Rashi, an 11th century commentator puts those together. He probably has a text where they are next to each other in the text. He has a different manuscript maybe, and he essentially says “it's the JFK effect.” Okay? He doesn't use that term in the 11th century, but that's what he's talking about.
He says, tall and good looking. That's important because those things, for better or for worse, actually create a sense of, um, sort of awe. And people will respect the judges if they're tall and good looking – again, problematic. But he may be onto something, right?
DAN: But by the way, it doesn't, it doesn't, I mean, the translation says “men,” but it doesn't specifically say men, but men is of course implied and the the language is in the male for it is. So it's actually eight, eight characteristics right there. There're men.
BENAY: Very good.
DAN: Uh, tall. So tall. Good looking wise. Of age. A certain age
BENAY: of a certain age. Okay. We get that. I like that.
DAN: Okay. Now, right.
BENAY: Reflects a certain, certain life experience.
DAN: Right, right. Maybe, you know, it's interesting because like you say, Rashi has this manuscript where tall and good looking is together, and I imagine that wise and of age then are more together and tho those kind of pair, well, I mean, when you, you know, look a certain sense of how they look and a certain sense of, um, kind of what's inside them in terms of wisdom.
By the way, it reminds me about, um, it reminds me about Rabban Gamliel’s criteria for, uh, who can, who can be, who can study in the, in Yavne, right? It was people whose insides are like their outsides. This idea of attention to both appearance and, you know, inside what was-
Okay. So they have those and they also must be masters of sorcery and they must know 70 languages. So that the Sanhedrin doesn’t have to hear from a translator.
BENAY: Okay, so let's do the sorcerer. And the sorcery one is fascinating. So sorcery is something that the rabbis understand to be a real thing. It's not like hocus pocus. It's for real and it's prohibited. In other words, it's something they believe in and they believe that we shouldn't be participating in. But to sit on the Sanhedrin, you have to be a master of it. I just find it fascinating. You have to be a master of something that's actually a prohibited practice.
And Rashi here clarifies that the reason that judges have to be masters of this prohibited practice is so that they can recognize when a defendant or a witness is using sorcery, this prohibited practice of very real magic to, you know, pull the wool over the eyes of the judges – to somehow cast a spell over them to make them think the defendant is innocent or guilty when not, and to sway and influence towards something that isn't true. The judges and, and –
Just a sidebar on this, the Rashi goes on to say - Rashi gives an example of someone who is a master of sorcery who uses sorcery to sway people from the true path. And this line in Rashi where he gives an example of such a person has been self-censored by rabbis and Jewish leaders so that non-Jews don't see what we're saying and, you know, punish us. And the self-censored Rashi here says an example of someone who uses, or people who use sorcery to sway people from the truth is like the Egyptians. Oh, you know this story of Moses throwing down the staff and it turns into a snake and then Pharaoh does the same thing. And, um, but, but that magic wasn't really, it wasn't from God, it was illusionary magic
That is actually the sensor text. And put your seatbelt on for this. The actual text says for example: Jesus the Christian, and it reveals the fact that the rabbis felt that Jesus was someone who utilized magic to sway or influence people; Jews away from Judaism.
DAN: And how do we know that? Is there, do we have the original text?
BENAY: We do, we do. In fact, the Steinsaltz version of the Talmud in his original Hebrew, uh, Aramaic Hebrew translation brings down that original, um, for example, Jesus the Christian – and most translations, in fact, the one I have in front of me says, for example, the Egyptians. I have a Talman. Um, yeah.
DAN: One thing though that I wanna point out as I'm looking at the Aramaic is that the word before each characteristic is ba’alay - ba’al - and it's the same for all of them. So it's ba’al komav, you know, Masters of Height, ba’al’ay khochmam, Masters of Wisdom, ba’alay mareh Masters of Looks, and ba’al’lay zeeknah – like masters of, owners of age – and ba’alay k’shafim, owners of sorcery.
Like, what, what that means to me is like the translation, I feel like Steinsaltz is translation here, I think is, is is apologetic and and wrong. In the sense that what he says is that: they have to be people who basically know about sorcery. That in order to, you know, sort of be able to be watchful for it - as opposed to people who themselves do sorcery, which I don't see how you can translate it as anything other than people who do sorcery. Because all the other - it's not saying-
'cause it is the same word. And so it's not like saying people that are, you know, when it says Ba’alay Komah like owner or masters of Height, it's not saying people who know about tallness, it's saying people who are tall! So that same word, it's not any different. So over and over again it, it seems to be like these are the characteristics of the person. And you could argue that maybe it means the, you know, not owners of the knowledge about sorcery. But that would be a very stretched translation. Much more straightforward translation is they have to be sourcers.
BENAY: That's really interesting. I never thought about that. And it that brings to mind. One of my friends, colleagues, students, teachers, Maggie Anton - who's the author of the Rashi's Daughters series - knows a lot about sorcery, it plays into her novels. And I think she has told me something about the fact that the rabbis in fact did practice. I think you're onto something. I dunno enough about it, but I think, I think there's something there.
DAN: Well, I think we're gonna have a conversation at some point soon with Professor Shinda who writes about the Persian, Sassanian Empire where this was taking place. I mean, it was technically in what we call Iraq today, but it was under the, the Persian, uh, hegemony – And I think that there was some kind of, what, I think they thought of a sorcery that was part of culture. So it would be interesting to, to know more about that. I wonder.
BENAY: Okay, great. Let's put a stinky on that.
DAN: Yeah. One other thing, just by the way that I'm noticing as I'm looking at the, the Aramaic, the Hebrew, is that this is a bit of a subtle point. It's a little hard to, but if you look at it, you see it that when it says that they know what's translated is they know 70 languages. Yeah. Um, the, the letter, uh, se the, the, the letter that the Hebrew letter that stands for the number 70 is AYIN, which, um, and the word that means languages is Lashon mm-hmm. And the first three letters there, Bet Ayin Lamed is that same, ba’al that's master of words. So one possibility, right, is that it's like, um, a scribble error of some kind. And it actually was trying to say like ba’alay lashon or something like that. I'm not sure. ba’alay maybe like the, it's actually, um, you know, an I, and I don't, I don't know how to actually think of that exactly,
but it's remarkable that the same word that was repeated over and over again, ba’alayba’alayba’alayba’alay is there again, it's just divided into two words that is then translated as “they spoke 70 languages.” So that if it's not a typo, if it's actually the way that it was initially written, which sort of makes sense because the next part is that an explanation of why they should know 70 languages so that they don't have to hear from a translator. It's just interesting sort of on a poetic level that, that it's, it's done. I mean it's, there's something going on there that I think is not an accident.
BENAY: That's so interesting. I ne ver noticed that. You, you're bringing to mind. Something that, that my friend and colleague, Natan Margalit told me about years ago, and he wrote his PhD dissertation on the rhetorical devices in the Talmud that were in, particularly in the mission, but also in Gemara that were meant to facilitate memorization and sort of, the chiastic structures and the repetition of vocabulary elements. And I'll bet he, maybe there's something there that's really interesting. Never noticed it -
But in support of this theory that you have this explanation for why the 70 languages suddenly turns to Aramaic, whereas the previous part is all in Hebrew. So that supports that explanation of why the 70 languages as a possible addition that that steers the bet ayin lamed into this understanding when it, what's really interesting, Uhhuh. Okay, let's put a stickie there.
DAN: The one thing that I'll say, like, if it is intentional, the other thing that it reminds me of is the way that particularly Richard Elliot Friedman talks about how the Bible - While, it certainly was based on oral traditions, The Bible should be understood to be a written document. That was composed as a piece of written work. And some of his evidence for that is some of the word play in the Bible that is only able to be seen when you read it. It actually, you don't actually hear it orally.
So a great example of that is that in the story of Joseph and his code of many colors, if you, it turns out that the, that the verb of yasaf, which means to add, but it's the verb of yosayf, I mean the root of of Yosef Joseph and it, it's repeated over and over again in different verb forms. But ultimately the coat of many colors, which is a k’to’net pa’seem, if you read paseem backwards, it basically is Joseph. Yud Mem Samech, you know, so it's actually a play on the word Joseph, but it's only written backwards and you can't actually hear it. You can only see it. And so that's evidence that this is a, this is initially composed as a written document,
BENAY: Wow, that's so interesting.
DAN: So that's, there's something here that, that's like leaping off the page when I look at it in the original, which by the way, is another, you know, reason why as you, you know, you're always an advocate for “if you can checking, checking the original.”
BENAY: Actually, I'm an advocate for only learning in the original.
DAN: Right.
BENAY: But, we'll put a sticky on that one as well. But in any case, the traditional quote unquote understanding of this line - of this qualification - is that the judges (later they'll go into: is it every one of the 23 or some number of the 23?) But regardless, this qualification is knowing all of the languages. So all 70 languages, meaning every language there is. So that the judges don't have to hear testimony either from the defendant or witnesses through an interpreter. And I find that a fascinating insight.
They understand that a translated testimony is going to lose something essential. And what I love about that is the realization that, it's only in our own lifetimes that our American legal system has required the providing of an interpreter even! That to a defendant or a witness, that someone who speaks a language that the judge doesn't understand has to be provided with an interpreter. And this is saying “no, an interpreter will never be enough. The judge has to be a native speaker of the defendant or witness's language to really fully understand.” Hmm. I think it's a beautiful, it's a beautiful thing.
Okay. So that's Rabbi Yohanan's position. That's the picture of the human being that he thinks ought to be deciding life in death. Someone who is. Tall, beautiful, wise, of a certain age, master of whatever that means, sorcery, and knowing the language of, uh, the defendant or witnesses. Okay, fine.
DAN: But can I ask you one question? I know this isn't the direction that you wanted to go, I think, but like – one thing that jumps out at me about this description is that it fits no one and therefore nobody could sit on the Sanhedrin court, therefore there can't be such a court. Is that, is that it? Or you, I think you take it in a different direction, right?
BENAY: Yeah, I'm not sure about that. Um, it, it gets deconstructed, you know, on the very next page by saying, “no, no, no, not everyone needs to be that.” You just have to be sure there's representation on the court and it's not so much, you know, they, they narrow the, these things.
Um, but I find the narrowing and the specificity less compelling than the position that's gonna come next, which is saying, “no, no, Rabbi Yochanan. None of what you're saying is material.” So let's not even go into how old exactly, and you know, how many languages, and how many people on the court need - No, none of that matters. There's only one thing that matters.
So now we'll jump back into the text and I see we only have three minutes, so-
DAN: it's up to you. We can go a little long or we can Okay.
BENAY: Let, let, let's try to get this out in this episode.
DAN: Yeah.
BENAY: Okay. So Rav Yehuda comes back and he says, “my teacher Rav,” who is a contemporary of Rav Kahanah, actually, but regardless, “Rav says, no, no, no. Those qualifications, Rav Yehuda are absolutely unimportant. Immaterial. There's only one qualification that anyone sitting on a court deciding life or death.” Remember, read: ideal human being, here – “only one qualification they need to have.” What do they need to have? They need? I'm not working. I'll go ahead and work from the translation. Uh, so the translation says they, they –
“They need to know how to render a carcass of a creeping animal pure by Torah law.” Okay, so let me jump off of the English translation, um, into the original. The original says they have to know how to take one of the eight creatures, which the Torah says by definition are impure, and prove that actually they are pure.
Okay, so the Torah says that there are these eight creepy crawly creatures. Each one is called a sheretz. And these eight creepy crawly creatures are, by definition impure – particularly, or specifically when they die. The carcass of these eight animals are, by definition, says God impure, meaning they have this existential state of what's called tumah, impurity, death, embodiment. It's different from –
DAN: it's a really bad thing in the Torah -
BENAY: It's a really bad thing. And it's immutable. It's something which can't go away. It's not like you can dump them in a mikvah or kasher them or do something and make them pure. They are existentially impure. That is who they are by definition.
And what Rav is saying is the only qualification that's important to sit in the Sanhedrin is that you be able to find a way to prove that what God says is impure is actually pure. In other words, that you have to be able to turn the Torah over and be able to say that what God himself says is this way is not this way.
Um, for me, this is the most direct statement of the Talmud that. Our relationship to our inherited tradition is one in which we can never take anything that is determined as to be fixed and immutable and eternal and say, well, our hands are tight. That's what it says. Says right here. All right? That's what, that's, there's nothing we can do about it that that should never be our relationship to our inherited tradition or the values in our society, or you name it.
We have to be so sharp as to understand where this truth is hurting people – who is suffering – and then say this thing, which looks like it's just part of the way the world is and what God says has to be – and we have to make it otherwise. It's a very radical statement, and it is an orientation to the world, to truth to God in Torah, which is – It is the definition of radical. And, and I think we now have to go back and read this into that case of the defendant whom every one of the 23 judges looked at and said, is impure.
DAN: Right?
BENAY: And see there's a relationship between these texts.
DAN: Well, if the, if the person, if, if, if a court is made up of 23 people who are capable of taking the word of God, the direct word of God, on one of the most important matters that the Torah is concerned about – and that actually having been studying a lot of Talmud lately, that the rabbis are concerned about this idea of impurity - and is able to render it pure, and they can't figure out how to render this guilty person not guilty, right? Not a single one of the 23 can figure that out. Then ostensibly, that's a less important case than God's word about one of the most important matters in the Torah. And so something is wrong, right? Because we know these people are capable of it and they're not doing it. And that might -
and then the question is like, well, what's wrong? It suggests that it's coming from a place of bias or a place of not wanting to find this person - a way for this person to be given some degree of mercy,
BENAY: Right! Or, or in relationship to their legal system in an unquestioning, powerless and passive way that they are not seeing themselves as responsible for actually overturning a system that's causing harm – for recognizing that, that, that that's what's going on. Um,
DAN: but I think it's, I think what I really wanna put a finger on though is it's not saying that the person who's guilty should be not guilty. It's saying that if you have 23 people and not one makes the argument, not one has kind of crossed into that place where we know that they could all find the person not guilty because they could all, they all by definition can over, overturn the word of God and that not one has gotten to the place where they have a different point of view? That means that basically they didn't try, right? And, and not one of them tried. And if not one of them tried, then that would suggest that there's some force that they are all responding to – the victims of, I don't mean that in a nega, in a poor them way. I mean, that they are, that they are, you know, flowing with these flows of, of society and the way that society treats certain people, you know, and, and they are so much in, in it that they can't even, they don't even know that they're in it.
Like something is so badly broken just by the fact that we, we know, you know, and, and by the way, I think it's important that we say this idea that they have to be able to make the creepy thing impure or pure. Because if you say, well, it's like 23 idiots. Yeah, of course they couldn't find an argument, you know? No! So the point is that no, it's 23 of the greatest minds that we have, and nevertheless, not even one bothered to try to find a way for this person to be not guilty. We know something is deeply wrong.
BENAY: Yeah. And, and I think an another thing that I, I, I wanna be sure comes across is anytime the rabbis in the Talmud are talking about a sheretz, it's one of these, by definition creepy crawlies or the issue of impurity, impurity et al. It's code - that this is what I believe - it's code for: What's our relationship to absolute immutable truth, or the assumption that there is any absolute and immutable truth? Because if there's any in the Torah, it's the issue of purity and impurity and the sheretz as an example that, of that and,
And what I think Rav is saying here is, “if you can purify, or find a way to declare pure, that which God himself declares impure – which is the most immutable of all things in the Torah world. Certainly you can overturn some other part of the Torah or your inherited tradition when you notice that it's causing suffering when you know that it's wrong, when you know that it can't possibly be our best guess at truth.”
And for me, as a queer person who is at the receiving end of, you know, Leviticus 18:22, and people pointing to the verse saying, you know, “man shall not lie with a man. It's an abomination. You are an abomination. You can't be queer and Jewish. Who you are is somehow against God. And oh, by the way, I'm really sorry. My hands are tied. I would love to change this, but I can't because it's just says so right there.” This flies in the face of that relationship and feigned impotence or, or, or claim that there's nothing we can do. This is the truth of our system and, you know, whatever harm it might be doing, you know, it's not for us to fix. This is the way it is. It just makes it obvious that that never was the way the rabbis wanted us to relate to God, to Torah or, or the way we should be walking through the world.
And if, and if not only you can, but you must be able to say that which is impure is pure. Um, which is the, the, the most. Unchangeable, um, thing in the Torah, certainly, um, you, you can say, you know what, this, this other part of the Torah that's hurting people? That can't be right either.
DAN: Right. Um, if I am predicting correctly the text that we're gonna do next week, we can continue this conversation, right, with the Rabbi Akiva and Rabbi Meir and all that. Is that
BENAY: Yeah, absolutely!
DAN: Because I think that, I think this is like, there, um, there are things that, that I think there are connections that I'm seeing with what we're saying to the text that we've been studying up till now. For example, Rabbi Eliezer and pointing, you know, at the Voice of God, right? When we talked about how that's like pointing at the book today and saying, but this is how it has to be. There's nothing I can do and, and this very much is, is, uh, in line with that. And I'd love to talk about.
So I think that next week we're gonna do another text that's along similar lines, and we're gonna be able to continue this conversation into maybe some of those more today, matters of today type of of questions, and really looking forward to that.
BENAY: Me too.
DAN: All right. See you next week. All right.
BENAY: Bye bye.
DAN: Thanks so much for joining our chevruta today! We hope you’ve enjoyed learning with us… and with the Talmud. You can find links to the source sheets for all episodes in the show notes and on our website at oraltalmud.com. Your support helps keep Oral Talmud going. You can find a link on the website to contribute. We’d also love to hear from you! Email us with any questions, comments, or thoughts at hello@oraltalmud.com. Please, share your Oral Talmud with us – we’re so excited to learn from you. The Oral Talmud is a joint project of SVARA: A Traditionally Radical Yeshiva and Judaism Unbound, two organizations that are dedicated to making Jewish texts and ideas more accessible for everyone. We are especially grateful to Sefaria for an incredible platform that makes the Talmud available to everyone. It’s free at sefaria.org. And we are grateful to SVARA-nik Ezra Furman for composing and performing The Oral Talmud’s musical theme. The Oral Talmud is produced by Joey Taylor, with help from Olivia Devorah Tucker, and with financial support from Lippman Kanfer Foundation for Living Torah. Thanks so much for listening–and with that, this has been the Oral Talmud. See ya next time.
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