The Oral Talmud Episode 59: Is Dignity Greater than Torah? (Berakhot 19b)
SHOW NOTES
“It is preferable to break, violate a prohibition in the Torah, anything the Torah says don't do, you can actually go ahead and do it if by not doing it you would cause someone significant indignity or disrespect.” - Benay Lappe
Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today.
What if the most radical idea in the Talmud has been hiding in plain sight? A tiny legal principle expands into a sweeping claim: human dignity may override the Torah itself. Suddenly the conversation is no longer about funerals, ritual purity, or wool and linen. It's about whether preserving human beings matters more than preserving the rules.
But the rabbis seem nervous about their own conclusion. One generation opens the door to a breathtaking vision of dignity, while another works frantically to narrow it, qualify it, and explain it away. We follow an argument from ancient mourning rituals to modern constitutional law, asking whether Judaism's most expansive ideas survive precisely because they were never completely erased.
This week’s text: Berakhot 19b
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.
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DAN LIBENSON: This is The Oral Talmud - Episode 59: Is Dignity Greater than Torah?
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.
What if the most radical idea in the Talmud has been hiding in plain sight? A tiny legal principle expands into a sweeping claim: human dignity may override the Torah itself. Suddenly the conversation is no longer about funerals, ritual purity, or wool and linen. It's about whether preserving human beings matters more than preserving the rules.
But the rabbis seem nervous about their own conclusion. One generation opens the door to a breathtaking vision of dignity, while another works frantically to narrow it, qualify it, and explain it away. We follow an argument from ancient mourning rituals to modern constitutional law, asking whether Judaism's most expansive ideas survive precisely because they were never completely erased.
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 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.
And now, The Oral Talmud…
DAN LIBENSON: Hello, everybody, and welcome back to this week's episode of The Oral Talmud. I'm Dan Levenson, and I'm here as always with Binay Lahav. Hey,
BENAY LAPPE: Binay. Hey, Dan. How are you?
DAN LIBENSON: Good. Great to see you.
BENAY LAPPE: Good to see you, too
DAN LIBENSON: Um, so I'm really excited about where we're going with this. So this, I, I'm trying to remember if this was the first sort of like natural progression where we actually didn't like have something on the agenda, and in the middle of an episode we said, "Wait a second, this is the next text."
I think we have actually had that once or twice before. But, um, but, but, uh, we're, we're going, the text that we chose for today, which is from the Tractate Brachot, uh, page 19B, it was something that came up in our conversation last week, the last two weeks, when we were talking about that text called the quote, "The Lovesick Man," and this idea that the rabbis e- refuse to allow...
Uh, the way that I see it is the rabbis refuse to allow a woman to be used as an object to treat a man's condition, whether that condition is real or not. You know, that, um, that he thinks that he needs to, uh, do something to her, whether that's have sex, view her naked, just talk to her from behind a wall.
Whatever it is, they're not gonna allow her to be used as an, as an object for somebody else's needs without her volition.
BENAY LAPPE: Even to save his life. E-
DAN LIBENSON: even to save his life- Right ... which we've learned a few times is a principle that trumps everything or almost everything in the Torah. And, uh, so apparently, right, so there's versions of, apparently there's a principle even greater than the saving of a life, which we know in the actual laying out of it there, there are three, which is, uh, not to commit i- idolatry, not to commit adultery or sec- forbidden sexual relations, and, uh, not to, uh, kill some- murder somebody.
And so apparently there's also, and not to whatever this is, and/or we can sort of look at this as, uh, some addition other category as w- I mean, it's ba- amounts to more or less the same thing, but we can say like there's apparently this other category that also trumps, not only that trumps, you know, everything else in the Torah by implication, but by, but trumps the thing that trumps everything in the Torah, right, a- along with those three other exceptions that's so important, but yet it doesn't even seem to be written in the Torah.
BENAY LAPPE: Right. It-
DAN LIBENSON: Which is this dignity idea.
BENAY LAPPE: That's right. It might even trump the exceptions. Right.
DAN LIBENSON: Right?
BENAY LAPPE: Right. Okay.
DAN LIBENSON: Right. So, so at that point you said, "Wait a second, there is a text," uh, you know, that, that, that says that. And so what we were thinking that we were gonna do today is look briefly, relatively briefly at the, the specific text and line that popped into your mind, and, um, and then we're gonna kind of zoom out and look at it in its context, the larger, the larger, uh, stuff that's going on on that page and what the rabbis are dealing with, and how...
And, and then, and this might take us till next week also, that we might, uh, that we might also see kind of a generational shifting of openness and closeness, and there's a lot of stuff going on there that, that I think ultimately will be important in, in additional ways for what we're doing here.
BENAY LAPPE: Yeah.
DAN LIBENSON: Okay, so let's take a look first at this, at this text. And, and we should note that this, uh, that this, what's being quoted here on this page of Talmud, again, to remind you that it's Berakhot 19B, is what's called a beraita. And, uh, you want to say a little bit about just to remind what a beraita is?
BENAY LAPPE: Yeah. So a beraita is any teaching by any sage during the first post-biblical period.
That's between the years approximately 70 and 220 So this is post-destruction, and this group of sages, the early rabbis called Tannaim, uh, the first, that first era of them were considered very, very, very authoritative in this new version of Judaism called Rabbinic Judaism. And anything they said had the authority of law.
Some of what they said got gathered into the first post-biblical book, Torah 2.0, called the Mishnah, and all of that is for sure considered foundational, authoritative, and, you know, can't be overturned. And then there's other material from these sages that wasn't included in the Mishnah, we're not sure why, but is equally considered authoritative.
So a Baraita is, uh, literally it means outside in Aramaic, and it refers to any teaching of this absolutely authoritative period that is outside of the Mishnah, it wasn't included in the Mishnah. But it's j- it seems that its non-inclusion in the Mishnah does not make it any less authoritative. And when the, when the Stamma, the editor of the Talmud, pulls in a Baraita, and we only know of Baraitas because the Stamma includes them in the Talmud, um, i- it's basically to say, "Hey, this is authoritative."
So this is going to trump anything that any later, like Amora, any later rabbi said. Um, so okay, so that's a Baraita. Yeah. This is a very heavy-duty Torah truth, but not in the Talmud.
DAN LIBENSON: Yeah, and I would say it's a, it's an im- imperfect analogy because the Constitution is, in American law, more, more authoritative.
But in a way, it's a l- little bit like the Federalist Papers or something like that, something that's contemporaneous, that is written by the same people, and that, uh, you know, really carries significant weight. In, in the Jewish, in the Jewish tradition, the Baraitot are more authoritative than the Federalist Papers are in American law.
Um, so here, and, and, and by the way, in the Talmud, there's this phrase, Tashma, in English gets translated "come in here," that is used to introduce a piece of material from that generation. It could be the Mishnah itself, it could be Baraita, right?
BENAY LAPPE: Typically, it's a Baraita.
DAN LIBENSON: Okay.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: Um, so here it says, uh, "Come in here," and here's the quote, "Great is human dignity, as it overrides a prohibition in the Torah."
So human dignity is so important that it overrides any of the prohibitions in the Torah.
BENAY LAPPE: Okay, so let's unpack that a bit. Um, first of all, human dignity. Let's look at the term used in Hebrew for human dignity. It's kivod habriot. So we know kivod is a form of the word kavod, honor, like kibud av va'em, honor of one's mother and father, kavod harav, honor to one's family.
This is k- kivod habriot, honor due to briot. And briot are things that have been bared, meaning created, and that's the word used to indicate created by God. So I think there's a suggestion here in the word briot that the honor due to creatures created thing- things created by God is that maybe the honor due to them, us, is precisely because we were created by God and not due to any personal, professional standing- Mm-hmm
or status.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So it's not because someone's a rav that they get honor. It's not because they're, they're elderly. It's not because of any particular thing. It's just because you're a created being. God made you, and I think by virtue of that, you're due honor. So that's, that's a, a, a big statement, I think.
And- Okay, so the honor due to human beings just because God created us, and I think there's that implication that we're created in God's image and are valuable and worthy of dignity by virtue of that. Okay.
DAN LIBENSON: And, and here it's translated as human dignity.
BENAY LAPPE: Yeah.
DAN LIBENSON: Is that sort of because it's used as a term of art for human, or in principle could we translate that as perhaps the dignity of all created beings, including animals or even the Earth?
BENAY LAPPE: I th- abso- 100... I think for sure. It's commonly used to refer to people generally, like mankind. Mm-hmm. It's like mankind. But technically it means all created things, so I think you're right. It, it could be a, a, a category that we eventually expand to-
DAN LIBENSON: Yeah. I think, yeah. Right, because I just, I guess I want to...
I mean, I, there's, there's other, there's other terms of art that we know in English, you know, whatever, that sort of don't mean what the words mean. Uh, and we- they've come to mean a term of art, but you could go back and say, "Well, uh, we've got a hook here." And, and the rabbis have certainly hung their hats on much less than- Sure, sure
the actual meaning of a word. So the actual meaning of the term here is the honor due to those, those that are created. Exactly. Uh, the creations, whatever those may be.
BENAY LAPPE: Creations. Good. Yeah. Okay. So this, this baraita is saying that so important, we are so concerned with human dignity that we, that if human dignity is on the line-
It is preferable to break, violate a prohibition in the Torah, a don't do. Any- anything the Torah says don't do, you can actually go ahead and do it- Mm-hmm ... if by not doing it, in other words, following the Torah's prohibition, you would cause someone significant indignity or disrespect.
DAN LIBENSON: Right. And we actually have a Rashi for this.
And Rashi, I always g- is it 11th century Rashi lived?
BENAY LAPPE: Yeah. Mm-hmm.
DAN LIBENSON: Okay. Um, so, uh, you know, so it's a commentary from 500 years, well, fi- more than 500 years after the baraita would've been stated, but let's say 500 years or so after the Talmud, uh, would've been written. And, um, so, you know, take, take it, take it what it is, but it's, uh, the traditional, traditionally the most significant commentary.
So what Rashi says here is, "This is what you should think. All case- all cases of do not do is what was meant." So just what you said, I mean, just that, that it's everything, everything in the Torah that kind of is thou shalt not, whether that's stated explicitly or not, you know, but anything that the Torah says you shouldn't do, you actually can do if, if, if the opposite, uh, action would've caused, uh, harm to human dignity.
BENAY LAPPE: Right. So Rashi's bringing down the traditional understanding of the phrase don't do, and I think the reason Rashi goes to the trouble to put a sharp point on the fact that don't do means every single one of the don't dos, is because a person could make the case that don't do refers to only one particular don't do, or only some of the don't dos.
Mm-hmm. And Rashi's saying, "No, no. When that baraita says human dignity overrides do not do, it means every single do not do in the Torah."
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So that's the given of what this baraita means. That's on the table.
DAN LIBENSON: All, all, mean, uh, means all. Yeah. Yeah,
BENAY LAPPE: exactly.
DAN LIBENSON: Now, now when we say, like, how do you understand- But, you know
BENAY LAPPE: what?
I, I'm not sure if, uh, let me look at the baraita The, the actual Beraita doesn't say the word all.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: That's what Rashi's making clear. The Beraita says, "So great, uh, , so great is human dignity, , that it overturns, pushes off- Yeah ... abrogates, supersedes do not do that's in the Torah." And Rashi says, "Every single do not do."
DAN LIBENSON: 'Cause you, you could read that to say it, it overrides a particular do not do. That's right. We just aren't sure which one. It doesn't say which one. And then the debate would be, well, which one is it that it overrides? And, and, and Rashi's saying that's not the right way to read it. You read it as all, as the do not dos.
All the, all- Right. Right
BENAY LAPPE: Uh-huh. It, and, and I just wanna say how shock... I, we have to point out how shocking this is because if you go back to the scene in Nita's attic where the rabbis decide that you can violate any law in the Torah with three exceptions, murder being one of them, right?
DAN LIBENSON: Mm-hmm. Uh,
BENAY LAPPE: in order to preserve a life.
This is, this is no exceptions. Right. There are no carve our- carve outs here. Yeah. It's not, "But of course, don't murder an innocent pers-..." This is anything the Torah says not to do, you actually can do and must do rather than violate the dignity of a person.
DAN LIBENSON: Although, I- Yes ... I would, I would raise a question about, like, are they serious about that?
Because, for example, do not murder is one of the things, one of the do not dos. And would the implication here be that you should murder somebody if it's preserving of the dignity of somebody? You know, it's-
BENAY LAPPE: I'm not sure. Maybe we're supposed to know the Nita's attic teaching-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: and know that those exceptions apply.
I'm, I'm not s- I'm honestly not sure. It's h- it is hard to imagine.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It could be this, that this is just a hyperbolic statement and wasn't ever meant to be taken literally. It's hard to imagine the rabbis really wanting us to in fact murder an innocent person rather than, you know, shame someone.
Mm-hmm. I'd s- maybe a case could be made that this doesn't refer to a specific individual, but mankind, humankind generally. And if you're going to s- somehow vi- I don't... I'm not sure. Yeah. I'm not sure. I think it's a good question.
DAN LIBENSON: It, it's interesting that Rashi doesn't pick up on that question. You know, he, he...
You would think that Rashi might have said, "By this we mean all do not dos except of course the three exceptions for the..." You know, but he doesn't.
BENAY LAPPE: A- and we don't have any history in the Gemara of anyone pushing back on- Well, we do. Mm-hmm. So that's what we're gonna see today.
DAN LIBENSON: Uh-huh. Right. So- Okay ... um, the other question that I had, uh, whether you understand it this way, like, when it says that it overcomes any do not do, what about the, the you should do?
You know, the positive commandments, like y- you know, you should put on tefillin, uh, if you are praying. I- Uh, you know, does that mean that if, you know, it would cause harm to dignity of somebody if you, if you, uh, put on tefillin, you should do it anyway? Like, I'm not sure. That doesn't seem right. I,
BENAY LAPPE: I think the you can violate the dos is a from you can violate- Right
the don'ts. In other words, violating a don't do... And this, that, that issue's gonna come up in the Gemara today, so we should, we should maybe get out some vocabulary on that now.
DAN LIBENSON: Okay.
BENAY LAPPE: Violating a don't do is a much more serious transgression than failing to do a positive commandment. Failing to do something that you're commanded to do is a passive, less severe transgression.
And these two kinds of transgressions, actively violating, doing something that you're not supposed to do, and failing to do something, they have ca- they have names, categories. So the less severe one is called Sit and don't do. Uh, let's say the obligation is to, uh, light Shabbos candles. If you don't, you've sit, y- you've sat there and not lit the Shabbat candles.
Okay, you've transgressed the commandment to violate Shabbat candles. It, but it's a less severe violation than what's called a Get up and do. Get up and do is when you got up and actively did something that you were forbidden to do. Murder is an example of That kind of active transgression is considered much worse.
Mm-hmm. So if the much worse, more severe transgression is permitted to avoid violating someone's dignity, I think all the more so the implication is that a passive failure to actively fulfill a mitzvah is also permitted.
DAN LIBENSON: So, so then by implication, the reading of this britah is essentially great is human dignity as it overrides anything in the Torah.
BENAY LAPPE: That's right.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: That's right. That's a good point, and I think it specifies to foreclose the possibility that someone reading or hearing you can violate anything in the Torah, they'll go, "Oh, certainly that only refers to- That don't sit and, and passively don't do things. But to s- davka specify the "" is to say even the most severe-
DAN LIBENSON: Mm-hmm
BENAY LAPPE: active transgressions- Okay ... are permitted rather than... Okay.
DAN LIBENSON: Okay, so h- having established this as the kind of fulcrum of this discussion, we wanna then now sort of zoom back to the beginning, see it in its context, and then, and then talk about the implications of whether this really is the law at the end of the day or the, you know, I shouldn't say the law, the tradition, whether the, the, the weight of the tradition ultimately stays with this Brita or isn't sure or is somewhere else, and what do we make of that?
I mean, these are all the questions that will come up. But what we thought we would do is first kind of look at this in the context of this much larger, uh, this much larger section in the Talmud, and then, um, and then again, it may, may be today and maybe next week that we'll really have time to dig into the implications.
Yeah. So-
BENAY LAPPE: It, it... And let's not forget when we get to implications or at some point to flesh out some examples of what a violation of human dignity might look like, and that's a topic that they get into as well. In other words, does it have to involve a person's awareness that they've been shamed? You know, can a sleeping person be shamed?
Mm. What about a dead person? They say actually the, the dead body, um, k- y- you, you can shame the dead body. Obviously, you're not shaming a dead body, you're shaming th- the, you know, standards of human conduct. So it's, it, it doesn't require even the experience of embarrassment.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: It's a much bigger concept, but we, we should flesh out some examples at some point.
DAN LIBENSON: Yeah. And just as a reminder, right? The example that brought us here, which isn't talked about in this text, but the example that brought us here was that idea that a woman could be required even to speak with a man from behind a fence in order to cure his, you know, deadly still don't know what the deadly illness is that he, that he has, but you know, uh, anyway.
So, um, okay. So, so let's, let's start. Okay. So the, um- So there's, so the, we don't have, we didn't bring the, the specific Mishnah here, but they're talking about a Mishnah that sa- that's talking about
BENAY LAPPE: a funeral. A,
DAN LIBENSON: that, that
BENAY LAPPE: occurred a few pages before.
DAN LIBENSON: Right.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: So it's talking about basically, as I understand it, it's a funeral, and there was a practice where, and I, I guess there still, I don't know exactly if we still do this exactly this way, but there's sort of people would line up in a row and the, the dead body, the shrouded body, I guess, would be br- brought through in between these, these rows of people.
BENAY LAPPE: Yeah. And, you know, we, we, many people still follow this custom of lining up in, you know, the comforters line up in two rows between the hearse and the burial site- Mm-hmm ... both when the mourners and the deceased go to the burial site, and do the same thing again, line up in this facing one another kind of two se- two rows when the mourners leave the cemetery.
But I have a feeling that there was an additional use of this two row situation because Rashi says that the mourners would sit in the center. So I don't think it's t- the two rows through which the mourners pass, o- only through- Mm-hmm ... which the mourners pass. Maybe in the shiva house there was some arrangement like this, because obviously going from, you know, the road to the burial site, you're not gonna be sitting.
Mm-hmm. But Rashi says they were sitting, so not sure.
DAN LIBENSON: So in any event, there was this practice that was, it was, my understanding of the connection to dignity here is that the, the idea was this is a way of honoring the dead person in a very important way.
BENAY LAPPE: Yeah. A- and I'm not sure if it's only honoring the dead person or it's honoring of the mourners.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: I, I, I have this feel- there's a debate about what really is the, what's going on between the people in the rows who are facing the mourners and the, and the mourners. Like, what, what mitzvah are they really being, e- engaging in here? Are they comforting? So that's gonna be a topic, but-
DAN LIBENSON: Mm-hmm So, so, but it's, it's basically seen that, that they're there for the, for someone else.
They're there to, to be, to be affirming of the dignity of someone else, whether it's the dead person or the mourners. And the issue is that, oh, the, the time has come. You know, look to the clock. Look at the, look at the clock. It's time to say the Shema. And, uh, and then it's like they're in the middle of this thing, but, oh, the time to say the Shema has come.
I mean, that's from the Torah, so we better, we better take a pause here, and let's everybody say the Shema. And, you know, that would potentially not be a very welcome event for the mourners, that all of a sudden, you know, they're not this... It's not, the funeral isn't the center of what's going on. All of a sudden everybody's taking a break for the Shema, which you would think maybe that is how it should be because God is more important, and, and the time has come.
And so let's all take a break, and then we'll go back to the funeral. But the, the Mishnah says that no, actually, the people who are in these rows are not, uh, required to say the Shema that day or at that time when the funeral's happening or when-
BENAY LAPPE: Well, it turns out, as we're gonna see, some of them are actually required to peel off and say their Shema- Uh-huh
and some are not. And the question is, who's required and why are they required, and who's not required And why are they not required to say the Shema? And so, so this is the beginning of our entry into kind of the conflict of laws- Mm-hmm ... and values.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Right? We have a value of doing what the Torah says to do, say the Shema, and we have a conf- a- and that's in conflict with comforting the mourners and the dignity of the mourners, right?
Because it would be an affront to their dignity, I think this is what's being hinted at, to, you know, here come the mourners and you're like, "Sorry," and turning your back and going over to the other side of the field and saying your Shema. Okay.
DAN LIBENSON: Right. I guess just parenthetically, for those who don't know where the wink was in what you said, it's-
not really clear that the Torah says that you should say the Shema, but-
BENAY LAPPE: Exactly ...
DAN LIBENSON: but it might be, and the rabbis think, say that it is, so- That's right ... we'll, we'll go with that. Um,
BENAY LAPPE: okay. So- Exactly. You interpreted the wink correctly.
DAN LIBENSON: So the sages taught this works more in the Tosefta. So here again is another case of a Brita.
So the Mishnah says they're exempt from the Shema, but the, but there was ano- other, uh, material from the contemporaneous time that says some are exempt and some aren't, like you said. So the consolers standing in a row from which one sees inside the area where the mourners are passing are exempt. So the, so i- the, the inside layer don't, don't have to say the Shema, because those are the people that the mourners are seeing, and they would be upset if those people peel off and said the Shema.
So they don't have to say the Shema. And those standing in a row from which one does not see inside are obligated. So if you're standing second row, third row, you know, maybe further back where the mourners really can't even see you, then, th- then, then they're not gonna notice. And in that case, not only may you, but you must, as I...
right? The, that if the time for the Shema comes, you need to say the Shema. Uh, so that would suggest that the, that like, like you were saying, that the, the, the dignity being concerned about here is the mourners, that their sense of whether you're paying full attention to them or not. And if they can't see you, then, then they're not gonna have those feelings of that you're not caring about them and, and then you should say the Shema.
BENAY LAPPE: I think that's what's going on.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And we're not the only ones who are not quite sure what's going on. Because here comes Rabbi Yehuda and he says, "Wait a minute. I, I think what's going on is something altogether different from the question of whether you're- You know, comforting the mourners in a dignified way.
Uh, let's see what he says.
DAN LIBENSON: Uh-huh. Right. So Rabbi Yehuda says, "The consoler standing in the row," any row, I guess, right, "who come on account of the bereaved are exempt." So if you're there, you know, because you actually cared about the person who died, then you don't have to say the Shema. Uh, but if you're there, uh, out of curiosity, uh, and then, then you do have to.
If you're just there 'cause, you know, something was going on and you wanted to be part of the crowd, uh... And by the way, like, we can laugh about it, but I mean, if somebody prominent dies, there's a lot of people that are there for that reason, to see the funeral cortege pass by, right? So, um, they, they are there not because they're so, uh, so, so upset about the person who died.
They're just there because it's, uh, happening. They have to, they have to say the Shema, according to Rabbi Yehuda. E-
BENAY LAPPE: exactly. And, and what this brought to mind for me is something that they don't say explicitly, but I remember learning the concept that Mm-hmm ... one who's engaged in a mitzvah is exempt from some other mitzvah whose time might have come precisely at that moment.
So it seems that w- Rabbi Yehuda is saying is, "If you're actually there to do the mitzvah of nichum aveilim, whether the mourners see you or not- Mm-hmm ... and are actually aware of you, uh, or not, you're mitzvah. You're engaged in a mitzvah. Mm-hmm. If you're engaged in a mitzvah, that mitzvah, you don't have to go off and do the mitzvah of Shema.
But if you're only there out of curiosity, and presumably whether or not the mourners actually see you peel off or whatever, if you're not actually engaged in a mitzvah, because going to a funeral out of curiosity is not a mitzvah- Uh, although I wanna put a stick in on that because, you know, accompanying the dead, there, there, it, that's a, is a mitzvah, but somehow Rabbi Yehuda is kind of disparaging someone who's coming out of curiosity.
That person is, according to Rabbi Yehuda, not engaged in a mitzvah and should go off and say his Shema.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Okay.
DAN LIBENSON: Yeah, and, and, and that, that means that, like, just if you're in the back row and the mourners can't see you, you don't have to say the Shema if you're there for the, the, for the, to, the bereaved people or the dead person or whatever, if you're there for the mitzvah.
If you're right in front of the mourner and they, they're right next to them, but you're there out of curiosity, you actually do have to peel off and say the Shema, meaning that they might say, "Oh, that's weird. Why is this person just like..." You know, that, that might be upsetting to the mourners. According to Rabbi Yehuda, that's not the issue.
So, so, you know, again, who's, like we were talking about, whose dignity are we talking about here? It would seem that the dignity in question is the dignity of the dead person because that's definitive. Uh, it might be not about dignity at all, but like you say, about the mitzvah. And but, but if it's about anybody's dignity, it's about the dignity of the dead person because that's gonna be the definition of whether or not you should stay and not say Shema.
Uh, whereas the, the earlier, uh, point of view of the rabbis was more about the, apparently, was more about the bereaved people, the mourners, because it was really a question of whether they see you or not.
BENAY LAPPE: That's right. And this way of doing law is very traditionally Jewish, which is instead of having these clear statements, is that called epideictic law?
DAN LIBENSON: I don't know.
BENAY LAPPE: Okay. Uh, clear statements of rules, we have cases from which we extrapolate rules and principles. So here's a- Mm-hmm ...
DAN LIBENSON: we,
BENAY LAPPE: we have a case with a ruling, and we have to figure out what's going on there, and from that, we can extract a rule about- dignity mitzvahs. Okay.
DAN LIBENSON: Okay, so from that, this basic case, and, and this is, uh, the, the, the Gemara goes on to talk about other cases where there is some kind of conflict between dignity and honor, that kind of thing, and some more explicit or more, more accepted law or practice.
Uh-
BENAY LAPPE: Yeah. It, I never, I typically don't like the kind of interstitial explanations in, in the translations. This one I like.
DAN LIBENSON: Yeah, that's why I left it.
BENAY LAPPE: Yeah, the Gemara expands the discussion to raise the general question: To what degree does preserving human dignity take precedence over mitzvot enumerated in the Torah?
That is exactly what's happening, and that shift is not obvious because it's such a, a detailed, uh, set of moves that it, it's easy to miss what's really going on in this next section of Talmud. Okay.
DAN LIBENSON: Right. Although, there's a piece here, so the, the first person quoted is Rav Yehuda, who was the person who just said, right, that you should peel off and say Shema even if the mourners can see you.
So maybe, maybe he's not- Oh, I didn't
BENAY LAPPE: even catch that ...
DAN LIBENSON: yeah, so maybe he's not so, so focused on dignity at the end of- Maybe that's not really his thing because here, too, he takes a kind of a- Right ... stricter position. Right? Um, so Rav Yehuda said that Rav said, "One who discovers diverse kinds, kilayim," that is a primitive mixture of wool and linen, "in his garments," so the Torah says you're not supposed to have garments that mix wool and linen, and-
BENAY LAPPE: And this i- this for sure is a written in the Torah in black and white prohibition.
DAN LIBENSON: Right. And I just kind of imagine, like, this person's walking in the marketplace, like, picking at his coat. All of a sudden he, like, notices, like, a piece of wool, wool comes out. He thought it was a linen ja- You know, but, and then he's like, "Oh, my God, what am I supposed to do? You know, my whole outfit is, is, uh, this forbidden kilayim," you know, right?
BENAY LAPPE: Yeah, yeah. And don't picture a jacket. Picture some sort of a tunic-
DAN LIBENSON: Right, right ...
BENAY LAPPE: underneath which he's naked.
DAN LIBENSON: Right.
BENAY LAPPE: I think that's the-
DAN LIBENSON: Right ...
BENAY LAPPE: the issue here.
DAN LIBENSON: Yeah.
BENAY LAPPE: Okay.
DAN LIBENSON: So, um, right. So he's, he's, y- yeah, right. This is the ancient times. They're wearing, like, a long, you know, tunic, g- gown, c- whatever you call that.
Um, okay, so, uh, so he must, if he finds all of a sudden that he's wearing kilayim, he must remove it even in the public marketplace, meaning, like you say, like, he's gonna be naked in the marketplace. That's obviously undignified.
BENAY LAPPE: E- exactly. So all of a sudden he discovers he's violating the Torah, explicitly a black and white prohibition.
That's- He's, he's doing a don't do.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: That's bad.
DAN LIBENSON: Right. And-
BENAY LAPPE: And Ravi Huda says, "He's gotta take off... He's gotta stop that right now-
DAN LIBENSON: Right ...
BENAY LAPPE: even at the expense of shaming himself." Even if he's in public, he's in the middle of the shook, the middle of the marketplace, yes, better to shame himself than violate the Torah.
DAN LIBENSON: Well, because also there's a, there's a, the moment that you know that you're doing it, it shifts from a accident to a intentional violation, right? And the, the, the consequences for an intentional violation are more severe, and, and also the, just the, the, the prohibition is more severe if you know that you're doing it.
And as soon as you realize that your clothes have this forbidden mixture, you know that you're doing it. So, so there, it's not just like, you know, you could think, you say, "Well, look, I had it on all day. I'll just get home and take it off." It's like, no, no, actually, like, like, it's not that the extra time doesn't matter.
It actually shifts the nature of the prohibition once you know that it's happening.
BENAY LAPPE: That's right. And everyone, you know, at home, or everyone reading this text, who knows that beraita should be going, "Huh, that's surprising," because don't we have this beraita that says, "No, you can violate any don't do-
DAN LIBENSON: Uh-huh
BENAY LAPPE: to not shame someone, including yourself maybe."
DAN LIBENSON: Uh-huh. Uh-huh. So, uh, o- so, so Ravi Huda says he gotta strip it off right, right there. And what is the reason the, the Talmud asks? Uh, or, and he says, and his reason that, that he gave or would've given is to quote from Proverbs that there's a particular statement, "There's neither wisdom nor understanding, nor counsel against the Lord."
The implication being, you know, and, and we, in the sheet we have the Proverbs, I don't think we have to look at it there. I, you know, again, as always, it's pretty much out of context. But the, the basic idea here is that, um, like, there's nothing that you in your own human thinking can do to, to trump what something that God has said explicitly.
And so even if you think, "Oh, it's, you know, I could, it's dignity, or I can wait till I get home," and whatever, there's no logic that you're gonna be able to use, right? That's how I understand it. And, and what God said, if God said it, it said it, and you just gotta do it.
BENAY LAPPE: Yeah. Frankly, I, I still haven't wrapped my head around how this proof text works.
It, it's just screamingly- Obtuse, obscure. It's clearly not the pshat, not that that impugns any proof. All proofs using verses from Tanakh are taking the verse out of context, twisting it. But this one is r- I, I don't even know. I, I, I, I ca- I don't quite get it. The, ag- There is neither wisdom, nor understanding, nor counsel against the Lord.
In other words Compared to violating God to, mm, nothing, n- nothing, nothing, no logic. I don't ... It's, it's hard for me to hold my hand here. Ein chochma v'ein tevunah v'ein eitzah l'neged Hashem. None of these other things Wisdom, understanding, counsel should be held against God or, or held to, to bear when it- if that causes you to go against God.
DAN LIBENSON: I mean, I, I just read it as, like, there's no, there's no human wisdom.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: There's no, there's nothing- Uh-huh ... there's no, no logic. You can't logic your way out. By the way, this is, like, also a kind of a potentially, uh, I, I wouldn't make too much out of this, but this is, this is a little bit of a affirmation I think of how you understand the word svara as being not just about, it's not about your thinking.
It's not about logic. Svara is, is this level of moral reasoning that's actually, um, Torah-like. So they, they're not actually using the word svara here. That they're, they're quoting something in, in Hebrew, so svara is an Aramaic word, but they're not following up on it with an Aramaic explanation that they're talking about, quote, "svara" here.
They're, they're talking about... So I, so I think that what they're talking about is, like, basic human thinking, logic. You know, the, the kind of... They're not, they're saying like, "Look, you could obviously, it would be easy to make an argument that if you're gonna be naked in the marketplace- Mm ... like, that's not, that's not dignified.
That's not, that's not, you know, that would be shaming. There's something in the Torah that talks about, you know, shaming. You shouldn't shame, shouldn't wipe people's face. So there's so many ways that you could, like, logic your way through this. And they say, "Well, I, I..." You know, but no, if there's a direct explicit command from God, then no human, no human thinking, logic is, it can, can overwhelm that.
Uh, this is a quote from Proverbs. Now, the question is, right, the rabbis misquote all the time to make something, to soften something in the Torah. You know, here there's a kind of a misquote to harden something from the Torah. It's, it's a little bit unusual in, in that regard, uh, which also might raise this question of, like, at the end of the day where do they stand?
But, um, but that, I don't know. That, that's how I, I read it.
BENAY LAPPE: Yeah.
DAN LIBENSON: That's how it
BENAY LAPPE: makes sense to me. And so I, I'm noticing a, a couple of things. One is that the verse isn't being offered by Rav
DAN LIBENSON: Yehuda. Mm.
BENAY LAPPE: Um, or Rav. Rav Yehuda is the student of Rav, and he is teaching this teaching in the name of his teacher.
He's saying, "My teacher, Rav, said this thing." And he, Rav Yehuda, doesn't put forth a proof text. This is the stama, right? It's, the proof text is being introduced with the words, "My tama." This is Aramaic, unattributed Aramaic always indicates it's the editor speaking. Uh-huh. So the editor, a much later person than Rav Yehuda or Rav, right?
Like, by-
for centuries or so, is now adding, well, why is that? W- what proof does Rav Yehuda have, or Rav have, that this guy should peel off his tunic in the middle of the shuk rather than violate the Torah by wearing wool and linen mixed together? And it's the Stamma who offers this really forced read on this verse.
A- and, you know, I'm kind of reading it through my David Kramer, my teacher, lens. And, and I'm wondering whether we're meant, as the sort of sophisticated reader, we're meant to see that there's no way that this idea that you should prioritize Torah over dignity-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: really has a basis.
DAN LIBENSON: Uh-huh. Uh-huh. Uh-huh.
BENAY LAPPE: You know what I mean? Yep. It's like, it's, it's the wink, it's the showing just how unsubstantiated such a p- a- and maybe un, um, sort of un-Jewish, even. Un... Just, like, th- that, that isn't what the Torah wants us to do. I'm, I'm not sure.
DAN LIBENSON: Mm-hmm. Well, and then there's sort of like an ex- explanation that's actually in Hebrew, so it's a question of, like, where is this from exactly?
But- Mm ... it says, you know, so we have this quote from Proverbs, and what the, the takeaway from that is that any place where there is hilul Hashem, so actually in the translation it said something like desecration of God's name or something, which technically may be. But it really, it's a, it's, it's more like somehow making God undignified, you know?
Or s- something like that, right? Mm. That, that God's dignity, uh, you know, if it's gonna be something that somehow makes, uh, takes away God's dignity, then we're not going to do that in order to preserve, and what it says here, is the dignity of the teacher, right? So, so that, you know, that kind of... The way I read that is, like, you know, yeah, human dignity's really important, but it also has to be weighed against God's dignity.
And in a place where God's dignity would be called into question, then we're gonna have God's dignity trump human dignity. But if not, then we'll have human dignity trump God's dignity. What are those cases? You know, and somehow the, the question is, like, maybe this, maybe this is kind of, uh, one of those cases, because somehow this, this, uh, prohibited mixture of wool and linen is, is so clearly stated in the Torah that, you know, to violate it would be clearly to make God undignified.
I don't know, you know, but that's kind of some- something like that.
BENAY LAPPE: Something like that. And now I'm wondering if there's maybe a kal vachomer fr- meaning a, a deduction that we can easily make from the typical interpretation of that verse being-
Prefer, it's preferable to even shame a teacher rather than God Mm. So, uh, if you can shame a teacher, all the more so is it okay to shame a, quote-unquote, "ordinary human being." Maybe that's it. It's funny. It's, I, I'm not quite sure I have it, but it's a, this is a very weird position that we i- That we sh- it's, yeah.
But okay.
DAN LIBENSON: Yeah.
BENAY LAPPE: That's, that's what's on the table.
DAN LIBENSON: But it, but, but-
BENAY LAPPE: And, yeah ...
DAN LIBENSON: but at the end of the day, going back to the initial case, right, 'cause it's Rav Yehuda, right, that, that at least the Talmud is trying to sort of set this up that, that the rabbis thought that it was about the sort of, uh, dignity of the m- the mourners and, and their feelings.
Rav Yehuda said that it was really just about the dead person. And, you know, a, a dead person is, is less, uh, you know, it's obviously not seeing the, the, the people in the same way. You know, and, and then he has, he has this, like, hard-edged principle that says, right, we're, we're, we're gonna be very careful with dignity.
Uh, and at the very least, the way that I look at this, the very... I mean, or one way to look at this, at the very least, like, you know, we know the dead person isn't really, you know, so, so concerned about those... They can't see anybody, let's say. You know, so we're gonna go with this, this harder principle that says, uh, you know, we're, we're going to, um, uh, w- we're gonna take this, this, this idea s- seriously that God's dignity is more important than human dignity, and then we're gonna look at these other cases to see which is it.
BENAY LAPPE: Well, I, I don't know. I'm not sure I agree with you about Rav Yehuda because he, uh, he says explicitly, those who come for the mourner, those who come.
So I don't, I don't think Rav Yehuda's talking about the dead body. I think he's talking about the mourners also.
DAN LIBENSON: Okay.
BENAY LAPPE: All
DAN LIBENSON: right.
BENAY LAPPE: Anyway.
DAN LIBENSON: So anyway, let's, let's move for- Okay So now, again, a little interstitial thing that I thought was helpful. The Gemara cites several sources to challenge this principle, right?
So, so now we've got, we've got that hard principle, and now the Gemara's saying, "But wait a second. We have these cases where it seems like there are things that are laws that we violate, uh, you know, for dignity." So, so you say- Also- ... that there's not- nothing that, the Torah says that, you know, that, that dignity should...
You know, that, that's too, that's too strong. We don't, we know that there are cases where you do.
BENAY LAPPE: Great. So now, you know, eight inches of Gemara, and that's a lot, are gonna be spent going, "Whoa, whoa, whoa. Wait a minute, wait a minute," to Rav Yehuda's statement about shame someone, yourself or someone else, rather than violate the Torah.
And now the Gemara's gonna go one after the other of cases that contradict that idea. Wait a minute, wait a minute, wait a minute, wait a minute. Okay.
DAN LIBENSON: Okay, so again, another Brita is brought in. Uh, and this, and, and this is the, this is the s- the, the story. Uh, so they bur- after they buried the deceased and returned, so- They go to this funeral, I mean, they go to the burial, they bury the body, and now they're on their way back from the cemetery.
BENAY LAPPE: Right.
DAN LIBENSON: And, uh, on the way back there are two paths before them, one ritually pure and one ritually impure. In other words, that the ritually pure one means that they know that there aren't any dead bodies on that path, and so you're safe to walk through it and not worry that you're gonna become impure through contact with a dead body, which is a very severe kind of, uh, impurity.
And another one that, that they're, that they know that there are dead bodies there, and that you, you are gonna become impure if you go down that path.
BENAY LAPPE: Okay. And I think the issue here is that there's an assumption that there would be Kohanim. Mm-hmm. Priests. People, priests in the crowd, and it is really for the Kohanim that there is a serious concern over becoming impurified because of contact with a dead body.
It's forbidden for them to become impurified. Those of us who are not Kohanim, it's not forbidden. You know, we m- many of us probably know about the pitcher of water that sits outside of the shiva house. And when you come from the cemetery, you rinse your hands ritually to rid yourself of, of that impurity.
It, it's, it's not a big deal- Mm-hmm ... to become ritually impure because of a dead body if you're not a Kohan. But if you are a Kohan, it's, it's a very serious Torah violation. Okay. Mm-hmm. So I think this is addressed to the Kohanim in the crowd, but all right.
DAN LIBENSON: So if the mourner comes on the pure path, they come with him on the pure path.
So they are following the, the central mourner here, or mourners. Mm-hmm. And that person is just walking home from the cemetery, and I imagine not thinking too much about which path they're taking. And if they happen to go down the path that, that they, uh, the priests know is going to cause their impurity, nevertheless they follow him on that path.
That's about the mourner's dignity.
BENAY LAPPE: Right. But we're still on the first part. If the mourner goes on the pure path, everyone follows the mourner.
DAN LIBENSON: Oh, if the mourner comes on the pure path, the, right, they follow him on the pure path. And if he goes on the impure path, they accompany him on the impure path in order to show him respect.
BENAY LAPPE: Right. Even if, even if you're a Kohan and you're going to violate the Torah by respectfully following that mourner down that path. So there's a case that surely seems to contradict Rav Yehuda, let's call it, let's call that Rav's position, 'cause Rav Yehuda's saying it in the name of Rav. That contradicts Rav's statement that, oh, no, no, no, never violate the Torah, um- Even if you're going to shame someone.
Better to, better to shame them rather than violate the Torah. Wait, this case doesn't follow that. This case is saying honor someone even if it causes you to violate the Torah. All right.
DAN LIBENSON: Right. And, and this case is from a Brita, which is more authoritative than Rav. It's earlier than Rav, so we know that if this is a case that, that is not, uh, consonant with his, uh, point of view, that, that he must be wrong, not, not this earlier case, which is more authoritative.
BENAY LAPPE: That's right. Rav is an Amora. Even though he's in the swing generation between Tannaim and Amoraim, he's still an Amora, and this Brita- A Beraita held up against a, an M or a TG, the Beraita always wins. That's the rule of the game. Okay.
DAN LIBENSON: All right. So, so the Talmud then asks, well, why? Why, you know, let, why not let the, why not let us say here too that there is neither wisdom nor understanding against the Lord, that line from Proverbs, that, that the dignity of God right here, the, the idea that the priest shouldn't become impurified, that that should trump the dignity of the mourner.
Right. Well- And the priest sh- shouldn't go on that path ...
BENAY LAPPE: That's right. Why does the Beraita say the priest should defile himself? That's a violation of the Torah. Uh-huh. Great.
DAN LIBENSON: So then Rabbi Abba explains that, so he's trying to limit this case. He's saying, "No, no, this is a very particular case." Now, it's not, it's not that you always follow the, the mourner on any path.
It's just that- ... if there is a cer- if there is a path through an area where there's uncertainty about whether or not there's dead bodies, you know, buried under the, the path, that's called a Beis Ha'az. So if you, if you are going there, then you can follow. So it's not that if you know that it's impure, then you cannot, you know, should not follow.
But if you, uh, aren't sure if it's a questionable case, then, then you should follow because that prohibition, the idea that a, a priest, I guess, shouldn't go on a Beis Ha'az, a questionable, questionably impure road, that's only a rabbinic prohibition. That's, you know, that idea of the fence around the law that makes sure that nobody accidentally violates it.
So we're gonna say even if you're not sure, you can't go 'cause then we'll be 100% sure that the priests will never be impurified. That's only a rabbinic law. And, uh, and so we're saying, so what, what, um, what the Beraita is saying is that you can violate a rabbinic law in order to show this respect to the mourners, um, and, and not, uh, and not a, a Torah law.
And Rav Yehuda, uh, takes it even narrower, right, and says that Shmuel said, uh, interesting that he quotes Rav in one place and Shmuel in the other place, you know, 'cause these are two contemporaries that often don't dis- often disagree, but Rav Yehuda's, you know, selectively quoting here. Uh, Rav Yehuda said that Shmuel said, "One who passes through a Beis Ha'az may blow on the dust," which is again, like a comical way to walk, you know, that you're walking and every step you're blowing to sort of see if any bones, uh, appear, you know?
And, and you, as long as you're, it, it, you can walk on a Beis Ha'az as long as you're blowing the dust before taking each step. And, um- And Rav Yehuda bar Ashi said in the name of Rav, a beit ha-prazza that's been trodden underfoot is pure and no lo- and you don't have to be concerned about it. So, so these are just examples of limiting, limiting, limiting, limiting, and saying that baraita is actually dealing with a very, very specific situation where you basically, you can be sure that it's, it's pure.
You know, don't... And then usually for safety we would say don't walk there anyway, but in this case, because you're quite sure that it's gonna be pure, you can do it if it's to preserve the dignity of the mourner.
BENAY LAPPE: Right. So I'm not sure what to make of this. This is a classic Talmud move where two stories, two texts, two teachings are in conflict, and in order to resolve them To say, "Oh no, they're not actually in con- conflict."
The Talmud narrows the application of one of them so that it doesn't actually conflict and in fact is true only with regard to a case that is not being dealt with. And I'm asking myself why, why does this Talmud wanna do that? Why does a Talmud want to continually narrow what is an obviously conflicting teaching in favor of the principle of human dignity to continue to uphold Rav's teaching about better to not vai- violate the Torah, uh, than violate human dignity.
I, I'm not sure what's going on-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: generally.
DAN LIBENSON: Well, one, I mean, I would just note that that move is not just a classic Talmud move, it's a classic legal move. It's, it's always the case that if you're... 'Cause if you're, if you are a judge on a court and you are, are given a precedent that would go in the direction opposite the one that you want it to go in, whether you want it because you think it's really the right way for the law to be or because you're politically motivated.
Whatever the reason is, if you believe that the law ought to go in the other direction, then what you do with a precedent that stands against you, or if you're a lawyer bringing a case, is you, you narrow the application of that precedent. And you say, "Well, no, no, no, that, yes, I understand that you, if you read that expansively it would mean that my position would be wrong.
But don't read it expansively. It's, it didn't, it wasn't meant to be read expansively. It was d- it was dealing with a very particular case at a very particular time, and we're gonna limit its application to those facts in that case and that time." And that's, that's done all the time. Your question, why is that done?
You know, it's done because the, the later judge or the later party doesn't want, doesn't wanna be held to that law. They don't like it, you know? And if you think about all kinds of things that are happening in the Supreme Court today, whether it's, like, an expansion of the Second Amendment or a contraction of things like Roe v.
Wade, you know, I mean abortion rights let's say. Uh, you know, you, you could say, "Hey, we could overturn Roe v. Wade," but that would be a huge thing to do. You know, you would start a, you would start all kinds of protests and whatever. If you can say, "No, we're just gonna limit the, the application of Roe v. Wade to a very particular situation- Mm-hmm
and, and then we're gonna say the rest of the landscape is open for these states to make anti-abortion laws and whatever," then, you know, it's a much less dramatic thing to do. So it feels, it has the feel to me like an earlier court, like the Warren Court here, you know, in the '70s, '60, '70s, you know, that they, that they, um, radically expanded all these laws.
And, and this is not the Warren Court, but let's say a l- a little bit after was Roe v. Wade. So they made this extre- extremely expansive- case that said that you can't limit abortions, and then sometime later people are like, "Oh, yeah, yeah, this is too, this is too broad. Like, this is dangerous. This is problematic."
Or they're just conservative, "This is too liberal." You know, whatever. Mm-hmm. And you say, "Okay, well how are we gonna deal with this?" And so we're gonna have to narrow those cases because we can't just get rid of it completely. That, that has that feel to me. So then that suggests that the Stamma or... And we, we want to sort of locate, like, where, where is the conservative voice in this, in this story?
And if it's the Stamma, which is late, late, late in the writing of the Talmud, then we might say, "Well, it seems like what's going on here is that the Stamma was uncomfortable with something so broad as human dignity trumps everything in the Torah."
BENAY LAPPE: Yeah, that sounds right. That sounds right. Um, because what that reminds me of is that in the Yerushalmi, and here it is-
DAN LIBENSON: Hmm
BENAY LAPPE: um, our very sugya goes the opposite way. We don't have that Stamma in, in the Yerushalmi, and the Stamma in the Yerush- We have some kind of Stamma. I mean, the, the- Just to
DAN LIBENSON: explain that, the Yerushalmi, the Palestinian Talmud, was finished about 100 years, 200 years before the Babylonian Talmud. So it's two things.
One, it's not the same people. Uh, it's not the same editor. And number two, it's not the same time. Yeah. So something might have happened in the... And, and it's also not the same place, but I mean, it, something might have happened in the period between when the Yerushalmi closes and when the Babylonian, the Bavli, closes that that changes, right?
So just like, you know, a, a Supreme Court from now and a Supreme Court from 100 years ago might have very different things on their mind.
BENAY LAPPE: Yeah. So it could be the time, it could be the place.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: You know, it could be for some reason in the, in the diaspora, the Babylonian diaspora, they're getting more conservative.
I, I'm not... Yeah. Mm-hmm. I'm not sure, but the Yerushalmi, um, does not- It, um, limit the cases or the explicit teaching, like our Beraita. It has our Beraita here, and it never limits that. And what wins in the Yerushalmi is human dignity, even over violating any positive or negative commandment in the Torah. So...
And we've seen this before. Where, where was it? It was in, in Ones Begitin, in Ketubot, when we learned about the case of-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: the woman who gets a conditional get, and it, you know, the stomach closes down at the end, the radical statement that, you know, Svara's overturning Torah. And in the Yerushalmi they say, "Yeah, Svara overturns Torah."
Mm-hmm. So it feels like a similarly conservative move. Yet I love that all of these radical earlier- teachings are in, even in the Bavli, and, um, it's very obvious. I think, you know, y- as a reader you chuckle seeing the ways that those radical moves are limited.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Um, so.
DAN LIBENSON: Well, I'll, I'll, I mean, I, I think that that's a good...
So first of all I guess number one we'd say, well, and, and does, does our case here, the Bavli, does it shut down this law? Well, well, well, or this idea? We'll put that as a cliffhanger for next time. Uh, the, the last thing though that in terms of what you said about, like, the preservation, it's really interesting 'cause it makes me think of Ruth Bader Ginsburg of blessed memory, and almost like dedicating this hour to her because she would, and she wasn't the only one, but she's the most recent one who's was very open about that she's putting things in her dissents that she hopes will later be able to be the basis for these changes.
Whether that change is from a future Supreme Court or in the case of the Lilly Ledbetter case, the equal pay for women case, she kind of put something in a dissent that then got picked up by Congress. She, she basically said, you know, "Congress is gonna have to change this if anybody is," and Congress was like, "Okay, we'll change it."
And, um, and, and she in that sense, like, took advantage of the structure of the system because it could have been that our system didn't allow dissents to be published. But it turns out that our system does allow dissents to be published, and that gives a kind of a weapon to the minority to be able to say, "Okay, well then I'm gonna bury this in a, a, um, you know, time capsule for, for some time in, in the, in the future."
And you could see that one of the reasons why maybe these things are preserved in the Bavli is because that was the system. That was the tradition and, and a good one it is from my perspective, right? I mean, like, the, that actually, like, if you want to say, you know, what are the things that are really Jewish, you know?
What are these things that, like, are core to Judaism, you know? Apparently one of them is that we don't, uh, completely hide, you know, the, the things that, with which we disagree, and that's part of the system and that allows, uh, that allows voices that we disagree with eventually to come along and take something and make a lot out of it.
I would argue that a lot of the way Judaism is practiced today comes from people in more modern recent times pulling stuff out that was actually not, uh, the way that Judaism was, but it was preserved, uh, as a minority opinion, and they've turned that into a kind of a, the way it should be. Uh, but progressive can do the same thing, and that's part of how the system works, and I appreciate it.
BENAY LAPPE: Absolutely. Absolutely. So I guess next week we'll get to the big baraita that we started off with, and we'll see where it comes into this conversation and what the Bavli does with it.
DAN LIBENSON: Yep. All right. Looking forward to that.
BENAY LAPPE: Cool. All
DAN LIBENSON: right, see you next week, Benay.
BENAY LAPPE: All right.
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