TALMUD
Lecture 3: Developing our own Torah she-be'al peh for the electronic age
By: Rabbi Sidney Slivko
Dear JUICE Student:
If you have been following the forums you can see how the discussion on the Mishnah with which we began has taken off. It has not followed the direction of the Gemara in the Bavli, but has gone in its own direction. Together with the successful Chat Room sessions which we conducted these last two weeks, we are in the process of developing our own Torah she-be'al peh for the electronic age. The process is not unlike the process which took place over 1,500 years ago.
We started with a Mishnah, a concisely-constructed halakhic mnemonic which we analyzed from various angles. In our Forum, and again in our Chat Room, we returned to the issue of oaths, the need for requiring them and the implications of taking them. Questions were raised. Where do these people come from? Why do we need their oath? Why should we believe them? Why should we be involved? Putting all of these questions and responses together, we emerged with a new view of the Mishnah which even the Gemara did not present.
Were I to compile and edit all the comments from the Forums and Chat Rooms as if writing a printed text of Talmud, it would emerge something like this (I took the liberty of adding punctuation, unlike the standard Vilna editions of the Talmud, following the Steinsaltz edition's lead. I also took the liberty of adding an honorific "R" before the names of the participants mentioned):
From the Forum:
R. Bruce stated: Oaths are significant in Jewish law. There are the temporal sanctions for swearing a false oath which were severe, e.g. for aidim zommemin [Witnesses who testify falsely. The Torah says they receive the penalty which the person against whom they testified would have received (Devarim/Deut. 19:16-20)]. Perjury is also prohibited by the 3rd commandment. Other forms of false statements are prohibited by the 9th Commandment. As I understand it, the punishment for these crimes was not temporal but the punishment was meted out by Heaven, which was seen as being significantly more serious.
Second, it is also important to note that there were very few ways to prove a case in talmudic times -- no receipts, registration of property, etc. There were simanim [identifying marks] but what if the tallit had no siman? The oath was considered one of the best ways to prove ownership or at least the better right to possession.
Third, one of the parties does not have to be a thief. The common law is filled with examples of litigation between competing finders. there is no reason why that is not the case here.
R. Robert said in the name of Rabbi Steinsaltz: It would seem that you are correct. The court may doubt the veracity of one of the claimants, but that the court also realizes that there exists the possibility that the two litigants could have found the garment at the same time.
There are many reasons that I can think of why the court would require an oath:
- To ascertain that the garment was not taken from one of the litigants
- Possibly the imposition of an oath would induce one, if he were lying to tell the truth, and therefore the case would be resolved.
- Is not the court here serving as a witness to the fact that the litigants are coming into the court, each holding on to the garment in question; would therefore any oath imposed not only include the fact of finding the garment, but also under what conditions it was found?
- If neither of the two litigants is willing to forfeit his claim to the garment, what other way could there be to dispose of the case based on the assumption that both are telling the truth as they know it?
R. Robert said to R. Bruce: Would it be possible for the two disputants somewhere along in the process detailed above [in the Mishnah] to come to their own arrangement about how the garment should be divided, and do you think the reason the sages ruled 3/4 -1/4 was a possible attempt at opening communication between the two litigants?
R. Bruce replied: It may well be that the laws and the process are structured so as to produce an accommodated settlement. This would be incredibly advanced for most civilizations at the time (or even later), but perhaps not for the system of Talmudic law.
R. Bruce said: It is also possible that parties would be encouraged to settle without going to court so that their testimony under oath was not subjected to a searching examination by the Bet Din. In Pirkei Avot, (1:8), Yehuda ben Tabbai taught: "when litigants appear before you deem them both guilty." Further, in the next mishnah, Shimon be Shetah taught: "Cross-examine the witnesses thoroughly..." In another Tractate (I think Makkot), two members of the Sanhedrin (I think Akiva and Tarfon) indicate that when they sat in judgement no one would have been executed because they could always find gaps or contradictions in the witnesses' testimony. So testifying under oath in these proceedings must have been very difficult and nerve-wracking. I always thought that this would encourage negotiated settlement.
R. Robert observed: When I began to explore the possibility of Talmud study, there were several books by Jacob Neusner that I read; in preparation for this group, I read his INTRODUCTION TO THE MISHNAH. In that work, he describes the Mishnah as "a letter from someone in Utopia..." It seems to me that what we have been discussing is more than theory or just something that one should do.
Your comments above especially would indicate that there was the very human process of give and take, and while Torah may indeed be the underlying theory behind all this, the concrete reality and working out of the process(es) are reflected in the pages of the Talmud.
In the Chat Rooms we find the following:
R. Slivko asked: What about the fairness of the division based on the oath?
R. Ilan responded: If we accept the oath then according to the positions of the litigants we should divide the object so that each side gets what he said he found
R. Werner asked Ilan: Each says I found it all. In the second case, one says I can claim half, which shows he is willing to compromise. Why not tell the other one to meet him halfway, too?
R. Ilan responded: it is not that he is willing to compromise he believes he is entitled to half and the second party believes he is entitled to every thing
R. Slivko: So he's penalized for his belief by giving him the smaller share...?
R. Ilan: Its not a question of penalty but to come to the truth as best as the bet-din can
R. Werner explained: In other words, he (call him Shimon) set up the boundaries. The other one (Reuven) wants it all. Shimon says I concede you your half. Let's argue over this. Reuven says, I want that, too. So we ignore the
other half, it's out of the picture. Reality in front of Bet Din (Can't expect them to do more...)
R. Slivko observed: Ahah... So the oaths bring them in to the Bet-din's reality, too
If so, then this is the case: Circumstances in the Mishnah prevent the Beit Din from knowing what really happened. We make them swear not only to determine they are telling the truth, but also to "center" themselves around the bet-din's perceptions.
R. Ilan said: When there is no way to find the truth all should take part in the process. This is like Egla Arufa [literally beheaded calf], that if a body is found and no one knows who is the killer than the elders of the city conduct a certain ceremony. they beheaded a calf on a river and washed there hands and said the blood of the man who died is not on their hands nor on the hands of the city people. (Devarim, 21, 1-9)
R. Rachmiel observed: Is this [Mishnah] then related to the statement (Sanhedrin 6b) that where there is both justice and charity there must be arbitration? seems to me that this is a classic case of arbitration. Both have sworn that they own no less than half, in fact they claim complete ownership. So, both get only part of it.
R. Slivko: Then another klal could be that the process of arriving at a psak din [court decision] requires that all parties be involved in the process, that even arbitration is a from of psak, and that the bet din cannot be only Moshe
("Let the din uproot the mountain") but that the Bet Din is also Aharon, that is, loving shalom and running after shalom. And by leading by example, it teaches us what we must emulate in our own lives.
R. Nomi said: It seems that peace at times is valued more than justice.
What we have here is a digest of comments taken from two different sources. I originally tried to edit them together to make them appear as seamless a whole as possible. It worked, but I decided to present them this way to illustrate These discussions were taken down, much as the Talmudic Tannaim and Amoraim took down the minutes of their deliberation to be studied for their contents, their processings and their references. Here, participants in both platforms reached a similar conclusion, namely, that the Beit Din encourages an arbitrated solution in which both parties work things out between themselves. The key difference, however, is that in the Forum, the practical solution seems to be to get the parties to settle out of court. In the Chat Rooms, the solution seems to be to settle but do it within the court. Two traditions developing in our own cyber-Talmudic world.
In a similar fashion, two Talmudic traditions developed over the course of history. The Jerusalem Talmud (also called "Western Talmud") which was compiled and edited in Palestine, and the Babylonian Talmud, which was compiled and edited in Babylonia. The former is shorter and more concise, more comprehensive in agricultural halakhah, less prone to Aggadic influence and was "closed" much earlier than its Babylonian counterpart. We use the Babylonian Talmud as our text because the academies in Babylonia outlasted the ones in Palestine, and it was their influence which ultimately dominated the Rabbinic world at the close of the first millenium.
Obviously, there are other ways in which to edit the proceedings of the Forums and the Chat Rooms and I encourag you to give it a try on your own.
(If you wish a transcript of the Chat Room proceedings, please write me at juice@jazo.org.il).
Indeed, many of the early Talmudic commentaries edited the Talmudicdiscussion to get a better perspective on the proceedings. I also encourage you to participate in the Talmudic discussions in the Forum and the Chat Room. Our Chat Room session this Sunday will take place at 4:00PM Jerusalem time. You can reach the Chat Room through our Virtual Congress at http://www.jewish-world.org.il/vcongress/
or go directly to http://www.jewish-world.org.il/vcongress/chats/chat.htm
The following text from the Talmud analyzes the Mishnah we just studied and raises questions about language, precision and the meaning of the Mishnah. The translation is based on the Steinsaltz translation (I suggest you look at other translations, too, to see if there are any variants, or look at the original Aramaic to see if your translation differs).
Gemara: [The Gemara objects to the wording of the Mishnah]
Why teach "This one says I found it and this one says I found it… This one says all of it is mine and this one says all of it is mine." Let him teach one!
He does teach one: "This one says I found it and all of it is mine and this one says I found it and all of it is mine."
But let him teach "I found it" and I will know "all of it is mine."
If he had taught "I found it" I would have said what does "I found it" mean, "I saw it". Even if it has not yet reached his hand he acquires it by seeing it. He therefore taught "all of it is mine" to show that by merely seeing he does not acquire.
But how can you say "what does 'I found it' mean, 'I saw it'"? Did not Rabbenai say "And you have found it" (Devarim 21) means that it reaches his hands!
Yes, "And you have found it" in the Torah means that it reaches his hands. But the Tanna used everyday language, and when a person sees an object he says "I found it" , and even thought it has not reached his hands he thinks that he acquires it merely by seeing it. [Therefore, the Tanna] teaches that by seeing it he does not acquire it.
So let him teach "All of it is mine" and he would not need "I found it"?
If he had taught "All of it is mine" I would have said that in general, wherever he teaches "I found it" that merely by seeing it he acquires it. [Therefore he taught] "I found it" and again he taught "All of it is mine" so that from the extra passage in the Mishnah he teaches us that seing alone doesn't acquire.
But how can you say it is one? He says "This one" and "This one", "This one says I found it and this one says I found it… This one says all of it is mine etc."
Rav Pappa said, or perhaps it was Rav Shimi bar Ashi, or others say it was anonymous: The first part of the Mishnah deals with found objects, the latter part deals with buying and selling. And we need both cases. For if we only had the case of found objects, I would have said a found object is where the Rabbis imposed an oath because he may rationalize and say to himself "My friend loses nothing. I will take hold of it and divide it with him". But in buying and selling, where one cannot say this, I might say no.
And if he had taught buying and selling, I might have said this is where the Rabbis imposed an oath because he may rationalize and say to himself "My friend paid money and I paid money. Now that I need it, I will take it and let my friend go and take the trouble to buy another article". But in the case of a found object, where one cannot say this, I might say no, Therefore, it is necessary in both cases.
Questions to consider:
Notice how the Amoraim treated the language of the Mishnah.
- Why were the Amoraim so careful in their analysis?
- How many conclusions did they derive from the Mishnah?
- What other conclusions do you see as possibly deriving from the Mishnah?
- What is the case of buying and selling which the Amoraim are imagining?
- How valid are their conclusions up to this point?
- What other questions can you think of?