The Oral Talmud: Episode 31 - A Talmudic Stitch Sampler (Yoma 82a & 83a)
SHOW NOTES
“The big error is to imagine that a general principle of interpretation applies only to the case in which we learned it.” - 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 work through to the end of the case of a person who is sick and needs to eat (and not fast) on Yom Kippur. We recognize this whole section of Talmud to be a sampler - a presentation of the many moves available to the clever sage who is dedicated to the work of changing the system, rather than letting people suffer.
Do we want Supreme Court justices who read and reinterpret text like the rabbis of this sugya? How do we react when people use otherwise liberatory tools in harmful ways? What might the results-oriented jurisprudence of this case indicate about the larger debates that our Talmud editors were dealing with in their time? Especially if we believe that by the time all of these defensive arguments were being spelled out, it was the established practice that people who need to should eat on Yom Kippur? What is the role of a constitution in protecting minorities? Recognizing and responding to suffering? When we’re suffering under a system now, what can we do? What can we utilize from our learning to help us?
This week’s text: “Lev Yodea Marat Nafsho” (Yoma 82a & 83a - Part 3)
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] When Benay calls our sugya a “Sampler text” she’s drawing from the world of needlework, where a sampler is a personal showcase of ones abilities in a single piece. History and examples on Wikipedia. Benay write more about this in “A Sampler of Samplers” on SVARA’s Library, using Perek HaChovel as another Sampler, which upends “Eye for An Eye”
[2] For those wondering, “What Happens When Expert Testimonies Conflict?” from the Expert Institute
[3] Past SVARA Faculty & Trans Halakha Project co-founder Rabbi Becky Silverstein writes on the Talmud’s call to “Go Out And See” what the minhag of the people is (in SVARA’s Library)
[4] Dan uses the Talmudic term בדיעבד “second best” which has an entry in the Jewish English Lexicon under “Bedieved”
[5] “Daniel Libenson Testimony on Same Sex Marriage” in the Minnesota Legislature (April 4, 2006), using the framework that Constitutions are not supposed to harm minorities, is available on YouTube. A transcript of Dan’s testimony can be found in the Minnesota Legislative Reference Library - “Judiciary - Senate - 4/4/2006” Minutes/Documents (direct PDF link)
[6] For a portrait of Rabbi Joel Roth, beyond his refusal to improve the lives of gay people through making the kinds of defensible shifts to halakha discussed in this episode, explore his page on the Awareness Center from the international Jewish Coalition Against Sexual Abuse/Assault (JCASA)
[7] The Broken Social Contract was explored more in The Oral Talmud: Episode 11 - The Broken Social Contract (Gittin 55b-56a)
[8] For the Mountain Held Over the People, and Accepting Torah Under Duress, listen to The Oral Talmud: Episode 2 - Voiding the Torah
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DAN LIBENSON: This is The Oral Talmud - Episode 31: A Talmudic Stitch Sampler. 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.
This week we’re working our way toward the surprise ending of the case of a person who is sick and needs to eat on Yom Kippur, which, like many things in the Talmud, is both about and, mostly, not about the question it purports to be about. As we begin today’s conversation, Benay introduces the idea that this text is sort of like a needlework sampler – an excuse to present some of the many moves available to when we need to change something in the system in order to alleviate suffering.
Every episode of The Oral Talmud has a number of resources to support your learning and to share with your own study partners! If you’re using a podcast app to listen, you’ll find these links in our show notes: First, to a Source Sheet on Sefaria, where you can find pretty much any Jewish text in the original and in translation – there we excerpt the core Talmud texts we discuss, draw out the central questions of each episode, and share a link to the original video of our learning.
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 the Talmud.
And now, The Oral Talmud…
DAN LIBENSON: Hello everyone, I'm Dan Libenson and I'm here with Benay Lappe for this week's episode of the Oral Talmud. Hi Benay.
BENAY LAPPE: Hey Dan. How are you?
DAN LIBENSON: I'm alright. I'm stressed. It's a, uh, this is when we're recording this. This is, uh, a few days before the election, so a lot of, a few days after Amy Coney Barrett was, uh, sworn in as a Supreme Court justice.
So, and that's something that we've been talking about over these weeks, making comparisons to the questions that are in the air about Supreme Court and, and how that kind of work of interpreting the Constitution should be. So there's a lot going on in, in the, you know, plus those, uh, a renewed spike of COVID. So it's a stressful time. Yeah. Yeah.
BENAY LAPPE: Yeah. I feel the same way. Um, I don't know. I'm having a, you know, a moment of a moment of calm in the up and the down.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Um, but I'm Okay. Excited to learn.
DAN LIBENSON: Yeah.
BENAY LAPPE: Spend the next hour learning.
DAN LIBENSON: Yeah. You know, it's funny, like, because there's learning, kind of learning as a break from - learning as for its own sake, learning as a, as a spiritual, you know, rest from the world as we're experiencing it – and as we're discovering, not even, I'm not intending to, you know, it's funny, like I,
When we started this show, I, I didn't really fully imagine that we were going to find so many resonances with some of the questions in, in the country today, uh, in, so, and, and the more we do it, the more I kind of feel like, oh, that's actually a theme of this, of this show. So it's interesting, like the experience it both as a rest from, and as a part of, which I guess is kind of the point.
BENAY LAPPE: Yeah. I, I'm fascinated by fasc- stressed, I would say by the, the question of, you know, how much should we be in the bet midrash and how much should we be out in the streets or otherwise changing the world?
And I'm gratified to know that the rabbis themselves were equally stressed about that. Um, yeah. So learning is both an escape from as well as an engine to renew. I, it's, it's so many things. Um.
DAN LIBENSON: So let's, uh, jump back into what we're studying because I think there's like so much in it that, and, uh, and, and on all of these levels. So let's just jump back into it. So, um. So I'll j- I'll just mention that again.
We're, we're, we're continuing to be on this text that's fundamentally about, you know, I mean fundamentally it's, it purports to be about, uh, right, its surface level meaning is that it's about, uh, whether you can eat on Yom Kippur if you're sick.
And yet ultimately, and as we are going by, we find so many other questions. It's about whether it's the process of interpretation, the process of thinking – but also ultimately is the subject matter beyond eating on Yom Kippur, if you're sick. Uh, and obviously the answer is yes. We'll, we'll get to that. Um, but you wanna give us a little bit of a ground- grounding just where we are right now in the text?
BENAY LAPPE: Yeah. Okay. So, without going too much into all the back and forths of where we've been – we're dealing with, and this sugya, this passage generally is dealing with the fact that we have a mishnah of, it says if a person is sick and feels that they need to eat on Yom Kippur, they're allowed to, if the experts, if there are experts who are present, who confirm they need to.
Which, by the way, we noted originally is a radical deviation from Torah, which the rabbis understood to say: you have to fast - that the one of the afflictions is fasting, which is the violation of, which is a super serious thing.
And the mishnah goes on to say, but if there are no experts present, um, we listen to the person's own opinion on whether they need to eat. Okay. So that's the mishnah.
And then we move into the Gemara, and we have an opinion that says: actually if the person says: I need to eat, and the experts or doctor present says: no, you don't need to. We listen to the person and we let them eat. That seems like a contradiction to the mishnah.
And furthermore, if the person says: I don't need to eat. And the doctor says: you do need to eat. We listen to the doctor. Um, because even though self-determination seemed to be a big part of that prior opinion - yes, you can eat even if the doctors say no - if we're really worried about your health, that's even more important to us than self-determination. And we're going to make sure you eat.
Okay. So now the the, the text is gonna be dealing with the contradiction between these new two opinions. These are Rabbi Yannai's opinions and the Mishnah – because the, one of the rules of the game is: the era of rabbis after the Mishnah are not allowed to contradict the Mishnah. The Mishnah, Mishnah is considered inviolable - like the Torah, with a big asterisk on both of those points!
Because we can see that they're overturning Torah in radical ways with the Mishnah, and the rabbis do the same thing, even though they claim not to be, you know. I suggest the entire Talmud is a, a handbook for precisely how to do that. Um, and we're also seeing how the rabbis in the Gemara are overturning Mishnah, even though they're not supposed to. Okay.
So we've arrived at the point where they've re misunderstood the mishnah in a way that is pretty obviously not what the mishnah originally meant. Namely that the reason you need a multiplicity of witnesses to let the sick person eat when they say I need to eat is actually only in the case where the sick person says: I don't need to eat. And there's another doctor agreeing with them saying, yeah, he doesn't need to eat. And we have two experts to say he needs to eat. That's when we, we say: yeah, you eat.
So that's our new understanding of the mishnah, which at this point in the text we're already, we should be chuckling about because it's so, obviously it's so obvious that that didn't mean that, but okay.
This is going to be a kind of sampler text for a dozen different ways to radically reread and then reread, and then reread, and then reread, um, a more constitutional prior text to essentially allow the more they even more radical read that you would like to be the law of the land.
DAN LIBENSON: Yep. Yeah. And, and, and I think we'll talk about this more later next week, but like, as I've been reflecting on this and trying to think about it, you know, one is to like stick with the case and, and go through it, and that's what we should do now.
And then for me, and I say this just so that viewers, listeners can follow along with my, you know, pangs of, of concern, right? That, that I, I've been thinking like, how would we feel, how do we feel about Supreme Court justices in America that read the Constitution this way? and do we feel good about it? Do we feel good about it when it matches our political aspirations, but not when it doesn't? Do we feel bad about it all the time?
Uh, is there some way to think about that it's, it there we can say when it's proper and when it's improper? Even if the justices themselves don't make those distinctions. Are there ways that we could say, oh, no, I can imagine the Supreme Court justice, that it is the Talmudic sort of Supreme Court justice that of our dreams, right? And how, how might they approach the US Constitution in, in the same way where they do do some kind of interpretive tricks, but somehow on the whole, we do appreciate what they're doing? And not only because, or maybe only because we agree with their political approach.
BENAY LAPPE: Yeah. You know what? You, you, remi- you are reminding me of the situations in the Talmud when we have two rabbis, both of whom want to overturn Torah in a different way, or even one of, one of whom wants to, and one of whom wants to preserve the apparent, simple plain meaning. And they both are using svara to defend their position.
And the question is, which svara wins out? And the way it seems to work is the svara, which they all agree, is in agreement with the fundamental principles that they agree underlie the system, is the svara that wins out.
And, you know, that's, that's not a super stable or obvious thing, but it feels like that's a piece of the puzzle when we ask ourselves: are we really happy with, you know, far right wing or the, the other guys using these techniques? Yeah, they, I think they get to use them. Um,
But when they use them and they come out with results that undermine the, the foundations of the system that we should all be agreeing with and they can't really deny, then you know, that they, they've, they've used them for, ill. But I, I, anyway.
DAN LIBENSON: Yeah. So anyway, to follow the logic, just to correct me if I'm wrong, but to follow the logic of the, of the substantive rule that we're talking about here: where we migrate from the Torah, which basically says you should, um, again, arguably doesn't say it, but let's accept that the Torah says you should fast on Yom Kippur. Period. End the story, right?
Then we get to the Mishna, which says, well, there's an exception. There's one exception when you don't have to fast on Yom Kippur - if you're very sick and a doctor says you don't have to fast. Okay?
Then we get to the Talmud and the first thing it says is, well, actually it's, it is, it's not that only, the exception is when a doctor says, you don't have to eat. It's whether you or a doctor says that you don't have to eat. You know that, that you, that you would be, you would be very sick or you would die if you didn't eat. Um, we, we take you or the doctor at your word and,
And then the question is, well then why did it say expertS, plurals? Oh, well that's because of a very limited case. Don't worry that doesn't affect any of this, like, slide down the slippery slope. That is a very particular case where a doctor and the person said that they didn't have to eat. And then, and then the question is, uh, okay, well that's the only case where you would need expertS. 'cause they're now overruling two people, so there have to be at least two people overruling them.
So that's where we are, like substantively. And, and I say all that because the next thing that the Talmud said is: well, that's obvious! You know, so that's, and that's where we are, right. Okay. So, um, so, you know, it's, it says it's obvious, but obviously it's not so obvious.
BENAY LAPPE: And by the way, let's flesh out what precisely is obvious. When the Talmud then goes on to say: Hey, that's obvious. What do they mean? I think what they mean is: it's obvious that if you had two against two - two people, the sick person and expert saying he doesn't need to fast - and two experts saying, yeah, he does need to fast – for sure, we would go with the more lenient, we'd more permissive two. Because we have this principle that if we're worried that a life is in danger, we lean to a more lenient position.
So why would we need the mishnah to say that?! The mishnah can't possibly be describing that narrow case? Because we don't need a mishnah to tell us what to do in that narrow case. Two against two? Tie goes to the runner. For sure a tie goes to the: he eats!
DAN LIBENSON: and, and according to the Torah it would, it would seem that if, first of all the tie that doesn't go to anybody: he can't eat! But if we're already in that situation, then, then according to the Torah, you would think that the tie goes to the not eating, because the main principle is that you don't eat on Yom Kippur. And so if it's two against two, you don't eat. – So it would have to be three experts that, that we could say maybe the, under a certain point of view, that limited exception of the mishnah of would prevail and you can eat.
But this, the Talmud saying that - Like you say, like, no, no, it's not a limited exception. It's a pretty gaping white exception. And so tie goes to the, to the eater,
BENAY LAPPE: Right. And it, the Talmud is actually gonna go exactly where you said.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: But what, what, what I think is interesting is everyone is actually happy. Everyone reading the text is really super happy with, even though we're chuckling that the mishnah of really describing this narrow case of where there's a doctor who agrees with, with the sick person that he doesn't need to eat.
But now the, the editor sticks in this additional challenge, destabilizing that understanding of the mishnah even further when it didn't even have to! I, I mean, I really don't think anyone would have thought, oh, wait a minute, that's problematic. So either the, the editor is rapping us on the knuckles saying: you know what? That wasn't as nice, a resolution and rereading is you thought. You should have thought harder! or: let me tell you, here's another piece of the sampler in how to destabilize something, you need to be de destabilized when it's seems pretty good. I, I'm not sure,
DAN LIBENSON: And I would just throw in there for the, for folks who are more familiar with American law, like I, I would say that like, something like this is, is where we're probably talking in the realm of something like the First Amendment, which says: Congress shall make no law abridging the freedom of speech or the freedom of the press.
Right? That's definitive. No law, never, ever, ever, ever. Right. And then cases come, well, what about this, what about that? And you would think that if it really was never, ever, ever, that, that all those cases would always be lost by the government - because they would say: no, no, it says no law. Right. But, but that isn't the case.
And so we've, we've seen, we've seen similar situations arise in American and probably every other legal system – that even when the founding document says: never, ever, never - uh, it, it's not, never, never ever. And, and these are some of the moves that we see.
Okay. Okay, so let's jump into the text. So, um, so here we, so here we are. The Gemara asks – here we're talking about the two and the two; the two to the person, and one expert says he shouldn't eat - and the two experts, two other doctors say that he should eat, he should eat –
The Gemara asks if, so, that is obvious since it is a case of uncertainty concerning a life threatening situation. That's, I think, safek pikuach nefesh, uh, right, and, and, and a, a potential life-threatening situation. And in all cases of uncertainty concerning a life-threatening situation, the halakha is lenient.
So, so therefore the tie goes to the runner, as you say, the tie goes to the eater because it's potentially a life-threatening situation,
BENAY LAPPE: right. And anything and, and there's a rule: anything that's obvious, you don't need a text to tell you. So if a text tells you something that seems to be obvious, you must be wrong in how you understood it, it must be telling you something different, something unobvious.
DAN LIBENSON: Okay, so then the, the Talmud goes on to say: no! this halakha is necessary. This mishnah, it was necessary to say this in a mishnah – because there's a case where there are two other doctors along with the sick person. - So now we've got three saying that he doesn't want to eat, doesn't have to eat; and uh, they say that he does not need food.
And although Rav Safra said that two witnesses are like a hundred witnesses, and 100 witnesses are like two witnesses – mean meaning as I understand that, that they're saying that even though there's the doctor, there's the, the sick person, and two doctors say that he, uh, should not eat. That what they're saying is that's just the same case as if there were a hundred witnesses, plus a hundred doctors, plus the sick person. Right?
BENAY LAPPE: Well, we - the English translation is sliding us into a, a completely new move, so let's take one move at a time.
This move is a challenge. The, the move we just had is, is: Oh! the mishnah is actually talking about a different case altogether. No, no, no, no, no. It's not what I said five minutes ago. It's this! Namely, there are two doctors who say he doesn't need to eat, agreeing with the one – and two doctors who say he needs to eat. That's when we allow him to eat. Right. Okay.
Now the new challenge is what Rav Safra is saying.
DAN LIBENSON: I just wanna, just wanna like, make that case super clear. Now we've got a case where we have three against two - but the three are saying that he should not eat. The person and two doctors are saying: he is not so sick, he doesn't have to eat. He wants to keep Yom Kippur the traditional way, uh, you know, he, he, he's, he's strong enough he can do it. And you only have two doctors on the other side saying: no, no, no, he's too sick, he has to eat. You go with the two, not the three.
That's the case that the Talmud is, is, uh, saying that the, what the mishnah is trying to tell us – that in that case where it's three against two, you, you go with the minority of voices as long as there are two, right? If there were only, if it was three against one, you would go with the three, but if it's three against two, you'd go with the two, right?
BENAY LAPPE: Yes. I'm pretty sure we have that right.
DAN LIBENSON: Okay.
BENAY LAPPE: Okay. Then comes this interjection, which says – It's a sidebar really. So Rav Safra comes in and says - and don't, okay, well let's read it in the English and then I'll try to reconstruct it from my understanding of the original.
DAN LIBENSON: Okay. And although Rav Safra said that two witnesses are like 100 witnesses, and 100 witnesses are like two witnesses - that rule applies specifically to the matter of testimony.
However, in the matter of assessing a situation, i.e. diagnosis, I think is what they mean here, right? These are doctors diagnosing, not witnesses, offering testimony.
BENAY LAPPE: That's exactly right.
DAN LIBENSON: Uh, so in a matter of assessing a situation, we follow the majority of opinions.
BENAY LAPPE: Okay? So Rav Safra's coming in to say: and lest you - You know, play the card of why are we playing a numbers game with witnesses? We never play numbers games with witnesses.
DAN LIBENSON: As long as we have two.
BENAY LAPPE: As long as we have two, you're done. A hundred witnesses is actually no greater - they can't make a greater case - than some opposite case that only has two. A hundred witnesses are equal to two. Two is equal to a hundred. It doesn't make a difference as long as you have two.
But that rule only applies to technical witnessing - when the quote unquote “witnesses” are actually giving an assessment. Assessments are different than witnessing! When in the realm of assessments - majority of assessors, does count against the minority of assessors assessing something different.
DAN LIBENSON: So you, by the way, I think in, in American law, we would see that as the difference between a, a fact witness and an expert witness.
So a fact witness is somebody who said, I saw, I saw a white car driving off away from the scene. Uh, and so if you have two people say it was a white car and two people say it was a yellow car, that would be the same as if we had five people saying white and five people saying yellow. And it would also be the same as five people saying white, 10 people saying yellow. As long as it's more than two, it's as it's functionally infinity. So we all know that infinity plus one is infinity, so there's no difference between infinity versus infinity.
So as long as you have two against two, you're dealing with the situation two against two or more than two against two. In the case of a fact witness, you are, you are saying the witnesses are evenly split. And then we just take whatever rule we use to decide in those cases.
If it's an expert witness, that's somebody who says: um, I'm making an assessment, right? I, I've analyzed the blood in the car and I've done a DNA sample and it matches the, uh, the, uh, the person who's been accused of murder. And two people say that it matches, and five people say that it doesn't match. You would go with a five and, and according to what. Uh, according to what this, uh, uh, Rav Safra is saying. Right.
BENAY LAPPE: That's really interesting. So that's a real thing in secular law? that
DAN LIBENSON: Yeah, I think, I think, I mean, like, those are two kinds of witnesses, and maybe even here, they're not even exactly witnesses - They're just doctors making a diagnosis.
But even in the realm of witnesses that the law does potentially, at least, there, there is a difference between a fact witness and an expert witness. You know, they're both called a witness, but they mean something different - that that just means that they're able to testify in, in court. But they're, they're not, you know, an expert witness isn't what we usually think of as a witness.
BENAY LAPPE: That's really interesting. Okay, so this is not as much of a, you know, Winky, Winky argument as it appeared to me.
DAN LIBENSON: Yeah, I, I don't know by the way. I don't know that, I don't think any of that's true in American law in terms of the, you know, at, if it's two, then we don't, you know, I think in, in American law, it, the jury decides, and I, I suspect that the jury is swayed by whether there are more on one side versus the other. But, but in any event, the, the categories make sense.
BENAY LAPPE: Okay. So where are we now? So where we now is that we actually realize that the three people who are saying: he doesn't need to eat, um, should overrule the two who says, no, no, no, he doesn't need to eat. He can fast.
DAN LIBENSON: Yes. That you would, that's that what he think.
BENAY LAPPE: No, sorry. Yes. I, I don't need No, no. The two who say he does need to eat.
DAN LIBENSON: No, but I, I think that what, I think that what the, what the, if I understand this correctly, like I think that the, the Talmud is saying: the reason why we need this case in the Mishna – the reason why we need the mishnah to tell us that we, that we go with the two is because you would otherwise think that you go with the three, because that's our normal rule of, of um, assessor, assessing versus instead of witnesses.
BENAY LAPPE: Exactly. Exactly. Okay. Let's look at the English. I think that's where it's gonna go. I think that's what, okay. It's gonna say. Okay,
DAN LIBENSON: so, so the next here's, uh, Steinsaltz explanation: therefore, one might think in the case of the ill person, in this case of the ill person, uh, should not be fed because the opinions of two plus the doctor, the ill person should override. Sorry, in the, in the opinion of two doctors, plus the ill person should override the opposing opinion of only two other doctors.
Generally speaking, two or more witnesses constitute complete testimony and there's no difference between the testimony of two and the testimony of a large number of people. However, this principle of following the majority applies specifically to assessing monetary issues. So then the, the Talmud is – sorry.
Okay, so stop. So, so the clarification was what I just said earlier was that they're, they're, that they're saying: you, you would think that, that because in, in situations of assessment, rather than witnessing, we go with the majority. In this case we have three against two, so we should go with the three.
Um, however, however - Then the Talmud is saying however, that, but that principle doesn't apply in this case because that principle is only about assessing money issues. But here it's a case of uncertainty about a life-threatening situation. Therefore, although it is the opinion of two doctors against the opinion of two doctors and the ill person, the ill person must eat.
So,
BENAY LAPPE: right! because what even overrides the three against two in an assessment situation is it's a potential threat to life situation. Given that that's the context we go with the two over the three.
DAN LIBENSON: Right. Right.
BENAY LAPPE: Okay. So now we
DAN LIBENSON: go back to the infinity versus infinity. And as long as there are two you eat.
BENAY LAPPE: That's right.
So we're all back to, okay. Now we understand the mishnah - the mishnah was referring to this super narrow case, not a broad, unqualified statement of policy as we understood it. P.S. and as it was probably intended - Certainly intended.
It's super narrow. Now. Everybody's happy - But no! Okay. We don't wanna stop there. We wanna put another sample sampler stitch.
You know what, when I, when I was ordained, my mother made me a sampler tallis bag. And the scene, the scene on the front of it is a scene of Jerusalem. And every little piece is a different stitch. You know, a basket leaf stitch.
And this, I don't know, somehow this, this analogy comes to my mind because there's a picture: It - Jerusalem is on there, but it's, it's not really on there as its goal. It's really, it's a sampler. It's there to show different kinds of stitches and it, and it decide, decides to do so in the design of Jerusalem.
This is like a sugya sampler. It's in, it's in the design of: should someone eat on Yom Kippur or not. But, you know, the text is never about what it's about - The sampler. It's, it's a sampler of different, I think different ways to destabilize a prior constitutional sacred document when you actually have come up with a better understanding of how we should make our world. And how to deal with, with that tension of the sacredness of it, and the fact that it's, it's gotta be malleable.
DAN LIBENSON: So I, and I think that that's, that's right. Like we should, we can look at it ultimately at the end of it as a sampler of these techniques. Because it may be that in a particular, one of these techniques, it doesn't work in this particular case. But now we know we have that technique available for some other case where maybe it does work.
Like in this case, in the case of monetary assessment, now we know we have this principle that, that the majority rules - um, even if there are two witnesses on the other side, or two, two experts on the other side, right. Um, even though it doesn't necessarily work in this case.
And another, another way to look at this case here is like bottom line, it's gonna come out that you can eat on Yom Kippur - as long as, uh, you know, as long as there's a, a tie, a tie, uh, assessment and
BENAY LAPPE: Just wait!
DAN LIBENSON: Okay. And, and, um, you know, or more than that, right? Or, or even more often than that. And what we're seeing here are the attempts to get to that conclusion, and we see like the threats and parries, you know, and, and so they say, oh, well, like, here's one: I'm gonna use this principle here. And they say, no, no, no, but that principle doesn't work. Okay, fine. So I'm gonna use another one and another one, another one. Until, until I find something that that works.
That's, that's different from, um, I mean, in a sense that's a kind of a results-oriented jurisprudence in the sense that clearly what they're trying to do is make this the outcome. Uh, and they're testing out different, uh, methods of getting there till they finally find one that doesn't have a defense. Right? Yeah.
BENAY LAPPE: Yeah. I keep picturing. A law school seminar. And you know, there's a certain fact pattern and whatever. Right? And, and I can imagine the class determining: okay, this is what the result is.
And then the law professor saying: okay, fine! But now what if the witness, or what if the defendant was actually not present? What, what if uh, it was a cloudy day? Well, okay, well what, and then they have, you have to redo it and that, you know what I mean? That feels like what the editor is doing here.
DAN LIBENSON: I agree. I mean, that's the teaching method, right? That's the classic teaching method of law school. And if you think that's what's going on here, then it confirms your sense that the Talmud is best understood as a law teaching case book - where, where it's really trying to just teach you these methods of how to think as opposed to these particular cases.
The interesting case is if it is actually a case – like if, if rather than looking at the Talmud as a law teaching case book, we look at it as a, something more like a, a case report. You know, like a, like a like what, you know, it's when the Supreme Court writes an opinion and we have the opinion written out. Usually it's the opinions aren't written this way where they try the different methods and show you why it doesn't work and doesn't work. And, and then they finally pick one – like when usually they just go with the one that worked.
Um, what's interesting here about them showing the different paths that didn't fully make it, uh, is – on the one hand maybe they're showing you some of those techniques, because they wanna teach you and maybe you'll learn it from another case.
The other thing that, that I think that they're kind of showing their hand in a certain way, and I suppose intentionally, is that it is a kind of results-oriented jurisprudence in the sense that they're saying like: we wanna get to this result, and we're showing you how we tried to get to that result through these different interpretive, uh, justifications.
Meaning I don't think that they actually got to the result based on the logic that's ultimately gonna be used to carry the day! They're showing you: this is the logic that could justify the result. But it took us a while to figure that out,
BENAY LAPPE: Exactly! I agree. And I think Rabbi Yannai’s policy was the law. It it's not like: oh, this is a great idea. Rabbi Yannai has a great idea. Let's figure out a way to sell it.
I think it, people were sold on it! and what we're about to see is Rabbi Yannai’s about to be overturned. So if Rabbi Yannai is about to be overturned with an even more radical diversion or more op- you know, greater opening up of the mishnah of which is an, an even greater opening up of the Torah, it could have just gone there. Why does it walk us through this historical evolution?
Um, it, it can't be justifying this intermediate position because the intermediate position is about to go away! So that, that's what reinforces for me the idea that it's, it's showing you a path. It's showing you how things change and how, how you can sell changes, um, and justify changes -- even though, I, I suspect that the, the changes that were made didn't in their era actually need this kind of thick, um, justification or sales pitch.
DAN LIBENSON: It makes me think a little bit about the story of same-sex marriage over the last decade or two, in the sense that it seems like the, the law was a, was a trailing, what do you call that? A trailing indicator, you know.
Meaning that the, the, the, it changed, same-sex marriage became accepted before the law accepted it. And by the time it got to the Supreme Court - the Supreme Court could have made a, a bad decision and said it wasn't, um, it wasn't gonna be recognized.
But part of why the Supreme Court, I think didn't make that decision is because they understood that society had shifted radically under their feet. And if they had made a decision that said same-sex marriage was not gonna be allowed, that it would've delegitimized the court - it would, it wouldn't have been accepted. that that it, -
As opposed to other decisions where the Supreme Court or any court is - or a legislature - is kind of, um, introducing a change to the law that is contrary to the will of the people or to the reality of, of society. And in a case where that
BENAY LAPPE: famous famously Brown versus the Board of Education, right?
DAN LIBENSON: Possibly, or, or Roe v. Wade, maybe even more so at the time. And that was some of the criticism of Roe v. Wade was that it, it, it, it was premature – not premature, obviously, for the people who needed it, but it was premature from the perspective of whether it was gonna find solid ground in, in American society.
Um, but in any event, the, the, the, it's, it's what you're saying. It's like by the time that any of this is written – and probably by the time any of this is really thought of in a serious way - this idea that of being lenient with fasting on Yom Kippur if you're sick, had become so entrenched! It was like, there, there really was no way to come out with any other decision.
And so really the question is now that we're sitting down here to try to formalize, uh, the law that we're trying to at least like write something down, uh, how, you know: – Hey guys, this, remember that thing about Yom Kippur as we're sitting down to try to write this down at, I'm going over the Torah here, I'm going over the Mishnah here. And I, I just don't see it like written! but what, how did this happen? You know? And, and then it's like, well, okay, let's try to write down a story after the fact, that kind of gets us to where we are. Uh, we know we, we are are there.
By the way, that's, that's distinct from what I've been calling results-oriented jurisprudence, which which is really more about saying: I wanna see something change. I'm gonna interpret the law, uh, kind of with a wink or in kind of slightly, you know, not, not totally purist kind of ways - to try to get the law to this place where it hasn't been before. That's the classic, negatively seen rights, uh, uh, results oriented jurisprudence.
As opposed to the law, the law's already changed, uh, you know, in the sense of, of like you say, you know, like the Talmud says go out and see what the people are doing. Uh, what is the minhag? what is the practice?
BENAY LAPPE: Yeah. Um, I'm, I'm really interested, I know you and I talk all the time about what was going on at the time of the stama, right? That motivated them to fill - backfill! potential, um, jurisprudential techniques and moves to come up with radical outcomes. - Radical outcomes, which probably were put into place without too much, you know, um, discomfort on the part of the people.
It, it makes me wonder, you know, we, we have this hyper pietistic relationship with Torah that I think they never had. And as the relationship with your sacred Ur-text gets more pietistic, you need more justifications.
Whereas before, when people – I, I think the rabbis did not think Torah was the word of God such that they couldn't mess. – I know that's a big debate, put a sticky there – but maybe that's a factor here. Um, I don't know. We, we could put a,
DAN LIBENSON: yeah. Yeah, I mean, it's interesting, like to think about, uh, there's, there's thought experiments. Like, what if we didn't have the 19th amendment? You know, would, would women end up getting the right to vote because states would start to give women the right to vote?
And a certain point it would be, then you would get a, a case coming to the Supreme Court that would say, women should have the federal right to vote. And it would be almost like impossible to say anything. But of course they should, they have it the right in every state already because, you know, sort of that happened.
Or we could think about, uh, legalization of marijuana. And not that there's something about in the Constitution about it, but you start to see that what's happening is that the states are just starting to legalize it. That doesn't mean it's, it's still illegal under federal law, uh, but when a state legalizes it, basically there's an understanding that the federal government's not gonna enforce that anymore. It's a little bit under the table. You gotta do it in cash. 'cause there's issues about tax payment and all kinds of things like that.
But, um, but that's how these, these things start to happen. Uh, and then, and then down the road, you're like, wait a second, how do we square this with the actual law? You know, that says that this is illegal?
BENAY LAPPE: But, okay, something, something clarified for me while you were talking – which also meant I missed half of what you said, but here's, here's, here's what I got:
I think we understand the Talmud when we think the proofs, and like the path that they're backfilling - which itself is one take on the Talmud - is, was ever really about this case. Okay. That's what I'm getting clear.
It's, I think it's the editor saying: this is a, like a theoretical path to a case like this. It wasn't how this new law - it wasn't how Rabbi Yannai’s new reality came into being. But it's how you could go from there to here.
And somehow in the time of the Stama, they had to have been needing to go from where they were, to some, you know, more open, more expansive, more progressive liberal understanding. And then they needed the techniques because at that point people had that more pietistic relationship with Torah. Now they need the moves maybe.
DAN LIBENSON: Okay. Yeah, I'm, yes, I, I'm into that and, and actually it, it, then we'll go back into the text, but it reminds me like it's, it's, it's
What you're describing is what I've been trying to do with, for example, rethinking the Jewish holidays today. Where I've been trying to say to people like: you know, you think that all of these holidays, the way we have them, you think they're like written in the Torah that way. Let me show you in the Torah, like there's nothing about, uh, having a Seder for Passover. And so, so don't tell me that we have to have a Seder forevermore because it's in the Torah.
Now, uh, now the point may not be Passover. I love the Seder. I don't have any problem having a Seder. My point is that it, once you see that we made up the Seder for Passover two thousand years after the Torah or whatever, uh, then –
Here! Now let's move over here to Sukkot, you know, or let's move over here to Rosh Hashanah. And if I say, Hey, let's actually build the Sukkah on Rosh Hashanah, like you, you could tell me it's crazy. And we, it's totally non-Jewish and it's heretical. And I, and I'll say to you, well, this specific case, there's no precedent for it, but cases like this, every holiday that you celebrate – you know, so, so like, that's, that's kind of,
That makes sense that now what would be the, the, the, the staa or the, the people who are living at the time of the Talmud, what would be the cases that they were trying to justify? And in a sense, they're using this one sit– Hey, you guys, you know how everybody knows that you're allowed to eat on Yom Kippur if you're sick? even if like 50 doctors tell you that you can't, you know, like that wasn't always the case! So now when we're over here talking about, you know, ritual, hand washing or whatever, we have more flexibility than, than you think we do.
BENAY LAPPE: Yeah. Mm-hmm. That's right.
DAN LIBENSON: Makes sense. Okay, so let's jump back into it? So, um. Um, okay. Okay. So therefore, so, so I'm sorry where exactly where we were, but
Therefore, although it is the opinion of two doctors against the opinion of two doctors and the ill person - the ill person must eat. That concludes the, the previous case.
The Gemara asks -
BENAY LAPPE: Okay, stop. So just be ready. Here comes a new move, a new destabilizing of this solution to make the opportunity to share yet one more piece of the sampler, I think - One more technique. Okay.
So they're gonna put, make us be in, in a, in a kind of trouble that we never anticipated - to show us that that last solution may not have been adequate. Here comes a new solution. Okay, new problem, new solution.
DAN LIBENSON: Okay, so the Gemara asks: but from the fact that it is taught in the latter clause of the mishnah that if there are no experts present, one feeds him according to his own opinion – By inference, the first clause of the mishnah is referring to a case where the ill person said he needs to eat. And in that case, uh, the expert said that he didn't. Right.
BENAY LAPPE: Okay. So what I personally, I find the English translation of the Talmud so much more difficult to follow than the original Hebrew or Aramaic.
Okay, so let's go back to what the mishnah said. The mishnah: said if a, if a person, if there's a sick person on Yom Kippur, we feed him according to experts. It doesn't explicitly say what that sick person wants to do, but it's perfectly obvious, that the case is that he wants to eat – and we let him eat, if the experts say he needs to eat, that's clause one.
Clause two says: but if there are no experts present, we feed him on his own testimony. Case being: if he himself again says he needs to eat, and there are no expert experts present, we let him eat according to his own wishes.
In other words: it's obvious that we, when the second clause says: we feed him, that the case is he wants to eat. And the only difference between the first and the second clause is whether there there're experts present. But the case itself! the Gemara is now saying - had to have been the same case, because we're only changing one variable: whether there're experts present.
What we're not changing was his own expression of wanting to eat or not wanting to eat. The second part is obviously him wanting to eat because, it explicitly says we feed him, on his own testimony.
Therefore, the first clause must have been him saying, I want to eat. Not this super narrow case that we've pushed into a corn- pushed the mishnah into a corner to be representing. Namely, he says: I don't need to eat.
Okay. So there's, now we've just overturned the apple cart of where we had le- left our mishnah: Oh, it can't, that case where there are multiplicity witnesses can't be describing ca- a case where he says, I don't need to eat. And there are two corroborating doctors who say, no, he doesn't need to eat.
DAN LIBENSON: And the the implication would be that in a case where he says he doesn't need to eat, he would, he would not eat. Like meaning that there in, in the, in the, this, uh, kind of straw man version of the mishnah that they're putting up here that says that like: these two cases both have to do with a sick person who says: I do need to eat.
In the ideal world, there's also an expert who says he doesn't need to- he does need to eat. And then of course we feed him. If there are no experts around, then you know, be’dee’avad, the second best, uh, you can feed him if there's no experts around. in the
By implication in a case where he says, I don't need to eat. He doesn't need to, he, you don't feed him. That, that, that would be the, and now they're gonna question that.
BENAY LAPPE: I, I think that's the case. Case. I think that's the case because we then have a mishnah that’s silent, on the question of someone who says, no: no, I don't need to eat. I can fast.
Presumably you would fall back on what the Torah says, which is everyone needs to fast, right? And this sick person, um, is gonna fast.
DAN LIBENSON: Right? So then. So then the Gemara answers: the mishnah is incomplete and is teaching the following: In what case is this statement that he may eat only based on the advice of experts said? It is when the ill person said, I do not need to eat, but if he said, I do need to eat, and instead of two experts, there is only one who says- only one who says: that he does not need to eat. One feeds him according to his own opinion…
Mar bar Rav Ashi said: any instance -
BENAY LAPPE: Okay, let, let, let's not go to Mar bar Rav Ashi. That's a whole new move.
DAN LIBENSON: Okay. Okay.
BENAY LAPPE: Okay. So this resolution of: wait a minute, the mishnah on its face is clearly talking about one, the, the case of a man who says he or a person, a sick person who says: I need to eat on Yom Kippur. Clause one: when there are experts present; Clause two, when there are no experts present.
Now they're saying: no, no, no, no, no. You just, you know, maybe words got lost, maybe you didn't understand properly, but you actually should be reading into the mishnah, the fact that it is talking about two separate cases of testimony on the part of the sick person.
So that you know, you now, you know, you imagine rewriting the mishnah, you have to have a big, giant bracketed section explicitly saying: in a case where a person is sick bracket and says, I don't need to eat, and there are two witnesses, doctors, experts present, who also say he doesn't need to eat closed bracket. We - right?
So it's this like. We're, we're no longer chuckling. We're out and out laughing with the way we need to fill in, um, framing words to make the mishnah mean, um, what it would need to mean to allow Rabbi Yannai’s legislation to be consistent with it.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Right. Does that make sense?
DAN LIBENSON: Yeah. And then, and then the gaping hole that's now left is: What happens in the case where a person says that I need to eat, but the experts say that he doesn't need to eat? That, that in this revised understanding of the, the mishnah, what the mish-
So the, so the case that the mishnah says when a person says: I need to eat and there are no experts around, we feed him. That's explicitly stated in the mishnah. Right? Right. It's also now ex explicitly in, or implicitly stated in the mishnah that there's a case where the person says, I don't need to eat, but experts say that he does need to eat - we feed him.
And the question that that now remains is, okay. So there's this one case though, when a person says that he, uh, does need to eat and the experts say that he doesn't need to eat well, I, you know, we would probably say that because the Torah is so strong about needing to fast on Yom Kippur, and you've got this, these experts all saying that you, you, you should fast then you should fast.
BENAY LAPPE: That's really good. I never quite got that. You're a hundred percent right. You're a hundred percent right. This hyper, hyper, hyper narrowing of the first part of the mishnah to be about a case where he says he doesn't need to eat, leaves us without a teaching about when he says he does need to eat.
And we now know because of Rabbi Yannai and I, when there is a doctor who says he doesn't, we let him eat. But what if there are more doctors who say he doesn't? You're right. That's what it's doing.
DAN LIBENSON: And that's why this next part about Mar bar Rav Ashi, it's not exactly another move. It's, it's filling in that last .. gap.
BENAY LAPPE: Yes. Yeah. Yes. Great. I love that. Okay. That really helps.
DAN LIBENSON: Okay, so now, so now we've got that missing case. So we say, um, um, so we say Mar bar Rav Ashi says, oh, wait a second. Uh, but it. Um,
BENAY LAPPE: …any instance.
DAN LIBENSON: But if he said, but if he said, I do need to eat, and instead of two experts, there's only one who says that he does not eat to eat, one feeds him according to his own opinion. Mar bar Rav Ashi comes in about this case where there's more than one expert. And he says: any instance where an ill person says: I need to eat, even if there are a hundred expert doctors who say that he does not eat, need to eat, we listen to his own opinion and feed him. As it is stated: the heart knows the bitterness of its soul, from Proverbs.
BENAY LAPPE: Great. So now we have a pretty big expansion of, or an even bigger deviation, I'd say, from Torah. All right, let's keep going.
DAN LIBENSON: So the bottom, but the bottom line here is that if one, if a person says he needs to eat - whether there is no expert, one expert or a million experts there - he eats! Period. So if a person says, I need to eat, he eats. Because of this statement in Proverbs: the heart knows the bitter - what is it? - The, the heart knows the bitterness of its soul.
Uh, if the person says: I don't want to eat, then the only situation in which he doesn't eat is when there are no experts saying that he doesn't need to eat. Right.
BENAY LAPPE: Wait, let me, let me wrap my head around that.
The only, let's see if he says, I don't need to eat… the only time. No. I think if he says he doesn't need to eat, and he's alone in that.
DAN LIBENSON: Yeah. Then he, then he doesn't need to eat.
BENAY LAPPE: Doesn't need to eat,
DAN LIBENSON: but, but if there's even one expert who says that he does need to eat, then he does need to eat.
BENAY LAPPE: Right.
DAN LIBENSON: So we've, so in, so we've taken this case where, where, um, bottom line from the Torah, you, you fast on Yom Kippur. Period, end of story. To if to, to actually, if you're sick, you, you don't fast on Yom Kippur – except for this one tiny exception of whether, if you say that you don't need to eat and there's no experts around to say that you should.
BENAY LAPPE: I think that was right. But if there's one expert saying you should, you do,
DAN LIBENSON: then you, then you do.
BENAY LAPPE: Because of Rabbi Yannai - because he discussed it. Yeah. Okay, great.
So now we have this new statement of Mar bar Rav Ashi and it, you know, you could imagine the whole sugya ending there.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: But it doesn't! Because in that same pattern of here's a gigantic deviation, you, you still have to - or the Gemara is invested in showing you - how, if you need to at some point later probably - how you can justify such an enormous deviation from your Constitution. And this is maybe what we've said is it's not exactly a deviation, but because it doesn't contradict, um, it contradicts the Torah, it, there's no specific case that we're understanding the mishnah to describe or Rabbi Yannai to describe that this contradicts with – but for sure contradicts the Torah. Right?
Person says, I need to eat on, on Yom Kippur. Torah says, regardless of what you say, you have to fast. You may not eat. And here you've got how many? a hundred, a hundred doctors saying: You don't need to eat. You can do your fast. No, we listened to that person. Okay. Wow. That's big, in relation to Torah. Okay.
Where does the text go next? And we're, we're coming, we're sliding into home base here.
DAN LIBENSON: Yep.
BENAY LAPPE: Okay.
DAN LIBENSON: So, text goes next. We learned in the mishnah: if an ill person himself says that he needs to eat and there are no experts present, one feeds him according to his own opinion. That's the explicit text of the mishnah.
BENAY LAPPE: Great. That's the second clause of the mishnah. And this is brought up as a challenge to Mar bar Rav Ashi! How can Mar bar Rav Ashi say: if you say you need to eat - and there are present witnesses! not only witnesses, a hundred witnesses! Who say: no, no, no, you don't need to eat. You still get to eat?
The mishnah, second clause of the mishnah, seems very explicit: You only get to eat, if you say you need to eat and you're sick – if there are no experts present! Okay? So it's not only right. Mar bar Rav Ashi is not only contradicting Torah - he's contradicting Mishnah, because the mishnah implies that you only get to eat if there are no witnesses present. Here, there are witnesses present who explicitly say the opposite of your own testimony about yourself.
DAN LIBENSON: Right? And, and, and the Gemara goes on and says: one may infer from this that if there were, if there were experts present, no one would not feed the ill person based on his own opinion, but instead we listen to the experts. Like what you said.
So, and the Gemara rejects that interpretation and says, no, no, no, this is what the mishnah is saying: In what case is this statement, that one follows the opinion of experts, said? It is when the ill person said, I do not need to eat. However, if he said, I do need to eat, it is considered as if there were no experts there at all! We feed-
Meaning like it doesn't, like once the person says: I need to eat - we ignore, the experts get Xed outta the equation. Like they're just, they could be a hundred, but we, we don't even need to listen to them one way or the other. As long as the person says: I need to eat, we, he eats - because it stated: the heart knows the bitterness of the soul.
BENAY LAPPE: Yeah. Th this is so much more beautiful in the original because what is clear in the original is, is what the argument here is that when the mishnah has said: if there is a sick person, bracket, who says: I need to eat on Yom Kippur - and there are no experts present -we feed him as much as he needs until he says enough. Again, there are no experts present. Only then do we feed him.
What this is saying is when the mishnah is says: and there are no experts present - what the mishnah always meant to say was: anyone who is there is considered as if not an expert. In other words, there is no expertise present at all.
It's, i I it's, it's hard to do I in the Hebrew, it's, um, ain sham bekee’een klal, that, that any experts that are there are not experts, in the face of a person who says otherwise about themself.
DAN LIBENSON: Yeah, I mean, like the, the way, way it says like, if, if you, um, by, by the ver- by virtue of the fact that you disagree about, do disagree with that person, that is the proof that you're not an expert.
BENAY LAPPE: That's right. Exactly. That's exactly right.
DAN LIBENSON: At least as applied to that person.
BENAY LAPPE: Right. So I, I think it's really beautiful that the, the Talmud is willing, it's willing to, so obviously rework the intended meaning of the Mishnah, um, to, to allow and to, – to actually not only allow, but to actually be the textual proof and source of a much more person positive, self-determination positive, um, view of humanity.
And I think it's clear to the reader of the Talmud that, you know, the trick or the technique that's used to do that, um. Anyway. Well, yeah.
DAN LIBENSON: Well, so first of all, I mean, I think we'll go a little long 'cause we're just about finished with this. Um, it doesn't make sense to come back to this particular, uh, Talmud next week, but we're not quite finished on an implication, so folks who are watching and wanna end on time, you can come back and watch, you know, another 10 minutes later.
Um, I, I think that there are two pieces here. One is just to, just to look at the quote from Proverbs: lev yodeah ma’arat nafsho, uh, uh, the heart knows, uh, the bitterness of the soul. So there's this idea that right when, when you, the –
The case in which you're not an expert by virtue of the fact that you are disagreeing with the person, is when the person is suffering. In other words, if the person is saying: I'm happy, I'm good, I'm happy. You know, then an expert can come along and say: uh, well, you might feel happy, but maybe the, it's the disease talking. Maybe it's, you know, you're, you're, you have too many, uh, steroids, you know, whatever. Uh, we're gonna make a different decision.
If the person says: I'm suffering, that's when the person becomes an expert in their own self, that really no other expert can overrule –
BENAY LAPPE: that's beautiful. Yeah.
DAN LIBENSON: which is, as a principle of justice, as a principle of, of grace, of mercy, whatever you wanna call it. Of, of, of, um, equity is a, I think a beautiful principle.
It's very connected to an idea in American constitutional law, for example, that is controversial. But I mean, progressives, uh, say that basically the Constitution is there to protect minorities from the power of the majority, and therefore, con the Constitution should always be read with an eye towards the protection of minorities. And if you're trying to read the Constitution in a way that harms minorities, then by definition that's wrong! That that can't be right. That's not what a constitution is there to do.
So, for example, when we were dealing with same sex marriage issue, I was actually a law professor at that time, and I was testifying in the Minnesota State legislature for same sex marriage - or against an amendment that would be banning same sex marriage. Right?
I was trying to make the argument that - I mean, I think I did make the argument, uh, whether, uh, it would succeeded in the sense that the amendments in the pass. But I don't know that I, I was the one who persuaded - but I was making the argument that, that we don't use Constitutions in America to take away rights from people. That is just not what a Constitution is. And so if you are trying to say that the Minnesota, in that case, Constitution, uh, banned same-sex marriage, then I will say to you, by definition, that can't be right. Something like that was the argument, which I think is a beautiful argument. I think it's a right argument.
Uh, but it's an argument that I will admit is built out of penumbras and emanations, meaning it's not like the constitution says somewhere: The reason why we have this constitution today is to protect my minorities. It's our understanding of, of that, that's what constitutions do. As among other things that constitutions do.
So I, I wanna, I point all that out because I think that what we're seeing here is a principle of Jewish interpretation that basically says: a suffering person is an expert, is, is an expert in their own self - and that always prevails, or at least in this case it does. That prevails over experts claiming that they don't need the thing that they say, that they, they need whatever flows from there, we can talk about.
The other piece I just wanna point out is that it doesn't really say that in the Book of Proverbs, right? I mean, it's, in other words, this is not, this is a quotation out of context from the Book of Proverbs. So therefore, I think it's a beautiful and right principle that flows out of penumbra and emanations. It's not at all clear that the citation to a source is really the true source. And that itself is another question for Jewish interpretation and American uh, American constitutional interpretation because it's not always the case that the source cited is, is truly the source.
BENAY LAPPE: Yeah, I, I think you're right. I think this is yet another example of the way in which svara drives how we understand text, and how we develop and grow and refine our system to be a better system at creating better human beings who make the world a better place.
Um, it's the, it's the svara the sense of: you know what, we, we need a world where when people are hurting, we believe them. And you don't get to say, oh, but I didn't mean it, or, you know, how could that? – um, no, that, that, that's not. That's not the world we want - and go ahead.
DAN LIBENSON: No, and it's more than, more than that, we believe them. Because ultimately it's, I could say to somebody, Hey, I, I know that you're suffering. I, I believe you. I mean, you, you got a doctor here that says, you're not suffering. I'm gonna, I'm gonna believe you. But you're talking about not fasting on Yom Kippur, and that's like a really important thing from the Torah. So, sorry. But you'll, you'll suffer and you'll, you'll fast on you, you'll keep suffering until you know, the end of the day. Hopefully you'll be okay. At the end of the, they'll be like, no, no, no. That's not how this works.
It's like, once we believe that the person is suffering, they get to, they get to violate all kinds of rules and regulations that otherwise may be reasonable to apply to people that are not suffering. And that becomes, I think, a huge, huge exception, or not even an exception - it becomes a new principle.
And then all the law pointers that say: but it says right here in the Torah that you should be fasting on Kippur. It says right here in the Torah, you shouldn't be marrying a person of the same sex. It says right here in the Torah that you shouldn't be X, Y, and Z. It's like, whoa, whoa. Wait a second. If you're suffering, right? that, that, if you're, if you're, if for some reason you've entered into a category of, of, uh, of people, whether it's because you're sick, uh, in this case or because you have a different orientation or a different gender identity or whatever it might be, that, that – No, no, no. That you've now gone into a new category where you're suffering actually changes the law that applies to you. I think that's very huge.
BENAY LAPPE: You're absolutely right, and I wish I could have articulated as well what you just said when, gosh, 25 years ago, however, many years ago it was - when the Conservative Movement was discussing the gay quote unquote gay issue. And Joel Roth, who was the head of law committee at that time, said: I know gay people are suffering. I get it. I see it and my hands are tied. There's nothing I can do.
And what you're saying is no! That that actually, that's wrong. That's not how this worked. And, um,
DAN LIBENSON: well, and and it's what you were saying before, it's that it's exactly what you were saying.
'cause you were saying before that: this isn't the case that was bothering the, the people in the stamma’itic era, you know, when the Talmud was written down. The idea that you eat on Yom Kippur if you don't feel, if you feel, if you're not feeling well, you know, is, was probably a well established for hundreds of years principle.
What they're doing here is, is backfilling the principle that that explains what had become an accepted, you know, it's by like - in the law there are things like adverse possession where if you like live on a property that you don't own for a long enough time, you, you gain ownership of the property under certain circumstances.
It's like, you know, there are times when, when it's just things happen and the law effectively changes because it's just been the law for so long. So this was probably a case, it's like, well we all know that you don't fast on Yom Kippur when you're sick.
So now, now, but the, now we find a principle to explain it and it's ultimately this principle about, well, if it's a person who's suffering, then they're the expert in their own self. And that's gonna be the principle that we use to backfill our explanation of, uh, eating on Yom Kippur.
The question is what did they apply this principle to, that was actually live in their time? But the more important principle for us, and that's the tragedy of what you're describing with the Joel Roth, uh, interpretation - like he, the the tool was right in front of him! But he didn't see it because it was, it was in the book, uh, it was in Masechet Yoma. He thought that was about Yom Kippur!
BENAY LAPPE: That's right.
DAN LIBENSON: You know, that that's the, the, the big error is to, to imagine that a principle that is a general principle of interpretation applies only to the case in which we learned it.
And how many more other, ca how many more other situations like that are there today in Judaism and elsewhere in the law where the, the principle is actually already there. It's just that people have learned, have, have, have thought that it only applies to this most narrow of cases.
BENAY LAPPE: That's right. That's, that's why understanding - that's why having this genre misunderstanding of what the Talmud is doing is so fatal to our system, um, and to our ability to make our tradition better. Um, yeah.
DAN LIBENSON: Yeah.
BENAY LAPPE: So I I I, I think the way you describe it is very powerful, and I agree completely. And this, this idea of believing people and letting their testimony about what their experience is, um, and letting that drive policy and rules and law, I think is, is, is very, it's just crucial right now.
I mean, I'm thinking of all of the anti-racism work that we're, we're trying to do and, and part of it depends on believing the experience of Black people in this world – and even when we, like, when our ex, our experience, if, if we're a white person saying: you know what, I, I can't quite feel it, but I, I believe you. And I'm going to let your experience, um, drive the law. Not my perception of what's going on, because I am so deeply inside a, a systemic racist mindset. So,
DAN LIBENSON: yeah. And, and I, and I think, I forget if we talked about it on this show early on around, you know, around the time of the George Floyd, uh, uh, killing. And then the, the riots and that followed, I mean, the protests there were, yeah. But there was also some rioting and some, some, uh, vandalism.
And my, my take on it was: that it's not only that, of course, I believe that of the, in the suffering. It's beyond that. It's that, it's that I actually believe that the social contract doesn't apply to, in that case, African Americans because they did not benefit from it. In other words, it was, and, and so therefore, it's actually – I'm grateful to, you know, I'm grateful when somebody in that situation does, uh, doesn't vandalize because, you know, it makes more peace in society.
But do they have a right meaning? Like, do they, you know, does, do, are they actually doing something morally wrong when they, when they, uh, break the law? I don't think so. Uh. Then, then the question is, what do we do? And, and what we do is we then re remake the law together, right? I mean, that at that point we have to say, how do we, how do we, how do we sit together and remake a social compact that we are gonna all agree to?
By the way, that brings us back in some way to, I think it was the first text that we studied together, the second of the, the mountain being held over the head to the people – and saying that basically at that point they were saying that the Torah was a social contract. That doesn't apply because it was under duress. But then it, at the time of the Purim story, it was story, it was re re ratified, you know, and, and that was a, a, a wink and a funny and whatever.
But, but the bigger point is, is real, which is that at some point we did agree among ourselves to, uh, live according to this. And, and, and so it, it, it. We can talk about racism for sure in, in America, you know, and, and, and I think we, we definitely are talking about, uh, sexual orientation and, and uh, and gender identity in, in terms of Judaism as well as many, many other topics.
But I think this principle of, of: if the law is causing you to suffer, if the system is causing you to suffer, that's not what the system is there to do. And so if the system is causing you to suffer, then that means that the system isn't working for you. And it's not just about having compassion, it's about saying, and therefore it doesn't actually apply to you. Now let's sit down and try to figure out how we move ahead.
BENAY LAPPE: and that there's something wrong with the system. And the system needs needs to be That's right.
DAN LIBENSON: The system needs to be fixed, not you. That's right. Right. And that is so the opposite of what a lot of people have been taught and internalized about, you know, whether they're a bad Jew or whether somehow Judaism is, um, unable to, um, tolerate people like them.
And I, I would say that at least if we're right about this principle, then Judaism as it ought to be does - you know, Judaism as it ought to be understood, says: wait, no, no. If you're in that situation, actually, it's the system that's wrong and broken, not you.
BENAY LAPPE: And that's why the people who need to be at the table rolling up their sleeves, making Judaism better are precisely the people who have been hurt, marginalized, unseen, um, and dehumanized.
DAN LIBENSON: Yes.
BENAY LAPPE: Um,
DAN LIBENSON: and maybe just to wrap it up, I mean, I think that, but I mean, feel free to say more if you want – but like, I, it feels to me like, now let's be realistic for a minute. The, the system may not invite those folks in. So at the end of the day though, that my ch- my hope, my dream, my wish is that people can read the way we've just read this and say: We can sit down together with, you know, a coalition of the willing, right? And, and remake the system.
And it may be that those law pointers are gonna find themselves out of the system that we've made. Maybe it's a schism, maybe it's whatever. But don't let anybody tell you that that process is somehow illegitimate. That's actually the legitimate process!
The illegitimate process is the one that's, that's saying, what can I do? My hands are tied, you know? Sorry, you're suffering. That is, that is not Judaism. That's not what Judaism's supposed to be.
BENAY LAPPE: Exactly. And that's not what, what it was. It's not. That's right. Absolutely.
DAN LIBENSON: Very powerful text. Very powerful. Right. Well, uh, we'll we will, uh, continue to build on this next week with, uh, with something new. So we look forward to seeing you in a week and, uh, and that'll be an interesting day. That'll, you know, yeah, Thursday is a couple days after election day, and who knows what, what's gonna be going on.
So see you then.
BENAY LAPPE: Bye Dan.
DAN LIBENSON: Right.
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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