The Oral Talmud: Episode 29 - The Heart Knows The Bitterness of its Soul (Yoma 82a & 83a)
SHOW NOTES
“As almost always, there's a wink in this text. And the question is: has that wink been successful? Or have we lost track of the wink and opened ourselves up to the misinterpretation of this radical approach for an originalist approach?” - 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.
This week Dan & Benay continue to build on the discussion of Pikuach Nefesh – how the Rabbis established and expressed their fundamental value that one should put the preservation of life before almost any Torah law. We bring in a core text in the SVARA yeshiva which explores the case of a person who is sick and needs to eat on Yom Kippur, instead of fasting. The interplay between Torah, Mishnah, and Gemara are fabulous illustrations of their differing agendas, the rules of Talmudic debate, and a timely gateway into discussions of originalism in legal interpretation.
Is there a time for originalist readings, whether it be the American Constitution or foundations of Halakha? What is the job of law? Is it to define the only rights that we have? Or to assume we have a complete freedom unless otherwise limited? Reading Rashi’s commentary, what guesses can we make about where the debate developed in his time by noticing what he adds to the conversation? What are the implications of using a verse from Proverbs as a proof text?
This week’s text: “Lev Yodea Marat Nafsho” (Yoma 82a & 83a)
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] This history of the “Amy Coney Barrett Supreme Court nomination” (Wikipedia Article)
[2] For a well-sourced debate on the validity of Yeridat HaDorot “the diminution of the generations” explore this question on Mi Yodeya about its opposite Aliyat hadorot
[3] “like what Churchill said about democracy: It's the worst way except for all the others.” History of the saying at Quote Investigator
[4] For the “Tanur Shel Achnai” Oven of Achnai story, start with The Oral Talmud: Episode 3 - Misquoting God
[5] There was in fact a situation which flirted with the Third Amendment: in June of 2020 when DC Mayor Muriel Bowser worked to remove National Guard deployed to hinder the protests for Black Lives, and who were being housed in a hotel (rather than an army base) (article at LawAndCrime)
[6] The Oral Talmud first discussed Penumbra of the Emanations in The Oral Talmud: Episode 23 - Life Comes First (Yoma 83a & 85a/b)
[7] The 9th Amendment “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Wikipedia)
[8] While we’re on the subject of lesser known Amendments, your footnote scribe would like to recommend “27: The Most Perfect Album,” a partnership between the National Constitution Center and WNYC Studios to make a song for each amendment. (on WNYC’s website)
[9] “what are those Ur-values” – an entry for the prefix Ur- “proto/original” in Wiktionary
[10] The Oral Talmud’s journey into Pikuach Nefesh - “life should take precedence, even over the observance of anything in the Torah with three exceptions” - started with The Oral Talmud: Episode 23 - Life Comes First (Yoma 83a & 85a/b)
[11] More on Karet from MyJewishLearning
[12] A woman testifying to the death of her husband is on Yevamot 118a
[13] “Torturing your soul” on Yom Kippur (not explicitly fasting) is Leviticus 16:31
[14] Isaiah on Fasting, which is connected with the same verbiage as the Leviticus 16:31 of afflicting the soul - is Isaiah 58:5
[15] For the history, impacts, and erosion of the Voting Rights Act, start with the Wikipedia page
[16] Resources for stare decisis from the American Bar Association
[17] Writing footnotes after the stare decisis of Roe v. Wade has been eroded, I found this article that describes the long process of eroding the Dred Scott decision and how the same cycle may support a return of abortion rights - “The Cycle of Delegitimization: Lessons From Dred Scott on the
Relationship Between the Supreme Court and the Nation” by Jonathon J. Booth (PDF from UC Law SF)
[18] For some slow motion typewriter line returns, and the legacy of their terminology in modern computers, check out the video “What is CRLF? Carriage Return?” on YouTube
[19] Dan compares The Book of Proverbs to Polonius’s monologue of cliches to his son Laertes, from Hamlet Act 1 Scene III (on Genius with community annotations) - Dan also brought this moment up in The Oral Talmud: Episode 22 - Hillel & Shammai: Beyond Elu v’Elu (Eruvin 13b)
[20] God holding the mountain, and basing the covenant on Esther was discussed in The Oral Talmud: Episode 2 - Voiding the Torah
[21] For a great book of Jewish Fairytales, explore anything compiled by folklorist Howard Schwartz who always has fabulous footnotes (many for free on Archive dot org)
[22] Our sugya is discussed in Julius Preuss’s Biblical and Talmudic Medicine (pg 149, on archive dot org)
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DAN LIBENSON: This is The Oral Talmud - Episode 29: “The Heart Knows The Bitterness of its Soul.” 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.
Today we’re continuing to build on the discussion of Pikuach Nefesh – the imperative to save a life, even when that means violating a commandment – which we’ve been exploring since Episode 23 – peeling back the layers on how the Rabbis established and expressed their fundamental value that one should put the preservation of life before almost any Torah law. Our next stop is a text that’s core to SVARA, the yeshiva that Benay founded, which explores the case of a person who is sick and needs to eat on Yom Kippur. But as always, the Talmud is never only about what the Talmud is about – and the interplay between Torah and the two parts of the Talmud – the Mishnah and the Gemara – here are excellent illustrations of the differing agendas of these different sources and the rules of Talmudic debate. This episode opens the door to conversations about originalism in legal interpretation, especially timely at the moment it was recorded, as Amy Coney Barrett was being confirmed to the Supreme Court.
We’ll be working through this text over the next two episodes, giving us plenty of space to explore the moves the rabbis made and how we can draw from their playbook in Judaism today.
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 a web site called 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 this episode that we recorded in 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: I'll just note that like, uh, you know, for people listening much later on the podcast version this, you know, which one day we'll get actually out, you know, uh, speedily in our day. Um, uh, just to note where we are in, in history, uh: There's a Supreme Court nominee, Amy Coney Barrett, whose hearings are happening these days. And so some of that stuff is on our mind.
I put aside the politics of whether she should be having confirmation hearings at this time or not – but just the fact of having Supreme Court confirmation hearings, a lot of these kind of legal, uh, principles and ideas are in the air. And there've been interesting conversations between members of the judiciary committee, many of whom are lawyers, and Amy Coney Barrett about things that touch on what we talk about here in terms of different, uh, ways of interpreting an original text.
So, so there's a lot, a lot on our mind. Uh, you wanna say anything about that before we jump?
BENAY LAPPE: Just that I've been screaming at screaming at the TV a lot - because I love the way Jewish jurisprudence works, or the way I see it working in the Talmud.
And I recognize that there are corners of the Jewish world that have closed that approach down and said: yeah, yeah, yeah. – At best, at best – yeah, they did that, but we shouldn't do that. They were closer to Moses and God at Mount Sinai. – You know, this is the Yeridat HaDorot “the diminution of the generations” approach. – Yeah. They were radical, but we who, you know, we are like donkeys compared to them, and we shouldn't be that.
I know there are corners of the world who say that. Um, but generally speaking, that isn't how Jewish law works. So it's, it's really hard for me to empathize – and I know you're much more charitable than me – but it's really hard for me to un to like understand how someone can really believe that this is, you know, originalism or textualism is a good way to do law.
But, okay, we should probably leave that aside.
It also occurs to me that no matter what text we choose, it always feels like it's resonating with what's going on in the world,
DAN LIBENSON: Uhhuh.
BENAY LAPPE: And at first I thought that's what a great coincidence, but probably, you know, in a world which is in a CRASH and in the process of being rebuilt in, in a lot of ways - we shouldn't be surprised that what's going on in in life is also reflected in- because the, this document, the Talmud, comes out of the mid- and post-crash period, when the rabbis are trying to remake the Jewish world.
DAN LIBENSON: Yeah. And um. You know? Yeah. And it's interesting because it, it'll, it'll, I suppose, raise questions about right there, a question about whether a doctrine like originalism, for example – uh, and she's, uh, Amy Coney Barnett supports a very particular kind of originalism. It's, uh, there's all kinds of originalism actually. There's, – but that,
But she, she supports, since Justice Scalia supported this particular kind of originalism, that kind of tries to say that: it's only the meaning, more or less the meaning to the reader at a time, at the original time. That's the, that's the important thing. The, the original, not the original intent of the authors. It's the original, what they call the original public meaning – the, the, what a reader might have made of this text when it was written.
And, um, I wonder too if there are times in, in the development of a society where that kind of reading actually is okay? like makes more sense for whatever reason it's more stable? versus a time that is not the right time for that kind of interpretation. Meaning that I think a lot of times the, the advocates for a particular approach - whether that's original public meaning, or textualism or, you know, a more, uh, progressive oriented point of view - that, um, that they kind of assert that: this is always the way that the Constitution should be read.
And that's, that's an open question too. I mean, maybe there are times when, when this way of reading makes more sense and other times – that doesn't accord very much with a very polarized political environment, where, you know, there's this desire to lock down, you know: this is what we do and this is what they do, you know, and, and anything that they do is something can't be what we do.
Uh, you know, and, and I wonder, I mean, I, I, uh, you know – Because I, I do see like there's some, there's some way in which it, it makes some degree of sense to say that when we legislate, esp- or when we make a constitution - that, that's a big thing. Particularly a constitution, because, you know, it's not just passing a law. It's the, there's a, there's, it's a super majority. There's all kinds of, uh, you know, and, and that, and that that's not done lightly.
And so there's an argument that makes some degree of sense that says, well, when that happens, we should take the words very, very seriously, because that is the best way – maybe it's like, uh, Churchill said about democracy: It's the worst way except for all the others. But that's the best way that we have to kind of understand what does this mean?
And that if we, if, if people are afraid that every time we amend the Constitution that, you know, down the road people can take it anywhere, then maybe that's gonna make them more reluctant to amend the Constitution and then we won't get the need, the things that we need today met. So that the idea that we're gonna try to stick close to the words gives people some degree of confidence that it's okay to expand rights - without fear that they're gonna be expanded into some place that I'm afraid of.
But there's all kinds of arguments that one could make. They're not really, I don't, they're not my preferred arguments, uh, but it's interesting to see that play out and. What I was thinking about so much is just how, like you were just saying, like how different that feels from what we've been exploring in the Talmud where there's so much license taken with the words of the Torah, you know, that it's almost like the opposite of originalism.
And in fact, you know, we have the Tanur Shel Achnai story where the original author actually arrives and says: it's not what I meant, you know? And they say: we don't have to listen to you. So it really couldn't be much more different. Yeah.
BENAY LAPPE: And the or original author not only is not listened to, but seems to approve of having been not listened to, which is really the the point Right. Of that story. Yeah.
DAN LIBENSON: And he is not only not listened to, but it, you know, he is, he is not listened to using his own words against him in a way, you know? Right. And there's all kinds of layers upon layer.
And, and I think that these things could seem, you know, obstruse and like Jewish, like meaning, you know, kind of limited to this Jewish sphere. But, but I think that a lot of what we've been talking about over the last few months here is directly applicable.
And, and actually I was, I was kind of, uh, you know, watching the hearings just, you know, kind of somewhat in a rage, you know, like I didn't, you know, but, but every once in a while there would be a little conversation where I was like, oh, that reminds me of what we talked about. And that, that actually, you know, it's been interesting.
BENAY LAPPE: Yeah. The, the text we're gonna start today – I, I love that we're doing it right now because it is the absolute opposite of Amy Coney Barrett's approach. And I think it's just a fabulous case study in the, the Jewish approach. And I know there is not one Jewish approach – but I would argue that there has been, um, for at least 1500 years a predominant normative Jewish approach, which I would call “traditionally radical.” Um, and it's very, very different.
And in this text, which I think will probably take a couple of weeks to cover, we see how it works. And as almost always, there's a wink in it. And the question is always, I think, um, has that wink been successful or have we, have we lost track of the wink and then. Um, opened ourselves up to the misinterpretation of this radical approach for an originalist approach, because we're gonna see that it, the, the, the, the wink is like: that's what it always meant! So it's like a, an originalist claim on a radical anti originalist approach anyway. We'll flesh it out as we get there.
DAN LIBENSON: There's one piece that I think is, um, also just to point out is like, I, I'm thinking about, for example, like
There's a joke I - maybe this occurred to me just 'cause you said a wink -but like, there's sort of a joke among law students that: I wanna be a Third Amendment lawyer, you know, when I grow up. The Third Amendment is the one that says that the, the government can't house soldiers in your home in a time of peace. Right. You know, that. Um, and um,
And the joke of it is, is that like. That's never been an issue. Like that's just not, uh, that's not a live issue. Like that's just not, there are no Third Amendment cases going on.
BENAY LAPPE: God forbid
DAN LIBENSON: and you know, there's First Amendment, you know, that freedom of speech, religion - Second Amendments of Right to bear arms. The Fourth Amendment is you search and seizures, you know, Fifth Amendment is due processes. You know, like there's all the other amendments are very much vigorously, you know, enforced.
The Third Amendment is kind of like a big nothing. Now, but obviously it was important when it was passed. Like it, it had, had, had to do with a particular situation that was going on. But it also raises that question that we've been talking about here and there of Penumbras and Emanations. This idea that, you know, the Third Amendment is about, uh, quartering troops in, in a person's home in a time of peace.
But, but really that's not what it's about. What it's about is the sanctity of the home, right? I mean, it's, it's about the, it's about the, the right there's, there, there, you could argue that it's about much deeper values than that. And you could argue that actually, uh, the, the much deeper values is what the Constitution is trying to, or what the first 10 amendments are trying to, uh, solidify. And they did it by, uh, giving kind of case studies of the things that were most live for them at that time.
Does that mean that if, if there are new, different ways that, that the government is encroaching on our, the sanctity of our home or that we, we have to wait and, and do another amendment which has become politically basically unfeasible today? Or does that mean that there's a way of understanding these words beyond the words?
And, and that's the live question that's going on. And, and it cuts both ways. I mean, there are ways in which either whatever interpretive, uh, tool toolbox you use, it can lead to progressive results and it can lead to conservative results.
So one of the things that I thought Amy Coney Barrett talked about that was interesting is that it's, it's, it's important to have, like the process, the process of, of how you arrive at your decisions is as important as the decisions themselves. And that's what we've been talking about here for so long. You know, why, what we think is really going on in the Talmud is that it's kind of showing, showing their work, you know, and, and – and fundamentally sort of showing what it, what's this, what is this really about? And then I think that this text has some of that in it. And I just, I wanted to just focus on that because, you know.
Ultimately, I, I think this, this text that we're about to look at has to do with, you know, when can a person who is pregnant or ill, uh, fast not have to fast on Yom Kippur. But that's not really what it's about. You know, that's other words. That's not what you ultimately think it's about. And that's not where, you know, and, and, and, and the question at the end of the day.
The originalism question is, if we're originalists, then that is what it's about. You know? And if we're not originalists, then the question is how, how much not originalists are we? Right? How far are we willing to take it? Um, but originalism becomes a hard, a hard thing to argue for when it becomes so limiting that it's like, well, if, if, if that's all it was about, then why did we waste the pages on it?
BENAY LAPPE: Yeah. It just, it, I don't know. It's so obvious to me - when we're speaking of Talmud - that Talmud is never about the specific surface level case that it's about. It's, it's a paradigmatic case to surface principles that you can use, just like any law textbook, Like, I don't know.
DAN LIBENSON: but the other piece, it's not only, it's not only the, it's not only the question of the textbook, it's also a question of the law itself in the sense that, um, you know, that I, I think that my understanding of, of the, uh, constitution – I, I think it's the 10th Amendment, maybe it's the ninth, the – the one that says that, um, that basically nothing here, nothing, nothing that's written here should limit the other rights that we have, you know, as human beings and Um, and,
And so the question is, is like, what is the job of, of law? Is it to define the only rights that we have? or is it to try to say that there's a way in which we believe that human beings ought to be, ought to be in relationship to their government and to other forces that, that are at play? and that we actually have a set of values there and we have to tease out what those values are in!
In America it might be that people are maximally free unless the government chooses to restrict their liberty. And then you would, you would say that. If there is a freedom that is in the Constitution, such as you're free to not have troops courted in your home during a time of peace, that doesn't mean that that's the only freedom that you have about your home. That just right? That, that, that you have all freedoms in your home except for the ones that the government is specifically restricted!
And so it's just, and, and this is a big one 'cause that was on our mind, so we're gonna call it out in the Constitution. There might be other values. And here, I think in this text, we wanna tease out, you know, well what are those ur-values that Judaism is fundamentally saying is like this, is the val, the right, a human, this is, this is the rights that a human being has in their life?
And you know, are we, is, is, is what's in the Talmud, what's in the Torah - is that, should that be seen as the defining of the, the limited number of rights that a person has? and, and anything other than that you're at the whim of God or rabbis or whoever it might be? Or is it quite the opposite that human beings are sort of, you know, naturally and totally creating the image of God and therefore fully, you know, fully empowered and free, and, and to be trusted in whatever adjectives you wanna use? And, and only really, you should only understand the limitations that are put in to be the only limitations?
And that's a fundamentally, the way that you look at law as that it's about, uh, a world in which people are maximally free, except for when the law restricts their freedom, or a world in which people are maximally under the jurisdiction of, of some other force except for the freedoms that we give them. That's a fundamentally, uh, different, two different valid views of the way that you might see, you know, how human nature and law work together. And, and ultimately you wanna tease out which, which does your system believe in.
And I think that one of the mistakes that I think a lot of people have about. What we might call it, you know, very orthodox or very traditional, you know, whatever words, adjectives, people wanna use – is, is this notion that people are mostly restricted in Judaism. You know, that, that like the only freedoms that we have are where, where it's – and as opposed to I think quite the opposite, which is that, that people are maximally, you know,
BENAY LAPPE: that's really interesting. I wonder if the rabbinic revolution and the innovation of the concept of svara was the moment of shift between the biblical orientation of: people are maximally restricted unless – to people are maximally free, because every human being has that potential to possess svara, with enough gemirna, right?
Enough learning and being steeped in the values and principles and text of the tradition you have – you are recognized to be morally equipped enough to even overturn Torah. And that seems to be the shift. Maybe that's what you're talking about.
DAN LIBENSON: Yeah. That sounds, that sounds very plausible and right. And then the question might be, uh: if we're in the midst of another shift, what would that shift be? Is it even a more radical version of what you just said? or I mean, that, that we don't have to answer. Um, okay.
So should we, do we jump into the text? Do you wanna
BENAY LAPPE: Yeah, let's
DAN LIBENSON: read it Or do you wanna set it up at all or?
BENAY LAPPE: Okay. So setting it up, we're actually backing up, uh, a few pages from where we've been and we have been for the last couple of weeks on the punchline, really – the, the basic takeaway that the value of life is of, is of paramount concern. And life should take precedence, even over the observance of anything in the Torah with three exceptions.
And that having been a, a radical innovation – that, that we've imputed to ourselves the, the ability to overturn Torah, to imagine that God actually wanted us to violate God's laws in order to preserve our life, to prevent risk of death. Okay. Physical or emotional.
So we're backing up to a case that is being discussed on the way to that conclusion. And so I think that's, that's where we, that's where we're gonna jump in today.
DAN LIBENSON: Okay, great. So,
BENAY LAPPE: and I guess I, I, I'll, I'll also add that we're jumping back in time as well to the Mishnah. So the Mishnah is this document that was a very brief, um, sort of Torah 2.0, um, that was edited together in the year 220 from traditions - the oral traditions that had arisen and kind of taken hold in the previous probably 300 or so years.
So, so we're going back in time now to the mishnah. Now, this is an early and very, very authoritative – authoritative like Torah, authoritative. In fact, you know, the word Mishnah means basically 2.0. It's Torah 2.0. So, um, this is, I,
It's important to know we're going back in time because, um, over the next two weeks we're gonna take this early tradition and see where the rabbis - moving forward chronologically again - took it.
DAN LIBENSON: Okay. Okay. And, and we are in the tractate of Yoma, page 82a. And technically that is a tractate that's centered on Yom Kippur. And this actually is about Yom Kippur. Again, in its original initial presentation, it's about Yom Kippur. It's ultimately about more than that.
BENAY LAPPE: Yep, exactly.
DAN LIBENSON: So the mishnah, uh, says: With regard to a pregnant woman who smelled food and was overcome by a craving to eat it, one feeds her until she recovers.
BENAY LAPPE: Okay? There's so much in that. So first of all, traditionally, um, and for sure in the era of the Mishnah and only person who could be pregnant, um, was a woman, that's actually not true anymore. Um, so I wanna recognize that the word oo’bah’rah, the pregnant person is the female. But I, moving forward, I'm gonna call this a pregnant person, um, because people who, um, identify as male can be pregnant. Okay, fine.
So a pregnant person that is overcome with the smell of food – and Rashi here says it's not the woman herself that has smelled the food and gotten this sort of strong appetite or desire to eat it. It's the embryo. The embryo has smelled it, and it's the embryo that kind of has this need to eat. And if the embryo doesn't eat, both the embryo's life or the fetus's life and the woman's life will be in danger. That's the premise. That isn't
DAN LIBENSON: how, how does, how would we make a distinction between the women wants it and the embryo wants it? Like, is it. He's just saying that the reason that women wants it is because the embryo wants it really, going on…
BENAY LAPPE: That's right. And I suspect so, so Rashi is bringing down this tradition in the 11th century. I suspect that there's some apologetics going on here. In other words, there's, there's an attempt to shore up the legitimacy and the criticalness of the need of this pregnant person. It's not just a whim, it's not just, you know: sit down, you're gonna be fine.
They wanna say, no, this is a life or death issue, Uhhuh. And so they're saying no. Oh, it's, it's, it's not in her control and there's a danger to the fetus. So all of that is sort of laid onto what, what the surface text says, which is simply that she has smelled food… And the - yeah
DAN LIBENSON: Yeah. No, that's just interesting. I will, I think maybe we'll come back to that only in that it's, I like, I, I, I like what you're saying about the apologetic nature of it. You know, it's like, um, 'cause it feels like it's a comment that could come out of an environment, like, you know –
What a, first of all, a woman, is the woman really important, you know? And second of all, um, what she just smelled food. You know? It's like, why is that, that doesn't, you know, and it's like, okay, well this is like a one particular case, but it doesn't, you know, some way of kind of almost being dismissive over this. And so for whatever reason, if trying to shore it up, you have to say, well, it is not really the woman, it's the embryo.
BENAY LAPPE: Right. And it's not just: I feel like it – it's: I need to, or else I'm gonna die.
And by the way, let's remember that the issue of fasting on Yom Kippur is an issue of karet. Karet means divine extrication. It's Divine capital punishment. In other words, eating on Yom Kippur in the halachic system is understood to be punishable by having your soul cut off. And the rabbis disagree.
You know, there's a debate over, does that mean you die early? God forbid, does that mean when you die something else happens? But it's really bad! Let's just say it's the worst thing. It's in the category of the worst things you can do. So it's a big deal that they are saying, it's okay, you can eat. Right? Okay.
And, and in fact, that's what they're saying. They're saying: she… give her whatever she wants to eat, um, until her, her sort of soul returns to her; until the fetus has calmed down, her desire has gone away. That's the priority. Don't worry about the prohibition of eating on Yom Kippur. Okay.
DAN LIBENSON: Okay. So that's, uh, Case Number One.
BENAY LAPPE: Right!
DAN LIBENSON: Case Number Two: if a person is ill and requires food due to potential danger, uh, one feeds him according to the advice of medical experts. Or it just says “experts” who determine that he indeed requires food.
And if there are no experts there, one feeds him according to his own instructions, until he says “enough,” until he says he's had enough.
BENAY LAPPE: Great. Okay, so this is the second case. And the second case is about a sick person. And I think the presumption is the, there, the, the sick person, um, is saying or is understood to be in need of food, on Yom Kippur. And… Or else that person is gonna be in danger.
And the text says: if experts, maybe doctors, say: yeah, he, he, he needs to eat. He can eat - and, and doesn't suffer that horrible consequence of karet divine extrication. Um, but we need these experts to be the ones making the call.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: If there are no experts available – and only in that case – We're gonna, we're gonna rely on that person's own testimony about themselves and believe that and let them make the call. Which, which is a pretty, a pretty bold move.
DAN LIBENSON: Um, yeah, because like you say, the consequences that you were eating on Yom Kippur when you, in, sort of the platonic ideal, like shouldn't have eaten on Yom Kippur.
Meaning if you make a mistake, you know, you're, you think that you need food, but you actually don't. The result is that you've just eaten on Yom Kippur, which is, like you said, one of the worst things that you could do.
BENAY LAPPE: Exactly. You know, the, the sick person themself is a, an interested party here, so you'd be even more inclined not to trust in, in a certain sense, their own testimony.
It reminds me of another radical move the rabbis make over in Sanhedrin – Sanhedrin? Yevamot? hmmm, Yevamot! – and the rabbis say: a woman who's… okay, generally speaking, a woman who is married to a man - in this heteronormative context - is up a creek if the hu- if this man dies with no witnesses! Because she can't be declared a widow, nor is she declared, um, nor does she have a, a married, a man there to be with her. She can't remarry.
And the rabbis eventually say we are going to allow her to testify on her own behalf, saying: My husband has died – even without two witnesses, even though she's a woman. It's a very bold move. This is a similar kind of bold move to believe the interested party when the consequences are really great and the law that's being overturned is enormous. Okay.
DAN LIBENSON: By the way, one thing that I just wanna, oh wait, did you have more in that?
BENAY LAPPE: No, that was it.
DAN LIBENSON: Oh, is that, well, I just wanted to point out one other thing about like the, our questions about originalism and, and that kind of thing, which is that there are actually two originalist moments that we might wanna look at here. 'cause one is the Torah and one is the Mishnah. We've just read the Mishnah - and then we're gonna read the Gemara, which is, you know, a few hundred years later is gonna take this mishnah and do some stuff with it.
But I think it's worth at least pointing out a little bit that, that the mishnah is doing something to the Torah, which is: uh, you know, that the Torah, it doesn't say anywhere in the Torah that you should fast in Yom Kippur it, it says that you should “torture your soul,” whatever, however you wanna, uh, translate that exactly – which at some point became, uh, understood to include fasting. It also included other things, and, um, okay, so it did, you know,
But like that the Torah, the original text does not say “fasting,” and it, I – I'm pretty sure that it doesn't, that there's not like an understanding that what “torture your soul” meant in the ancient world was “fasting.” I, I think there's, I think that there, that's not like an original public meaning claim that that's meant fasting. Like if they said fasting, they said fasting, you know, like in the, in the book of Isaiah where he, you know, is yelling about: you fast and then you oppress the poor and I hate your fast. It doesn't say, I hate your “soul torturings” it says, I hate your fasts, because they knew how to say fast when they wanted to say fast.
And so it's not at all clear that the original meaning of the Torah is fasting. So the mishnah itself is either itself giving meaning to that - and, and saying that include, that means fasting. Or is at, at least it's kind of ack-, it's, uh, ratifying what had become by that point, a a, an accepted social meaning of, of torture your soul to be fasting. Uh, and, and now it's putting it into writing and they're saying: well, we're not legislating it. It's meant fasting for a few hundred years. Which it may well have. So, you know, we don't really know.
But, but it's, it's just worth, worth an worth looking at how the Mishnah is not necessarily like – which one is the Constitution? Which one is the, you know, the, the, you know… It's like the, the, the Voting Rights Act, for example, right? Was a, um, the, the Constitution in the, in the 14th. Uh, 14th Amendment 15, 15th Amendment. You know, they say that Congress shall have the power to, uh, enact this, uh, provision of e equal equality of citizens through proper legislation.
And so the Voting Rights Act is a law that's not part of the Constitution, but it kind of draws its strength from the fact that the Constitution specifically says that Congress should legislate on this issue. So it's a little bit of a stronger version of the law. And you could kind of say like, that's like the Mishnah and the Torah is like the Constitution, you know, and, and we're about to interpret the civil rights, you know, the, the Voting Rights Act, which itself is kind of an interpretation of the Constitution. That's part of what's going on here as well.
BENAY LAPPE: That's really interesting. That sounds right. And it's in, it's a, it's an interesting and non-obvious move that they would take. A new innovation like fasting or a new understanding and retroject into the Torah. They'd be able to play with it a lot more if they didn't. But they don't do that. They, they retroject into the Torah, I guess, I suppose, because they wanted to really have the sense of Torahitic authority.
But later they're, they're in a corner like here. They find themselves suffering from the fact that they've done that and they realize, you know what? Sometimes that's gonna get us in trouble. But in those times, we can actually un, un undo the door a little bit and say, in this circumstance, it's okay, even though we are doing this radical thing of undoing a Torah, it, you know. A Torahit- law, which they made a Torahitic law in the first place.
DAN LIBENSON: Right. And, and that happens all the time in law. You know, it's like, and, and that, and, and it's kind of appropriate, I mean like in the sense that oftentimes what'll happen is that there's like some 19th century case interpreting the Constitution, and then there's, you know, stare decisis, we talked a lot about that with Amy Coney Barrett. This idea that, uh, cases that have been in force for a long time should stand because the public has sort of come to rely on that as what the constitution means. And you can't just keep willy nilly every 10 years, you know, changing what the meaning of the Constitution is.
So the stare decisis is this idea that, you know, even if it's kind of wrong or we think it's wrong, but it's been decided a hundred years ago, probably it should remain as – and, and then what do you do? Because we've now like our - like you said - boxed ourselves in by interpreting the constitution in a particular way, and now we're stuck with it. So what do you do? You limit that case and you say: oh yeah, but that was only a case about this particular limited inst, you know, example that was about voting. But here we're talking about housing, so that doesn't apply. And that's what happens all the time in law. You could say it's legitimate illegitimate, but that's what ha that's how you do it. It's like you, you,
One option is to go back and say, we're overturning the case. We were wrong a hundred years ago. And that happens sometimes when, when it's important enough or you can't limit the case enough and you say, well, that was wrongly decided. Thank God for example - that the Dred Scott Case was actually overruled, right. Uh, by Brown v. Board of Education and, you know, like that. So that should happen. Uh, but,
But a lot of times, uh, for various reasons, they don't wanna overrule that case from a hundred years ago. And so instead they limit its application and if you can limit its application to a case that doesn't exist anymore. Right? Like, well, that case applied to, you know, horse-drawn carriages, but we don't really transport ourselves in horse-drawn carriages anymore. So basically you've, you've, you've overruled that case without overruling it. Right. You know, and so there are all kinds of moves like that, that are just standard legal moves.
BENAY LAPPE: Yeah. That's really interesting. Okay, great. So it, so it looks like we have just a case, a simple case of a pregnant person and a second case sick person. Two Cases. Okay, so bottom,
We're gonna focus on the case of the sick person. And just to recap the mishnah, it says: that if a sick person needs to eat on Yom Kippur, experts need to give permission for that sick person to eat. Only in the case where there are no experts present, do we rely on that sick, sick person's testimony about themselves. Uh, but we do! And in that case, and we allow them to eat until they say “I've had enough.”
Okay, great. Hard return for, for those of our listeners who remember typewriters
New paragraph: Now we're gonna move ahead a hundred years. Okay. So now we're into the era of the amoraim and who generally speaking - according to the rules of the Jewish jurisprudential game - cannot overturn the mishnah or any teachings of the Mishnaic era.
But the open joke is, you know, yeah: that never happens, and it always happens, right? The Talmud is basically a record of that happening over and over and over and over.
Okay? So now we have a Rabbi, Rabbi Yannai, who's gonna come. He's the, in the first, he's a third century, first generation Amora, and we're gonna see what he says.
And by the way, moving from Mishnah to Gemara, we have to remember that Gemara is doing a whole bunch of things that the Mishnah generally isn't. It's entertaining case, new cases that the Mishnah seemed to be silent on. Um, it's asking for sources, it's asking for author: Well, who said that? Right? The teachings we just heard have no stated attribution - we don't know whose opinion that was.
It resolves conflicts or apparent conflicts between the Mishnah and the Torah and this mishnah, and another mishnah and so on. Okay. So we're gonna see, and or, or there's gonna be a fleshing out of, but what if that, that, that's basically case law. So we're in the what if category now.
DAN LIBENSON: Yeah. And I, I loved what you said about the hard return of the typewriter, 'cause that's like a great example. Like if we can limit this case to typewriters, then it's fine. 'cause we all use computers now, so then we don't have to worry about it. That's, and I think we're gonna see, um, like versions of that, those moves here, which is why I'm, I'm just reinforcing it.
BENAY LAPPE: So here comes Rabbi Yannai.
DAN LIBENSON: Okay, so here comes Rabbi Yannai. Um, it was taught in the Mishnah if a person is ill and requires food due to potential danger, one feeds him according to the advice of experts. Rabbi Yannai: said, if an ill person says he needs to eat and a doctor says he does not need to eat, one listens to the ill person.
BENAY LAPPE: Great. Let's stop there.
DAN LIBENSON: Okay.
BENAY LAPPE: Okay. So now the new case that Rabbi Yannai is saying is the sick person says: I really need to eat if, if I continue my fast as I'm required to do, I think I'll die, or it's going to endanger my life. And there is an expert present, a doctor, and the doctor says: You're fine. I've examined you. You can continue with your fast, just like the Torah says - quote unquote - you should do. So, you don't, you can't eat. I rule that you're not allowed to eat. You should continue your fast. And Rabbi Yannai says, we listen to the sick person over the authority, over the doctor, and we let the sick person eat.
DAN LIBENSON: Which I wanna really, I mean, I wanna show this text again because like, I wanna, like it's really the, the originalist take on this text would be not that, right? I mean the, the, the originalist take on this text says on the mish
BENAY LAPPE: Wait, on the, on the Mishnah you mean?
DAN LIBENSON: Yeah, right. On the mishnah, yeah. Like if, if I'm sitting here and like, I'm a normal person and I'm reading this mishnah, it says: if an ill person requires if food one feeds him according to the advice of experts, and if there are, if there are no experts there, one feeds him according to his own instructions until he says enough.
So the way the straightforward reading of this is, if there's an expert there, we listen to the expert. That's, isn't that what it says? Right? I mean, that's the,
BENAY LAPPE: that's exactly what it says. And in fact, the Gemara that the editor is going to create a voice in the Gemara saying: wait a minute, whatcha doing, Rabbi Yannai? The mishnah says something. How can you- So, stay tuned. Stay tuned. The mishnah is actually gonna articulate that very object. Okay.
DAN LIBENSON: Okay.
BENAY LAPPE: Okay. But we're not quite there yet. So here comes the, the editor now piping up - before articulating the contradiction, um, between Rabbi Yannai and our mishnah – the editor pipes up and says: what's the reason? What, why, why are we listening to the sick person? When there's an expert present and the expert says, you don't need to eat, and the sick person says, you do need to eat?
This question isn't: Hey, wait a minute. How can you overturn or contradict a mishnah? That's gonna, that challenge is gonna come later. This is simply why? Why are we listening to a sick person over doctors? Doctors are experts, right? Shouldn't, shouldn't their view sort of win the day? Shouldn't you listen to your doctor? And here comes the answer.
DAN LIBENSON: Okay? So the answer is quoting the book of Proverbs for a statement: The heart knows the bitterness of its soul,
BENAY LAPPE: Right. Lev Yodeah Ma’ah’rat Nafsho, The heart knows the bitterness of its own soul. Okay? In other words: the individual knows best what their internal reality is. I know better than an expert what my experience is – what I'm feeling, what I need, who I am.
You know, I think we should put a sticky here, but eventually I'd love to come back and ask what might be the implications of this idea that the individual knows best - the individual knows better than experts in this case, whether they need to eat, but maybe about lots of other things!
I, I, I, I think we're seeing the beginning of a deep principle, not just a statement about a sick person and their ability to know if they need to eat right. Thi this is an idea that, um, I think is setting out one of those Ur-values in the new rabbinic system of what we believe about people. We believe that people know themselves best, and - what's implied - have the ultimate authority about their own lives,
DAN LIBENSON: right.
BENAY LAPPE: In some profound way.
DAN LIBENSON: Right. And, and if you wanna limit that freedom, you're gonna have to work really hard to do it. Because if that, if, if our sort of foundational principle is going to be: people know themselves best, and know their own needs best, and we should trust them. And trust - not only is it a person knows their, their needs best - but it's also then, and, and we're going to assume that people are motivated by true good motives and they're not gonna lie. Right?
And so we're gonna take those two things together and say: if a person says that they need something, then they need it and they should have it. And, and, and, and if you don't want that to be, you're gonna have to work really hard to limit that freedom because we're gonna interpret every piece of legislation that you ever do that's contrary to that, into its narrowest possible interpretation to try to maintain that maximal freedom. So that that becomes real-
And that's what I was trying to say earlier about like, if we understand as the, again, 9th or 10th Amendment does that the, that that. America in theory, recognizes people to be maximally free and less limited by law, then we're going to come out with a different point of view than if we understand people to be minimally free unless the law grants them the right.
BENAY LAPPE: Okay. You just gave me an idea about what the very next word of the text means. 'cause this next word has always puzzled me. Okay. So let's look at where the text goes next.
DAN LIBENSON: Okay. I just wanna make one, one other quick comment, and we don't, we can come back to it,
But there's two things. One is the, the principle that they're declaring, uh, right. People should be maximally free – but the other is the source where they're citing why, where do they get that? Which is in the Book of Proverbs, which I don't, we can look at it later if you want. We don't have to take the time, but it's like – it doesn't, it doesn't really mean that, I mean, that's not what, that's not what the Book of Proverbs is trying to say - you know, again - most likely.
But if you read, read in context, it kind of means that like, you know, it's like some version of like: No man is an island, but it's like every man is an island. You know? It's like, it's like: everybody's like, we're all on our own in the world, you know? It's like, you, you don't know. You don't know me, you don't know me, you don't know my suffering. You don't know my happiness. You know, like that's what's going on here. It's kind of a nihilistic, you know, kind of like, it's similar to stuff in the Book of Ecclesiastes. It's, it's like kind of a bummer of a, you know, like, we're just out, we're just out here alone, you know? Right?
And it's, and, and so, so I don't, you know, I mean, I don't, I don't make anything of that really one way or the other. I, I just think it's like to point it out that for some reason the, the, they often not always feel that they wanna like, find some source in Bible to ground this in. This isn't even in the Torah. It's in somewhere else in the Bible.
And, what we've talked about many times is like “the wink.” It's like if you actually go and read that, you are really gonna see that we're, that this is if, if, if, if our claim is that we're getting this idea from the Torah or from the Bible, like that's a big wink. If you're, if, if you, if you wanna say like: we get this idea from a more fundamental understanding of maybe what the Bible is all saying in the, in the big picture of what we really believe a human being is - and then we're kind of using this source to kind of reinforce, okay. You know, like then we can, we can talk about that. But it's another one of those sources that's kind of like taken outta context big time.
BENAY LAPPE: Absolutely. And, and you're right. The fact that it's in Proverbs – it's like you ha you had to dig that far to get something? Typically, if a, if a source is not in one of the five books of the Torah in the Chumash, it's recognized to be a pretty weak source.
DAN LIBENSON: And particularly Proverbs. It's one of those, you know – I always think of Proverbs as as like, you know, there's that, there's that list in, uh, in, um, Hamlet of all the, all the like little, you know, “neither a borrower nor a lender be,” you know, et cetera, et cetera. And it's actually meant to be a joke. Like it's, it's meant to be in, in Hamlet, it's this kind of doddering old man, you know, kind of sending his son off with all this like, list of cliches.
And I, and I actually think like it's not, it's not un unclear that Proverbs doesn't kind of play that role in the Bible. Like, it, it is important. There are good stuff in there. Yeah. There's also a lot of weird stuff. So it's kind of like Proverbs? uh.
BENAY LAPPE: I know. It's like, you know, as God taught in the Book of Jewish Fairytales, it reminds me, reminds me of that source from Esther. In the text we learned - maybe it was one of our first texts about, um, the, God holding the mountain. Um, And how do we know that actually the covenant really isn't for - Oh, because it's said in the Flintstones! Okay. It's said in this story that we don't even believe happened. Okay, fine.
DAN LIBENSON: Okay. You wanted to go to the next word?
BENAY LAPPE: Okay. So now that the editor is coming in. We always know that editor is jumping in, when two things happen: one the language switches to Aramaic and there's no attribution.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So that's, that's our clue that, that the voice – this isn't a, a flat document. It's a document with, with different historical layers and different voices and, and, and in order to create a kind of fake conversation. And the editor is now jumping in - the edit- way later, many, hundreds of years later, who's piecing this whole thing together.
And, and the editors editor says, p’shita! That's Obvious! And this is actually, this has always puzzled me because… it's not actually obvious! It's not, I don't think it's obvious that you would listen to the individual – and the fact that the editor saying: that's obvious. Maybe here's what you were making me think, maybe, it's the editor saying this is a deep principle, not just a statement about the sick person.
The deep principle that an individual knows themselves best and therefore is authorized to make decisions over and above what external authorities say about them - maybe in lots of ways - is obvious.
So, so maybe that's a hint that this is a broad principle and not just a narrow statement about a sick person in Yom Kippur.
DAN LIBENSON: And, and yeah. And it, it kind of feels, it, it just hearing you say that it, it, it feels like it's telling us something about the society in which they are living - before the Gemara, before this conversation! And like you say, this is an early, well, the, the, this is brought up by an early voice, but you know, the, the, the, uh, editor is a late voice.
But they're saying kind of like, yeah. So I guess you could say it's about the Jewish society as they understand the society that they've built - and/or the kind of larger world society, the Persian society, in which they live, you know, where they're saying, you know. Yeah, of course.
It's like things that we would say about what it is to be an American. Well, of course, of course, a person is, has, has fundamental self-determination is a, you know, that, right? That, that, that's, that's a principle that we all know in our lives, you know? So, so why are we even, yeah, like that's just a basic building block of the society that we live in. So yeah.
It's not even a principle like, I'm trying to say, it's not even a principle that they're declaring as a larger principle. It's like they're saying, yeah, of course. That's, that's part of, that's, that's, that's an assumption, a given, about a, a person in our world today, you know, that's been true for hundreds of years. Something like that. Right.
BENAY LAPPE: And now you're reminding me of pikuach nefesh, of that idea that the idea that of course you're gonna drive to the hospital on Shabbos if someone is, you know, having a baby, or, or what – Of course, of course. That, that just seems like a given.
So maybe to the editor, this idea that this was a principle about the autonomy of an individual had already gained legs. Um, and he really is sincerely saying that, you know, we know that to be true.
DAN LIBENSON: Right. I mean, you, you know what the, the, the example one, one example that I, I would think of as like, what would this feel like today is: if somehow we were, we were, uh, you know, engaged in some Jewish conversation - and somebody said like, um, you know, we should, uh, something, something where we should give women some equal position or whatever, you know, we should listen to the testimony of a female witness and said: because a woman is a person, as we know from this verse, they created Adam and Eve both in God's image. And somebody's like: of course a woman's a person! I wasn't even thinking that she wasn't! like I, that didn't, that question didn't even occur to me!
You know, like, and it's something so bizarre that you've even raised this, because like – of, of course we know that and, and yet, and we also know that hundreds and hundreds of years ago, that wasn't true in like the biblical period. – But I mean, like, but we've been, we've been past that for hundreds of years, so why are you bringing this up now? You know, it, it feels like that's,
BENAY LAPPE: I love that. And why are you bringing up this up now? I wonder, I don't know if I'm going in the wrong direction or different direction here – but maybe what, what the stama is saying here is, why would I even need a verse? Why do you even need to gimme a verse?
DAN LIBENSON: Exactly, right.
BENAY LAPPE: To teach me that this - of course! I think that maybe that's, yeah, that's what the pshita is doing here. Pshita’s saying, I don't- That's it. Yeah. I don't need a verse! I know that! That's what we all believe.
DAN LIBENSON: Yeah. Like, I don't need, I don't need the verse, you know: Male and female, God created them – you know, to know that a woman is a person today. You know, like, it's just like, I don't need that verse, you know, that we've been living in a world in which women have been a, you know, uh, a full person – not necessarily they've had full rights, but the understanding that a woman is a person, not property, for example. Right.
We've known that for, you know, we've, we've, our world has accepted that. I mean, our Western world's accepted that for hundreds of years. You know, we don't need a verse from the Bible to reinforce that at this point. Yeah.
BENAY LAPPE: Okay. Great. I love that. So now let's see what again, the editor is at - is inserting as the answer to that challenge: Why would I even need a verse to know this? Of course we know this.
Here, here comes the answer to that question.
DAN LIBENSON: Okay. So the, the, the editor says: it's obvious! uh, that a person knows, knows their own needs better than, than anyone else. Uh, and so the Gemara says: but we have to say it - lest you say that the doctor is more certain, because he's had more experience. Therefore, the verse teaches us that even so - even though the doctor does have more experience - the ill person knows his own suffering better than anyone else.
BENAY LAPPE: Oh, I see that, I see that that translation kind of agrees with this idea that the claim, “this is obvious,” is really pointing to why do we need a verse to know this thing that's, that's obvious? Okay. And so the answer is: well, you might have erroneously believed, that in a case like this, and maybe by extension other cases, the authority has had more experience of this illness and knows - for example - that the hunger pains aren't really hunger pains, it's just some sort of contraction of the stomach and the, the patient can't, you know, know that – and that we should believe the doctor.
DAN LIBENSON: Right.
BENAY LAPPE: But no! Be- just to be sure that you don't go there in your mind and say: yeah, general, generally, you know, I, we do believe the person, but if there are doctors, we should believe doctors. 'cause they're so -- no, no, no. Don't even go there. Right. And I,
DAN LIBENSON: Right. I worry about where this is going a little bit in terms of trusting doctors, but No, but I know it, it, it's a, it's okay in the end, you know? But, um, but you know, that's a, sadly that that's sadly one of those issues today in our world that's not pshita, you know, obvious. Yeah.
But, um, yeah. Okay. So, so even if the doctor, so even if the doctor says: oh, you know, I've seen this case a million times. Somebody says they have, uh, aches and pains in their lower back, and food doesn't help and you don't need it and you'll be fine. No: the person says: no, but I need it. They get it.
BENAY LAPPE: Exactly. The person's own experience overrides the doctor's evaluation. Of what they actually need. Okay. Yep. Great.
DAN LIBENSON: And just as a reminder, this continues to be contrary to the plain reading of the mishnah.
BENAY LAPPE: That's right.
DAN LIBENSON: We've gone through all these like permutations - but at the end of the day, we still have not resolved the fact that this appears to be the opposite of what the mishnah says
BENAY LAPPE: Exactly. And the Gemara hasn't yet even articulated that Rabbi Yannai is in conflict with the mishnah, but we're gonna get there.
DAN LIBENSON: Okay.
BENAY LAPPE: Okay,
DAN LIBENSON: so moving on?
BENAY LAPPE: Yes. Now we have a second case that Rabbi Yannai is going to rule on.
DAN LIBENSON: Okay. So in the, in the opposite case, if a doctor says that the person needs food, the, but the ill person himself says he does not need to eat - one listens to the doctor.
BENAY LAPPE: Good. Let's stop there. Okay, so again, the doctor says: you really need to eat. If you don't eat, you're gonna be in trouble. I know it's Yom Kippur, but you got to eat. The patient says: no, I'm fine! I really wanna fast. I can do it. I wanna keep my fast.
You know, this reminds me of my grandmother. When, when, when I was a kid, she, she had diabetes, she had all sorts of ailments and she really wanted to do her fast. And I knew, I knew enough of Jewish law to say, grandma, you don't have to fast. And we'd sit and shul, and I said, grandma, you really need to eat. You really need to eat. That's what you're supposed to do - anyway.
That, that's to say nothing. It just, I was just thinking about my grandma.
DAN LIBENSON: Yes. Well, that's very valid.
Um, okay. Okay. No, but it, but it, no, but it's a great case. 'cause I, there you, the, the point is that there are these people who think, like they, they just – Either, they're afraid, right? What if I make a mistake and maybe God will punish me? or, or whatever the consequences, but maybe, you know, I just don't, I, I, I
Or they just say like, I, I, I'm gonna feel, I, like, I I'm gonna feel bad about myself, or I'm gonna feel like I didn't really observe the holiday, or I'm just, you know, and, and I really would, would like to try to make it through the fast. My, my kids, you know, do that just 'cause it's like, it's an achievement, whatever the reason might be.
BENAY LAPPE: But, but more, I think even more commonly, and this is true for my grandma, she didn't know that it was okay for her to eat!
DAN LIBENSON: Uhhuh. Uhhuh
BENAY LAPPE: She really believed that she needed to fast!
DAN LIBENSON: uhhuh. But I think even people who do know, they still kind of feel like, yeah, but I should, if I can, I should, you know? And, and this is like, no, no, no. As soon as the doctor shows up and says, you shouldn't, you shouldn't.
BENAY LAPPE: Right. Okay. So it's the, it's the patient themself who now says: I don't need to fast.
Now, if you were just working off of the previous case of Rabbi Yannai, you might think, we always listen to the patient - over and above authorities. But here, Rabbi Yannai is saying, no, we listen to the doctor and make sure the person eats. I don't know. Are they gonna force feed him? I don't know. I always wondered how that's gonna work.
But we now realize that: oh, the value isn't ultimately “listen to the individual.” The value is actually something different, because now we're not listening to the individual - and why? um,
The Gemara is gonna ask: why aren't we listening to the individual here? I thought from Rabbi Yannai’s last statement, his big chiddush, like his big idea was: the individual always wins the day, what they say about themselves. No. That, that actually isn't the big takeaway.
DAN LIBENSON: Right.
BENAY LAPPE: There's a bigger takeaway.
DAN LIBENSON: Okay. So, uh, and we're running outta time for today, but we're gonna, we'll, we'll take it a little bit further.
So the, the Gemara says, what is the reason for this? It is because, and,
BENAY LAPPE: and, uh, sorry. And again, the “this” is: why now are we listening to the doctors, who say you have to eat rather than the individual? Okay.
DAN LIBENSON: Right. And they, and the, and the answer that, that Talmu-, the Gemara gives is: it's because of confusion. “Tunba.” Confusion has taken hold of the ill person on account of his illness and his judgment is, is impaired.
BENAY LAPPE: Good. In other words, there's the, the worry, the just out of the possibility that the person's illness has caused them to not kind of accurately perceived their body's need. This, this - maybe he's got tunba. They're saying - tunba is like this rigidity of the abdomen or something, which seems to camouflage the individual's experience of their own hunger.
DAN LIBENSON: Well, it's actually like in, uh, in, uh, COVID-19, there's this, uh, I think they call it like silent pneumonia or something where people think, they don't realize that they're not getting enough oxygen - and so that's why a lot of people were dying was because they felt fine, but they actually were, were not getting oxygen. And I don't think they know why that's happening, but yeah.
And the question is, I mean, I guess like – Wouldn't the flip side of that be that if you, if you're in a, the state of confusion and you might be saying: I do need to eat because I'm sick, then we listen to you, even though you might be in the state of confusion.
So one possibility is that like, no, no tunba only works in one direction and it only makes you think that you don't need food when you do. Uh, it doesn't work in the opposite direction.
Or we say, no, we take that risk. I mean that somehow it could be that you don't actually need the food.
BENAY LAPPE: Yeah. I think that's, I think that's the implication. The implication is we're going to err on the side of feeding you and allowing you to contravene this very serious prohibition – Even though we know you might be thinking you need food when you don't, um, because, a, a more prior value is a save the saving of a life that, um, making sure we're, we're not risking life.
So that's why this person's own testimony about themselves: I don't, I don't need to eat. I can keep my fast! isn't listened to - because there's the possibility that their life might be in danger, and they don't even realize it. And so that we don't run into that problem, we're not gonna listen to them.
DAN LIBENSON: Well, and, and, and this isn't a question, I'm not sure, but like, it, it could also be – that this principle that a person, uh, should be trusted to know their own pain is so fundamental that, that we're gonna err on the side - that when a person says, “I'm in pain,” we're going to err on the side of trusting him, even though we know it might be the same confusion as the person saying: I'm not in pain.
Whether or not it results in the, in the, in the saving of a life - What, what we're saying is that separate and apart from, and it goes together with that, we take really, really seriously this idea that a person is, is fundamentally the best, in the best position to know their own, their own needs, you know, their own pain.
So, so we'll, we'll, we'll pick that up next week.
BENAY LAPPE: Exactly. And next week we're gonna begin at the very next word where the Talmud says: What? Wait a minute, wait a minute. All this is really beautiful. But that's not what the mishnah said or meant.
DAN LIBENSON: Right?
BENAY LAPPE: So we're, we're,
DAN LIBENSON: and, uh, and by then, uh, well, I, I still think we won't have yet. Uh, you know, by then there'll be a lot more debating about these things that we'll be able to watch in, in Congress.
All right, Benay, uh, see you, see you soon. See you next week. All right.
BENAY LAPPE: Thanks so much. This was fun.
DAN LIBENSON: Yep. Bye-Bye.
BENAY LAPPE: Bye.
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