The Oral Talmud Episode 70: Cultivated Common Sense (Bava Kamma 83b)
SHOW NOTES
“Don't think for a minute that the Torah actually meant money at the beginning. It actually did mean an eye and we changed it because that's what we do. That's what our project is. Our project is upgrading Judaism to fit the needs of Jews today and the world today.” - 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.
What if the most important interpretive tool in the Talmud is basically: “Oh, come on”? In this episode, Benay and Dan encounter an argument for taking “an eye for an eye” literally that cuts through layers of textual gymnastics by simply appealing to reality. And that leads them to a surprising possibility: maybe svara isn’t only lofty moral intuition. Sometimes it’s just cultivated common sense.
But once you start looking for svara that way, you see it everywhere. It may never announce itself, yet it quietly shapes and evolves the tradition, much like judicial discretion operates inside a legal system. Dan and Benay ask what happens when we stop searching the Torah for hidden meanings and trust something much closer at hand: our capacity to look at the text, look at the world, and say, “Come on. We know better than that.”
This week’s text: Bava Kamma 83b
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 70: Cultivated Common Sense
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 important interpretive tool in the Talmud is basically: “Oh, come on”? In this episode, Benay and I encounter an argument for taking “an eye for an eye” literally that cuts through layers of textual gymnastics by simply appealing to reality. And that leads us to a surprising possibility: maybe svara isn’t only lofty moral intuition. Sometimes it’s just cultivated common sense.
But once you start looking for svara that way, you see it everywhere. It may never announce itself, yet it quietly shapes and evolves the tradition, much like judicial discretion operates inside a legal system. We ask what happens when we stop searching the Torah for hidden meanings and trust something much closer at hand: our capacity to look at the text, look at the world, and say, “Come on. We know better than that.”
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, everyone, and welcome back to this week's episode of the Oral Talmud. I'm Dan Lieberman, and I'm here as always with Benay Lapin. Hey,
BENAY LAPPE: Benay. Hey, Dan. Nice to see you.
DAN LIBENSON: Nice to see you after a two, a two-week or I guess a one-week break, uh, for Yom Kippur. So, uh, hope you had a good, good holidays. And, um, and, and Sukkot.
We're now in the middle of Sukkot so-
BENAY LAPPE: Yeah ...
DAN LIBENSON: um, so let's, uh, let's jump right into it. We're, we're on this, uh, like you say, a sampler, the sto- this, uh, set of texts or this text about the, the s- the question of, uh, the, the eye for an eye from the Torah. And, uh, you know, you've- we've explained it a few times, you know, this idea that by the time the rabbis, it's already clear that we don't take eye for eyes.
We, we ... It's, it's monetary compensation, and the big question is whether that was a radical change or whether that's what the Torah always meant. Uh, and so we've been playing with this idea of calling those two voices the actual eye voice, which is the one saying that the Torah actually meant an eye, and at some point there was a radical change where they said, "Well, we're not doing that anymore.
Now we're gonna do money." And, uh, the other one which we called actually money, uh, that that was- ... the one that says the Torah was always saying money but for whatever reason they ... You know, this is what we talked about last week I think a lot, was like if God really wanted it to be a certain way, like why isn't God more clear?
You know, you, I think you introduced last week that, uh, like, um, that, that idea that God is not a blabbermouth so that if we see extra words we have to find a meaning in them. And I almost feel like there should be some, some complimentary idea that God is not not a blabbermouth. In other words, like if God has something to say, God should just come out and say it.
BENAY LAPPE: Well, that was Rabbi Ishmael's whole Sheta. Right. That was his approach to Torah, that God is an author of communications, and like all authors and all communicators, God's goal was to communicate and actually be effective, and that required people to be able to understand the simple plain meaning of the text and to know that that was what God intended to say.
That was Rabbi Ishamel. And it was Rabbi Akiva who said, “No, you know, this is a unique kind of communication,” and God was a u- unique kind of communicator. And the jumping off point for R- Rabbi Akiva was that idea that God is not a blabbermouth taught to me by my late professor Eliezer Slomovic, alav ha-shalom.
And that allows you to drash and interpret out all kinds of meanings that depending on your theology or approach either aren't there or aren't obvious, um, that allow the Torah, all of that allows the Torah to be Omni significant.
DAN LIBENSON: Right, right.
BENAY LAPPE: And, and I've, I really appreciated the way you started off by saying, "The question is."
It's not really that obvious what the question of this sugya is. The first number of times I learned it, I thought the question was should we do money or should we do physical retaliation? Mm-hmm. And it wasn't until I had learned it many times that I realized, and learned a little bit of history, no, that's not the question at all.
No one's opening up what has already been established law as monetary compensation for physical injuries. And the question isn't what do we do, the question is given that we do that, monetary compensation, are we deviating from the Torah or are we not? Can we deviate from the Torah, can we not? And, um And how do we sell radical deviations from the T- The answer is, of course, yes.
And how do we sell these radical deviations to the people so that they come along with us? Okay.
DAN LIBENSON: Mm-hmm. It's interesting, like, th- this is, um, something we'll come back to I know but it's, it's... As I'm thinking about this question it, it feels to me like, I mean look, we have to take certain, certain axioms that I think we're, we agree about and we're playing with which is that whoever wrote the Torah, whether it was God or people didn't really bury a bunch of hidden, uh, meanings into it.
You know? It, it, tha- that here and there there's just like symbolism, like any great author will put metaphors and symbolism in, in their work. And so I'm not saying that everything is only what's on the surface, and maybe that was Rabbi Ishmael's view and I would say, I would take it a little further and say no, there can be a kind of second level of meaning in great literature so I'll, I'll give you that.
But the, uh, what's the word? Like, the, um, u- um, the, um, occult right? The occult kind of, i- meaning. Like, the idea that there's these really secret like numerologies and all kinds of things like that. Like, I really think that that is not there. And- I
BENAY LAPPE: happen to agree with you.
DAN LIBENSON: Yeah. And, and I think that the, the interesting thing is that on the other hand I, I totally understand and sort of approve of the move that says, "Look, we're trying to have a chain of tradition here."
The whole world that we've experienced has had upheaval, and we can't have these biblical laws anymore. You know, we can't have people gouging out each others eyes. So we're going to have to find some way to either, we're gonna have to find a way to change that rule. We're gonna either have to kind of ground that rule in some way, and I think that both of these voices represent two different ways of doing it, but they're both trying to kind of ground the idea that we, uh, are not gonna do what the Bible seems to be saying in some kind of claim of tradition, some kind of claim that it's really what God wanted in some way or another.
And, um-
BENAY LAPPE: That's
DAN LIBENSON: right ... the way to do that if you acknowledge the radicalism or the, or, or, well no, the way that you do it t- if you don't want to acknowledge the radical side, right? 'Cause one way to do it is to say the g- the sort of, um, power of God was delegated to the rabbis and times come when times change and God knows that and God has asked the rabbis to change the law when necessary.
And that's, uh, that's, uh, a kind of, that, that makes sense as, as one way to do it. But there's another view, the one that says no w- i- that level of delegation does not happen and so if you really wanna make a change like that you're gonna have to find it in the text itself. And the only way to do that if the, if the change is gonna be substantial is to have- You know, occult.
H- hidden, secrets, right? Because you, you can't even find a, a metaphor. You know? It's, it's not there. And so you have to believe in this kind of secret stuff.
BENAY LAPPE: Right. And that- And, and, and you need a whole sampler of techniques-
DAN LIBENSON: Yeah ...
BENAY LAPPE: to use to, quote unquote, "find" these new meanings in the text. Right.
DAN LIBENSON: Yeah. And I mean, uh, we don't have to sort of discuss it deeply right now, but I'm thinking like
And the reason why you need so many is because it's really not there. You know? Like, it's ... So, so it's all, you know, we've talked about this, it's all kind of ... There's something that you call magic, you could call it something else, but there's something going on because it's really not there. And now the question becomes, to me, this is what I'm sitting with as we've been going through this, is like, okay, once I acknowledge all that, what do I do in our time, right?
Where I, where now we all know it's not really there. You know? So, so now what do we do, right? And how do we, how do we sort of attach ourselves to that chain of tradition in an new way where we can acknowledge that ... And I don't mean to put down what's going on in the Talmud by that. I say, like, we look back at that as a time in our history when we did it this way, eh, b- because p- maybe that was what the societies around us did, that was
People were willing to accept that, they w- they were looking for that. Maybe they lived, you know, I don't know exactly the story of like Babylonia and what Zoroastrianism is like exactly, you know. But if you think that here in America we live in a country that's highly influenced by Christianity, you know, there they were living in a country that was highly influenced by Zoroastrianism.
Maybe there are things in Zorostri- Zoroastrianism that, that connect to this kind of occult idea. Um, and it made sense culturally for them to, to do it that way. Uh, so anyway, I'm just, I'm just thinking, like, on the one hand I honor that, and on the other hand doesn't meant that we have to keep doing it that way any more than they honored the Torah but didn't need to necessarily do it exactly the way that the Torah itself did it or saw it.
BENAY LAPPE: Yeah.
DAN LIBENSON: That's where I'm holding right now.
BENAY LAPPE: Yeah Well, I- I'm, I'm still excited about your idea that you shared a f- a number of weeks ago which is we're probably not gonna sell anybody on any innovation using Agasaya Shava. Yeah. It's, it's just probably as- Today ... w- we're gonna have to retire that one. Sure.
But the fact that that one is not, is no longer believable doesn't mean some of the others aren't. Mm-hmm. And some of the others are not as outrageous or sort of illogical.
DAN LIBENSON: Yes.
BENAY LAPPE: Um, and they're not that different from techniques we'd use to understand Shakespeare or other kinds of literature.
DAN LIBENSON: And that's a great transition to today's sam- stitch in the sampler because it's, it's a much more plausible one.
BENAY LAPPE: Yeah.
DAN LIBENSON: You know? It's a, a one that works better in the way that we think today.
BENAY LAPPE: Right. So just to remind everyone of the principle that if you have one good proof, you give it, and if you don't have a single good proof, you give two, um, reminding them that this is a chain of not only, not just two bad proofs, 10 proofs.
So it's, it's 10 attempts to
Find m- monetary compensation for physical injuries in the Torah. Some succeed very shakily, like our first attempt. Some outright fail. So just wanna say that there will be 10 attempts. So when we say proofs it's not that we have 10 successful proofs, we have 10 attempts at locating monetary compensation as a punishment for physical injuries in the Torah.
Okay.
DAN LIBENSON: Yeah. Okay, so we are starting a new one today, a new stitch in the sampler, a new, a new kind of proof. It's not just a new proof, it's a new kind, a new technique. Like you said this is... Right? Th- this is potentially can be seen as a little, a little mini textbook, a little mini law textbook that's showing law students, rabbinical law students here are the various techniques that we use and maybe they all don't work here but you can use them elsewhere.
This is like a, almost like a CliffsNotes or a I don't know, tho- those little cards that, you know, what everything's on one page and you can like, you know, study f- cram for the test, you know?
BENAY LAPPE: Right, exactly. The cheat sheet you're allowed, the one sheet you're allowed to bring- Yeah ... in the test. Yeah. The one sheet you're allowed to bring into some new Halakhic problem.
DAN LIBENSON: Yeah.
BENAY LAPPE: Yeah. I love that .
DAN LIBENSON: All right. So, so let's, uh, start to look at the, at this next part of the text, uh, of the text. Okay. So again, we're Bava Kamma 83b and, uh, the Talmud says, "It is taught in a baraita." So, again, a baraita is a piece of law, a piece of material from the time of the Mishnah that didn't actually make it into the Mishneh.
So some, some old guy that we respect, right, Rabbi Dos Thai Ben Yehuda says, "The phrase 'an eye for an eye' from Leviticus means monetary compensation." So this is that voice trying to say that it, um, it always, the Torah always meant monetary compensation. Right? So it's the less radical position.
BENAY LAPPE: Right.
DAN LIBENSON: And now is he saying this or is the Talmud, uh, saying the next line?
A
BENAY LAPPE: different vo- A different voice.
DAN LIBENSON: Okay, so a
BENAY LAPPE: differen- We're s- We're still inside the Baraita but it's a dialogue.
DAN LIBENSON: Okay. So, so he says, "'An eye for an eye' means money," and the other voice says, "Do you really mean to say that he must pay the victim monetary compensation or isn't it teaching none other than an actual eye?"
So then- Right ... the voices are saying it says an eye for an eye. That's pretty obvious that you read that it's poking out somebody's eye.
BENAY LAPPE: Exactly. So this is the, the Maksha, the challenger to Rabbi Dos Thai Ben Yehuda.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So now- And the challenger is saying mamash, it's actually An eye for an eye. That's what the Torah meant.
It's what it says, and that's what it meant
DAN LIBENSON: And essentially, that's kind of the plain meaning, you know, originalism sort of... Like, plain textualism is a better word. You know, we just read it, and it's pretty clear. I mean, this one is pretty clear.
BENAY LAPPE: Right.
DAN LIBENSON: Um, you know, parentheses to the extent that this one is not pretty clear, as it turns out, right?
Like there's a lot of other bad stuff in the Torah that seems like it's m- it's even a little less clear than this that I, I feel like, you know, right, This gives us some license to, to play with. Um, so, so, uh, so then Rabbi Dostai ben Yehuda replies, "No." Right? No, it doesn't, uh, it doesn't mean just poking out an actual eye.
BENAY LAPPE: Yeah. It may or may not be Ravi Dostai ben Yehuda himself. It could be someone challenging the claim that eye for an eye means actually an eye for an eye.
DAN LIBENSON: Okay.
BENAY LAPPE: So this is the challenger saying, "No, the Torah can't mean literally an eye for an eye, and here's why."
DAN LIBENSON: Okay. So i-... So if you were to say that, right, meaning if you were to say that an eye for an eye means you poke out somebody's eye in return for them poking out your eye-
BENAY LAPPE: Right
DAN LIBENSON: then you have a problem.
BENAY LAPPE: Right.
DAN LIBENSON: If, if the eye of this one is large and the eye of that one is small, how could I literally carry out an eye for an eye in th- in such a case?
BENAY LAPPE: Okay. Great. So it's a v- it's very literal and simple argument. An eye for an eye looks like it means Equal and exact, um, punishment for a crime of the same nature.
So if I poke out your eye, you poke out my eye. The problem this voice is saying with that is one can never literally do eye for an eye because inevitably or in most cases, one... The, the perpetrator's eye is going to be a different size than the victim's eye, and if the victim poked the eye of the perpetrator back, there would be
an unequal kind of, um, punishment.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Because if your eye was bigger than my eye, you poked my eye out, and I poke your eye out in return, I'm now taking a bigger eye- Right ... than the eye you took. You took a little eye. So if I do eye for an eye, I'm now doing an unequal punishment, and eye for an eye implies, says this voice, mamish equal, uh, equalize.
DAN LIBENSON: Yeah. I mean, and that reminds me of the Bensur Emore, the stubborn and rebellious son text that we looked at, where towards the end there it was like this kind of absurdist idea that, uh, when it said that the mother and the father have to, uh, both have to say that he should be stoned, like i- they have to have the same exact voice.
Because otherwise, you know, it's not just that they both have to say it, it's that their voice has to sound exactly the same. And of course, you know, a mother and a father are unlikely to have exactly the same sounding voice. So, you know, so it's like okay, yeah, once you start doing that, it kind of shows that you're, you're just trying to make this legislated out of any meaning.
And, and here it feels like that idea is getting introduced much earlier.
BENAY LAPPE: Yeah. It, it... That's an interesting parallel because here this kind of hyper literal challenge is going to be itself challenged.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Basically with the argument which we're gonna see in a minute of, "Oh, come on."
DAN LIBENSON: Yeah.
BENAY LAPPE: And, and that, the oh come on voice doesn't actually get articulated as a challenge to that read of height and voice and so on.
Um, I guess this, the oh come on voice is equivalent to the, Come on, w- we, we know it never was and never will be. Uh, I have to think more about how these two relate.
DAN LIBENSON: Well it also, it also strikes me that like if ... I, I know, I know that you're not making, I think you're not making the claim that this was actually inserted into the Talmud as that one page cheat sheet, or maybe you, maybe you are.
If we are, if we are thinking of it that this is actually like a mini little textbook inserted into the Talmud, then maybe one of the reasons why that challenge gets raised is because that's the whole point of this section. It's to show you all the types of arguments and the challenges that can be made.
And back in, in the, the Stubborn and Rebellious Son, that wasn't what that, the agenda of that text was. The agenda of that text was something similar but different, or maybe it was more about how do you sell it to the average person. And so, you know, they could have, I mean now having read this text, you would go back to that text and of course you would raise exactly the same objection.
But they didn't in that text. You know, either that was a, a fail, like somebody didn't think of it, or that the agenda of that text was, was other than giving you the whole, uh, the whole span of the arguments.
BENAY LAPPE: Yeah. Maybe, that's interesting. I have to s- I have to keep thinking more about that.
DAN LIBENSON: All right. So the- Okay
the bottom line idea here is that the, uh, voice that's c- uh, that, that, that's really ultimately gonna say that the Torah meant money all along is saying it, it can't have meant... Like there's no, that you think, that you think the surface level meaning is poke out your eye y- you poke their eye. You think that's the, the s- the straight plain meaning.
But, but it's not because if you read it plainly it says an eye for an eye, meaning that of course the eyes have to be the same. And we know that no two people have the same eyes. So you can't actually read it as meaning you actually poke out someone's eye i- if they poke our your eye, and therefore it must mean money.
That's all, that's what's left, right?
BENAY LAPPE: That's right. Exactly. Exactly right.
DAN LIBENSON: Which is just like, I, I don't, there, I feel like that's one of those like logical fallacies, right? Where it's like you can't quite say where, where the problem with this logic is, but you know it doesn't work. You know, it's like A equals B, then B equals C, and C equals
But somehow, you know, you, you, you drop something in there that didn't quite, you know, there was an axiom that you've dropped in th- that's not really an axiom.
BENAY LAPPE: Right. Right. Right. It's, it's playing on the seemingly shared notion that The word for in the middle of one of these phrases- Uh-huh ... the word tachat.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Eye for an eye, hand for a hand. That we all agree that that means h- h- hyper literally.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Equal. Mm-hmm. Yeah
DAN LIBENSON: Yeah
BENAY LAPPE: I think that's what's going on. Okay.
DAN LIBENSON: So, um So, and so, so if the eye of this one is larger than the eye of that one is small, how could I literally carry out an eye for an eye in such a case?
BENAY LAPPE: You
DAN LIBENSON: couldn't. And then you're going... Yeah, you couldn't. Right. Yes. And if you were going to say that in all cases like this where the eyes are different sizes, take money from him; but in cases where they're the same size, take the actual eye. The Torah sh- said, "You shall have manner… You shall have one manner of law."
So if I understand this, they're, they're saying that there's a... Okay, so let's say we accept that idea, that generally speaking, you, you can only poke out somebody's eye if it's the exact same. Um, but then you could come back and say, “Okay, fine.” So what we're gonna do here is, uh, is we're gonna distinguish the cases basically.
We're gonna say there's two kinds of cases. There are some cases where the eyes are different. Those, of course, we have to do money because of ex- exactly this reason. It can't be the... But there are gonna be some cases where they're exactly the same size, right? Here we're still talking about size. We're not talking about color and maybe other ways in which they're distinguished, but-
BENAY LAPPE: Right
DAN LIBENSON: but we can imagine that here and there, there are two people that get into a fight and one pokes out the eye of the other, and it turns out their eyes are exactly the same size. So that problem doesn't exist in that case.
BENAY LAPPE: Exactly. And, um, and maybe the Torah is only applicable to the cases where the eyes are the same.
Mm-hmm. And we should, you might, or you might think, in such cases you should do actual physical retaliation, literally an eye for an eye. But this voice says no, if you were gonna say that, um, that wouldn't work. You couldn't preserve eye for an eye e- even in that subset of cases, because the Torah says over there in, uh, Leviticus, "There should be one law for all of you."
DAN LIBENSON: Right.
BENAY LAPPE: Meaning the law should be the same in all cases, or the punishment should be the same in all cases. The law should be applied equally. You can't apply eye for an eye as literal in some cases and monetarily in other cases.
DAN LIBENSON: And it's funny because this specific line that you shall have one manner of law, you know, I always think of this thing.
Sometimes when I say something like the Torah, the Talmud often misquotes the Torah, and you will jump in and say, “Always. It always misquotes the Torah.» Right. Yeah. And I’m always like, «No, Bené, really, is it always?» Like, it's a lot of times, but not necessarily always. And then, and then I looked at this in Leviticus, you know, which is here, and I'm like, as I'm reading I'm like," Oh, here, you know, this is, oh, this is actually right attached to this whole part about the business of the, the life for life, an eye for an eye.
So actually this whole thing about you should have one manner of law is, is part of this. So you can't exactly say it's out of context, because it actually is right here in this exact spot. And then you kind of read on and you say, "You shall have one manner of law"- For a stranger and citizen alike. You know, so then they, they quote it, "You shall have one manner of law," dot, dot, dot.
Right? You know, it's a, it's ... So it really is a misquotation because what Leviticus is clearly saying here is when it says you shall have one manner of law, is don't treat a stranger or foreigner different from a citizen. Not, not that you have to have the same rule if the eyes are different sizes and the eyes are the same sizes.
It has nothing to say about that whatsoever, at least not on a surface read.
BENAY LAPPE: Right. I still stand by my hypothesis.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: At every single time. I, I, I don't know for sure, but I'm really feeling that that is true. Every single time-
DAN LIBENSON: Well this case would not disprove it. Yeah.
BENAY LAPPE: Right. So far the hypothesis stands.
Yes. They're going to... Right.
DAN LIBENSON: Yeah. So I mean, when I, when I looked at that in preparing for today, I was just like, "Oh man. They did it again." You know, like, um, e- and it's so sneaky, you know, because the, because the quote here is just that you shall have one manner of law. And, um, sometimes in the, um, Steinsaltz, you know, the, the translation that's on Sefaria, sometimes when there's a quote from the Torah they will give you the whole quote, you know, and only put in bold the part that's actually quoted.
Here I, if I recall correctly, they, they didn't actually. Like, sometimes we alter the translation and we'll, we'll remove words that we think are, you know, uh, wrong. But I, I don't think we did that in this case. I think that here the Steinsaltz only quoted this bolded part, and that also strikes me as kind of sneaky.
You know, because, um, I mean, you know, 'cause Steinsaltz knew that you couldn't have given the full quote because then y- you would quickly see like, oh, this, this isn't, this doesn't have anything to do with that.
BENAY LAPPE: Yeah. It, it's interesting that you mention that particular translation because we know that there are certain pietistic translations that are invested in making the claim that the Talmud, the opposite claim from what the Talmud is making.
Which is- The Torah always meant money.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And you're, and you're right, they're going to translate in such a way that the problematics of that claim aren't apparent.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Yeah. And, and to go a step further, the Midrash uses the word shaveh. I see the translation of that as equal here, but it, it, it means-
DAN LIBENSON: Mm-hmm
BENAY LAPPE: you know, I t- I... This is shaveh. It's-
DAN LIBENSON: Yeah. It, it means, like, identical
BENAY LAPPE: I- Identical. Identical, yes. It's more like identical.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: That's the midrash, which is clearly not the pshat.
DAN LIBENSON: The midrash meaning the Talmud's explanation to you of what this quote means?
BENAY LAPPE: That's right. The, the, the, this verse is being brought in by the position that says, "Oh, no, no, it's impossible for eye for an eye to mean actually an eye for an eye," because you could only do that in some cases where the eyes are actually equal, and then you'd have to do money in the other cases.
And that situation is impermissible- Mm-hmm ... because the Torah says, uh, there shall be one law for all of you, and then it interprets that verse as there should be an identical law for all of you, which is not what the verse was trying to teach in its pshat.
DAN LIBENSON: Yeah. I mean, what the ver- verse is trying to teach in its pshat, in its surface meaning, is a beautiful thing, right?
It's saying, "Don't treat non-citizens badly." You know, don't think that the members of the club have one law and the non-members have another law. And here ... And, and it's not that the Talmud ignores that meaning, I think the Talmud affirms that meaning elsewhere, but here it's just giving it a completely different meaning altogether, which, which is some version of, you know, the same – I don't even know how to say this in, in, like, legalese, you know, right?
But, like, the, the same exact legal positioning tr- you know, has to exist for every type of case, uh, of a certain genre, you know? That is not what the Torah says it by any stretch.
BENAY LAPPE: That's right. Th- I, I'm getting that, you know, very common, the very popular, uh, cartoon, you know, of the three children of different heights and the difference between equality and equity.
Uh-huh. Right. You know that cart- cartoon, right? And equality is they all, they all have the same size block to stand on. Mm-hmm. And equity is they all have the different sized blocks depending on what each one needs in order to see over the fence.
DAN LIBENSON: Right.
BENAY LAPPE: Interpretation, the Midrash on this verse is we can't do equity. We can't alter the way we, uh, apply- Mm ... our laws, um, because that isn't equal. It has to be- Uh ... equal, and equitable is not, uh-
DAN LIBENSON: And, and so since we can't do equity, we have to understand that, of course, it meant something different, which in this case meant monetary compensation, which you can potentially do.
You know, you can say, well, I mean, that would be its own sort of analysis of how we figure out the monetary competition, but that's not for now.
BENAY LAPPE: Right. Okay. So at this point, it looks like the, the position, the Mamon position, the position of the Torah always meant money- Mm-hmm ... because it couldn't possibly have meant anything else.
Couldn't possibly have meant actual physical retaliation because of the problem we just raised, is on top. That position is now done, and that position is like QED. Okay. Yeah. Great.
DAN LIBENSON: But no, there is a reply.
BENAY LAPPE: There is a reply.
DAN LIBENSON: So the position, the position that says, uh, no, it actually ... You could say that it, that it meant, um, you could say that it meant, um, actually poking out an eye, and this position, I guess basically affirms the reading of the quote from the Torah that says, "Okay, I'm gonna accept your read that the 'You shall have one manner of law,' does mean that we have to find a way to put all the cases in the same bucket."
But the way that we're going to do that is we're gonna say what is, what is the problem? That's right. Perhaps what was taken from him was eyesight, so the merciful one states that, "Eyesight shall be taken for him," Uh, "shall be taken from him. For if you do not say this..." And then there's a long, hold on. "For if you do not say this, as s-" Well, so we'll go, I think we'll come back, come to this example in a second, right?
But, but, uh, the basic idea here is they're saying, oh, no, no, no, don't, don't get confused here. It's not about the eye and the eye being, you know, different. It's about, say, different sizes. You know, it's about what the eye does, which is provides eyesight, and that is being taken away in both cases, and so therefore now they are equal.
They... And, and one eye might be larger physically, and the other one might be smaller, but they're both providing eyesight, and so if you poke them out, then you're, you're in a, y- you do have an identical case, and it does fit with that Torah supposed, supposed Torah principle that the law has to be the same for all cases.
BENAY LAPPE: That's right. So this is the voice of reason. Th- this is really a Svara idic, um- Challenge to the challenge, to physical retaliation. And this is the, this is the voice of this, "Oh, come on. Oh, come on, don't be ridiculous. Don't be ridiculous." Uh, sizes of eyes are irrelevant. It's the impact of the blind- so the impact of the injury, the eyesight being taken away that's really what's going on.
One could make a, an eyesight for eyesight, um, kind of punishment. That's perfectly fine. And, um Therefore, we're resurrecting the possibility that an eye for an eye could literally mean an eye for an eye.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Let, let, let, let me sit back and think and try to articulate what's a little bit slippery about these 10 quote unquote proofs.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: They're not all attempted proofs for the Torah meaning money. Some are attempts at proving that the Torah couldn't possibly mean actual eye.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And by default therefore... I, I mean, I guess that is still a proof for mamon by default, but some are these default type of proofs.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Not proving, you see because there's a, a vav over here and a vav over here, gezera shava whatever, the Torah meant money.
But here's a reason why the Torah can't mean actual physical retaliation. It can't mean any actual eye, therefore, um, money is a possibility.
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: So I don't know what to do with that, but that's what we have here. So number two, this second quote unquote proof doesn't actually prove that the Torah actually meant money, and money is, um, you know, the, the radical claim that money is what the Torah always meant.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It's simply squashing ... Let me see if I've got that right. It's squashing the challenge to the Torah possibly meaning actual eye.
DAN LIBENSON: Right. Right.
BENAY LAPPE: Um, in a very, in, by us- by using logic. Hmm. By simple reasonable logic. And I don't wanna, you know, give away too much, but every time the Gemara is going to try to show that the Torah couldn't have meant actual eyes, the argument that actually it could is gonna be a Svara argument.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It's gonna be logic. All the good stitches, right? Yeah. All the, all the good arguments are the stitch of Svara.
DAN LIBENSON: Huh.
BENAY LAPPE: Even though it's not named Svara.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: But here it's the logic. It's, it's, "Oh, come on." And here comes actually the r- the Svaradic rationale. It's gonna come right now.
DAN LIBENSON: Before we get to that, I just wanted to raise like my objection to the eyesight being the solution, is that couldn't we say that people have different qualities of eyesight, and this person is nearsighted and this person has 20/20 vision, so it's not actually the same?
BENAY LAPPE: Yeah. You can. And not only that, um- You're going to have in the very, in proof attempt number three, a very similar challenge. What if a blind person Blinds a victim, right? Who had been sighted. That person can't take away sight in return because the perpetrator was blind. So that's gonna come up-
DAN LIBENSON: Right ...
BENAY LAPPE: and, uh, that is gonna be solved in a, with a different kind of, oh, come on logic.
Right.
DAN LIBENSON: I mean, yeah, and then that's similar but not quite the same as what I'm raising. But I, I, you know, I, I'm ... It's just, um, I don't know. I mean, part of it also makes me wonder about like the sophistication about, um, how they understood eyesight back then too, right? Sure. I mean, it may be that someone, like, with vision like mine without glasses would have just been considered blind.
BENAY LAPPE: Yeah, but, but I think that, that the sometimes impossibility of doing equity as an argument against exact retribution is going to be brought up in the very next proof.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So I think, I think-
DAN LIBENSON: Okay.
BENAY LAPPE: Yeah.
DAN LIBENSON: So the, so the, the, um, the kind of, um, uh, continuation of this claim, of this idea of that it, that it really means eyesight offers now a kind of a logical, uh...
You know, 'cause it, it has to be eye site for eye sight because if it wasn't, here's this case that would come up that would be absurd, right?
BENAY LAPPE: That's right. And, and the following is going to be evidence that everyone agrees upon. That, um, that this challenge to the Torah actually meaning an eye for an eye is a, is a, i- an ineffective challenge.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Okay.
DAN LIBENSON: Because, because what, what would arise if, if we said it, it, i- if we didn't say that it was eyesight for eyesight, uh, that you actually could poke out the eye, then there would be this case of a small person who killed a big person or a big person who killed a small person, and we know that the punishment for a murderer is death.
So, and, and we've, we've never heard anybody raise an objection to the death penalty that, uh, they were of different sizes. You know, so therefore we know that, that, that, that that case you, you can do it and nobody comes and says you should have one manner of law for everyone. So how could we possibly kill somebody as a punishment if a small person killed a big person or a big person killed a small person if we accept this idea that the sizes of the eyes matter in terms of whether you can, uh, d- actually do an eye for, an eye for an eye is poking out, right?
BENAY LAPPE: Exactly. Exactly. And no one, even, even, you know, both sides of this argument, no one thinks that You know, our hands would be tied if a big person killed a little person or a little person killed a big person as to whether we could exact capital punishment. Nobody thinks that. Mm-hmm. So this is a, um, obviously a reference to an understanding that the challenger already has agreed to not hold as a valid challenge.
I don't know if I got that right, but...
DAN LIBENSON: Yeah, and the, and the, the text goes on to sort of lay this out. Says, look, uh, so again, nobody says, but you could, you could say that, right, if this logic held, you could say a small person kills a big person, big person who kills a small person, how can we kill him as a punishment?
After all, the Torah says you should have one manner of law. That is, the, the law should be equal for everyone, and we know that people don't say that. Right. So therefore rather, you know, the, the, the f- the reality is rather, we do apply the death penalty because a soulfr- a soul he took from him, so a soul, the merciful one said we should take for hi- from him.
So in other words- In
BENAY LAPPE: the case of a big person or a little person committing murder against someone of a, of a different size, right.
DAN LIBENSON: But so, so the, uh, well, as I understand this, the, the, the, this voice is saying, "Look, the, the, the issue is not whether a body, a large body killed a small body, and therefore, you know, the, the punishment doesn't fit the crime."
What's happening in murder is that a soul is being taken. The size of the body is not the issue; it's that the soul is being taken, and in return, a soul is taken from you and in the same ... And that matches the idea that when you poke out somebody's eye, we're not worried about the, you know, aesthetics of it.
We're worried about the fact that now the person can't see, and that is the same circumstance that's going to happen to the perpetrator once we poke out his eye. He will also not see. And so the punishment will fit the crime in all cases, and, and it's not two different laws for, for different cases. It's the same law for the same case: In one case eyesight, in another case soul taking, and that's how we should understand things here.
And, and the text says, "And so too, eyesight He took from him, and so eyesight," the Merciful One said, "we should take for him, from him." So the, this, the analogy here fits.
BENAY LAPPE: Exactly. So where are we now? That's the end of quote unquote proof two. Where we are is the attempt to disprove that the Torah could have meant a literal eye for an eye has itself been disproven, has been defeated, and we're left with, hmm, the Torah could actually mean a literal eye for an eye.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: This doesn't prove the Torah means money Um, it just disproves that the Torah can't mean actual an eye- an actual eye. Right?
DAN LIBENSON: Yeah. And so... and which to remind us is the more radical position, right? Because it's the position that then says, "And now we do know that we give money," so that changed at some point after the Torah- Right
meaning kind of we have that power.
BENAY LAPPE: Right. It, I, I think it's interesting to ask, and I don't know the answer to this question ig- I don't know if it's any different than what we've always said, but it's just interesting that out of 10 attempted proofs-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: that the Torah always meant wink, wink, wink money-
DAN LIBENSON: Mm-hmm
BENAY LAPPE: f- Can I say how many are gonna fail?
DAN LIBENSON: Yeah.
BENAY LAPPE: Okay. Half of them are gonna fail.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And the obvious question is why did the editor put the failed attempts
In there. Okay, so I think... Let me, let me think it out because I th- I think I... The failed attempts are really failed... They're not failed attempts at proving mamon. They're successful attempts. No, no, no. No, wrong. Okay. They're failed attempts at proving that the Torah couldn't mean mamash. Okay, good. And, and so it does make sense.
It is, it is consistent that the editor would put those in because if we're right, and if David Kramer is right, my teacher, the, the editor is invested in actually undermining... Let me see if I've got this right. If the, the editors are in... The editor is invested in showing just how far From what the Torah did mean, our law is.
So the editor wants half of the time, the editor's gonna leave on the table. C- come on. It- there's no problem with the Torah meeting an eye for an eye.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It could have And it did, and we're not doing it anymore.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So it, it, it actually does make sense that the editor wants to leave on the table the constant reminder that there's no reason why the Torah never meant an eye for an eye as-
actually an eye for an eye, right? Do I have that right?
DAN LIBENSON: Yeah, yeah. I mean, I'm thinking like, you know, we were having this conversation yesterday off- offline, but this question about, like, when you look at the material in the Talmud, that there may be two agendas, uh, eh, you know, for the same audience, which is basically rabbinical students, right?
One is for you to understand what you just said, which is like, "Don't think for a minute that the Torah actually meant money at the beginning." It, it actually did mean an eye, and we changed it because that's what we do. That's what we're- our project is. Our project is upgrading Judaism to fit the needs of Jews today and the world today.
And if you're gonna go out into the world as a rabbi, you need to feel comfortable doing that because that's actually what our project is. But there's also something that's being given to you here, which is kind of a, uh, the marketing strategy for the people who, uh, wouldn't like to hear that. And we could argue and talk about who those people are.
Does that mean other rabbis? Hopefully not. Does that mean the, the simpletons? Is it ... Are, are we talking about, like, simple folk? Are we talking about not so much simpletons, but people that are not so invested in the, the rabbinical project? They just kinda wanna know that we're, you know, following the chain of tradition.
They don't wanna hear too much about radical changes, you know, so we're gonna give you various arguments. They're not the greatest. They're not, they're definitely not true, you know, but they're kind of, you know, like, uh, what does Stephen Colbert ... He says, like, uh, truthiness. You know, there, there's like, um- I- They're, they're, they're kinda true.
You know, there's something to them. And, and if you wanna kind of explain to people, like, "Oh, don't worry about it, the Torah actually never really meant poking out an eye. How horrible that our, our – You think that our people, the Jews, like, ever poked out people's eyes? I mean, like, that's – We would never do that.
The, the, the Torah ne-" You know, and then there's something – I don't mean it as like a kind of we're gonna lie to the people. I kinda mean it as like at some point there's a story that has to be told that doesn't put our ancestors in this terrible light, you know? And, and that story's – But don't you, as a rabbinical student, don't you get confused about, you know, these – Don't, don't confuse these two things.
You know, one is for us to know that we are comfortable with this, and the other is to know that the people may not be quite as comfortable, and we should kind of have other ways of ... So, you know, I mean, the fact, the fact that, that here we see the failures of those marketing arguments Is interesting, you know, because often the, the Talmud doesn't show us quite so explicitly how they fail.
BENAY LAPPE: Right. Um
As you were talking, I was thinking about how the rabbis need to speak to, to the people with whom they were unfortunately overly successful at selling Torah as the word of God. That's what got us into all this trouble, right? I know we've talked about it before. It-
Needing to sell innovation is, through the argument that that's what the Torah meant all along, is only a problem at- if you've made the claim that the Torah is the word of God. That- that's, that's, that's the core of the problem. And it was expedient and it got people on board and it got people thinking, "Oh yes I must behave this way and follow these rules."
Seems like a good idea but
DAN LIBENSON: It reminds me of this amazing article. It's one of my favorite articles in Jewish studies, uh, which is about sort of how the bar mitzvah, the a- sort of American bar mitzvah... And I say bar mitzvah because it was a bar mitzvah in the early days, you know, for boys.
BENAY LAPPE: Yeah.
DAN LIBENSON: Yeah. And how it got invented kind of and, and made a much more central thing than it used to be.
And so like in the old days it was like you had a, you, you came up, you said the blessing for the Torah. You didn't read the Torah, you didn't say a Dvar Torah or any- You just came up, you said a blessing, you were bar mitzvahed, and you had some schnapps after the service, and that was it. You didn't have to study at all.
You just had to learn how to say one blessing. And-
BENAY LAPPE: Right, and everyone knew that you became bar mitvah the morning you woke up on your 13th birthday.
DAN LIBENSON: Yeah.
BENAY LAPPE: That was all you needed.
DAN LIBENSON: You don't even say the blessing. Yeah, like
BENAY LAPPE: it w- No,
DAN LIBENSON: you don't. Yeah. The schnapps actually- Yeah. ... was the, was the, the focus. You know, that was it because they were, they were automatically a bar mitzvah.
The blessing was nice. The schnapps was the real party piece- That's
BENAY LAPPE: right.
DAN LIBENSON: That's right ... for your birthday. So, and but, but, but, um, the, the article, the original article, uh, I think it was by someone named Schonfeld, Schoenberg, but I think Schonfeld. And it, um, talks about how basically because American society, non-Jews, had things like a sweet 16, that Jews wanted to have also some kind of coming-of-age ceremony.
And they kinda new about the bar mitzvahs. And, and basically the pressure, uh, came from the people, not from the rabbis, to have the bar mitzvah be a kind of a bigger deal. And as it became a kind of a bigger deal, the rabbis would say, "Well, okay. Well let's have you, you know, give us a little sermon," or, "Let's have you actually maybe read a little from the Torah."
And that required a little bit of learning, a little bit of education. At a certain point though synagogues came to understand that they could kinda keep members for longer if they would dial up the requirements for the bar mitzvah and say, "Well, you have to now go to like two years of Hebrew school.
Now it's three years. Now it's four years." And there was actually kind of a cartel of New York synagogues that were getting together to agree together to dial up the education requirements so that there wouldn't be a synagogue, oh, then well, I'll join that one 'cause they only require two years and all the other ones require four years.
So they wanted to make sure that that, you know, wouldn't happen. So it really was a, a, a kind of a cartel and, you know, a antitrust violation. But I think nonprofits , you know, aren't, aren't subject to that or synagogues weren't. Anyway, so, so they do, so they do this, and it all is going great because the synagogues are getting more members, and they're staying for longer.
And it's a great thing until, you know, dun, da, da, dah, you know, like th- like 20, you know- However many decades later, people start to say like, "Hey, you know what? Um, actually I read somewhere that you don't have to- ...you have a bar mitzvah, it just automatically happens," right? And they start to say, um, "Well, we don't have to do this anymore."
And the- That-
BENAY LAPPE: That's the problem with letting people read somewhere. That's
DAN LIBENSON: the problem.
BENAY LAPPE: And- Okay, sticky on that.
DAN LIBENSON: Yeah, that's the pro-... And then and the problem is by this time, the synagogues have completely re- rebuilt a business model that depends on having all these bar mitzvah families. And like a lot of rabbis complain that, you know, their synagogue is quote, "a bar mitzvah factory", or whatever.
But like, that became the business model of, of synagogues in the, in the suburbs for the most part. And the, so the problem is that, uh, it's not such a problem like theologically that people realize that you didn't need to, to, to do it that way. The problem is economic, because you can't have it where all of a sudden the people are onto this and they stop, you know, paying membership dues.
Because you've already built buildings, and you have mortgages, and you have, you know, staff, and you have pension plans. And so that's kind of the law of unintended consequences. So, so this is all like a long-winded ... So what you're talking about is that the rabbis, you know, early on in rabbinic Judaism, or maybe Second Temple Judaism, might had this brilliant idea.
Let's really take seriously the idea that this whole Bible, you know, came directly from God. You know? And, and, and, and, uh, that's great because that gets the people to be really, you know, s- take it really seriously. And, and then the problem is, you know, hundreds of years later when they start to try to poke people's eyes out, you know, 'cause they said that God told us to.
And you're like, "Whoa, whoa, whoa. You know, we didn't , weren't really serious about that." You know, how do, how, what are we gonna do now? So yeah. Right.
BENAY LAPPE: I'm holding Ezra and Nehemiah personally responsible for this. Great. We've been paying the price of their little clever move ever since. I'll bet it was them.
DAN LIBENSON: Uh-huh. Th- that's a whole another podcast we'll talk about Ezra and Nehemiah, yeah. Um, okay. So, so yeah. So this is the problem, right? So the, the, uh, the, so because of peoples', like over fidelity to the Torah, uh, and because, because the rabbis used that as, a- as part of the, the sort of basis for setting up the system, uh, it became a problem at various points.
It continues to be a problem when people open up the Torah and read something and say, "But wait a second, it says it right here, and you said this is directly from God, so shouldn't we do this?" And that is, is what we've been talking about in, in other cases as well. And part of why I have this hypothesis that in the cases where something is explicit in the Torah, is where the Talmud kinda bends over backwards to give you a lot of arguments.
Uh, because those are the ones where you're gonna have to do a lot of, kind of, uh, you know, sleight of hand to get the people to agree. Well, yeah, yeah, it is in the Torah but it's not really what God meant, you know? And let me tell y- show you the 10 reasons why.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: Mm-hmm. Um, okay. So, uh, go on to the next one?
BENAY LAPPE: We could
DAN LIBENSON: Okay, yeah. Let's, let's keep going
BENAY LAPPE: Okay, great
DAN LIBENSON: Yeah. Okay,
BENAY LAPPE: so- Great. Okay, so now we're on-
DAN LIBENSON: Oh, I have a question. Wait, before we do, I have a question for you. When... You, you say, just to clarify, you say that this, this last proof which sort of ended up with a strong, a strong, uh, confirmation that the Torah actually meant poke out an eye
BENAY LAPPE: Or could have
DAN LIBENSON: Could have meant poke out an eye.
Um- Yeah ... but that you, you ... Are you calling that savara? Are you?-
BENAY LAPPE: Yes
DAN LIBENSON: And, and when we talk about savara, right, we've talked about this on the show. Yeah There's a, there's sort of two ways of understanding savara. A lot of kind of more Orthodox or more, uh, whatever y- we wanna call that, um, will, will translate savara as logic.
And you and many others also will translate savara as, like, moral intuition or moral reasoning. But in this case it actually felt to me like it was more logic. It just kind of, like, this just felt like a good logical, uh, walkthrough. Well, you know, it's the reason why your absurd idea that the two different sized eyes should matter is 'cause it's not really about eyes, it's a- about eyesight, and that just seems like a good proof to me, a good logical argument, as opposed to, like, a, um, savara the way we often talk about it, as this, like, moral reasoning that's going to trump Torah.
BENAY LAPPE: Yeah. I think sssavara actually has different qualities, um, in different contexts, and we know that initially it was only, initially in the early Tannaim period, savara as a concept was only, um, logic, a logical deduction. And over time, through the Amoraic period and the savoraic period, the period of the sabor- the Savoranics, um, but particular in the late Amoraic period with Rava who was a, a big expander of the concept of savara, it came to also mean moral intuition, something that people would disagree about.
Sorry about my dog barking. Um, unlike the early usage of savara. Here I think we have – it’s a little bit logic, but there's an- another kind of savara-ish argument, or, or savara means also a simple, um- Reference to reality
DAN LIBENSON: Mm-hmm
BENAY LAPPE: And I think that's the kind of svara we have here.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It's like, your challenge to me can't be true or the case I'm gonna make for whatever, whatever is true because just look at reality.
Mm-hmm. And we all agree that that reality is good and fine and what we're f- happy with-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: therefore. So I think that's the kind of svara we have here. It's- Hmm ... just reference to accepted reality.
DAN LIBENSON: Mm-hmm. I mean, I wonder if we could even call that a kind of cultivated common sense, that um-
BENAY LAPPE: I like tha- I like that because that's why it is the reality.
DAN LIBENSON: Yeah. And, and it's like, um Again, I wonder. Like sometimes I'd really like to get in a time machine and go around and meet the various kinds of Jews that were around back then 'cause like I don't
BENAY LAPPE: think- I wanna write that down. I like that; cultivated common sense. Yeah, go ahead.
DAN LIBENSON: Like I don't think they were like yokels.
You know? Like I ... B- so s- but so the question though is like b- but they weren't, you know, they weren't literate and they weren't readers. You know, I'm talking about the regular Jews of whom th- the majority. So, so the question is, I mean, what strikes me is that in a way to the modern reader what we just did is so obvious.
I mean it's so... Like, that's just good co- I mean that's just a normal way to read a text. Like, it's not a normal way to read a text in this hyper literal, "You know, I'm gonna find the most literal way to read this." I under- an eye under an eye or an eye for an eye, right? Eye en tachat ayin. I'm gonna read that as like it have to be exactly the same size.
I mean you could, you could, there could be a world in which you say, oh well, you know, you, you don't know. Like, that's just like we have a special way to read here where we read that as identical, you know? Or, and, and um, and, and maybe the people back then just weren't engaged to that level where they're just kind of like a rabbi comes along and says, "Oh you, you think it means we poke out an eye, an eye for an eye.
But actually no, no you have to understand, like tachat is very specific, uh, term of art.” You know, maybe that's like a lawyer telling us like this word, you think you know what, uh... You know, we, we talked about this with, with Trump and everything. You know, y- you think you know what treason is but actually, you know, as bad as you think what Trump did it's not treason because treason is d- is defined in the Constitution that treason means that we're at war with another country and that you've given aid and comfort to an enemy that we're actually at war with, and we're not at war currently with anyone other than Iraq and Afghanistan at the time or whatever, and nobody's arguing that Trump did that.
And so it's not treason. And the fact is that that argument was correct, you know, because the Constitution actually does define treason. But you could, you could say the word tachat here, eye en- an eye, tachat an eye, that means it has to be identical. And, and I, I figure your, your relatively, you know, non-lawyer friend is gonna say, " Oh, I didn't know.
Okay. Thanks for explaining and now I understand that, that, that, that it's that." Whereas now I think most of us are in this position where we read something like this and we're, y- you could tell me, oh there's a w- term of art in Talmud and, and I would believe you. And, you know, our, our viewers would believe you.
You know, but there's also this element where even if you told us that this was a term of art I think most of us would read something like this and we'd be like, yeah, but I mean come on, it's not really about eyes, it's about eyesight. And we, that's just kind of common sense and we wouldn't even think of that as like s- to call that savara because it doesn't even fi- feel like it rises to the level of moral reasoning.
It, it's just like oh, well of course that's kind of what it means. But maybe we're not fully recognizing that what we're bringing to our reading as 21st century, you know, highly educated people is, is a level of Of reading that actually is penetrating a little bit beneath the, the plain language and it really is taking a certain level of ownership over how we read a text.
And maybe a lot of us haven't been taught to read a Jewish text but those of us who have gone to college have been taught to read English literature, you know, and it's not that different. And so you kind of say, well, uh, th- that's just ... You know, so I don't know. I think there's something there that I'm trying to get at with like this level of, there's like, there's high svara which is- Yeah
moral intuition, then there's like low swara which is just like cultivated common sense. But today a lot of us have cultivated common sense. Maybe back in the day they w- the co- common sense was a little less cultivated. I dunno.
BENAY LAPPE: Maybe. It, another variable to add to the mix on this question of what kind of svara is this could be W- w- well, the question of when do they name their argument or proof as svara and when don't they?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Only a small percentage of the time when svara is being used as a proof is svara actually named.
DAN LIBENSON: Hmm.
BENAY LAPPE: Um, although sometimes it's named, and it just means logic.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: That's true for the early examples of svara. But I would hypothesize that svara is what is being brought to bear when we have a, uh, a proof like this which is, "Oh, come on.
Y- you, you... That doesn't make any sense." N- n- no one who's using sense is gonna really think we're talking about, you know, eye size as the relevant factor anymore than height is the relevant factor in the case of murderers and murdered people. Um, yeah, but, but I really think it's important to n- for us to recognize these kinds of references to, like what you say, cultivated comments as, as svara because then you can finally see svara operating in the tradition all over the place.
Mm-hmm. And it does.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Uh, and it doesn't always have to be named, just like I don't think legal systems always name judic- judicial ex--judicial discretion-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: when judicial discretion is being, is, is operating, right? Uh-huh. Everyone knows that drives the evolution of the system.
DAN LIBENSON: Hmm.
BENAY LAPPE: And I think svara works the same way in Jewish law.
It's, it's, it's, it's, it's always driving the shaping and development. Yeah
DAN LIBENSON: And maybe that closes the loop to that idea that I was inquiring about at the beginning of our hour, the, the idea that, you know, God is not a blabbermouth, and also that God is not hiding the ball. That, and maybe this is where cultivated common sense connects with a moral valence of savara, where you say, "Look, I just don't believe that God or whoever is running the- Mm-hmm
program here, I just don't believe that, that, that that is, it's about hiding stuff," you know? And so, and so like I think that if I read something and the only reasonable understanding is to say that this is what it's about, I, I, I'm not gonna be that open to your claims that there's some secret meaning that makes it mean exactly the opposite of what it looks like it means.
So that's, and I don't know how to say that in, in as cool of a term as like, "God is not a blabbermouth." You know, God is not- Yeah yeah ... God is not a hiding guy, you know? But what, but that- Yeah ... you know, yeah. So, um, all right, well, uh, a good place to leave it for today.
BENAY LAPPE: Yeah.
DAN LIBENSON: Um-
BENAY LAPPE: So the, the score is basically one to one at this point.
DAN LIBENSON: Okay.
BENAY LAPPE: W- One
DAN LIBENSON: that, which is the other side's victory?
BENAY LAPPE: W- w- the first proof gave us one point for the side that said the Torah meant money all along, and you would be absolutely wrong to imagine that the Torah ever, ever could have meant, ever did or ever could have meant actual retaliation. Proof number two gives a point to the side that says actually the Torah could.
Y- you tried to prove to me that the Torah couldn't have meant physical reta- retaliation, eye for an eye. It actually could have. So it's not exactly one to one. It's not the Torah does mean m-eye versus the Torah doesn't mean money. I dunno. I, I'm still having trouble characterizing these 10 proofs because they're a little bit at, on angles with each other.
Right. Right. It's, the Torah couldn't have meant In actual I, and actually did mean money
DAN LIBENSON: Mm-hmm
BENAY LAPPE: That's proof one. Proof two is it's not a def- it's not an, a definitive argument that it does mean money, but it is a definitive argument that it could have meant an I.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: I don't know.
DAN LIBENSON: Yeah.
BENAY LAPPE: We'll, we'll have to keep- All right, we're gonna keep sorting that out
sifting these
DAN LIBENSON: out. Yeah. All right, well look- looking forward to picking that up next week.
BENAY LAPPE: Me too.
DAN LIBENSON: Have a great week, Vinay.
BENAY LAPPE: Okay.
DAN LIBENSON: Thanks so much for joining our chevruta today! We hope you’ve enjoyed learning with us… and with the Talmud. You can find links to the source sheets for all episodes in the show notes and on our website at oraltalmud.com. Your support helps keep Oral Talmud going. You can find a link on the website to contribute. We’d also love to hear from you! Email us with any questions, comments, or thoughts at hello@oraltalmud.com. Please, share your Oral Talmud with us – we’re so excited to learn from you. The Oral Talmud is a joint project of SVARA: A Traditionally Radical Yeshiva and Judaism Unbound, two organizations that are dedicated to making Jewish texts and ideas more accessible for everyone. We are especially grateful to Sefaria for an incredible platform that makes the Talmud available to everyone. It’s free at sefaria.org. And we are grateful to SVARA-nik Ezra Furman for composing and performing The Oral Talmud’s musical theme. The Oral Talmud is produced by Joey Taylor and with financial support from Lippman Kanfer Foundation for Living Torah. Thanks so much for listening–and with that, this has been the Oral Talmud. See ya next time.
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