The Oral Talmud Episode 61: Thinking Like a Jewish Lawyer (Berakhot 19b)
SHOW NOTES
“ Even if you accept that we are nothing compared to Moses, nevertheless, we're sitting on the shoulders of Moses and everyone who sat on his shoulders. So we're actually having a higher perspective, even though we're smaller ourselves. That's an argument that accepts the concept of each generation being less impressive than the previous one but nevertheless, they can overturn things because they just see farther.” - 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.
The most radical thing about the Talmud is its method and not its conclusions. This episode asks whether these ancient arguments are really about arriving at the right answer, or about handing the next generation the tools to challenge, reinterpret, and even overturn the traditions they inherit. Beneath a dense legal discussion lies a startling invitation: learn how the game is played, because one day you'll be the one changing it.
From human dignity and legal loopholes to the Supreme Court and Neil Gorsuch, Benay and Dan explore how lasting change often comes by mastering the language of tradition rather than rejecting it. If you want to know how communities evolve without abandoning their foundations, this conversation offers a compelling—and surprisingly practical—answer.
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: This is The Oral Talmud - Episode 61: Thinking Like a Jewish Lawyer
Welcome to the Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…
BENAY: …and I’m Benay Lappe.
DAN: 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.
The most radical thing about the Talmud is its method and not its conclusions. This episode asks whether these ancient arguments are really about arriving at the right answer, or about handing the next generation the tools to challenge, reinterpret, and even overturn the traditions they inherit. Beneath a dense legal discussion lies a startling invitation: learn how the game is played, because one day you'll be the one changing it.
From human dignity and legal loopholes to the Supreme Court and Neil Gorsuch, Benay and I explore how lasting change often comes by mastering the language of tradition rather than rejecting it. If you want to know how communities evolve without abandoning their foundations, this conversation offers a compelling—and surprisingly practical—answer.
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: Hi, everybody, and welcome back to this week's episode of the Oral Talmud. I'm Dan Levenson, and I'm here as always with Bnei Lappe. Hey, Bnei.
BENAY LAPPE: Hey, Dan. How are you?
DAN LIBENSON: I'm good. I'm good. I'm getting ready for our first exit from the city, uh, since COVID started. I think-
BENAY LAPPE: Wow.
DAN LIBENSON: Yeah. Um, we're having a little Thanksgiving in, in June.
I shouldn't mark the show wh- when we're recording it exactly for future ref- But anyway, it is June, and, uh, we're gonna go have Thanksgiving with our uncle who- ... we have Thanksgiving with, so I'm looking forward to that.
BENAY LAPPE: Very sweet. Uh, you're driving, right?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: Um, yeah, and I guess I was gonna say this at the end, but I- I'll also say that we're go- w- we're going on a kind of a unclear vacation, both of us, for the next month.
We may do shows, we may not. Sorry we can't be more definitive than that. There will definitely be a show next week. Uh, but for the three weeks after that, uh, the show next week is prerecorded. There may or may not be a show, uh, for three weeks, and then we'll be back. But, uh, but you should, if you are a live watcher, you, you should just, uh, pre...
Like, imagine that there's not gonna be a live show. And if it turns out that there was, you can watch it on the recording, which for all to know, it's oraltalmud.com. Uh, but if, um, but y- you know, and, and if you're not a live watcher, then you should just check when you usually do to see if there's a live show on, on the site, or a recorded show on the site, because there, there might be.
Uh, so, uh, sorry we can't be more definitive than that- ... but, uh, hopefully people appreciate that it's good to be a little bit loose and, uh, free during this period.
BENAY LAPPE: Yeah. And to take a vacation.
DAN LIBENSON: Well, p- to take a vacation's always good. Um, okay, so, um, oh, and, you know, I'll just, I'll, I'll note for people who, um, you know, if you, if you watch every single show of the Oral Talmud, then please write us an email, because we would love to know you.
But, uh, if you haven't, and I'm assuming most people haven't, this would also be an opportunity instead of watching the live show just to go back and watch one of the shows that you haven't seen before. So again, oraltalmud.com. All right. So, um, so Bnei, uh, we are, this is the third of three conversations that we're doing on this, uh, on this text, which is from, uh, the tractate of Berakhot, page 19B.
And, um- So, and, and not to give too much of a recap because we've been doing it for two weeks, but basically it's, it's exploring this question of whether and when human dignity is s- is a, um, a principle that you can use to, uh, refra- to not do to, to violate a command in the Torah. Uh, because if you didn't violate it, somebody's human dignity would be at, at issue, at risk, or be harmed.
And there are, there is a definitive principle in a, a early rabbinic source called the Baraita that, that says that you should. That any, any, any command in the Torah, it's actually more s- more, uh, uh, definitive, more, uh, broad than the you should break most Torah commandments to save a life. Uh, bec- right, and that, that's you should break most Torah commandments to save a life except for worshiping idols, uh, killing someb- murdering somebody, and certain forbidden sexual relations.
Here there's no, there's no exceptions. You should break any, any rule in the Torah in order to preserve human dignity. And then there's a, a whole structure that we've been exploring here where the rabbis aren't 100% sure that they're on board with that, or maybe they are and they're just kind of winking at you.
And, um, and, and that's what we're exploring. Uh, we have one more, uh, case to go over today, and then to sort of talk more broadly. But, uh, but before we do that, just wanted to check if there's anything else you, you've been thinking about in the last week that you wanna say a- as a, as an intro.
BENAY LAPPE: Okay. So I've been thinking about a
Th- th- this text has been bothering me since I discovered it years ago. Well, I should say this, I loved the text until you and I started learning it. I loved the text because in typical B'nai fashion, I zeroed in on the part of the text that seemed amazing, ignoring its context and what was before it and why it's being brought in and how it's treated.
So that used to be a habit of mine that you're breaking me of. And then I loved the text because what I was zeroing in on was that early Baraita that said, "The preservation of human dignity is such a big deal, we should be so careful about it, that we could ... That it's okay to violate any law in the Torah."
And it specifies the don't dos specifically, which is an even more, an even sharper- Reassurance because those are the more severe, um, commandments that you might think you shouldn't. I said, "Yes, any of those negative commandments by extension for sure all the positive." So I love the text. Then you and I started learning it, and then I got into this model because I'm so bothered by the fact that it seems like the Talmud continues to limit and limit and limit that broad principle.
And what I'm realizing now, also with the help of Menachem Fish, who we had on our show a number of months ago, who I discovered between last week's, um, show and this week's show, that he's written extensively on this passage. Um, and I just finished his paper, and I just wanna say that it's gonna take me months to really understand this sugya, but little by little I think I'm, I'm getting something.
And here's what I, one thing I've discovered. My attachment to the content, namely what are, what is the Talmud doing with my precious statement of human dignity is so great that, that I've lost sight of the radical move of the editor in tre- in how he treats earlier material. And it turns out that our material is earlier material, which by the rules of the Talmud game have to stand and can never be defeated by a later tradition.
And what's been bothering me is that the later tradition in this text, which is Rav saying, "Oh, no, no, no," we have this verse from, I forget, where is it from? Proverbs?
DAN LIBENSON: Yeah.
BENAY LAPPE: Yeah. This verse from Proverbs, which read in this way means the Torah is always what you should follow, even at the cost of offending someone's human dignity.
And there are five Tannaitic era traditions that by the rules of the game can never be overturned by a later tradition and are overruled one after the other, after the other. They're, they're narrowed- Mm-hmm ... to the point where they're harmonized and do not overrule. And that is what Menachem Fish calls an anti-traditionalist move.
And I think my problem has been that I've been so bothered by what they're overturning, I haven't appreciated the meta message, which is- Maybe. This is a, this is a passage like so many other passages in the Talmud that is really conveying how to deal with earlier traditions that you actually do want- Right
to limit and get rid of. Right. That, that, i- and the fact that that earlier one was, like, my precious thing is- Uh-huh ... sh- sh- was, was blocking- Uh-huh ... my appreciation of the radicalness of what is being said here. Yeah. And I think the, the ultimate takeaway is don't feel that you're obliged to sort of slavishly preserve an earlier tradition because the rules of the game say you have to.
Here's how you don't do that.
DAN LIBENSON: Uh-huh. That's so interesting. And, and then, and if I'm understanding what you're saying correctly, like, so you're saying, like, in this particular case, it turns out that on the substance we don't like what they're doing, right? Because we actually, we, you and I, like that earlier tradition, think it's a good one, and are annoyed that they're trying to limit it.
But to see that they're lim- the, what's actually going on is that they are limiting an old tradition to the point of reducing it very extensively, uh, very, very extensively, and you could easily use the same technique on a old tradition that you don't li- that we don't like, that you and I don't like, right?
Like, like, you know, whatever it might be, and we could use the same technique. So if we understand this as teaching us a technique, then it's actually a very powerful technique that could lead to, like, progressive results, even though in this particular case it, it led to a conservative result.
BENAY LAPPE: Exactly. And all the other places in the Talmud where this m- meta process, that meta message because of this process, is conveyed, I, like Hakovel, like the passage which I think I referenced, I said, "There's something that smells familiar here."
All these other examples are where I was so happy, and the Talmud is... I, I was happy as a, as a reader to have the Talmud reduce the earlier tradition, es- especially when it's the Torah. Like, oh, eye for an eye? Reduce that. Make it something else. And they but here I was missing the big picture because I was trying to hold on to the earlier tradition.
Now, having said all that, I still think that, and I think Menachem Fisch is saying this as well, it's only the most naive reader who is supposed to come away with the idea that we are really, actually limiting Kavod HaBriyot, the concern over the dignity of people. Um- Because Only the more sophisticated reader will see the forced, contrived way that the stama reduces the power of that statement.
And this idea, this this very bold statement, appears five times elsewhere in the Talmud un, uh, narrowed.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So-
DAN LIBENSON: And, and like you said, in the Palestinian Talmud, the Jerusalem Talmud, it's, it, it, it ends up un-narrowed.
BENAY LAPPE: Absolutely. Absolutely.
DAN LIBENSON: Um, the, you know, I think this also raises that question that we've discussed before, which is basically what genre of literature is the Talmud?
Mm-hmm. And a lot of people have been taught, a lot of, let's say a lot of, uh, again, you know, y- painting with a broad brush, uh, people that we would call Orthodox have been taught that the Talmud is a law book and that these codes that come later, the Shulchan Aruch, various other c- kind of codes, Maimonides, that what they're doing is they're kind of, um, pulling the law out of the Talmud so that you don't have to get all lost and confused in these, uh, in these, in these, you know, c- discussions, so that you could just know what the law is.
And th- they might come to, and I don't know whether they specifically come to at a place like this, that they say, "You know, we're pulling a very narrow principle out of this that, uh, human dignity allows you to only violate rabbinic prohibitions and only certain ones," et cetera, et cetera. The, but, but if the genre...
And, and b- and a lot of non-Orthodox people have picked up and been taught that same principle that the Tal- that the genre of literature that the Talmud is is a law book, a law code that's just kind of confusing as opposed to a law code that's more organized. Right. And, and that, um, they might not believe in those laws, but that's what the genre of literature is, right?
As opposed to what, what you've really talked about in the past is that the Talmud, think of it more as the genre of literature as a case book in a law school, that its, its purpose is to teach you how to think like a lawyer, or in this case, think like a Jewish lawyer, and not to, it, the specifics of whatever law it happens to be.
So the, the, and by the way, that is how, you know, I was a law professor for five years. That this is how a legal case book works. Uh, it's not necessarily the case that all the cases in your contracts case book are, are operative in every state or exactly the way it is in every state or the federal. You know, it's a, they're using certain cases that have a certain analysis, which is probably broadly how it works, but not necessarily and not for always, for sure, and it's not like this can never be overturned.
It's like at the point where the textbook was written, this was a case that was seen as kind of important in that it, it helped you understand the topic or helped you understand how people think about the topic. And, uh, it, it teaches you various principles. But the more important thing that it's teaching you is how to think about, oh, you thought that when you read this in the- constitution or in the law, uh, in the specific law.
You thought that it was so definitive, but actually that's not how we've been practicing law in America for the last 100 years, and the reason why is because the judge in this case went through this particular analysis where he did a little jujitsu on it and he, you know, found that actually it was the opposite of what you might have thought.
And so on the one hand, you could say, "Oh, so now, so I now I know that, you know, the topic of consideration in contracts isn't as simple as I thought it was." But the more important thing that you're supposed to learn from that in the first-year contracts class is I can now take this way of analyzing a law to any other law in the entire corpus, and now I've learned a skill that I can use, that lawyers use, that judges use, and if I don't know that skill, then I'm gonna get hammered when I bring it to court because I'm gonna think that you just read things really, like, simply.
Right. And the other lawyer's gonna know that you can do these kind of maneuverings, and the judge is gonna be like, "Oh, that was a smarter, uh, idea that that guy said, so we're gonna go with him." Right. Right? So, um, you know, so that, that, that... So what's going on here, if we understand the genre of this particular sugya as a few pages out of a legal case book, then, like you say, the m- it may be that the, that the, that, that the rabbis at that particular time that the Talmud was put together were trying to limit this principle of, which i- which we talked about last, you know, it's a danger- it's a little bit of a scary principle, that anything that could overturn any law, that, that's a, that's a pretty scary principle.
So the idea that somebody would come along and want to limit it is reasonable. And also, but more importantly, this is here to show you a particular manner of, of, uh, you know, dealing with a, an old, seemingly powerful, ancient law text, right, whatever, that you don't like for whatever reason. And, and like you're saying, you can use that in both directions.
BENAY LAPPE: Right.
DAN LIBENSON: I love it.
BENAY LAPPE: Yeah.
DAN LIBENSON: Um, the, I mean, the other thing that I was gonna just kind of bring up about the structure here is, is the opposite of what we just said. You know, is, is that, like, the, the way in which, um, there are kind of winks in the text, I mean, it's always a little dangerous to talk, because, you know, maybe it's a wink, maybe it's not.
How do we know, right? But at least to be aware that, you know, maybe when they're saying, uh, we don't establish a general principle from this, there's a certain way in which they're saying we do, uh, s- we do, uh, establish a general principle from this. Or what they're saying, again, remember I've said this a million times, but remember that they expected that the only people who were ever in history gonna read this text were rabbis or rabbinical students who were extremely sophisticated and knowledgeable and had their own inner club and their own secret knowledge and whatever.
And so what's printed in the book is not necessarily the be-all and end-all, 'cause they knew it always went along with the, what the professor was saying at the front of the room. So, you know, you always had the, you know, you call that an oral tradition. There, this is the oral tradition written down, but there's still an oral tradition of the way that this is being taught.
And so it- Yeah ... it very well might be that what they're saying here is, like, look, if you need, you know, for public consumption, if you need to tell the people why this isn't the law, you know, then here's a way that you can tell them. But, you know, it also kind of is a, if you decide that there's a reason why you want, uh, human dignity to be something that you're telling one of your constituents they, they don't have to observe this law because of human dignity, that material is also here for you, and you're empowered to go off to your rabbinic duties in a faraway land where I'll never see you again.
You know, you're never gonna see your teacher again, right? And I've given you this toolbox, and use it. You know, you can use it in both directions. That's why both are here.
BENAY LAPPE: Yeah. And, you know, Menachem Fisch uses the language of traditionalist versus anti-traditionalist voices, and his claim, and I agree, and I think David Kramer, my teacher, would agree as well, is that the ultimate agenda of the document is to be anti-traditionalist.
But it uses the, um, sort of sensibility and the techniques of the traditionalist- To do anti-traditionalist things. So basically what the document is, is saying, "Okay, look, look my very sophisticated, radical rabbinic students, you're gonna go up against conservative opponents. This is how you play their game to get what, what you want."
In other words, this is how you get progressive agendas by the folks who will say, "But wait a minute, show me where in the Torah it's written."
DAN LIBENSON: Mm.
BENAY LAPPE: And I, I think that's what is also going on. Mm. And you know, when you, when we think about the Supreme Court, it, it's the same thing. They're the traditionalists and the anti-trado- traditionalists.
The, the ones... The traditionalists are the ones who believe that law is fixed, and we're obliged to maintain it. We, we can't overturn it. This is the Yuridat Hadorot philosophy, this very m- m- minimal, but in recent, i- days, super expanded idea that, you know, w- we are like donkeys compared to Moses, that in every generation from Mount Sinai we get farther and farther away from our ability to suss out what God wants, and who are we to overturn?
You can never overturn. Versus the way that the tradition clearly works, which is every subsequent generation actually has a better perspective, and, um, than the previous one, and is obli- and is permitted to overturn it. So, uh To bring along the conservative folks, and I think that Tom is saying you wanna bring them along Which is a challenge to me.
And I have to think about that.
DAN LIBENSON: Right. And, and I should say, like, one of our friends, uh, called my attention to, uh, a passage that we'll, we haven't really delved deeply into and we'll look at, but it was, uh, actually a rabbi, uh, who was building on Isaac Newton's statement that, uh, "If I've seen farther than others, it's because I'm s- sitting on the shoulders of giants," that to say that, uh, you know, somebody who might be smaller, you know, more, less impressive, whatever, you know, like, again, this Yuri Dada developed this idea.
Even if you accept that we are nothing compared to Moses, nevertheless we're sitting on the shoulders of Moses and everyone who sat on his shoulders, and so we're actually having a higher perspective even though we're, we're smaller ourselves. And, and that's an argument even within that concept that accepts the concept of each generation being less impressive than the previous one.
But nevertheless, they can overturn things because they just see farther because they're on the shoulders of the... So it's a beautiful image- Yeah ... and, um, uh, and, and interesting in that way. Um, the, um, yeah, so, so I, you know, like, the, um The, the, yeah, I, I, on, on this, on this question of, um ... I, I wanted to ... I, I was talking to my son actually yesterday.
He was asking me stuff about the Supreme Court and, you know, is, is ... The real question came from, is Breyer gonna retire? Uh, uh, you know, and I said, "I think he will." And if you ... You know, we sort of talked about this and, and we were sort of talking about the political orientation of the different judges, and I was saying like, there's something kind of interesting that seems to be going on b- with, with the Chief Justice John Roberts and, uh, and Brett Kavanaugh and Amy Coney Barrett, that they've, uh, sort of seem to have staked out this kind of middle, right, you know, right of center, but middle, moder- more moderate right position a- as opposed to Alito and, and Thomas and, and Gorsuch.
But then we started talking about Gorsuch and, and I was reminded of the case of, about the trans, uh, folks and employment discrimination, I think is what the case was, and I think we talked about it on this show. But that basically in that case, Gorsuch, who is a very conservative, I mean, very, very conservative, um, and he, uh, came out in favor of the trans, uh, people in, in, uh, employment discrimination cases, 'cause he said the, the law says because of sex, and, uh, you know, you have to read it care-
So that's an example of a conservative person basically being persuaded to do something progressive because of a conservative form of argumentation that I, I imagine that the lawyers on that side really pushed. And, and so it's, it's, it's analogous- I think- ... to what you're saying here, that if you really
If you're a, if, if you're a liberal progressive lawyer and you say, "Well, therefore I'm not gonna bother with these conservative kinds of arguments like originalism and textualism. These are stupid, wrong arguments." Right, right, right. Right? Then you won't get Gorsuch's vote on that case, and then you will lose, you know, the rights of trans folks, right?
And, um, and, and only- That's right ... because the lawyer in that case, right, learned a conservative form of argumentation was he or she or they able to, uh, to, um, use it to, to a progressive end. And, um, you know, and, and, and it's interesting 'cause then my son asked me, "But like, why would Gorsuch do that?
Because isn't he on the Supreme Court, you know, but isn't he trying to advance his values?" And I said, "Well, this is actually one of his values." Right? And in this particular case, he, he somehow decided that he loves textualism more than he loves, you know, to hate trans people, right? I mean, whatever- Right. I-
yeah, I shouldn't say that because he, he may, he probably doesn't hate ... You know, whatever. I, I don't know what his personal- Or at
BENAY LAPPE: least more than he loves cis normativity. Yeah.
DAN LIBENSON: Cis heteronormativity. Yeah. Right, right, right. So, you know, so like that's interesting, and that's ... And, and people are complex, right?
And, and, um, yeah. So in that, in that sense- All, all of the above are, are, you know, really interest- Like, from a, just from a, if we, if this was just a conversation or, like, a, in a law school course, I think in the last, you know, 20 minutes we've covered a really important , you know, part of a lecture of a law school first-year class.
Because, you know, the, the, at the end of the day, don't dismiss the other side. And this also calls back to the Hillel and Shammai, uh, st- text that we did a long time a- You know, the why is- Mm-hmm ... the law is according to Hillel? Because Hillel would study the positions of the other side and articulate them before they would articulate their own, right?
And, um, and this is a case of that, which is, like, I, y- you know, I, I need to learn how the other side thinks because there will come times when I can use that way of thinking to the advantage of the substantive position that I'm trying to advance. Um-
BENAY LAPPE: Exactly. I love that. Basically, the Talmud is how to convince Gorsuch.
DAN LIBENSON: All right, well, that's important. Because Gorsuch has ruled the wrong way. So if that's what it is, then everybody, then we should get a lot more people, uh, tuning in. Um, okay, so let's look at the last, um, the last part of this sugya. And, oh, I should s- say, by the way, the reason why I'm, um, you know, making you, uh, look more broadly is not because, like, I, I, I have such a, like, principled position or I'm such a great Talmud scholar.
It's because when I'm setting up the text on the Sefaria source sheet, I always just kinda look around to see where does it start, where does it end, and then I start getting, like, sucked into it, and I'm like, "Wait a second, I think this is part of it. I think this is part of it." And so then I, like, back up, and then I fo- and then I, I force you to have to deal with this stuff.
So I, I both apologize and, uh, I think it's good.
BENAY LAPPE: That's actually a, a good argument for- I don't know about learning in translation, but accessing a translation. Uh-huh. It's really only because my Hebrew and Aramaic skills are not so great that I can quickly scan- Uh-huh ... a page and see what's going on, that I sometimes get zoomed into a piece that I understand and not appreciate its context.
So it's very interesting that S- being able to skim the content- Right ... quickly actually- Right ... gives you s- such a, a better perspective Right.
DAN LIBENSON: I wi- I wish I could say it was because my Aramaic was so good. But, um, it's, uh, it is because it's in English. The, uh, the o- the other thing, though, is, is that this is an opportunity to just mention that, like, you know, we've said this before, too, like, you and I are both learning.
I mean, we're not bringing these texts because we're the world's expert in them by any stretch. And, um, you are more of an expert than I, but, uh, we are just bringing these texts because, um, I think so. Uh, we are bringing these texts because, because we, we, we have learned them, that there's something significant here.
But we are still learning them and, um, and, and, you know, nobody should watch any of these with the sense that they've now definitively learned this text, n- neither have we. You know? And so there's always more to, to, to... So hopefully these are serving more as an, as a, uh, taking away... Uh, like, I think of them as taking away the guards from the gate.
You know, really just opening the text so that you can come in and, and explore it on your own. So, so we absolutely, uh, don't get everything. As, as, um, demonstrated by last week that I got a little hung up and I edited that part out of the, uh, out of the final video. But let, th- th- that's to this, uh, to this last case, 'cause it is a little, a little complex.
But, um, so what, what they're talking about here, I guess just to, just to, uh, introduce the concepts, there's the, there's an idea of a Nazarite or a Nazir, which is a kind of a Jewish, uh, sort of religious, a monk kind of person. Like
BENAY LAPPE: an, an ascetic.
DAN LIBENSON: Ascetic, yeah. Somebody who's, like, taken upon themselves. It's like a regular person, uh, not a priest or anyone.
A regular person who's, like, taken upon themselves some higher level of sort of religious, uh- Piety ... behavior, piety, uh, than, than they need to. Uh, which a- includes all kinds of things like not cutting your hair and not drinking wine. And n- and, and, and in certain senses, it requires, uh, one to try to maintain absolute purity.
And so in that sense, it is similar to a priest. Like, you should be very, very careful not to impurify yourself. And going to a, uh, interacting with dead people is a way of becoming impure. And so the idea is that a Nazir, a Nazarite shouldn't even be going to funerals of close relatives because, uh, they m- would become impure, and that would be a breach of their vow of, of Nazarite- Mm-hmm
hood. And that's actually, I think, even worse than a priest becoming impure because it's actually the breach of a vow rather than just something, you know, sa- bad that happened to you. Uh, so anyway, there, there's that, that whole story. And then there's, but then there's another category that comes up here, which is the met mitzvah which means a, uh, the, the dead, the, you know, of a commandment or a mitzvah.
You know, the, the dead where there's a mitzvah involved. What does that mean? It, it means a person who has died and doesn't have anyone to care for them or to bury them. They don't have any family. Uh, and so there is a very important mitzvah, a very important, uh, you know, commandment or practice that, uh, it's a huge- wonderful thing to do, to, to care for the, the death of a person who has died without anybody to care for them.
And so the, the question that- And to bury them. To bury
BENAY LAPPE: them To
DAN LIBENSON: bury them traditionally Yeah And, and so the question here really is, like, basically what happens when there's a clash between those two things, when, uh, the only person around to, uh, somebody has died who has no one to, to bury them, and the only person around to deal with it apparently is this Nazir who's not supposed to be involved with death at all.
But-
BENAY LAPPE: Okay. And just to get my own head, and maybe th- l- our listeners' heads back into the big picture, tell me if, if you understand this this way as well. The, the Sugya is basically taking a very re- a later statement of Rav, which is basically you should prioritize not violating the Torah When someone's dignity is at risk, rather you should r- violate their, their dignity than violate the Torah.
Right. That's the more recent teaching. And the Sugya, the Stama, the anonymous edit- Did you want to say something there?
DAN LIBENSON: O- only that I think that that is, for the purpose of this conversation, that is the teaching, but I think Rav is actually saying something even broader, which is, which is basically, "Don't let your measly human thoughts..."
You know, you think somehow you've figured out that something's more important than the Torah. Don't allow yourself to have the... No, nothing is more important than God's word. You know, like, the... So it's not just about dignity, it's, uh, actually a broader idea.
BENAY LAPPE: Sort of an anti-Svara-
DAN LIBENSON: Yeah, yes ...
BENAY LAPPE: message. Yeah.
DAN LIBENSON: Which, well, maybe we should look at that, about Rav and Svara in the future.
BENAY LAPPE: Yeah. Okay. So, and, and the Stama brings in five Tannaitic teachings, earlier teachings- Mm-hmm ... which contradict Rav. Mm-hmm. Which, which are cases which actually clearly seem to demonstrate Someone violating the Torah in order to preserve someone else's dignity, and those seem to be good things to have been done.
Mm-hmm. And the fact that they're all Tannaitic sources, one being the Mishnah itself-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: um, suggests strongly that those are the positions that should be followed.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: That is the position that should be followed. Re- you should rather violate the Torah than violate someone's dignity. But one after the other- But by the,
DAN LIBENSON: by the way, like plus there's an actual statement that says ex- that says that.
Exactly. You know, it's not a case, it's just a statement.
BENAY LAPPE: One of those... Right. One of those five is precisely the rule itself- Right ... not a case from which we can deduce the rule. And one after the other, the Stamma is showing how that earlier very clear case or statement is narrowed in a very obviously ridiculous, forced, um, way to not be contradicting Rav.
Actually to be such a specific case that it, it doesn't assert the notion of prioritize dignity over the Torah.
DAN LIBENSON: Well, yeah, and
BENAY LAPPE: I think, and- This is the... And, and this is the fifth of the five cases.
DAN LIBENSON: Yeah. And I think in the first two cases, the way that they're narrowing it is saying, "Oh, no, that law that that's overcoming, it's, it's not actually from the Torah, it's a rabbinic law."
BENAY LAPPE: Right.
DAN LIBENSON: And then, and then the later two cases they're saying, "Yeah, it is in the Torah, but like there's some reason to understand that in the, in the earlier case that the, the Torah itself says that you should vi- So if the Torah itsel- itself says that you should violate a ca- uh, you know, a Torah law for this other reason, then that's a very limited case.
That's because it's in the Torah, so you're not, you're not overturning the Torah, you're following the Torah by doing that. And, and this case is, is kind of a similar... Or, you know, or, or, you know, and, and, and, and/or limiting it like this. No, but the... And that's, the Torah says it, and it only says it about monetary policies, you know, monetary rules, right?
In this one it's a similar structure saying, "Yeah, there's, there's something," but it's, it's actually in the Torah itself and it's a very limited case. You can't abstract the general principle from this. Um, and- Right ... yeah, and, and I think
BENAY LAPPE: like- Even though it's pretty clear that- Right ... in that earlier era they were extracting that general principle.
DAN LIBENSON: 'Cause they said so. 'Cause they- Because, because the middle, the, the, the hinge case is- Right ... is that it actually just straight up says it, right? You know, and, and- Exactly ... that's the, that to me is, like, where there's a little bit of a joke going on here. Like, I don't quite, like I, like you, I'm not quite, but, like, I, I think that there's, like, a wink because...
Like, even the structure. Like, why didn't they put the, the Tannaitic statement, why didn't they either put that first or last? You know- Yeah ... why is it in the middle?
BENAY LAPPE: Yeah.
DAN LIBENSON: Kind of feels like something weird is g- You know, but, but then there's... And so the, so the one, again, j- the one possibility is it's, it's kind of a wink or, or it's meant to make you laugh, and the other possibility is like Fish is saying, it's giving you a, a tool in your toolbox that in this case goes the wrong way, but in another case, in all the other cases, might go the right way.
BENAY LAPPE: Right. Okay, I had another thought, and I'm not sure how this fits in. I'm really still in the middle of figuring this out. But as I was going back over this sugya last night, I was noticing a phrase that appears over, and over, and over as it introduces each of these five earlier very clear cases or statements, and the phrase is «Let's learn it from here.»
DAN LIBENSON: Mm.
BENAY LAPPE: Okay, «Let's learn it from here. Let's learn it from here», right? It, and, like, there's an exclamation part after it. V'ligmar mina means, okay, let's learn the principle that we're trying to learn from here. So it, it keyed me in to the meta, um, hope of the sugya that they really do want to preserve and land on that notion of human dignity is greater, is the pr- preservation of human dignity should even override the preservation of the Torah itself, or the following of the Torah itself.
And the fact that they don't eventually ligmar mina, they don't learn it out from this case, or this case, or this case, or this case, is immaterial. It's like, okay, h- I don't know. I don't know- It, it just sort of, I, I could feel that the message is we do want to learn it. Uh-huh. It's what we ... And you as a student need- Uh-huh
to find the clever way to learn it out.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: You know what I mean?
DAN LIBENSON: Yeah.
BENAY LAPPE: I don't know.
DAN LIBENSON: I don't know. I'm getting two, two feelings from what you're saying. Like, one is I'm thinking about, like, conversations I have with my children where, like, we tell them- ... like, they can't do something, and then they start with the negotiations, you know, and they, and they take on our, our, uh, reasons one at, one at, and, and kind of take them apart one at a time, you know?
And at a certain point you're just like, "All right, but we're still not doing it," you know? Like, it's just like this, I'm, I'm laying down the law, you know? So maybe at the end of the day it, it goes back to the, the Brit that says, yeah, but we, you know, it is just a statement, you know? Maybe it doesn't, you don't learn it from a particular case, but it's just a
Uh, and, and the other is, like, you know those cases where the great student is the one who can purify the sherits, the, the creepy crawly in 42 different ways or whatever, that, um, here we only got five cases, and so it's almost saying, like, Drochu Cabelskar, you know, go study, you know, or figure it out and you'll get a reward.
You know, we, the, the ta- this is one of the, it's like a crossword puzzle or something. They're not actually giving us the answer here, but in the same way that we've seen this elsewhere that, um, that the whole idea is to try to keep going until you get to that point, because we know that human dignity should be the, you know, or at least, at least by the way, if the rabbis themselves didn't think that, we do today.
And then I know that's what we want to talk about a little bit later if we have time, but, like, we today would, I think, would much more comfortably say human dignity should overcome everything in the Torah, because really, what's the Torah for other than preserving dignity? So, so maybe that also is a kind of message in the bottle.
Like, hey guys, 2,000, you know, 1,500 years later, we couldn't figure it out, but hopefully you will. You know, something like that.
BENAY LAPPE: Exactly. E- at the end of the day, I think it's a, it's a series of techniques.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And it's saying you can use these- If they're gonna work to get Gorsuch on your side- Mm-hmm ... or similarly far-fetched techniques, this is how it works.
Okay. Anyway.
DAN LIBENSON: All right. So let's look at this, uh- All right ... let's look at this next. Um, so the Gemara cites an additional proof from Rabbi Chaim in here, and, uh, so it talks about the, the Nazarite, sort of what we, what we talked about that in the Book of Numbers it says they shouldn't have anything to do with a dead body.
So the Talmud says, uh, "To what purpose did..." Uh, oh, so the, the verse says that y- you shouldn't, uh, "You shall not become impure for his father or mother or his brother or sister in their death." M- you know, and they're saying like, "Why, well, why didn't it just say, you know, for anyone?" Or, "Why didn't it- But- ... you know, why did it specifically say his sister?"
BENAY LAPPE: But it does say for anyone-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: previously, and that's what, that's what the translation here is pointing out. Since it was already written with regard- Uh-huh ... to the Nazarite, "He shall not c- come upon a dead body- Uh-huh, mm-hmm ... period," across the board-
DAN LIBENSON: Right ...
BENAY LAPPE: why does it specify, uh, father, mother, brother, sister?
And this is a, this is like Midrashic exegetical rule 362. It's super common. Um, it's the- Torah
DAN LIBENSON: doesn't say extra things.
BENAY LAPPE: That's right. And specifically when you have what's called a klal u'frat, you have a general statement followed by specifics, um, you can use that f- uh, you know, i- if someone said, "Don't eat fruit."
Neither apples, nor oranges, nor bananas shall you eat.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: You can deduce obviously unintended things by the fact that these specifics were named after the general case. Like, maybe the general case is limited to the specifics, or maybe the specifics are telling you something completely different than don't eat fruit generally, which of course you should still believe.
And that's, that's what's going on here. Once the Torah says you sh- the Nazarite should not be in contact with a dead body, that's established, and the rabbis are finding, like you said, new and unique teachings out of the specifics of father, mother, r- brother, sister. Mm-hmm. And just like you said, the... As my late teacher Eliezer Slomovic, alav ha-shalom, used to say, "God is not a blabbermouth."
Mm-hmm. And when there are seemingly superfluous words or phrases in the Torah, those are there to teach special things, and that's what they're gonna do now. They're gonna find special learnings from these specifics.
DAN LIBENSON: Yeah, and lest anyone think that that's just, like, some crazy, you know, super God-y religious thing, like, that's, that's true in, in American law as well.
Not in, not maybe in the same way. It's, like, the T- the Talmud takes it farther and learns all kinds of irrelevant things more commonly from it. But in a law, if, if there's a general principle and then followed by a series of examples, the courts can take that as a way to limit the application of that general principle and say, "Well, it looks like it's saying a general principle, but it's actually not a general principle.
It's actually meant to be for the category that those examples define," or something. So there's all kinds of things that you could do of an analogous nature.
BENAY LAPPE: Oh, I'm happy to know that. I didn't know that, and I'm always happy to know when these prin- exegetical principles- are not wild, outrageous things, but things that law generally uses, um, that helps me trust them even more.
Okay.
DAN LIBENSON: Yeah. Although, I think what they're about to do with it is more than, you know, any- ... any Anglo-American court would do. Uh, but yeah, so let, so number 6:6 it says, "The Nazarite shall not come upon a dead body." And then number 6:7, the next, the next, uh, verse says, uh, "He shall not become impure," meaning from the dead body, "of his father, mothers, his brother or sister in their death."
So, uh, so why did it have to say those examples? Um, He just said it should not become bound any dead body. So they, they say... Right, so there's the question. To what purpose did this verse state, "And his sister?" To teach that one who was going to slaughter his Pascal lamb and circumcise his son, those are...
Meaning, you're on your way to another mitzvah, and you heard that your relative died. You might have thought that burying your relative is a more important mitzvah than slaughtering your Pascal lamb or, um, or circumcising, uh, your son because I, I don't know exactly what the logic is. The Pascal lamb you can always, uh, circumcise in the second Passover a month later.
Uh, circumcise your son, you're supposed to do it on the eighth day, but you can, you can do it on another day if you didn't do it on the eighth day. So my... So wh- whereas you have to bury somebody immediately, that's the law. So, so I, I don't know. That's at least my thinking here that why does one trump the other?
Um, you know, uh, there, there are various, uh, possible reasons, but the bottom line is that there, there's an expectation here that if you were on your way to one of these other mitzvot and you heard that your primary relative died, you would drop everything and run to, uh, to bury them. Um, and... Go ahead.
BENAY LAPPE: Yeah, especially since, uh, the general statement is bury them.
Okay. Right.
DAN LIBENSON: But in the case of a Nazarite-
BENAY LAPPE: Yeah ...
DAN LIBENSON: uh, they're, they're saying, um, it, it would, it would not, uh, be the natural course of things. You, you said he, you said, "He shall not be impure." Um, so just as he does not im- be imp... So, so the, the point is that, if I'm understanding this correctly, right, like a Nazarite, it, it would not be the case for a Nazarite.
A Nazarite's not supposed to go to the funeral of his primary relative. So if a Nazarite was on his way to, um, the Pascal lamb or the circumcising of the son, he should go there anyway. That's the, that's the case of a Nazarite, right? Okay.
BENAY LAPPE: We- B- back it up a little bit.
DAN LIBENSON: Okay.
BENAY LAPPE: Let me, let me see. What, what does verse 6:6 say again?
DAN LIBENSON: That you shall not come to find a dead body, period.
BENAY LAPPE: Okay. Okay. Okay. All right, let me, let me think this out. So- The Nazarite shouldn't bury anyone in his family. Next verse. He sh- or shouldn't, shouldn't come upon a dead body, period. Back it up again a little bit Um, great. He should not come into contact with the dead body, even to bury it, of his father, mother, brother, or sister.
He shouldn't do that. Okay. Great. Now we have a, a conflict. His sister has died, and he is on his way to doing one of these Torah-commanded mitzvahs of slaughtering the Pascal lamb or circumcising his son, and he hears that a relative of his died, like his sister. You might have thought-
He should, he should bury the dead person, but the Torah says he shouldn't become impure. The death of his re- I'm reading the tran- the explanation. The death of his relative will not override so significant a mitzvah in the Torah
Yeah. And he should go and do the mitzvah.
DAN LIBENSON: Right.
BENAY LAPPE: Good. He should do the mitzvah, and that look... Let me see if I, I can anticipate where it's going. That looks like a case from which we can deduce That it's better to
DAN LIBENSON: No, I, I think we're not there yet. I, I think-
BENAY LAPPE: Okay ...
DAN LIBENSON: I think, I think what, what they're saying here is, like, it's clear, we, we, it's clear that he should not drop everything to go and bury his sister, uh, or any relative.
It says it explicitly in the text.
BENAY LAPPE: Okay. But, but- I'm good with you there so far ...
DAN LIBENSON: but why did it have to say his sister? We already knew that he didn't have to, that he shouldn't come into contact with any dead bodies.
BENAY LAPPE: Great. Great,
DAN LIBENSON: great, great. That's it. So, so now, so now they're saying since we, we know that he shouldn't go and bury his sister i- if, if he's on his way to one of these mitzvot, so now the next thing, just as he does not become impure for his relatives or for his sister, so he should not become, uh, impure for anybody, including a mate mitzvah, right?
It, 'cause it sa- it also says it, uh, you shouldn't come into contact with any dead body. So, so, so what that means is clearly, yeah, he doesn't come into contact with his father, mother, brother, sister, also anybody else, of course not, because they're less important to him than, than a father, mother, brother, sister.
Uh, but what about a mate mitzvah? Of course, well, him, uh, too, him also a mate mitzvah. Like, he shouldn't, the, it says anyone. And, and then they're saying, oh, no, no, it, the reason why it says his sister is be- is to specifically say, like, he shouldn't become impure for his sister, but for a mate mitzvah, he should become impure.
BENAY LAPPE: Okay. Okay, great. So that's a very far-fetched, but regardless- Very far-fetched ... c- very- Great ... common way to deduce something that is not apparent from a seemingly extraneous word in the Torah, in this case, sister. Okay, so where are we now? We've learned out that he-
DAN LIBENSON: We've learned out that for the dignity of the ma- of the dead person, he should violate his Nazarite vows, which are from the Torah.
Great.
BENAY LAPPE: Great. Okay, so now we have a case that seems to violate Rav's idea that no, no, no, you should violate someone's dignity rather than violate the Torah.
DAN LIBENSON: Right. Of course- So I'll just read it just so, so- Okay ... just as he does not become impure for his relatives, so, so he does not become impure for a meh mitzvah, a corpse with no one to bury it.
The verse states, "And his sister." So then the, the answer is his verse, the verse states, "And his sister," he may not become impure for his sister, but he does become impure for a meh mitzvah. Be- because,
BENAY LAPPE: because someone else can bury her. Right. But a meh- meh mitzvah... Uh, okay, got it. The sister is... Let me see if I have this.
Sis-
DAN LIBENSON: The sister's dignity is preserved because somebody else can bury her.
BENAY LAPPE: Right. But a meh mitzvah is not sort of covered under the case of sister, therefore, he's not excluded from attending to the burial of a meh mitzvah because no one else can do it. Do I have that right?
DAN LIBENSON: Well, well, that's the question.
I mean, like, I, I think that, I think that the, the way that I read this, we have, we have a definitive statement that Nazarite should not become impure for any dead body, period.
BENAY LAPPE: Right.
DAN LIBENSON: Then we have a next sentence, "He shall not become impure for his father, mother, brother, sister." Now, I think that the implication from that is the father, mother, brother, sister, those are your primary first-degree relatives.
If you shouldn't become impure for them, you shouldn't become impure for anyone. So the natural reading is that, is that this is a reinforcement of the f- the earlier command, which is that bottom line, a Nazir, a Nazarite should not become impure for any dead person, period, end of story. Not even- That's it
his father, mother, brother, sister. Right. The, the... But however, there's a tradition, there's a, a Talmudic, early rabbinic understanding that, that no, but there is an exception, the meh mitzvah, the person who has no one else to bury him. Now, it doesn't say that in the Torah. It, it doesn't even imply it in the Torah, but they're, they're reading, they're reading out of the idea that it says his sister, that the implication is that, that why does it say a sister?
It's to, it's to kind of indicate that those are mitzvahs. Like, you know, those are all mitzvahs, too, to bury your, your first-degree relatives. But we're spec- specifying that for those mitzvahs, you don't do it. But it didn't say anything about a meh mitzvah, a person who has no one to bury him. And because human dignity is at issue here, that if nobody buries the meh mitzvah, he'll, you know, be- to w- you know, uh, be eaten by carrion, you know, whatever.
It'll, it's a terrible affront to his dignity. Uh, uh, the, the- Because he'll
BENAY LAPPE: decompose on the sur- Even the Nazir- He'll decompose on the surface of the earth ... decompose on
DAN LIBENSON: the sur- Right.
BENAY LAPPE: Yeah.
DAN LIBENSON: Right. Uh, even the Nazir should violate his vows of, of Nazarite vows and become impure to bury a mei- mitzvah. That is a extremely strange reading of the Torah, to the point of, you know, really, uh, you know, that it extremely...
Right? I mean, it's, it's, it's a very, there's, there's no normal reading that arrives there, but that's where they're getting. That's, that's the bottom line. And, and I think the implication here is that the, the Tannaim, the early rabbis, deduced from the principle that human dignity, uh, over- comes any commandment in the Torah, that a mei mitzvah, who is somebody whose dignity would be harmed by not being buried, uh, even the Nazarite vows should be, uh, broken in order to, to violate that.
And then, and then the response in the next paragraph is, "But wait a second," back to that line from Proverbs, you know? But, but, you know, no. It, that, what... Or in other words, they're saying, "But why, why should that be the law? We, you, you got there by, like, figuring it out," right? Uh, you know, by logic, by human reasoning, and we have this thing from Proverbs, "There's neither wisdom nor understanding, nor counsel against the Lord."
So, uh, so it shouldn't, that logic shouldn't actually hold. But we know we have this case where, where it does, so they're, it's the same, back to the same thing. How do we... So we're gonna have to limit that case in order... 'Cause otherwise we're gonna be able to abstract this principle out of it- Right ... which they don't want to do.
BENAY LAPPE: Right.
DAN LIBENSON: So the Gemara answers, "There it is different as it is explicitly written, 'and his sister,' from which we derive that although he may not become ritually impure to bury his sister, he must do so for a mei mitzvah." So what the T- what the response is here is that, is that case where, where I was saying, like, in the first two cases, the response is, no, that's not a Torah law, it's a rabbinic law, and human dignity can trump a rabbinic law.
And in the latter two cases, it's saying, yeah, it's, it's a Torah law, but the Torah itself says that you should break it for human dignity in these particular narrow cases. The, the language of the... So you're not breaking a Torah law. You're doing what the Torah says. Mm. 'Cause the Torah says that you should marry, bury a mei mitzvah even if you're a Nazarite.
But the Torah only says that if you read this extremely strained reading of that's why it said sister. But that's what, that's what, that's the answer here. That's what they're, that's what they're doing.
BENAY LAPPE: I'm hanging on. I'm hanging on by my fingers. So at this moment where we are in the text right now, is this last case
reconciled with Rav
Or is it st- is it seemingly in contradiction to
DAN LIBENSON: Rav? It's a good question in light of the next paragraph that's, that's stated. But I think that as, at least as Steinsaltz is explaining it here, and that's where, like, I'm not totally sure that, that, that Steinsaltz's ex- explanation is, is right. But the way that Steinsaltz explains it here, he's saying that this is how they've limited the case so that it's consistent with Rav.
Right? So that, so in other words, they're- I don't
BENAY LAPPE: think so. Yeah, you th- sorry, I didn't interrupt you. I was reading.
DAN LIBENSON: I think, though, because they, because they're saying that the case is, is different here because it is explicitly written, "And his sister." So- I
BENAY LAPPE: don't, I don't think so. Look at, look at the next line.
The Gemara suggests, "Let us suppose- I
DAN LIBENSON: know, that's what I'm saying. But, but I'm saying that, that... I, I get it. The next line is, is suggesting that it's inconsistent with Rav, but that's where Steinsaltz's- Right ... uh, explanation here is questionable. But I think according to Steinsaltz, he thinks that it's consis- that it's consistent with Rav.
But y- shall we go on and try to puzzle it out?
BENAY LAPPE: Yeah. Yeah
DAN LIBENSON: Okay, so, so it goes on to say, "The Gemara suggests let us, so let us derive a general principle that human dignity takes precedence over all the mitzvot in the Torah from this case. That possibility is re- rejected, because this is a special case of sit and refrain from action." « Sheiv v'alta ase » So the issue here is that, um, that the, the, the mitzvah, uh, the- in other words, that what he's, he's gonna end up doing in, is not bringing the Pascal lamb or not bringing the, not circumcising his son, right?
So he's not actually gonna be violating another commandment in order to, um, accomplish this commandment. He's just going to fail to do a commandment. Uh, so that's, that's it. So we can't ju- we can't, we can't say that you should violate a, a mitzvah in the Torah, uh, in, for the dignity of a ma- mitzvah. We can only say this more limited thing, that you can put off a, a mitzvah in order to do that.
I'm not, I, the, the, the quest- There, there- Go ahead
BENAY LAPPE: The reason I think that we don't knock down the apparent contradiction to Rav until this point is
That it's not knocked down until this point. In other words- I agree ... the only reason... Yeah.
DAN LIBENSON: I agree. So it's con- it's confusing because the, the, the, what they're... So the bottom line of, of what they're saying, and we only have, like, five minutes, so, so we should just, like... I think, I mean, I think that the bottom line of what they're saying is that, um, is that the way we're gonna limit this in the end is by limiting the case to, to only situations of shev v'al ta'aseh.
In other words, the, they're gonna limit... We're not gonna say you can violate the don't dos, like Rashi said. We're, you're not, you can't, you can't violate the thou shalt nots in order to bury a mitzvah, but you can, uh, fail to do mitzvahs, right? Or you can, um, put off mitzvahs in order to do this more important mitzvah, which is actually not such a big, important principle.
Like, that, we all, we, we do that all the time. Like, I, I, I wanna give charity today, that's a mitzvah, but I have to go to a funeral, I'll give charity tomorrow. I haven't done anything wrong. I've just, I've just put it off. Now, these cases are a little bit different 'cause they're a little bit more significant, like the Pascal lamb, but you can bring the Pascal lamb a month later if you're impure.
Right. And circumcise your son, you should do it, but if for some reason something got in your way and you have to do it the next day, you can do that
BENAY LAPPE: Right.
DAN LIBENSON: The, the, what I'm confused about though is the Nazarite dimension here, is that, that for the Nazarite to bury the mitzvah is a violation of the Nazarite vows.
BENAY LAPPE: That's what... Go, go back to the, to the translation. That's what was being explained right after the part. Let's see. "Engaging in the burial of a mitzvah is not actually in contravention of a mitzvah." I think it doesn't actually say in the T- Is that what it's saying? It doesn't actually say in the Torah that you have to bury a mitzvah?
Let's see. It
DAN LIBENSON: doesn't say that. Okay. That's what they got there from the sister.
BENAY LAPPE: Right. Good. Okay. "Rather, by doing so, by a Nazir burying a mitzvah, he becomes ritually impure, and is then rendered incapable of fulfilling that mitzvah." What mitzvah?
DAN LIBENSON: The, I think they mean the Pascal lamb or circumcising the son, but that's not only true of a, of a Nazarite.
That would be true of any person who becomes impure from a corpse, and then can't sacrifice the Pascal lamb.
BENAY LAPPE: Or is it he becomes incapable of fulfill, f- of fulfilling the mitzvah of being a Nazir? No?
DAN LIBENSON: Oh, maybe.
BENAY LAPPE: We cannot derive a general principle from here that human dignity would also o- override a Torah prohibition in a case where that prohibition is directly contraven-
DAN LIBENSON: Okay.
So maybe, maybe I'm, maybe I'm, uh, misunderstanding the, the extent of the Nazarite vows, and maybe it's not quite as bad as I was portraying it, that if you be- if you're a Nazarite and you become impure, okay, well, you're not really a Nazarite anymore, but it's, you haven't done anything, like, horrible. Like, you, you've, you've just, you've just kind of it e- You're, you just can't do...
You can't continue to do the mitzvahs of being a Nazarite.
BENAY LAPPE: I, I think that might be it. Okay. All right. I think
DAN LIBENSON: that might
BENAY LAPPE: be it.
DAN LIBENSON: So, uh-huh. So in that case, okay, so the, so if it's, if it's that, then at the end of the day what they're saying is that the only thing that's happening because you buried the mitzvah is you're not able to do some, some mitz- You're not able to do positive commandments that you otherwise would've been able to do.
That's not so terrible. Right. And- Uh, but it's not saying that you can violate negative commandments, which is a much more severe thing.
BENAY LAPPE: That's right. So at this point, what we're left with is the concept of prioritizing human dignity over the following of the Torah-
is what you should do only to the extent to which you are either violating only a rabbinic law or a positive Torah law, a law that you aren't doing that you should do. That's okay. But excluding the, the m- really more difficult case of actively violating something you shouldn't do.
DAN LIBENSON: Uh-huh. Which is not nothing.
BENAY LAPPE: Right. So they've actually preserved, like, three quarters, right?
DAN LIBENSON: Let's say half.
BENAY LAPPE: Or, h- half, yeah.
DAN LIBENSON: But I'm meaning, like, th- th- 'cause it's not the importance. Like, they've got the, the really- Mm-hmm ... the really serious stuff they kind of swept away. But the, but they're still saying it's, it's something.
BENAY LAPPE: Yeah.
DAN LIBENSON: Um, it's, uh, you know, it's, uh, it's both unsatisfying and also not as unsatisfying as if they had just thr- blown it up completely.
BENAY LAPPE: Yeah. And now I, I, I have to learn more of the context in those five other cases where the beraita do not, "Greater is human dignity than-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: any law in the Torah." But I'm thinking of one in particular that I know a little bit, which is... It's interesting. You, you can, before toilet paper or in a pandemic where there's no toilet- There, there actually was toilet paper.
Didn't we all buy a bunch of toilet paper, and we didn't have any problem with toilet regardless. Before there was toilet paper, apparently people used rocks, okay- Okay ... to clean themselves in the, the lavatory. Okay. And, uh, the case comes up, can a person take a rock and carry it with them to the outdoor lavatory to clean themselves on Shabbat?
Now, moving this rock on Shabbat is actually considered a violation of Shabbat. It's actually a, a capital crime.
DAN LIBENSON: Hmm.
BENAY LAPPE: But it's permitted on Shabbat. Why? Because of human dignity, and they cite that clear beraita, "Greater is human dignity than even..." Um. Right. So maybe they take care of restoring the, yes, human dignity even should take precedence over violating a negative in the Torah on a case-by-case basis- Hmm
to reestablish it. May- maybe that's what's going on. I'm not sure.
DAN LIBENSON: All right. Well, maybe we should, uh, sort of take a look at some of those, uh, in, in a future week. So like I said, we're going, uh, we'll be... Next week, we have a wonderful interview with a, with a great scholar, Gwen Kessler. Uh, and after that, we will, uh, play it by ear for three weeks, and then we'll, we'll be back, uh, at the end of July.
But, um, but we, we might be back in the weeks ahead and, and maybe we'll look at some of those texts and, and we definitely have other, uh, plans. So we'll see you then.
BENAY LAPPE: Okay. All
DAN LIBENSON: right. Thanks, Dani
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