Should Judges Be Independent? — BT Niddah 20b — #135

It was related that Yalta brought blood before Rabbah bar bar Chanah. He declared it made her tamei (impure). [She brought it] before Rav Yitzhak the son of Rav Yehudah and he declared it made her tahor (pure). How could he do this? Did we not learn in a baraita: “If a sage declared tamei, his colleague is not permitted to declare tahor”? We said: [Rav Yitzhak originally] declared it tamei, but then she told him that [Rabbah bar bar Chanah] always declared [blood that looked like this] tahor because today his eyes were ailing, [Rav Yitzhak] retracted and declared tahor. 
Rav Yitzhak the son of Rav Yehudah relied on his own knowledge. Rabbi [Yehudah ha-Nasi] saw blood at night and declared it tamei. He saw it during the day and declared it tahor. He waited another hour and again declared it tamei. He said, “Woe to me! Perhaps I was mistaken!” Certainly he erred, for it was taught in a baraita: “A sage should not say, ‘Had this [blood] been moist, it would certainly have been tamei.’ Rather, he should say, ‘A judge has only what their eyes see.’”

INTRODUCTION

In the passage above, we dive into waters that are uncomfortable for many. While we need to understand this background to read the passage, it it actually concerns an altogether different issue: the criterion for a judge to render judgment.

Here is the background: Leviticus 15:19-29 stipulates that while a woman discharges uterine blood, she is called a niddah, meaning she is ritually impure (tamei). When the flow ceases, she undergoes ritual purification by immersing in a mikveh and bringing a sacrifice to the Temple and is restored to a state of purity (tahor). There are numerous restrictions that pertain to being tamei, as described in the Leviticus passage, and therefore a topic of importance to the Rabbis. Talmud explores it at length and discusses scores of details including: how one can tell if the particular blood in question makes her tamei and who is qualified to examine the evidence and make a declaration that she is either tamei or tahor. 

COMMENTARY

Yalta, a highly educated, self-confident woman, comes before Rabbah bar bar Chanah, who examines a sample of blood she brings him (on a cloth). He declares: tamei (impure). She then takes the same sample to Rav Yitzhak, who renders the opposite opinion: tahor. The Gemara now reveals its underlying concern: If one sage declares A, may another sage declare B in the very same case? Shouldn’t sages evaluating the same evidence come to the same judgment? Does rendering a different judgment undercut one’s colleague?

An anonymous voice seeks to resolve this particular case by retelling the story that presumably fills in details missing from the first account: Yalta had pointed out to Rav Yitzhak that Rabbah bar bar Chanah would normally have declared a blood sample like this tahor. However, on that particular day, he was experiencing an eye problem that obscured his vision. Instead he declared the blood tamei. Knowing this, Rav Yitzhak retracted his initial determination of tahor and declared the blood tamei, presumably to comport with—and not contradict—his colleague. 

A different anonymous voice expresses discomfort with this retelling of the story because it strips R. Yitzhak of his independence, authority, and judgement, rendering him a puppet of his colleague. It therefore asserts he acted properly as a judge, deciding according to his own knowledge. To bolster this point, we are told a story concerning no less than Rabbi (R. Yehudah ha-Nasi), who deliberated over a similar cases and changed his judgment twice, not in consideration of another colleague’s opinion based on his own observation and his own knowledge. Rabbi expresses deep concern that he erred and the Gemara concurs. But the source of his error is surprising: the Gemara says that Rabbi should not have changed his mind. His initial determination was based on the “facts at hand” and not speculation. He should have trusted what he saw and and held to his original decision.

This passage attests to the premium the Rabbis place on independent thought, careful observation, and expertly assessing facts, but also the inherent value of remaining flexible and open-minded. In the initial recounting of Yalta’s story—before it is massaged to suggest there was no real disagreement between the two sages (a claim subsequently discarded), the two sages arrive at different judgments, both of which are considered valid because each made a determination based on the “facts” he observed. Gemara understands that there is no absolute truth; different people operate from differing legitimate perspectives. Judging with integrity, it is possible to arrive at differing truths.

QUESTIONS TO CONSIDER AND DISCUSS

1. We live in a society in which many claim to possess the objective, factual, natural “Truth” and define contradictory claims as false. Yet facts, and knowledge change with time because we are always learning more. Personal values often determine which facts one finds crucial and persuasive, and context matters. If you have experienced people who claim a monopoly on truth, how did you respond? What do you consider true despite contradictory claims?
2. Are Jewish law and tradition stronger or weaker for acknowledging and respecting contradictory opinions of different experts and judges? Why or why not?
3. In his Ted Talk, Devdutt Pattanaik, scholar of mythology and its implications for resource management, compellingly explains the message and value of human subjectivity implicit in Hindu myths, raising interesting questions. In consideration of the messages of Hindu myths, how might we think of the meaning of Jewish myths? What can Creation, the Exodus, Sinai, wandering in the wilderness, and entering the Land of Israel mean to you?

To Tell the Truth — BT Yevamot 65b — #134

R. Il'a said in the name of R. Elazar, son of R. Shimon [concerning rebuke]: Just as it is a mitzvah for one to say what will be heeded, so it is a mitzvah for one to not say something that will not be heeded. R. Abba says: it is obligatory [to refrain from speaking if the listener will not heed], as it says, Do not rebuke a scorner lest he hate you; rebuke a wise person and that person will love you (Proverbs 9:8). 

 R. Il'a said in the name of R. Elazar, son of R. Shimon: One is permitted to deviate [from telling the precise truth] in the interest of peace, as it says: Your father [Jacob, before his death] commanded: “So you shall say to Joseph: Please forgive” (Genesis 50:16–17). R. Natan says: It is a mitzvah [to deviate from the truth in order to preserve peace], as it says: And Samuel said, “How can I go? If Saul hears of it, he will kill me” (1 Samuel 16:2). The school of R. Yishmael taught: Great is peace, for even the Holy Blessed One departed [from the truth] for its sake. For first it is written [that Sarah said of Abraham], “My lord [Abraham] is old” (Genesis 18:12), and afterward it is written [that God reported to Abraham that Sarah had said], “And I am old” (Genesis 18:13).

INTRODUCTION

Talmud presents two beautiful teachings of R. Elazar, the son of Shimon bar Yochai, back-to-back. They are conveyed to us by R. Il’a. Both concern tricky issues. The first concerns Torah’s uncomfortable requirement to rebuke someone who has committed a sin: You shall not hate  your kinsfolk in  your heart. Reprove your kin but incur no guilt on their account (Leviticus 19:17). The purpose is to inspire the sinner’s teshuvah (repentance) and a change in behavior. When Torah refers to “kinsfolk” it assumes the sinner is someone close to you—a friend, neighbor, or relative—and that you witnessed the sin. If you do nothing, the person is likely to repeat the sin; you will bear some guilt because you did nothing to prevent it. The second concern revolves around telling the truth. Torah does not demand that we always tell the truth, but we know intuitively that social relationships (not only justice in legal proceedings) depend upon truth-telling. Yet is it always right and kind to tell the truth?

COMMENTARY

When considering rebuke, an important consideration is whether or not the person will heed our reproof. While not always predictable, sometimes it is clear that the person who committed the violation is unprepared to listen. In such a case, rebuke accomplishes little, and risks damaging our relationship. We are not obligated to tilt at windmills. R. Abba goes further than R. Il'a. As he reads Proverbs 9:8, we may not reprove in cases where the likely outcome will only be animus. 

Il’a’s second concern is lying and shading the truth. While we would be hard-pressed to find anyone who is 100% truthful 100% of the time, we generally consider intentional lying willful deceit and outright dishonesty as sinful. R. Il'a asserts that lying is permissible, however, in the interest of peace, and supplies a textual example: When Jacob dies, Joseph’s brothers, fearing he will seek revenge against them, tell Joseph that prior to his death, Jacob requested that Joseph forgive them. By this outright lie; the brothers hope to shield themselves from physical harm. R. Natan ramps it up a notch, claiming it is not merely permissible, but a mitzvah to lie in the interest of peace. He, too, supplies an example from Scripture. Disgusted with Saul, God sends the prophet Samuel to anoint David king of Israel while Saul is yet alive and reigning as king. If Saul were to get wind of Samuel’s mission, he would surely kill Samuel to prevent David’s anointment. God proposes to Samuel a lie that serves as plausible deniability to protect himself, as the remainder of the verse cited makes clear: Adonai answered, “Take a heifer with you, and say, ‘I have come to sacrifice to Adonai. The School of R. Yishmael turns up the burner to high, claiming that even God lies to preserve peace. Their example is drawn from Genesis 18. Three strangers inform Abraham that Sarah will conceive and bear him a son. Sarah, eavesdropping, laughs at what sounds like a preposterous idea. Sarah laughed to herself, saying, “Now that I am withered, am I to have enjoyment—with my husband so old?” (Genesis 18:12). She finds it humorously unfathomable that she should conceive at 90 or that Abraham—at age 100—should have the potency to impregnate her. God conveys this to Abraham, but does not report Sarah’s words accurately because doing so would hurt or insult Abraham. Instead, God tells Abraham that Sarah’s skepticism centers on her own advanced age and fertility, not Abraham’s potency. The School of Ishmael thus maximizes the extent of lying permitted in the interest of peace: even God does it!

QUESTIONS TO CONSIDER AND DISCUSS

1. Have you ever rebuked someone? Did it feel risky? How did it turn out?
2. The first two examples of lying in the interest of peace are understandable: people are at risk of physical harm (e.g., Samuel). Notice that God is not involved in the first, but suggests the second. The third example, however, is quite different. God hears Sarah laugh (Genesis 18:12) but there is no indication that Abraham hears her. Therefore, there is no necessity for God to raise with Abraham the issue of Sarah’s laughing nor her concern about age—either Abraham’s or her own. Was God’s intervention here truly in the interest of peace, or to cover God’s mistake in revealing what Sarah had overheard and how she had reacted? Have you ever said too much and felt the need to lie to cover it up? Was your lie justifiable? 
3. In the midrash Sifra (89a-89b), R. Elazar b. Azariah comments, “In this generation there is no one capable of receiving rebuke.” R. Akiba answers him, “In this generation there is no one who knows how to deliver a rebuke.” Do these observations pertain to our time? How should we phrase rebuke? How should we receive it?

Action-Reaction — BT Gittin 57a — #133

The city of Beitar was destroyed on account of a shaft of a litter. [How did this happen?] [In Beitar] it was customary that when a boy was born they would plant a cedar tree and when a girl was born they would plant a cypress tree. When they married, they would cut down [the two trees] and build a chupah (wedding canopy). One day the emperor’s daughter passed by. The shaft of the litter broke. They [her servants] chopped down a cedar [to fashion a replacement shaft] and brought it to her. [The people of Beitar] came, fell upon them, and beat them. [The servants] went and told the emperor: the Jews have rebelled against you. He went against them [in war].

INTRODUCTION

The story above begins by recounting a charming tradition practiced in the city of Beitar and ends with a horrific account of the massacre of the Jews of Beitar by the Romans. How did a small matter mushroom into a massive catastrophe? Rabbis often tell the first part of the story (and only the first part!) when a bride and groom stand beneath their chupah. The image of planting trees for each child and combining them to construct their chupah is lovely. Unsurprisingly, the remainder of the story is not recounted under the chupah. 

To understand this story, it is helpful to know the history of the Bar Kokhba Revolt (132-135 C.E.) and the significance of Beitar. Although the rebellion against Rome in the first century (66-70 C.E.) resulted in  the destruction of the Second Temple and most of Jerusalem, and the devastation of the countryside, the hope of throwing off the Roman overlords persisted. Shimon bar Kokhba spearheaded a renewed attempt in the first half of the second century. Initially the revolt met with success. The spiritual mentor of the movement was no less than R. Akiba, the greatest scholar of his day. R. Akiba went so far as to declare Bar Kokhba the longed-for Jewish messiah. Prophecy had promised the messiah would restore Jewish sovereignty in the Land of Israel. Ultimately, the Roman forces crushed the revolt and both the Babylonian and Jerusalem Talmuds provide accounts of the massacre in Beitar in exquisitely gory detail.

COMMENTARY

The story suggests that the lovely tradition of planting trees when a child is born was a local custom, unique to Beitar. Therefore, the daughter of the Roman Emperor, who happened to be passing by, could not be expected to be aware of local custom. As befitting royalty, she traveled with an entourage of servants to bear her litter on two long shafts hoisted onto their shoulders. When one of the shafts broke, her servants sought a tree suitable to replace the broken shaft. 

The people of Beitar took umbrage at this act, interpreting it as Roman hubris—or far worse. They responded with hostility and violence, setting on the entourage and beating the servants. The story is replete with potent symbolism. Perhaps the very presence of the Emperor’s daughter in the holy Land of Israel, inflamed the residents. Perhaps Romans chopping down a tree bespoke yet another Roman attempt to uproot Jews from their sacred land. Perhaps chopping down a tree designated for a child’s marriage canopy was seen as a Roman effort to destroy the next generation of Jews, the future of the Jewish people.

The Romans interpreted the response of the Jews to what for the Romans was undoubtedly an insignificant event as yet another attempt to revolt against Rome. Accordingly, they reported to  the Roman emperor that the Jews were rebelling against Rome. The response was unsurprising: he launched a massive attack. Beitar was obliterated and, according to tradition, everyone was killed except one young boy: Shimon b. Gamliel, a direct descendant of Hillel, who grew up to be the Nasi of the Sanhedrin. Therein lies enormous symbolism: the Roman attempt to eradicate Judaism was undermined by the survival of the line of Hillel.

Jewish tradition has not been kind to Shimon bar Kokhba, who led a segment of the Jewish people down the road of disaster, bringing death to those in Beitar and widespread suffering to Jews throughout Judea. The Jerusalem Talmud dubbed him Bar Koziba, “son of a lie.”

QUESTIONS TO CONSIDER AND DISCUSS

1. Given the migratory nature of our lives in the 21st century, the custom of planting trees when children are born and harvesting their wood to construct their chupah is charming but unrealistic. Many of us live far from where we were born. Do you know of another custom that merges the lives of a betrothed couple in a beautiful way, perhaps related to making the canopy of their chupah, or some other facet of the marriage ceremony? Can you imagine something you have not seen?
2. The story, told concisely and simply, paints a profound picture of how even a small event can be magnified by misunderstanding and over-reaction, resulting in violence. The princess’s entourage felt entitled to make use of whatever they deemed necessary. Have you ever seen people misunderstand, misinterpret, and over-react to something said of done by another? Have you yourself ever done this? What was the result? How could this be avoided?
3. R. Akiba’s identification of Bar Kokhba as the Messiah was an enormous contributing factor to the disaster. It legitimized and empowered Bar Kokhba, assuring him more influence and adherents. What is the responsibility of leaders in identifying whom to trust? How can we identify leaders we can rely on. What signs would suggest caution?