SHOW NOTES
“The Talmud can be understood as a case book or a teaching tool and… the Talmud may very intentionally be leaving out good proofs because the whole point is to test the students to see if they really understood it and to give them other cases.” - 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 Talmud is supposed to make you laugh? Not politely chuckle, but genuinely laugh out loud at the absurdity of its arguments. In this episode, Benay and Dan wrestle with a bizarre legal question: What happens if you poke out someone's eye as punishment, and they accidentally die? The rabbis' answer leads to an unexpected detour through Jackie Mason, Jewish comedy, and the possibility that generations of scholars have been taking seriously something that was meant to be a joke.
But beneath the laughter is a provocative question about what the Talmud is actually for. When they discover a seemingly airtight argument that the rabbis never bothered to make, Benay and Dan begin to wonder whether the missing argument is more important than the ones they included. If so, what if the Talmud isn't meant to be a book of answers at all? What if it's just a training ground designed to teach its readers how to think, how to argue, and ultimately how to create something the rabbis themselves never imagined?
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 73: Taking It Too Far
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 Talmud is supposed to make you laugh? Not politely chuckle, but genuinely laugh out loud at the absurdity of its arguments. In this episode, Benay and I wrestle with a bizarre legal question: What happens if you poke out someone's eye as punishment, and they accidentally die? The rabbis' answer leads to an unexpected detour through Jackie Mason, Jewish comedy, and the possibility that generations of scholars have been taking seriously something that was meant to be a joke.
But beneath the laughter is a provocative question about what the Talmud is actually for. When we discover a seemingly airtight argument that the rabbis never bothered to make, Benay and I begin to wonder whether the missing argument is more important than the ones they included. If so, what if the Talmud isn't meant to be a book of answers at all? What if it's just a training ground designed to teach its readers how to think, how to argue, and ultimately how to create something the rabbis themselves never imagined?
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 Levinson and I'm here, as always, with Bnei Lappe. Hey, Bnei.
BENAY LAPPE: Hey, Dan. How are you?
DAN LIBENSON: Good. Good to see you.
BENAY LAPPE: Good to see you too.
DAN LIBENSON: Um, so I think we don't have a lot of preliminaries to... We'll just wanna jump into the next stitch in our, uh, sampler of techniques.
Although, I will say that when we were preparing for this show, for this episode, we, uh, we were debating, we weren't sure what the name of the stitch was exactly. I mean, we have some, some sense.
BENAY LAPPE: Y- yeah. A- and what I'm realizing is that I know this sugya contains 10 proofs, and we're going through them one at a time, and there's not a new unique stitch for each proof.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: So there's that. Some, some are... Here's another example of the same stitch. If the, if the stitch theme, the sampler, you know- Right ... framework e- is even right. So today we're on the sixth proof, um- That may, that for sure is repeating a, a stitch we've had before. I think.
DAN LIBENSON: W-
BENAY LAPPE: We think. We don't know
DAN LIBENSON: You say there's 10 proofs.
BENAY LAPPE: Yeah.
DAN LIBENSON: I'm cur- I just wanna, like, probe at that language a little bit, because I'm just thinking about, like, if I... I'm trying to just, like, sort this out, and I'm like, okay, l- from... If we're... You know, this whole thing that we talk about, about who's the audience for the Talmud, and- Yeah ... it's, it's really a casebook for, like, rabbinical students, and, and it's really less that it's about two different audiences, and more that it's two different agendas that it's trying to teach the students.
One is how, you know, what's, what's really true, and how to figure things out, and, and to show you and, through winks and otherwise, how radical we h- we are being, we have been. In, in other words, how the early rabbis really did change Judaism, and they want their students to see that. And, uh, and, and-
BENAY LAPPE: So that they will continue it, right?
DAN LIBENSON: They will continue. And, and that in this case, that means showing you clearly that the Torah did mean poke out an actual eye. Uh, and we know that we don't do that anymore, and that means at some point we did something very radical. We overturned the Torah. And then the sort of what we've called the marketing message for the regular people, who are gonna, you know, hear about this in synagogue at the Torah reading, and say, "Wait a second.
I just read in the Torah that it says an eye for an eye, and obviously that means poking out an actual eye." And, and we say, "Oh, no, no, no, no. The Torah never meant that in the first place." So when we say proofs, I, I guess I'm sort of wondering, like, it's, it's more like 10, um, you know, 10 exercises, or 10, like, somethings.
Because what we're seeing is sort of both in, in a lot of these. We're seeing the, the message. We're seeing kind of the way to, to, to say, you could say that the Torah actually, um, didn't mean an actual eye, meant monetary compensation. And, and, um, and that's usually through this kind of... You know, well, sometimes it's convincing, sometimes it's less convincing, you know?
And then there's the, the claim that the Torah did mean, uh, actually poking out an eye, which continually gets, like, refuted technically, but really often not that well. And at the end of the day, we know that, you know, the Torah, we, we suspect, I mean, we feel very strongly that the Torah really did mean poke out an actual eye.
So I, I, I, so I'm just like questioning the word proof.
BENAY LAPPE: Yeah. I appreciate that, because I think the word proof is a h- holdover from the time when, or those contexts where, and I, this is the way I learned the Talmud, where the framework for what's going on here, or the assumption of what's going on on the page is- The Gemara is trying to prove that the radical Mishnah, and when I say radical, I mean deviating explicitly from what the Torah says, is actually rooted in the Torah.
So I think that's the way I learned Talmud, and I think that's what the word proof is referring to. It's the
seeming attempt to show how the unjustified, unsourced Mishnah really is, um, what the Torah wanted. And, and I think you're right that we should probably stop using that term if we're going to shift our assumption about what's going on in these little formerly known as proofs. Probably they're something more like, um, sample conversations or practice dialogues or something like that.
I like that. Let's see, what else do we know about these so-called proofs? They s- most of them begin with... They seem to be the editor's treatment of an earlier very short statement of what the law should be. In this case, should the law be we poke out people's eyes, mamash? Or should the law be we do monetary compensation, mamon?
And
This early s- brief statement is also followed by an objection to whatever Let's see. In ni- let me think through this. In nine out of the 10 cases, the first volley of this earlier, um, record is the Torah means money
DAN LIBENSON: Mm-hmm
BENAY LAPPE: Okay. So what is going on there? It seems like the s- the editor is trying to destabilize that and, and surface that
That really isn't what was going on.
DAN LIBENSON: Mm-hmm. A-
BENAY LAPPE: and, okay, so why, why is the editor invested in doing that for the reader? Maybe that's the agenda of showing the l- the student what's really going on.
DAN LIBENSON: Right. I mean, I, I, I think we should just like keep our finger on it and like maybe-
BENAY LAPPE: Okay ... when
DAN LIBENSON: we're all done, like come back to think about it.
But, you know, it's kinda like, um, you know, I don't know, like I'm, I'm picturing, right, the agenda for the common person. Like where the, the point is, again, this is part of our hypothesis, but the point is, is that the editor is invested in the idea that the rabbis are not going to tell the common person that we changed the Torah.
Right. And
BENAY LAPPE: so,
DAN LIBENSON: right, and so what's gonna happen in their imaginings is that as- when we have an explicit Torah verse that seems really obvious t- at the surface reading, poke out somebody's eye, is that regular people are gonna come to the rabbi and say, you know, I, I just, you know, this guy poked out my eye.
I, I, I can go poke out his eye, right? And the rabbi's gonna say, "No, we don't do that. We ... You take him to court and we're gonna give you, you know, compensation, monetarily com- mo- monetary compensation." So the guy is gonna say, "But wait a second, I just read this in Shul," you know? So, so then we have a series of, of arguments, uh, 10, uh, you know, approximately, right?
That where the these are the things that you can say if you're the rabbi to the com- "Well, you know, you don't understand the, the reason why the Torah said there was another verse and the way we understand it," blah, blah, blah. And, and so on the one hand, if you're a rabbi, a rabbinical student, you can kind of read this, uh, this text and say, "Okay, now I have 10 arguments in my pocket for what should I say to this regular Jew who's trying to poke out somebody's eye."
And-
BENAY LAPPE: Right ...
DAN LIBENSON: but the editors also told me in class, or the t- you know, it's like the teacher told me in class, "Actually, these are not really good arguments, like these are, these are kinda a little bit of sleight-of-hand type of arguments. The fact of the matter is, is that the Torah did mean, uh, did mean poke out somebody's eye, but we don't do that anymore because our savara, our moral intuition, has sort of revealed to us a new, a new Torah in a way, right?
Like a new, right? That, that, that's revealed to us that, um, certain laws have to be changed. And, uh, and whether we could say revealed to us or like we just decided to, you know, depending how you wanna say it. But, um, but you know, but that's kind of what we're say- so, so like don't, don't you be fooled by these arguments."
BENAY LAPPE: Right.
DAN LIBENSON: Something like that.
BENAY LAPPE: Right. Uh- I like the word argument.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Maybe these are arguments.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Because that- It, it actually maintains the ambiguity that's living in each of these formerly known as proofs. Uh-huh. On the surface they look like they're arguing for, uh, this new innovation being from Torah.
On the other hand, they probably, that's our hypothesis, right, are being used to argue that, um, to argue that to the everyday people.
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: The former being what you shouldn't be fooled by, and the latter being what you hope that they are kind of- Right ... satisfied by.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Something like that. O-
DAN LIBENSON: okay.
Well, let's wait. Let's, like, uh, put a sticky on that as you say- Okay ... this next. So I think this is a particularly interesting one in the sense that, like, you know, the, the, it's another one of these strained arguments that kind of seems relatively easy to refute, and you're kind of like, "Why is it there?"
And if we have time, I actually have been thinking about a dog didn't bark argument, like, one that I haven't, I don't think is in this, among the 10, but that I think is a really good one. And partly I'm wondering, like, why it's not there. So, so we can, uh- Oh,
BENAY LAPPE: I can't wait to learn about it.
DAN LIBENSON: Okay. So- Okay ... so let's, uh, take a look at this text where we are, I think you said, was this number seven?
BENAY LAPPE: We're at, we're, I think we're on number six.
DAN LIBENSON: Oh, number six? Okay. So, um, so here we have Abaye, one of the great, one of the great, uh, rabbis. Um, and his argument is that the Torah always meant mon- monetary compensation, and his proof, so to speak, is derived from that which was taught by the school of Chiskiya, a different rabbi, as the school of Chiskiya taught that the Torah states an eye for an eye and a life for a life.
Uh, so just to take a quick look at that, this is in Exodus. And so here's the quote. But, you know, uh, "The penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, w- wound for wound, bruise for bruise." So what they're saying here is that we see a life for a life and an eye for an eye.
Those are two separate. If you kill somebody, your life is taken. If you poke out somebody's eye, your eye is taken.
BENAY LAPPE: Exactly.
DAN LIBENSON: And, but- And
BENAY LAPPE: they're sort of hermetically sealed from one another.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: They're, they're pairs or couplets that are- Yeah, they have boundaries from one to the other. Okay, great
DAN LIBENSON: Um, but not, it doesn't say, but not an eye and a life for an eye.
So, okay, so then, so, so we'll see in the next sentence what this is really about, right?
BENAY LAPPE: Right
DAN LIBENSON: Uh, so if it enters your mind to say that the verse means actually taking the injurer's eye, the injurer's eye-
BENAY LAPPE: In other words, if you're gonna claim that the Torah really literally meant, quote-unquote, "an eye for an eye," physical retaliation, you'd be wrong.
Okay
DAN LIBENSON: Right, because sometimes there will be cases where both an eye and a life are taken for an eye, such as when a court blinds his eye, his soul departs. So if I understand this, the, the idea is that- You know, usually if you just poke out somebody's eye, they'll just not have sight in that eye anymore, but maybe you hit an artery, or maybe you poked it a little too far and it went into his brain or something, and you could...
You know, it's terrible. But you, but you could actually, you know, you could actually kill somebody in the-
BENAY LAPPE: Maybe they got an infection-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: and died from the procedure.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Or, yeah. Right. Could be. In, in some way or whatever it is. And sometimes that's gonna happen-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: when all you really wanted to do was take out the eye, because that's what the Torah said, an eye for an eye.
Sometimes the person's gonna die, in which case you have even inadvertently but nevertheless taken a life and an eye for an eye. But that's a violation of the literal word of the Torah that says just life for life or eye for eye. So I, I think what's go- I think what's going on here, I think the stitch here- Mm-hmm
is a diyuk. The diyuk is the hyper-literal, hyper-precise read of the actual text. Um, and I think that's what's going on here, because an eye for an eye, it's... The, the, the midrash here is not an eye and a life for an eye. So I, I think it's playing on the precise wording- Uh-huh ... and saying an eye for an eye excludes or, and, or couldn't...
Would, would be a, would be violated if a life also- Uh-huh ... were... I think that's what's going on.
DAN LIBENSON: I, I see, I see how you would call it a diyuk, and I'm no expert on Talmudic terminology. I feel like it, we need a slightly different term for this, because there's the diyuk that says, "I'm gonna read this hyper-literally," s- and I can't...
What was the diyuk that was a few weeks ago? It was-
BENAY LAPPE: Uh, don't take ransom for the... That one?
DAN LIBENSON: Yeah.
BENAY LAPPE: Don't take ransom for the life of a murderer, for he's guilty to die.
DAN LIBENSON: Oh, and so, so, so meaning, uh... But, but then that's the only thing that's being excluded, so you, you should take a ransom for other k-
BENAY LAPPE: Anyone who's not a murderer.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: A- and I th- it, that w- I'm still unsure if that's a diyuk only or if it's what's called a miyut. Uh-huh. A miyut is a r- a, a precise read of the text which implies the exclusion of some unnamed case. Mm-hmm. And that could be a miyut, and I'm not honestly sure if a miyut is a subcategory of a diyuk.
If a diyuk is generally a kind of precise read, some of which exclude non-explicitly included cases-
DAN LIBENSON: Uh-huh
BENAY LAPPE: I'm honestly not sure about that. Yeah, I- We, I... Yeah.
DAN LIBENSON: No, and I can see this also kind of fitting into that same question. And, and maybe, maybe it belongs, maybe like to u- understand the order that it's in, it, it kind of incorporates some of the earlier categories.
Um, because- Yes ... you know, there's, there's this idea that like, it, it, it also incorporates the one that we did where it was like looking at the verse that says, you know, there should be one law for, for everybody, right? Because it's kind of like saying, um, like the issue here is that, um, it says an eye for an eye, and what it means if we look at this hyper literally, it's almost implying the one law for everybody into the statement an eye for an eye.
In, in other words, it's saying an eye for an eye only in cases where you can be absolutely 100% sure that it will only- Yes ... be an eye for an eye. And since we can never be 100% sure about everyth- anything, then it can't mean an eye for an eye, even though it says an eye for an eye.
BENAY LAPPE: That's right. And now you're reminding me that the two previous, number four and five, arguments four and five, w- were, we thought were dukes on the word give.
Remember that?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: For sure those weren't mutes. Those weren't exclusionary- Right ... deductions. If
DAN LIBENSON: you give someone a blemish, that me- you know, you should be given in return, give means money. You know, 'cause you give money- That's
BENAY LAPPE: right ...
DAN LIBENSON: you, yeah.
BENAY LAPPE: That's right. If the Torah used the word give, that's a signal because anyth- the only thing that can be given is money.
I think that was a duke. Maybe this one is a mute again. But in any case- Mm-hmm ... you're right. You're right. It incorporates that same idea. This proof and the next proof are both gonna go back to proof, was it three? Yeah. Proof number three, where the challenge to the Torah possibly meaning actual eye was that that isn't gonna cover every possible case.
Or applying that to every possible case will sometimes involve exceptional cases where you've kind of gone overboard and violated the Torah. And the answer to that back in proof three was, "Eh, if it happens, it happens." Yeah. If we can't do it, we can't do it. And that shouldn't eliminate this interpretation or this law from the realm of- applicable, right?
You can't use the difficult cases to
DAN LIBENSON: These rare exceptions, these rare-
BENAY LAPPE: Right ...
DAN LIBENSON: precedences can't undermine the whole, the general law. Uh, the, and I think that's also g- a general principle in law, you know, that you don't undermine the entire legal regime because of some oddball case that might happen.
BENAY LAPPE: Right.
DAN LIBENSON: So, um, okay, but so the bottom line here is that they're saying, the claim is that the Torah can't mean an eye for an eye actual-
BENAY LAPPE: Right ...
DAN LIBENSON: because it's possible that if you take an a- an actual eye for an eye, it, you might cause the death of the, the person who, after all, had only pug- poke- poked out somebody's eye and not killed him.
Uh, the first, the injurer has poked out- Oops, you froze on me a little bit ... the first guy's eye, but he didn't die. A- and so then if you come and in return you poke out the injurer's eye and he does die, then he's getting basically a punishment that doesn't fit the crime- You're a little
BENAY LAPPE: frozen
DAN LIBENSON: for me, Dan
because he's getting poked out eye and death. It-
BENAY LAPPE: Oh, now you're back. Now you're back.
DAN LIBENSON: Oh, I, sorry. Uh, I, I didn't know that I was gone. Um, wait, so let me say that again, just- Yeah ... just in case, uh, we, we fell out on the Facebook as well. Um, so the, um, so the, the, the, the issue here is that basically, um
Oh, hold on. A technical difficulty. I think, I think we're good
BENAY LAPPE: So, so sorry about that. My internet seemed to knock me off. Okay.
DAN LIBENSON: Okay, good. Well, I think we're back. So, okay, so let's go back, uh, to this point just, just for the sake of making sure that people are hearing it. So the, the bottom line of this claim is that i- in a case where, uh, somebody poked out somebody else's eye and that person didn't die, then you come around and say, "An eye for an eye, so I'm gonna poke out your eye in return," but then you die.
That's kind of a punishment that doesn't fit the crime, you know? It's, uh, you're, it's, you're, you're getting the death penalty for all you did was poke out somebody's eye. That's not right. That's not what the Torah says. Therefore, we can't take the risk of poking out somebody's eye in return for them having poked out somebody's, the first person's eye, because it, because it might turn out to be death, so therefore it can't mean an actual eye for an eye.
It must mean something else, and what would that something else be? Money.
BENAY LAPPE: Exactly.
DAN LIBENSON: Okay.
BENAY LAPPE: Exactly.
DAN LIBENSON: So then the, um, so then the, the, the response from the voice that's defending the idea that it does actually mean an eye for an eye-
BENAY LAPPE: Right ...
DAN LIBENSON: right, is v- what is the difficulty? Perhaps we evaluate him. So in other words, we give him a medical exam.
BENAY LAPPE: Right, and him being the perpetrator, the guy who poked out someone's eye.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: He's been found guilty of that, and now we're gonna poke his eye out, and, uh, the, the process is we evaluate him. We give him an exam. Go ahead. Yeah.
DAN LIBENSON: Uh, we give him a, an exam. If he can withstand the actual taking of his eye, then we do it.
If he cannot withstand it, then we do not. So the implication is there's something that we would be able to tell in an exam that would give us a sense of whether this person is likely to die from the eye poking.
BENAY LAPPE: That's right. You know what's, I, I just realized, this is interesting, that this procedure which is described as the, a way to avoid the violating of the Torah when doing i- l- actual eye for an eye, the violation being a life for an eye- Mm-hmm
is that if he, if the perpetrator can't withstand getting his eye poked out and living, we don't poke, poke his eye out, and n- no acknowledgement is made here to the pr- pre- previous- I don't know what to say. The, the, the previous explanation that that in itself, which looks like it's problematic because you're not doing one law for everybody, isn't problematic because sometimes you can carry out the law and sometimes you can't.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: You know what I mean? It feels like there's a missing bracket here that where you're mentally supposed to fill in that where you can't, where you've determined that this guy can't withstand having his eye poked out, that in and of itself is not actually problematic.
DAN LIBENSON: Although- Yeah, because in a way, in a way you, you kind of are drawn back to the previous proof- Right
and you would say, "Well then, if there's a person who's so phys- physically, you know, infirm that, uh, they would die from having their eye poked out, then we don't poke their eye out." But then you would say, "Oh, but wait a second. There's a line in the Torah that says, uh, you should have one law for everybody.
And, uh, so therefore now that we've found an exceptional case, namely where somebody has this kind of infirmity or, you know, maybe it's like a bleeding disorder or something, you know, that they, um, that they can't have this punishment, therefore nobody should have this punishment because the Torah says that there should be one punishment for everybody."
But I guess in the previous verse they ended up saying, you know, there's gonna be exceptions.
BENAY LAPPE: Yeah. Right. Yeah.
DAN LIBENSON: Um-
BENAY LAPPE: Okay, so that isn't raised as a problem- Yeah ... but
DAN LIBENSON: okay. And it's, and I wonder is it, is it not raised because it was already, uh, resolved in the previous, uh, proof, or...?
BENAY LAPPE: Maybe. It, again, the, all of these arguments are a- a- artificial historical recreations.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: When I was a kid I was a rock hound, but I can't remember w- w- is it sedimentary? What's the kind of rock where you can look at it and you can see all the historical layers?
DAN LIBENSON: Uh, I don't know, but yeah. Maybe.
BENAY LAPPE: Right? You can see like the earliest, earliest layer, then on top of it is the whatever, the volcanic layer.
And then on top of that is the whatever, whatever. Every one of these argu- ev- e- the entire Talmud is that. I- it's the editor starting with the very early rabbinic, um, tradition and idea, which w- characteristically was not recorded with its own thought process or rationale, justification. It was just, "This is what we should do."
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And then the editor is building back in a conversation about it as if that earlier voice was part of the conversation. Um, so- Yeah, the, the editor built in this later layer of the, well, the, you know, if you can't do it for everyone, that's a problem. No, it's not a problem. So maybe we're, we're supposed to remember it.
That, that wouldn't have been part of Abaye or Hisqia's Are not necessarily part of-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: their conversation about this.
DAN LIBENSON: Mm-hmm. Mm. Well, the other thing that strikes me is that, like, there's some notion that sort of their medical processes, their medical understanding is, is good enough that they can make some kind of medical evaluation and have, and know whether the person's gonna die or not from having their eye poked out.
And that just seems, I mean, from our perspective, incorrect, right, in the sense that you can't know if somebody's gonna get an infection just- Well,
BENAY LAPPE: I think, I think it's gonna go on to actually say that. They're gonna do their best-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: and acknowledge, you know, sometimes we're gonna get it wrong.
DAN LIBENSON: But I wonder what they think they are gonna see that would make them say, "Oh, this person- Uh-huh
is not capable." Like-
BENAY LAPPE: Uh-huh ...
DAN LIBENSON: what, what are they looking for? I, I, I don't know that's a particularly important question, but I am curious about it.
BENAY LAPPE: Uh-huh.
DAN LIBENSON: Like, and, and whether also... I, I don't know. Maybe there are other places in the Talmud, uh, maybe you know, maybe you don't. Like, I just thinking about, like, the state of their sort of medical knowledge and whether there were, and I'm sure there were all kinds of, um, stereotypes involved, you know, that somebody who looks weak or looks, you know, has another disability or whatever might be less, less strong, you know?
Which that probably not true. I mean, that's may- not true at all in terms of whether they could withstand having their eye poked out. You know, it might, might be, right, like I just wonder if there are all kinds of stereotypes involved.
BENAY LAPPE: Yeah. Un- I, I would say undoubtedly. Sure. And it's interesting to know they, yeah, as we're about to see, they already have this same kind of process for evaluating another kind of punishment.
We're about to see it.
DAN LIBENSON: Okay. So, um, so perhaps we evaluate him, and if he can withstand, if we think he can withstand the actual taking of his eye, then we do it. And if he cannot withstand it, then we do not. And if we evaluate him and determine that he can withstand it, so we, we've done the medical exam and he falls into our category of people who are gonna be okay if we poke out their eye.
Uh, the only thing that's gonna happen is that their eye's gonna be gone. Um, if we determine that he can withstand it and we do so to him, meaning we poke out his eye, and his soul departs, if he dies, he dies.
BENAY LAPPE: If he dies, he dies. Again, Jackie Mason is coming back.
DAN LIBENSON: Right. Yeah. I don't... Yeah. By the way, I started watching the, uh, Jackie Mason, uh, the, the, the sh- the show that we think- where he talked about Reagan being like this, and I only got like 10 minutes into it and had to go, you know?
And I, I, but I was having a lot of very guilty laughs. It, it's, it's very funny, and it w- and, and it's both I shouldn't be laughing because there were things that were offensive back then, and there's certain things that are offensive now, and Jackie Mason himself went down a sort of political path that, you know, and, and otherwise that I find deeply problematic, but it's still pretty funny.
Yeah. And you, you see that there's like a certain type of humor that feels very connected to what we're seeing in the Talmud, and that's no surprise. He was an Orthodox rabbi by training, so he would have absorbed some of this. And, and it's interesting to imagine, I mean, this is a moment where I wish that, you know, in all kinds of ways, like, you could sort of sit down with Jackie Mason and ask these questions, and he might not even know and-
BENAY LAPPE: Yeah
DAN LIBENSON: you know, I think he's dead, right? But, but he- Yeah ... um, but, but you would, but he wouldn't, he wouldn't even necessarily know the answer or wouldn't remember. But, but you wonder if like when you were studying Talmud in your 20s, in your teens, and you were reading some of these, were you laughing? Like, did you get- Right
the joke in ways that a lot of, like, contemporary Talmud studiers read this stuff and like we've been talking about, like read it more seriously and it's actually meant as a joke, and they're not getting it? And someone like Jackie Mason, who has a kind of preternatural sense of humor, like he did see the, the humor and, and then he, he mirrored that humor in his comedy shows.
Like, I wonder. I, I suspect yes- I- ... but I really would love to know the answer.
BENAY LAPPE: I agree. I suspect yes as well. Um, it's not, it cannot be a coincidence- Mm-hmm ... that his style of humor is so Talmudic. It's so- Mm. It's, and it's not a coincidence that his version of this is funny. I mean, it's, it's laugh out loud funny.
Mm. And that gets back to, you know, our sense that the rabbis wanted you to see the funny. Mm-hmm. They, in other words, not, not to humor you, but to make you, make sure that you understood that they were playing fast and loose- Mm-hmm ... and that you shouldn't believe, you know, that when, you know, they say there's a word maake here and a word maake here, that that really, really means that God meant that we should do monetary compensation instead of an eye for an eye.
Um, and as long as you're laughing and you're in on the joke- Um, you can use the tools. If you're not in on the joke, you can't use the tools 'cause you don't know that they're tools. You don't know that what they're tools for.
DAN LIBENSON: Yeah.
BENAY LAPPE: Right?
DAN LIBENSON: Well, and that makes me want a couple of things. Like, it makes me want, number one, that we should have like a Beit Midrash, like a study ho- house or a study class, you know, a class, a Talmud study class for comedians.
Like, I would ... Right? Where, where we've ... Maybe you and I should do that, like where we've selected the text that we think are funny, you know, that we suspect are meant to be funny, but we don't tell the comedians. You know, I, I think it wouldn't work. But we, but we just started reading with them and, and like, and, and they start to really see the humor- The
BENAY LAPPE: whole thing is, the whole thing is funny.
DAN LIBENSON: Right. So maybe- But- ... we don't even have to select the text ...
BENAY LAPPE: right. It's like when the, when the students come to me and say, "Pene, what, what do you do with the really difficult-" Talmudic texts. And I say, "They're all difficult." Mm-hmm. That's why they're there. They're there because they're dealing with the rabbis' process of taking really difficult stuff that was difficult for them-
DAN LIBENSON: Mm-hmm
BENAY LAPPE: and making it better. And the fact is, they didn't make it better enough so that it's no longer difficult. It's still difficult for you. Now you gotta take it from where they left off to now, but that's what this is. It's a collection of difficult stuff. Mm-hmm. And to say to you, "This is how we deal with difficult stuff."
Not that our, our tradition is now perfect 'cause we fixed it. We, we made it as, as, as better as we could and- Mm-hmm ... take that stuff that you find difficult and follow our lead.
DAN LIBENSON: Right. And I think I mentioned this when we studied the text about the, the questions that you're asked after you die, and, like, the first one is were you, uh, just in your business affairs.
And I think I mentioned, like, I had seen a comedy show at a Jewish conference with this comedian named Dan Adut, who's, uh, you know, was doing, like, a Jewish set, and he- his read was like, "So when you, you die, you go to heaven. The first t- first, uh, question they ask you is, 'How's business?'" You know? Like, that's- how Jewish is that?
You know, "How's business? How's business?" And, um, I just thought it was hilarious. So the, the, so the idea that, um... But I would love to, like, just sort of, like, be in a room full of comedians studying this stuff and see what happens. But then, and then, so then number two is, like, this is something that I've been trying to say in different ways for a long time, as have you, I think, that, um, when we think about who should be studying Jewish texts and who should be bringing their commentary to Jewish texts, I think traditionally there's some notion that the people who should be doing that are the people who've been trained Jewishly to be most reverent, most whatever, most knowledgeable about other Jewish texts.
And there's value to that, for sure, but there's also value to people studying Jewish texts and bringing the wisdom that they have from whatever field they might be an expert in: medicine, law, you know, legal analysis. Obviously in this show we've brought that a lot. You know, literary analysis, like I'd love to have a room full of literature professors.
That would bring another s- lev- level of insights to many of the stories in the Talmud. And similarly, I, like, a room of comedians or, or comedians who are studying Talmud, I feel like that's a, like an expertise that would actually enhance the entire Jewish community's understanding of, of Jewish texts if comedians studied them more and we had that voice as part of our understanding of what's going on there.
You know, and, and then the, the third piece is just, like, what would it look like to harness all of those people into the creative process of the next version of Judaism? Because, you know, and, and, and, and with comedians for, just as this example, like, one piece is to sort of make sure that that kind of comic- sensibility used to actually teach important things becomes incorporated into whatever comes next.
And, and also that just comedy is an inherent part of the Jewish tradition so deeply that the Talmud is properly read in part as a comic, as a work of comedy. And if the next version of Judaism sees comedy as kind of a thing that we do in nightclubs in the evening and isn't part of the fabric of the Judaism itself, then it's in some ways a less true descendant of the previous form of Judaism in which the comedy was actually in the Talmud.
And by the way, there's a lot of comedy in the Torah, in the Bible as well. So I, I think the idea that we have comedy stitched into the very fabric of Judaism is maybe actually a unique, I don't know about other religions, you know, but like it, it may be a particularly Jewish piece that we shouldn't lose.
And, and- I
BENAY LAPPE: love that. I- we should absolutely do that.
DAN LIBENSON: Uh-huh. Yeah.
BENAY LAPPE: I think it's, I think it's fabulous, and I never really thought until these past few weeks and today about the relationship between The idea of a Jewish sense of humor. Mm-hmm. And what I really think is a characteristically Jewish way of thinking, which I believe came from some number of people being so steeped in Talmud that the Talmudic style, uh, just affects how we speak, how those people speak generally.
And when those people go to the grocery store, and come home and talk to their families, and hang out with their friends, and speak that way, it, it's sort of contagious, and it kind of bleeds out into the culture. And I think, I think the Talmud influenced how Jews think- Mm-hmm ... and how Jews talk, and Jewish humor.
I think this, this is all true. Mm-hmm. And what's weird, like you're saying, is that the people who seem most, I don't, um, suited to learning are the ones who have become least able to actually pick up on what's going on in the Talmud and how it was meant to be used. There should be, like, term limits. I don't know, rabbis should have term limits on their rabbinates so that at a certain point, I, I know it doesn't quite work in one lifetime, but at a certain point, th- they become so conservative and so attached to, um, I don't know, the, the status quo that, that they become less flexible and un- unwilling to change it, unable to, you know, really let go.
There, I don't know. There's something there.
DAN LIBENSON: Yeah, there's a lot there. I, I ca- I, I'd like to get into that more. But so let's, so to wrap up this, uh, particular piece of text, so we've got this idea that, okay, so you say, so, y- you know, first of all, the argument that the, the Torah always meant money is that there could be a case in which we, the punishment is more than the crime, and, and because we know that could happen, we should never poke out somebody's eye intentionally.
That should a- you know, for, the court should never poke out somebody's eye because they could die, and that would be more than warranted. And the response to that is, "No, no, no. Uh, um, no, no, no, no, no. We can test him out and see if we think he's gonna die and, and we can, we can do a pretty good job, and we, we won't poke the eye out of the people that we think are gonna die from it."
And they say, "No, no, but wait a second, but maybe we test him and, and say, and we didn't think he was gonna die, but he does die, and so that's not fair, and that's not right." And they say, "Look, if that happens, it happens," you know? Right? Um, there, there are certain cases that are, like, these outside cases, and we don't know, you know, and that's not a reason to undermine the whole system if most of the time we can get it right.
That's-
BENAY LAPPE: Right. And now what comes is, is that- supporting case that says, a- and you know as well as I do that these exceptional cases don't violate the law because you agree just as what you agree with us about this other case where we do the exact same thing.
DAN LIBENSON: Right, and this other case is from the, the Mishnah, meaning that it's, uh, a more, it's a more, uh, solid, you know, it's a more, um, uh, ancient proof, right?
So in the Mishnah, uh, in, in the- In a
BENAY LAPPE: different Mishnah and a different
DAN LIBENSON: tractate ... tractate, right, in a tractate called Makot, which means, like, lashes or, or, you know, it's a, it's a, it's a Mishnah about punishments. And, um, it says, "After all, didn't we learn in the Mishnah with regard to lashes that if the court evaluated him and determined that he could withstand the punishment of lashes, and he dies at the hand of the lash giver, the lash giver is exempt."
BENAY LAPPE: Right. It's like, no, is the lash giver a murderer, and do we put the lash giver on trial for murder? Of course we don't.
DAN LIBENSON: Mm-hmm. Of
BENAY LAPPE: course that person is innocent, and we don't, you know, that's an exception to the law of murder.
DAN LIBENSON: Right. Right. Now, I'm not, I'm not 100% sure I think this is the g- the greatest proof source, because it's one thing to say that...
'Cause here we would say, like, the question, the, the analogous question is here if the court, let's say, sentences the person to have their eye poked out, and the eye-poker comes and pokes out the person's eye and the person dies, the person, the eye-poker is now, is not a murderer. It's, uh, doesn't have to be himself sentenced to death for having murdered.
Mm-hmm. That's one thing. But the other, the real question here is not whether or not the eye-poker who's acting on the part of the court, I mean, this is like the executioner, you know, the whatever we call it, but the, uh, whether he's a murderer or not. The, the, the issue here is whether we should not have this penalty at all because somebody could die.
I think it's a little bit of a different case. That's, that's what I'm saying.
BENAY LAPPE: But what if the way they're understanding this case is that the lash giver caused someone else's death- Mm-hmm ... and we're not prosecuting that person for murder? Why would that be? Don't we prosecute all people who cause the death of someone else without a self-defense justification?
Yes, we do, but we're not gonna do it for him, that this is an exception.
DAN LIBENSON: Yeah. I, I don't know. It just strikes me as like it's a, it's not, it's not a precise proof text because the issue isn't whether or not the executioner, I don't know what you call an executioner who's not executing someone, who's just giving corporal punishment, but, you know, effectively, so the corporal punishment giver, who's acting on the part of the court.
I mean, we're talking about people- Right ... in the function of, like, a jailer, an executioner. I mean, these are people whose job it is to execute punishments. So I mean, in, look, I mean, this is actually part of the big, uh, issue in the country today, where they're talking about police brutality, right? And, and police, uh, killing African Americans, you know, and that kind of thing, is that there's this issue called qualified immunity, which is that, um, there's various laws that say that if a police officer does something in the course of his job, uh, and, uh, harm befalls somebody beyond what is justified by whatever was happening, that you can't sue the police officer in his personal capacity for damages, you know, for that.
Or, and, um, and you can, I mean, under certain circumstances you can criminally, they can be criminally prosecuted, but even that we've seen is very difficult. And, and, and that's problematic because the police are acting in a racist way and everything, but, like, functionally for the society, like, you kinda understand why that is there.
Because otherwise, you know, why would people wanna be police officers and executioners and whatever? First of all, maybe they shouldn't be, but, like, the point is, is that, like, why would people take those jobs if they accidentally did something... You know, they, they actually was just trying to do what their job was, and somebody died as a result, and now they can be sued and go bankrupt for all they have.
They didn't even do anything wrong. You know, so you can kinda see where you say, "Okay, we're gonna make an exception to the rules of murder for that case," or even manslaughter, where you say, "If you were doing it in the course of your job and something happened that was beyond what was expected, don't worry, you're not a murderer."
That's different from saying that we should stop having that penalty altogether because sometimes somebody could die, you know? So I'm not, I'm not sure that it's this, it's a precise pinpoint proof.
BENAY LAPPE: Yeah, but I still think you're- analogizing the wrong piece of this analogous case.
DAN LIBENSON: Okay.
BENAY LAPPE: I, I think, I think it's just actually coincidental that the f- context of the analogy case is about inflicting a punishment, a physical punishment.
Uh-huh. I think that's not the part- Okay ... that's being analogized.
DAN LIBENSON: So the part that's being analogized is, is saying that when something sort of unexpected happens when you were trying to do something else, we don't necessarily treat that in the usual legal way.
BENAY LAPPE: Yeah, I think so.
DAN LIBENSON: Mm-hmm. Okay. Um, so, you know,
these and these are the words of the living God.
No, um, I, I think-
BENAY LAPPE: I th- so far the second or the third, and we're gonna have, I think, four or five that wh- where the voice of, "But the Torah has to mean, or, or at least can still mean an actual eye," wins. Mm-hmm. And, uh, you know, the, the last fighter standing is the voice that says, "What? The Torah absolutely could mean an eye for an eye."
That doesn't prove that it does, but it, it- Mm-hmm ... proves that it could.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So why does it Talmud put those in?
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: Maybe, and I, and I think, I think what my teacher David Kramer says is to show you, to make sure that you the student. So these are a subset in the category of making sure you the student know what the actual truth is.
And the actual truth is the Torah does mean an eye for an eye. Mm-hmm. But maybe these are the ones you don't deploy. So, so maybe some of the so-called arguments are- proving what real, are demonstrating the reality- Uh-huh ... that the Torah means what it looks like it means, and that the Mishnah that is so radical actually is a deviation.
And the other so-called arguments, formerly known as proofs, are there to be sample marketing- Uh-huh ... you know, sample con- are persuasive-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: conversations. I don't know. Well,
DAN LIBENSON: I have one piece, one thing that I'm thinking about is, like, let's say, you know, as, like you said, I think, uh, the Kramer said, "If you have one s- good argument, you give it.
If you have no good arguments, give 10." Something like that, right? You know. And, um, part of it is like, well, if you have 10, you've been taught 10 marketing messages to explain this. And yeah, the people that you're explaining it to, first of all they're, they're not so learned, they're not so sophisticated.
They, they might have an argument back for one or two of them, but then you just kind of keep dumping them on them and, and eventually they're like, "Okay, I guess. You know, you're, there's so many reasons why you're saying we don't read it that way. Okay, I'll, I'll accept it." I almost feel like if there's somebody who has, like, arguments back for all 10, we invite them to come to the rabbinical school.
You know, in the same way that the guy that was saying, you know, the, the bird's foot on both sides of the line, like we throw him out of rabbinical school. You know, like the person who's, like, really good at poking at these arguments, we say, "Oh, you know what? You should come study in the yeshiva. Like, you're really smart."
Um- I,
BENAY LAPPE: I love that. What if it turns out that all of these are actual rabbinical school application questions?
DAN LIBENSON: Yeah. Yeah. Okay, so I, I, we, we have some time, so I, I wanted to raise, and maybe, like, I should have wait, should wait till we finish this whole thing to raise it and, but, and maybe we could just start to talk about a little and then it'll come back at the end.
But as I was preparing the source sheet today, I, I had an, you know, I, I was working on a new way of organizing the source sheet, so I would, like, cut out each source separately and then put the Torah source that it's talking about next to it. And as I'm doing that I'm kind of reading each of the Torah sources more carefully than I usually do.
And, um, so for this one in particular, which is citing this part in Exodus, um, I was, I was, um, I, I r- I noticed something, and then I read ahead in the, uh, to make sure that this isn't gonna come back later, and I'm pretty sure that it doesn't. So this is why I wanna raise it now, which is that I think that there, there's a killer argument for the Torah meant actual eye that's never raised in this, in this whole section.
And maybe the reason why it's never raised is that the, the, the arguments really are being raised where the To- the, the, where the Torah says it was money, and then those are refuted. You know, that's the, that's the process here. Whereas, and, and because the goal is to really hone that marketing message for the common person, so there isn't really a, a reason to bring in a, an argument that's just a really great argument for why it actually means an actual eye.
But- Here's, here-
BENAY LAPPE: Okay. Even though it seems like some of these proofs are actually doing that, but okay, I'll put a sticky on that.
DAN LIBENSON: Okay. So maybe I'm wrong then about that. But so, okay, so if you look at Exodus, here's the case that's being talked about. When men f- this is where we just read, you know, but if, uh, the penalty should be life for life, eye for eye, tooth for tooth, et cetera.
So here's the case. When two men fight, when men fight, and one of them pushes a pregnant woman and a miscarriage results And this, by the way, has been in the, in the Twitterverse the last few days because of all the abortion, uh, cases, and, like, what does J- Judaism think about abortion. So it's pretty clear from this that Judaism, or at least the Book of Exodus t- thinks that, um, abortion is not murder, right?
Because, uh, in this case we have, "When men fight and one of them pushes a pregnant woman and a miscarriage results but no other damage ensues, the one responsible shall be fined according to the woman's, according as the woman's husband may exact from him the payment based on a reckoning." So the point is that if the, if a miscarriage results, you have to pay a fine money, mamon, right, money, for a miscarriage.
I mean, for, for the, the loss of the, of the fetus. Um, but if other damage ensues, now here's the point. The other damage ensues is it, it could be to the pregnant woman, but it also, I think the point is that it could also be other damage between the men that are fighting. 'Cause the case that's given is not a man comes along and pushes a pregnant woman.
The case is that two men are fighting and a pregnant woman is, like, you know, collateral damage, gets pushed. You know, maybe intentionally, maybe not. But that's, like, a third element into this. But the real case that's being described here is, like, two people are fighting, and two men are fighting. And if, if other damage other than a, a, um, a miscarriage happens because of this fight, "The penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise."
Um, this isn't just for damage to pregnant women. You know, it's if the, if the pregnant woman's eyes get poked, poked out or dies. It's also if the other, it happens to the other man. Otherwise, all of this stuff wouldn't be relevant that we've been doing, 'cause it's, it's obviously in a case, it's not just in the case for pregnant women.
So anyway, the point is, is that this text explicitly says the one case where there's a monetary fine, which is if there's damage to a fetus, and every other case it's blank for blank. Mm-hmm. And it feels to me like the, the clear argument here is to say, we have given you the case of where there's a fine, and the rest of them are cases where it's not a fine.
Otherwise, it would say explicitly the payment should be based on a reckoning, because we know that this Book of Exodus knows how to say that when it wants to say it, because it just said it. You know? And, and so it feels to me like this is a very strong argument that mean, that says that eye for eye means an actual eye.
Does that make sense?
BENAY LAPPE: That's interesting. Uh, roll, roll up the screen a little. Let me see the original on verse 22.
Okay, let me s- let me, let me repeat your, your point. Okay
One argument for why the Torah for sure must mean an actual eye, physical retaliation as opposed to monetary compensation, could be that In this verse, since money is clearly articulated and explicitly named as the punishment for this case over here, namely the miscarriage-
DAN LIBENSON: Mm-hmm
BENAY LAPPE: And then in other cases of injuries to born people- Mm-hmm ... it's some other, let's call it vague, uncertain language. That vague, uncertain language must be something other than what was explicit, money. Sure. Therefore, that must, or that, let's call it, let's pretend it's vague. Eye for an eye, tooth for a tooth, that must mean actual.
DAN LIBENSON: Right, because it's- Interesting ... especially since it's an adjacent verse, it's not even... And it's not only an adjacent verse, it's the same story. It's like, it's not like two verses that happen to be adjacent. Mm.
BENAY LAPPE: It's,
DAN LIBENSON: it's the same, it's the ca- the case, this is, this is the case that's being described.
Mm-hmm. So you can't say like, "Oh, well, that, those, that verse was not connected to this verse." It's like if that verse wasn't connected to this verse, then, then the whole thing doesn't have any meaning at all. So like the, the case, this is the case that's described, and essentially it says, you know, "When men fight and there's an injury, there shall be money for a fetus, and a life for a life, and an eye for an eye, and a wound for a wound," right?
So it's like clear, it says like, "Money for a fetus. Everything else is a blank for a blank." Like the X for an X, Y for a Y. So it's like you can't... I, I, I almost don't see, you know, again, if I were motivated, maybe I could try to come up with an argument here. But like, it's, it's very hard to see an argument that says, when it explicitly says, "Money for a fetus," and then eye for an eye in the same list, that it, eye for an eye means something, anything other than an actual eye.
And so that, that's number one is like, is like my reading, and I, I, I think it's a pretty rock solid statutory interpretation kind of reading. And then the question is, like, okay, why is that not in our, in our sugya? You know, why is that not in, in, in this thing at all?
BENAY LAPPE: Uh, tha- it's really interesting, and what came to mind as you were explaining that is the 10th Perek of Pesachim, where in the Mishneh on what we should do at the Seder, it gives some examples.
It gives some things, and we've kind of codified those things as what we should, the four questions, this is what we should ask. Yeah. And they were probably only ever meant to be examples of what questions you might ask to pique the interest of the children or whatever, whatever. Or, or how to answer questions that real children come up with.
So what, so, so what if w- we're actually right that these are tools, it, you know, the stitches are techniques. I, I think-
It, it's not going... It, it's like cooking school. They're gonna teach techniques for, um... I don't remember cooking school. Um, but they're not gonna give you every possible recipe.
DAN LIBENSON: Yeah, yeah, yeah.
BENAY LAPPE: So I think that's what's going on here, that y- you'd probably get a gold star in the Beit Midrash from the teacher-
DAN LIBENSON: Okay.
All right. That, that's the question for the final exam.
BENAY LAPPE: Right. Exa- Come up with
DAN LIBENSON: your own argument. Yeah ...
BENAY LAPPE: exactly. Exactly. Like, use the techniques you learned in this class to make the case using this verse or using this verse or using this verse. Um, and, and my question is, what's, what's the stitch? What's the name of that proof?
DAN LIBENSON: Mm-hmm. That I gave? Um-
BENAY LAPPE: Yeah. What, what, what is that technique?
DAN LIBENSON: I f- that, this is where, like, I, I gotta dig out my, uh, old notebooks from law school- ... 'cause there, I think there is a name for that, but I don't know it off the top of my head.
BENAY LAPPE: Yeah. Is it... It's not a meyut, is it? No, it's not. I don't think so.
DAN LIBENSON: It's a, um...
I mean, I think of... Well, um- I feel like there's, I, well, yeah, in, in Talmudic, uh, terminology I definitely don't know, but I feel like there's some Latin term for this. Like, there's, there are these various Latin terms for statutory interpretation techniques, and I, and I feel like there's one where they give you, you know, where you're given, uh, the case where the punishment is X, and then you're given other, other cases that may be, you know, uh, again, like, I think they're not ambiguous at all, but you wanna call them ambiguous, and the question-
BENAY LAPPE: Right
DAN LIBENSON: interpreted. It's like, well, if we've given, if we've been given that this other case is, is a different punishment and this doesn't use that language, then therefore we should see it as the other punishment.
BENAY LAPPE: Right. It's kind of the opposite of the very first stitch we had, which was the Gezeira Shava- Right
which is if in one context, like here verse 22, it's explicit that m- money is being talked about, and in this context there's a word which is also used elsewhere in the wink, wink, vague, what it's going on here context. You can Chutes and Ladders that which is explicit, right, the money thing over he- this is the opposite.
Mm-hmm. Right? Th- Mm-hmm ... your logic is if this is the explicit that it's money over here in verse 22, and verse 23 is some other wink, wink, vague, I don't know what it means punishment, it can't also be money because, or else it would've been made explicit the way it was in verse 22. So it must be something else actual.
It's interesting.
DAN LIBENSON: Yeah, and there's a, there's a version where, um, I'm trying to say, like, and I think I've heard this in Talmudic context, but maybe I'm mixing it up and I've heard it in law context, but it's like sometimes you say, well, this is how that, that source said the thing that we, you know, we wanted to say.
Like, they, they didn't know how to say, they didn't have language to say money. It, you, you, you, you only give a fine. But this is the proof that it, they did know how to say it. So in other words, the, the, when the Torah wanted it to be a fine, it knows how to say fine, 'cause it said it explicitly. So you can't tell me that when the Torah says an eye for an eye it means money- Uh-huh
because that's how they expressed it back then. It's like, no, no, in the previous sentence, which is the same ver- the same story, they said it explicitly a fine. So, so that's like, you know, so we know that the legislator knew how to make their, their wishes clear when they wanted to, and given that they didn't, then we have to assume that it's not what they wanted.
BENAY LAPPE: I love that. It's a little bit kryatjera-ish.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: The kryatjera being we learn this, um- Right ... if there's something, right, su- seemingly superfluous phrase Um, so here, eye for an eye, tooth for a tooth, these are all superfluous to fine. Something other than fine- Mm-hmm, mm-hmm ... which you could read As the same as it's a fine, but God isn't a blabbermouth, so therefore they can't be, therefore they must be the other thing.
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: May- maybe is your ar- maybe your argument's a criatura. I'm not sure.
DAN LIBENSON: Okay. Well, we'll, we'll- ... get back to that. The la- the only thing I wanna say in closing, but just so that, just to flag it for, for the future and what I... is that, you know, you've talked about and we've talked about this idea that the Talmud can be understood as, like, a case book or a teaching tool, and it hadn't occurred to me until you said the part about, you know, the gold star or the final exam, that it, the Talmud may very intentionally be leaving out good proofs because the whole point is to test the students to see if they really understood it and to give them other cases.
So I, I like that, and that's really a, um, even more of a strong statement that would explain why you don't look for all of Jewish law in the Talmud. You know, it's- Yeah ... it's, that's not what it's doing. It's, it's really there to... and the, you know, when we read that, that, remember, you know, when we read that the person, you have to have 72 ways to purify the creepy crawly thing to be a rabbi, and then one of them says, "I can do it," and he gives one, and by implication that means there are 71 more, and I don't think the Talmud gives us any of those, maybe a few.
So the bottom line is that there are, like, let's say 60-plus ways to impurify, to purify the impure that the Talmud never mentions, and it's, like, our job to figure that out.
BENAY LAPPE: That's right. And that's cool. That's right.
DAN LIBENSON: Yeah.
BENAY LAPPE: That's right. I love that.
DAN LIBENSON: All right. Good. Well, so that's a good way to end. So, so our viewers should, should come up with their own arguments.
Ex- Check out these sources.
BENAY LAPPE: Exactly. I love it.
DAN LIBENSON: All right. So we'll see you next week, Benay.
BENAY LAPPE: All right. Thanks, Dan.
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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