The Oral Talmud Episode 71: Hard Cases Make Bad Law (Bava Kamma 83b)
SHOW NOTES
“ Hard cases make bad law. You don't take the existence of theoretical hard cases that may rarely occur but do occur and make law based on those hard cases. You say, ‘Yeah, sometimes there are hard cases that the law can't accommodate, and that doesn't invalidate the law. ’” - Benay Lappe
Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today.
What if the Torah says exactly what it means, and we decide not to follow it anyway? In this episode, Benay and Dan return to the troubling commandment of “an eye for an eye,” confronting a question that reaches far beyond ancient punishment: When a sacred text demands something we can no longer morally tolerate, are our hands really tied? From Jewish divorce to homosexuality, this episode explores how the Talmud itself might offer a radical precedent for changing even the clearest of biblical laws.
But there's another problem: What happens when the law simply doesn't make sense? Through bizarre legal hypotheticals, a dying murderer, an ill-fated attempt to be a helpful patient, Benay and Dan uncover the absurdities of applying rules without judgment. Along the way, they ask whether we've forgotten how to use the Talmud's most powerful tools and whether recovering them might change not just how we read ancient texts, but how we imagine the future of Jewish tradition.
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 71: Hard Cases Make Bad Law
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 Torah says exactly what it means, and we decide not to follow it anyway? In this episode, Benay and I return to the troubling commandment of “an eye for an eye,” confronting a question that reaches far beyond ancient punishment: When a sacred text demands something we can no longer morally tolerate, are our hands really tied? From Jewish divorce to homosexuality, we explore how the Talmud itself might offer a radical precedent for changing even the clearest of biblical laws.
But there's another problem: What happens when the law simply doesn't make sense? Through bizarre legal hypotheticals, a dying murderer, an ill-fated attempt to be a helpful patient, we uncover the absurdities of applying rules without judgment. Along the way, we ask whether we've forgotten how to use the Talmud's most powerful tools—and whether recovering them might change not just how we read ancient texts, but how we imagine the future of Jewish tradition.
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 Liebensohn, and I'm here with Benay Lappe, as always. Hey, Benay.
BENAY LAPPE: Hey, Dan. How are you?
DAN LIBENSON: I'm good. I'm good. Ready for... Ready to dive back into this sampler.
BENAY LAPPE: Yes.
DAN LIBENSON: This great sampler of, of techniques. So let's jump, jump right into it.
Um, so, so we're now on, uh... Well, last week we did what you're calling stitch number two. I'm losing track. I don't think it's all that important, like, which number we're on, but-
BENAY LAPPE: Yeah ...
DAN LIBENSON: last week we, we saw the stitch, uh, in the sampler, a sampler meaning a example of all different stitches. Here we have an exam- examples of all different Talmudic reasoning techniques or, uh, whatever the verb is that we're looking for here, Talmudic analysis techniques.
And, um, and we, we've seen a, a, a bunch of different ones are, that have been part of one big stitch. This, that mixed the, the Gezeira Shava, the, the verbal analogy, with also, uh, what was the other technique? Uh, w- well, there was a n- a number of them. Diyuk and, uh- A
BENAY LAPPE: Diyuk. Yeah. It, it act- actually, I haven't wanted to go all the way back to re-comment on that first proof- Mm-hmm
but I think that Diyuk, which is s- was stitch number two, got re-characterized in the end as something else.
DAN LIBENSON: Hmm.
BENAY LAPPE: I don't know if we should go there now, but-
DAN LIBENSON: Maybe, maybe we should, uh, at the end we could go back at, at the end of this unit we can go back and, you know, re- uh, revise our-
BENAY LAPPE: Yeah ... our
DAN LIBENSON: interpretations of different things.
I mean, I, I was thinking too about, like, just stitching. I mean, uh, what I know about, you know, stitching you can put on the head of a pin, but I, I am aware that there are certain stitches that are kind of basic, you know, that- Right ... you kind of make a... This, and there are certain stitches that involve a lot of, like, folding over, you know, like a box stitch or a, you know- That's right
one that you tie a, a boat with a, you know, in the anchor. You know, whatever, those kind of things. You know, that these are these, like, complex stitches, and then sometimes you have kind of a less complex one. And that was helpful to me to, to think about what we did for the first bunch of weeks on this, on this one, that in a way we were really looking at a, a kind of a really complex box stitch, you know, that, that only works, it only really ties it down...
I don't know if you actually have, like, tie down on the sampler. But, you know, it only really works to tie things down if you have, like, the two stitches kind of intercrossed, you know, and that, and that's what gives it the strength. Where sometimes there's a stitch that just kind of is good on its own.
BENAY LAPPE: That's right. That's true.
DAN LIBENSON: Mm-hmm. All right. Well, yeah, you... Maybe the, you know, you're, uh... I think we... I don't know if we've talked about this before, but, you know, you're a leatherworker and a shoemaker, and you're other... Uh, so I, I think, I assume you have stitches like, like these involved in that.
BENAY LAPPE: Y- y- you know what?
There aren't that many stitches in leatherwork, but I'm drawing everything I know about samplers from this Tallis case, Tallis bag that my mother embroidered for me with lots and lots of different stitches. And then I did a little Googling on samplers, and the history of samplers as a thing is really, is really interesting.
And needlework- Yeah ... which most, most people think of as a female activity- Mm ... but historically wasn't. So but anyway, yeah, I also don't know that much about samplers, but am fascinated with the idea of things that look like one thing on the surface, but when you look very carefully, you see other things.
Yeah. It, this is only tangentially related, but I had, have a similar fascination for- fluorescent rocks.
DAN LIBENSON: Hmm.
BENAY LAPPE: Have you ever looked at a fluorescent rock under a UV light?
DAN LIBENSON: I think I have.
BENAY LAPPE: Right. But
DAN LIBENSON: not for many years.
BENAY LAPPE: Right. It's like, when you don't look at it under a special light, it looks like any rock you'd- Uh-huh
find in the alley.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: And then when you look at it under the fluorescent light and the, and it fluoresces, you realize something is going on ph- some phenomenal thing is going on that you didn't realize, and you need sort of special glasses- Yeah ... to notice it. And just that idea h- h- feels like it's been a, an important insight or recurring, recurring framework for me.
Hmm. Um, and I think it applies to the Talmud- Mm-hmm. Yeah ... because it's so often misunderstood because it's seen in it, in its sort of surface without looking really carefully at, you know, what's fluorescing underneath it. But you need the, you need that light. You need a certain tool to see, you know, the colors and, and that's the real story.
DAN LIBENSON: Yeah. It's interesting because it, it's like something that I, I've learned to think about the Torah or the Bible as literature. You know, like meaning when you're taught it as a kid, you're taught it as, you know, it's either what God gave us or whatever, or, you know, just like stories from the past but-
BENAY LAPPE: Right
DAN LIBENSON: literature means a lot of things, including that there are multiple levels to it. And, and there's o- obviously a traditional notion of the multiple levels, this idea that, that we have different levels at which we look at a text, and some of which the Talmud picks up on. Like, the, you know, even like the mysteries, the, the secrets that God has, you know, implanted and whatever.
But if we th- just think about it as literature, like great literature can be read on multiple levels. You know, one of, one of the examples that I love, you know, as I learned about this for the Torah, is that the Bible scholar Richard Elliott Friedman finds it in the story of Joseph, his name is Yosef in Hebrew, that the t- the, the area wh- the, the part of the story where he's kind of coming to his brothers and telling them his dreams keeps using the, the, the root word yasef, which is the root of Joseph, and it keeps using that in different contexts.
So you clearly see that there's something kind of literary happening there, a kind of a punning, a form of punning. Mm-hmm. But the real kicker is that the- A coat of many colors is a, is in Hebrew, Kutonet Pasim, and Pasim is Yosef spelled backwards. I mean, there's a mem- Wow ... but, right. And then you're like, "Oh my gosh, somebody, there's a genius at work here w- writing literature," right?
Where, where really the, you're only understanding it if you, if you understand the multiple levels. 'Cause if you miss that whole thing, which most people have for the last, you know, 2,000 or 3,000 years, you're really missing something very significant that's, that's there and that was put there intentionally by the author, whoever you believe that author might be.
I have not really appreciated for the most part the Talmud as literature in that way. You know? That, that you think of the Talmud, well, you know, maybe initially you're tau- taught that the Talmud is some form of law code, which it's not, you know, but that's what you originally hear. And then you, you know, meet Bene Lapi and you kind of hear, "Well-
it's actually, uh, like a legal case book to teach us techniques." But there isn't a lot, at lea- maybe in academia there is, but, uh, there isn't a lot of, uh, that I've heard this kind of sense of wait, what if we look at the Talmud as literature written as literature by some kind of great writer, and there really are multiple levels there that if you're only seeing the surface or what's kind of near the surface, then you're really not even seeing the most important thing at all.
And, uh, and then, you know, back to what we've been saying over and over, that it, it seems like in the more, uh, Orthodox or ultra-Orthodox yeshivas these days, they're, they're only looking at the surface. And they would deny that because they would say, "Oh, no, no, we're probing really deeply." Yeah, y- it's probing, but it's still probing at the surface, at the sort of plain language level.
And so you're saying, "Okay, we're gonna look harder at what the plain language might mean, and we're gonna, you know, bring in knowledge that you don't have and whatever," but that's different from looking at it as literature and understanding there to be, you know, symbolism and metaphors and all that stuff.
BENAY LAPPE: Yeah. You know, o- one of my colleagues back in my Clal days years ago, Rabbi Natan Margalit, who's a fabulous guy, was telling me years ago about his PhD dissertation that he wrote under Daniel Boyarin, and it was on the rhetorical structures Of, I can't remember if it was the Mishnah or the Mishnah and the Gemara, that were borrowed from, um, R- Roman literature, sort of- Mm
you know, sort of chiastic structures. It, the use of words repeated at different points in a passage to allow you to access a deeper meaning, a completely different meaning when you connect those dots. Which was a c- or these were common rhetorical devices in, you know, contemporaneous Roman culture that have been largely lost, and that's what his research was about.
And I haven't read his dissertation, but just knowing that that is going on, um, is another level of meaning that- That, that shows that the s- the surface of this Talmud is, if not, not what it's about, it's not only what it's about
DAN LIBENSON: Yeah. Like, if you don't know anything about the literature of the time in other surrounding cultures, then you're really not understanding something significant.
By the way, that's true of the Bible as well. Like, i- if you understand about the Bible that there are all these, uh, Mesopotamian creation stories and legends that are very, very similar but not the same to the stories in the Bible, then that raises a question for you. What was the au- what was the author or authors of the Bible trying to do?
Because for them, this, and for their societies, these stories were obviously in dialogue with the local stories. They might have been saying the local stories were wrong because they thought there were multiple gods, and we all know there's only one god, or whatever they might have been. But the people who read those stories knew the other stories and knew that there was something being said about the contrast.
Whereas if you don't know those, which, not to people's fault, those stories were lost for thousands of years, and only recently have they been found through archeology. So it's nobody's fault that, that they were forgotten, but the fact that they were forgotten means that something important about the Bible was also lost and forgotten, and now it's recovered again.
And you could say that's not, you know, traditional because for the last 2,000 years we haven't been looking at those sto- But actually, it's, it's the original tradition, right? And, and here too, you know, if the Talmud is written in, uh, reference to various Greco-Roman types of literature, or I've heard that in the Persian society, uh, Zoroastrianism, there was a kind of literary genre of this kind of, um, book that you try to get everything into.
BENAY LAPPE: Right.
DAN LIBENSON: I, I forget if we, if we talked about that with Shai Secunda when he was here. We
BENAY LAPPE: did, yes. Uh-huh. Mm-hmm.
DAN LIBENSON: So, so once you know that the Talmud is written based on a form of literature of Zoroastrian Persia, then you're like, "Okay, well, there's actually something that should be dug into there because maybe that helps us understand why some of this stuff is here," which you can't really understand if you don't even, if you don't know the kind of genre of literature that you're talking about.
BENAY LAPPE: That's right.
DAN LIBENSON: Hmm. Um, and by the way, in the same way that the Bible, here someone like Richard Elliott Friedman will say the Bible is actually the first real work of literature in, in at least in the Near East, but I think he thinks in the world. You know, that really was subtle characterization and all that.
Then you understand that it's actually creating something, uh, uh, literature, that's really worth understanding what was the creative process going on there, and here too. Yeah. It, it, it's one thing to know that the Talmud is a form of liter- a form of, of a genre of writing that is similar to the Zoroastrian, uh, form, but it might also be much more than that, in which case it, by understanding the distinction between them, in understanding what the Talmud is doing that that literature is not doing, you understand a certain contribution that the Talmud is making to world literature, which, which is never really...
I, I've never been taught to look for that, and I don't know that if there are... I assume there are academics that would have a take on what that is. I, I would love to talk to them.
BENAY LAPPE: Yeah. Um, as you know, I've been spending a lot of time working at my leather shop in which used to be called my dining room.
And, and the, when I use tools that are so good at what they were designed to do- Yeah ... and I know, and I learn how to use them for what they're designed to, I think so often about the Talmud. Hmm. Because it's, it's like a t- so there's, I have this one tool. It's called a skiving knife. You know what skiving is?
DAN LIBENSON: No. I don't
BENAY LAPPE: think- Skiving- I'm
DAN LIBENSON: gonna say that I don't.
BENAY LAPPE: Okay. So skiving is basically s- shaving the edge of a piece of leather to a feather edge.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: And you need to do that to make certain joints or to wrap or to do various things with leather. And you need a very, very sharp and very special tool to do that.
And it takes years of practice to have the skill to do it. You have to know when to do it, you have to know how to do it, and you have to have the right tool to do it. Now, you can use a skiving knife for cutting out a pattern, but it's gonna do a really mediocre job at it. And if you didn't understand what this particular knife was for, you'd go, "Oh, it's a sharp knife.
I can use it-" Hmm ... "just to cut things." But if you know what, w- if you know when you need to skive and you know how to do it and you recognize that's what this is for, you can do something that you can only do with that tool, and you can produce something that has a quality that only that tool can do. Hmm.
And the, the Talmud is like that. You have to know what it's here to do. You have to be skilled. You have to be the kind of person who has the courage to use it, and you, you have to, um- Actually go ahead and use it. Anyway, so anyway, I'm wor- I'm working on this metaphor
DAN LIBENSON: Yeah. No, it's a good one. And, um What it makes me think about, it gets funny 'cause I, I can imagine that somebody watching this and hearing what you just said could say, "Oh, now I'm really intimidated because, you know, I don't know how to use the skiving knife, uh, you know, the Talmudic skiving knife.
And so, uh, there's some expert out there that would be better than me at studying Talmud." And that's possible, but I think that one of the things that was going on in my head as I was listening to you is, like, okay, but what, now what we've inherited is 2,000 or 1,500 years of the people most doing Talmud study not knowing how to use a skiving knife, and th- so they're doing kind of a mediocre hacki- hack job, you know, of...
And, and their shoe keeps their foot dry. You know, like, in other words, it's okay. Um, but it's not what it could be, and there isn't anybody actually today, you know, except you. No, I mean, there are a few other people that know how- All the
BENAY LAPPE: Svariniks.
DAN LIBENSON: Yeah, Svarinik, you know, and that know how to use a skiving knife or, or that really even know that the thing that you're holding is a skiving knife.
And so in a way, it's about re- restoring a knowledge of how to work this particular material that has been lost, that has been almost completely lost, and those who claim that they are really good at working this material a- actually are wrong. Uh, they're not, they're not, you know, they don't know that they're wrong.
They're not trying to mislead us, but they actually have lost a lot of the subtle tools, and they're not completely lost because we're able to dig them out in various ways. But in order to dig them out, first of all, you have to be oriented to know, like, there, it's out there somewhere. We need to dig it out.
If you didn't even know that, if you, if you didn't imagine that the leather could be cut differently, then you wouldn't be looking for a new kind of technique. I- So you have to kind of have a sense that there's something that we once knew how to do or that we no longer do, or, or that this material feels like it could be different but, uh, we don't quite know how to do.
You know, and then the process of, of rebuilding that is, is what, um, is what, you know, this process is about. And so on the one hand, somebody could hear this and say, "I'm intimidated 'cause I don't know how to use a skiving knife." But I think what I want to say is that almost nobody knows how to use a skiving knife, and the people that, don't be intimidated by the wrong people.
You could be intimidated by Benay, but don't be intimidated- ... by, you know, this ultra-Orthodox community because they're not doing, they're not doing that either. Um, and I, I forget if, I know I've mentioned this to you, but I, I've had Foundation on the mind a lot because there's a new show about Isaac Asimov's Foundation.
And one of the big ideas in Foundation is that this galactic empire is, is about to fall apart, and all this knowledge is gonna be lost, and one of the jobs of this foundation, the idea is to sort of minimize the time that the, of the chaos b- after the empire is lost until the new empire comes. To minimize it from 30,000 years to 1,000 years, and one of the ways to do that is to collect all the knowledge in this big encyclopedia that they're creating.
And that, you know, spoiler alert, turns out not to be the main job. But the, but it is still a significant job. And, and it, and it's related to this idea that when we have these massive disruptions, a lot of knowledge is lost, and the responses are either to try to preserve the knowledge if you can, and/or that there's gonna be a time much later where people are gonna have to re-excavate that knowledge, and you're gonna have to s- almost have, like, a whole new culture of leather makers coming up, you know, and teaching people.
But it's like we knew how to make beautiful leather 2,000 years ago. Now our leather creations are kind of not so great. Eventually we're gonna get them back up to where they were 2,000 years ago, but that seems like a shame. Like, we've lost 2,000 years of beautiful leatherwork. But sometimes that's how, how it happens.
BENAY LAPPE: Yeah. Also, uh, uh, when you were saying that the disruptions cause you to lose the knowledge, I think the disruptions are a result of having lost the knowledge. Mm. Not the other way around. Mm. I think that the knowledge Inevitably gets lost over time as the project that the knowledge is creating becomes fossilized.
That, I mean, it depends what the knowledge is, but in Judaism this, this kind of constant evolution- ability to r- re-create the tradition, um,
got lost over time, which resulted in the crash. Hmm. Hmm. And it, so it- Mm-hmm ... also has to be resurfaced in order for a new tradition to be, um, reformed and for it to be ... Anyway. Anyway, just a thought.
DAN LIBENSON: Well, I'm telling you, like, I guess when you're a hammer everything looks like a nail, but now that Foundation is in the zeitgeist- Yeah
I see it everywhere. Uh-huh. So my one thing is that everybody watching this should read Foundation and let's, or watch the show, but let's do a book club about it because I, I think there's, even just what you said, it, that's there too. You know? And, and it's really, I mean, I always liked Foundation. I al- I've always liked Asimov, but, uh, now I'm starting to see how much of a genius he was much more than I even understood.
BENAY LAPPE: Yeah.
DAN LIBENSON: Uh, just recognizing some of these things. And by the way, he wrote Foundation when I think he was about 22, something like that. So, like, he understood these things at a very young age. Really amazing. Uh. Yeah. Um, all right. So, um, so we're, so, so last week we looked at, so we're look- so to remind everyone, we're looking at this, uh, s- issue of an eye for an eye, that the Torah says an eye for an eye, a tooth for a tooth.
Mm. Suggesting that maybe you should be poking out people's eyes if they poke out your eye, and the Talmud is trying to investigate is that really what the Torah meant, and we've talked before about what's at stake there. But, uh, today we're, or last week we looked at this, uh, claim that- The, the T- Torah couldn't have meant poke out somebody's eye because people have different size eyes, you know?
It's, and it wouldn't be fair to poke out a big eye if the first person had just poked out a small eye. And there's a lot of debate over that, and what does that really mean, and, and it turned out that there was this other voice that said, "No, it's not really about eyes, it's about what eyes do, which is eyesight.
And it's not really about..." And, and you know, they, they, they made all kinds of arguments in- including that of course when you kill a person, it doesn't matter if the person is large versus a person is small. We all understand that, that what you're doing is taking a life, and the response is to take a life if you, if you believe in capital punishment.
So, so there, there, there's this, you know, whole subtle thing which, you know, I think we did a good job, uh, looking at last week, so you should watch last week's episode if, if you haven't. And, uh, today we're kind of continuing in a similar genre, but it's a, it's a different argument, but it's, it's kind of in the same world as, yep, last week.
BENAY LAPPE: Right. So last week's attempted proof that the Torah could not possibly have meant physical retaliation, an eye for an eye, failed, and is recorded in the Talmud- Mm-hmm ... as a, a re- actually a, a reasonable argument that Torah, that the Torah could have, sidebar, and in fact actually did- Mm-hmm ... mean a literal eye for an eye.
Mm-hmm. So our passage seems equally committed to clearly saying the Torah means exactly what it says, uh, as well as the winking, "Oh, no, the Torah means money." But showing us that it's winking. Mm-hmm. All, again, not to, as a spoiler, but because we, I think we need to keep saying it- All to say ultimately, yes, the Torah absolutely meant literally an eye for an eye, and we're not doing it.
And look at the distance between what it meant and what we're doing, so that you can use this as a case study and one example, one historical example, that you can stand on the next time the Torah says something that clearly looks like it is what it is that you can't morally tolerate in order to go where you need to go.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Okay.
DAN LIBENSON: And, and just to, just to note it, because we said it a few times before on this show, but just to draw... I think maybe it's time to draw people's attention to this very specifically. There are cases today such as the issue of a woman whose husband won't give her a divorce, the aguna. Oh my
BENAY LAPPE: God.
Oh my God, that guy in Afghanistan?
DAN LIBENSON: Oh, I, I heard- Oh ... about him in general, but I didn't know there was an aguna issue there.
BENAY LAPPE: Oh, yeah.
DAN LIBENSON: Yeah.
BENAY LAPPE: He, he was the last Jew in Afghanistan-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: who refused to come out because he was there in order to avoid being thrown in jail in Israel- Hmm ... because he was refusing to give his wife a get.
And he would've been thrown in jail as- Israel's incentive- Uh-huh ... to, you know, incentivize men who are refusing to give their wives gets. And he finally, he finally came out and gave his wife a get after something like 20 years.
DAN LIBENSON: Wow. Well, so there's an issue like this, this issue that, uh, allows men to continue to deny gets, uh, Jewish divorces to their wives in, in Judaism, thereby preventing them from remarrying, and there's issues like the famous line in Leviticus against homosexuality that you will have many times of a, of a kind of Orthodox and conservative maybe rabbi that will say, uh, "What can I do?
The Torah says it directly. I, uh, it's not, this is not a case where the Torah's hinting at something. This is a case where it says it explicitly. Uh, and that what can I do? I can't over to- turn the Torah. My hands are tied," right? And here we're seeing a case where it could not be more explicit than an eye for an eye, a tooth for a tooth, a life for a life, an in- injury for an injury.
Like, it's very clear what the Torah means here. The Talmud is ultimately telling us our instinct is right. It, it actually doesn't mean that, and yet we changed it anyway. And so it feels to me like that, that at least takes away... It should take away, and the, the, the sort of fascinating question is why it hasn't, you know, fully ta- It's- Right.
You know, but it should take away the argument that says, "Just because it's clear in the Torah, uh, my hands are tied." Now, that doesn't mean that, that anything that's clear in the Torah, everything that's clear in the Torah we don't have to do anymore. Like, that's not true. But it, it's, but it's, uh, it, it's also true that just because it says it clearly in the Torah doesn't mean that we don't have ways to not do it anymore.
And, and that's where the work comes in, and that's where the savara, you know, the moral intuition comes in. But, but here, you know, if, if nothing else, this whole section, the importance of it, and there is other things, it's important to see all the techniques, but, but just on a kind of a moral level, the importance to me is, is that it couldn't be more clear in the Torah, and we still don't do it.
BENAY LAPPE: That's right.
DAN LIBENSON: So, okay. So, uh, we're gonna look at the next analysis, the next proof?
BENAY LAPPE: Yes.
DAN LIBENSON: Okay. So here we're looking at another Brita, another, uh, another case that they're bringing or a writing that they're bringing from Mishnaic times, from the early rabbinic period. And, uh, the Talmud says, "It's taught in another Brita that Rabbi Shimon Ben Yochai says an eye for an eye is referring to monetary restitution."
So I guess, uh, that he just said it in, in what they're quoting.
BENAY LAPPE: Right. He says, "When the Torah says an eye for an eye, it meant money." Period
DAN LIBENSON: And they're kind of citing, like, a, a much older guy who, you know, who lived hundreds of years ago, and it's like, "Yeah, we're not just making this up now that it doesn't mean physical, that it means money."
I mean, Rabbi Shimon bar Yochai, he's, like, a famous, you know, one of the students of Rabbi Akiva. I mean, in fact, Shimon bar Yochai, like, he's, like, the... You know, there's all kinds of famous stories about him. He's a big guy, a big deal. And he sa- he said it, so therefore, you know, it's got some yihus, some-
BENAY LAPPE: Right
DAN LIBENSON: pedigree.
BENAY LAPPE: Right. A- or at least that's where this argument starts.
DAN LIBENSON: Right. And so then, uh, the Talmud is, uh, saying, "Do you say that this is referring to monetary restitution, or is it only teaching that the one who caused the injury must lose an actual eye?" So what is that- Okay.
BENAY LAPPE: So, so this voice is saying, "Wait a minute.
Money? Sh- Shimon bar Yochai thinks an eye for an eye means money? Maybe an eye for an eye means an actual eye for an eye."
DAN LIBENSON: So are they- Okay ... are they kind of trying to say here that Shimon bar Yochai didn't really say that, or that that's not what he meant, or it's just kind of- No ... relevance, just like a, just-
BENAY LAPPE: It, it, it's disagreeing- Uh-huh.
Okay ... with Shimon bar Yochai and saying, "Yeah, he thinks it's money, but I, I think he's wrong." Uh-huh. "I think it means exactly what it says. It means an actual eye."
DAN LIBENSON: Okay.
BENAY LAPPE: Okay, now, at this point, before we move on, um, it's important to, to note, to note that in the original Vilna Shas printing, we have a, a kind of, um, editorial footnote, and the footnote sends us to a commentary in the margin, which is a gloss by, um, the Bach, which is Joel Sirkis.
And he's a number of hundreds of, hundreds of years old, and his emendations indicate what words have either been left off based on manuscript comparisons- Mm-hmm ... or simply what is implied here that is not explicitly in the text. And if you miss this particular note, you miss the shift in voice. Um, you miss the fact that what is about to come next is again disagreeing with the previous voice.
So the structure of this proof is identical to the structure of the last proof, and, that we had last week, and the way that proof was structured was someone says, "Eye for an eye means money," move number one. Move number two, "No, no, no, eye for an eye means an actual eye for an eye." Move three- The
DAN LIBENSON: opposite, right?
BENAY LAPPE: The opposite
DAN LIBENSON: The first person says, "An eye for an eye."
BENAY LAPPE: Means-
DAN LIBENSON: Second person says, "Money."
BENAY LAPPE: Money. And then- No
DAN LIBENSON: Oh, you're talking about the previous- The third- ... your previous one
BENAY LAPPE: Proof number two that we did last week.
DAN LIBENSON: Yeah, yeah. Started with money?
BENAY LAPPE: Start- Yes.
DAN LIBENSON: Okay. Sorry, I-
BENAY LAPPE: Started with an eye for an eye means money.
It always meant money. Move number two, no, no, no, an eye for an eye means an actual eye for an eye. Move three
No, it can't possibly mean an actual eye for an eye because if it did, we'd have the following problem. Mm. Right? In last week's problem or challenge to the possibility of the Torah meaning literal eye for an eye was people have different size eyes, and you could never do literal eye for an eye. It couldn't be saying eye for an eye because that's an impossibility because people have different size eyes.
Mm-hmm. Move four, that's not a problem to the Torah actually meaning an eye for an eye because it's really about eyesight Move... Am I on five?
DAN LIBENSON: I think so.
BENAY LAPPE: Okay, move five. And we know from reality, from our... What did you call it? I still have my little note here from last week
DAN LIBENSON: Culti- cultivated common sense
BENAY LAPPE: from our cultivated common sense that in other cases that we all agree on, like, uh, the death penalty, the murderer's size and the mureree's, the victim's size don't matter. We still execute the murderer. Okay. Those are the five moves. This is gonna have the same five moves. We just had move one. Shimon Bar Yochai says, "An eye for an eye means money."
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Voice, move two comes in, "No, no, no, an eye for an eye means an eye for an eye."
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Move three is, "No, no, no, y- if an eye for an- it can't possibly mean an eye for an eye because of the following."
DAN LIBENSON: Uh-huh.
BENAY LAPPE: That language, it can't possibly because of the following, is missing-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: in this particular-
DAN LIBENSON: Mm
BENAY LAPPE: part of the text. And we needed Joel Circus to tell us, "Oh, but it's, it, read it as if it were there- Uh-huh ... so that you know this is now a challenge."
DAN LIBENSON: Uh-huh.
BENAY LAPPE: It's a different voice, not the previous voice continuing.
DAN LIBENSON: It's interesting that the Steinsaltz translation didn't include that, or at least- Yeah ... uh, unless we took it out, but I don't think we did.
BENAY LAPPE: No. The, the translation is staying close to the actual text.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: But this is yet another way that a translation is much more difficult than reading the original, and you really need- But
DAN LIBENSON: the, usually the Steinsaltz translation will add that kind of commentary element-
BENAY LAPPE: Yeah ...
DAN LIBENSON: here that didn't.
BENAY LAPPE: Yeah.
DAN LIBENSON: Okay.
BENAY LAPPE: Yeah. All
DAN LIBENSON: right, so-
BENAY LAPPE: Okay ...
DAN LIBENSON: so now we're gonna go to this, uh, point that's gonna say, it can't possibly mean an actual eye because of this case that they're about to share with us.
BENAY LAPPE: That's right. That's right.
DAN LIBENSON: Okay, so there may be a case-
BENAY LAPPE: Mm-hmm ...
DAN LIBENSON: where there was a blind person-
BENAY LAPPE: Mm-hmm ...
DAN LIBENSON: and he blinded another, or there was one with a severed limb and he severed the limb of another- Right
or there was a lame person and he caused another to be lame. So these are cases where somebody already has the, the disability or the injury that he's now making to someone else. So if you tried to do it back on him, well, we're, we're gonna look at that. But, so, you know, in this case, how can I fulfill an eye for an eye literally when he's already lacking the limb, right?
So, like, you know, if somebody's blind and they poke out somebody's eye, I could poke out his eye, but, like, I'm not really doing anything to him, at least not in terms of eyesight.
BENAY LAPPE: That's right. Exactly. So, so it's impossible to carry out physical retaliation because in these kinds of cases, the physical retaliation would be i- you, you, it's either meaningless or you can't actually do it.
It's an impossibility.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Someone who has no eye, you can't take away the eyesight of someone who doesn't have eyesight.
DAN LIBENSON: By the way, I don't know if this is, uh, directly relevant, but I, I just came across some, like, d- a diary that I had, uh, done when we went on a visit to Israel in the '80s, you know? And, and, and I...
It was like a, a, a drawn, uh, you know, like a pictorial diary. I made some pictures of things. And I, and it, like, brought back this memory that we, my mom and I were standing outside of a restaurant, and there was a blind man coming down the street, and he, like, sort of tripped over a motorcycle that was there.
And, uh, he fell, and the motorcycle fell. And then my mom and I were running to help the man get up or, you know, something, and he, like, pulled out a, uh, like a dagger or something, and he, like, punctured the tire of the motorcycle that had tripped him. So, I mean, in a way, this was a sort of a, you know, a rough justice kind of you know, situation where, where he, um, you know, was, was injured by this.
It happened to be a, a, a motorcycle rather than a person, but, you know, and he kind of executed retaliation on the spot And obviously that, you know, doesn't seem like something that feels right to our, uh, you know, 20th century senses.
BENAY LAPPE: Right.
DAN LIBENSON: Anyway, so ma- uh, it made me think of it. Um, okay, so basically, uh, you know, that, so that, so because, because we have this case, right, because there is a case, there is a kind of a marginal case where, uh, most of the time the person poking out your eye has two eyes, and this whole an- eye for an eye could work perfectly well.
But there's this particular- Or has
BENAY LAPPE: eye, has eyesight, nevertheless
DAN LIBENSON: Or has eyesight. Yeah. There's a particular situation where it could be somebody who's blind and they're poking out your eye, and you couldn't just poke out their eye as a proper punishment or a proper, you know, uh, eye for- you know, well, you know, when you use eye for an eye metaphorically, you know, as a, as a kind of exact punishment.
That ca- since that can't be, then, uh, therefore we, we have a situation where there are two kinds of cases. One kind of case that punishment works, and another kind of case where it doesn't work, and then we're back to that, in the next line here, we're back to that quote from the Torah, right? "But the Torah stated you shall have one manner of law, which teaches that the law should be equal for all of you."
So that's exactly what we had last week, that we're misquoting or taking out of context this line from the Torah that really was about not having a different law for strangers, non-citizens and citizens. But, uh, the Talmud i- or this voice is reading it as saying, "All cases need to have exactly the same law applied."
And here that wouldn't work because it would end up making blind people be able to poke out other people's eyes with fun- functional impunity, and that would be a problem. And so therefore, that can't be what the Torah wanted, and so it must be that therefore money is, is the punishment, not actual eye poking.
BENAY LAPPE: Exactly.
DAN LIBENSON: Uh- That's
BENAY LAPPE: where we're at right now.
DAN LIBENSON: Right. Okay. So we tha- now have what you said, the fourth voice, right? The fourth, uh-
BENAY LAPPE: Yes.
DAN LIBENSON: And that
BENAY LAPPE: one is- Fourth move. The fourth move ...
DAN LIBENSON: the fourth move, and that one is gonna explain to us why it actually can mean an eye for an eye.
BENAY LAPPE: Right. The fourth move is the rejection of the challenge- To the idea that eye for an eye could actually have meant an actual eye.
DAN LIBENSON: Okay.
BENAY LAPPE: And this move essentially begins with the implied, "Oh, come on." "Oh, oh give, oh, give me a break."
DAN LIBENSON: Okay.
BENAY LAPPE: Okay.
DAN LIBENSON: So the sages object to this derivation and say, "Oh, give me a break."
BENAY LAPPE: Exactly. So this, this oh, give me a break move is always going to reference svara. It's always going to reference the cultivated common sense-
DAN LIBENSON: Uh-huh
BENAY LAPPE: of the, the parties involved in this dispute.
DAN LIBENSON: Okay. Mm-hmm. And so in more formal language they say, "And what is the difficulty?" Right. Oh, give me a break.
BENAY LAPPE: Right.
DAN LIBENSON: Perhaps in a case where it is possible to render the guilty party liable according to the punishment listed in the Torah, it is possible, and the court does so.
So if somebo- if the, the injurer is not blind beforehand, then there's no problem. Then the t- then, then you can just poke out his eye and it's fine, uh, meaning the law works. Um, and but in a case where it is not possible to exa- to enact such a punishment, it is not possible, and we exempt him. So they're saying that- Sometimes I get, you know, like, the, one response is, "Yeah, so like every once in a while you have a blind person who pokes out somebody's eye and they're gonna get off more or less."
BENAY LAPPE: That's right. That's right. Where it's possible- That's the, that
DAN LIBENSON: doesn't undermine the whole thing, you know?
BENAY LAPPE: That's right. Where it's possible to apply the law, we apply it. Where it's not possible, uh, it's not possible. Mm-hmm. And we don't. And like you say, and like all lawyers say, good law can't be made by hard cases,
DAN LIBENSON: right?
Yeah. Hard cases make bad law, yeah.
BENAY LAPPE: Hard cases make bad law. You, you don't take the exi- the existence of theoretical hard cases that may rarely occur but do occur, and make law based on those hard cases. You say, "Yeah, sometimes there are hard cases that the law can't accommodate, and we're not going... That doesn't invalidate the law."
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: In those cases, yeah, the, the person who let's say was blind and blind is... Yeah, he's gonna get off without any effective punishment. Yeah.
DAN LIBENSON: Yeah. Yeah. And by the way, this is also a very live kind of issue in, in law schools today, or, and certainly a, a few decades ago there was a movement called critical legal studies, which is basically an, an argument that says that often through showing these kind of marginal cases, that law d- you know, and their claim is, is f- you know, if I'm understanding it correctly, uh, and I did do well in the class, but it was a long time ago.
But, um, the, like if I- You took,
BENAY LAPPE: wait, you took the class or you taught the class?
DAN LIBENSON: No, I took, I took the p- this class. Okay. Um, and I did well in it, but I, and I don't totally remember it though. But I mean, the basic idea as I recall was that they're kind of making a, in my opinion, they're kind of overstating the claim.
I should note I'm very sympathetic to critical legal studies. I, I fundamentally believe in the idea that law can also... You know, the, the big philosophical idea is that law can be used as a form of oppression or as a form of kind of maintaining the strong, uh, you know, upper class in, in their power, and I think that's all right, you know?
But sometimes the argumentation to my mind, you know, goes a little too far or, or kind of like they're trying to be a little too cute maybe is a, is a way to say it. So a lot of times you're, you're looking at it and, and they're making a claim that law fundamentally doesn't work, and the, and the claim that law doesn't work tends to be, uh, hinged on these marginal sort of cases that say, "Let me show you this really difficult case and I can show you that you can't figure out what to do based on the laws that we have, and therefore law doesn't work."
You know? And, um, and I think that- That's sort of right, but there's a response to it that says, "It's the best we have." Yeah. You know, it's the least worst that we have. And like the, the alternative is what? To not have laws, you know, then everybody's doing, you know, all, anything they want in the, in all the cases, you know?
So okay, so we're gonna have a laws, a legal system. It's not gonna be perfect, and that's just part of human life. It's not perfect. And so it's not a judgment against law, just that it doesn't work in marginal cases. And so maybe that's kind of what we're seeing here is a sort of response to that critical legal studies type argument.
BENAY LAPPE: Interesting. Interesting. Sorry if
DAN LIBENSON: I've offended any critical legal studies scholars by misrepresenting their whole field of endeavor. I'm happy to talk about it with you offline. Um, okay, so now we have that, and now are, is what we're seeing five or what we're just seeing is, like, an alternative four?
BENAY LAPPE: No.
Now we're at five.
DAN LIBENSON: Okay.
BENAY LAPPE: And now five is reference to a commonly understood legal phenomenon that we all are at peace with. Uh-huh. Both s- both parties to this argument recognize and are, and accept this on the ground reality. So this is being referenced to support the idea that, yeah, sometimes we can't do it.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: You know?
DAN LIBENSON: So the-
BENAY LAPPE: Sometimes we can't do it right, and, and that doesn't invalidate the law itself. So
DAN LIBENSON: the structure is, like, smart guy comes along, "Hey, I can show that your law doesn't work, you know, and so therefore you can't be right." And then the response is, "Oh, come on." And it te- gives you this kind of thing.
And it sa- and then the oh, come on voice is saying, "And don't just, like, come back at me with some other stupid response, because let me show you now the absurdity of what your potential response would be even before you bring it," something like that, right? Let me, let me just show you, because even you agree-
BENAY LAPPE: That's right
DAN LIBENSON: that, that the, that the claim that you're making is not applicable in all cases. That,
BENAY LAPPE: that's right. So this last move is showing that the objector is essentially disingenuous-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: in this particular case because the objector, objector has no problem with that very same phenomenon happening that he says invalidates the whole law elsewhere as it applies to-
DAN LIBENSON: Uh-huh
BENAY LAPPE: an- another law.
DAN LIBENSON: Okay. Mm-hmm. So i- 'cause it, so the structure then the Talmud says, "As if you do not say so," meaning- Mm-hmm ... that if you don't agree with me that it's not really a big problem that every once in a while there's gonna be a case of someone who escapes punishment, right? Then- Exactly ... what are you gonna do with this principle that, that we all agree with, including you, right?
Um, that, um- Here's the case of one who has a wound that will cause him to die within 12 months. That's called a treifa. So, uh, it's usually talked about in terms of animals, uh, but the, the term treifa, it sounds a little like treif, which means non-kosher, but it's not that. It's, a treifa is a category of an animal, and I think also a person, that has some known condition that is going to cause them to die within a year.
BENAY LAPPE: That's right. So the word literally means torn, and it, and it, it comes from the, you know, the, uh... An animal is treif from this idea that an animal that has been injured and has been, h- you know, has a, had a torn body-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: and is likely to die from that wound-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: is not an animal that's kosher to eat.
DAN LIBENSON: Right, because you- Okay ... can only eat a animal that's been slaughtered in the particular style.
BENAY LAPPE: Correct.
DAN LIBENSON: Process.
BENAY LAPPE: Correct. So roadkill, sorry. No good there. Okay, so a treifa in human terms is a person who is likely to die either from an injury or an illness within approximately a year. Okay, so someone who is, quote-unquote, terminal.
DAN LIBENSON: Right.
BENAY LAPPE: Okay.
DAN LIBENSON: So, like, if somebody, let's say, in a hospice got out of bed and went and killed somebody, you know, we, we... We're pretty sure that if somebody's in, in a hospice, I mean the physical fac- facility, usually that means somebody's gonna die very soon, in much less than a year. Uh, and that's the case that, just so you can imagine the case, that person was a mafioso, you know, somebody, and he gets up out of his bed, and he still goes, and he kills somebody, you know, but he's, he's dying.
BENAY LAPPE: Yes.
DAN LIBENSON: In this case, that he's dying.
BENAY LAPPE: Right. Okay, that's one illustration of this situation. Of a treifa person.
DAN LIBENSON: I've been thinking all podcast about the, the mafia, you know, so it's on my mind. Okay, so such a person- Okay ... goes and kills a healthy person, what do we do to him?
BENAY LAPPE: Right.
DAN LIBENSON: If that's the case.
BENAY LAPPE: Right.
Because- Norm, what's the problem here in the case of a treifa, a terminal person killing a healthy person? Well, the, if, if you executed, if you carried out capital punishment on the treifa, the terminal person, you're not actually... It's, that execution isn't killing them. The condition they already had made them essentially a, um, what's the word?
A destined to die person. They were already- Mm-hmm ... uh, sort of condemned by death.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And how could we... We, we wouldn't be able to condemn them to death because they've already been... You can't kill a person twice. Mm-hmm. They've already been condemned to death. So, but we know that, um- We d... Wait, am I getting this right?
DAN LIBENSON: Yeah, I think so. But
BENAY LAPPE: we, yeah
DAN LIBENSON: So you're, so, so what we're saying is if that's a case of somebody who, we don't execute such a person. I, I wanna get back to that, because, like, I'm not sure I completely buy the argument. But-
BENAY LAPPE: Yeah ...
DAN LIBENSON: we, we, we know that we don't execute somebody who's on their deathbed. Um- Yeah
and you agree with that, too, and that's a case of somebody functionally escaping punishment even though they deserved the punishment.
BENAY LAPPE: Right. Right? Exactly. And the actual difficulty, oh my gosh, now I'm, I'm, I'm revealing the fact that I didn't do my homework in reviewing the issue underneath this, because it's fascinating and extremely complicated.
Okay, let's see if I can think it out from, from memory. The, the actual difficulty in carrying out the death penalty on a person who is guilty of murder, who is also terminal, is because... All right, mm, let's see if I can pull this out. You need to have two witnesses Testify against the defendant in order to convict a defendant Right Those witnesses have to have the fear of reprisal if their testimony is found to be plotting or, you know- False
lying, treacherous, false. False for the purpose of executing someone who's innocent.
DAN LIBENSON: Right
BENAY LAPPE: Okay? Those witnesses are called plotting witnesses. So for example, for example
If you're on trial for
Theft. Uh, will that, will that work?
Okay. Um
Let's, l- okay. Whatever, whatever your offense is that you're on trial for, let's say the punishment is lashes. Mm-hmm. Great. And the witnesses who come forward and say, "Oh, yeah, I saw Dan do that offense. I saw Dan strike that person," or whatever, when I didn't really.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: I just want to see you lashed.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Right?
DAN LIBENSON: Why do you hate me so?
BENAY LAPPE: Sorry. Um, I as a witness have to be, have to know that if I'm found out to be a lying witness, I will be subject to the punishment which my lying testimony would have caused to be inflicted on the defendant. Right. The punishment for being a lying witness is to incur the punishment that the defendant who you were plotting against would have gotten had you been effective- Mm-hmm
in your... Okay. And so I would get lashed. Okay. That's a deterrent to lying witnesses. Right. Okay, fine. Okay. Now let's go to this murder case. The witnesses who would testify in such a murder case of a hospice patient murdering someone else have to be able to be punished with the punishment of the defendant if they are effective in their false testimony.
Right. Okay.
Okay, this is, this is where I always lose it. And they can't be because the defendant is already
Destined to death. I don't know. This, ugh. I'm sort of trying to skim the Rashi as I'm trying to remember this as well. No, '
DAN LIBENSON: cause I was... I mean, like, one way... Like, I'm just logicking this out on my own. I don't know if this is, uh, kind of Rashi. But I'm thinking, like, as you were explaining that, I was thinking, "Okay, so that would be an explanation of why a treifa can't be a witness to..."
Like, in other words, um, let's say that the, the person in the hospice, like, the- their enemy came to visit them in the hospice, and then they killed him, but the only witnesses were the pe- were other hospice patients. And so you can't really accept their testimony- Right ... because they're dying, and the punishment for- Right
them lying would be death, but maybe they're not so afraid of that because they're dying anyway, so they would be more likely to bear false testimony, uh, than a average person, right? Right. That, that was what I was thinking. And then, then I was, like, trying to logic that backwards and say-
BENAY LAPPE: Right ...
DAN LIBENSON: if you can't accept testimony from a hospice, you know, from a treifa, somebody who's dying within the year, then somehow that you can't be, you know, you can't be convicted.
I, so I'm not sure. Like that I'm just, like, logicking in my head, so I don't know that that makes any sense at all. But I was trying to sort of follow that logic and... But, you know, I, 'cause I was thinking a, a different thing. I was thinking, like, well, maybe, like, one, what, one thing that this could tell us is that the process of convicting somebody and, and, uh, imposing the death penalty would be understood by the people writing the Talmud to take more than a year.
You know, maybe because you have- Hmm ... to give so much time for the witnesses to come forward, and then give so much time for the witnesses to say that the witnesses were lying to come forward. And by the time all that runs out, it's over a year, so functionally you can't punish the person. I don't think that's probably what Rashi says.
I was just trying to, like, think about whether I can, y- you know, I can kind of... Or, or, or just a, a casual reader could kind of logic out some understandings from this.
BENAY LAPPE: Yeah. Maybe. Maybe. But... How are we doing on our time? We have seven minutes. Okay. I, can I just-
DAN LIBENSON: Yeah, we'll come, we'll come back next week with, with that clarified if-
BENAY LAPPE: Okay.
But bas- basically, the reason why in reality we all accept the fact that- A treifa can't be convicted of murder, and if the treifa does commit murder, he goes scot-free because he's, he, he can't be executed, is because of this technicality in the possibility of having the mandated evidentiary requirements and witnessing requirements carried out on a defendant who is already essentially destined to death.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So-
DAN LIBENSON: And, and basically the, the voice is saying, "Look," and maybe this also for modern ears needs to be clarified, it's like, "We all agree, nobody here is saying that there's not a death penalty for murder. I mean, of course there's a death penalty for murder. We all know that. I mean, even you know that, Mister, you know, uh, uh, person making these, these arguments that are all-"
BENAY LAPPE: M- M- Mister, the Torah can't possibly mean eye for an eye.
Mm-hmm.
DAN LIBENSON: Uh, huh. That, you know, we, you're not, you're not denying that there's a death penalty for murder, right? You know, this cross-examined it. "No, I'm not denying that." Well, once you've not denied, well, what about, what are you gonna do with the case of the treifa that commits murder? Because we know that we don't execute that person, and so you're saying that the entire, uh, you know, entire idea of, of capital punishment falls apart because j- we can't...
You know, just because the person on their death bed who commits murder isn't gonna be mur- We know that that's not true. You agree that that's not true. And, and the fact that we can see that just because the, a marginal case doesn't bring down the whole, the whole, uh, process in death penalty, you can't now bring that argument to the eye-poking situation and say, "Just because we can find a case where that doesn't really happen or it doesn't have much of a punishment value, the whole thing comes crumbling down."
BENAY LAPPE: That's right. Exactly. And that's the end of- Quote, unquote, "Proof number three."
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And it, proof number three ends with, actually, the Torah could very well mean exactly what it says.
DAN LIBENSON: Mm-hmm. Which,
BENAY LAPPE: which it does. An eye for an eye.
DAN LIBENSON: And, and we should read that part. So the, the Talmud says, "Rather, one must say that in a case where it's possible to render the party punish- uh, the, render the guilty party liable according to the punishment of the Torah, it's possible, and you do it.
But in a case where it's not possible, it's not possible." I was like, you know, that was little catch goes from it's not possible, it's not possible.
BENAY LAPPE: I know. Right. It, it's so, like, I don't know. I'm getting, oh, it's fine. It's like, it's got this, like, Yiddish grandmother element to it. It's like, okay.
DAN LIBENSON: Yeah, I mean, there's a, there's a- It's
BENAY LAPPE: v- it's very, it's very, um, Jackie Mason.
DAN LIBENSON: Yeah. There's a joke, there's some joke that's like, it's, like, on the tip of my tongue. But it's like, you know, "So you don't want me to do it?" You know, it's just that, that's the joke. You know, it's like, yeah.
BENAY LAPPE: But, uh, uh, what's the joke about hammering a fish to the wall? I don't know. Do you know that one?
DAN LIBENSON: I don't know that one.
It'll be good to know.
BENAY LAPPE: Okay. Anyway, if one of our viewers can connect the last two dots of that, that technical difficulty about lying witnesses not being able to, um- be threatened with the same punishment that they might have inflicted, that would be great. Mm-hmm. This is the piece that, uh, always escapes me every time I re-learn it and try to teach it, and I, I get it and then I lose it.
It's- Mm ... it's, it's hard.
DAN LIBENSON: I mean, maybe, uh, like, uh, just in the... Like, I'll share this story that I, I told to you before, because it's a little relevant to this, like, logical reasoning. I, I had an experience yesterday where I've had this cold or this cough that, you know, has lasted longer than I, uh, by this point I feel like it should.
And, and I, I had had a COVID test previously, so I'm sure it wasn't COVID. But, um, but I decided to finally go to the doctor, and I got an appointment at the doctor for the afternoon, and I figured, "Well, they're gonna have do a COVID test on me anyway, so I may as well get the COVID test in the morning just to get it, just so that it's already on the road so that they'll, we'll get the result in the afternoon and they'll still have time to prescribe antibiotics for me," which is what I was sure that I really needed by the end of the day so that I can start to treat my cold.
So I get to the doctor and, uh, you know, the nurse checks me in and she says, "Have you had a COVID test?" And I said, "Oh, yeah, I just had one this morning." And she's like, "This morning? You had a COVID test this morning?" I was like, "Yeah, I, I just wanna make your life easier. I decided I would get it this morning."
She- But technically they have a rule that if you have a COVID test pending, you can't come to the doctor. But, like, I only got the COVID test 'cause I figured that they would give me the COVID test and I wanted to help them. And, and I said to her, "But, but if I hadn't gotten the COVID test," and I might have had COVID from your perspective, you know.
"If I hadn't gotten the COVID test..." By the way, I should, you know, spoiler, it was, it was negative. You know? But, but, um, "If I hadn't gotten the COVID test, I would be fine to be here?" And she was like, "Yeah, you would be totally fine to be here." And I was like, "But, you know, so it's, so it's, so it's because I was trying to, like, do a good deed that I couldn't be seen."
And they, they basically threw me out and said I, I can't be seen today and I have to come tomorrow. And it was, like, one of those cases where I'm like, okay, so, so you could call this, like, the marginal case where the, you know, helpful idiot, you know, uh, decides to get a COVID test earlier in the day. And then in doing that shows the absurdity of a certain interpretation of the law that we can't see somebody until their COVID test has come back, which kinda makes sense if you think that the person got a COVID test 'cause they thought they had COVID or whatever, you know, right?
Um, but in this case it didn't make sense, and you could say, "Well-
BENAY LAPPE: Right, because a pending COVID test is only relevant in that situation if the test was a result of a potential exposure or- Right?
DAN LIBENSON: Right, like not somebody just trying to be helpful and get the test done sooner, you know? But you can, you can say, like, well, because we've found an absurd marginal case...
Right? Because I couldn't- I also- I mean, it was even more absurd, 'cause like I couldn't... They, they didn't have a system for hearing my situation-
BENAY LAPPE: Right ...
DAN LIBENSON: and going and talking to somebody who, like, was a, a, a judge, you know- ... and saying like, "Well, obviously this is not the case that this law was made for. This is some guy trying to help us out, and like, he could have not had a COVID test, and then we would've happily seen him."
BENAY LAPPE: Right.
DAN LIBENSON: So obviously this doesn't make sense, and we can see him. They didn't have that, that structure in place. So it was just like, it was like kind of a catch-22, like, just go straight by the letter of the law. And as a result, I couldn't be seen, and I have to suffer for one more day with a cough, you know?
And, um, but we don't say that because we found this marginal, absurd case, therefore their whole rule of not seeing people who have pending COVID tests should be junked. You know, like, we don't, we don't go that far just because we happened upon the, the marginal case.
BENAY LAPPE: Right.
DAN LIBENSON: And so, you know, it- and it also said to me...
I mean, that was, that's one takeaway or one connection to what we're studying. A- but it also was, my experience at least of this, of this experience was like, wow, this is like Les Miserables, you know? Like, you're, you sell a loaf of bread and you're condemned. You know, that the law can be, you know, an ass, as, as, uh, I think Oliver Wendell Holmes said.
You know, like, that you, that, that there's just ways in which, like, if you're just governed by law and there's no savara involved, like, there's no way to kind of, you know, find a way to understand in any given case whether maybe the law doesn't- isn't right to be applied in this case. Then the law is functioning in a way that is wrongheaded and, you know, either that's why we need savara, or maybe once we're living in a world where people are capable of more sophisticated thought about law than that, it, it doesn't make sense to have law have quite the same strong arm function as it would in a past period.
You know, I don't know exactly, but this case definitely has me thinking about what we're talking about, 'cause it was just this kind of like mindless application of a legal principle.
BENAY LAPPE: Right.
DAN LIBENSON: Um, so that'll go in our next Talmud. Actually, you know, but it, when we talk about the next Talmud, so to speak, you know, we've talked about this question of like what would be the next thing that we would create?
You know, it feels to me like it, it would have to be a, a, a document, you know, a, a website, whatever it would be that, that would, that would have a more subtle, that would understand that your average person is, is smart, you know, and is, is sophisticated. And like if doctors, you know, doctors are writing, like they're writing their Talmud, you know, for this, the medical center.
They're, they're writing their, or, you know, maybe it's their code book or something. But I think that in a way these, these codes are written on the assumption that the patients are, are just stupid, you know, as opposed to like here we are in a university community, like their average patient is pro- or, you know, at least a lot of them are probably quite sophisticated.
They might be scientists. And I don't think it was so crazy of me to go get a COVID test in the morning to help them out, and I, I would think that like a lot of university professors who are scientists would have done the same thing because they know how like science w- So it's al- it's like in a way the more sophisticated people- Right
are the ones most likely to do this, and therefore the law has actually missed a very important category for our time, and therefore the law book or the, you know, whatever we're calling it, has to be reimagined in a way that understands that at least a big percentage of our, quote, "average people" are, are actually highly sophisticated, savara dick thinkers who might do something that actually makes a lot of sense but doesn't fit into our legal categories in a clean way, and we're gonna have to deal with that.
Otherwise, you know, the law is an ass.
BENAY LAPPE: That's right. That's right.
DAN LIBENSON: So, so, uh, we will, uh, take that into our continuing examination of this, of this, uh, of this question. Um- Great ... we'll see you next week with the next stitch in our sampler.
BENAY LAPPE: All right.
DAN LIBENSON: All right. See you then. Thanks,
BENAY LAPPE: Dan.
DAN LIBENSON: Thanks, Vinay. Bye.
BENAY LAPPE: Bye-bye.
DAN LIBENSON: Thanks so much for joining our chevruta today! We hope you’ve enjoyed learning with us… and with the Talmud. You can find links to the source sheets for all episodes in the show notes and on our website at oraltalmud.com. Your support helps keep Oral Talmud going. You can find a link on the website to contribute. We’d also love to hear from you! Email us with any questions, comments, or thoughts at hello@oraltalmud.com. Please, share your Oral Talmud with us – we’re so excited to learn from you. The Oral Talmud is a joint project of SVARA: A Traditionally Radical Yeshiva and Judaism Unbound, two organizations that are dedicated to making Jewish texts and ideas more accessible for everyone. We are especially grateful to Sefaria for an incredible platform that makes the Talmud available to everyone. It’s free at sefaria.org. And we are grateful to SVARA-nik Ezra Furman for composing and performing The Oral Talmud’s musical theme. The Oral Talmud is produced by Joey Taylor, with 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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