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?