The Oral Talmud: Episode 24 - Sacred Disobedience (Yoma 83a & 85a/b)

SHOW NOTES
“Jewish law works like any legal system that survives for a long period of time – and it does so by the same mechanisms. And those mechanisms are the human insight that is brought to bear to modify, qualify, limit, and expand the law as one receives it.” - 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. 

Last week, Dan & Benay began to learn how the Talmud questions and defends the principle of Pikuach Nefesh, the teaching that we can and should break Shabbat and, therefore, (almost) any commandment in order to save a life. This conversation does start by getting new listeners caught up, and the previous episode is available for going deeper. This week, we learn the final proof, which, like many episodes, inspires many connections to American law; this time we get into more of the meta on why we make these connections...

As the rabbis start to put together a new system, what are some of the values that they put at the center of that system? How do they make the transition from a previous system which may not have had those radical values to one that now does? How do they kind of maintain a sense of continuity through all that change? How can we learn from their techniques as we work to insert back into the tradition the missing innovations and values that are just as radical shifts to the tradition we’ve received as breaking Shabbat to save a life was for the Rabbis? How do we extend their work to save the lives of queer people too? How do we navigate and counter slippery slope arguments?  Where do we find svara in the American legal system? Why don’t we learn these techniques for change? Is it by design, fear, incompetence? What would it be like to teach the history and role of fixing the tradition? And finally, why does the Talmud give all these proofs and make the absurd claim that the final proof is one that can’t be refuted?

This week’s text: “Pikuach Nefesh” (Yoma 83a & 85a/b)

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 at oraltalmud.com. You can find a donate button on the top right corner of the website.

Further Learning

[1] Regarding the Maccabees fighting on Shabbat: “The Chashmonaim and War on the Sabbath” on Jewish Adventure’s Blogspot (with a dissenting viewpoint from Jubilees), and a scholarly paper “To Fight Or Not To Fight: The Sabbath And The Maccabean Revolt” by Sigve K. Tonstad (Andrew’s University, Seventh Day Adventists)

[2] For David Kraemer on the Gemara’s agenda, listen to The Oral Talmud: Episode 4 - Retelling the History - David Kraemer

[3] For HaMayveen Yavin המבין יבין “Those who understand will understand” explore the entry in Jewish English Lexicon, and the article “It’s a Hebrew Thing — You Get It or You Don’t” through the Forward

[4] Shmuel has gotten a couple of shoutouts on the show so far, in The Oral Talmud: Episode 16 - The Greatest Voices Are Anonymous with Daniel Boyarin, and The Oral Talmud: Episode 17 - The Iranian Talmud with Shai Secunda

[5] Rabbi Steve Greenberg, Orthodox Gay Rabbi, with more about his book “Wrestling With God and Men” (on wikipedia)

[6] For the mountain held over our heads, and accepting Torah being sourced to the Book of Esther, listen to “The Oral Talmud: Episode 2: Voiding the Torah”

[7] Menachem Elon (wiki article) pointing out that, as Benay puts it “svara drives every innovation.” From “The Basic Norm and the Sources of Jewish Law,” Jewish Law: History, Sources, Principles (Ha-mIshpat Ha-Ivri), Vol. 2, 987-989 (semi-available on Archive dot org, so scribed out as follows): An important creative source of Jewish law is the legal reasoning (sevarah) employed by the halakhic authorities. Legal reasoning as a creative source of halakhic rules involves a deep and discerning probe into the essence of halakhic and legal principles, an appreciation of the characteristics of human beings in their social relationships, and a careful study of the real word and its manifestations. ...Clearly, an interpretation, whether explanatory, logical, or analogical, must be preceded by reasoning that leads and guides the interpreter. The same is true for legislation: legislative enactments are the result of certain needs dictated by logic and experience. Even custom, the covert legislation of the people as a whole, in the nal analysis arises out of various logical and experiential needs perceived by the public or by some segment of the people. Certainly, ma’aseh—both as judicial decision and as conduct of a halakhic authority—is fashioned by the individual logic and reasoning of the authority involved. The halakhic authorities stressed the importance of the role of logic and reasoning particularly in the civil-law areas of the Halakhah.

[8] For Ari Kelman on interviewing Jews, and the power of the word “tradition,” listen to “Judaism Unbound Episode 74: Beyond Jewish Identity - Ari Y. Kelman”

[9] Quotes from “Democracy and Education: An Introduction to the Philosophy of Education” by John Dewey (1916, on Wikiquote)

[10] “The Jewish Case for Abortion Rights” by Sheila Katz And Danya Ruttenberg, with a quote from Rabbi Jacob Emden allowing abortion for to avoid emotional pain (on the National Council of Jewish Women website)

[11] Discussion of the “Doctrine of Absurdity” in the Wikipedia article for Statutory Interpretation

[12] “The Constitution is Not a Suicide Pact” (article on Wikipedia)

[13] “Penumbra of Emanations” discussed more in the previous episode of The Oral Talmud (wikipedia)

[14] For Rabbi Yishmael’s 13 Exegetical Principles explore this PDF, suggested to us by SVARA Fellow Emet Monts (unknown author)

[15] Lawrence v. Texas, when Sodomy Laws were deemed unconstitutional, and placed the decision in the “svara” of a right to privacy (wiki article)

[16] Court of Equity (article on Wikipedia)

[17] A reflection on Justice John Robert’s umpire philosophy in analysis of his choices in Trump’s presidencies (at rsn dot org)

[18] Ben Sorer u’Moreh is the laws regarding stoning a Stubborn and Rebellious Son, which the Talmud displays acrobatics in legislating/logicing out of existence. (Link goes to the topic page on Sefaria)

[19] The Three Fifths Clause of the Constitution (on wikipedia)

[20] Bill Clinton: “There is nothing wrong with America that cannot be cured by what is right with America.” From his Inaugural Address (1993)

[21] Audre Lorde: “The Master’s Tools Will Never Dismantle the Master’s House” Speech from 1983, read in full at The Anarchist Library

• Transcript

  DAN: This is The Oral Talmud - Episode 24: Sacred Disobedience. Welcome to the Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…

  BENAY LAPPE: …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. 

  Last week we began our exploration of Pikuach Nefesh, the Talmudic idea that we can and should break (almost) any commandment in order to save a life. We explored all of the explanations that the Talmud did not end up accepting to support this teaching – leaving us with the grand finale this week. As we trace the process of how the Sages integrated profound innovations to their received tradition, we continue to do what we did last week, which is to make connections to famous and momentous Supreme Court cases in the American legal system, illustrating how some of the same principles that we see in the Talmud we also see in other systems that are debating norms, laws, and wisdom about how to live our lives individually and communally. We also foreground how svara – not the organization called SVARA, but the trait of svara, that is, moral intuition – is driving a lot of norms and rules and interpretations but often hidden, which is both powerful and precarious. And in a deep way, we’re asking how can we tell the history of these moves in ways that might help us navigate the ever-mounting stakes in our courts and communities now? And how can studying Talmud help us do that?

  I’ll note that when we were having these conversations in 2020, Roe v Wade was still the law of the land, as it had been since 1973. Two years later, in 2022, Roe was overturned by the Supreme Court in a case called Dobbs. Today, a lot of the other principles and cases we talk about are under threat. On the one hand, it’s a bit chilling and depressing and scary to go into a bit of a time machine when these cases were unstable but still the law of the land, and at the same time, the whole idea of this podcast is that going into a time machine – usually going back 1500 to 2000 years ago – can help us do better in the future. Maybe having a deeper understanding of the forces that are always at play, in every human society and in every legal system, can help us repair our society and our legal system, whether we’re talking about Judaism, the United States, or wherever you may be listening from. Like I said last week, perhaps our conversations will inspire some Talmud learners out there to become creative lawyers and creative leaders of the next generation!

  Every episode of The Oral Talmud has a number of resources to support your learning and to share with your own study partners! If you’re using a podcast app to listen in, you’ll find links to these resources in our show notes: First, to a Source Sheet on a website called Sefaria, where you can find pretty much any Jewish text in the original and in translation. On each episode’s Source Sheet we include the core Talmud texts we discuss, draw out the central questions of each episode, and share a link to the original video of our learning. 

  In the show notes of your podcast app, you’ll also find a link to this episode on The Oral Talmud’s website, where we post an edited transcript, and where you can make a donation to keep the show going, if you feel so moved. On both the Sefaria Source Sheet and The Oral Talmud website, you’ll find extensive footnotes for exploring our many references inside and outside of Talmud. 

  And now, The Oral Talmud…

  DAN LIBENSON: We are in the middle of a text today, but, um, could you do a little bit of review of just sort of where we're situated so that, so that, uh, folks who didn't see last week can, you know, fully just get, get, get a sense of where, where we're starting from?

  Uh, I would just say that where we're, where our, our kind of theme, we've just shifted themes from kind of what is the ideal kind of person or the ideal kind of thinker or student or leader that the rabbis of the Talmud were, were talking about - That was our theme for a bunch of weeks. And now we've shifted to this theme of as the rabbis start to put together a new system, what are some of the values that they put at the center of that system? and how do they make the transition from a previous system which may not have had those values to one that now does? and how do they kind of maintain that, that continuity, that sense of continuity? 

  And, and the one that we're talking about here is this question about, uh, about breaking Shabbat in order to, uh, help in order to save a life, which is just a, I I think we said it last week, I just wanna be really clear about it, that it doesn't say in the Torah, like meaning - It, it seems like in the previous form of Judaism, what you were saying about the Maccabees, like the Maccabees had this innovation that they would go, uh, you know, fight a war on Shabbat because it seems that previous to that people had this strong sense of like, no, Shabbat is Shabbat and we don't do anything, you know? Right. And, and clearly the Maccabees took a step in saying, well, we at least have to fight at war. I mean, if somebody's trying to kill us, we have to be able to, to, to fight back. Uh, 

  But then the rabbis are taking it much further. 

  BENAY LAPPE: Yeah. So I. What I think we're doing is tracing the process of how profound innovations to receive tradition happen. And this sugya, this piece of Talmud, picks up only when the innovation comes into the purview of the rabbis. And, and I think that the story of the Maccabees, the fact that the Maccabees took it upon themselves to fight on Shabbat, which for sure previously had been understood to be forbidden by the Torah, um, needs to be the, um, what, what do you call what? It's not a prologue when there's a TV show, a series or a movie, and then you get the pre-movie. What's that called? 

  DAN LIBENSON: The prequel? 

  BENAY LAPPE: The prequel! Yes. The prequel. That's it. That's it. So the Maccabee story is the prequel to this piece of Talmud and that prequel is that this radical innovation was actually done by people, by people who took it upon themselves to color outside of the lines whose svara they, whose moral intuition and sense of what's really right, um, won the day and they allowed that to drive their actions. 

  And that typically happens by people on the ground from the fringes, not from the systemic policy power holders, you know, as little power as the rabbis had, they took, you know, they were kind of imagining a system. But, but I think the innovations don't start with the system designers. They start with the people on the fringes and those with the Maccabees. 

  Then the next episode in the story is the movie itself, and that's our Mishnah, which is really the first record in the third century of the rabbis bringing into our legal system the innovations that have happened on the ground that they think are right and that they want to kind of enfranchise into the system.

  And we see the Mishnah is saying if someone is sick and Shabbat it's okay to, um, give them medicine, which you would've had to pull from a plant and uproot it from your garden in order to boil – And those activities, the pulling and the boiling, those are generally prohibited on Shabbat. But to save a life, you can do it. Okay? 

  Now this is when it becomes law for the first time. And what we know about the Mishnah is it's a a, a characteristically unjustified document. It's super bold. It has new divergent laws with respect to Torah, and it typically doesn't justify those new norms, practices, laws. 

  Four, 500 years later in the Gemara, the Gemara seems to have the agenda of, depending on your philosophy, shoring up those radical laws with Torah or other proof saying: oh, no, no, no, this thing isn't so radical. It's really, you know, what we could have learned out from the Torah anyway. Or if you follow David Kraemer, they're, they're trying to do that as a sales pitch, but really showing one another, and those, you know, the  haMayveen Yaveen, those who can understand what's going on, seeing how actually divergent it is, and that, 

  So we moved into the Gemara to watch their process of trying to, uh, make the case, the sales pitch for how, in fact, this idea of violating virtually any law in the Torah to save a life is not only our law, but it always was our law. It was, it's rooted somewhere in Torah. So we have the ra- a bunch of, of rabbis walking along the way, and we have, I think so far we had maybe six different volleys at: maybe we could do it this way. No, maybe we could do it that way. Maybe we could tie it to this verse, maybe we could tie it to that verse. Um, and now we're at the very last. 

  DAN LIBENSON: Well, and, and some of those were like, um, sort of reasonable and some of them started to get more into the realm of, that's, that's kind of an absurd argument, or that's kind of, you know, and, and it's interesting and we talked about it being a little bit like chiastic in the sense of, you know, well it got, it was the first one was like: okay, I could get there. And then they started to get a little bit more absurd, and then they started to get a little bit less absurd. Uh, and, you know, they, we won't go over it all again, but if you wanna listen, watch next last week's, uh, episode, um, you know that we, we went into a lot of detail on those. 

  BENAY LAPPE: Yeah. And, and also you were, you're reminding me something that, um, I learned from my teacher, David Kraemer, which is, um: if the rabbis have a good answer to something, they give you that answer. If they don't have a single good answer, they give you 10 answers. In other words, the fact that there are seven, six or seven different proofs for how we can really know from the Torah that God all along wanted us to violate Torah to save a life, if there are six or seven different answers, it's also kind of a meta message that it's not really in the Torah. It, you really, you, you really can't legitimately, um, think that it's there. This is a process of eisegesis, not exegesis. So, 

  DAN LIBENSON: because none of these stories are like, you know: Miriam had leprosy and they calculated that that was Shabbat and she was healed. And so therefore we know that you can - you know, there is, there just isn't an easy answer. So something as clear, you know, sort of obvious as: well, if somebody's like sick and dying on Shabbat or they might be dying, like of course we should give them medicine. Like something that's sort of, I think probably is like, it's so obvious, like how, how could that not be the law? What kind of a Judaism would it be if that's not the law?

  But if you can't find the source for it in some more straightforward way in the Torah, then then you're in this kind of situation where you're like, we're, we're gonna have to figure out that this is okay because it can't not be okay. And yet, and yet we're trying to make this connection. We're trying not to come off as completely radical. So how are we going to, how are we gonna make that connection? 

  BENAY LAPPE: Yeah, and I, and I know we said this last week, but I wanna remind us that this idea that you can break a law to save a life at this at 2000 years into this idea, feels intuitive to us, right? It feels like, it feels obvious that that's what you would do, but we have to get our heads into their heads. And I think it was not at all- I think they were in the mindset of 1500 years or so of a Torah that said: no. This is what you do. You follow Shabbat regardless. There are no but, but, uh, if this is the situation you can violate no, that isn't in the Torah. 

  So it's a very, very, very radical diversion. And I, I wanna bring that up because I think our dilemma today is how do we insert back into the tradition values that aren't there and innovations that we think should be there that seem as radical as did to them, not to us? Right, 

  DAN LIBENSON: right, right. Right. And, uh, so then go going back to the text. Uh, one thing that I've just noticed is that those first six examples that we talked about last week, those were tannaim, meaning that they were, uh, rabbis who, who were, uh, alive during the time of the, before the Mishna. Uh, I, at least that's what Steinsaltz says. I'm not sure that, 

  BENAY LAPPE: does he say they're all tannaim? I'm not sure if they were all, 

  DAN LIBENSON: 'cause other tannaim also debated this issue and then we get the, but maybe they're not all 

  BENAY LAPPE: okay. 

  DAN LIBENSON: But, um. So maybe they're not, but, but in any event, the first three for sure are, but the next three, uh, I'm not sure. Uh, but then the, the, the seventh one definitely is not, this is right. This is an amorah Shmuel who's one of the most important characters. I don't know that we've met him yet. Uh, but he's one of these, uh, later Babylonian rabbis who's, you know, there's a lot of them, but there's some that are very important and they tend to be in pairs. Uh, that they were either, you know, that again, who knows really they were in the story, they were kind of heads of rival yeshivas, you know, or whatever. 

  But they, they tended to have these, these pairs that they would have these kind of debates. Uh, and Rav, one of them was Rav, and one of them was Shmuel. That was one pair. And, uh, you know, we talk, uh, quite a bit about Rava. That's a different person than Rav. And his, his, uh, uh, alter ego is, is, uh, a Abaye, you know. And so there's a bunch of these pairs, but, but Shmuel is a very important and, and recurring character in the Talmud. 

  BENAY LAPPE: Absolutely. And, and sidebar Shmuel actually wasn't a rabbi. He doesn't have a title of any sort. And I won't take more time go going into this issue, but I actually think it's important. These guys, we're not all rabbis, we call them rabbis and we kind of refer to them as a class, as rabbis. 

  Sages is probably better. Even though it's a little awkward because they weren't all rabbis. And I think it's important to know that, to be, you know, what I call a player, to be someone who is shaping, innovating, upgrading the system. You don't need to be a rabbi. 

  DAN LIBENSON: Hmm. 

  BENAY LAPPE: You know, you had to have the two qualifications of being gemirna and sevirna Learned, Learning, which for them only meant knowing your Mishnahs - is it was about, you know, a hundred page book, a teeny tiny book that could fit in your back pocket, very little.

  And you had to have svara - you had to have this deep sense of, of moral intuition, of insight into human beings and their relationships and, and how people work. Um, that's what qualified you to be a player. And Shmuel was one of those people, but he didn't have the title. The title was of a relatively minor certification that just gave one, uh, indemnification against damages if they made a mistake. 

  So just a a minor point. He's not a rabbi. Okay, 

  DAN LIBENSON: great. Okay, so we'll take a look at the, at the text. So this is the, that next, um, argument:

  Rav Yehudah said that Shmuel said: if I had been there among the sages who debated this question – right? 'cause he is later. So, and these, these folks were walking along on the street, on the road much, much earlier. – But if I had been among them, I would've said that my proof is preferable to theirs, It's better than theirs. As it states, the Torah states: you shall keep my statues and my ordinances, which a person with which a person shall do and live by them. l’chai ba’hem. 

  BENAY LAPPE: Great. So let's stop there before we, we get to what he makes of that. So he's referring to this verse in Leviticus. Sorry, I, I I just jumped, I just jumped in. No, it's good. 

  DAN LIBENSON: No, it’s good, Go ahead

  BENAY LAPPE: Okay. So he's quoting specifically the, the, the words from the verse “live by them.” And the entirety of the verse is God saying, here are my laws, here are my ordinances, that you should live by them.

  And it's pretty clear what “live by them” means. In the Torah, it means something like, live according to them. Mm-hmm. Obey them, you know? 

  DAN LIBENSON: Yeah, actually, yeah, I mean, like if you, I, I actually have the, the text from the Torah, just so we can see a little bit in context. Um, that here, here it is, Leviticus 18 - by the way, this is the traditional reading for, uh, Yom Kippur, uh, the right Leviticus 18, uh, the afternoon of Yom Kippur, I think.

  But anyway, um, so yeah, it, it is because what what it is, is that the, the Lord speaks to Moses and, and here, um, in, um, in, in, in, it's in verse five, it says, “you shall keep my laws and my rules by the pursuit of which man shall live.” That's how it's translated in this particular translation. But it's, it's translating there, these words, v’chai baHem you know, and you could translate it by which people should live, but you could also translate in, you should live by them, like you were saying, like live according to my rules.

  BENAY LAPPE: Yeah. This, I think this translation is actually an attempt to retroject back into the Torah a little bit of the way the rabbis are drashing this phrase, “live by them” 

  DAN LIBENSON: uhhuh. 

  BENAY LAPPE: A a a real simple translation would simply be: you shall keep my laws and my rules and live by them. I am the Lord. And that's, that's it.

  DAN LIBENSON: Yeah. And, and the only other thing that I really wanna point out here, just so that people can put this in into context, is that this, the, what follows that is all of these rules and regulations around uncovering the nakedness, right? This means like various, like sexual prohibitions, you know, including the famous, uh, the famous line of, of, you know, that's been interpreted by certain elements to say that, you know, men shouldn't have gay sex. You know, but like, this is what, this, is that, where that comes from, this whole bunch of sexual practices that you shouldn't do. 

  So that, that's all to say that, that this, that this text in context has to do apparently right, with all these like, sexual practices that you shouldn't engage in. So not only is it kind of translated, right, that it means, you know, basically a simple translation, like: you should, you should just live, you know, you should like live by these words, you know, like meaning: you should follow my, my rules. But then the specific rules that are listed are all these particular sexual rules - meaning like, this wasn't some general statement that was saying like it wasn't one of the 10 commandments. It, it's in a very particular context in the Torah. 

  BENAY LAPPE: And it's clear that the simple, plain meaning of the words v’chai baHem, “live by them” means “live according to them.” And here come the thems, live according to these. Right? These are my rules. And here are a bunch of, here are a bunch of them, 

  DAN LIBENSON: right. 

  BENAY LAPPE: Great. 

  DAN LIBENSON: Here's a bunch on my mind right now.

  BENAY LAPPE: Um, okay. So then we get to Shmuel's, read of these words, v’chai baHem. What he's saying is, no, God didn't, when God said “live by them”, God didn't mean “live according to them.” He meant “live by them…and don't die by them!” 

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: So, in other words: these are my laws. That you should do only to the extent to which you are doing them allows you to keep living.

  DAN LIBENSON: Right. 

  BENAY LAPPE: That that's what God meant to say when God said, “live by them”. Only do them if you continue to live in the doing of them. 

  DAN LIBENSON: Right. 

  BENAY LAPPE: But don't follow my laws and regulations and ordinances if they're going to cause your death. 

  DAN LIBENSON: Right. 

  BENAY LAPPE: Um, which is, which is absolutely a radical divergence I think from what the text actually meant. If you have this philosophy of Torah, that the text probably means what it says it means - kind of in a Rabbi Yishmaelian sense. But Rabbi Akiva says: No. The text doesn't only mean what it looks like. It means, it means in a potentially infinite number of other things, including the exact opposite of what it apparently means, 

  DAN LIBENSON: Right, so let's look at that in, in context just to, just to see what you just said. Right. So, so Shmuel says, you should, you know he's reading this line from Leviticus, you shall keep my statutes and my ordinances, which a person shall do and live by them, and not that he should die by them. In all circumstances, one must take care not to die as a result of filling them, fulfilling the mitzvot. - That's Steinsaltz’s explanation. 

  And then Rava comments: All of these arguments have refutation, except for that of Shmuel, which has no refutation. So just to be clear on that, Rava is a later very important rabbi, we talked about him a lot, he is the hero of SVARA. Um, but, and he, and Rava means the rabbi. So, you know, the guy who the Tom would call the rabbi is most likely the most important rabbi. And that guy comes along and hears this story and he says, yeah, that's the one that's, that's, that's, that's the one that we, that this is really based on. The other ones you could, you could argue with. You could refute, but this one, you couldn't, you can't, what could you say against this? Well, I could say a lot. Right? 

  BENAY LAPPE: Right. But, but I think, I think Rava's endorsement and the fact that the, the Talmud doesn't bring any challenge to this read sets this, um, this midrash, this, these two words from the Torah and the way they're read as a kind of ultimate, um, litmus test. I don't know if litmus test is the right word, but a kind of yardstick for, for should I or shouldn't I?

  And just the fact that the Torah has now been turned into a should I or, or shouldn't I, in every instance. In other words, the individual is now in possession of their own criterion over whether I should follow this mitzvah, that mitzvah or the other mitzvah and the criterion is, is this going to allow me to keep living or is this gonna cause my death? 

  And it's not a big step from, “is this gonna cause my death or allow me to live” to, “is this going to suppress my, my lifeness? Is this going to enhance my lifeness?” Now I don't wanna get to a kind of, you know, is eating this cheeseburger gonna enhance my life? Oh yeah. I love cheeseburger. You know what I mean? I, I, I'm not, I'm not talking about that. I'm not talking about, um, 

  I'm talking about some profound question of life enhancement and in a deep sense - as, as a queer person, this proof is profound for me. 'cause every queer person knows if I follow Leviticus 18:22, which is just a few verses ahead, one of those things, that's going to be, that's going to be spiritually killing. Deadening in a profound way, in a way that, you know, not eating that cheeseburger is not about it. 

  It, it's obvious that it isn't. I, I can't continue living in a way that I think God wants me to live. And as the Supreme Court said, the United States wants all individuals to live in the Lawrence decision, right? Mm-hmm. Kennedy's decision was, we, we, we can't, well, anyway, we'll give that in a minute. 

  v’Chai baHem is, is just an amazing yardstick, and it makes it obvious that as a queer person, Leviticus 18:22, “man, shall not lie with a man,” can't possibly be incumbent upon me because if I do it, I am dying. It, it, it does increase my death, if not literally psychically and spiritually.

  DAN LIBENSON: Well, first of all, that's a beautiful reading that I, I'm thinking about whether, um, you know, Steve Greenberg, Rabbi Steve Greenberg, who was the first, uh, orthodox rabbi that came out as a gay man, uh, some years ago, many years ago now, 15, 20. And, uh, he wrote a book called “Wrestling With God and Men”, where Among other things, he's really trying to take on the, that verse and, and trying to figure out the question of like: how can I be an Orthodox Jew and have this verse in my life? like, you know, and, 

  And he comes up with various readings that are very interesting, you know, including that it's not what, that there was, uh, that, that, that's not, they didn't mean loving sex between two men. This was about a, an oppressive of, of if you capture somebody in a war, whatever, you know it, there's all kinds of readings about that. 

  What, it's interesting, I, I don't know, I don't remember if he gives the reading that you just gave, which is fascinating because you, you're talking about the verse that whose context is exactly like a bunch, you know, five, 10 verses before, you know, before in the Torah, that other one. So it's, it, it's a, you know what's interesting about what you're, the way that you're reading is that, um, it's kind of saying, as we've seen a number of times on this show, like, you know, we, again, 

  I go back to this idea that you've said that when a certain name of God is used, The One Who Spoke In The World Came Into Being, or the Holy Blessed One, you know, that it matters to track when this name of God is used and what that name is, God is used because there are these kind of messages being sent based on, on things like that.

  So when you take out of context, right, we, we talked about, um, you know, the idea that, uh, early early, right in this show, we talked about that story where the mountain is being held over the, the Jews and the, um, text that they used to prove that they actually did accept the Torah, even though they didn't have to, is from the Book of Esther, which we know is the absurd book in the Torah, you know, the topsy turvy book. So if you chose the proof text outta that book, that means maybe you were signaling that this is absurd and we know it and we want it because that's - right. We could have found a proof text somewhere else, but we chose not to find it, we chose to find it here. 

  It's now, I don't think they were choosing to find the proof text here necessarily in order to get rid of that, that line about lying with a man. Although maybe like, it's interesting. I I, it would be interesting that this is very obviously an area in the Torah with all kinds of sexual prohibitions. Maybe they are saying something about davka, you know, why are we choosing from here? Maybe it just happens to be where it is in the Torah. That's, it's very possible, but I think it's very interesting. But it, but even, 

  But whether what that was their intent or not, I think it's very interesting now to say: Hey, we've just discovered something, uh, that they, that they chose to anchor this principle on a misreading, you know, but an important, a Jewishly important and valid misreading, uh, of the Torah that happens to be immediately adjacent to that, that, that particular verse. I, I think it's, it's a really important read, actually. 

  BENAY LAPPE: Yeah. It's interesting. I never really thought about the proximity of these, and I'm not sure - for me, because I really don't think it, it was bothering the rabbis at all. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: But, um, 

  DAN LIBENSON: maybe they were guided by the hand of God. Um, 

  BENAY LAPPE: maybe 

  DAN LIBENSON: I, I did wanna, go ahead 

  BENAY LAPPE: and this, this proof text doesn't need to be in proximity to the things it mitigates. 

  DAN LIBENSON: No, 

  BENAY LAPPE: It's so global 

  DAN LIBENSON: Of course. Yes. No, for sure. It's so global, but the fact that it is also in proximity

  BENAY LAPPE: Yeah. 

  DAN LIBENSON: To something, you know, particularly troubling. Yeah. I'm not, I'm not arguing that this is like either intentional on the part of the rabbis or, you know, providential, the hand of God. 

  But there is something powerful and I mean, I guess if we, if we start to say like, we are heading into this next era, right? This post rabbinic era. There are ways in which the rabbi's right made something out of the fact that things in the Torah were proximal to one another, even though they probably weren't intended to be. And I, and I think that there are ways that we can make some kind of meaning out of things that are proximal in, in the, the rabbi's, you know, view of the Torah. That, that I think, you know, I don't know. Like I, there's something, yeah. 

  Is it absurd? Is it, is it not really true? I mean, sure, okay, but is it powerful nonetheless? Is it, does it allow us to anchor our, our dr- you know, our, our sense of what's right today in some version of the tradition? You know, I think, I think it does equal, I, I find it powerful.

  BENAY LAPPE: Yeah, maybe, maybe, I don't know. I'm not so convinced by the proximity thing. But what you're also raising is whether these techniques that were great marketing techniques for a, a new value that they wanted to say was Jewish all along. Um, I'm always asking myself, are these techniques gonna be helpful for us?

  Um, because people don't have that kind of pietistic relationship with the Torah, where whereby if someone points out: oh, the, it says you shall “live by them”. Oh, that means live by them and not - everyone's gonna roll their eye eyes today. At, at least in liberal communities for sure. In probably, um, many modern Orthodox communities as well. 

  And the question is, what are the, the techniques that we can use that will be compelling in convincing or, or maybe none of the techniques are convincing other than, um, reference to svara. I mean, svara was, was one of the tools that they came up with that they chose to use occasionally, not a lot explicitly, although I am certain, as Elon points out-  Menachem Elon - he points out that svara drives every innovation. Of course it does. You, you don't try to make a forced read of a verse to get a new idea out unless your moral intuition tells you there's a fix that needs to be made.

  They only named this is this particular innovation as svara and not this midrash on this verse. They, they did that only occasionally, and I think the little that I know about legal system says you really only make those kinds of arguments occasionally, because - right?

  DAN LIBENSON: Too often it, it's, it, it breaks down the sense that the system has a rational, uh, you know, is a serious system, you know, as opposed to just storytelling. Right. 

  BENAY LAPPE: But I think that's the situation we're in today. We're in the situation of, okay, this next Judaism, what are the mechanisms for justifying, you know, radical new pieces of, of Jewishness that have never been there before. And that we're learning from our lives as Black people, queer people, people with disabilities that need to get Judaized. Right. If we don't, I, I don't know. And, and it might just be svara, I'm not sure. 

  DAN LIBENSON: I see, I, this is what I, I don't know, I don't think I'm necessarily articulating it the best way or necessarily even seeing it the best way yet, but I think that, I think that, yes, I agree with you that the simple marketing argument: Hey, look, this is proximal to this. You know, that's not, I totally agree with you. Like people are gonna, would roll their eyes and say that's, it's just, you're just kind of like a stopped clock is right twice a day. 

  But. I still do think that people respond powerfully to some idea that this isn't like out of nowhere, that this is, this is anchored. You know, I, I come back to, uh, Ari Kelman, uh, who's a sociologist, you know, does a lot of kind of demographic studies of the Jewish community, uh, told us a couple years ago that when they do these kind of studies and they just have people talking about what they like about Judaism or what they don't like, they don't, they're not asking them a survey that they've made up in advance. They're just asking them to talk, and then they kind of write down the words that they're using. That the word “tradition” is very, very, very positive in people's minds. Um, but like rules is not, you know, or like when you talk about specific things that you might say as a tradition, they don't like that, you know - but the notion of tradition they like very much.

  So there's some idea that people do very much wanna see that, yeah, I know things have changed a lot, and I know I'm very different and there are ways in which I don't really see myself here - and yet, oh, you can point out to me that the rabbis would do these kind of manipulations, even things that are funny, like, you know, gematria, where they're doing numerology. Like people don't really believe that the numerology is embedded into the text of the Torah. And yet if you can show them that, you know, in numerology, this word means this equals this word. And, you know, they're like: oh, that's cool! You know, that gives them a sense of, of connection to it, I think. So, I don't know. I feel like there's, there's a piece in there somewhere.  

  BENAY LAPPE: Yeah, yeah, for sure. Um, … but maybe the, the arguments are going to have to be a little bit more subtle and a little bit less clever. 

  DAN LIBENSON: Yes. Yeah. 

  BENAY LAPPE: Um, 

  DAN LIBENSON: much more like, I think that they have what they have to do is invite people into the, into the work, you know? In other words, to say like. Like, I'm not trying to sell you on some, I don't think selling, I don't think salesmanship is, is any part of this in the next era? I think what it is is something that I would call, like inspiration, like to say like, I just want you to, I want you to see that what you're hoping for is possible. Maybe I don't quite have the answer for you, but I wanna invite you into this process of digging into this stuff. And maybe you'll, you'll be the one that comes up with it, but I wanna reassure you that the system is not closed to what you're looking for in the system, right?Something like that.

  BENAY LAPPE: Yeah, yeah. Ab- absolutely. 

  DAN LIBENSON: I wanted to make a couple of like law comparisons to what we're talking about, you know, from American law because, uh, we've talked about Roe v Wade for example, a lot in, in some of these comparisons and, you know. There are elements of, uh, abortion law where it's this question of whether the life of the mother versus the life of the fetus, you know, and, and a lot of, and, and you could call that a, you know, some, some objections to that argument is that it's a slippery slope because, you know, okay, so it's the life of the mother. If the mother's definitely gonna die if we don't do the abortion, okay, we could do the abortion. 

  But the problem that, you know, conservatives have is like, well, I don't know if she's definitely gonna die. So, so now you're saying, well, she's probably gonna die. Okay, but now already you're asking me to kill what I believe is a life in order to, for the possibility that maybe, you know, and then you say, well, okay, I'll give it to, it's like, 

  Well, what about if she becomes so depressed? 'cause she doesn't wanna be a mother. Maybe she would commit suicide. Right. You know, so, and you, you can kind of, and then it's like, okay, she's not gonna commit suicide, but she's gonna be so oppressed and depressed for the rest of her life that it's not really gonna be her life anymore. So really her life is over that as we knew it.

  You know, and you can kind of go down that, that slope. And some people say, and therefore we have to hold the line up. You never, never allow this. And other people say, no, I get that there's a slippery slope. I'm a, I think I'm among these, I say like, I, I get that there's a slippery slope. I understand that you can make those arguments like where's the stopping point? But that's not how law should work. 

  Like we, so we, we should say like, okay, so then our job, so then the answer is better public schools, right? Because better public schools is going to help people be more sophisticated and mature and wise thinkers, and then they'll stop the slippery slope where it makes sense to stop the slippery slope. And that's gonna change at different points in time. 

  But what we need is a wise populace. I mean, this is, this is, um. You know, this is like Dewey's idea about like, education in a democracy. That in a democracy where people are going to be voting and making the laws, like you have to have a much different and better education system because you have to get people to be wise enough to make those laws so that you don't have to have these impositions of law that are actually absurd in the other direction. 

  Meaning they're preventing, like, like the Maccabee's not going to war on Shabbat. I mean, that's ob absurd, you know, what they received was absurd in the other direction. It's like you're, you're, you're putting these barriers just so that we can avoid the slippery slope, which is causing all kinds of damage that's not necessary.

  So, so that, you know, but, but that, but just because there's a slippery slope isn't a reason not to, uh, not to, not to, to change, to, to, to, to allow this more sophisticated view of law to come in where you say, well, we're gonna have to be balancing two important objectives. 

  BENAY LAPPE: Exactly. I agree. Completely slippery slope argument to not expand understandings of what does it mean to die even. 

  DAN LIBENSON: Mm-hmm. Mm-hmm. 

  BENAY LAPPE: Um, are, are, are phobic in the extreme and prevent us from, like you say, doing that hard work of saying, yeah, it's scary and yeah, it's, it can be abused. But if we don't do it, we have a much worse outcome. We, we have ridiculous outcomes. Right. And the, you, you, you just have to do the work of saying: this far, and as far as we can tell no further, and it'll be up to the next generation to say - and legitimately so - No, actually further! because of this, that, or the other thing. 

  And your example of, of, um, abortion is interesting. It was, it was in my mind as well to give an example of how Jewish law has expanded its understanding of the permissibility of an abortion on the basis, not only of the threat to the mother's physical life, but the threat to the mother's mental emotional state. The, the, the, you know, I think it was, uh, Jacob Emden, a modern posek, legal decider, who said, no, the, the, the criterion of tza’ar gadol, like great distress is equally valid to permit an abortion, even if the actual life of the mother is not being threatened. 

  If, if she claims, you know: I, I, I don't know if I can persevere if I have this child. Um, regardless of whether the child is, right, the, the fetus is viable or not, and whether she's gonna physically survive, that mental distress is tantamount to a, her dying - and she is allowed to have the abortion. 

  So anyways, that was a very rough, by the way, nobody should take that as, uh, law and psak legal decision on abortion. That was a very fast and dirty. 

  DAN LIBENSON: Yeah. I think on this show, we we're both want to take seriously expertise, and also encourage people that it's okay to do your best to understand, you know, arguments, whether they're Jewish or other, and bring them into this conversation and, and then we'll all learn more over time. It's fine, you know.

  But, but I also wanted to bring in this I two sort of ideas that connect to, uh, American law, you know, because, and I bring them in because I think there's a lot of people that respect American law or, you know, Anglo-American law or whatever, they're lawyers. They have been taught to, you know, and kind of have some notion that, that Jewish law or, or Jewish arguments are, are either not as sophisticated or that they're overly, sophisticated is the wrong word, but that they're like, that they, that they don't allow in various, uh, techniques that, that happen in, in American law. But that's not the case. 

  And so, for example, you, you were talking about the absurd results like in American law, Statutory Interpretation 101 class, there's a principle of statutory interpretation that says, if, if the interpretation that I am being asked to give to this law leads to absurd results, then that cannot be the right interpretation. That's not a rule. Like, like other people say, no, it, it can be. And therefore then Congress should change the law to fix it. But, but other interpreters say, no, no, no, we should always interpret laws against an absurd result. And that's when we know the law giver. That's when we know that the law giver is dysfunctional and very much could have, uh, screwed it up and caused absurd results. Right? And, and it may therefore actually be emphatically a wrong reading of the law. To rule, to, to read it so as not to produce absurd results because maybe it was just a screw up by Congress and it, and it, and, and therefore we're actually misreading it based on what they meant. But that's a valid and well-known rule of interpretation in, in American law. 

  So that's just one piece. But the more profound one that I wanted to bring in here was this idea that's kind of a, a, a statement across the board. You know, the Supreme Court makes it occasionally: that the Constitution is not a Suicide Pact. And it's this idea that I, I think like the original, uh, notion of it had to do to some extent with Thomas Jefferson, uh, making the Louisiana Purchase because he actually had no authority to execute the Louisiana Purchase under the Constitution. And his point of view was basically like, but how could I, how could I not? Like meaning like this, we got a one time chance to buy, you know, this incredible amount of land for cheap, you know, and like it's gotta be that we can do this. So I'm just gonna do it. And, you know, I'm gonna kind of say like, clearly any reading of the Constitution that would say that we can't buy this enormous piece of land for a good price, that otherwise it's gonna have an enemy on the border that's gonna be able to attack. It's like, that can't be right. So of course, somehow I have this power, even though I can't quite tell you what it is, you know, and then I, and then out of that, 

  And by the way, that maybe connects to the Penumbra and Emanations business that we've talked about in terms of, uh, abortion and, and all of that - because there, there it is a similar idea. It's like, look, I, I, yeah. Does it say that there's a right to privacy? No. But is it so clear that there's a right to privacy based on these other rights? Yes. So in one case, Thomas Jefferson just kind of doesn't say a whole lot. In another case, they say Penumbra and the Emanations, and another cases, the Supreme Court says The Constitution is Not a Suicide Pact.

  And that means that if you're going to try to interpret the Constitution in a way that is going to bring about great harm, to the country itself, that can't be right. And so we're going to read it a different way. 

  And, and that's how I, I, I kind of read this, that I don't even know if you need the hook of the v’chai ba’hem. Right, you know, and that might just be a little flourish. I, I think you could imagine Shmuel just saying: I actually don't have a hook, but the Torah's not a Suicide Pact. And so if there, so, so therefore it's just svara. I mean, by the way, 

  BENAY LAPPE: that's, that's it. 

  DAN LIBENSON: That’s what you say, right? 

  BENAY LAPPE: That's it. That's it. 

  DAN LIBENSON: But maybe you were saying like, we shouldn't say that too often, right? Because then the system starts to fall apart. But in this particular case, it might have been one of those cases where you just say like, of course the Torah is not a suicide pact. So any rule in the Torah, if you have to read it to say, unless you would die. Right. And that's just a principle. That could be Rabbi Yishmael’s 14th, you know, Interpretive Principle is just like add, “unless you would die” to every law, you know, because of course.

  BENAY LAPPE: right, right. 

  DAN LIBENSON: But in either way, whether there's a hook or not a hook, it's a very well established principle of, of legal interpretation to say that: you know, this is not the case if it would cause us to die. 

  BENAY LAPPE: Does secular law have a word for svara? Right. So the way I understand the way how svara works in the Jewish legal system is it is the elevation to a source of law equal in authority to Torah.

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: Um, to, uh, to, to use one's deep sense of what's right. 

  DAN LIBENSON: Right. 

  BENAY LAPPE: That has to be informed by deep learning. That's the gemirna piece and has to be informed by broad exposure to lots of different kinds of people in the world. Um, but when you have those two pieces that, that sense of, you know, I can't imagine a God who would want, or I can't imagine a world where this makes sense or look at the suffering that this causes. I can't imagine God would want that to happen. 

  That kind of moral intuition is what the rabbis call svara and the - but I've never seen a Supreme Court decision actually name when they use svara and, and the Kennedy decision for me is straight up svara. in the Lawrence Case, 

  DAN LIBENSON: but I think there is, and I think that they do name it. Um, the question is, I think it might actually be so inbuilt into the Anglo-American legal system that you almost don't have to name it. Uh, but I think that there, 

  There are two things that I think about when you ask that question. One is what is called public policy, uh, and the other is what's called equity.

  And, uh, it's not necessarily the case that that exactly means svara, but, and I think it doesn't, but, but I think that it's used when svara would be used in the, in the Jewish legal system. So the, the idea of law and equity, as I understand it, so when I say equity, I don't mean equality. I mean that in the, in the way that, uh, the Anglo-American legal system is set up, it's based on what, in Old England, there were, there were two kinds of courts: courts of law and courts of equity.

  I don't always, I can't always hold all of this in my head and remember all the details, but my basic understanding is that there were two kinds of courts in England, this is before the United States existed, that, and they basically came from the power of the king because everything came from the power of the king.

  There were courts of law, which is like the king says what the law is, and I guess eventually parliament says what the law is. And those are the courts where you say, well, the law says, you know, that you, you can't trespass on my land and this guy trespassed on my land, so he should have to pay a fine, or he should have to, you know, do whatever. And they would kind of hear the facts of the case and say, yeah, you broke the law. Uh, you should pay the fine. 

  But then the other courts were the courts of equity where, and they basically were built on the king's power of mercy and and pardon power, basically what we might think of as like the pardon power. And where you could go to the king and you could say like, yeah, you know, I broke the law, but like this punishment is too severe. Or, I had a good excuse. It's not in any law book, but you know, you're the king so you could kind of let me off. And the king could do that, of course. 

  And it, but then at a certain point the king said like, well, I got too much work here. You know, like, and so the king sets up courts of equity that are basically able to take cases like that when there's not a law on the books and they can kind of just resolve it based on justice. Right? Or, or equity. 

  And so I think that in the United States and also in England, over those two courts eventually merged. So there weren't separate courts of law and separate courts of equity anymore. It's just that courts have the power of law and equity. And so, and, and I think that sometimes, um, that gets stated as public policy meaning, especially when it's bigger issues where the court will say like, again, maybe the law could be read in a certain way, but it wouldn't be, it wouldn't make sense for the objectives of the law to read it that way. And so from a, from a perspective that part of our role is to protect or, or to have a reasonable public policy, we're gonna decide the case the other way. 

  And, and so I think that functionally, those, those give judges in the Anglo-American system leeway. And so I think people have a misunderstanding that the, that the, that judges should be these like mechanical, you know, law, you know, and, and John Roberts has talked about being an umpire. I mean, there's, there's something to that, but it's also a little bit, I mean, maybe an umpire also at the margins can decide if something's really a ball or a strike, you know? But, but, but I think that that judges are supposed to be a little bit more than an umpire, and that's okay. That's part of the system, and I think that's what basically svara is. 

  BENAY LAPPE: Mm-hmm. Yeah, that sounds right. Is the term judicial discretion part of this picture, or is that something different altogether?

  DAN LIBENSON: I'm not sure. I think judicial discretion is more like, for example, in sentencing when it's actually uhhuh actually part of the law that says that the judge doesn't have, you know, the judge can decide within a certain range or, yeah. I, I'm not a hundred percent sure about exactly how that term is used, but I mm-hmm.

  But I think that it, but I, but I think that fundamentally, look, conservatives often will say something like the Lawrence decision. Like they'll say that, that, um, Kennedy, you know, was just hand waving, you know, meaning that he was doing something fundamentally wrong by quote, “not following the law,” you know, or by, by using, by, by substituting his discretion for the law, you know?

  But, but actually that's not wrong, you know? I mean, you could, you could disagree. You could say that judges do it too often or whatever, but it's, it's, it's not a, it's not a foreign. It's not foreign to the legal system. Like the legal system doesn't imagine that judges don't do that. That's actually part of it, and it should be part of it. And again, that's where I think svara that's what I think svara is fundamentally. 

  And then, and then the question is with svara, right? It's like, it's like you've said many times, it's, it's a dangerous idea. It's a, it's a, it's you. So how do you limit svara? How do you limit equity so that it doesn't, uh, overwhelm law? Because if, if people start to feel that the law doesn't really mean anything, because you can always come to a court and they'll let you off. 

  I mean, by the way, this is also in the jury system. There's this idea of jury nullification, right? Where the jury, for example, in a criminal trial, the jury has to come to a unanimous verdict. Uh. S- there's nothing really to stop a juror from saying, well, you know, I know that he really committed the crime, but I'm not willing to vote for conviction because I think that he was, you know, that the police did the wrong thing or that, um, you know, that, uh, this person was just had a horrible life or whatever, you know, and, and juries can sort of nullify the law by just refusing to convict people.

  If that happens occasionally, some people might yell about it, but, but other people will say, you know, actually justice was done in this case. If that were to happen all the time, and juries would never convict because they would, they would just always be swayed by the sympathy of the defendant or whatever– You would start to get this feeling like it's gone too far and you would, you would probably get some, some corrections into the system. 

  So, you know, tho those, those things exist, but you're, it's, it's, it's scary because first of all, you wanna make sure that people use them wisely. But the other is that if people use them too much, the, the people won't accept the system anymore. And, and that could lead to, you know, anarchy, I mean, potentially. Right. That's the fear. 

  BENAY LAPPE: Right. Um, yeah, I, I think it's really important to understand that Jewish law works like any legal system that survives for a long period of time. And it does so by the same mechanisms. And those mechanisms are: the, the human insight that is brought to bear to modify, qualify, limit, expand, um, the law as one receives it.

  And, you know, I, it, it so pisses me off that, that we're, we're taught that the Torah is what it is. It says what it says, and that's the end of the story. And I don't know why do we teach people that? It, because it's, it's not true. Um, it's really the beginning of the story, not the end of the story. 

  And if you think that's the case, if you think that there actually aren't ways to even quote unquote change the Torah, then you have only two options when your kishkes tell you that something in the Torah, it, you know, violates your sense of what's right. 

  You can either suppress your really valuable insight and say, no I, I'm, I'm gonna go along with this thing and, and state, you know, shut up. Or you can leave. You can go, I'm right and it's wrong, and you leave. And it, it, at some point we got into that binary - and I think part of my project is really just telling people that's not the way it works, So those aren't your only two options. Um, 

  There's a third option that we've been using for the last 3,500 years, particularly the last 2000 years, and this is how it works. You know, come be a player in working the system this way and making Judaism better. 

  DAN LIBENSON: So my question is like, whether that is, uh, by design or by accident, and I think it's both. I think it's different in different communities. I was actually just having a conversation the other day with somebody who was talking about how, I don't remember now the example, but his rabbi was saying that he was troubled by something in the Torah, in the Parsha HaShavuah, the weekly Torah reading. He was troubled by it, you know? 

  And I, and I kinda said like, I don't know why he should be troubled by it. Like, the rabbi solved that 2000 years ago. Like the rabbi said, we don't do that anymore. That's over. You know, I, I don't, it wasn't the Ben Sorer u’Moreh Ben Mo, which we'll get to at some point. The, the, the, the what, how do we translate that? The, uh, uh, you know, 

  BENAY LAPPE: stubborn and rebellious son, 

  DAN LIBENSON: stubborn and rebellious sun, you know, that you're supposed to stone to death in the Torah. Like, it wasn't that, but it was something like that, you know? 

  And I was like, but, but the rabbis said that was. That was over 2000 years ago. So you could be, you could be troubled that we ever had this idea. Sure. But like, we don't have it anymore. We haven't had it for 2000 years. Why are we talking about this? 

  And, you know, we had this conversation and, and the person said, you know, well maybe it was like, it's 'cause it's 'cause of lack of education. It's because the, even in rabbinical school, they don't really learn Talmud in a deep way. And I'm like, okay, but so then why, why not? You know, like, is that, is that because, is that so, you know, 

  The question is, is that like by design, meaning that's like, um, people are afraid to teach those ideas because they are afraid that that will make the system fall apart? And even though, you know, we're talking about liberal Judaism here, but, but there's still this desire to kind of hold the line? And so we don't wanna actually teach these techniques because, you know, it might go too far? 

  Or is it because like we just like, aren't good at Jewish education anymore and we just like didn't have time or, or whatever and people just didn't really learn, just didn't learn these things? and that it wasn't, 'cause nobody wanted them to know it was just that they were in competently taught. 

  You know, in a different part of the Jewish world, you know, and let's say the more ultraorthodox part of the Jewish world, you could imagine that, um. you know, there's, there's more of a intentional desire not to teach certain ideas, like the more radical vision of svara, because they actually don't want people to do that because like, that's not the kind of Judaism they practice. Okay. Like, at least that you could understand like within that system, it doesn't, it doesn't serve their, their interests, so they would be intentionally holding it back.

  But in the, in the more liberal Jewish world, it feels like, I don't know, is it intentional or is it just sad because it's just a bad, a, a sad story about lack of education leading to a reprioritization of the Torah. Like the Torah is the only thing that people have really studied. Okay, but like, the fact of the matter is, is that it, I, I don't know what a good example. I mean, I suppose it's a good, an example of it is maybe like, 

  It is a good example, like of reading things in the Constitution. There are horrible things in the Constitution, The Three Fifths Clause. There are all kinds of terrible things in the Constitution. They remain terrible. Of course we should be troubled by them, and they have continuing reverberation, so we should definitely continue to be troubled by them.

  And at the same time, if you just read that and didn't bother to read the amendments, you would be getting a completely wrong idea of at least what the Constitution says today. You know, you could still say it's not really being lived up to et cetera, but, but okay, if it's not being lived up to then all the more powerful your arguments, you know?

  But if you just pretend like you, you didn't even know there were amendments. And that's basically what's happening in, in Judaism. People are basically reading the Constitution saying, oh, I didn't know there were amendments. Right, exactly. Exactly. 

  BENAY LAPPE: I don't know. I just think it's funny that in shul we put the Torah in the ark and we parade it around. Yeah. That's kind of silly to me. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: What I mean, if we're gonna parade anything around as the tradition that we're venerating, it should probably be the Talmud. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: You know what I mean? And like you say, then have the issue of where are we in conversation with that version of the tradition, and where are we pushing back and where are we overriding it? I don't know. 

  DAN LIBENSON: Yeah. I mean, um

  BENAY LAPPE: I I, I, I have one more thought. A piece of this. The, the answer to this question I think is who's holding up the tradition and how much is it working for them? You know, when I went to rabbinical school, I think the general message for us as students, was your job is to get people to keep kosher and observe shabbos.

  DAN LIBENSON: Mm-hmm. Mm-hmm. 

  BENAY LAPPE: And as many of the other mitzvot as possible, the, the goal was compliance and the system is good. We need better marketing, but it's a really good system. It works in your job, is to get people to see how good it is and to observe it. 

  There was not a great sense of, um, we’re gonna need to fix this thing. It's broken and we're gonna teach you how to fix it. So without people who are saying: Hey, this is broken in a lot of ways. There isn't gonna be an emphasis on the, the tradition of fixing the history of fixing the mechanisms. Of fixing the role of fixing. 

  So, you know. I, I still think the people who go to Rabbi historically have been going to rabbinical school are the wrong people. The people going to rabbinical school, and it's increasingly happening, especially as those who who come through places like SVARA get turned on and go to rabbinical school, but the people go to rabbinical school should be the people for whom the tradition works least well. They're, they're the ones who are gonna say, okay, I, I know where it's broken and it's really broken, not just for, you know, the super queer fringy folk like me. It's broken for everybody, but I, I, I, I, I, it's super clear for me and I wanna know how to roll up my sleeves and do the fixing. 

  And so rabbinical school curriculums have to change and the, the people that are coming in have to change, and the mindset of the people teaching needs to change to say: Hey, our agenda's not compliance anymore, Not right now. It's not. It has to be. Okay. We're technicians, we're world creators. We're, you know, revisioning people. I don't know. 

  DAN LIBENSON: Well, you know, Disney calls them imagineers. Right. But, um, 

  BENAY LAPPE: yeah, yeah, yeah. 

  DAN LIBENSON: But I mean, maybe, maybe that's where like, and my question then is, and you know, we've talked about this for years, right? Is this, is like, can that happen, right? Or do we just need a new kind of school, you know, a new kind of, uh, position in Jewish life? 

  You know, you talk in your talks about how, you know, if you're drawing your salary from the old system, you're not gonna be going to the new system. So, and I, and I wonder like, is it enough to have SVARA graduates going to rabbinical school?

  Or ultimately is, is is the, the rabbinical schools are gonna tweak their curriculum, but are they really gonna completely overhaul them? I mean, I don't know. I, I would love if they did, but, but I mean, like, at, at what point, or, or how much has to happen till the old system - and I'm not just pointing the finger at rabbinical school, all the components of the old system. At what point do they say like, yeah, like this is, this is an advanced state of collapse. Like, we need to do the next thing and we're all gonna agree on that and we're all gonna revise everything. 

  Or is the way that it really happens that like a new school is created and new, you know, we've laughingly called them schmabbis, you know, uh, graduate from them. And, and people start following the schmabbis and not the rabbis. And eventually the rabbis say, oh, we better jump on that bandwagon because that's where it's going. 

  And by the way, I, I think that that's what happened with the priests. When the rabbis got started. They, they were various rabbis who were So-and-So haKohen, you know, there, there were some priests who said, I, I gotta jump on there, but they didn't call themselves priests. They didn't go to like Priest School. I mean, obviously they couldn't 'cause it was hereditary. But, um, you know, but I I, I I wonder about that. That's, that's the part that I, I just wonder whe whether, 

  You know, Bill Clinton, rights, said that there's nothing that's, uh, there's nothing that's wrong with America that can't be fixed with what's right with America. But I wonder if that's true. You know, I mean, I wonder whether at some, sometimes it's like, um, you know, it something external is the fix. 

  BENAY LAPPE: I know. Me too. And I'm, I'm, I'm haunted by Audre Lorde's words, and I'm gonna mess up this, it's gonna be a paraphrase, but Audre Lorde said: the Master's house cannot be dismantled using the master's tools. Um, you can use the master's tools to, you know, to tweak to, to better, but you, you're not going to dismantle it in.. I don't know. Um. But it's a constant question in my head. It's a constant question for us at SVARA. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: Um, you know, should, should we, should we be the place where this new set of people are learning in a new way for a different, for a new goal, for the creation of a new Judaism? Um, that's, that's one of our big questions. 

  DAN LIBENSON: Yeah. And I think that as we continue on this, this series where we're looking at the process in which the rabbis started to add these new perspectives, these new values, I think that question lingers, you know, that question, uh, will, will stay with us as to can we understand what the rabbis were doing? To what extent were they, you know, tweaking, fixing, to what extent were they building something like profoundly new? that - 

  And that's why, like I pointed out in the, the beginning of the story that it's, you know, three rabbis and two students walking on the way, you know, walking on the path. That was probably how it was. Like, it was, it wasn't, there were no impressive academies. It was a bunch of, you know, people walking around chatting like this was a very, very new system. Uh, and maybe that's kind of how, how this goes. Um, so it'll be, it'll be interesting to keep tracking that. 

  Uh, I, I wanted to close just by, um, reading the, the last part of this story, because it's got, it, it, it ends in a cute way. You know, we, yeah, there's a bunch that we skipped about, about, um, how each of the other proofs are, are refuted, but you can read that on your own. 

  But, uh, the, at the end it says that, um, you know, it says that the proof that Shmuel brought, uh, there certainly is no refutation and Ravina, an even later rabbi said, and some say it was Rav Nachman bar Yitzchak who said, regarding Shmuel's proof: One spicy pepper is better than a whole basket of squash. Which I love, you know, I think that's a, I think that's one of these quotes that we can take into the future. You know, when, you know, like when, and, and I think there's something there, right?

  I mean, there's something like, you can have this whole world of, you know, kind of, we could call it today parve, you know, kind of interpretations, parve kind of thinking, but like, that's Spicy Pepper, you know, that's, that's the one that, that's really gonna gonna be the one that, that ultimately one day people are gonna look back and say, yeah, that was, that was how it, that was how it went. There was no, no re refutation there. 

  And by, by the way, it may be that that's the answer to our, to our question about the seven different, uh, text proof texts that were used here. The seven different ways to try to prove that, that we had, um, you know, that, that that saving a life does over overcome Shabbat. 

  The answer was like, this was the spicy pepper. This was the one that like made the taste. This is the one that people said: yeah, like, I'm behind. I'm getting behind that one. I mean, it's nothing more than that. It's not that they couldn't be refuted. I mean, they show how the other ones could be refuted and this one couldn't, but it could be, oh, come on. And we could refute this in three seconds. 

  It was just like, that was the one, it was like, yeah, that's the one. It's like this constitution's not a suicide pact. Of course. Yeah. You know, this spicy pepper. 

  BENAY LAPPE: Yeah. I love that. So I love it. 

  DAN LIBENSON: Uh, so I'm gonna, I'm gonna linger on that spicy pepper for the rest of the week and we'll we'll be back next week with, with another text.

  BENAY LAPPE: Okay, great. So fun. 

  DAN LIBENSON: Thanks Benay. It's fun being with you, see you next week. 

  BENAY LAPPE: Thanks Dan. Okay. Bye. Bye.

  DAN LIBENSON: 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.

Watch on Video (original unedited stream)