The Oral Talmud: Episode 30 - Magician School (Yoma 82a & 83a)
SHOW NOTES
“Talmud is showing people how you do the sleight of hand. It's like magician school! And this is the manual! A magician never reveals his tricks! But the democratization of the old tricks allows for the new tricks.” - 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 week Dan & Benay continue to work through the case of a person who is sick and needs to eat on the austere fasting day of Yom Kippur. We give special attention to the moves which the sages make in order to resolve an apparent contradiction between the earlier Mishnah and a later rabbi whose opinion they clearly want to settle on - instead of the primary text taking ultimate precedence.
How do we appreciate the rabbis without being apologetic for their sexism or ableism? How does noticing the intended audience play into the Talmud and college admissions? Is the more essential value here listening to the individual? or stopping any potential harm? In what ways are Torah, Mishnah, and Talmud constitutions? What are the super “precedents” in Jewish law? What can we do when we recognize helpful legal concepts and tools being weaponized? When it comes to judges, do we prefer one who claims to treat the role as an umpire, or one who is honest about the impact of their worldview? How is studying Talmud like reading a book of magic tricks?
This week’s text: “Lev Yodea Marat Nafsho” (Yoma 82a & 83a - 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] The episode of Dan Libenson’s other other podcast Stone News which discusses Am HaAretz in Pesachim 49b is Episode 27
[2] Am HaAretz has an entry in the Jewish Encyclopedia
[3] For an example of Jewish exclusion from colleges, read “Stanford apologizes for admissions limits on Jewish students in the 1950s and pledges action on steps to enhance Jewish life on campus” from the Stanford Report (Oct 2022)
[4] The idea that colleges used to be finishing schools for Protestant boys is discussed in the episode “Is the university good for the Jews? With Mark Oppenheimer” of Martini Judaism via ReligionNewsService
[5] Watch & read more about Benay’s CRASH Talk on SVARA’s website
[6] Prof. Rabbi Michael Chernick has a few articles at TheGemara, but I was unable to find the one which Benay references considering Torah, Mishnah, and Talmud each as constitutions.
[7] A discussion of “super precedent” posted during the confirmation hearings for Amy Coney Barrett (from WordOrigins)
[8] Joel Roth’s “The Halakhic Process: A Systemic Analysis” is currently unavailable on Archive dot org
[9] For more on Guf Torah explore “What Is the Subject of Principle 2 in Maimonides's Book of the Commandments? Towards a New Understanding of Maimonides's Approach to Extrascriptural Law” by Marc Herman for Cambridge University Press
[10] A reflection on John Robert’s umpire philosophy in analysis of his choices in Trump’s presidencies (at rsn dot org)
[11] Menachem Elon (wiki article) offers a definition of svara. 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.
[12] It was Senator Cory Booker who asked Amy Coney Barrett what reading she had done on racism in the American Criminal Justice System (video at NPR) – Senator Brian Schatz also did not support Barrett’s nomination (article at HawaiiNewsNow)
[13] Read Noah Feldman’s opinion piece for Bloomberg: “Amy Coney Barrett Deserves to Be on the Supreme Court” (Sept 26, 2020, via WayBack Machine), which also discusses legal scholar Jenny Martinez (wiki)
[14] In talking about Noah Feldman going to Amy Coney Barrett for Gemirna and Jenny Martinez for Sevinra, Dan and Benay are referring to Rabbi Meir studying with Rabbi Yishmael to gamar his gemara, and Rabbi Akiva to savar his svara - discussed in The Oral Talmud: Episode 15 - Svara’ing Your Svara (Eruvin 13a and Sotah 20a)
[15] Bryan Stevenson is the author of the book Just Mercy, and founder of the Equal Justice Initiative, which offers narrative and facts of the brokenness of the American criminal justice system, and especially errors in death penalty cases. (EJI’s website)
[16] Kendi is Ibram X. Kendi, author of “How To Be An Antiracist” (2019) and “Stamped From The Beginning: The Definitive History of Racist Ideas in America” (2016) (his website)
[17] Ta-Nehisi Coates is author of “The Case for Reparations” (2014) and “The Message” (2024) (his website)
[18] I could not find the article which Dan mentions about the increased usage of the descriptor “smart” in the last 50 years.
[19] Amy Coney Barrett shows her so-called “impressive” blank notepad (YouTube)
[20] For a deep dive on the אוקימתא okimta (from להקים - to put up/uphold) listen to “The Pedagogy of Ukimta” from Rabbanit Lisa Schlaff (June 26, 2024, via YC Torah), with source sheet via SAR High School
[21] For the American Law counterpart to okimta, start with the wiki article on “Distinguishing”
[22] For some Jewish history of Harry Houdini, read articles from Aish, NLI, and The Forward. Also recommended is the comic series “Minky Woodcock, The Girl Who Handcuffed Houdini,” which explores Houdini’s own attempts to reveal the trickery of certain Spiritualists.
[23] A Sefaria search for many times when the Talmud interprets the presence or lack thereof a vav
[24] Find Justice Anthony Kennedy’s full opinion on Lawrence v. Texas which overturned Bowers v. Hardwick’s Sodomy Laws (Wikipedia), with a recommendation to crtl+f for “dignity” (L v. T on Justia)
[25] For a primer on Gezerah Shavah, use the wiki entry on Talmudical Hermeneutics
[26] On removing guard from the gates of the bet midrash, listen to The Oral Talmud: Episode 7 - No More Gatekeeping (Berakhot 28a - Part 1)
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DAN LIBENSON: This is The Oral Talmud - Episode 30: “Magician School.” 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 with the case of a person who is sick and needs to eat on Yom Kippur. In this week’s discussion, we’re especially interested in how the Talmud justifies adopting the opinion of a later rabbi, even after the sages have established that the earlier Mishnah carries greater authority and precedence. Should we be trying to emulate their playbook of textual interpretation? Or is there a greater lesson here about the power of having a playbook at all?
We’ll be wrapping up this section of Talmud in next week’s episode, so stay tuned for the conclusion!
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. In this episode, you’ll find footnote links to the moments in 2020 of Amy Coney Barrett confirmation hearings which we discuss in this episode
And now, The Oral Talmud…
DAN LIBENSON: Hello everyone! I'm Dan Libenson, and I'm here with Benay Lappe back again for this week's episode of the Oral Talmud. Hi Benay.
BENAY LAPPE: Hey, Dan. How are ya?
DAN LIBENSON: I'm good. Uh, interesting times that we're living in. Yeah. Um, and, and often relevant to, uh, often relevant to the Talmud. Actually on another show that I do right before this one called, Stone News, we were looking at a section of Talmud. from tractate Pesachim page 49b – it's all these like, kind of un, un, un unfortunate - it's not quite the right, but statements that, that are made basically about Amei HaAretz, you know, simple, the simple folk and all kinds of ways that the, that the, that the rabbis of the Talmud kind of have, uh, you know, a low opinion of them.
And actually, it, it, it, it's felt very true to today. Like, it felt very, like a very important text to think about in terms of like, what's going on in American society today and how there's this tension between those with a college degree and those without, or however we wanna put it. So it's, it's interesting how there are these resonances.
BENAY LAPPE: Yeah. You know, it's funny, I, I'm off, I love the rabbis, but I am – I do acknowledge: they, they weren't feminists and they weren't populists… I don't know if populists is even the right word, but yeah. They did have a low opinion of the masses, and didn't really trust them.
On the other hand, so I, I, I wanted to acknowledge that I'm, I love them. And so I'm a, I don't know, not hopefully not apologetic, maybe they're a little bit defensive – but they, they kind of theoretically democratized Torah. They said: you can actually, you know, do this thing which puts you in conversation with God, even if you don't have the hereditary, you know, advantage of the priest. So that's gone.
It's now open to everyone, theoretically, but we're really only gonna give it to this swath of the people. Um, not that, that's so different from our own constitution. And the idea of the theory being right and the actual application and belief of where it applies being way too narrow. But they, they had both of those, they - right?
The idea that every, every human being could have svara, could, could refine their moral intuition or their ethical instinct through learning - that that was available to anyone. Although they were gonna make it really hard for a whole bunch of people, like women or.. to do that is a kind of belief in the person… Yet.
DAN LIBENSON: Yeah. So the, well, it's that, and, and also I've been thinking about, so I've been reading about like, the college admissions process. 'cause I've a, a kid at applying to college now and that's been kind of interesting too, to see like, you know, well,
On the one hand there's an expansion in. I think like the 50s or whenever, like there, the– before that colleges in America had been almost like, we think of as like a, uh, um, a boarding school, you know, an elite boarding school today. You know, well: that's for the rich and that's for, it's more about cultivating a certain kind of, you know, extension of society. You know, it's like, it's not for anybody else.
It's not, it's not like what we think of it today that college is where you, you know, go to learn a lot of stuff. It was like: no, no. That was more about like kind of refining your place in society. Then at a certain point they, they kind of opened it up, but only somewhat, you know, and, and at that point a lot of Jews started going to college, and that got them upset because now there are all these Jews here, you know, and there, and so the, the part of, of, you know, where this is about like finishing school for, you know, uh, Protestant society. It’s kind of not feeling so good.
And, you know, that's where you get a lot of these kind of, um, quotas and all these kind of things where they would kind of, like: on the one hand we tried to expand it, but then it got kind of shaky, and we're not so sure we wanna expand it. But even then it was not that expanded, you know? And, and now it's interesting because, on the one hand there's an even greater expansion of, of who can go to college. And, and on the other hand, there's also this now tension, this like –
There's a larger class of people that are going to college, and in some ways that causes even more tension with the people who don't go to college, because it's one thing when it's just like a handful of people versus, but when it's actually a big number of people versus an even bigger number of people who don't go, you know, then you're starting to get into a place with like real social tension. So, so that's like interesting and to, to sort of parallel what's going on with Talmud.
The, the other thing is that reading that page on Pesachim where they're saying such, you know, kind of like disdainful things about the people who are not in the rabbinic elite. It reinforced for me what you've been saying all along about how we have to understand what the Talmud was. Which was that it was a document that they not only meant for the elite – but they, they couldn't imagine in a million years that anybody but the elite would possibly read it!
It wasn't by design. It wasn't like they could write it in even simpler language, and nobody would read it like that. They just, most people weren't literate. And, you know, most people weren't interested in reading something that, so – So the Talmud that we have it, we have to understand it to be like a, a document that was really meant for a very, very tiny number of people to read. And that might be relevant to what we're gonna talk about today. Uh,
But then. for our time. And I think this really puts the, the finger on this question of like, if we're now living in a time of a Third Founding: a time, like you say, where the Talmud system is crashed and, and now we're looking to the Talmud to help us be guided in terms of how to build the next system. There's certain things in the Talmud that we wanna replicate, like a certain sense of a kind of a person, a kind you, right, all that kind thing.
But we don't wanna replicate certain things which are like the, the super elitist point of view perhaps. Right? And, and, and, and it's good to kind of know both the power and the limitations, I think of the Talmud as we have it, and to some extent where we see the limitations. Like that's exactly why there's a crash right now! or that, uh, right. And, and so those are the things that we're gonna have to think about differently.
BENAY LAPPE: Yeah, I, I think you're absolutely right. And you know, I was giving the CRASH talk the other night and one of my students said: Do all Option Threes, do all new systems that come about after a crash have to become master story? Uh, basically option one, master stories? Do they have to always crash?
And I typically say yes. Um, and, but then I, I, I realize that theoretically we have the perfect system that's, that's actually CRASH-proof - if! access is maximized. Because if access to it is maximized, then you always have people who are going to say: wait a minute, wait a minute before the, the story gets too perverted and weird, because it's been so protected and kept out of touch with so many groups who have been marginalized. You know, in this chicken and egg process.
So I'm, I'm thinking, I don't know, I was just thinking a lot about, um, a-access and how access, um, is really the key.
DAN LIBENSON: Well then the question is whether, such as, whether, you know, yes: If access could be maximized and like you say, then it would be CRASH-proof. But then the question is, is that, is that a possible thing? Is that, is it possible to have a system that is so,
And also, you know, what about the people who don't wanna access it? And who are potentially the, under the thumb of it.
BENAY LAPPE: Right. And then access is much more complicated. I'm, I'm, I'm sure I'm not the first person to realize this. It, it's not just: here, this is available to you. There are all sorts of, um, l- challenges in accessing, for example, the Talmudic tradition!
It takes a lot of time! It's really, really time consuming. And, you know, you have to have enough time where you're not making a living and where you don't have to make a living to be able to devote yourself to understanding it, so that you can gain the tools and the techniques for being a player in the tradition, which is what I think it's here to do.
And so, yeah, I'm thinking a lot about who, who, who, how, how to make this maximally accessible. And, you know, as you and I were saying the other day, I, I once thought everyone was gonna be a Talmudist. I don't think that's probably true anymore. Um. But I sure want there to be more! More people and more people with different life experiences who can go: Wait a minute, okay, I get the method, but here's a thing that they never thought needed fixing. You, Benay never even realized, needed fixing! A whole bunch, but - but from my lived life experience, I can tell you it needs fixing. That's what we need.
DAN LIBENSON: Well, so maybe with that, we should just jump back into this text, because ultimately this is, this is partly one important, one way to understand where this text ultimately goes is toward that kind of access, towards that sense of, of let's say self-determination and, and driving toward, which ultimately drives towards that kind of access.
So you wanna give us a little bit of a recap of where we've been and where we're jumping off from?
BENAY LAPPE: Sure. Okay. So we're in the tractate of Yoma, which generally deals with Yom Kippur and, we learned a mishnah that said if someone has this particular, um, illness, which is, you know, it says: pain in the throat. It's much more serious than a sore throat. It's, it's this possibly life-threatening illness, which has as an early sign, this sort of throat ailment. If someone has that ailment or you think it might be that - on Kippur…
Sorry, I'm confusing the cases! Wrong! That's not on Kippur, that's on Shabbat. If someone has that ailment on Shabbat, you can do what would otherwise be a prohibited activity in Shabbat in order to give them medicine. You can uproot the herbs in your garden and boil them. Two things, for example, that we normally couldn't do on Shabbat to hopefully cure them. They, it may not cure them, it may, they may not even be that sick, but you can do that even though those are death penalty violations otherwise, on Shabbat. Okay.
Then it goes into the case that's really ours, which is on Yom Kippur. If someone is sick and says, um: I think the implication of the mishna is they, they need to eat. They've expressed their need to eat, in spite of the requirement to fast on Yom Kippur; a requirement, the punishment for violating, which is the right, it's divine extrication. It's like this divine kind of capital punishment. The worst violation there is in! In spite of that fact, if there are experts who say, who are present and say: yeah, actually you should eat – They should be allowed to eat, because we are careful about people's lives.
And if there are no experts present, that person's testimony about their, their own experience is enough. And if they say: I need to eat – you allow them to eat. That's not considered a violation of the fast. And they can eat as much as they want until they themselves say: okay, I've had enough. Okay, great.
So that's the mishnah, that's the 3rd century state of the law. Which in and of itself is pretty much of a radical shift. I would call it an upgrade - from Torah. Because the Torah just says: Afflict yourself, which the rabbis later say means “fast” and a number of other things. And it is a general unqualified statement of “you fast” period. Doesn't say: but if and if you don't feel like it, and if you think, and if there's – No. Fast. Period.
Which I think meant exactly that, I don't think it was ever understood in the biblical era to mean: but if in the case it, no, it was fast. And if, okay, so here we get this new opening up in the mishnah and what we're, okay, then we get to the Gemara. So these, this is the next era, the next four or 500 years: Looking at the Mishnah and expanding it, applying it, challenging it, destabilizing it, restricting it – doing all sorts of things to it to, to help it be able to be lived out, and to upgrade it as we see fit. Okay,
So now we get Rabbi Yannai, a hundred years later - and Rabbi Yannai says: If the sick person says: I need to eat; But the expert, let's say, the doctor present says: no, you don't need to eat. You can, you can do your fast. You listen to the sick person and you let them eat. Why? Because - and they borrow a verse from, where was it? From Proverbs that says: the heart knows its own bitterness Lev Yodea Marat Nafsho.
So the individual, it seems to be saying, knows better than even an expert, even a medical expert, about the reality of their experience. And we should listen to them. Okay? That's Rabbi Yannai first statement.
Rabbi Yannai makes another statement. He says, and if the sick person says: I don't need to eat. I'm actually fine. I can do my fast; But the doctor says: no, no, no, no, no. You should eat. - We don't listen to the individual in that case, in spite of the fact that we think generally the individual knows their experience best; we listen to the doctor and make them eat.
Why is that? Oh, the text says: because maybe he is like, he's a victim of a symptom, which gives him an untrue experience of, of the true seriousness of, of his ailment. And maybe he doesn't really experience the damaging hunger or need to eat. And would his own testimony, of: I don't need to; would actually be detrimental to his health. Because that's a possibility, we're not gonna listen to him. We listen to the doctor. Okay.
That's where we left off last time. Go ahead.
DAN LIBENSON: Well, no, and just, and just that like, the obverse of that I imagine is that, uh, and I forget if we mentioned this last time, but that he could have had the same confusion when he said: I do need to eat. But nevertheless, the we we say: you know, we're gonna err on the side of safety and say, well, maybe he actually doesn't. But if he feels that he does, even though he might be confused, then he eats.
And in the opposite case, if he says he doesn't need to eat, we're gonna err on the side of safety saying like, if he says he does need to eat, but doctor says he does, that's probably the confusion talking. So either way we err on the side of safety.
BENAY LAPPE: That's right. And I think that's the takeaway. Even though it looks like the, the takeaway from Rabbi Yannai’s first point - that we listen to him and don't listen to the doctor - is: we always listen to the individual, whatever they say about themselves, we give them the ability to determine their status, their fate…
Nah, it's actually not that! It's that: unless we're concerned that their own testimony about themselves could actually lead to physical or emotional detriment – which I wanna put a stick on that! 'cause that's challenging, you know, especially for people who know what it's like to have a doctor, a therapist, who knows what some a, you know, authority saying: I actually know better about you. And so that's just a, a very real mm-hmm. Thing.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Um,
DAN LIBENSON: alright.
BENAY LAPPE: So sticky there. Okay. Yeah. So that was Rabbi Yannai, and we jump in today where the editor of the Talmud is gonna address Rabbi Yannai in relationship to the mishna. Okay.
DAN LIBENSON: Okay. So, um, so the, the Talmud goes on and it says: We learned in the mishnah: if a person is ill, one feeds them according to the advice of experts, medical experts. That implies that if there are experts present, then according to the divisive experts, yes, one does feed the person; but if at his own instructions, no one does not feed him.
So I, so what they're saying is that the mishnah, the plain text of the mishnah is seems to suggest that we go according to what somebody says, as if there are no experts there. But if there are experts there, we do what the experts say. Not that only we do what the experts say, if the experts are saying that he should eat. Uh, and, and not the opposite case.
BENAY LAPPE: Exactly. Exactly.
DAN LIBENSON: So that's the simple text of the mishnah.
BENAY LAPPE: That's exactly it. So that the, the stamma, the editor here is saying - is is surfacing and visualizing how Rabbi Yannai’s two statements, his new law or new laws, actually contradicts the earlier mishnah, which is against the rules!
The rules of the game say that you, a later, this later amoraic generation, no one in that generation and it's multiple generations, right? 400 years or so. The rule is: they can't contradict the Mishnah. You can't overturn a mishnah if you're from that era. But of course it happens all the time! But they need to, to find a way to say that's not actually happening in order it seems to permit broader, more, I don't know if liberal is the right word. Right word. I don't know if liberatory is the right word. If more expansive law. It,
There's a, a growing and different sensibility that you feel in Rabbi Yannai. And you feel like this is what the law, what they want the law to be. Um, it, and they have to find a way to reconcile it with this mishnah, that the rules of the game say you can't contradict.
DAN LIBENSON: Yeah, and I just wanna show the words of the mishnah again, just to, just to be clear that it says here, if a person is ill and, and, you know, requires food, one feeds him according to the advice of experts who determine that he needs, that he needs the food. And if there are no experts there, one feeds him according to his own instructions.
So according to the words of the mishnah, that it, it appears, right? If, if you just kind of read this as, as like an originalism, right? You know, but you just say, well, well, it appears that the general rule is: we listen to experts. If there are no experts there, then the kind of exception is that if there are no experts there, then we can listen to the person.
The Talmud is flipping it on its head and saying:, no, no, no. It's the, it's the, it's either the, the person's, um, that, that – It's as if the mishnah said: we feed the person according to his own will. That that was the first thing that was said, which would suggest that that was the general rule. And then there's something about experts might have been said second as some sort of exception.
And then the mishnah, the gamar, the Talmud, the Gemara. Is, is limiting that exception even more and saying: no, no. It's only if the expert says that he, uh, does need to eat and the person says he doesn't need to eat that, we listen to the, to the, um, expert.
And, you know, and, and, and so one way to say it is that they're actually flipping. It's as if they flipped the text and made the expert the exception, uh, rather than the, the person, the exception, which is the plain meaning – or that they've completely kind of rewritten the text to say, we, we, bend, we, we, we, um, lean to the site of safety rather than the site of risk. And that's not really present at all in the, in the mishnah.
BENAY LAPPE: Okay. Now, I didn't completely follow everything you said, so, so I'm gonna, I'm gonna say it the way I understand it. You tell me if the, if we're on the same page.
DAN LIBENSON: Okay.
BENAY LAPPE: Okay. Um, we are now simply identifying where Rabbi Yannai’s law is in conflict with the mishnah. And two pla[ces] - two contradictions are gonna be identified.
Contradiction number one: Rabbi Yannai says: If the sick person says: I need to eat; and the expert who's present, the doctor, says: no, no, no, you don't need to eat. We listen to the person and not the expert, and we let them eat. That's in contradiction to the place in the mishnah of it said, if experts are present, we listen to the expert. Period. Regardless of what the sick person says.
So there's a contradiction.
DAN LIBENSON: Right. 'cause in the mishnah of the only place where it says, we don't listen to experts right here at the end: and if there are no experts there, when feeds him according to his own instructions; that the implication being, if there are experts there, we listen to the experts. That's pretty straightforward.
BENAY LAPPE: And it's not only, I would say, it's not only an implication, I'd say it's, it's the explicit teaching.
DAN LIBENSON: Yeah.
BENAY LAPPE: Good. So that's contradiction number one. We haven't solved it yet, but we identified it. It it, I think it's.
This is what leads me to feel that the Talmud is a textbook, a manual for how to make change. Because it is showing the student how we are going to deal with the problems of people saying: Hey, you can't do that. You can't make this new law - Oh, okay. You're gonna make a new fabulous law. You're gonna have people saying: Hey, wait a minute, where is that in the concept? Where is that in the Torah?
DAN LIBENSON: In fact, it's just the opposite right here.
BENAY LAPPE: Exactly. Exactly. Okay. So they, here comes, that was contradiction number one.
Contradiction number two: It's a little hard for me to juggle the English and the Hebrew, so I, I can't remember. Did you do the English for the second contradiction?
DAN LIBENSON: What's the second contradiction?
BENAY LAPPE: The second contradiction is, um, the mishnah is says quote: On the mouth of experts. Number one, imagine the first part of the word expert being in italics. Meaning if there are experts present, you only listen to the expert - and Rabbi Yannai says you listen to the person. There's a contradiction.
The second contradiction is where the word experts is now highlighted to highlight the, the letter S. Imagine only the letter s in bold. And we're, we're, we're understanding the mishnah to be saying: and this is interesting because it probably never meant it, but Okay. The, the Gemara is, is, is even putting a sharper point or, or lifting up even more contradiction, causing more problems to Rabbi Yannai, by saying your new law contradicts in a second way the mishnah.
Because the mishnah is says: if he says, I need to eat. (That's the implied case. he needs to eat.) But there are experts present. You listen to the experts, but Rabbi Yannai, you are saying it that if there's a single expert present, um, i.e. in the case of where the man says: I don't need to eat, you listen to the single expert - I hope I have that right - You listen to the single expert, whereas the mishnah seems to require a multiplicity, experts, and Rabbi Yannai, you are saying you listen to the expert when there's only one expert present
Now! Sidebar on this. It's kind of interesting that this problem of, oh, Rabbi Yannai, you only have a singular expert that you're listening to or you are authorizing - and the mishnah requires a multiplicity. It seems to make a, a, a problem out of nothing. I think because it probably never meant when it said experts, if they're experts present it, it didn't mean if there's a multiplicity of experts present, it probably meant if anyone in the class called “experts.” Right. I think you're on mute,
DAN LIBENSON: right? The, yeah. Well, we might say if there's expertise present, you know, something like that.
BENAY LAPPE: Yeah… It. Yeah. Like if there's siblings present, it's like: No, I don't have to have multiple siblings, like anyone in that, or,
DAN LIBENSON: or what we would've said in, what we would say in English: if there, if there are any experts present. Yeah. Which we, which we understand to mean: if there's one that's fulfilling the clause. If there are any experts here,
You know, are there any experts here? We don't expect that there have to be three that arrive. We - one would be sufficient. Are there any doctors on the plane? Like, one comes, it's enough! Right?
BENAY LAPPE: That's right. That's right. It it, I, anyway, I just find this interesting. That, that they make the contradiction even bigger than it probably actually ever was. You know, Either to illustrate another technique of solving such problems when they are actually real? I don't know. I don't know. Yeah.
DAN LIBENSON: So I, now, I think that we haven't fully read through that part of Rabbi Yannai's, um, opinion. So let's keep going because I think that that's where, where we wanna we, where we wanna go. Right. So, okay. Um, so, uh, so just,
So just to read it again, just to from the beginning: So we learned in a mishnah, if a person is ill, one feeds him according to the advice of experts. This implies that if there are experts present, then according to the experts, yes, one feeds the person, but at his own instructions, no, one does not feed him - contrary to Rabbi Yannai’s opinion. So that was like the first contradiction in the mishnah,
It further implies, the second contradiction - it further implies that according to the advice of several experts: Yes, one feeds an ill person. However, according to the advice of only one expert, no, one does not feed him.
That would, again, that's like the plain, the plain text. They're saying the plain, like the plain text of the mishnah. 'cause it says experts, it suggests that you have to have more than one. And here, Rabbi Yannai said a doctor, uh, right? So they're saying that's the contradiction. Um, so,
And like you say, it, it, they seem to be constructing, uh, a meaning a, a, a more limiting meaning in the mishnah than, than even it has to be. The first contradiction is pretty, pretty clear from the text. The second contradiction is somewhat less clear. You could have much more easily just said, they, like you said, like we had just said, they could. They, they mean any, they, they, they don't mean multiple experts. They mean any experts. Um.
So there appears to be a requirement, uh, in the mishnah for at least two doctors, which also contradicts Rabbi Yannai’s opinion of the, that, uh, that the opinion of one expert is sufficient to override the opinion of the ill person.
The Gemara rejects this.
BENAY LAPPE: Okay, so now that the Gemara that the Gemara has visualized the co, the contradictions – it is now going to solve what is, was actually just an apparent seeming contradiction, but not a real contradiction!
Because it seems that the, the editor is committed to preserving Rabbi Yannai’s expansive, innovative, more, you know, loving, individual-affirming legislation. The editor wa- probably, it's, it's been accepted as law, and he likes it and they wanna keep it. And the question is, how do you keep that while also keeping the Constitution that says something else?
DAN LIBENSON: Right.
BENAY LAPPE: And I feel a little bit comfortable calling the Mishnah of Constitution. Now, usually I call just over that because I just read an article by Michael Chernik, who is a, a Talmud scholar, and at Talmud, professor at HUC – who, who actually says, we have three constitutions. And I'm, I'm finding this really interesting. He says: Torah is one constitution. The Mishnah is in of itself a full constitution - not just, not just, uh, an amended, it's a full constitution. And the Talmud slash Gemara - the document, which encompasses both the Mishnah and the discussions on it - Gemara, that's a full constitution in and of itself. I don't know. I'm just interested in this thing that I just read.
DAN LIBENSON: Yeah. Uh, well, I definitely think that for sure I, like, I would raise questions like, for example, maybe the Torah's not even at the level of a constitution. We could debate that, you know, uh,
The Mishnah though, for sure is a constitution. And then the question is whether the Gemara is, uh, you know, is whether it's a amendments? or a constitution? or is it like just the case law? You know, the, as if, like, if you look in the, well, like, you know, or,
Or a way to think of it as like, what does it mean that it's the Constitution? It's like, um, I, I don't think we talked about this explicitly last week in the, again, in the, in the Amy Coney Barrett hearings, and I think it was more explicit in, I forget if it was the Kavanaugh hearings or the, uh, Gorsuch hearings, but there's this idea of the super precedent. Um, and there's this question, it's,
BENAY LAPPE: it's come out in the Amy Coney Barrett.
DAN LIBENSON: It's come out in the Amy Coney Barrett, but I think it was, she's been very careful not to talk too much about details of a lot of things, including that, um, it was talked about in more depth, I think, with Kavanaugh.
But there's this idea that what, what they mean by a super precedent is, is it's not in the Constitution - in the, in the simple words of the Constitution, you could not find this idea. But for example, uh, uh, Brown vs Board of Education, um, that. That, that has been around for so long and nobody today credibly is arguing that the, that the situation should be different. So it it, it comes to this level where e-even though it's not in the constitution explicitly, it now has the, the, the, the, um, sort of the power of, of a constitutional provision.
And, you know, the question is what are the criteria by which we decide that something is a super precedent versus a precedent? And, you know, Amy Coney Barrett, these other conservatives, like their, their position is that Roe v Wade is not a super precedent because there's still - it's never arrived at this place where there wasn't still a substantial opposition saying that there was a misunderstanding or a misconstrual of the Constitution. So therefore, it's still in the realm of, of, of a societal disagreement. And it's a precedent. And so we have to treat it with some respect – but it's not a super precedent, meaning that it's functionally the same as the Constitution.
So in the Gemara, it may be that the whole Gemara is a super precedent. It may be that it's a constitution. It may be the, it may be the right, it's maybe like it's a new constitution or it's constitutional amendments. With that level, it could be that it's just a big super precedent. And so it's al- like a, almost like a constitution, but not quite. Or it could be that within the Gemara there are some super precedents and some precedents and some junk, you know, and, right – or, or, or it's just legislation and it's, and it's, doesn't have the status of – I mean, all of those things are possible and they all are interesting.
BENAY LAPPE: Yeah, really interesting. And you know what came up for me as you were talking, that I never connected? There's this concept that rabbis were involved in the halachic process talk about, which is called Guf Torah.
And it's this idea that this idea is so fundamental to the Torah, even though it's not explicit, right. This understanding of what the Torah means is so foundational that it can't be reinterpreted.
And, and, and this term came to my consciousness. I first read it when I was reading a Rabbi Joel Roth's opinions on the quote unquote “gay issue.” You know, maybe 30 years ago. And he claimed that that Leviticus named a Guf Torah. That there was this really fundamental prohibition of “homosexuality,” quote unquote, that you couldn't touch.
And that just seemed messed up. That seemed me- Like I, it didn't seem true. Not only about that issue, but it, I don't actually think the concept of Guf Torah makes a lot of sense and because – Actually in the same book it's over there, where is it? His pink book on halakha, systemic whatever, whatever Rabbi Joel Roth's book, he himself acknowledges that there's actually nothing, theoretically, nothing in the tradition or the Torah that can't be overturned! That anything can be overturned, including the entire Jewish system - in order to preserve its goals. That everything is on the table.
So this whole Guf Torah thing seems weird to me and it feels like a, a convenient way to say: We don't wanna challenge that. Just like super precedent. This isn't - saying: “this isn't a super precedent,” feels like a way to say: “I don't like it”.
DAN LIBENSON: Right, right. I dunno. No, but I mean, I think that's a serious thing that a lot of these, we have to treat a lot of these categories with some degree of suspicion, whether it's in the American law or in the Talmud, because they can be used by results-oriented judges, so to speak.
And by the way, they, that's not necessarily a bad thing. Right? Meaning that if you think that there's really no such thing as a process that can work. Like, you know, John Roberts, when he was being con confirmed, he, he famously talked about the role of a judge to be like an umpire in baseball, where you just call the balls and strikes and you're not playing the game and you don't have, you don't pick a side and whatever. And that sounds good, but really is that what's happening? you know, is that,
And if you think that really there's no such thing - especially in the hard cases - where you can't separate your worldview from participating in a process, then it's not necessarily a cardinal sin to say: and, and so you brought your worldview into this! It it, it may or may not be that we should be a little more honest about it and a little more transparent about it, but maybe that's also bad for the system because then it just seems like politics and we, there's some value to the myth that it is an umpire. It's complex. But, but a lot of that stuff is, is that, you know, and, and,
And when you see an example of using one of these concepts as kind of a sword, you know, to cudgel to kind of, uh, keep people down, then that's bad. You know, and that, but, but it's also kind of, it's, it's the difference between, it's, it's, – it's a little bit the difference between using a kosher - you know, using a fair tool, but using it unfairly, versus using a tool that you should never use. You know, that that, that by using it at all is, is, is problematic.
And that's probably, it probably is. Like these concepts are probably useful, sometimes, but easily abused. And so how do you, how do you draw the line? And maybe that's where we come back to svara! Like, you have to, you have to believe and hope that people have reached a certain level of maturity and, and commitment to the process and commitment to the collective. And, um, you know, that they're not gonna abuse it as much as they possibly are, can if they're aware, you know?
BENAY LAPPE: Right. And if you look at Menachem Elon’s, the late Deputy Chief Justice of the Israeli Supreme Court and great scholar of Jewish law, as he defines svara, he says: it requires a broad experience of people in the world and the relationships.
You, you can't just be, you know, a stupid white person and say: I, I'm, I'm actually qualified to make a law that's going to be just for all people and liberatory. It's actually a real requirement. It's like, who was it, Brian?... Senator…
DAN LIBENSON: Brian Schatz?
BENAY LAPPE: No, no. Senator Brian. Not Stevens? No.
DAN LIBENSON: Where is he from? Where is he?
BENAY LAPPE: I forget. But
DAN LIBENSON: currently a senator?
BENAY LAPPE: He's currently a senator who is questioning Amy Coney Barrett and said. You know, what have you read lately on racism and anti-racism? and nothing? Hey, these books are, you cannot even get them because so many people are buying them from Amazon and bookstores. They're like all the best sellers. The world is now rea[d-] and you're not, right?
You can't claim to have svara and you're not reading - and you're not in relationship with, right, people who are different from you – and that just disqualifies you! Right off the bat, from being a legislator in the jury system. And I would say that what he was saying was right. I think it disqualifies you from being a Supreme Court judge.
DAN LIBENSON: Because Amy Coney Barrett, you know, one of the things that people say about her is that she's brilliant. She's absolutely brilliant. She, she, uh, you know, Noah Feldman who, uh, is a professor at Harvard and he wrote a, writes for Bloomberg.
He wrote this controversial op-ed where he basically said, I knew her from when I was a clerk on the Supreme Court. And there were two, uh, women that I would go to, two clerks, uh. I would go to Amy Coney Barrett to understand this, you know, to understand the, the, the depth of this law. 'cause she was just brilliant and she could explain it to me. And then I would go to Jenny Martinez, who's now the dean of, uh, Stanford Law School to kind of help me know what I should think about it, you know?
And, um, actually, you know, in that sense, and I hadn't seen it until just now, but in a sense he's saying I would go to Amy Coney Barrett for Gemara, and I would go to Jenny Martinez for Svara.
BENAY LAPPE: Exactly.
DAN LIBENSON: Yeah. And, and so then here's Amy Coney Barrett, you know, about to be confirmed to the Supreme Court. And I think I, I don't remember who the senator was. It was not a, I don't think it was Brian, because I don't think there was a Brian, but not sure who was. I think his
BENAY LAPPE: first name is Bryan. B-R-Y-A-N is Brian Steven. Someone has gotta be writing into telling us.
DAN LIBENSON: I don't think so. But anyway, um, okay. The, it doesn't matter. But, but, but I, I remember the moment and, um,
BENAY LAPPE: okay, I'm gonna look on my phone.
DAN LIBENSON: Okay. And, um, and, and, you know, and, and what they're saying is like, it's one of these classic things of like: You're really smart, you know, you're the smartest maybe, but you don't have svara - because you haven't taken a human interest in what humanly is happening in the law. And if you're not reading about structural racism and you're not le- you, you figured it out.
BENAY LAPPE: No, I figured out who it isn't. It's not Bryan Stevenson. That's what I was, I always, I was confusing him. That's not him. Okay. And anyways, anyway,
DAN LIBENSON: so, you know, so it's basically saying to her – and I totally agree with what you're saying, like, if you haven't been reading about like, race, you know, if you're not reading Kendi or any of these things, you know, um, Ta-Nehisi Coates, whoever you know, then you are not the kind of judge that we, that that, that we want.
And it's not just because we're liberals, it's because we think that, uh - I mean it is also in that case - but like it's because we, we believe that it's fine to have a conservative point of view, but only if you, you know - only if you've decided to come, come there out of a knowledge of what's happening. And if you keep yourself ignorant by not reading this stuff, then - like you say - you've disqualified yourself. So it's, it's interesting.
BENAY LAPPE: Yeah. And I'd love, I love that the Jewish jurisprudential system has a rule that says: you can't play, you just can't be at the table unless you are Gemirna and Sevirna. Unless you are learning in a committed learning relationship with the tradition - and what it meant for them was you had your mishnahs memorized. That's what it meant.
DAN LIBENSON: Yeah.
BENAY LAPPE: Which is by the way, a very small amount of learning.
DAN LIBENSON: Yeah.
BENAY LAPPE: And unless you were, you know, you had this moral intuition that that was a product of being in relationship with lots of people and informed and insightful into human beings. And Yeah.
DAN LIBENSON: By the way, there's something, there's something like maybe to pick, pick up on in the future, uh, on this question of like: Being smart versus being wise.
Because I feel like there was an article recently, now, I can't remember what it was, but like, something that talked about how the word smart is being used in our, in our, uh, like in the press a lot more than it used to be. Uh, that somehow that “smart” has become a more important descriptor in our world in the last, let's say 50 years.
And, um, you know, you, you see like right there was that sense that Amy Coney Barrett, because she's not taking notes and she doesn't have any notes in front of her. Wow! She is smart! You know, like when she held up this blank notepad as it, and, you know, I look at them, I'm like. I don't, I'm not impressed by that. Like, you know, that first of all, that's not really the job of a judge is to like you. They, they all have like six clerks. Like they don't need to remember everything in their head. That's not -
What makes them a great justice would be if they were wise and, and could kind of understand the intricacies of things. If you wanna know, it's the same thing – you know, go to your clerks. And it's the same thing that I've been also trying to say about like:
There's gotta be a difference where, in a world in which the entire Gemara is available in English translation - I know you're not the favorite of that or whatever - but it's available on Sefaria, you know, for free to everybody. That's a different world from that ancient older world where you, you know, they used to talk about a rabbi who could put the pin through the Talmud and know exactly what word it came out on.
Well, but like that's not so important anymore because you could Google it. What's important is do you know what it means? Like, do you know what to do with it?
BENAY LAPPE: Yeah. So, and do you know, how do you know how to approach law in the courageous, bold, yet traditionally radical way – the, the, the way that can keep the system together and still growing.
DAN LIBENSON: Right.
BENAY LAPPE: Okay. It was Cory Booker. Sorry.
DAN LIBENSON: Okay. There's a y in his name. Okay.
BENAY LAPPE: Um, yeah, I think that was it.
DAN LIBENSON: There, there, um, okay. So, um, so did you keep going?
BENAY LAPPE: Yeah. Okay. So now we have to figure out what are we gonna do with this new law, Rabbi Yannai’s law - that we love - while we also have this mishnah that we're obligated to maintain.
And this is where, uh, the real teaching of the Talmud begins. This is where it really tells you how to be a player, how to deal with those circumstances. Because that is what you're gonna be doing as a player, as a a person who makes the tradition better. You can making better laws, but you're gonna have to sell 'em - not as shit you came up with! you know, you have to sell it as really what the tradition has meant all along, and really as rooted in and all of that. And here comes lesson number one in how to do that. Um, okay, take it away.
DAN LIBENSON: And so the key thing, so the, the Talmud is saying like, no, no, no, it's not a contradiction. Don't, don't worry about it. It's not a contradiction. Why? um, uh. The uh, why?
Okay, so the Gemara says, with what are we dealing here? We're dealing with a unique circumstance.
BENAY LAPPE: Okay, good. So even before you go on, sorry. This is one of the challenges of learning in English because “what are we dealing with here?” Sounds like colloquial English, but it turns out it's actually a literal translation of a set term - which if you're learning in the original pings for you immediately as one kind of strategic move, in reconciling new radical law with less radical, not so good law. And how are you going to reconcile, sell, legitimate?
And this is one move that signals to the learner, to the reader: Oh, we are now going to say that the case in that earlier law - or the, the teaching in the earlier law, we misunderstood. You didn't understand it correctly. It's not a, uh, an unqualified broad statement. It actually is narrow and applies only to this circumstance.
This, this move is called an ukimta. It's the move whereby you take two contradictory traditions: one that you, the new one you wanna keep - and it separates them by distinguishing the earlier one, uh, as applying only to a particular narrow case, which you're not interested in – allowing space for the new, more radical teaching to be no longer in explicit contradiction. So you now you're safe with it.
DAN LIBENSON: Right. And I was gonna say, in in American law, you said the word, it's, this is, this is exact same thing exists, and it's called Distinguishing The Cases. And you say: yeah, that case was a- yeah, you're right about that ruling. But that was a very narrow situation, like the broad ruling is actually different.
Now, why the mishnah didn't - why the mishnah wrote the narrow rule, the narrow case, and not the broad case that, you know, look over there, you know, um, don't, don't, don't ask that. But, um, but yeah, so, so it says: no, no, we're, we're, we're actually doing it with this narrow case where the person says: I do not need food, and the consultation of experts is required.
Gemara suggests: but let them feed him according to the advice of one expert as Rabbi Yannai said: that in such a circumstance, one feeds the ill person based on the advice of one doctor - and the Gemara says: no, there's a requirement for two experts. It is necessary in a very particular case where there is a third expert who says:
BENAY LAPPE: okay! (laughing)
DAN LIBENSON: Right. So, so this, so the, so the mishnah that we have only deals with a very particular case where there were three experts there - right? And, and two of them were, were in contradictory opinions. And then you say: and then, yeah,
BENAY LAPPE: wait, a wait, wait - but you, you, oh my God, you're going so fast!! Okay. You've moved through, you've moved through two different moves.
DAN LIBENSON: Okay.
BENAY LAPPE: Meaning two different back and forths - each of, each of which is another lesson in law school.
DAN LIBENSON: Okay.
BENAY LAPPE: So I, I really wanna be sure we all see how radical this, this sort of chain of moves is. Okay. So the first solution, the first way we're going to reconcile Rabbi Yannai to the mishnah is saying: oh, the mishnah was only - when the mishnah said: we feed him on the word of experts, that was only when he said, I don't need to eat.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Right? Because now if that is true - which it clearly wasn't - but let's say, right, if, if they're gonna retroject that truth into it, then that idea reconciles with Rabbi Yannai, because Rabbi Yannai himself says: if the sick person says: No, no, no, I don't need to eat. I can do my fast. We actually do listen to the expert who says: No, no, no. You, you, you need to eat. We're gonna let you eat. Okay? So that is move number one.
Then the challenge comes back and says: but wait a minute, that's still not a good enough reconciliation! So this is yet another layer of: No, no, no. That's not good enough. Because Rabbi Yannai says you only need one doctor to allow him to eat. And the mishnah says you need experts, a multiplicity of experts!
Okay. Okay. Now we've got another problem. Again, we gotta solve that problem. And the way we're solving that problem is we're further restricting what the mishnah actually meant - wink, wink, wink. Because clearly it didn't. - And saying: Oh! in the mishnah of where we need experts, is where the sick person is in bed saying: no, no, no, I, I don't need to eat. I'm fine. - And there's another doctor there saying: No, no, no. He's fine. Agreeing with him, saying He's fine. He doesn't need to eat. Now we've got the sick person in one expert on one side saying: No, doesn't need to eat. That's the case where you need experts. Okay?
So I, I just think it's important to see, because we're starting to chuckle, I think. And I think the Gemara wants you to start realizing what it's doing. So as soon as you start laughing, you have to go, oh, it wants me to see this as obviously not - what's the word? Naive or pietistic. It wants to show me that the narrowing is so far fetched that it, we know that that's not what it meant! And this is a legitimate move to make, to expand the law and sell it,
DAN LIBENSON: right? right. Um, you
BENAY LAPPE: just gonna keep going this way over and over and over.
DAN LIBENSON: Right? And, and you, because, because it, you really, it does, you do get this feeling like, and this is, this happens in, you know, when you distinguish and narrow and narrow and narrow and narrow the case, you're like: wait a second. You know, we, we have a mishnah. It's not that long. Like it's a pretty short, but like, why is it wasting time on this, like narrowest of cases? If the, if the broad rule is that we do the opposite? why didn't it actually tell us explicitly we do the other thing? You know?
And it's like, so, and, and the only conclusion you can come to is because that wasn't what it originally meant. So then, so then you kind of are in this world where, where, okay, so if that's not what it real- originally meant, and the rabbis are working so hard to get it to mean that now.
Then, you know, you start to see, well, why? you know, well, they, they clearly are trying think it was wrong! You know, they clearly are trying to, that something has either changed or they have realized that this is just a, a mistake. And we, our system doesn't allow us to say the mishnah made a mistake. So the only thing that we can do is narrow, narrow, narrow the case.
But then as you narrow the case that much what you create actually is a vacuum. Because there's, you know, and then you're saying, well, in a vacuum, now we have a broad case that we can, we can put in because it doesn't say anything, um – or even by implication, because it had this very, very narrow, narrow exception that it had. Then the broad case must be the opposite, you know.
But all of that is just constructed. It's, it's, it's, it's uh, what do you call it? Hand, hand waving or, uh, you know, sleight of hand. Right where, where it's just like, you know, if you really think about it a little – and then that also raises this question, well, if the, if the Talmud is a, is a document that's originally meant for this like, tiny, tiny elite, then what you're showing people is like, this is how you do it. This is the sleight of hand. It's like magician school! It's like, right: A magician never reveals his tricks! Right. This is what, this is the manual. This is like that magic.
I, I remember as a kid, like I always wanted to find the, the magician manual. Like where is it where you can really find out how the tricks are done? You know? Um, but, but this is how, you know, and, and, and now
BENAY LAPPE: I love, I love that. I love that. That's what it is,
DAN LIBENSON: Right? And now that we like, dug it up, you know, now it's like we have the magician- Like all of a sudden we're reading this from a really, like: that's how they were doing it?!
Like, I remember when my uncle, uh, who was this like amazing magician when I was a kid, you know, and he could make things disappear and whatever. And then I remember coming to visit him with my. Uh, uh, my cousin who was much, much younger and you know, I was probably in my twenties and she was, you know, five and my uncle was doing these tricks for her, and all of a sudden I'm watching and I see like he's tossing, you know, I see what he's doing. And it was like, it was so, it was – it wasn't shattering because like I, of course I knew by that point that it - but it was like so eyeopening that I was like, oh, that's how he did it. Right? Uh, it, so that's what's going on here.
BENAY LAPPE: I love that magician school is so helpful. Um, and it, and it, like you say it, it puts its finger on the access situation because you don't want the whole public to go to magician school!
DAN LIBENSON: right.
BENAY LAPPE: You really only want a very small number of people, the people who are, who you are raising up to be magicians - the people who need to know how the trick works to do the trick – To entertain the people, in this case, the legislate for the people. But yeah, that's really, really helpful.
DAN LIBENSON: Right.
BENAY LAPPE: And it also cha- it challenges me about, you know, my idea that this should be open to everybody.
DAN LIBENSON: Well, I don't, well, that's what I was gonna say. Like, I think that there's a way to extend, I, I am not sure quite what it is yet, but there's a way to, I think, extend the analogy and to say: look at the point at which… at the point at which people are sort of mature enough to know: look these tricks. Like we all kind of know it's not real. Like what, what the magi,
What we start to see in the world of magic is that the, the tricks become - they're much more intricate. Like if you look at, uh. Uh, what's that show? Uh, America's Got Talent, for example, and you see the tricks that they're doing now. They're incredible. Like, and you can't, you can't, um, even imagine how did this guy run across the, you know? Right.
And, um, when you would go back and see probably what Houdini was doing or something, you know, you would be like: eh, let's - you know, it's not that impressive. Now we all know how he did that trick. And, and it's like, so it's okay. Like it's
At a certain point when people are kind of grown up enough to say: like, I, I, I kind of, I don't, this is insulting to, to, to sit through this trick now. You know, it's insulting to me that you think I'm so stupid that I don't know how – I might not know exactly how you do that trick, but I know that there's a hole in the bottom of the bag or whatever it is. Right? Um, so at that point it's like, okay, so yeah, you're right here, here: Read the book. This is how it was all done.
And, and I, you know, I think it's like those us who read a biography of Houdini, it's fun because you're like, oh, now I really get it, whatever. But you still enjoy coming to a magic show with the new kind of tricks, you know? And, um, I don't know. I feel like there's something there, you know, there's something about the democratization of the old tricks allows the new tricks. And, and I don't mean to say that these are tricks that that's not my, you know, but
BENAY LAPPE: Yeah. Yeah. And I am always asking myself if their techniques could still work today. I mean, pe- people don't have this pietistic relationship with Torah such that they're going to be willing - most people, in some communities it still works - but in, I would say most liberal Jewish communities, no one's going to actually be sold by saying: oh, because there's the vav over here and the vav over here.
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: And… and I remember before I – now I know like what, you know, about law, what could fit in the a grain of sand – but before I knew even what could fit in a grain of sand, I thought, I thought: oh, svara, that that source of law, has to be- everything has to be svara!
But then I realized that our legal system only rarely acknowledges that the judges are using, you know, their sense of moral intuition - They do sometimes!
DAN LIBENSON: right.
BENAY LAPPE: To overturn law. You know, like when, when Kennedy said hard work, Hardwick v Bowers was wrong, then this was the case that in 1986, which upheld sodomy laws. Bowers v Hardwick was hard. Hardwick v Bower, it was wrong then. It is wrong now. Right? And I'm overturning it because, you know, because gay people have a right to a dignified life of sexuality. Um, the law. But even American law rarely does that.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Right? So, I don't know, it just makes me wonder how, how we are going to sell the new, you know, the next version of the Jewish tradition as traditional.
DAN LIBENSON: Well, something that, something that you said that, that I think is a good place to close and then we'll, we'll pick it up again next week, is that you, you alluded to this particular interpretive technique called Gezeira Shava, or more or less, you know, where you pick one word in this sentence and one word in this sentence, and you say like: because the same word is in both of these completely unrelated sentences, therefore we can connect them and make some, you know, spiritual and that that's one of these.
I feel like Gezeira Shava is gonna be one of those magic tricks that's not gonna make it to the next level. Um, right. Like it's not, it's too, it's too transparent at a certain point that that doesn't, it's not real. but to study, uh, how they used Gezeira Shava in this, you know, 2000 years, 1500 years ago, whatever, in this kind of environment and what they were trying to do with it –
It, if you read it and you say, and therefore we should continue to use this particular technique of Gezeira Shava in the future so what we're gonna take a, a, a word from the constitution and a word from the Torah and somehow do a mashup and make some - that's not gonna fly.
But if you say that, like, the point is, is that like, yeah, but what we're learning from this is not that technique. We're learning that there are techniques! You know, that there and – And some of the old ones are gonna stay, but, and some of them, some new ones are gonna be invented what's traditional -
But it is traditional to have this a little bit loose relationship with the, uh, Constitution, you know, or, or to say it in a more sort of respectful way, right? That there, that there are, you know, when, when the liberals talk about a Living Constitution or you know, Penumbra and Emanations, that there are these fundamental principles - The Constitution doesn't always know how to say them as principles. And so it's our job sometimes when we see it from like a, a different point of view to say: ah, there's actually a tradi a, a principle there that we can now establish in writing more explicitly and give it the weight of the Constitution! – That might be ultimately a super precedent, you know, however that goes. Like, it's not. It, you know, and, and, and
Like you've been saying all along, if you read the Talmud for its, uh, cases, like if you, if you think that Talmud is a law code and these particular cases it talks about are important, then you're missing the whole thing. And I would take it to the next level and say, and if you think that all of the techniques that are, that the Talmud shows is it's telling us that we should use those techniques to now make a new kind of Judaism, you're also missing, uh, the point! Like it that it's not about its cases or its techniques, it's about that you should have cases and have techniques! Right. You know, and, and some of them will be old ones and some will be new. And that's the tradition.
BENAY LAPPE: I love that. That really is helpful for me because I think I've been too, uh, aggressively holding onto: okay, this is the methodology, this is the menu of tools we are, or the set of tools we have in our tool belt. And really that's what we got? I think you're right. I love this.
DAN LIBENSON: All right. Well,
BENAY LAPPE: it's tools, not these tools.
DAN LIBENSON: Yeah. Use tools and
BENAY LAPPE: and it's, and it's bold, courageous, innovation that makes the tradition more compassionate, more for more people. And
DAN LIBENSON: Yeah. And that, that's the, and, and, and you know, maybe, maybe it is, maybe it isn't. I, I think it is. You think it is, but like, but ultimately, right. What, what our task is, is to understand in that like deepest of ways: What is this really trying to do? You know?
That's why, that's why I love the story so much of the, the opening, the, the guards removed from the gates, you know, that we did early on, becau, and, you know, and – and because it is, not only did they remove the guards from the gates and then like tons of people flooded in. But then the first thing that they took on was, can we let even more people in? You know?
And, and that's a story that like, I would really, really look up and say, you know, that's one of these stories that reveals the intent of the whole project is to let more and more and more people in. Is that true? Was that their original intent? I don't know.
But when I read, when I read that and I think about like the world in which we live in and, and, and where we see things going wrong, it's like, that would be a better world where you are always trying to bring more people in, right? So let's lift that up and let's find all the tools to make that a fundamental principle. So
BENAY LAPPE: I love that. I'm so glad you, you went back there because what you, the way you framed that landed for me in a whole different place and it –
Okay, I'm gonna say one more thing and I know we're, we're over time and that is one thing I've learned over my 18 years at SVARA is that, you know, I'm, I, I'm not, I'm not any longer the queerest thing on the block. And there's always someone queerer than me who gets an insight about what it means to be a human being that - maybe about sexuality, maybe about gender, maybe about race, maybe about a whole bunch of things – But I, I, I have to listen to them!
And, you know, and, and we always have to be asking the question, who's not here. And, and that story, that, that being the first story, let's be sure we're not the last queer, you know, group of people. And we're, we're looking for the ones who are still excluded and say: Hey, no, no, no. Even they – I love that. Right. I love that. Great.
DAN LIBENSON: Well good place to end very in line with our theme and we'll pick this up again, uh, next week. This is a great text to be bringing out all this stuff.
BENAY LAPPE: Yeah. Thanks Dan.
DAN LIBENSON: See you next week Benay.
BENAY LAPPE: Bye.
DAN LIBENSON: Bye.
DAN LIBENSON: Thanks so much for joining our chevruta today! We hope you’ve enjoyed learning with us… and with the Talmud. You can find links to the source sheets for all episodes in the show notes and on our website at oraltalmud.com. Your support helps keep Oral Talmud going. You can find a link on the website to contribute. We’d also love to hear from you! Email us with any questions, comments, or thoughts at hello@oraltalmud.com. Please, share your Oral Talmud with us – we’re so excited to learn from you. The Oral Talmud is a joint project of SVARA: A Traditionally Radical Yeshiva and Judaism Unbound, two organizations that are dedicated to making Jewish texts and ideas more accessible for everyone. We are especially grateful to Sefaria for an incredible platform that makes the Talmud available to everyone. It’s free at sefaria.org. And we are grateful to SVARA-nik Ezra Furman for composing and performing The Oral Talmud’s musical theme. The Oral Talmud is produced by Joey Taylor, with help from Olivia Devorah Tucker, and with financial support from Lippman Kanfer Foundation for Living Torah. Thanks so much for listening–and with that, this has been the Oral Talmud. See ya next time.
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