The Oral Talmud: Episode 26 - Why We Show Our Work (Sanhedrin 74a)

SHOW NOTES
“And since they've shown us their work, we're able to say, ‘I'm not following the substantive rule in this case! I'm following the process rule – which says: How do I think about this new case?” - Dan Libenson

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. 

This episode is dedicated to the memory and legacies of Ruth Bader Ginsberg & Breonna Taylor.

Dan & Benay pick up where we left off last week, in Nitza’s Attic, and the crucial decision that we should violate *almost* any Torah commandment to save a life or avoid being killed ourselves. This week we begin to explore the exceptions to this rule - but even more so, how those exceptions were narrowed, and the reason for showing the rationale the Talmud builds for narrowing these exceptions. We’ll continue the conversation next week!

What was Talmudic about Ruth Bader Ginsberg’s life and work? How can Talmud’s process help us understand systemic contexts that led to the unjust death of Breonna Taylor at police hands. How do uncover and generalize or re-apply Talmud values to today’s subjects which Talmud does not discuss word-for-word? What is the influential relationship between foundational laws like Torah and Constitution, Custom (minhag), and svara, our moral intuition? When we re-read Torah, how do we learn to recognize which teachings about the Torah we’ve forgotten are not in the original text? What gifts was the stamma (the editor of the Talmud) giving us in showing us the reasoning behind shifting laws and narrowing exceptions?

This week’s text: “Nitza’s Attic - The Exceptions” (Sanhedrin 74a - Part 2)

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] From the now late, then retired Justice David Souter: “Ruth Ginsburg was one of the members of the Court who achieved greatness before she became a great justice. I loved her to pieces.” (Found with other tributes in “Statements from Supreme Court justices on the death of Justice Ginsburg” on SCOTUSblog)

[2] Thurgood Marshall, the first Black Supreme Court Justice, was a civil rights attorney long before he served on the bench. (Bio on Wikipedia)

[3] Ruth Bader Ginsberg discussed being kept out of the funeral minyan for her mother in an interview with Abigail Pogrebin for her book “Stars of David: Prominent Jews Talk about Being Jewish.” The whole chapter is available. And for a truly tear-jerking song, find “As if I Weren’t There” via “I wrote a song about Ruth Bader Ginsburg and she gave it her ‘hechsher’” in the Forward.

[4] RBG: “Fight for the things that you care about. But do it in a way that will lead others to join you.”

[5] RBG: “My mother’s advice was, don’t lose time on useless emotions like anger, resentment, remorse, envy. Those, she said, will just sap time; they don’t get you where you want to be. One way I coped with times I was angry: I would sit down and practice the piano. I wasn’t very good at it, but it did distract me from whatever useless emotion I was feeling at the moment. Later, I did the same with the cello. I would be absorbed in the music, and the useless emotion faded away.” From “RBG’s Life, in Her Own Words” via the Atlantic (on Wayback Machine)

[6] Explore the timeline and legacy of the murder of Breonna Taylor z”l by police (Wikipedia)

[7] For the Obligation to Protest, listen to The Oral Talmud: Episode 10 - The Obligation to Protest (Shabbat 54b-55a)

[8] [Placeholder footnote for when we reach the episode when Dan & Benay discuss svara and gets/divorce law]

[9] A Hosanna in Dan’s context is a Christainy cry of praise, though it has other more pleading purposes in Jewish liturgy and scripture (wikipedia)

[10] Menachem Elon, the great scholar of Jewish law (wiki article) pointing out that, as Benay puts it “all innovation is driven by svara, by moral intuition” 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.

[11] The idea that actually custom/minhag is what drives all Jewish Law was discussed in The Oral Talmud: Episode 24: Sacred Disobedience

[12] RBG discusses being pushed toward Women’s Rights by her students in this conversation with Georgetown University Law Center (February 2015, on Internet Archive)

[13] An introduction to “Trauma-Informed Teaching Strategies” from the Association for Supervision and Curriculum Development (their website)

[14] Maslow's hierarchy of needs (wikipedia)

[15] Benay discusses her CRASH cycle and Option 3 in her ELI Talk “Rabbi Benay Lappe - An Unrecognizable Jewish Future: A Queer Talmudic Take” (YouTube)

[16] Lilly Ledbetter’s pay discrimination case Ledbetter v. Goodyear Tire & Rubber Co. has a thorough Wikipedia article which includes audio of Ruth Bader Ginsberg reading her dissent

[17] Donkey Stories: Rabbi Lisa Edwards, "If donkeys read Torah, all the donkey stories would jump out at them." ...every time they'd see a donkey they'd go "There's me! There I am again!"

[18] The Scapegoat ritual is discussed in Leviticus 16, indeed followed and not preceded by Yom Kippur laws.

[19] Isaiah 58 is the Haftarah for Yom Kippur “No, this is the fast I desire…”

[20] The verse from the Shema which instructs to “love God with all your heart, with all your soul, and with all your might,” is Deuteronomy 6:4

[21] For imagining the modern day version of the story of the Oven of Akhnai, listen to The Oral Talmud: Episode 5 - Excommunicating Dissent

• Transcript

  DAN LIBENSON: This is The Oral Talmud - Episode 26: “Why We Show Our Work”. 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 LIBENSON: 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 picking up where we left off last week, in Nitza’s Attic, where the sages had gathered to make the crucial decision that we should violate *almost* any Torah commandment to save a life or avoid being killed ourselves. This week, we begin to explore the exceptions to this rule - but even more so, how those exceptions were narrowed, and the reasons for showing the rationale the Talmud develops for narrowing these exceptions. This is part 2 of the conversation and we’ll continue the conversation in the coming weeks, so if you haven’t listened to part 1, we suggest you listen to Episode 25 and then come back to this one!

  Just a note that we recorded this episode during the High Holy Day period in 2020 – Justice Ruth Bader Ginsberg had just died and the country had just experienced the killing of Breonna Taylor by police officers. These events were on our minds, and we began our conversation there.

  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, you’ll find these links in our show notes: First, to a Source Sheet on Sefaria, where you can find pretty much any Jewish text in the original and in translation – there we excerpt 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 from 2020. 

  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: it's been a week. 

  BENAY LAPPE: Yes, it has. 

  DAN LIBENSON: The, um, I, I, in, in terms of relevancy, well, uh, in terms of relevancy to everything, but in terms of also relevancy to our work. I, I mean, there have been two momentous events, uh, the past week. 

  One was the death of Ruth Bader Ginsburg – and, and, and I think on, on so many levels, including ones that I can't quite articulate, um, it's so relevant to what we do here. Um, you know, I, I think that, I think that how people talk about how Ruth Bader Ginsburg – actually in Justice Soutor's, uh, uh, little very short, I think it was two sentences kind of statement after she died. He said something like: she's one of the few Supreme Court Justices who who was great in the law, you know, before she became a Supreme Court justice.

  Like her greatness, like Thurgood Marshall was, was sort of recognized by putting her on the Supreme Court, but her greatness was actually achieved before she came on the court and after. But that, that she was actually a giant of American law who then was elevated. 

  And so it feels, you know, I, I don't know where that fits, if that, if there are particular characters that you know, in, in the Talmud that that description fits to, or if it's something you think about how, you know, when you put someone like that on the court, you're, you're putting on a judge – Yes, of course they will try to be even handed and, and fair to the case, but you also know you're putting on a certain kind of judge who's already shown what kind of a judge or what kind of a person they are, what kind of a thinker they are. So..  

  BENAY LAPPE: yeah, and I, I, I. I, I find it so sad and frustrating that she really was thwarted in her efforts to, to be as visionary and to have her vision actually play out on the Supreme Court the way it was able to before.

  And you know what I've been thinking a lot about, you know, sh she was aware of and vocal about the way in which her work was a playing out of Jewish values. She talked about that. She's recognized for that. She wasn't apologetic about it. 

  She really, you know, in, in spite of being alienated from Jewish life and turned off, you know, in, in her own telling. You know, by the ways in which she couldn't, for example, have a minyan of the women in her family when her mother died and she was – you know, really turned off to organize religion, she really felt that what she did was Jewish. Um, 

  But what I'm guessing she may not have realized, um, was that I think she embodied the Talmudic approach to law and change. You know, her, the, the, - The way she talked about and lived out a kind of gracious calm, persuasive in a gentle way kind of law. You know her, 

  Her quotes about: Disagree agreeably; and Fight for what you care about, but do it in a way that others will come along with you. If I had to boil down the entire project of the Talmud, it would be that. It would be the ra, the rabbis in the Talmud are saying: this is how you make radical, sometimes necessary radical change. You - You have to convince people that it's rooted in the foundations and the principles of the tradition that they already believe in, and it's not anything new, it's just the further playing out. And she did that intuitively. I don't think she learned it from the Talmud, and I'm guessing she didn't learn it in isolation.

  You know, I have this idea that when Talmud is working it, it permeates the culture in such a way that someone who's never opened the Talmud thinks and behaves in ways influenced by that, by that Talmudic culture. Um, and, and I think she's, she's a person who, who was influenced by that, and she knew that, and I don't think it was just her mother telling her in isolation, because I don't think her mother got that idea in isolation. The idea that, you know, don't let your emotions overcome you. I don't know. So for me, she's like a walking Talmud. 

  DAN LIBENSON: Yeah. And, and more to say about it, I, I, I do think it's also one, you know, one reason why she might not have known or thought of herself as in that tradition was because as a woman, she wasn't taught - she, she wouldn't have the opportunity to study Talmud in that way. She wouldn't have, you know, in a previous generation, even if maybe her family wasn't so religious that they would've – but I mean, even, even if they had been, it's likely that she wouldn't have learned. You know, and I mean, I think that's part of what's changing today. That's what part of what this show is about. So, so that's a good thing. Um, I. 

  You know, the other thing that happened in the last week was the decision by the Attorney General of, uh, of Kentucky, not to prosecute the police for the killing of Breonna Taylor. Uh, which, you know, we can, and go through a very long discussion of, of the specifics of that, and we've talked about the obligation to protest, um, and, and take that seriously. 

  I, I think the one thing that, that I'd like to say beyond everything that, that we've been saying, you know, for a very long time now, uh, about this case in particular that, that everybody's been saying is it feels like there's something Talmudic to, to talk about or to have in the back of our mind, which is: the, the moment when the, the bad deed is done right. 

  I, I think we, we naturally imagine that the moment that the moment of, of to pay attention to here is the moment when the police shot and Breonna Taylor was killed. The, the real moment, it seems to me, from what I understand about the story, was that they should never have been sent there in the first place. That the person they were looking for was already in jail. That, and even if that hadn't been the case, that to, to send people at 12:30 at midnight, you know, to somebody's house, uh, that doesn't happen in the wealthy suburbs, you know, where the white folks live. You know, that, that, so, so that 

  There's so many ways that even if you can try to justify in some way, even if you could, I'm saying even if one could, could tried to justify well they were being shot at. Uh, that's not the only moment in the story that that matters. And I, and I think that part of what the Talmud, at least for me, sensitizes us to, is to really examine. Examine deeply and more deeply, and that sometimes you find the real crime, so to speak, and in reality at a, at a different point than than you might think. 

  And, and I think that here in, in this case, it's a, it, it, it's, it's revealing of a much deeper societal ill of the cavalier treatment of Black Lives. And that's why Black Lives Matter is a, is a fair way to put it, you know, because it's not, you know, and, and, um, you know, somebody said about, well, you know, the, how do you respond to the All Lives Matter? It's like, you know, well, what do you go to a a, a breast cancer meeting and say: All Cancers Matter, you know? That's what we're talking about here! Because there's a concern that if there's not a, it's not a claim that not all lives matter. It's a concern that this kind of life doesn't matter. And we're saying this better matter just as much, you know? 

  And that's, that's what this is about. And that, and that's what I think that this story at so many points, so many decision points, shows that. That it doesn't, you know, that, that black lives don't matter into the system and, and that needs to change. 

  So I, I think what I'm saying here is just, uh, that we're dedicating our learning today to Ruth Bader Ginsburg, to the memory of Ruth Bader Ginsburg and Breonna Taylor, and what they stand for and what, what that means in terms of our society.

  BENAY LAPPE: Absolutely. And, and you know, as you're describing your perspective on the Breonna Taylor case, you're reminding me of examples in the Talmud where the rabbis do just what you're saying. They say: you, you can't look at what happens in this moment. You have to look at what people will naturally, and obviously, and understandably do generally in the world because of other forces, and that's what we wanna address rather than the situation.

  And there's a very famous - one of my favorite passages. I know I say that a lot - but really one of my favorite passages that gets exactly at that. Um, about, about gets and the rights of what, what men will, can do, what the Torah allows them to do, and how, because of the position of women in society at that time, um, 

  DAN LIBENSON: and a get, a get is a divorce, 

  BENAY LAPPE: a, a divorce. Yeah. So when we get soon, we should go there. 

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: Because your perspective is really helping me understand what they, what they do there. They use svara to address the underlying situation. Um. It's, yeah. Thank you. Um, and, 

  And we'll probably make reference to Ruth Bader Ginsburg over and over because the Talmud is always doing what she did. It's trying to sell an innovation, um, to get people on board to something that they wouldn't immediately be on board for in emotional, clever, tricky, whatever ways. Um, and we're, we're gonna see that in every single text we do, including today's. 

  DAN LIBENSON: Well, and, and here's something that, that I think, you know, as a segue into our text, I, I, I've been trying to make sense of what's bothered me a little bit about some of the hosannas directed towards Ruth Bader Ginsburg by particularly conservative men, and I don't need to name names, but, uh – some really beautiful things being said about her and, and specifically about her work on equality for women. 

  And I kind of wanna ask those men two things, you know, like: But you were probably on the other side of that in the 70s when she was doing her work. Or if you weren't really, uh, hadn't yet come of age, you, you probably would have been, had you - Now you could tell the story “Oh, I wouldn't.” - But people like you were on the wrong side of that, number one. 

  And number two: Doesn't it strike you that if here's a woman who was a prophet, you know, sort of saw before her time, or at least a lot of people saw it, at least figured out how to make it happen – and do you think that was the only thing that she was right about? You know, I mean, like, what, what I'm trying to say is like, given the fact that she now disagrees with you on a laundry list of, of deep societal dysfunctions that she also believes is like the lack of equality for women equally dysfunctional, including racism and other topics. Um, like maybe you should give her, you know, a little listen there? you know, like, like it something, something. 

  And, you know, and, and, and I think that, that, that comes to this question of, you know, the, the, that if we read the Talmud, for example, this text that we're looking at now, which is basically about whether and when the res, the, the, the, the saving of a life, uh, or the refusal to kill somebody over comes all the laws of the Torah. And the Talmuds basically says it, it does - with three exceptions that we'll talk about today. That, that's not that. 

  One way to read that is, yeah, the Talmud makes an exception for, or Judaism makes an exception for saving a life. You wanna talk about climate change today? You wanna talk about racism today? Oh, it doesn't really have anything to say about that. You know, for better or worse, like, climate change wasn't an issue at the time of the Talmud. So we don't know what Judaism says about climate change. You know, we don't know what Judaism says about racism. So, you know, that has to be in the realm of, outside of Judaism. And I don't buy that for a minute. 

  You know, like the, like, that's similar to saying that Ruth Bader Ginsburg only stands for opposition to sexism. No, you take the, you take – first of all, Ruth Bader Ginsburg herself had opinions about, you know, race and things like that. So, so the, so we could say there, you know, we should, I'm saying to these conservative men, like maybe listen to her on that as well.

  But what if a topic comes up, you know, five years from now? Well, what, we don't know what Ruth Bader Ginsburg would've said about – Yeah, we do. Yeah, we do! And so when, when, so when I think about climate change, for example, you know, in the Talmud that would be written today, it would say, you know: If climate change, if the climate was going to be destroyed and therefore the world was going to be destroyed, and therefore, you know, everybody was gonna die, obviously that falls into the same category, so, absolutely.

  BENAY LAPPE: Absolutely. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: Absolutely. And that's a, it's, it's a great, um, segue into our text, except I want one more, one more, um, sidebar. Okay. Which is…

  The rabbis invented this new system of, um, of sources, right? They inherit a system in which the only place you could figure out what God wants us to do is Torah. Beyond that, our hands are tied. 

  And what we're seeing in our texts today is the rabbis actually going beyond what the Torah allows them. Right? And, you know, just like the late Menachem Elon, the great Scholar of Jewish Law says: All innovation is driven by svara, by moral intuition. But the rabbis sort of institutionalized four more sources – svara being one of them, precedent being one, custom and legislation, in addition to Torah. 

  And you know, I, I named my Yeshiva SVARA because I'm, I'm, I, I think that that source, that idea, needs to be lifted up in the world, and I think it's extraordinarily powerful. But over the years, as I've learned Talmud, I've come to realize that svara as a source of law is actually not the most powerful. And I referenced this once or twice before. It's, I, I think last week. 

  It's actually custom! It's what the people are doing. 'cause what the people are doing establishes, um, the reality on the ground that those who are going to legislate can then draw from and then say: this is already happening and it's not destroying the world! Look, it's making the world a better place. 

  And one of the things that I've been thinking a lot about, um, with regard to Ruth Bader Ginsburg, and I haven't wanted to, to write or talk about it publicly 'cause it looks like it draws attention away from her, and I don't wanna do that at this moment, but it, it, I don't think it does – but it, here's what it is: It's, it's what I understand of her evolution and where she got to the place she got to as a person creating new legislation for women and other people. And that was that she was pushed by her students!

  She was, she was pushed by the feminists in her law school classes that were not about – The classes weren't about women in the law classes were about con- uh, contracts and other things. And her women, students who were much further along than she was on feminism and women's rights and activism, they were saying: Hey, why, you know, we, this is what we need to be doing! And she was like, oh, wow. And then she started reading and learning and created a course. And it, that's a, 

  It was a perfect, for me, that was an example of how minhag pushes law. And, um, you know, her gift was hearing, the minhag - was listening to what's going on, and her arguments as far as I understand them in those early cases to the circuit court and the tax case was – her argument was: We are not changing reality. Reality has already changed. We're only bringing law into line with what people believe rightfully is true. So anyway, that was just something that… 

  DAN LIBENSON: Well, I, I wonder, I wonder whether, what, when it comes down to it, and maybe this is something we could pursue over time, whether there are actually really only two sources of law. Uh, the, the, the, the ancient law, we could call that Torah, Constitution, you know, something that maybe legislation a after a while, you know, something that firms up – and svara, you know, which is a, a deep moral intuition. 

  And for example, minhag custom, uh, to the extent that it's different from what the law says, it's actually, it's actually an exhibiting of the svara of the people.

  Benay: That's right! 

  Dan: In, in than the world. And so it's actually, it actually is svara just in a different veneer. 

  BENAY LAPPE: That's exactly right. And I think legal scholars call it “anonymous legislation.” It's, it, it is the aggregate of the people who are not involved in changing law itself, but it it's living out their svara and then the legislators looking at that and going: yeah, you're right, you're right. That's svara operating on a popular - as in people - level. 

  DAN LIBENSON: So when we look at, uh, this passage, this part of the Talmud that we're looking at, and, and actually it's kind of looking like we're gonna be on this, in this area for, for a while - because there, it's a very rich, it's a very rich couple of pages of Talmud and it's not only rich because there's some interesting stories there. It's, it's rich because it's really showing as, or it's really giving us an example of this process of working through when does our svara, when does our sense that what's written in the Torah can't be the full law – uh, you know, what, what do we do at that when, when we have that intuition? 

  And, and fundamentally, you know, I, I think that we in the modern world are dealing with precisely that intuition today. You know, where we're, where, you know, and, and by the way, a lot of that is being exhibited through what we could call minhag, like the act- actions of the people. In this case, their action is that they're not too interested in what the law says. You know, what the Talmud says or what they perceive the Talmud says, because it doesn't seem relevant to them, you know, and, and you know, they,

  They say: well, you say Judaism doesn't have anything to say about climate change. You know? Or if you do, you're gonna pull out some random quote, you know, about, you know, planting trees. Like that's not, you know, where the reality is, is it has a tremendous amount to say. And what they're basically saying is that, you know, our, our gut sense is that this can't be the whole thing. 

  And, uh, and so then I think it becomes the, the job of the leaders to go – whether they're the preexisting leaders from before or some new group of leaders – to get into an attic and say: you know, actually the people are right. 

  You know, I think about particularly a high holiday season, so much of the time that we're at least used to this idea that that's the opportunity for their rabbis to tell the people what they're getting wrong, you know, and how they're not living up to Judaism, uh, because they're all there for the high holidays, so they have a chance to do a little bit of finger wagging.

  But what if, what if the reaction was the opposite? And this year there's a certain way in which it is, right? Because this year, because the people and the rabbis can't do it the old way, uh, all of a sudden all these synagogues are doing things they never would've imagined doing before – like having services online on a holiday, you know, that they don't use electricity, for example, a lot of - and they're doing it because, you know, for all kinds of reasons, like it has to be done. 

  And so that, it's a great, it's an interesting example of a time where you, you take kind of, well, this is what the people are doing. This is what the people need. The people aren't gonna stand for us saying we're not having services this year. They're not gonna stand for saying like, we're not having Yizkor, and you can't say Yizkor for your departed ones, even though this is the one time a year that you do it – that's just not gonna fly. And so the leaders in this case, the previous leaders are coming and saying, we're gonna come towards you. We're gonna, we're gonna make, we're gonna be the ones to make some modifications.

  And in, in this case, it's sort of the new leaders saying, we're gonna get it. We we're gonna have to do some revisions here. 

  BENAY LAPPE: Yeah. You know, what you're bringing to mind for me? um, You know, as, as we as a family are struggling along with. I suppose pretty much everyone in the world right now with distance learning and the challenges of that for kids and families, I've become aware of something called Trauma Informed Learning. And it, it's basically a lens which has existed out there for educational settings. Uh, primarily when and for kids who are in trauma for whatever reason – and now every kid's in trauma. Right, right. 

  This is probably the most traumatic thing God willing many of these kids will ever deal with in their lives. And it's ongoing. And the educational lens, according to this school of thought is: we have to re-ask ourselves, what are the needs of these kids right now? And you know, learning algebra is pretty far down the line right now. And unless we take care of, you know, ala Maslow, unless we take care of their emotional and mental health needs, we're not gonna even get to algebra. And that's what schools need to be doing. And, and often schools are sort of offloading that. 

  Why do I bring that up? Because I forget what it was that you said – but when it it, it had to do with a re-asking of the question: What do we need right now? Oh yeah – you're talking about Rosh Hashanah and services and, and the question is: What are the questions we need to answer right now? What, what are the needs we need to address right now? And those need to drive the design of how we do holidays, how we understand the holidays - or any sort of religious practices or technologies. 

  And, you know, in my CRASH cycle, that's when when you go Option Three, you revisit the driving questions and you, and you ask yourself: What questions - not only were we supposed to be answering - but did we never think we needed to answer? And now we have new needs, new questions, and, and those have to drive, um, innovation anyway.

  DAN LIBENSON: Anyway. Yeah, no, great. So, so, um, so let's, let's start, uh, kind of getting into the text. I, I, um, just to, you know, remind folks, I mean, again, this is the question, 

  The question that's arising here is whether the, um, whether the, the, the. Uh, saving of a life or the refusal to take a life, uh, overcomes, uh, other Torah pro prohibition. So if somebody says, for example, you know: eat a ham sandwich, or I'll kill you! or, you know, then you should eat the ham sandwich! if they, and, and, um, – and that's true of, of every, uh, according to the rabbis who are in this attic, which we talked about last week, you know, why was it in an attic? I think there's some, some interesting possibilities there.

  But, uh, so the rabbis are saying, uh, that, that, that any, um, any, you can transgress any Torah prohibition – other than three: Idol worship for forbidding, uh, either. So if somebody says: worship this idol, or I'll kill you! uh, you should be killed and not worship the idol. We're about to see some exceptions to that, uh, and, um, 

  Or, uh, engage in certain forbidden sexual relations or to kill somebody else. So if somebody says, if you kill, you have to kill this person, or I'll kill you, you should allow yourself to be killed and not, not to kill another person. So those are basically the, those are the three exceptions, and now we wanna start to see how they deal with the exceptions? You wanna say anymore?

  BENAY LAPPE: Well, I just wanna note that the, the text has hit you with the climax of the movie right here. This is it. This is the scene and the moment when the law is determined that you can “violate”, quote unquote - you can do what would've been considered a violation of the Torah – uh, in any circumstance, in any way, on any issue, in order to save a life or, or to prevent death with these three exceptions. 

  No justifications are given, no sources are given. The, the rabbis don't seem to feel the need in that moment of legislation in Nitza’s Attic to justify their answer. And this is typical of what you see in Jewish law. Um, in sort of the immediate post-crash era. You see this radical, bold, brief, unjustified legislation. 

  And then in subsequent eras, you see the, the going back, revisiting and filling in - “oh yeah, that's, we, yeah, we should do that because of this reason or because of that reason.” And they're both creating reason and sort of excavating from history, other conversations where reasons were given. And we're gonna see that conversation or, or we're gonna see that excavation in addition of rationales and reasons.

  And I'm still not sure what to make of this move in Jewish jurisprudence. And I'm not sure where we are in the world. I think we're in the bold, unjustified, sort of Mishnaic era. But I think it's really interesting and you and I have surmised, like tried to figure out and – And when we have scholars on, we're, we're always asking them what was going on in the time of the later strata, that either created the need for justification or made it.. 

  So anyway, just wanted to note that: So we had this first bold, unjustified, no reasons given statement. And now we're gonna get into the, the messiness. Okay. 

  DAN LIBENSON: Okay. So we go on: Concerning those prohibitions, one must allow himself to be killed rather than transgress them. Uh, meaning those three that we just listed, those, those are ones that, um, that you shouldn't do, uh, even if you're gonna be killed. 

  So the Gemara asks: and should one, not transgress the prohibition of idol worship to save his life, but isn't it taught in a baraita –  which is another ancient text around the same time as the Mishna – but isn't it taught that Rabbi Yishmael said from where is it derived? That, that if a person is told: worship idols, and you will not be killed, from where is it derived that he should worship the idol and not be killed? The verse states: you shall keep my statutes and my judgments, which a person shall do, and he shall live by them. 

  So that's actually something that we looked at a couple weeks ago, where the, the main justification that was ultimately derived at for why you should, um, uh, save a life - like meaning taking medicine or that kind of thing, uh, even if it would be prohibited on Shabbat – is this exact phrase that the Torah says “you should live by them.” Meaning you shouldn't die by these commandments. 

  So even, even, uh, worshiping an idol, right? So Rabbi Yishmael saying: thereby teaching that the mitzvot were given to provide life, but they were not given so that one will die due to their observance.

  BENAY LAPPE: I I, I think this is super interesting because what, what the, the stamma, the editor is surfacing here is basically saying: you know what? It, it, it wasn't always this clear. For whatever reason, which I'm not sure the, the stamma wants to surface the fact that there was another opinion. Um, who is this? Rabbi Yishmael - Rabbi Yishmael, who says: actually there should be only two exceptions. I think we should presume. And idol worship shouldn't be one of those things that you should die for. If, if some, you know, evil ruler says, bow down to this idol, or else I'll kill you, bow down to the idol. 

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: It saved your life. So it seems like Rabbi Yishmael would only have had two exceptions and the stamma is surfacing that. Okay. That's, that's interesting. 

  DAN LIBENSON: Right. So, um, okay. So we will, we'll continue, um.

  So the baraita, continues this, this story of Rabbi Yishmael continues: One might have thought that it is permitted to worship the idol in this circumstance, even in public. That is in the presence of many people. Therefore, the verse states, neither shall you profane my holy name, but I will be hallowed among the children of Israel. I am the Lord who sanctifies you. That's from Leviticus. 

  So the, uh, Steinsaltz’s explanation here is: evidently one is not required to allow himself to be killed. So is not to transgress the prohibition of an idol worship when in private, but in public. He must allow himself to be killed rather than transgress. 

  So as I understand it here, the the what they're, what what they're bringing here is saying, yes, the Torah does say v’chai bahem, you should live by these, uh, these commandments. But there is a specific additional statement in the Torah that says that, uh, you know, that, that you shouldn't profane God's name. Uh, you know that, that, so, so that's kind of a trump even over that one, you know? So it's, there's a hierarchy of Torah quotes here. 

  BENAY LAPPE: Yeah. So I, I'm actually understanding this in a clearer way than I ever have before. It looks like what? The editor is doing is he is, he's re he's reworking Rabbi Yishmael to have meant not that we should, you know - it's, it's not this very obvious contradiction to what they decided in Nitza’s Attic, but only, uh, an allowance of idol worship in private. In public, no - but in private, yes. 

  Which is probably not fair to Rabbi Yishmael. He probably meant both and I'd say he certainly meant both. Meaning, he certainly meant to allow both public and private idol worship rather than allowing oneself to be killed. But nevertheless, even with this limitation, we end up with, uh, a modification of the Nitza’s Attic law, which is now the exception of: Idol worship - meaning something for which you should allow yourself to be killed now only applies in public. 

  So, um, and the text doesn't go on here, but later in the Gemara where we won't continue not only limits the the, “but don't let yourself be killed to do idol worship to a case in public.” It limits it to the leader of a community. Okay. If you're the leader of a community, only then – if you're just an everyday person, bow down! But if you're the leader of a community, don't bow down in public. Don't bow down, if it's in public, and then it limits it further by saying: okay. If you're the leader of a community and they tell you to bow down to an idol in public, do do it to save your life. Only don't do it if it's a time of persecution! 

  So they've limited down that, even the exception of idol worship, to only for leaders of communities, only for public, only for times of persecution – only in that situation would it be a desecration of God's name to do this and, uh, therefore do it all, all those times - with, with this one exception, only then should you allow yourself to be killed rather than do it.

  Okay. So-

  DAN LIBENSON: Yeah, and, and I just think that that's really interesting. Uh, and this is often not the way that Talmud is taught because we, it tends to teach it as if it all happens in one moment. But it's interesting to wonder if it could have been that there were historical circumstances that changed between the time of the initial conversation in Nitza’s Attic - if that was real, you know, not as just a legend - but, um, but if there was some change in circumstances where, where your hypothetical case actually turns into a real case and you realize, wait a second. Like, we're, are we gonna have too many Jews being killed if we continue this way! You know, it did it, 

  Maybe there wasn't so much time when people were saying, you know, you should, you should be killed, uh, you know, or, or, or worship an idol, or you'll be killed – or, so, you know, and then they were like, well, that's more of a hypothetical. But, but now there's persecutions and it's a real concern. So we say, well, we better limit that. Or, you know, what el what else might have been happening?

  BENAY LAPPE: Yeah. That's, that's really interesting. Both what else might have been happening? and who else, who, who now is in on the legislative process?

  DAN LIBENSON: Right. Right. 

  BENAY LAPPE: Who's more in touch with what's really happening and really gets the - right? I mean, when, when, when the voices of people who are, for example, seeing what police are really doing.

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: And they're involved. Right. And being able to communicate out to the world the reality. We start to get a public conversation about defunding the police. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: Whereas that same reality was happening before. But those people who understood the dangers of a militarized police force, you know, playing out racism – they, they, they didn't have a public voice or weren't being listened to. So I think you're absolutely right. 

  DAN LIBENSON: No, and, and I love that. And that actually is a beautiful tie to Ruth Bader Ginsburg. 'cause I'm thinking in particular about the Lilly Ledbetter case, which was the Pay Discrimination case. If you just, uh, there was a woman who only late in her career did she discover that she was actually being paid much less compared to her male contemporaries in similar positions. And she sued and the Supreme Court basically held that the time had run out on the claim. You know, that it was a statute of limitations. And so she couldn't get justice even though, you know, she had a right to basically, but her time had run out.

  And Ruth Bader Ginsburg, who at the time was the only woman on the Supreme Court, because Sandra Day O'Connor had already retired and Sotomayor, and Kagan had not yet been, uh, been put on. She basically writes this dissent where she says: You know, fundamentally that her male colleagues just don't understand what it's like to be a woman in a workforce. And this all sounds well and good theoretically – as a statute of limitations, it's important to have a statute of limitations; 'cause otherwise people can't ever know that they're okay and that they're, you know, and they're always worrying that they're gonna be – you know, there's all this, like, like you were saying, there's always like analytics that makes sense, but it actually doesn't correspond to reality.

  And you can only really understand that reality by having people who are part of that reality be among the judges, so to speak, or the leaders. Right. And, and I think that by the way, like where, this is where – I mean I certainly true about LGBTQ Jews in SVARA has done a tremendous work over the last decade or two other organizations as well about, uh, making it so that there are more LGBTQ Jews in those kind of positions.

  I think about, I think about Jews of Color today because I think about how, you know, us white Jews, we're all kind of, of course we're against racism and, and so we would definitely agree to various rules that said no racism – but there's probably so many areas. I mean, not probably, there are definitely so many areas in which we don't see the racism that's there, and we wouldn't even recognize that what we're talking about is even racism. 

  Once you start to change who is on the court, you know, so to speak. Who is in the leadership position, who's studying Talmud? Then you, then you start to, you, like you said, you know, the Donkey Stories. Then people start to recognize themselves in a different, in a certain way in the old stories. And they recognize themselves in a way that says: Hey, maybe I recognize myself as the, as the donkey in more ways than one! Meaning I'm the victim of, you know, I'm the person that people are riding, you know, like, this is not, this is not a good story. We, we need to flip this story. You know? And, and that happens only over the course of time.

  And I think also about Martin Luther King and the idea of, of taking the, um, you know, really a document in the, the Constitution that, that, and the Declaration of Independence, the Declaration of Independence, which was hypocritical, and the Constitution, which was offensive, uh, you know, to Black People and Martin Luther King, basically, nevertheless saying: I'm gonna take the principle, uh, that, that all, “All men are created equal,” and I'm going to make a claim on you, White America and say like, I don't believe that you meant to write us a bad check. You know, I refuse to believe that the Bank of Justice is bankrupt. 

  So, so I'm gonna use your, your moral intuition, your decision that you stated in a general case with a hypothetical that turned out to be, you know, real, that was actually very bad. But I'm going to come back and say, you know what, it's the, the moral case was right. The hypothetical was bad, or the real thing was – now let's actually take it to where it needs to go. And, and that's a kind of process that I see going on here. 

  BENAY LAPPE: Yeah. And, and I, I think that's the, that's the genius of the Talmudic process as well. That's what the rabbis are doing. They're saying, um, you know, our, our svara has always – I, I think the rabbis actually understand the Torah to be a product of svara. 

  DAN LIBENSON: Yeah. 

  BENAY LAPPE: And, yeah. Anyway, I'll, I, I'll, I'll stop there. I think you're 

  DAN LIBENSON: absolutely right. Well, well, the one thing though, the one thing is that, um, you know, you, uh, we were talking the other day and you know, you, you talked, you reminded me about how you're always saying: but like, sometimes we'll learn this text like this in SVARA and students will come up to you and say like: you know, you've convinced me with your take. I mean, like, but how does this get taught in like an Ultraorthodox Yeshiva? Where they don't believe in this, like, evolving process and, and that they imagine again, that that moment in time idea is really how they think about it? And so they would read something like this, not as a, you know, evolution of this idea over the course of time when new people came into positions of leadership and they recognized, you know, that – how do they learn this?

  You know, and I, I think it's a, it's a, it's a really, uh, important question and it's, it's worth, you know, kind of exploring the different ways that different communities might look at the same text. But, but at least to me, it's as clear as day that what we're looking at here and what I appreciate, the rabbis not hiding from us – The rabbis who wrote the Talmud, I mean – the rabbis who have been teaching the Talmud have been hiding it – 

  But the rabbis who wrote the Talmud weren't hiding that there was an original point where there was a broad category of exceptions given to this rule; and over, and at a later point, that exception got narrowed – meaning, and just to make it clear that when the exception is narrowed, that means that the broad rule is widened! So what that means is that they’re saying there's even more times when the, uh, you know, Not Taking a Life is going to trump the Torah. You know? And, and, and so that, and that's what's going on here. And they're, they're showing us their hand. They're showing us that that's happening. 

  BENAY LAPPE: Exactly. And you know, we call SVARA: A Traditionally Radical Yeshiva, really, rather than a Queer Yeshiva. We debated for a long time about what goes after the colon – and, and really what, what, what drives our perspective more than the Queer lens is the Traditionally Radical lens. 

  It's the lens which recognizes that the rabbis wanted us to see that – that, that the, the shapers of this text wanted us to see this process at work so that we could replicate it on whatever issue was relevant in our own time, but in that way. 

  And the tragedy of the Talmud. Um, which SVARA exists to reverse is that it's been missed. It, that, that recognition of, of that the, the fact that the rabbis are trying to show us that has been lost mm-hmm. And the kind of peitistic take has been used. It, it, and exact, and, and the, the, the effect of that has been exa exa 

  DAN LIBENSON: exacerbated.

  BENAY LAPPE: Thank you. Exacerbated. Exacerbated. Right. Thank you. And I'm, I'm exasperated so I'm confusing the two by, by the limitation on who gets to be in the room to see what's going on. Which gets to the point we made before. What it's, when it's missed, uh, it's the power of, of the Talmud is actually lost in the, and the text is then misused and abused. Aanyway.

  DAN LIBENSON: Yeah, no, and I, I've been, I've been, um, I've been, um, looking at the, uh, High Holy Days lately, you know, because we've been setting various texts relating to the High Holy Days and like what struck me so much this year is that a lot of the, a lot of the sources in the Torah that are imagined to be the sources for High Holy Day practices actually don't say that in the Torah.

  So, for example, the, the story in the Torah about the, the lamb being sent off to Azazel, you know, the, the scapegoat, I guess. Not a lamb, it's a goat, but the, the, um, the scapegoat story and everything that – and we, we know of this as the practice for Yom Kippur in the temple. Well, maybe it was in the late 2nd Temple period – but it doesn't say that in the Torah.

  This Torah actually doesn't say anything about connecting that practice to Yom Kippur directly. There's indirectly, because the next thing it talks about is Yom Kippur, but it doesn't say, and this is the practice for Yom Kippur. It's just that the next comment is about Yom Kippur. So it's assumed, you know, 

  And actually what it seems to have to do with is the death of Aaron's Sons and the Tabernacle and tumat may’tim, the, the, the uh, uh, impurity of the dead is one of the worst impurities. And so we gotta get it out of the tabernacle. So we have this elaborate ritual. 

  Now. I think eventually that was, it said, well, like we have to do that once a year to clear the temple out from the impurities on Yom Kippur. Fine, but it doesn't actually say that in the Torah, and nobody recognizes that because we've been taught to read it: Oh now here comes the practice for Yom Kippur and we recognize it. And we, you know, when, 

  When Isaiah in the Haftarah are reading for Yom Kippur says, you know, the famously, God, you know, in God's voice, I hate your fast days, you know, if you oppress the poor. Right. We're, we're as, uh, taught to see that, oh, he, what he's saying is: that God hates Yom Kippur, uh, if you oppress the poor, but actually the Torah doesn't say to fast on Yom Kippur.

  So, you know, the whole thing is like we, we get taught to learn it through a certain lens. And that's, I think my experience of the Talmud is that the lens that I was taught to read it through in a more traditional setting, just doesn't survive actual reading. You know? It, it, it, and, and you can say that we can only read, we're, we're only allowed to read, I guess, through the lens of the commentators, but okay, but at least you know, but you can say, well, 'cause they were inspired by God or they knew the right way. I don't, I don't know. But I mean, it's, it's a, it's a powerful experience when you actually read the text and you see what it actually says. 

  BENAY LAPPE: Yeah. And that, that the, the fact that we conflate or we, we believe so deeply, the myth created to insert new meaning into the traditional practices is both fabulous and powerful and wonderful - and also a real danger when those practices stop working because, you know, we, we, we then think, oh, that it's always been that way, therefore It can't be changed. 

  So it, it cuts both ways, right? When it, we have to kind of make that wink to create a bit of a false history to give it power, but that power and the success of the wink, um, make it really difficult unless you can excavate enough to put, show the lines between the jigsaw puzzle pieces that it actually was constructed and can be deconstructed and put together in a different way. 

  DAN LIBENSON: Right. Okay, so let's jump back into the text. 

  BENAY LAPPE: Okay. 

  DAN LIBENSON: Um, so, um, so the Gemara answers those in the upper story of the House of Nitza in Nitza’s Attic that we've been talking about. The, the folks who originally made these three exceptions and, and made the general statement that, uh, that not, uh, killing somebody trumps the Torah. Um, 

  Those in the upper story of the House of Nitza stated their opinion in accordance with the opinion of Rabbi Eliezer: as it's taught in a baraita: that Rabbi Eliezer says – so there's a different place that Rabbi Eliezer, again, another one of these early rabbis, uh, stated: And you shall love the Lord your God with all your heart, with all your soul, and with all your might. If it is stated “with all your soul,” why is it also stated “with all your might.” Uh, which indicates “with all your material possessions,” and if it is stated “with all your might,” why is it stated “with all your soul?” One of these seems to be superfluous. 

  So, um, so that's, this is like from the shema, you know, בְּכׇל־לְבָבְךָ֥ וּבְכׇל־נַפְשְׁךָ֖ וּבְכׇל־מְאֹדֶֽךָ׃ that you should love the Lord – and it kind of has this like repetitive with everything you have. You know, one way to read it is just says: With everything you have, and that's just sort of poetic. 

  But the Talmud doesn't like the idea that the Torah is using extraneous words. So they're saying, okay, well why didn’t it either say: with everything you have? that's one way it could have said it – or it could have said with all your might or it could have said with all your soul? but it didn't have to say with all your might and with all your soul! So they're, they're trying to, trying to figure out here. Um, 

  BENAY LAPPE: and, and I would just say before we get at the, the teasing apart of the apparent superfluidity. That verse itself that Rabbi Eliezer put forth is basically saying: love God with, like you say, everything you have - including your life - that is understood generally as the source for: even give up your life in order to establish that God, God, our God, and not those other gods is the one to worship. Okay? 

  So there's the source that the Talmud is saying for: don't bow down to another idol, even if it costs you your life. Mm-hmm. Okay. So but, but now it's digging into the specifics of that verse, because the rabbis use apparent sup, uh, redundancies to create new meanings. And here come, here, come these new meanings. Okay. 

  DAN LIBENSON: Okay. So, um. So - 

  One of these clauses seems to be superfluous. Rather it's not superfluous. This serves to teach that: if a person, that if you have a person whose body is more precious to him than his property, it's therefore stated with all your soul, that person must be willing to sacrifice even if his life, even his life, to sanctify God's name. 

  And if you have a person whose property's more precious to him than his body, it is therefore stated with all your might, that person must be prepared to sacrifice all his property for the love of God. So according to Rabbi Eliezer , one must allow himself to be killed rather than worship and idol. 

  So if I understand this correctly, like Rabbi Yishmael’s baraita would suggest that there's this exception for, um, that it, that it only applies if you're being asked to worship an idol publicly. And Rabbi Eliezer is saying: in all cases of idol worship, you should sacrifice your life. And at this point, the Talmud is saying, apparently the, the people in the attic were, were on Rabbi Eliezer’s side. Where they, where they, uh, said in any case, 

  BENAY LAPPE: you know what, I'm, I'm honestly not sure whether, whether Rabbi Eliezer's verse here and the rabbis Nitza’s Attic going with Rabbi Eliezer imply that the exception of in public for a leader at a time of persecution, those exceptions don't apply. I, I don't think so. I think it's merely that Rabbi Eliezer is asserting that, unlike Rabbi Yishmael who says: bow down to an idol rather than give up your life, Rabbi Eliezer says: No, don't bow down! Give up your life rather than do that. I think the exceptions Rabbi Eliezer would, would still hold. I'm not a hundred percent sure, but, 

  But what the Gemara is continuing to do in parsing out this seeming redundancy is - they're create, they're saying: you know what? They're actually all kinds of people and the reason the Torah goes into: with all your soul and with all your might and with all your, uh, what other words בְּכׇל־לְבָבְךָ֥ וּבְכׇל־נַפְשְׁךָ֖ וּבְכׇל־מְאֹדֶֽךָ׃ with all your life, with all your soul, with all your might - whatever, uh – is because we need to be speaking to people who have different priorities. 

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: And there actually might be people out there whose possessions are more important to them than their lives, and they'd be willing to give up their lives to save their possessions.

  It reminds me of the joke my father used to tell about, you know, the old, the old joke: “Your money or your life!” “Wait a minute, I'm thinking…” You know that joke? 

  DAN LIBENSON: Right, right, 

  BENAY LAPPE: right. So the guy who says, “wait a minute, I'm willing to give up my life!” The Torah comes to say, even your might, even your stuff, even your money, um, you should be willing to, to, let's say, how does this work? 

  DAN LIBENSON: You should be willing to give up all your money rather than worship an idol. 

  BENAY LAPPE: Even. Right. Even if your money is more important to you than your life. Yeah. That's it.

  DAN LIBENSON:  Right, right. 

  BENAY LAPPE: So it's a bit addressing a, a different issue than it, it's like even for all of you who don't value your lives very much, 

  DAN LIBENSON: Uhhuh.

  BENAY LAPPE: Um, I don't, I'm having trouble. okay. 

  DAN LIBENSON: Yeah. No, no. Well, In my mind, what, what I'm thinking about is just like, um. Like, it just, it's just even taking account of that argument that a person might come and say, well, you know, you say that, um, you, you shouldn't, um, you shouldn't worship an idol if you're gonna give up your life. But, uh, I mean, you, you, you know, you, you, you shouldn't, uh, you, you, you should give up your life rather than worship an idol. 

  But what if like, giving up my life is easy, but like giving up my property is, is hard? You know, you're, you're saying that, you know, um, right. That, that, uh, you know, if I'm being forced to, to, um, you know, worshiping an idol, I, I should give up my property. But, you know, it's just interesting that it sort of takes that, that case on. 

  BENAY LAPPE: Yeah. Yeah. 

  DAN LIBENSON: Um, all right, let's continue. Okay. So, um, so then the, the Talmud goes on to say, um, 

  BENAY LAPPE: wait, wait a minute. There, there's some, there's some connection here. Okay. I, wait a minute. I think there's a connection here to White Privilege. I think b’chol m’oh’deh’kha relates to white privilege. I am not quite there, but it's, it seems to have something to do with the recognition that people hold their goodies, you know, with, with such even subconscious force that they'd rather have people die than give up their good. There's something here I can't quite go, I can't quite figure it out yet, but there's something 

  DAN LIBENSON: there. Yeah, yeah. No, it's, it's okay. Good point. Okay. I, I'm, I'm hearing that, so let's tease that out over time. Okay. Um, okay. So, uh

  From where's the derive that one must allow himself to be killed rather than transgress, the prohibition of forbidden sexual relations and the prohibition of bloodshed?

  This is in accordance with the opinion of Rabbi Yehudah HaNasi as it is taught in a baraita: Rabbi Yehudah HaNasi says: with regard to the rape of a betrothed young woman, it is written: “but you shall do nothing to the young woman. The young woman has committed no sin worthy of death; for as when a man rises against his neighbor and slay him so to with this matter” from Deuteronomy. 

  But why would the verse mention murder in this context? But what do we learn here from a murderer? Now the mention of murder came in order to teach a halakha a law about the betrothed young woman. And it turns out that in addition, it derives a halakha from that case. So we don't only learn about rape here, we're also learning about murder. 

  The Torah juxtaposes the case of a murderer to the case of a rape of a betrothed young woman to indicate that: just as in the case of a case of a betrothed young woman, one may save her at the cost of the rapist life. So too, in the case of a murderer, one may save the potential victim at the cost of the murderer's life.

  And conversely, the Torah juxtaposes a betrothed young woman to a murderer to indicate that just as with regard to a potential murderer, the halakha is that if one was ordered to murder another, he must be killed and not transgressed the prohibition of bloodshed. So two, with regard to a betrothed young woman, if she is faced with rape, she must be killed and not transgress the prohibition of forbidden sexual relations.

  BENAY LAPPE: Okay, so the first thing I wanna say before we go any further is this last line - um, is clarified by the Gemara later to make clear that the question never, ever has been: should a woman faced with rape give up her life rather than be raped. That it looks like it's saying that, but that isn't what it says.

  It's: should the potential rapist give up his life rather than commit the rape. Okay? Mm-hmm. So, I just wanna make sure that's super clear. The tradition never, never entertains the possibility that it's preferable for a woman to die rather than quote, “allow herself” to be raped. That's not at all what that this is saying.

  DAN LIBENSON: Mm-hmm. 

  BENAY LAPPE: Okay. So, but to back up into the proof what the, what the text seems to be now doing is going one by one into the other exceptions, uh, to: What you should rather transgress rather than be killed, namely a certain set of sexual prohibitions and murder. Okay? 

  And it's a, this is a really complicated proof, but in short, what it's saying is: since the discussion about a woman who is being raped in the field is juxtaposed – it's near in the Torah – to the verse about, um, the fact that you are permitted to kill someone who is the rodef who is a pursuer in pursuit of murdering someone, in order to save the life of the potential victim – and it's next to the conversation about the rapist — we can learn from the case of the pursuing potential murderer whom you're allowed to kill before he commits that act - so too can you and must you if you're able kill the potential rapist before the rapist has a chance to do that rape. In other words, the, the, the committing of the rape is so severe that, that rapist's life should be taken rather than he commit that act. 

  Okay, so that's now understood to be the source for why. Um, it is preferable to give up your life than commit rape, not to be raped, commit rape. Okay, great. Now, having established the proof for that, the Gemara goes on to ask: Well, what's the actual source for the fact that you can kill someone, um, who, who is out to murder someone else rather than allow the victim to be killed? But you may not actually murder an innocent person in order to save your own life. Yeah? It's a, it's a Okay, good. 

  DAN LIBENSON: Well, it seems like given, given the time that we should probably pick that up next week. 

  BENAY LAPPE: Okay, great. 

  DAN LIBENSON: So, you know, uh, just in summary, like what I'd say about this is that like the, what, what I think that we're trying to, to dig out here into, to really take a deep dive into this particular piece of Talmud is: ultimately, it's like, it's like what we talked about - I think we might might have mentioned this last week - but it's, it's like what we talked about when we talked about the Oven of Akhnai story, where what's really important is to, um, imagine the modern day version of that story and the characters change.

  So whereas in the story of the Oven of Akhnai, it's God who is saying: I know what the law is; and the majority says: but we don't have to listen to you. In this case it's, it's, um, you know, it's starting to be: well, but they, they said in the, in the, in, you know, in the Nitza’s Attic you know, our original rabbinic progenitors said – you know, we said: well, yeah, but like, things have changed and we can really kind of make that more.

  And if we think about that today, and we think about, well, and – you know, it might be that we, we say, well, racism or climate change is the two examples that we've been talking about. Well, those are like new, I mean, obviously they're not, well, climate change may be new, uh, relatively speaking for, it's something that humans didn't, weren't really affecting in climate as much back then. Certainly there was racism – uh, in a different way, I guess, so that it wasn't kind of modern racism. 

  But the point of it all is, is that we could go really radical and say, today there are very important issues that may also trump Torah, or in this case might trump Talmud, might trump rabbinic Judaism. 

  But I'm not even sure that we have to go that far! I, I think that we can also use our svara and here in actually the narrower sense of a logical deduction and to say, well, when we're talking about killing, you know, when we're saying that saving a life trumps the Torah prohibitions, or that the requirement not to kill trumps the Torah, uh, prohibitions – the narrow way to look at that is holding a gun to somebody's head and saying, you know, shoot this person, or I'll shoot you, or whatever.

  But the much more important version of that is. If we destroy the earth, then everybody will die. If we, uh, allow racism to exist in a way that causes the deaths of Black people at a rate higher than the deaths of white people, whether that's because of shooting or because of healthcare, uh, you know, right – that, that, that at least we ought to consider whether those are actually just simple, logical deductions that say: if we can save a life, you know, by not, you know, if we, if, if we, we should we – If we should, uh, do something that the Torah prohibits in order to save a life, when that choice is direct; then when that choice is indirect, we should also do it! Especially when it's like obvious that that's gonna happen - and we don't even know which person is gonna die as a result, but people are going to die. 

  So therefore, if, for example, we have to, ya know, I don't know exactly - we, we could play out what would be the Torah prohibitions that you would have to violate in order to, but one of them, for example, is, you know, we talked about last week, is gathering together for Yom Kippur services. You know, if that's going to cause, uh, you know, a virus to spread, even if nobody in the room dies of it, but somebody else will die from it, you know? Right. 'cause it's spreading, you know, it's a, it's a, i I think it's a pretty easy case actually. 

  BENAY LAPPE: Yeah. And I think you've put your finger on precisely the power of what the stamma is doing in going back to early unjustified legislation and saying: here was the rationale.

  It's so that the later generations can't look at the legislation and go, oh, the only thing that we can do is violate all these laws. But these three, you can't! You'd be, you'd be blocked from expanding that. If you didn't also have made transparent the rationale for arriving at those three exceptions.

  Once you have the rationale, it's an easy move from: oh, I, I could apply that same rationale to this un- new quote, unquote new idea, whether it's environmentalism or racism or femin[ism], you name it. Because this rationale applies equally. 

  And I, I can easily expand the tradition now because I know what drives the expansion and, you know what I mean?

  DAN LIBENSON: Mm-hmm. Mm-hmm. Absolutely. Right. Right. And if they hadn't sort of shown their work, it would've been a lot harder to figure out what to do when we, when we reach a, a case where, where seemingly these laws are taking us in the wrong direction. 

  And, and since they've shown us their work, so to speak. We're able to say, we're able to follow, say: well, yeah, I'm not following the rule in this case, the, the substantive rule in this case – I'm following the process rule, which says, how do I think about this new case? 

  And actually, somebody asked us recently about, you know, are we gonna have a show about climate change? And part of me, you know, says, well, I think all of our shows are about climate change! Because they're, they're fundamentally about saying: this is, this is the process that we use to think through something.

  The Talmud says a lot more about climate change through a text like this than what, whatever one or two texts we might dig up that say something nice about trees. 

  BENAY LAPPE: Exactly, exactly. People are always asking me, why don't you ever teach about homosexuality? And I'm like, I'll never ever teach Leviticus because you're, you are looking at the whole issue wrong, if you think what the tradition has to say about quote unquote “The Gay Issue” lives in Leviticus! It lives in the entirety of the Talmud. 

  I'm gonna let you connect the dots! Every single one of these cases that were done 2000 years ago provide a rationale for, and a process and a methodology, um, for quote unquote “the gay issue” or any other issue. Yeah. 

  DAN LIBENSON: Yep. All right. Well to be, uh, to be continued cliffhanger. We'll see you next week. 

  BENAY LAPPE: Thanks, Dan. This was fun. 

  DAN LIBENSON: Thanks, Benay. Bye. 

  BENAY LAPPE: Bye.

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