The Social Teaching of Rabbinic Judaism, Part II: Between Israelites

T H E SOCIAL T E A C H I N G O F RABBINIC JUDAISM

THE SOCIAL TEACHING OF RABBINIC JUDAISM Between Israelites P A R T II

BY

JACOB NEUSNER

BRILL LEIDEN · BOSTON · KÖLN

2001

This book is printed on acid-free paper.

Library of Congress Cataloging-in Publication data

Neusner, Jacob, 1932T h e social teaching of rabbinic Judaism / J a c o b Neusner. p. cm. Includes bibliographical references and index. Contents: 1. Corporate Israel and the individual Israelite — 2. Between Israelites — 3. God's presence in Israel. ISBN 9004122613 (set) — ISBN 9004121900 (cloth : v. 1 ) — ISBN 9004121919 (cloth : v.2) — ISBN 9004122605 (cloth : v. 3) 1. Sociology, Jewish. 2. Judaism and the social sciences. 3. Social sciences—Philosophy. 4. Rabbinical literature—History and criticism. 5. Interpersonal relations—Religious aspects- Judaism. 6. Jewish families- C o n d u c t of life. 7. Conflict management Religious aspects—Judaism. 8. Presence of God. 9. God (Judaism) I. Tide. HN40.J5 N48 2001 296.3'8—dc21

2001035208

D e u t s c h e Bibliothek - C I P - E i n h e i t s a u f n a h m e Neusner, Jacob:

T h e social teaching of Rabbinic Judaism / by J a c o b Neusner. - Leiden ; Boston ; Köln : Brill, 2001 ISBN 90-04-12261-3 2. Between Israelites. ISBN 90-04-12191-9

2001

ISBN ISBN

90 04 121919 90 04 12261 3 (set)

© Copyright 2001 by Koninklijke ΒήΙΙ NV, Leiden, The Netherlands All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in anyform or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy itemsfor internal or personal use is granted by Brill provided that the appropriatefees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910 DanversMA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

T A B L E

O F

C O N T E N T S

Preface 1.

ix

INTRODUCTION

ι.

IL HI. IV. v. VI. vu.

VIII.

Native Category-Formations and Contemporary Inquiry: H o w to Match the Answers of the Halakhah with the Questions of Social Philosophy H o w D o Sages Move from the K n o w n to the Unknown? Modes of Analogical-Contrastive T h o u g h t W h a t are the T h o u g h t Processes that Link Particular Data to a General Question? T h e First Teaching: Corporate Israel and the Individual Israelite T h e Second Teaching: Resolving Conflict [a] In General Terms T h e Second Teaching: Resolving Conflict [b] within Israel in Particular T h e Analytical Program: Why Focus on Relationships between Israelites, and What D o We Want to K n o w about them? What, Precisely, D o We M e a n by "Conflict"?

2 . CONFLICTS BETWEEN FAMILIES

ι. IL

W h e n Families Quarrel: Corporate Israel's Interest in the Household Disputes in the Union of Families through Marriage. Qiddushin A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship B. T h e Halakhic Resolution of Conflict C. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof

1

1 5 9 15 22 29

34 41

46

46 53 54 57

57

VIII

CONTENTS

m.

Disputes in the Union of Families through Marriage. Ketubot A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship B. T h e Halakhic Resolution of Conflict C. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof IV. W h e n Marriages Break Down. T h e Systemic Interest. Sotah v. W h e n the Union of Families through Marriage Dissolves. Gittin vi. Disputes in the Dissolution of the Union of Families through Marriage: Death without Offspring. Yebamot... A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship B. T h e Halakhic Resolution of Conflict C. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof vu. Between Israelites: T h e Halakhic View of Conflicts between Families and their Resolution A. T h e Halakhic definition of the systemic interest and how it is realized B. Considerations that come into play 3.

59 60 68

69 70 73 76 78 82

82 85 85 86

CONFLICTS BETWEEN HOUSEHOLDERS: RESTORING THE SOCIAL ORDER

W h e n Households Collide: Corporate Israel's Interest in Conflicts between the Genealogical Units of Production IL T h e Principal Parts of Civil Law, Torts and Damages: Where Intention Matters, Where Intention Does Not Register m. Baba Q a m m a A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship B. T h e Halakhic Resolution of Conflict IV. Baba M e s i a l - 5 A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship

88

ι.

88

93 97 100 125 128 128

CONTENTS

VII

Β. T h e Halakhic Resolution of Conflict C. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof in Baba Q a m m a and Baba Mesia 1-5 4.

135

137

C O N F L I C T S BETWEEN H O U S E H O L D E R S : M A I N T A I N I N G T H E S O C I A L ORDER

Corporate Israel's Interest: Where Intentionality Gives Way IL Baba Mesia 6:1-10:3 A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship in. Baba Batra A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship IV. T h e Halakhic Resolution of Conflict, Baba Mesia 6-10 and Baba Batra v. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof in Baba Mesia 6-10 and Baba Batra vi. Between Israelites: T h e Halakhic View of Conflicts between Households. Restoring and Maintaining the Social O r d e r A. T h e Halakhic Definition of the Systemic Interest and how it is Realized B. Considerations that C o m e into Play

146

ι.

5.

146 150 150 168 170 192

196

202 204 211

T H E P L A C E O F T H E O A T H IN R E S O L V I N G C O N F L I C T S BETWEEN ISRAELITES

214

ι. IL

214 220

Invoking God's Presence in Israel's Conflicts Shebuot A. T h e Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship B. T h e Halakhic Resolution of Conflict C. H o w does the Interest of Corporate Israel C o m e to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof HI. Between Israelites: God's Presence

220 235

239 240

VIII

CONTENTS

A. T h e Halakhic Definition of the Systemic Interest and how it is Realized B. Considerations that C o m e into Play Index

240 241 247

P R E F A C E

The Social Teaching of the title invokes the classic work in the study of religion a n d society, Ernst Troeltsch's The Social Teaching of the Christian Churches.1 H e r e I continue my project of providing for normative J u d a i s m an account of the same matter.‫־‬ I set forth the design for the principal parts of the social order that is put forth by a remarkably successful religious system. T h a t is Judaism, embodied in the normative law or H a l a k h a h of the authoritative writings. T h e H a l a k h a h (for that is the H e b r e w word for system, the norms of behavior rigorously composed and critically construed as they are in the Rabbinic documents) is set forth by the Pentateuchal law codes as mediated and a u g m e n t e d by the Mishnah-Tosefta-Yerushalmi-Bavli a n d their extramural legal traditions. T h e reason I call the Halakhic system remarkably successful is simpie. Wherever Jews lived, under all circumstances, for millennia, the H a l a k h a h succeeded in defining the social order that they would e m b o d y in their corporate life. It is difficult to point to m a n y other theological-legal systems with an equivalent record: capacity to adapt to every climate and culture and to establish a social order marked by stability, dignity, and affirmation of h u m a n worth. A glance back upon the century now closed—the culmination of the m o d e r n a g e — shows the contrast and defines the contrasting criterion for success: an age of instability, indignity, a n d denigration of the value of a h u m a n life. T h e sages ofJ u d a i s m chose normative law as the medium for their social thought, part of their larger theological enterprise. But how the Rabbinic sages formulated through the specificities of the law

1 Ernst Troeltsch, The Social Teaching of the Christian Churches I-II (New York and Evanston: Harper & Row) Translated by Olive Wyon. With an Introduction by H. Richard Niebuhr. ‫ '־‬The Social Teaching of Rabbinic Judaism. I. Corporate Israel and the Individual Israelite. (Leiden, 2000: E . J . Brill). T H E B R I I . L R E F E R E N C E L I B R A R Y O F J U D A I S M . Clearly Volume III will have to ask about corporate Israel in society in response to God's imperative to form a kingdom of priests and a holy people, and to be holy like God. T h e framing of that question is determined by the results of this part of the work, and the title tells the story: God's Presence in Israel.

XII

PREFACE

an encompassing picture of Israel's social order, one of remarkable cogency and intellectual rigor, remains to be seen. It is portrayed in those writings of the H a l a k h a h that begin with Moses in the T o r a h in two media, writing, or Scripture and oral, ultimately written down in the Mishnah, ca. 200 c.E., with its complement, the Tosefta, ca. 300 C.E., and its amplifications a n d expansions in the two T a l m u d s , the Yerushalmi, ca. 400 c.E. and the Bavli, ca. 600 c.E. M y purpose, then, is to recover from its e m b o d i m e n t in details the generative logic of the social order contemplated by the masters of the T o r a h , written a n d oral, whose thought, whole a n d complete and cogent, comes to us in the J u d a i c classics. T h e Rabbinic Judaism of the title makes reference to the J u d a i c system of the social order that is set forth in the authoritative writings of the formative age of that J u d a i s m in ancient Israelite Scripture as read by the Mishnah, T a l m u d s , a n d Midrash, ca. 200-600 C.E. This account of the social teaching of Rabbinic Judaism, then, mediates, into the categories of social philosophy, the pertinent parts—native category-formations—of the classical writings of Rabbinic J u d a i s m .

I In the first p a r t of this study, Corporate Israel and the Individual Israelite, I explained how, in the law, Rabbinic Judaism defines corporate Israel and legitimates individuality. T h e way in which the native category-formations of the H a l a k h a h mediate the relationship of the individual Israelite to corporate Israel defined the inquiry. N o w I turn to relationships between Israelites, with particular attention to those that require resolving conflict. T h e f r a m i n g of the problem is subtle. Specifically, the First T e a c h i n g , set forth in Corporate Israel and the Individual Israelite, has shown that from the Halakhic perspective what makes Israel unique a m o n g social entities is its constituting a corporate entity, subject to j u d g m e n t for its deeds, to j u d g m e n t that transcends the sum o f t h a t of the individual Israelites. T h e peoples, nations, gentiles, do not. A m o n g the Halakhic category-formations corporate Israel is sui generis. Individual Israelites on their own form species of the c o m m o n genus, h u m a n i t y in G o d ' s image but bearers of the condition of A d a m a n d Eve. So Israel compares to no other social entity, while individual Israelites c o m p a r e with idolaters or gentiles in their individuation. T h e n all persons each on his or her

PREFACE

XIII

own form morally responsible entities before G o d . W h a t makes Israel unique is its corporate character, a n d what defines the nations comprised by idolaters is that they are not like Israel in their collective character. I have shown that Rabbinic J u d a i s m treats as the n o r m for the social order of h u m a n i t y in the aggregate—whether gentile idolaters or Israelite worshippers of the one true G o d — t h e radically isolated, autonomous individual. Each person, Israelite or idolater, constitutes a moral entity responsible to G o d ' s will. W h a t is exceptional to that n o r m is the corporate community, Israel. It is formed by Israelites, w h o all together, also constitute a moral entity. T h e y collectively form a whole that exceeds the sum of the parts. T h e Halakhah acknowledges no other corporate c o m m u n i t y comparable to Israel; the idolaters constitute none. T h e n for the H a l a k h a h , the given is the unique social entity, Israel, and the generative question is to provide, within the framework of corporate Israel, for the individuation of Israel, its division into Israelites, one by one. T h e category-formations of the Halakhah then systematically provide for individuation in the context of that corporate social entity. T h e n the condition of corporate Israel governs the context in which individual Israelites assert their individuality. In the conception of R a b b i n i c J u d a i s m in its Halakhic n o r m s , I c a n n o t overstress, no other social entity forms such a c o r p o r a t e community, besides Israel. T h e implications of these facts and their embodiment in the law ofJ u d a i s m form the burden of Volume O n e . T h e logical next question, raised here, is this: once the law recognizes not only Israelites but the integrity of corporate Israel, how does it regulate relationships within the f r a m e w o r k of that corporate community. By regulating relationships, I m e a n , and I think the sages will have understood, relationships of competition, contention, a n d conflict. T h o s e of collaboration, consensus, a n d cooperation require no regulation on the part of constitutive law; they regulate themselves by their nature: people keep rules. T h e n at issue are where the corporate c o m m u n i t y intervenes to protect its interests in relationships between a n d a m o n g individual Israelites, and how it does so. So I follow the law's presentation of those relationships as integral to the larger system of Rabbinic J u d a i s m and its plan for its Israel's public life—hence, once m o r e , the focus on large constructions, category-formations that are integral to the main beams of the Halakhic system a n d structure.

XII

PREFACE

T o accomplish my purpose I identify points of general interest for social policy in the particularities of Rabbinic J u d a i s m , especially of its n o r m a t i v e law on w h i c h we c o n c e n t r a t e first. T h a t requires m a t c h i n g the category-formations of general intelligibility—social teachings, e.g., the individual a n d the c o m m u n i t y , relationships between individuals—with the native categories and category-formations particular to J u d a i s m . T h e work therefore d e m a n d s mediating between the specificities of Rabbinic J u d a i s m a n d the questions of generalization and abstraction, issues of social policy broadly construed, that animate the inquiry.

II The Individual Israelite and Corporate Israel, taken u p in Volume O n e , a n d Between Israelites, addressed here, a n d God's Presence in Israel, V o l u m e T h r e e , r e p r e s e n t m a t t e r s subjected to d e e p , systematic thought a m o n g social philosophers of m a n y religious communities, not only the Israelite one. T h e individual a n d the community, contentious relationships between persons, a n d what it m e a n s to form a society worthy of G o d ' s presence—all three c o m p o n e n t s of the social teaching of a religious system have received ample attention in studies of Islam, Christianity, a n d other Judaisms. But Rabbinic J u d a i s m , like any other religious system of the social order, defines its own structure of category-formations. H o w to interrogate the R a b b i n i c system on abstract issues raised outside its own concrete framework defines the work. It requires m a t c h i n g category-formations particular to one system with those of b r o a d application across the boundaries of m a n y cultures. H o w to do this? I have shown, in V o l u m e O n e for the m a t t e r of the individual a n d the community, a n d shall demonstrate, in these pages for the resolution of conflict, the workings of my answer to that generative question. It is that the native category-formations of the H a l a k h a h do take up these p r o f o u n d a n d f u n d a m e n t a l social concerns, worked out through law. Volume O n e proved the congruity between the basic issue of social thought a n d the native category-formations of the H a l a k h a h that intersect with that issue. H e r e we shall see how, in the native category-formations of the ethics of Rabbinic J u d a i s m , resolving conflict concerns the relationship "between a m a n and his

PREFACE

XIII

fellow," beyn adam lehabero. T h a t once m o r e accounts for the title, "between Israelites," with its focus, "resolving conflict." T h e governing logic, the rationality of the system that comes to expression in the details—these define what is at stake in the inquiry. T h e y explain the critical importance of matching the native-category formations of the law of Rabbinic J u d a i s m with the abstract, encompassing issues of social thought. But where a n d how do the native-category-formations of the H a lakhah systematically (not merely episodically) address that topic? T h e answer is, at issue is the system viewed whole. For I promise not merely an exercise in show a n d tell, an academic c o u n t e r p a r t to hunting and gathering. I seek understanding of the inner working of a system of legal norms as the embodiment of a theory of the social order in one of its principal parts: law embodying social philosophy, as Troeltsch portrayed the social thought emergent in the theology of Christianity.

Ill At stake in analyzing Rabbinic J u d a i s m in its distinctive reflection on issues of c o m m o n social concern are weighty matters indeed. T h a t is because the H a l a k h a h as an exceedingly well-crafted, cogent set of answers to questions of general intelligibility. Its category-formations coalesce a n d f o r m a closed system, able to a c c o m m o d a t e whatever comes its way. And the details of the law, in the T a l m u d , are shown to cohere and form a cogent system, detail by detail. YVhen, accordingly, we investigate how systematic, critical thinkers, in details of concrete law, sorted out issues of wide relevance to m a n y societies, we pursue a problem bearing wide implications. For the inquiry affords access to a source of experienced wisdom, insight resting on applied reason and practical logic. T h e uneven record of humanity attests that no source is to be neglected that promises the perspective a n d insight into the h u m a n condition that p r o f o u n d intellect affords. And a m o n g the philosophers of the social order represented by such thinkers, for Western antiquity, as Plato, Aristotle, and Augustine, the sages of the Mishnah and the Talmuds claim a place in the front rank. So it is my task to find the abstract questions of social thought

XII

PREFACE

that the H a l a k h a h answers in all its particularity. T h a t requires, as I said, m a t c h i n g the category-formations of two distinct constructions: the particular a n d Rabbinic, the general a n d philosophical. Each must remain possessed of its own integrity. If I brought an alien set of category-formations to the Rabbinic writings and if I then proposed to force the Rabbinic writings to respond to those alien questions, in the nature of things the outcome would distort those writings. If, on the other h a n d , I asked those native categories to define the c o m p o n e n t s of the social teaching of the R a b b i n i c writing, I should merely recapitulate the content of those writings without materially a d d i n g to o u r u n d e r s t a n d i n g of matters. In raising questions of governing rationality, in penetrating into the generative logic of the H a l a k h a h , I claim to contribute in one way only. It is to identify the questions of public consequence for a variety of social worlds that the H a l a k h a h answers for the Israel that it designs a n d defines. If I succeed, I shall afford a m o r e a m p l e u n d e r s t a n d i n g of R a b b i n i c J u d a i s m than before, on the one side, a n d contribute to the modest treasure of wisdom for the governance of the social order the gift of the J u d a i c sages, on the other.

IV I stress the n o r m a t i v e law, the H a l a k h a h , not the theology a n d exegetics, the Aggadah, of R a b b i n i c J u d a i s m . T o explain: the R a b binic c a n o n divides into a system of n o r m s of behavior a n d a counterpart construction of n o r m s of belief, H a l a k h a h law, and Aggadah, lore, respectively. T h o s e familiar with the Rabbinic writings in their formative age will naturally w o n d e r , w h a t a b o u t the Aggadah, the lore, theology a n d scriptural exegesis, o f t h a t same J u d a i s m ? In the initial part and in the present one, as well as in the planned third teaching, besides the two now in print, I focus on the H a l a k h a h to the exclusion of the Aggadah. T h e character of the classical writings require that I choose to investigate the Halakhic category-formations first, and then rely upon the results for a reading of the Aggadic counterparts to them. T h a t is because the H a l a k h i c s t a t e m e n t is c o h e r e n t , subjected to sustained and systematic criticism, and normative. T h e Aggadic counterpart is diverse and rarely subjected to systematic criticism. Not only

PREFACE

XIII

so, but the H a l a k h a h is abstract a n d by its nature yields generalizations; the Aggadah is concrete and far m o r e difficult even to classify; its c a t e g o r y - f o r m a t i o n s r e m a i n for us to discover, 3 while the Halakhic ones are defined for us from the very beginning. So I choose to start with the statement of the Rabbinic system that is cogent and solid and establish the base-line of inquiry. I only then shall turn to the c o m p l e m e n t a r y writings, which are as to categorical constructions, less accessible. O n c e I have satisfied myself that I understand how important components of the Halakhic structure of categoryformations in fact set forth a social philosophy, I shall turn to the Aggadah. T h e r e too, however, m y task is to identify what pertains, not episodically but systemically a n d characteristically. I expect that work to constitute the fourth and final part of this project. W h a t I aim to demonstrate, therefore, is that the normative canon, in both Halakhic a n d Aggadic modes, embodies a vast, cogent p r o g r a m for the ordering of Israel's society. In that p r o g r a m the H a lakhah a n d the A g g a d a h , each in its native category-formations, together address a range of issues of c o m m o n c o n c e r n to social philosophy a n d general intelligibility to h u m a n i t y at large. But that demonstration of the unity of Halakhic and Aggadic n o r m s of the social order is, as of this writing, still over the far horizon.

V O n e point of clarification should register: by "conflict" I do not mean differences of opinion between sages a n d how these disputes are worked out. T h a t question, concerning the textual c o m m u n i t y a n d its dynamics, has no bearing upon the matter of social theory addressed here. W h a t I take up here are the explicit Halakhic representations of disputes between Israelites within the Halakhic account of the n o r m s of Israel's social o r d e r . W h e r e does the H a l a k h a h

* I deal with this problem in Dual Discourse, Single Judaism. The Category-Formations of the Halakhah and of the Aggadah Defined, Compared, and Contrasted. (Lanham, ' 2 0 0 0 : University Press of America. STUDIES IN A N C I E N T JUDAISM SERIES); and, for the Aggadah on its own, in The Native Category-Formations of the Aggadah. I. The Later Midrash-Compilations. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U D A I S M SERIES); and The Native Category-Formations of the Aggadah. II. The Earlier Midrash-Compilations. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U D A I S M SERIES). T h e results to date are sparse and puzzling.

XII

PREFACE

p o r t r a y such disputes, w h y are they held consequential, a n d h o w are they resolved—these define the issues a n d dictate the compositions that are taken up. T h a t definition of the m a t t e r governs t h r o u g h o u t .

VI A peculiarity of m y p r e s e n t a t i o n of the evidence should be clarified at the outset. By the H a l a k h a h , I m e a n , the laws set forth in the M i s h n a h - T o s e f t a - Y e r u s h a l m i - B a v l i . T h e s e , taken all together, p o r tray the H a l a k h a h as a cogent, c o h e r e n t system for Israel's social o r d e r . T h e H a l a k h i c c a t e g o r y - f o r m a t i o n s a r e those i m p o s e d by the n a m e d documents a n d are uniform f r o m the M i s h n a h forward. While I treat the H a l a k h a h as a single s t a t e m e n t possessed of integrity, I d o take note of the origin of rules in o n e d o c u m e n t or a n o t h e r . So to differentiate a m o n g the d o c u m e n t s that c o n t r i b u t e to the statem e n t of the H a l a k h a h , I use different type faces for e a c h d o c u m e n t . T h e s e are bold face type for the Mishnah, plain type for the T o s e f t a , italics for the Terushalmi, a n d L O W E R CASE CAPS FOR T H E B A VLI. I cite t h e sources as I p o r t r a y t h e m in m y The Halakhah: An Encyclopaedia of the Law of Judaism* In the I n t r o d u c t i o n to that work I explain m y selection, a m o n g all of the H a l a k h i c statements of the M i s h n a h - T o s e f t a - Y e r u s h a l m i - B a v l i , of the entries I d e e m p e r t i n e n t to m y inquiry. M o s t of the exposition of the H a l a k h a h takes place in the M i s h n a h a n d the T o s e f t a ; most of the analysis, in the two T a l m u d s . H e r e , as in the Encyclopaedia, I focus o n the exposition, not the analysis. T h e selection of the items p e r t i n e n t here is spelled out in C h a p ter O n e section viii. I initially p l a n n e d this project in conversation with Professor Willi1

The Halakhah: An Encyclopaedia of the Law 0J Judaism. Volume I. Between Israel and God. Part A. Faith, Thanksgiving, Enlandisement: Possession and Partnership. Volume II. Between Israel and God. Part B. Transcendent Transactions: Where Heaven and Earth Intersect. Volume III. Within Israel's Social Order. Volume IV. Inside the Walls of the Israelite Household. Part A. At the Meeting of Time and Space. Sanctification in the Here and Now: The Table and the Bed. Sanctification and the Marital Bond. The Desacralization of the Household: The Bed. Volume V. Inside the Walls of the Israelite Household. Part B. The Desacralization of the Household: The Table. Foci, Sources, and Dissemination of Uncleanness. Purification from the Pollution of Death. (All: Leiden, 1999: E . J . Brill. THE BRILL R E F E R E N C E LIBRARY OF ANCIENT JUDAISM).

PREFACE

XVII

a m Scott G r e e n , University of Rochester. In addition I consulted Professor H e r b e r t Basser, Q u e e n s University, Professor R o b e r t Segal, Lancaster University, Professor J o s é Faur, Bar Ilan University, Professor G u e n t e r Stemberger, University of Vienna, a n d Professor D a n n y J o r g e n s e n , University of South Florida, and found their responses uniformly helpful. JACOB NEUSNER BARD COLLEGE

1.

INTRODUCTION I. Native Category-Formations and Contemporary Inquiry: How to Match the Answers of the Halakhah with the Questions of Social Philosophy M y primary task is to locate those expositions of coherent thought in Halakhic discourse that pertain to social issues of general interest. This act of cultural mediation requires matching the categoryformations of the Rabbinic canon with the components of systems of social teaching pertinent to a range of communities. M y assignm e n t is to identify the Halakhic category-formations that e m b o d y Rabbinic thought on that issue of general intelligibility. T h a t requires me to e x p o u n d the Halakhic category-formations both in their own terms and in such a way as to show how they illuminate that universai issue. T o mediate between the general requirements of a system of social thought a n d the particular c o m p o n e n t s of the R a b b i n i c system of social thought for the Israel contemplated therein defines a worthy goal. But how to do so? K e e p i n g in mind the p r o g r a m outlined in the Preface, some m a y quite fairly object that the very terms and categories of both theology and social philosophy are incongruous with those of the H a l a k h a h . T h a t is because those abstract categories do not emerge f r o m the H a l a k h a h , which is comprised by rulings on issues of neither a theological nor a philosophical character: goring cows, botched writs of divorce, the regulation of conduct on holy days, animal offerings on the T e m p l e altar, tithing dill and cumin, immersing pots a n d pans. R a t h e r , derived from outside its f r a m e work, the category-formations of theology and social philosophy are imposed u p o n the sages' normative writings. T h e n — t h e two sets of mutually-alien category-formations m a d e to m a t c h without analytical r e a s o n — t h e entire result is c o m p a r a b l e to an anthology of topical sayings. It does not yield an analysis of generative logic a n d of systemic structure a n d coherence, such as I claim to undertake. T o be sure, at some few points, the encompassing, general issue

2

CHAPTER THREE

m a y be stated in so m a n y words by the R a b b i n i c sages themselves. But at most that is not the case. T h e pot is just that, the carcass of the cow remains to be sold a n d the proceeds divided. T h e incongruity of the H a l a k h a h a n d social philosophy is not formal but substantive. Theology claims to generalize a n d philosophy to deliver truths that pertain universally. By contrast, the H a l a k h a h is composed of concrete cases, parsimonious with its abstract conclusions because it speaks of the condition of Israel in particular. N o n e t h e less, if we view the principal rulings as answers to questions of social policy of b r o a d a n d universal pertinence, we can build a bridge from the detailed answer in h a n d to that question of principle, and, thence to the generative logic that produces detailed Halakhic answers to provocative questions of general intelligibility. H o w are we to m a t c h the answers of the H a l a k h a h to the questions of social philosophy? T h e native category-formations, a.k.a., tractates, take shape a r o u n d details of a p r o g r a m formed within its own systemic logic, that of the Mishnah. 1 A m o n g t h e m all we cannot identify a single one that, on the surface, addresses broadly framed issues of social philosophy. For social teachings philosophically construed speak of justice a n d equity and the c o m m o n good, b u t — I cannot overstress the m a t t e r — t h e H a l a k h a h talks of disputes over a sliver or land or a large onion or a cloak. T a k e the case of individ1

I have systematically explained how the Halakhic category-formations take shape in the following project: The Hermeneutics of the Rabbinic Category-Formations: An Introduction. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U DA ISM SERIES); The Comparative Hermeneutics of Rabbinic Judaism. Volume One. Introduction. Berakhot and Seder Mo'ed. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Two. Seder Nashim. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Three. Seder Neziqin. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Four. Seder Qodoshim. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C IENT J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Five. Seder Tohorot. Part Kelim through Parah. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics ofRabbinic Judaism. Volume Six. Seder Tohorot. Tohorot through Uqsin. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Seven The Generic Hermeneutics of the Halakhah. A Handbook. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Eight. Why This, Not That? Ways Not Taken in the Halakhic Category-Formations of the Mishnah-Tosefta-Terushalmi-Bavli. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series).

INTRODUCTION

3

uation a n d individuality within a corporate community: what the private person owes to the c o m m o n good, for example. In the context of Volume O n e the matter clarifies itself. O n the one side, there is no Halakhic tractate on rights of individuation. But we found a systematic exposition through the H a l a k h a h of stages and contexts of legitimate individuation. So too in the present context, there is no tractate on conflict of interests, resolved by appeal to abstract principles, between h u s b a n d and wife or between householder and householder or between employer and worker. But just as I show in V o l u m e O n e that there are well-constructed tractates on the obligâtions of individuals and their supererogatory rights of self-identification, here too I do the same. W e shall see equally well-composed tractates, which address the appropriate resolution of conflict between various classes of persons a n d of c o m p e t i n g claims to preference, w h e t h e r in the family or in the economy. T h e public policy that comes to concrete expression is there to be discerned, the generative logic to be recapitulated. So a labor of negotiation and mediation is both required and possible. Let me explain specifically how I propose to move from the detailed data in our hands to matters of abstract social policy. Doing so requires me to recapitulate the sages' modes of thought, then to reverse direction taken by them. T h e y work from the particular to the general, philosophy a n d theology by contrast move f r o m the general to the particular. W h a t do I m e a n by reversing direction? T o solve problems, sages move from the known facts to the unknown law. T h e n in following the steps of analysis and argument in reverse direction, we reconstitute Rabbinic thought-patterns and move therein f r o m the details that the canonical documents give us to the principles that animate those details but that are not articulated. T h e answer to the question, how do you know what these principles are, thus d e m a n d s responses to three intertwined questions. First, if I asked the sages philosophical questions, how would they go about answering them? Do we have explicit accounts of the matter of their modes of thought and argument? I shall show (section ii) that we do. Second, what are the thought processes that in their system of thought, within its rationality, self-evidently serve to link the partieular data to general questions? D o these {:»rocesses of thought come to the surface a n d articulate the governing principles of logic? I shall cite a passage (section iii) in which that is m a d e manifest.

4

CHAPTER THREE

A n d third, where in the law set forth by the T o r a h would they find the data? O n c e they have chosen the appropriate analogy, they turn to particular bodies of established facts, and guided by their facts and cognizant of their analogical-contrastive modes of thought, we m a y find our way to those abstract category-formations that comprise the social thought of the system. In sections iv-vii, I shall define the p r o g r a m of the shank of this book. Let me rapidly answer these three basic questions just now outlined. T h e answer to the first is, finding the correct analogy in the known ("to what is the matter comparable") 2 they would move from the known, the established H a l a k h a h , to the unknown, the p r o b l e m at h a n d . In both the second a n d the third matters, the case involving m e t h o d and the case involving generalization, the Rabbinic sages leave no doubt about how to identify pertinent data. Before our eyes we see just how they negotiate the distance between the particular and the general, the concrete a n d the abstract, the case and the rule. Comparative Hermeneutics has already p r o d u c e d a clear result on the m a t t e r of category-formation. Defining the building blocks of the social order that sages contemplate requires of t h e m a process of analogical-contrastive thought. W h a t is involved in that process is identifying what is alike a n d what is not alike, c o m p a r a b l e to the case or p r o b l e m at h a n d . T h e n , second, establishing the correct comparisons of unknown case or category-formation to known, they would seek to criticize the analogy p r o d u c e d by analogical-contrastive thought. Is the analogy exact or approximate, monothetic or polythetic or totally awry? T h i r d , having satisfied themselves as to the governing analogy, cases and problems out of the known law, set forth in large, coherent blocks of thought, will readily present themselves, tractate by tractate. 3 2

T h e Halakhah and the Aggadah meet in the Aggadic parable. T h e parable or Mashal functions in Aggadic discourse as does the Halakhic dialectical argument in the Halakhic discourse of a critical order. T h a t remains to be shown in detail. When such demonstration has taken place, it would present a weighty solution to the problem of how the two media of thought and discourse—the Halakhic. and the Aggadic—really do form a single system of thought. T h a t would indicate a solution in formal terms at any rate. T h e substantive solution is already in hand. T h a t is, theology solves that problem in substantive ways, by showing how each in its own way they present complementary propositions. T h e union of Theology of the Oral Torah and Theology of the Halakhah shows that fact. ! I need not review the method and results of Volume O n e of this study to show how the process works. T h e entire construction o f t h a t project embodies my answers to these questions, and the theory of the matter is spelled out in total detail in Comparative Hermeneutics. So the work is continuous.

INTRODUCTION

5

We have, then, a basis for hypothetically reconstructing the modes of thought that guide the sages in answering Halakhic questions. With these in mind, we proceed f r o m the ruling governing a particular detail to the social philosophy that defines the reading of that detail—and m a n y others like it. So to build a bridge from the known of a Halakhic ruling to the unarticulated philosophy represented by that ruling, we have to ask the right question. T h a t is, we have to determine what question of b r o a d general intelligibility has generated the acutely particular answer that is before us. H o w did sages analyze a problem of detail? By what rules of procedure did they solve that problem by evoking a general rule to cover a particular case? K n o w i n g the answers to these questions, we m a y retrace their steps, making the move f r o m the case at h a n d to the general rule embodied therein. So the work is possible because, to answer the question of detail— what is the law governing such-and-such a transaction?—sages commonly applied a principle transcending not only the case at h a n d but even the particular category of the H a l a k h a h to which the case belongs. T h a t is where we make the move from the case to the rule, f r o m the rule to the principle. T h e n the principle engages with rules of various category-formations, all the while imposing a single, uniform and coherent theory on diverse matters. We now proceed to a two single, probative cases, first, one in which sages show us precisely how they analyze a problem by moving from the known to the unknown, and, second, how they propose to generalize, to confront an abstract problem through concrete cases. T h a t suffices to explain the procedures of the shank of this book and its companions. 4

II. How Do Sages Move from the Known to the Unknown? Modes of Analogical- Contrastive Thought W e c o m e to the first of my three questions: if I asked the sages philosophical questions, how would they go about answering them? T h e R a b b i n i c sages solved problems by determining the governing analogy. T h a t is to say, a situation that we do not know how to resolve 1

It further leaves open the question of how to address the counterpart-problem of the Aggadic category-formations and how these, too, may contribute to an account of the social thought that animates the system as a whole.

6

CHAPTER THREE

is treated as comparable to one for which we do know the rule. T h e n once we establish the comparability, we find the rule for the unknown from the known. This the R a b b i n i c sage did by determining what established facts, what valid rulings, pertain to a case comparable to the one that requires a ruling. So w h e n asked a question c o n c e r n i n g a n unfamiliar case, the R a b b i n i c sage would have to designate a known case d e e m e d (hypothetically at least) c o m p a r a b l e to the u n k n o w n a n d generative of the principle that governs in the u n k n o w n case. A r g u m e n t then will challenge the analogy that is proposed. T h e contrary position must show that, in one detail or another, the cases are not so comparable as they have been alleged to be. Evidence will sustain a r g u m e n t . A decisive distinction then will establish which proposed analogy governs, a n d why the other proposed analogies do not really c o m p a r e . T h a t m o d e of thought accounts for the ubiquitous question in the literature of the H a l a k h a h (and of the Aggadah as well!). T o what is the m a t t e r c o m p a r a b l e ? 5 W h a t imparts energy to the Halakhic process is the necessity to debate about which one of two equally plausible analogies comes to bear u p o n the p r o b l e m at h a n d . O n c e the sage knew the a p p r o p r i a t e analogy, he could then identify the governing model a n d answer the question of the unknown, with the known as the guide. T o unpack this somewhat abstruse formulation, I present a single, sufficient example of how a general proposition comes to expression in a particular case, so identifying the markers of thought processes that instruct sages on how to answer questions and solve problems. T h e fact that the modes of thought and argument are made articulate renders the case pertinent to our problem. T h e issue, joined at T . Miq. 1:17, concerns an immersion-pool, used for the purification of persons or objects over a protracted period of time, which is discovered to be lacking the requisite volume of water. W h a t is the status of the objects or persons that were immersed therein in the interval between the last time at which the pool was known to be valid a n d the discovery of the invalidity? W h a t is involved is the ' What links the Halakhah and the Aggadah is the process of analogical-contrastive reasoning, which in the latter takes the form of the parable. T h e intellectual bonds between the Halakhah and the Aggadah, through the medium of the parable, have yet to be spelled out. No work on the Parable in the Aggadic compilations to my knowledge has recognized the commonality of the processes of thought that, in rhetorical terms, come to common expression in the language, "to what is the matter comparable?"

INTRODUCTION

7

resolution of doubt. T h e given is the principle enunciated at the outset, 1:16, as we shall now see. TOSEFTA

1:16

A.

B. 1:17

A. B.

MIQVAOT

1:16-20

An immersion-pool which was measured and found lacking— all the acts requiring cleanness which were carried out depending upon it whether this immersion-pool is in the private domain, or whether this immersion-pool is in the public domain [Supply:] are unclean. R. Simeon says, "In the private domain, it is unclean. In the public domain, it is clean." Said R. Simeon, "M'SH: The water-reservoir of Disqus in Yabneh was measured and found lacking." "And R. Tarfon did declare clean [meaning: what in the interval from the last point at which the pool was known to be sufficient to the point at which it was discovered to be insufficient, had been immersed in the pool nonetheless had risen from uncleanness to cleanness], and R. Aqiba unclean.

So m u c h for the problem. N o w we notice the way in which it is solved. H e r e comes the point at which the argument is joined. Each party spells out the principle that he deems to pertain. T h e issue is, we have conflicting presumptions. T a r f o n focuses upon the presumption that the pool is valid until proved otherwise. Aqiba invokes the established fact that the pool is now known to be insufficient, and we assume it has been so back to the last point at which we know for certain it was sufficient. C.

D.

"Said R. Tarfon, 'Since this immersion-pool is in the assumption of being clean, it remains perpetually in this presumption of cleanness until it will be known for sure that it is made unclean.' "Said R. Aqiba, 'Since this immersion-pool is in the assumption of being unclean, it perpetually remains in the presumption of uncleanness until it will be known for sure that it is clean.'

As I explained, we deal with an analogical-contrastive m o d e of thought. H e r e our solution lies in the governing analogy: "to what is the matter comparable?" W h a t follows is the conflict of analogies. T h e s e are spelled out in so m a n y words. D o we invoke an analogy that produces a decision for invalidity, or one that produces a decision for validity? T h e two positions are spelled out. 1:18

A.

"Said R. T a r f o n , ' T o what is the matter to be likened? To one

8

CHAPTER THREE

B.

who was standing and offering [a sacrifice] at the altar, and it became known that he is a son of a divorcee or the son of a halusah [a woman in the status of a divorcee, who may not marry a priest and produce valid members of the priesthood] for his service is valid.' "Said R. Aqiba, 'To what is the matter to be likened? To one who was standing and offering [a sacrifice] at the altar, and it became known that he is disqualified by reason of a blemish— for his service is invalid.'"

Since the analogies conflict, at issue is, which one logically coheres to the case at h a n d ? T a r f o n makes the conflict of analogies explicit and offers a n argument: "let us see to what the m a t t e r is appropriately likened?" 1:19

A.

B. C.

"Said R. Tarfon to him, 'You draw an analogy to one who is blemished. I draw an analogy to the son of a divorcee or to the son of a halusah [a woman who has gone through the rite described at Dt. 25:1-5 and is classified as equivalent to a divorcee]. '"Let us now see to what the matter is appropriately likened. '"If it is analogous to a blemished priest, let us learn the law from the case of the blemished priest. If it is analogous to the son of a divorcée or to the son of a halusah, let us learn the law from the case of the son of the divorcee or the son of a halusah.'

Aqiba then meets the challenge head-on, by selecting the governing variable, which is specified at 1:20 Α-B a n d then applied at C. 1:20

A.

B.

C.

D. E.

"R. Aqiba says,'The unfitness affecting an immersion-pool affects the immersion-pool itself, and the unfit aspect of the blemished priest affects the blemished priest himself. '"But let not the case of the son of a divorcee or the son of a halusah prove the matter, for his matter of unfitness depends upon others. " Ά ritual pool's unfitness [depends] on one only, and the unfitness af a blemished priest [depends] on an individual only, but let not the son of a divorcee or the son of a halusah prove the matter, for the unfitness of this one depends upon ancestry.' "They took a vote concerning the case and declared it unclean. "Said R. Tarfon to R. Aqiba, 'He who departs from you is like one who perishes.'"

INTRODUCTION

9

Here is a fine case of analogical-contrastive thinking. O n c e the correct analogy is identified, the rest follows. T h e passage is important because it makes articulate a thought process that defines how sages conduct their analytical inquiry: how they solve problems, a n d what is at stake in the solution. It exemplifies w h a t is required for building a bridge from the case to the rule, f r o m the rule to the principle that pertains to cases of a variety of classifications. M y general theory of analogy a n d contrast is fully exposed in the simple case so elegantly laid out here. T h e same mode of thought, articulated a n d explicitly set forth as clearly as it is before us, can be shown to pervade R a b b i n i c discourse throughout.

III. What are the Thought Processes that Link Particular Data to a General Question? N o w to my second question: what are the thought processes that in the R a b b i n i c sages' system of thought, within its rationality, selfevidently serve to link the particular data to general questions? In some settings, both the Halakhic a n d Aggadic writings define for us in so m a n y words the general proposition to which, through detailed cases, reference is made. These justify the effort, in cases where details are not explicitly linked to a general proposition, to do the same on our own. H e r e is such a case, in which the particularities cohere, so that a variety of classes of the law, deriving from a range of native Halakhic category-formations, serve to establish a governing principle. It is one that transcends the cases a n d would qualify as evidence of social thought. H e r e is how the sages present the proposition that u n d e r certain circumstances a m a n has got the right to take the law into his own hands where there will be a loss. This is a free-standing composition, not f o r m u l a t e d a r o u n d a p r o b l e m of M i s h n a h exegesis. As is my way, I indicate the use of Aramaic with italics, H e b r e w with plain type. I further identify through indentations the building blocks of the composite overall. I underscore the point at which the general theoretical issue of social thought is articulated a n d comes u n d e r systematic analysis. It is at the underlined statement, II.4.D. T h a t shows when we generalize on the basis of cases, we are not reading into the Rabbinic writing what is not there or intended to

10

C H A P T E R THREE

be there. W e are simply r e p e a t i n g in the case at h a n d w h a t the sages themselves articulate in o t h e r cases: the generalization e m b o d i e d in the rulings. BAVLI BABA Q A M M A 3 : 1 A - D

II.4

A.

B.

C.

D.

II.4/27B-28A

R. Hisda sent word to R. Nahman, "Lo, they have said, 'For kicking [another person] with the knee, [is assessed a penalty of] three selas; for kicking with the foot, five; for a blow with the saddle of an ass, thirteen.' What is the penalty for wounding with the blade of a hoe or the handle of a hoe?" He sent word, "Hisda! Hisda! Are you really imposing in Babylonia such extra-judicial fines as these [which you have no right to do over there]? Tell me the details of the case as it happened. " He sent word, "There was a well that belonged to two people, who used it on alternate days. One of them then went and drew water on a day that was not assigned to him. The other said, 'This is my day. ' The latter ignored him. So the other took the blade of a hoe and struck him with it." R. Nahman sent word, "Even if he hit him a hundred times with the blade of the hoe [it would not have mattered]. For even in the opinion of one who says. 'Someone may not take the law into his own hands. ' where there will be a loss, he has even right to do so. "

T h e principle of law that applies to the case is m a d e articulate at D. T h e basic issue is, does a p e r s o n have the right to take the law into his o w n h a n d s ? O p i n i o n is conflicted, b u t even in a c c o r d with the one w h o denies that right in general terms, there are exceptions, w h e r e one m a y act in his o w n defense. But settling the case does not suffice; we have n o w to investigate the g o v e r n i n g legal principle in its o w n terms. T h a t is the direction that the composite n o w takes. But at e a c h point, cases intervene, conflicting o p i n i o n registers. E. For it has been stated: F. R. Judah said, "A man has not got the right to take the law into his own hands." G. R. Nahman said, "A man has got the right to take the law into his own hands where there will be a loss." H. Now all parties concur that where there will be a loss, someone may take the law into his own hands. Where there is an argument, it concerns a case in which there will be no loss. R. Judah said, "A man has not got therightto take the law into his own hands. " Since there will be no loss, he can go to court. But R. Nahman said, "A man has got the right to take the law into his own hands where there will be a loss." Since he is acting in accord with the law anyhow, why take the trouble to go to court?

INTRODUCTION

11

N o w a s e c o n d a r y extension of the discussion takes over, with evid e n c e d r a w n f r o m o t h e r a u t h o r i t a t i v e d o c u m e n t s subjected to examination: Objected R. Kahana [to R. Judah's view], "Ben Bag-Bag I. says, Ά person should not go and retrieve his own property from the household of someone else, lest he appear to be a thief. But he should be ready in public to break his teeth and you may say to him, "I am seizing what is my own from the thief s possession'" [T. B.Q. 10:38]." [This then would contradict Judah's position.] J. [Judah] said to him, [28A] "True enough, Ben Bag-Bag is on your side. But he is a dissenting view, differing from rabbis. " K. R. Tannai said, " What is the meaning, anyhow, of break his teeth? It is, in court. " L. If so, the language, you may say to him, is inappropriate. Rather it should be, they [the court] may say to him/ So too, the language, I am seizing what is my own, is inappropriate. Rather, it should be, he is seizing what is his own/ M. So that's a problem. F u r t h e r cases deriving f r o m o t h e r classifications of H a l a k h a h intervene. E a c h f r e e - s t a n d i n g case is signaled by " c o m e a n d take n o t e , " which m a r k s a f u r t h e r case to be dealt with. W h a t is of special interest is the wide r a n g e of cases that p e r t a i n to the general principie. N.

Come and take note: In the case of an ox that climbed up on another one to kill it, and the owner of the one on the bottom came along and pulled out his ox, so that the one on the top fell and was killed—the owner of the bottom ox is exempt from having to pay compensation. Does this ruling not pertain to an ox that was an attested danger, in which case there is no loss to be expected? O. No, it speaks of an ox that was deemed innocent, and there is a considerable loss to be expected. P. If so, then look what's coming: If he pulled off the ox on top and it died, he is liable to pay compensation. But if the ox was deemed innocent, why should he have to pay compensation? Q . Because he should have pulled his ox out from underneath, and he did not do that. [Kirzner, Baba

12

CHAPTER THREE

R.

T.

Y.

Qamma (London, 1948: Soncino), ad loc.: He had no right to push the ox on top.] Come and take note: He who filled the courtyard of his fellow with jugs of wine and jugs of oil—the owner of the courtyard has every right to break the jugs in order to get out or break the jugs in order to get in. S. Said R. Nahman bar Isaac, "He breaks the jugs to get out only if a court says he may do so, he may break the jugs to get in only to get whatever documents he needs to prove his case in court." Come and take note: How on the basis of Scripture do we know that in the case of a slave whose ear had been bored [as an indication that he was in perpetual service, to the Jubilee year], the term of service of which has come to an end [with the Jubilee], the owner of which has been urging him to leave, and, in the process, injured him and done him damage, the owner is exempt from having to pay compensation? Scripture states, "You shall not take satisfaction for him who is...come again..." (Num. 35:12), meaning, for one who is determined to come again [as a slave, continuing his service], you will not take a ransom. U. Here with what sort of a case do we deal? It is a slave who was a thief [Kirzner: so the owner is protecting himself from a genuine loss]. V. Well, up to now he hasn't stolen anything, but now he's expected to go and steal? W. Yes, that's quite plausible, since up to now he was afraid of his master, but now that he is about to gofree,he isn't afraid of his master anymore. X. R. Nahman bar Isaac said, "At issue is a slave to whom his master gave a Canaanite serving girl as a wife. Up to this time it was a legitimate relationship, but once he is freed, it is not legitimate" [Kirzner: so the master may use force to eject him]. Come and take note: He who leaves a j u g in the public domain, and someone else came along and stumbled on it and broke it—[the one who broke it] is exempt. So the operative consideration is that he stumbled on it. Lo, if he had deliberately broken it, he would have been liable. [This is contrary to Nahman's view.] Z. Said R. Zjbid in the name of Raba, "In point offact, the same rule really does apply even if the defendant deliberately broke the jug. And the reason that the language, and stumbled on it, is used, is that the later clause goes on to say,

INTRODUCTION

13

And if [the one who broke it] was injured by it, the owner of the barrel is liable [to pay damages for] his injury. But that would be the case only if he stumbled on it, but not if he deliberately broke the jug. How come? The man has deliberately injured himself. So that is why, to begin with, the word choice was and stumbled on it. N o w the m a t t e r shifts f r o m taking the law into one's own hands where t h e r e is prospect of loss to taking the law into one's o w n h a n d s in general. AA. Come and take note: "Then you shall cut off her hand" (Dt. 25:12)—that refers to a monetary fine equivalent in value to the hand. Does this not speak of a case in which the woman has no other way of saving her husband but doing what she did [proving one may not take the law into one's own hands]? BB. No, it involves a case in which she can save her husband in some other way. CC. Well, if she cannot save her husband in some other way, would she be free of all liability? Then why go on to say, "And puts forth her hand" (Dt. 25:11)— excluding an officer of the court [from liability for humiliation that he may cause when acting in behalf of the court] ? Rather, why not recast matters by dealing with the case at hand, thus: Under what circumstances? When she can save her husband by some other means. But if she cannot save him by some other means, then she is exempt. DD. This is the sense of the passage: Under what circumstances? When she can save her husband by some other means. But if she cannot save him by some other means, then her hand serves as the agency of the court and she is indeed exempt. EE. Come and take note: He who had a public way passing through his field, and who took it away and gave [the public another path] along the side, what he has given he has given. But what is his does not pass to him [M. B.B. 6:7A-D]. Now if you maintain that someone may take the law into his own hands, then let the man just take a whip and sit there [and keep people out of his property]! FF. Said R. Zebid in the name of Raba, "It is a precautionary decree, lest he assign to the public a crooked path."

14

CHAPTER THREE

GG. R. Mesharshayya said, "It is a case in which he gives them a crooked path." H H . R. Ashi said, "Any path that is over off to the side is classified as a crooked path to begin with, since what is nearer for one party will be farther for another." II. If that's so, then why specify, But what is his does not pass to him? Why can't he just say to the public, "Take what is yours and give me what is mine?" JJ. That is because of what R. Judah said, for said R. Judah, "A path that the public has taken over is not to be disrupted." KK. Come and take note: A householder who designated peah at one corner of the field, and the poor come along and take the peah from another side of the field—both this and that are classified as peah. Now if you maintain that a person may take the law into his own hands, why should it be the fact that both this and that are so classified? j W let the man take a whip and sit there [and keep people out of his property]! LL. Said Raba, "What is the meaning of the phrase, both this and that are so classified? It is for the purpose of exempting the designated produce from the requirement of separating tithes. For so it has been taught on Tannaite authority: He who declares his vineyard to be ownerless and then gets up early in the morning and harvests the grapes is liable to leave for the poor the grapes the fall to the ground, the puny bunches, the forgotten ones, and the corner of the field, but is exempt from having to designate tithes." T h e rules set f o r t h as " c o m e a n d take n o t e " (plus s e c o n d a r y analysis) cover these native c a t e g o r y - f o r m a t i o n s of the H a l a k h a h : d a m ages b y chattel (N), negligence (R), personal i n j u r y (T), negligence (Y), t h e n , w i t h o u t r e g a r d to the possibility of loss, cases of p e r s o n a l i n j u r y (AA), e m i n e n t d o m a i n (EE), a n d conflict of claims b e t w e e n the h o u s e h o l d e r a n d the p o o r (KK). T a l m u d i c exposition, involving dialectical a r g u m e n t , does not get b e t t e r t h a n this! H e r e is a fine exercise in the f o r m a t i o n of a repertoire of cases d e e m e d to c o h e r e in a c o m m o n principle. T h e analytical p r o g r a m i m p a r t s c o h e r e n c e to the cases, a n d the persistent bias of the analysis—objecting in sequence to each case introduced to m a k e the same p r o p o s i t i o n — p o i n t s t o w a r d the g o v e r n i n g principle t h a t the c o m piler wishes to establish as n o r m a t i v e . N o t only so, b u t if I allege

INTRODUCTION

15

that the composite addresses the abstract principle, w h e n is it p e r mitted to take the law into one's o w n hands? it is only because the T a l m u d itself articulates the question. A n d I merely claim that, in c o m p a r a b l e cases of focused composites, it is entirely legitimate to p r o p o s e that the composite e m b o d i e s a b r o a d a n d e n c o m p a s s i n g principle subject to detailed analysis t h r o u g h particular cases. T h e s e cases show us h o w in o u r quest for the social n o r m s of the H a l a k h a h we m a y follow the sages' m o d e s of t h o u g h t , on the one side, a n d m a n n e r of analytical a r g u m e n t , on the other. T h e one case articulates w h a t is m o r e c o m m o n l y accessible only t h r o u g h h y p o thetical reconstruction: the bridge f r o m the case to the g o v e r n i n g rule, constructed through analogical-contrastive reasoning. T h e other case shows h o w the c h a r a c t e r of the composite itself b o t h identifies the abstract principle subject to discussion—here articulated in so m a n y w o r d s — a n d also signals the n o r m a t i v e view on the subject. T h e two cases show two aspects of the w a y in which, r e a d i n g the H a l a k h a h as a set of answers, we m a y discern the questions that precipitate analysis. H e r e the R a b b i n i c sages d o most of o u r work for us, not only choosing the cases but telling us the issue that, all together, they illuminate. W o u l d that the work at h a n d were so easy to accomplish!

IV. The First Teaching: Corporate Israel and the Individual Israelite O n c e we know the R a b b i n i c sages would p r o d u c e answers to the questions of general interest, issues that t r a n s c e n d detail a n d yield generalization, we ask ourselves, where would the sages find the data? W e n o w know the answer. W h e n the sages have chosen the a p p r o priate analogy, they then t u r n e d to p a r t i c u l a r bodies of established facts, which they f o r m e d into g o v e r n i n g principles. So too, guided by their facts a n d cognizant of their analogical-contrastive m o d e s of t h o u g h t , we m a y find o u r way f r o m details u p w a r d to those abstract c a t e g o r y - f o r m a t i o n s that c o m p r i s e the social t h o u g h t of the system. Answering that question brings us back to the first of the three teachings I p r o p o s e to identify a n d spell out. T h a t defines the m o d e l for t h e m e t h o d followed in the p r e s e n t w o r k as well. A brief review suffices. In the first p a r t of the project, the question I took u p out of social t h o u g h t viewed in the abstract c o n c e r n e d the relationship of the

16

CHAPTER THREE

individual to the community. 6 So I asked about the n o r m a n d the exception. I began by inquiring, does the Halakhic system deem the n o r m , for Israel, to be the condition of the individual, w h o is prior in the analytical process, or is the n o r m set by the corporate quality of Israel. So too, is the n o r m for h u m a n existence, individuality or community. I readily f o u n d that individualism defines the n o r m for all humanity, with the corporate character of Israel the key to Israelite exceptionalism. Israelites are unique in humanity in that, when formed into a group, they constitute a whole that exceeds the sum of the parts. C o r p o r a t e Israel forms a moral entity unto itself, which transcends the condition of individual Israelites that comprise that corporate entity. T h e n — w i t h the corporateness o f l s r a e l the n o r m , the individuality of the Israelite requiring explanation a n d articulation—I considered as my key-problem the issue of where a n d how the H a l a k h a h sorts out the relationships of the individual to the community. Where does the H a l a k h a h in ordering society accord recognition to the individual, a n d how does it legitimate acts of individuation. I proposed to limn the realm of responsible action a n d particular responsibility assigned by the H a l a k h a h to each person. 7 This required an account of where the H a l a k h a h accords recognition to the individual, and how the H a l a k h a h defines the community. I h a d to determine the n o r m a n d p r i m a r y concern, the individual a n d his freedom, or the (>

Selecting that question expressed my basic assessment of the Rabbinic Halakhah as focused on the interiorities of Israel's existence, the Aggadah on the exteriorities. This is spelled out, for the Halakhah, in the Introduction part of The Halakhah of the Oral Torah. A Religious Commentary. Introduction. And Volume One. Part One. Between Israel and God. Faith, Thanksgiving: Tractate Berakhot. Enlandisement. Tractates Kilayim, Shebi'it, and Orlah. (Atlanta, 1997. Scholars Press for South Florida Studies in the History ofjudaism). [The remainder of this project, originally planned for twentyfour volumes, was recast as The Halakhah: An Encyclopaedia of the Law ofjudaism.‫[־‬. I could think of no more fundamental question for a theory of the social order than the way in which the social order is conceived to be composed, or, in gross terms, which comes first, the individual or the community? And which takes priority? Certainly for the contemporary West, with its radical individualism of autonomy, the single most striking trait of a system responsive to corporate responsibility to God is to be located in its assessment of individualism. Seeing that assessment in the framework of mythic monotheism defines the next step in the matter; but that is self-evident. ' I did not focus on the distinction of persons by sex, but that formed the subtext of the presentation. T h e reason I did not make that a major concern is, when it comes to individuation oflsrael into Israelites, the Halakhah at many, though not all, points does not distinguish male from female, or distinguishes in tangential ways. T h a t will strike readers of Part O n e as self-evident too.

INTRODUCTION

17

c o m m u n i t y and its public interest. And that determination required identifying what, precisely, the H a l a k h a h means by " c o m m u n i t y . " In the framework of systemic inquiry in J u d a i s m , answers to all of these questions could come only f r o m the native category-formations of the H a l a k h a h . T h e details of those answers would emerge from the concrete Halakhic cases and rulings. W h a t I found in those details was, for the H a l a k h a h , all h u m a n i t y is comprised by isolated individuals, each responsible to G o d in some specific dimensions of life. But as to a collectivity, a social entity transcending the dimensions of the autonomous individual and forming of individuals a moral entity on its own, one the sum of the whole of which exceeded that of the parts, only Israel qualifies. I was struck by the ambiguity of the language, which speaks of "Israel" for both the Israelite individual a n d for "all Israel," the Israel that forms a corporate c o m m u n i ty. Where and how the Halakhah speaks of the one, then of the other, then of the two together—that forms the p r o g r a m of my account of the First T e a c h i n g . As always in Halakhic studies, Scripture, if interrogated, will certainly agree. Prophecy, from Moses forward, and the Halakhah from the M i s h n a h o n w a r d , concur that the condition of "all Israel" dietates that of each individual within Israel. All participate in a comm o n action, whatever the individual's role. And, as with A c h a n in J o s h u a 7, corporate Israel suffers by reason of an individual's acts. T h e two components of the T o r a h , written a n d oral, further concur that each Israelite bears responsibility for what he or she as a matter of deliberation and intention chooses to do. If individuals were conceived as automatons, always subordinated agencies of the community, or if the Israelite c o m m u n i t y were contemplated as merely the sum total of individual participants a n d culture the aggregate of individual predilection, a particular social teaching would hardly d e m a n d attention. But Scripture, continued in the Mishnah, Talmuds, a n d Midrash, insists that Israelites are individually responsible for what they do, a n d f u r t h e r that corporate Israel on its own, not only as the sum of individual actions, forms a moral entity subject to j u d g m e n t . H o w to sort out these intersecting matters, then, the obligations of the community, the responsibilities of individuals? We began the inquiry into the system of social thought set forth by the sages within their larger structure of theology with a simple question: what, exactly, do sages m e a n by "Israel"? T h a t question is precipitated by an ambiguity in the language of the R a b b i n i c

18

CHAPTER THREE

writings. T o speak of the individual Israelite a n d to speak of the collectivity, Israel, the sages use the same w o r d , "Israel." 8 In some contexts, it refers to "all Israel," a n d in others, to a particular m e m b e r of the Israelite c o m m u n i t y . "All Israel possesses a p o r t i o n in the world to c o m e " (M. S a n . 10:1A) c a n m e a n , "all Israelites" a n d also " t h e entirety of Israel," a n d I h a v e n o d o u b t w h a t s o e v e r that that is precisely w h a t it does m e a n . T h e articulation of the s t a t e m e n t refers to persons a n d to entire classes a n d generations, so the a m b i g u ity persists. W h a t I w a n t e d to know, t h e n , was, h o w does the social t e a c h i n g of R a b b i n i c J u d a i s m hold together doctrines of individual obligations to H e a v e n a n d m u t u a l responsibilities, on the o n e side, with all Israel's c o m m i t m e n t s a n d public convictions, on the other? T h a t is a question t h a t a n y systematic t e a c h i n g for the social o r d e r will address, if that t e a c h i n g b o t h recognizes the individuality of persons a n d focuses u p o n the social o r d e r to begin with. T h e social teaching of n o r m a t i v e J u d a i s m holds persons responsible for their actions, a n d it f u r t h e r takes as a given that c o r p o r a t e Israel forms a responsible m o r a l entity as well. So the s h a p e a n d structure of the d a t a in h a n d — S c r i p t u r e , M i s h n a h , T a l m u d s , M i d r a s h — l e a v e n o d o u b t that the issue addressed at the outset of this study is f u n d a m e n t a l a n d not anachronistic. T o answer the question, I p r o v e d , first of all, that the social teaching of R a b b i n i c J u d a i s m does individuate, recognizing the p e r s o n h o o d of Israelites, not only their s u b o r d i n a t e d position within corp o r a t e Israel. I showed h o w p a r t i c u l a r c a t e g o r y - f o r m a t i o n s provide for distinctive classifications of individuation, b o t h merely legitimate a n d systemically n o r m a t i v e . T h i s I did in C h a p t e r T w o , w h e r e I distinguished individuality, w h i c h the H a l a k h a h recognizes a n d legitimates in certain contexts a n d m e d i a , f r o m utter p e r s o n a l a u t o n o m y , for which I c a n find n o analogies in c o n c r e t e H a l a k h a h at all. For reasons articulated in C h a p t e r T w o , I a r g u e d that the systemic logic commences with the i n d i v i d u a t e d p e r s o n , w h e t h e r Israelite or g e n t i l e , — a n d not with c o r p o r a t e Israel. T h e n o r m is the individual, in the m o d e l of A d a m , Eve, N o a h , a n d so forth. T h e social a n o m 0

Women are ordinarily "bat Israel," which is commonly rendered, "a daughter of Israel," but can sustain "a daughter of an Israelite man," in the premise that women generally find their position in relationship to men, e.g., as daughter, wife, or mother. In some documents, Sifra for example, there is a consistent effort to show that " m a n " (Adam, ish) in Hebrew stands for both sexes.

INTRODUCTION

19

aly is the corporate c o m m u n i t y that is subject to G o d ' s concern a n d judgment, that is, the unique entity, Israel. T h e r e is no social teaching, in Rabbinic J u d a i s m , that concerns itself with the individual and the c o m m u n i t y in general, only with the individual Israelite and corporate Israel. T h a t is why, in C h a p t e r T h r e e , I proceeded to the logically subordinate question that follows. It is, since the individual—whether Israelite, whether gentile—forms the starting point, precisely where a n d how does corporate Israel take shape? T h a t produces Halakhic answers, within the H a l a k h i c native category-formations, to the question, where and how does corporate Israel nurture c o m m u n i t y a m o n g individual Israelites, p r o d u c i n g an answer to the problem of defining Israel, both individual a n d corporate, as the H a l a k h a h in its classical formulation does. O n c e I established the hegemony of corporate Israel over the individual Israelite a n d showed how this is effected, I turned to the logical next questions. T h e first was, how does the system negotiate legitimate difference, meaning, are there systemic remissions, areas where those Israelites that to not live u p to the n o r m s are sustained? T h e second and last question was, how does the social teaching of Rabbinic J u d a i s m identify those matters beyond any negotiation, where corporate Israel asserts its hegemony and realizes it? Here I identified, also, the ultimate union of corporate Israel with the individual Israelite: in eternal life, the given of the existence of the eternal corporate Israel, and the goal of the existence of the individual Israelite and the promise that awaits. So I claimed to show that the question of how corporate Israel and the individual Israelite relate, answered in V o l u m e O n e , is native to the category-formations of the H a l a k h a h and is answered by those category-formations, properly construed. But it is also a question of acutely contemporary interest. T h e issue at h a n d concerned how the sages' contemplated social order m a d e provision for individual idiosyncrasy and personal predilection—and where and why, for what systemic reasons of a theological character—it did not. For in our own times people reflect on a c o m p a r a ble question: At what point does the individual's interest override that of the community, and when and where must the individual give way to the c o m m o n good? T h a t is not precisely the way that the R a b b i n i c sages would have f r a m e d the issues of, e.g., Sheqalim, T a a n i t and Berakhot, of Nazir a n d N e d a r i m , on the one side, or

20

CHAPTER THREE

Erubin, Demai, a n d T o h o r o t , on the other (let alone Negaim and Sanhédrin, as I also showed). But these tractates, the exposition of pertinent parts of which defined the shank of the book a n d e m b o d ied its a r g u m e n t — r e p r e s e n t a c o n t e m p o r a r y rephrasing of the comparable issues of personal autonomy versus the public interest, to state matters in extreme form. T h e s e represent questions confronting religions of the West f r o m the Protestant Reformation for sixteenth century G e r m a n Christianity a n d the J u d a i c R e f o r m a t i o n for nineteenth century G e r m a n J u d a ism. Both undertook to validate change d e e m e d urgent by appeal to individual conscience over collective conviction a n d institutional interest. E a c h in its theology affords a u t o n o m y to the radically isolated individual, embodied in the doctrine of the priority of personal conscience. In R e f o r m J u d a i s m the Israelite possesses a u t o n o m y of standing and judgment, so that what is personally meaningful forms a validating criterion. But can R a b b i n i c J u d a i s m in its classical formulation contemplate such conceptions? Since, as I said, the language of the H a l a k h a h for individual Israelite and for all Israel affords only a single word, "Israel," and since the H a l a k h a h concerns itself with the collective life of its Israel, we had every reason in V o l u m e O n e to ask a simple question. W h e r e a n d how does the H a l a k h a h afford recognition to the individual Israelite at all: his or her perspective, j u d g m e n t , attitude a n d taste? Protestant c h a r a c t e r i z a t i o n s — e . g . , Emil S c h u e r e r ' s f a m o u s antiSemitic caricature in his c h a p t e r of "life u n d e r the law' 5 —of J u d a ism as a religion for robots a n d conformists underscore the urgency of the issue. N o t only so, but Protestant polemics against R o m a n Catholic Christianity a n d its tradition of hierarchy a n d obedience, a n d R e f o r m J u d a i c polemics against (what it concedes to be) O r t h o dox J u d a i s m , recapitulate in controversial terms the same persistent, perennial issue of the free society: individual rights balanced against collective concerns. So the issue emerges out of m o d e r n a n d cont e m p o r a r y theological polemic. But—even beyond the data reviewed in the shank of Volume O n e on the native category-formations of the H a l a k h a h — t h e question is native to R a b b i n i c J u d a i s m . For Scripture underscores the puzzle. T h e T o r a h wants all Israel to constitute a kingdom of priests a n d a holy people. T h e prophets f u r t h e r m o r e invoke G o d ' s wrath on the c o m m u n i t y for the c o n d u c t of the individual. T h a t principle of collective responsibility for private action leaves little space for the

INTRODUCTION

21

non-conforming personality. It is exemplified, as I said earlier, in the exchange of J o s h u a a n d Achan at J o s h . 7. Israel lost a battle, and J o s h u a turned to G o d to ask why he h a d a b a n d o n e d Israel. T o this G o d replies, "Israel has sinned; they have transgressed my c o v e n a n t . . . t h e y have taken some of the devoted things; they have stolen a n d lied a n d put them a m o n g their own stuff. T h e r e f o r e the people of Israel cannot stand before their enemies...I will be with you no more, unless you destroy the devoted things from a m o n g you" (Josh. 7:10-12). J o s h u a then inspects the various households: " H e who is taken with the devoted things shall be b u r n e d with fire, he a n d all that he has, because he has transgressed the covenant of the Lord and because he has done a shameful thing in Israel" (Josh. 7:14-15). Achan was singled out, found to be guilty by his own confession, and punished. T h e union of Israel and Israelite in G o d ' s statement that "Israel has sinned" then embodies the identification of the individual with corporate Israel—and vice versa. T h e point of the story for our purpose was simple. All Israel suffers because of the conduct of an individual. T h e n the individual bears responsibility for the fate of the c o m m u n i t y a n d owes the c o m m u nity conformity to the law. T h a t raises the question, how does the H a l a k h a h provide for a balance between the requirements of the collectivity a n d the rights of the individual, if any? And, to come to our starting point, precisely how does the individuality of the Israelite find its legitimation, so that the Israelite, not only corporate Israel, forms a moral entity, subject to divine j u d g m e n t by reason of his exercise of free will? So I began with an account of where and how the Israelite exercises legitimate rights of individuation, individuation and personal a u t o n o m y . I proceeded to a picture of how corporate Israel realizes itself: how the individual takes a place within the social construct, Israel; how the individual situates himself within Israel; how the priority of the c o m m u n i t y is nurtured, its bonds reinforced, a n d how the H a l a k h a h defines Israel, individual a n d corporate. T h e n I turned to the Halakhic response to Israelites w h o do not live u p to the n o r m s of c o r p o r a t e Israel: a c c o m m o d a t i n g acceptable difference, negotiating with widespread indifference to the law, a n d matters of interstitiality; I concluded with an account of where and how the Israelite and corporate Israel cohere. M y final picture portrayed the Halakhic p r o g r a m for Israelites who deliberately transgress the norms of corporate Israel, and how the Halakhah responds to that exigency: removing the aberrant individual

22

CHAPTER ONE

a n d restoring the deliberately sinful individual to the c o m m u n i t y of Israel; the responsibility of the individual when the c o m m u n i t y collectively errs; a n d finally, I e n d e d with what I think is the system's climax: the account of eternal Israel a n d the individual Israelite's conquest of death. So m u c h for the first teaching: its p r o g r a m and salient points.

V. The Second Teaching: Resolving Conflict [a] In General Terms For the same reason that the Rabbinic-Judaic H a l a k h a h presents no teaching about the individual and the community in general, but only about the individual Israelite a n d corporate Israel, Rabbinic J u d a ism also offers no abstract doctrine on the subject at h a n d . But the details b e a r within themselves signals of the shape and structure of a large, general theory of matters. W h e r e does the system find relationships of conflict that require close analysis a n d principled resolution? It is within corporate Israel itself, not between Israel a n d "the gentiles." T h e first thing we observe in the detail concerns the focus of the system, the point at which we identify the source of generative tensions. It is not on the outer borders, between Israel a n d the idolaters, a.k.a., the gentiles. T h e Halakhic system focuses u p o n conflict that takes place within corporate Israel a n d between not so m u c h individual Israelites as classifications of Israelites. T o be sure, the Halakhic category-formations pay attention also to that other half of humanity, the nations. T h a t is the part that faces G o d one by one, but not all together a n d not all at once. But nearly the whole of the second social teaching concerns itself with issues particular to conflict within Israel. As I shall show in section vi, moreover, the range of conflicts between persons that the H a l a k h a h identifies for special consideration covers relationships that are particular to Israelites as a corporate community. T h o s e relationships define the category-formations of the H a l a k h a h on resolving conflict. Within those category-formations, primarily focused on corporate Israel's interior structure, statements pertinent to conflict between Israelites and gentiles and between one gentile and another find their place; it is a modest one. It suffices to say that the differences between resolution of conflict between individual Israelites and the same between individual gentiles are treated as minimal, so a single stan-

23

INTRODUCTION

dard generally governs.‫ יי‬T h a t is, a standard of fairness and equity is assumed to prevail a m o n g Israelites and a m o n g gentiles as well. 10 T h e modes of the resolution of conflict contemplated by the R a b binic H a l a k h a h for the governance of the social order of idolaters coincide with those that pertain to Israel in basic ways. Specifically, the gentiles are required to set up courts of justice. So a single n o r m of justice, effected t h r o u g h e n d u r i n g social institutions, prevails for idolaters as m u c h as for Israelites. These gentile courts adjudicate in three dimensions of this-worldly relationships. T h a t is, God's c o m m a n d m e n t s to N o a h ' s heirs encompass the p r o h i b i t i o n not only of idolatry a n d b l a s p h e m y , which concern relationships between G o d and the individual m a n , whether Israelite or gentile, but fornication, bloodshed, and thievery, and these define the responsibility a n d jurisdiction of gentile, as m u c h as of Israelite, courts. T h e y are constituted to impose sound public policy upon relationships between individuals, which are then not to tolerate fornication, bloodshed, or thievery. A brief review of the doctrine of Rabbinic J u d a i s m on social policy required by G o d of gentiles, whether individually or collectively, will p r e p a r e the way for the f u n d a m e n t a l point that that doctrine yields for our inquiry. A brief exposition of the principal statements on the matter in the Halakhic literature suffices. G o d cares for gentiles as for Israel, he wants gentiles as m u c h as Israel to enter the kingdom of H e a v e n , a n d he assigns to gentiles opportunities to evince their acceptance of his rule. O n e of these c o m m a n d m e n t s is not to curse God's name: BAVLI SANHÉDRIN 7 : 5

A. B. C.

I.2/56A

"Any man who curses his God shall bear his sin" (Lev. 24:15): It would have been clear had the text simply said, "A man." Why does it specify, "Any"? It serves to encompass idolaters, who are admonished not to curse the Name, just as Israelites are so admonished.

N o t cursing G o d , even while worshipping idols, seems a minimal 9

T h e r e is no systematic composition on the resolution of conflict between individual Israelites and individual gentiles, just individual sayings. These add up to a systematic account of how Israelites are favored, in Israelite courts, over gentiles. T h e r e also are some random comparisons of the procedures of Israelite courts and those of their gentile counterparts. Neither category of Halakhic rule rises to the level of cogency, and none constitutes the foundation of a category-formation. 10 But not in conflicts between Israelites and gentiles, as I said in the preceding note.

24

CHAPTER

ONE

expectation. T h e m a x i m a l c o u n t e r p a r t is for gentiles to cease to worship idols a n d to worship G o d , w h o craves their love. F r a m i n g matters in such language would violate the basic rules of thought and expression that govern for Scripture a n d sages' writings alike: move f r o m case to rule to abstract principle occasionally, but ordinarily, the case suffices. But, in fact there are seven such religious obligations that apply to the children of N o a h : TOSEFTA-TRACTATE ABODAH ZARAH

A. B.

8:4-6

Concerning seven religious requirements were the children of Noah admonished: setting up courts of justice, idolatry, blasphemy [cursing the Name of God], fornication, bloodshed, and thievery.

W e now proceed to show how each of these religious obligations is represented as applying to gentiles as m u c h as to Israelites: C.

Concerning setting up courts of justice—how so [how does Scripture or reason validate the claim that gentiles are to set up courts of justice]? D. Just as Israelites are commanded to call into session in their towns courts of justice. E. Concerning idolatry and blasphemy—how so? F. Concerning fornication—how so? G. "On account of any form of prohibited sexual relationship on account of which an Israelite court inflicts the death-penalty, the children of Noah are subject to warning," the words of R. Meir. H. And sages say, "There are many prohibited relationships, on account of which an Israelite court does not inflict the death-penalty and the children of Noah are [not] warned. In regard to these forbidden relationships the nations are judged in accord with the laws governing the nations. I. "And you have only the prohibitions of sexual relations with a betrothed maiden alone." T h e systemization of Scripture's evidence for the stated proposition continues: 8:5

A. B. C.

For bloodshed -how so? A gentile [who kills] a gentile and a gentile who kills an Israelite are liable. An Israelite [who kills] a gentile is exempt. Concerning thievery?

INTRODUCTION

D. E.

8:6

A. B. C. D. E.

25

[If] one has stolen, or robbed, and so too in the case of finding a beautiful captive [woman], and in similar cases: a gentile in regard to a gentile, or a gentile in regard to an Israelite—it is prohibited. And an Israelite in regard to a gentile—it is permitted. Concerning a limb cut from a living beast—how so? A dangling limb on a beast, [which] is not [so connected] as to bring about healing, is forbidden for use by the children of Noah, and, it goes without saying, for Israelites. But if there is [in the connecting flesh] sufficient [blood supply] to bring about healing, it is permitted to Israelites, and, it goes without saying, to the children of Noah.

As in the case of Israelites, so the death penalty applies to a N o a hide, so b. San. 7:5 I . 4 - 5 / 5 7 a : O n account of violating three religious duties are children of N o a h put to death: on account of adultery, m u r d e r , a n d blasphemy. 5 " R . H u n a , R. J u d a h , a n d all the disciples of R a b say, " O n account of seven c o m m a n d m e n t s a son of N o a h is put to death. T h e All-Merciful revealed that fact of one of them, a n d the same rule applies to all of t h e m . " U p to this point, then, it is clear that a single standard applies to both components of humanity, the gentiles, Israel—but with opposite effect: S1FRÉ Τ Ο D E U T E R O N O M Y

1.

A. B.

C. D. E. F.

CCCXLIII:IV.1FF.:

Another teaching concerning the phrase, "He said,'The Lord came from Sinai''': When the Omnipresent appeared to give the Torah to Israel, it was not to Israel alone that he revealed himself but to every nation. First of all he came to the children of Esau. He said to them, "Will you accept the Torah?" They said to him, "What is written in it?" He said t Ū them, '"You shall not murder' (Ex. 2 0 : 1 3 ) . " They said to him, "The very being of'those men' [namely, us] and of their father is to murder, for it is said, 'But the hands are the hands of Esau'"(Gen. 2 7 : 2 2 ) . 'By your sword you shall live' (Gen. 2 7 : 4 0 ) . "

At this point we cover new ground: other classes of gentiles that reject the T o r a h ; now the T o r a h ' s own narrative takes over, replacing the

26

CHAPTER ONE

known facts of world politics, such as the earlier account sets forth, a n d instead supplying evidence out of Scripture as to the character of the gentile g r o u p u n d e r discussion: G.

So he went to the children of Ammon and Moab and said to them, "Will you accept the Torah?" H. They said to him, "What is written in it?" I. He said to them, '"You shall not commit adultery' (Ex. 20:13)." J. They said to him, "The very essence of fornication belongs to them [us], for it is said, 'Thus were both the daughters of Lot with child by their fathers' (Gen. 19:36)." K. So he went to the children of Ishmael and said to them, "Will you accept the Torah?" L. They said to him, "What is written in it?" M. He said to them, '"You shall not steal' (Ex. 20:13)." N. They said to him, "The very essence of their [our] father is thievery, as it is said, 'And he shall be a wild ass of a man' (Gen. 16:12)." O. And so it went. He went to every nation, asking them, "Will you accept the Torah?" P. For so it is said, "All the kings of the earth shall give you thanks, Ο Lord, for they have heard the words of your mouth" (Ps. 138:4). Q. Might one suppose that they listened and accepted the Torah? R. Scripture says, "And I will execute vengeance in anger and fury upon the nations, because they did not listen" (Mic. 5:14). At this point we turn back to the obligations that G o d has imposed upon the gentiles; these obligations have no bearing upon the acceptance of the T o r a h ; they form part of the g r o u n d of being, the condition of existence, of the gentiles. Yet even here, the gentiles do not accept G o d ' s authority in matters of natural law: S.

T.

And it is not enough for them that they did not listen, but even the seven religious duties that the children of Noah indeed accepted upon themselves they could not uphold before breaking them. When the Holy One, blessed be He, saw that that is how things were, he gave them to Israel.

N o w comes a n o t h e r parable, involving not a king but a c o m m o n person: 2.

A.

The matter may be compared to the case of a person who sent his ass and dog to the threshing floor and loaded up a letekh of

INTRODUCTION

B. C.

D.

27

grain on his ass and three seahs of grain on his dog. The ass went along, while the dog panted. He took a seah of grain off the dog and put it on the ass, so with the second, so with the third. Thus was Israel: they accepted the Torah, complete with all its secondary amplifications and minor details, even the seven religious duties that the children of Noah could not uphold without breaking them did the Israelites come along and accept. That is why it is said, "The Lord came from Sinai; he shone upon them from Seir."

T h e Halakhic a n d Aggadic sources then concur that gentiles are required to set u p courts of justice, which are charged with maintaining the social order in the f u n d a m e n t a l aspects that have been signaled out so explicitly: property rights, family rights, and the right to life. These belong to everyone, idolater and Israelite alike. So much for the generality of humanity: individual idolaters, individual Israelites. T h e s e facts carry us to the task at h a n d , It is to identify the category-formations that define the social thought, on relationships between persons, set forth by Rabbinic J u d a i s m . A single question suffices to yield the information we now require. Since as individuals the gentiles a n d the Israelites are subject to sanctions for committing fornication, bloodshed, or thievery, do we find native category-formations of the H a l a k h a h that pertain to the generality of humanity? T h e y would (in theory) be category-formations that exp o u n d the resolution of conflict such as results from fornication or thievery or m u r d e r . T h e answer, obviously, is that we do not. N o n e of these forms the center of a detailed exegetical exercise; all of them take a subordinated position within the principal category-formations of the H a l a k h a h . So they form pieces of a whole they do not define. T h e y constitute part of the b a c k g r o u n d for the exegesis of other category-formations altogether. As a m a t t e r of fact, to the matters of m u r d e r , fornication, a n d thievery, is devoted not a single native category-formation of the H a l a k h a h in the Mishnah-Tosefta. N o r do we find even those categories as the focus of the large-scale composites, something m o r e ambitious than a couple of routine compositions, that in the two T a l m u d s set forth massive topical appendices. T o show what I m e a n , I point to the principal part of the R a b binic Halakhic system, the speciation of the genus, mankind, into

28

CHAPTER ONE

Israel and gentile. N o w there is no native category-formation devoted to "gentiles," e.g., to the seven c o m m a n d m e n t s assigned to them, hence, also, none for the relationships involving murder, fornication, or thievery between or a m o n g gentiles, or between gentiles a n d Israelites. All of the native category-formations of the H a l a k h a h concern themselves with Israel. W h e r e the gentiles do form a principal part of a category-formation, the place is defined by the systemic task of exegesis oflsrael. T h e gentiles therefore figure—predictably— only in the one devoted to Israelites' relationships with idolatry. T h e n the gentiles figure in that native category-formation when the gentiles e m b o d y w h a t defines t h e m as such: as gentiles. T h a t is, gentiles form a subset of a principal Halakhic category-formation at the particular m o m e n t s or occasions at which gentiles are practicing idolatry—a very different thing, a systemic definition indeed. T h a t is tractate A b o d a h Z a r a h , where, by the way, the seven c o m m a n d ments come u n d e r discussion—but then, in the Tosefta, not in the Mishnah." H o w then do fornication, murder, a n d stealing figure? Rarely and casually. W e do find Halakhic category-formations, e.g., on M a r riage-contracts (Ketubot) but not on fornication. W e possess wellc r a f t e d c a t e g o r y - f o r m a t i o n s that e n c o m p a s s m o d e s of p u n i s h i n g manslaughter (Makkot) and the conduct by Israelite courts of m u r der (criminal) trials contrasted with civil trials (Sanhédrin) but n o n e on bloodshed on its own. T h e H a l a k h a h builds with category-formations focused on conflict over property in large and encompassing structures—but only casually on thievery in particular. All three category-formations that pertain to h u m a n i t y in general find a place within m u c h m o r e complex constructions of the H a l a k h a h . N o n e , on its own, defines a free-standing native category-formation of the H a l a k h a h or corresponds to one. W h y this, not that? T h e reason for the one, not the other, is simpie. T h e Halakhah elaborately differentiates within Israel and a m o n g types of relationships of conflict a m o n g Israelites. T h a t is because the H a l a k h a h builds its structure u p o n , a n d designs its system for, the unique social entity, corporate Israel. So the upshot is obvious. T h e relationships of individual Israelites to corporate Israel, define 11

But that is not the sole point at which the seven commandments assigned to the Noachides are analyzed in the Halakhic discourse, and an account of why the topic figures where it does- and does not figure where it is omitted but can have found a place—would be of interest for systemic analysis.

INTRODUCTION

29

the generative problematic of the Halakhah. Its category-formations find their cogency and logic in the constitutive c o m p o n e n t s of corporate Israel. T h e n the merely individual, undifferentiated transactions—fornication, bloodshed, thievery—cannot serve. W h y should this be the case? T h e Halakhah does not organize data and construct large-scale category-formations to encompass gentiles' counterparts (let alone conflict between an Israelite a n d a gentile), for a f u n d a mental reason. T h a t is because the social order embodied by Israel d e m a n d s distinctions a n d foci of differentiation that the social order embodied by gentiles does not require. T h e r e is no categorical correspondence. And we already know the reason: corporate Israel imposes upon individual Israelites a set of supererogatory considerations, a set of contexts and concerns, to which the social entities (not "nations," "not peoples," in the Israelite sense) formed by gentiles exhibit no counterpart. And that fact brings us to our task: identifying the native category-formations of the Halakhah. These will portray in concrete terms the principles of social theory on the resolution of conflict subject to translation into public policy f r a m e d in abstract, general terms.

VI. The Second Teaching: Resolving Conflict [b] within Israel in Particular By "Israel in particular" I refer to conflict defined in the context of corporate Israel: its public life and activities. At issue in that context is the social order that the Halakhic system conceives corporate Israel to constitute. W h e n , therefore, in the setting of the resolution of conflict we speak of "Israel in particular," I do not m e a n , the happenstance that two or m o r e J e w s (whether or not d e e m e d "Israel" by the Halakhah) 1 2 come into conflict. N o r do I refer to 12

In his The Beginnings 0J Jewishness. Boundaries, Varieties, Uncertainties. S h a y e J . D. Cohen (Berkeley and Los Angeles, 1999: University of California Press) misses this distinction altogether, which accounts for the indeterminate and diffuse resuits he produces on every topic he discusses. Everybody someone calls a Jew is the same as everybody else, and everything attests to a single "Judaism" (or, worse still, ethnic "Jewishness"), and nothing pertains. What confusion! T h a t is because he sees as undifferentiated what is, in fact, a mass of quite diverse persons, subdivided into category-formations (cultural or otherwise) that clearly differentiate one group from another. T h a t "Jew" or "Jewish" figures for them all turns out to rest

30

CHAPTER ONE

two or m o r e Israelites in r a n d o m encounters, that is, episodic narratives of contention. T o count, a conflict must be designated for conflict-resolution within the categorical-structure of the Halakhic system. So I refer to two Israelites in conflict that the Halakhah deems of systemic interest, for which the H a l a k h a h legislates. Moving f r o m the r a n d o m a n d theoretical to the particular a n d the concrete, we ask for guidelines in selecting the correct categoryformations. W h a t embodies the J u d a i c social teaching on conflict is two bodies of H a l a k h a h . T h e s e pertain, first, to the kinds of conflict for the resolution of which the system provides: what types of conflict, within which classifications of Israelite, form the focus of interest? T h e detailed laws of the Halakhic system will f u r t h e r convey an account of why these particular kinds of conflict matter a n d how they are to be resolved. T h e system identifies its issues, and when we can explain why this, not that, we grasp the logic of the system. I refer to what the H a l a k h a h through its concrete cases has to teach us, which is, the systemic logic a n d its extenuation into the details of ordinary transactions. T h e upshot is, we move f r o m the engagements of corporate Israel to those of individual Israelites. W h y start with the perspective of corporate Israel a n d impose that vision u p o n all else? It is because, we now realize, the Halakhic category-formations of Rabbinic J u daism subordinate the individual Israelite to corporate Israel. T h e Israelite is located within coordinates established by corporate Israel. T h a t is because the corporate-ness of corporate Israel defines what is distinctive about the Israelite, the individuality of the Israelite, what is c o m m o n for the Israelite and the idolater. T h e governing consideration then is clear. T h e Halakhic category-formations compose a structure in which corporate Israel forms a moral entity that transcends the individual Israelites comprising that entity. So the corporateness of Israel imposes its imperative u p o n the Israel-ness of individual Israelites, who, absent that distinguishing, shared trait, from the perspective of society are no different from gentiles: individuals, each responsible for himself alone, none responsible for all, before God. T h e s e somewhat abstract remarks lead to a very concrete point. It is, when it comes to the identification a n d resolution of conflict on nothing more than an accident of context. One person's "Jew" is another person's "heretic," in religious context, or "highly qualified mercenary soldier," in political settings.

INTRODUCTION

31

between a n d a m o n g persons, the starting point for the R a b b i n i c Halakhic category-formations can only be the perspective of corporate Israel. T h a t starting point will find its location in the public life of corporate Israel, not the individual lives of private persons, rand o m Israelites. By that I m e a n the following, which defines the entire project at h a n d a n d deserves heavy emphasis: Only those conflicts between two, or among three or more, Israelites that engage the interests of corporate Israel will define the principal parts of the Halakhic categorical structure encompassing conflict-resolution. O t h e r conflicts will receive attention to be sure, but that is ordinarily tangential to the main concern. It is not categorical, not comprehensive. Specifically, those conflicts in which c o r p o r a t e Israel recognizes no public interest—no pertinence to the commonwealth— gain only episodic, routine attention. T h e y will come to resolution, within the H a l a k h a h , in simple a n d ordinary ways. This will happen by, e.g., invoking considerations merely of generic fairness or equity. T h e y will generate the amplification of no principal category-formations. W h e r e equity, fairness, and similar universals define outcomes without the intervention of the distinctive considerations attendant u p o n the participation of corporate Israel, there the system speaks in banalities. T h e n the differentiation between Israelite a n d gentile will prove a systemic anomaly: a distinction where there is no important difference. 1 5 But for the H a l a k h a h viewed whole, conflicts between or a m o n g Israelites that find a place within the categorical structure represent distinctions yielding important differences. T h a t is because the distinctions in detail rest u p o n those categorical differences. W h e r e the system engages in complex and elaborate exegesis of principles, elaborating its category-formations and exploring the ramifications in the detailed cases thereof, instantiating the rationality a n d logic that govern throughout, there we find ourselves at the heart of the matter. T h e n , since the generative logic of the system, yielding the category-formations a n d their exegetical tasks reveals itself only in the concrete data of cases and rules, facts emerge clearly. These facts

13

T h e explicit favoritism shown to the Israelite over the gentile in Israelite courts shows where the system breaks down, and the inclusion, in Talmudic composites, of compositions that explicitly condemn that favoritism and find it beyond all rationality indicates the compositors' own, negative judgment of the substance of the Halakhah.

32

CHAPTER ONE

permit us to tease out of details the main traits of the system on the topic at h a n d . T h e n to pursue the second Social T e a c h i n g of Rabbinic J u d a i s m , we have to ask, what are the relationships for which the H a l a k h a h provides heavy-weight conceptions expressed in elaborate exegesis of principles, and what are the conflicts between persons that are treated casually and in a routine m a n n e r ? But f r a m i n g the question in those terms, we run the risk of begging the question—or of fabricating our answer without the possibility of verifying or falsifying it. For are we not simply p a r a p h r a s i n g the categorical structure of the Halakhic system when we identify as systemically consequential the category-formations that the system itself elaborates? A simple contrast shows that the answer to that question, where does the system focus its exegetical energies? need not be impressionistic. T h e H a l a k h a h elaborately explores the contentious relationships between h u s b a n d a n d wife (in K e t u b o t , Sotah, Qiddushin, Gittin, for example!)—but not between b r o t h e r a n d sister. T h e latter's relationships, f u r t h e r m o r e , do not define, but are subordinate a n d tangential to, the context in which they do occur. T h e y have to do with mainly the administration of estates a n d support of orphans. But the former—relationships between h u s b a n d a n d wife—define their own categorical context(s). A n d these are elaborate, betrothals, marital relationships of property a n d personalty, a n d cessation of marriage through death or divorce, for example. But even here, the possibilities—issues that can have arisen in i m a g i n a t i o n — a r e vastly outweighed by the actualities—the problems that do p r e d o m inate for exegetical attention. A single f u n d a m e n t a l theory, accounting for a n d sorting out, the blemishes in Israel's social order that imparted by conflict must serve throughout. It must recapitulate a single theory of matters in a variety of settings. T h e system once m o r e can be expected to say the same thing about m a n y things. F u r t h e r m o r e , we cannot limit our inquiry to matters of public interest alone: conflict between householders, or contrary claims in market transactions. R a t h e r , any general theory of defining and resolving points of social tension (as a matter of hypothesis) is going to encompass conflict within families or households, foundations as they are of the social order. Indeed, a work of comparison a n d contrast is required. T h a t would involve modes of defining the controverted transactions subject to systemic inquiry in

INTRODUCTION

33

the family a n d the marketplace, in political institutions a n d in labor relations. But our starting point is within the household, the family unit. T h a t is because there we find a s h a r p point at which our interest in resolving conflict as a general problem a n d the H a l a k h a h in its native categories do form a m a t c h . Most would concur that sorting out conflict within families, between h u s b a n d and wife, or children and parents, or family by birth as against family by marriage, for instance, defines an issue for social thinkers in general. And the Rabbinic sages, for their part, take the same view. T h e facts of the Rabbinic system and not a fabricated, imposed judgment dictate our answer to the question, in relationships between m a n and woman, which ones count in the system, and which do not? And as to those to which the system attends, how are these identified, what are the specific conflicts of systemic concern, and how are matters worked out? Here matching the general theory of what a social teaching should comprise, the stability of the household as the building block of the social order, the H a l a k h a h then will identify those conflicts between, e.g., husbanc! a n d wife that d e m a n d attention. T h e Halakhic category-formations as these are unpacked will define what is important about them, and will resolve matters in a way that is not only just a n d equitable, but that is systemically required. T h e conception of justice a n d equity figures so far as it illuminates the systemic logic embodied, here as elsewhere, in the details. T h e n justice a n d equity give way, being too general to solve m a n y critical problems. T h e upshot is simple. I try to balance two givens. First, the Halakhic d a t a themselves, the category-formations a n d their exposition, impose their own shape a n d structure u p o n our inquiry. N o n e t h e less, second, I claim that any system of the social order must address issues of a universal character. T h e n , standing outside the b o u n d aries of the system and shaping a perspective from afar, we still have to ask about classifications of relationships that, in theory, those responsible for organizing society will have to sort out. T h r e e examples suffice, in addition to that just now given concerning h u s b a n d a n d wife. Examples of balancing the general-theoretical with the Halakhic-categorical include these. First, even though the R a b b i n i c system differentiates within its borders and homogenizes without, it still has to form a theory of the outsider (here: idolaters) and, within that theory, reckon with conflict between Israelites and idolaters. Beyond requiring the establish-

34

CHAPTER ONE

m e n t of courts of justice, the R a b b i n i c system m a y not concern itself with adjudicating disputes between idolaters. But at the outer limits of Israel, it will have to make provision for interaction with idolaters. Second, certain givens of social class define c o m m o n p l a c e , if not universal, points of stress. O n e need not affirm theories of class Struggle to recognize that relationships between employers a n d workers, l a n d o w n e r s a n d s h a r e - c r o p p e r s , investors a n d operatives (in the c o n t e m p o r a r y context, investors a n d m a n a g e m e n t ) , lenders a n d borrowers—all define categories of conflict that in general terms d e m a n d attention. Third, beside the confrontation of outsider and insider, or between the proprietary class a n d workers, there is the encounter to be regulated between cultural classes. T h e s e classes find definition, in the setting of religion, in the division of religious virtuosi a n d ordinary folk, in the particular setting of R a b b i n i c J u d a i s m , in the division between R a b b i n i c sages a n d ordinary Israelites. T h e s e t h r e e examples m a k e the simple point clear: resolving conflict between (and among) Israelites does define a problem quite relevant to the larger, comparative p r o g r a m : how do religious systems f r a m e and sort out conflict?

VII. The Analytical Program: Why Focus on Relationships between Israelites, and What Do We Want to Know about them? T h e work of describing where conflicts arise and how they are worked out in its own terms promises little more than a reprise of facts, now well-organized for one p u r p o s e r a t h e r t h a n some other. Such a reprise lacking an analytical program yields rather ordinary, even banal, results. For example, w h o will find surprising that the system as-a whole aims at a steady-state society; or that principles of fairness govern (except where, as with relationships of Israelites a n d idolaters, for systemic reasons they do not govern); or that balance, order, regularity, predictability prevail? All of these produce c o m m o n places. 1 1 A n d well they should, for the category-formations, e.g., 14

See my Judaism. The Evidence of the Mishnah. (Chicago, 1981: University of Chicago Press. Choice, "Outstanding academic book list" 1982-3. Paperback edition: 1984. Second printing, 1985. Third printing, 1986. Second edition, augmented: Atlanta, 1987: Scholars Press for Brown Judaic Studies).

INTRODUCTION

35

justice, equity, social stability, fairness, a n d how these are defined a n d executed, that are addressed to the data do not emerge from the particularities of the data. T h e y represent only the neutral categories of comparative study of religions a n d their ethics: how religions in general deal with a social problem c o m m o n to their respective communities. T h a t is the wrong starting point but signals the right one. It is, rather, identified in this simple proposition. W h e r e the system itself speaks in its own idiom and distinctive focus, there it sets forth its particular teaching concerning a problem that happens to be ubiquitous. T h e n , to state the m a t t e r simply—and to state it with appropriate emphasis: What we want to know is, in relationships of conflict, how does the Halakhah that embodies Rabbinic Judaism define the systemic interest and realize that interest? T o answer that question, however, it also does not suffice only to identify the native category-formations that encompass, organize, structure, proportion a n d shape data concerning social conflict between classes of Israelites. O n c e we have defined the pertinent category-formations, we have f u r t h e r to articulate what, in particular, we want to know about the Rabbinic-Judaic teaching of conflictresolution. T h e focus o f t h a t inquiry has already been defined in our recognition of the system's distinctive quality: its invention of a moral entity that transcends a n d encompasses the individual. T h e systemic interest is embodied in Israel, the corporate community that forms a whole greater than the sum of the individual, Israelite parts. C o r p o r a t e Israel is what the system represents as unique to itself. T h a t is the lesson of Volume O n e of this study. T h e systemic j u d g ment is clear. Individuation is universal; all social entities are formed as featureless aggregations of individual persons. F o r m i n g a corporate c o m m u n i t y possessed of characteristics imposed by the whole upon the parts is unique to Israel. T h e social teaching naturally takes theological form. All humanity, gentiles a n d Israelites alike, come u n d e r divine j u d g m e n t ; all are m a d e in G o d ' s image, after G o d ' s likeness. But corporate Israel has no counterpart a m o n g the nations. T h a t is because it is the sole social entity of moral dimensions, one that comes u n d e r j u d g m e n t as a collectivity. T h e theology of Israel, set forth in narrative-mythic terms, explains why and need not be recited. But it explains why individual Israelites together—in twos or threes or tens—form a whole that exceeds the sum of the parts.

36

CHAPTER ONE

With that axiom in mind, we anticipate, corporate Israel also will define its own a r e n a of conflict a n d strife a n d set forth the rules that govern that particularity of its f o r m a t i o n : the Israelites who all together, in the social order, embody Israel. In that context, we come to the subject at h a n d . W h y does the Halakhic system, seen in the way now fully exposed, identify as a critical focus of interest the resolution of conflict? T h e reason must be, a n d is, particular to the R a b b i n i c system. It is that relationships that p r o d u c e conflict define a p r o f o u n d crisis for corporate Israel, for the c o n f r o n t a t i o n challenges the c o r p o r a t e c o h e r e n c e of "all Israel." A corporate Israel riven with strife, imperfect a n d uncertain of cohesion, cannot e m b o d y that unique moral entity that G o d h a d in mind as his "kingdom of priests a n d holy people," as his "witnesses," as a plural "you," a collectivity, that is "holy as I a m holy." Conflict within the corpus of corporate Israel challenges the harmony, the unity that G o d h a d in m i n d for his holy people and his witnesses—a unity for Israel corresponding to his own, just as Israel's uniqueness corresponds to God's. T h e n relationships of confrontation between h u s b a n d and wife, employer a n d worker, lender a n d borrower, stockholders a n d m a n agers, landholders a n d sharecroppers—these subvert the social coherence of corporate Israel. C o n t e n t i o n unresolved cannot characterize a unique people for the unique G o d . T h e strife and conflict define not merely domains of disruption. T h e y call into question the very conception on which I have laid such stress, the conception that "Israel"—corporate Israel—constitutes m o r e t h a n the sum-total of Israelites. A n d that is why, in any systematic account of the social teaching of Rabbinic Judaism such as I undertake here, once we have defined the relationship between the individual Israelite a n d corporate Israel, the logical a n d necessary a n d ineluctable second step— this second t e a c h i n g — c a n only concern relationships between Israelites a n d how, in particular, tensions in those relationships are resolved. If I h a d to specify at the outset what I conceive to account for the dynamics of the system, I would define the corporate interest in this way. C o r p o r a t e Israel overrides the individual Israelite's will. Its imperatives override his intentionality. W h y deny to the Israelite individual the total f r e e d o m of will that m a n has possessed f r o m creation? It is because the individual Israelite has no choice but to be Israel. So to be Israelite to begin with is to relinquish, willy-nilly,

INTRODUCTION

37

that range of free choice that idolaters retain for themselves; it is the consequence of receiving the T o r a h at Sinai and accepting G o d ' s dominion, m o r n i n g by morning, in the recitation of the S h e m a ' for example. T h e indelibility of "Israel-ness" of the individual defines the n o r m as the public and c o m m u n a l , the a b e r r a n t as the merely personal a n d private. T h e system has to define points for individuals to assert their individuality, it has to find Halakhic occasions for individuation of various kinds—specifically because the individual is what is occasional, the corporate community, e n d u r i n g a n d eternal. H e n c e in the struggle between requirements of the c o m m o n good and the rights of the individual to express his or her individuality— as we would f r a m e matters in the secular W e s t — R a b b i n i c J u d a i s m takes u p a position that finds a greater good than individuality. But that is for its own systemic reasons. Theology embodies one of them. As we saw at the end of Volume O n e , 1 ' corporate Israel never dies a n d therefore also is not resurrected at the end of days. Individual Israelites alone die and also rise from the grave to stand in j u d g m e n t . T h e individual Israelite is the focus of resurrection and j u d g m e n t , for people die one by one. "Israel" the holy people, by contrast, never dies. It is the enduring component of humanity, that part of humanity that knows G o d through G o d ' s own self-manifestation in the T o r a h . T h e sector of mankind that accepts the law of the T o r a h as the will of G o d , corporate Israel cannot die any m o r e than G o d can. T h e n to corporate Israel, resurrection categorically does not pertain. T r u e , j u d g m e n t does. C o r p o r a t e Israel is subject to j u d g m e n t as m u c h as individual Israelites are. For corporate Israel j u d g m e n t takes place in this world and in this age, in the successive exiles, for example, a n d in the p a r a d i g m of losing the T e m p l e a n d its offerings. T h e explanation of Israel's subjugation to the gentiles a n d their idolatry carries within itself a p r o f o u n d statement about corporate Israel's identity, its e n d u r i n g presence, from this age to the world to come, without interruption. T h e upshot is, in theology, not only Halakhah, c o r p o r a t e Israel takes priority, its interests govern, a n d conflicts between Israelites are resolved accordingly. H o w , in context does the system explain the source of conflict within Israel? Conflict represents a clash of wills, a collision of con15

And in Chapters Eleven and Twelve of The Theology of the Oral Torah. Revealing the Justice of God. (Kingston and Montreal, 1999: McGill-Queens University Press and Ithaca, 1999: Cornell University Press).

38

CHAPTER ONE

tending intentionalities. So we begin, specifically, with the theory of the f r e e d o m of the h u m a n will that animates the system as a whole. T h a t derives from the generative myth put forth by the R a b b i n i c theological anthropology. T h a t defines the Godly in m a n by showing how M a n — A d a m a n d E v e — a r e like G o d . A n d the answer is, just as G o d exercises f r e e d o m of will, so M a n has a n d expresses f r e e d o m of will, even to rebel against G o d . E m b o d i e d in the word "intentionality," that f r e e d o m of will forms the source of conflict between G o d a n d m a n , and, all the m o r e so, between and a m o n g m e n . C o r p o r a t e Israel, then, is called into being to form that sector of humanity that educates its will to want what G o d wants. T h r o u g h the T o r a h a n d religious imperatives therein Israel is m e a n t to ereate a h u m a n i t y capable of exercising f r e e d o m of will t h r o u g h acts of sanctification—acting like G o d — a n d not rebellion. W h a t follows is now self-evident. Social conflict endangers the corporate coherence of Israel not for essentially secular reasons but for profoundly theological ones. It represents in theory an occasion in which Israelites in their relationships with one a n o t h e r exercise their f r e e d o m of will, their individuality, in a m a n n e r contrary to G o d ' s goals and plans. C o n t r o v e r t e d relationships violate his intentionality for corporate Israel. In its disposition of conflict, therefore, Rabbinic Judaism addresses the very heart of matters. Just as through f r e e d o m of will, M a n c a m e into conflict with G o d , so through freed o m of will, Israelites come into conflict with one another. T h e n the system will take as its task the resolution of conflict in such a way as to restore h a r m o n y to corporate Israel—for G o d ' s sake—doing so out of the resources of the T o r a h . H e r e the H a l a k h a h a n d the Aggadah intersect. In the R a b b i n i c system of Halakhic norms, all things taken together, intentionality—the realized expression of the free will that is accorded to m a n as to G o d — a n i m a t e s a n d energizes the social order. Aggadic statements declare that nothing stands in the way of the h u m a n will, the c o m m a n d m e n t s are given only to purify the heart. T h a t same conviction comes to narrative expression in the story of Eden and its history. It further attains Halakhic realization in a variety of category-formations of the law. But the corollary of free will is conflict, since, by nature, individuals, each acting u p o n his attitude, plan, a n d intentionality, come into conflict. T h a t is not only the h u m a n condition, it is also the given of the relationship of G o d and m a n . F r o m Eden forward, the clash of intentionalities—first, G o d ' s

INTRODUCTION

39

a n d A d a m ' s a n d Eve's, then G o d ' s and the children of Noah's, and, now, G o d ' s a n d Israel's—has defined the p a r a m e t e r s of the social system a n d its task. It is to hold together in conditions of stability a n d order the participants in the social order, disrupted as it is by their clashing a n d competing intentionalities. How, then, a system of social thought reckons with conflict and its resolution forms a principal c o m p o n e n t of that construction. How, then, do these theoretical observations dictate the work to be done in the shank of this study? While p e r m e a t i n g the R a b b i n i c system, intentionality does not form a principal native category-formation; at no one point does a particular topic define the occasion for the systematic exposition of the matter. And, it follows, the clash of conflicting wills, leading to conflict and disruption of the social order and calling into doubt the integrity of corporate Israel, identifies a principal problem for the Rabbinic sages to take u p in forming their social teaching. But how are we to shape the t h e m e to make it congruent with the Halakhic category-formations? T o e x p o u n d the problem that I conceive the second social teaching to address, let me begin with a negative: where do we not start? For reasons I have already set forth, our starting point locates itself not at the frontier, looking outward, that is, toward conflict between an Israelite and a gentile; for that category of relationship there is no native category-formation. N o r do we consider the relationship of conflict between c o r p o r a t e Israel a n d "the gentiles." T h a t too defines no principal category-formation. T h e p r o g r a m of the native category-formation, tractate A b o d a h Z a r a h (Idolatry) explains why. Israel, individual and collective, intersects with the world of idolatry only on occasions of the realization of idolatry in action. T h e s e are two. First come festivals that involve celebration of idols, as all festivals did. Second is the presentation of a libation of wine, which invalidates the remaining volume of wine for Israelite use. In both cases, the idolater engages in idolatry that directly affects Israel. T h e upshot is simple. While logically one might suppose the initial m o d el of conflict-resolution would encompass relationships between Israelites and gentiles, the systemic logic holds otherwise. It does not find those relationships systemically d e t e r m i n a t i v e ; they involve n o t h i n g of consequence a n d present no engaging intersections of operative principles for sorting out. And, m o r e decisive still, neither G o d nor Israel seeks to resolve conflict between those that know and

40

CHAPTER ONE

love the one and only G o d and those that worship idols. T h e conflict is e n d u r i n g a n d b e y o n d negotiation. T h a t is why, w h e n we consider how the R a b b i n i c system of law contemplates the life of corporate Israel lived in c o m m u n i t y , it must provide, first of all, for dimensions of the social order for which gentile states do not have to concern themselves. From that point, we turn inward, and take up foci of conflict within Israel. W h a t are the classes of Israelites for which the Halakhah must legislate? W h e n we ask the question in that simple way, the answer presents itself promptly. T h e smallest building block of the Israelite social order is comprised by the family, or, rather, the household, which transcends the nuclear family and forms a principal unit of social organization (including, in the givens of the H a l a k h a h , of production). Hence relationships between households, beginning with families joined in marital bonds via husbands a n d wives, capture our attention. C h a p t e r T w o takes u p resolving conflicts between families. T h e m e d i a n building block is embodied in villages composed of householders. So relationships of conflict between householders follows in o r d e r of consideration. T h e s e divide into conflict over property (Chapter Three) a n d conflict of a personal order (Chapter Four). T r a n s c e n d i n g the localization of relationships in family a n d village are relationships between classes of Israel (treated as binary in formation): classes defined by economic activity, e.g., employers and workers, investors a n d operatives, (Chapter Five), and classes defined by caste status, e.g., the sacerdotal castes a n d ordinary Israelites the sage and the other-than-sage (Chapter Six). So m u c h for the topical agenda. And, to conclude, what do we wish to know about our topics? T h e answer is, how does the systemic interest assert itself in its disposition of confrontation between and a m o n g Israelites or (more commonly) classes of Israelites. O u r d a t a will then derive from those native category-formations, viewed whole or in large constitutive components, that by definition deal with conflict between Israelites. So the topical exposition of the shank of the book will make clear. And, for reasons amply spelled out now, what we want to know about those category-formations is where and how the systemic interest—its global theory of all things—comes to expression in the case at h a n d . Are we able to explain the details of a given classification of conflict, e.g., between h u s b a n d a n d wife, by appeal to an overriding concern that animates corporate Israel? T o answer that question, we shall have to review the category of con-

INTRODUCTION

41

flict as set forth in the H a l a k h a h , paying special attention to the problems it selects for close analysis as against those it treats casually or altogether ignores. H e n c e at each point we shall ask these questions of the pertinent native category-formations: 1. In the present classification of relationship, w h e r e — a m o n g a b r o a d range of possible c a n d i d a t e s — a r e the particular points of conflict that the H a l a k h a h addresses? H o w are these defined? 2. H o w does the Halakhah resolve those points of conflict, through what institutional or social pressures securing conformity to its policy? 3. In what way does the corporate interest come to expression in the disposition of conflict and its resolution? These are simple, f u n d a m e n t a l questions. Finding the answers for the appropriate native category-formations will yield the second Social Teaching Rabbinic Judaism.

VIII. What, Precisely, Do We Mean by "Conflict"? T h e entire discussion thus far has presupposed that we know what we m e a n by "conflict" a n d that I have defined the kind of data that serves for this study. But I have not specified the evidence of the H a l a k h a h , as portrayed by the Mishnah-Tosefta-Yerushalmi-Bavli, that pertains. So it is time to spell my criterion for the selection of evidence supplied by the pertinent category-formations. I take my three types of evidence f r o m M i s h n a h - T o s e f t a Qiddushin. T w o criteria govern the selection or omission of Halakhic data, category-by-category. By "conflict" [1] I m e a n a n explicit statement, within the H a l a k h a h , that two or m o r e parties file contradictory claims in a given transaction. O n our own, we shall not impute conflict or invent disputes where none is articulated. [2] I require, further, that the H a l a k h a h — w h e t h e r in the Mishn a h itself or in the Tosefta—signal its a p p r o a c h to the resolution of the conflict. It must somehow indicate the considerations that come into play. T o serve our inquiry, therefore, the passage should give evidence that the H a l a k h a h provides principles for the recognition of the importance of those conflicting claims and the resolution thereof. A concrete example of the kind of evidence I adduce will show how these conditions are met.

42

CHAPTER ONE

T h i s case represents t h e ideal evidence for t h e kind of dispute that the system identifies a n d chooses to resolve: MISHNAH-TOSEFTA QIDDUSHIN

3:11/4:14

M. 3:11 "I have betrothed your daughter," and she says, "You betrothed only me," he is prohibited to marry the relatives of the girl, and the girl is permitted to marry his relatives. He is permitted to marry the relatives of the older woman, but the older woman is prohibited from marrying his relatives." Τ. 4:14 "I betrothed your daughter," and she says, " You betrothed only me, " he is prohibited from marrying the relatives of the younger girl, and the younger girl is permitted to marry his relatives. And he is permitted to marry the relatives of the older woman, and the older woman is prohibited from marrying his relatives [M. Qid. 3:10], Let us dwell o n t h e conflict a n d its resolution. T h e conflict concerns the contradictory allegations that of a m a n that he h a s b e t r o t h e d t h e d a u g h t e r as against t h e d a u g h t e r ' s m o t h e r ' s claim that he h a s b e t r o t h e d t h e m o t h e r . Both parties have a n interest in t h e union of the families; t h e only issue is, t h r o u g h which w o m a n , the m o r e desirable, y o u n g e r one, o r t h e less desirable, older one? T h e w o m a n ' s family wishes t o m a r r y off t h e less m a r r i a g e a b l e o n e first, t h e m a n t h e opposite. T h e pericope thus makes t h e conflict explicit. I d o n o t have to invent a h y p o t h e t i c a l dispute, t h e sages have d o n e that for m e . H o w a b o u t resolution? T h e H a l a k h a h does n o t exactly a d j u d i c a t e the conflict. R a t h e r , it only provides f o r t h e c o n s e q u e n c e of e a c h claim. I n d o i n g so, it signals w h a t b e a r s c o n s e q u e n c e in t h e conflict, w h y t h e H a l a k h a h a t t e n d s t o it to begin with, a n d that is t h e issue of consanguinity. Legislating for a p o l y g a m o u s society, Leviticus 18 specifies t h e p r o h i b i t e d relationships, e.g., one's m o t h e r , sister, a n d the like. If one is m a r r i e d to a w o m a n , h e c a n n o t also m a r r y h e r d a u g h t e r . T h e m a n by his o w n w o r d h a s f o r b i d d e n himself by reason of consanguinity f r o m m a r r y i n g t h e p e r t i n e n t female relatives of the girl h e claims t o h a v e b e t r o t h e d , e.g., h e r sister, h e r m o t h e r , a n d so o n . But t h e claim of the m a n does n o t prohibit t h e d a u g h t e r f r o m m a r r y i n g his c o u n t e r p a r t relations. Since t h e m a n denies having b e t r o t h e d t h e m o t h e r , h e r c o n s a n g u i n e o u s relations a r e p e r m i t ted to h i m . But b y reason of h e r claim his a r e f o r b i d d e n to h e r . I n o t h e r words, t h e H a l a k h a h resolves t h e conflict b y c o n f i r m i n g t h e claim of each as to its practical consequences for third parties. I regard the H a l a k h i c s t a t e m e n t as a clear a c c o u n t of conflict a n d its résolution.

INTRODUCTION

43

H e r e t h e H a l a k h i c s t a t e m e n t makes t h e conflict explicit. W e d o not have to imagine h o w a dispute of the present kind might e m e r g e f r o m t h e g e n e r a l p r i n c i p l e t h a t w e c o n f i r m a claim of a p e r s o n c o n c e r n i n g his o w n status, b u t n o t that of others a b o u t w h o m h e m a y speak. T h a t is a well-established principle of p e r s o n a l status. But in t h e present p a r t i c u l a r case, we find a n explicit s t a t e m e n t of two c o n t r a d i c t o r y claims a n d h o w they a r e resolved, a n d we n e e d not speculate a b o u t h o w a n abstract principle might g e n e r a t e such a c o n c r e t e instance. N o r a r e we r e q u i r e d to invent a conflict w h e r e n o n e is stated. T h i s is w h a t I m e a n by a dispute a n d t h e systemic disposition thereof: resolving conflicts b e t w e e n Israelites. H e r e t h e H a l a k h a h supplies t h e explicit d a t a that permits us to answer o u r generative questions: w h y is it u r g e n t to address t h e conflict? H o w does t h e interest of corporate-Israel c o m e to realization in t h e disposition of a particular class of conflicts a n d the resolution thereof? T h i s is t h e sole type of evidence of H a l a k h i c conflict-resolution that we shall e x a m i n e , because it requires n o speculation o r fabrication. But c a n we n o t construct o n o u r o w n t h e story of a conflict t h a t the H a l a k h i c d o c u m e n t s d o n o t articulate? Surely it is possible t o i m a g i n e counter-claims o n t h e basis of the following: MISHNAH-TRACTATE QIDDUSHIN 2 : 3

"...On condition that I am a priest," and he turns out to be a Le vite, "...on condition that I am a Levite," and he turns out to be a priest, "...a Netin," and he turns out to be a mamzer, "...a mamzer," and he turns out to be a Netin, "...a town dweller,‫ 'י‬and he turns out to be a villager, "...a villager," and he turns out to be a town dweller, "...on condition that my house is near the bath,‫ יי‬and it turns out to be far away, "...far," and it turns out to be near "...On condition that I have a daughter or a slave girl who is a hairdresser"' and he has none, "...on condition that I have none," and he has one; "...on condition that I have no children," and he has; "...on condition that he has," and he has none— in the case of all of them, even though she says, "In my heart I wanted to become betrothed to him despite that fact," she is not betrothed. And so is the rule if she deceived him. T h e present H a l a k h i c ruling surely sustains a fabricated dispute, t h e

44

CHAPTER

ONE

invention of conflicting claims as to the outcome of a false claim. But that requires a kind of speculation that would carry us far afield. Let me spell out why I find little use for speculation on disputes that a Halakhic ruling might generate. W h a t is implicit in this formulation a n d f r o m w h o m arise conflicting claims? O n the one h a n d , we might suppose, the w o m a n wishes to annul the betrothal, based on the m a n ' s failure to fulfill the stipulation. O n the other h a n d , the "even though she says...," clause suggests that she does not necessarily favor nullifying the b e t r o t h a l at all. But the h u s b a n d - t o - b e at his own initiative has betrothed the woman, so why should he wish now to cancel an action that he took even u n d e r false pretenses? So the key-language, the "even-though"-clause, points to the intervention of a third party, unstipulated. W e c a n n o t say w h o that might b e — t h e court? T h e bride's family? T o be sure, we know the point of the ruling: deceit in the transaction forms a n absolute basis for nullifying the act. For a study of conflict a n d its resolution, the case proves ambiguous a n d not helpful. T h e systemic interest in establishing that deceit in betrothal nullifies the transaction strikes me as generic, not systemic let alone particular to the category-formation u n d e r discussion. T h e upshot is, where we cannot identify the parties to a dispute a n d unambiguously d e t e r m i n e w h a t is at stake, we have in h a n d n o evidence pertinent to this inquiry. All the m o r e so m a y we not f r a m e a theoretical conflict based on the unarticulated implications of a rule. T h e H a l a k h a h is rich in possibilities for fabricating on our own the disputes that are not spelled out but that are certainly plausible. A single example suffices: MISHNAH-TRACTATE QIDDUSHIN

2:1

A man effects betrothal on his own or through his agent. A woman becomes betrothed on her own or through her agent. A man betroths his daughter when she is a girl on his own or through his agent. He who says to a woman, "Be betrothed to me for this date, be betrothed to me with this," if [either] one of them is of the value of a penny, she is betrothed, and if not, she is not betrothed. [If he said to her,] "By this, and by this, and by this"—if all of them together are worth a penny, she is betrothed, and if not, she is not betrothed. [If] she was eating them one by one, she is not betrothed, unless one of them is worth a penny.

INTRODUCTION

45

N o w one m a y in theory impute to the law a Sitz-im-Leben involving a court-case in which one party claims a betrothal has taken place, a n d a n o t h e r denies the claim. T h e court then has to resolve the conflict by assessing the value of the token of betrothal that has changed hands. But the presentation of the law, while presupposing that conflict can take place in context, has not signaled the presence of a dispute. O u r interest is in the Halakhic m o d e of defining consequential disputes and resolving them, and that focus does not extend to the possibilities of conflict that the Halakhic presentation itself does not contemplate. T h e upshot is, the data for this study derive from Halakhic accounts of disputes that are spelled out a n d that are resolved in such wise as to signal the systemic stake in matters. At each point at which a pericope comes u n d e r discussion, my c o m m e n t s will address those two considerations only.

2.

CONFLICTS BETWEEN FAMILIES I. When Families Quarrel: Corporate Israel's Interest in the Household "Conflict" by definition involves contending parties, so the question is, how are we to define those Israelites whose conflicts the Halakhah mediates? Is the m a t t e r so abstract as to involve any two or m o r e individual Israelites? O r are the smallest whole units of social composition other than individuals, one by one? T h e answer, spread out in C h a p t e r s T w o and the set r u n n i n g through C h a p t e r s T h r e e a n d Four, is simple. T h e H a l a k h a h deals with conflicts between the smallest whole unit of Israelite society that it recognizes: the family (here) or household (next two chapters). T o state the m a t t e r simply: classifications of Israelites that enter into systemically-consequential conflict are Israelites organized in households or families. T h e classifications of Israelites that figure are, first of all, those that found families, husbands a n d wives, and, second in line, those that represent the household-unit, which is the smallest whole unit of production: the householders themselves. These then account for the foci of the present c h a p t e r a n d the following ones. Let me explain, starting with the obvious: why not the individual a n d his or her conflicts as the focus of systemic inquiry? As a matter of fact, if we ask for the smallest whole unit of composition, the indivisible social unit that the system will discern as its building block to step forward, for reasons u p o n which I shall elaborate, the individual cannot present himself. O n the contrary, only cohorts or platoons, classifications of individuals that are formed by c o m m o n indicative traits m a y do so. T h e entire exercise that follows rests u p o n this account of what comprises the c o m p o n e n t s of c o r p o r a t e I s r a e l — h e n c e w h a t designates the realm of negotiable conflict. Let me explain, starting from the beginning: whose conflicts register? 1 1

I do not propose as an interesting answer that corporate Israel is flawed by conflict and therefore has an interest in resolving it. T h a t is so, but it is so of every

CONFLICTS BETWEEN FAMILIES

47

W h e r e shall we locate the category-formations of the H a l a k h a h that identify for us the social teaching of Rabbinic Judaism concerned with the resolution of conflict? T h e H a l a k h a h defines those conflicts that that J u d a i s m chooses to recognize and resolve. By its omissions it further signifies those it does not d e e m to engage systemic concern. W h e n we know the answer to the dual question, why this, not that? we enter into the logic of the system for the social order. And there we find its social teaching on conflict between a n d a m o n g individuals: w h a t is at stake, why it matters, a n d how it is to be resolved. T h a t is why, as indicated, we have to identify the smallest whole units of the social order capable of entering into consequential contention. These are the components of corporate Israel that enter into the classifications of conflict of which the H a l a k h a h takes categorical notice. I underscore the "categorical" because I speak of Rabbinic J u d a i s m as a whole, not bits a n d pieces, shards a n d r e m n a n t s of opinions about this and that; that point has already registered. I refer, then, to the conflicts that engage the Halakhic structure to begin with—those of systemic interest. And within the pertinent categoryformations, moreover, a particular criterion of selection dictates the choice of conflicts that d e m a n d articulation and further identifies the media of resolving them. T h e a r g u m e n t to this point is counter-intuitive. For if c o m m o n sense were to speak first, then the individual should present himself as the obvious "smallest whole unit" that engages in social strife of systemic concern. Surely the individual a n d not classes of individuals, collectively viewed as social entities a n d constituents of the encompassing social order will enter into the conflict to which R a b binic J u d a i s m responds. But that is not how, upon reflection, matters emerge. For " c o m m o n sense" speaks the consensus of a world that accords recognition to the radically isolated individual, his or her conscience a n d character, his or her convictions. But, for the theoimaginable system of the social order; it tells us nothing about the distinctive traits of Rabbinic Judaism's social teachings to know that it fosters amity and coopération among Israelites. As I shall explain, once we examine the generative logic that defines the category-formations of Rabbinic Judaism as these encompass conflictresolution, we shall realize, individual conflict is decidedly subordinate, in the systemic logic exposed in the governing category-formations, to the household/family,— hence the systemic analysis that occupies this section of the chapter. What we learn is that the abstraction, "conflict," or "resolving conflict," finds concrete expression only in the context of the Halakhic system viewed whole.

48

CHAPTER

ONE

logical reasons that have been spelled out in V o l u m e O n e of this study, R a b b i n i c J u d a i s m tells a different story of the social order. It is not one that which yields the a u t o n o m y of the individual a n d valorizes above all the integrity of the private person. T h e Halakhah's categorical structure of Rabbinic J u d a i s m tells the story p r o d u c e d by G o d ' s account, in Scripture and tradition, of his e n c o u n t e r with m a n . T h e H a l a k h a h translates into the laws of the social order the implications of the story of Eden gone wrong, the tale of the repair a n d renewal of creation thereafter in Israel. In that story, the formation of the family, Israel, by A b r a h a m and Sarah and their correct descendants, creates a unique social entity, one with its own c o m p o n e n t s a n d architectonics. T h e First T e a c h i n g has already shown us that individual Israelites are no different f r o m gentiles, all replicating the condition of A d a m a n d Eve. Each then constitutes a person subject to divine j u d g m e n t , a unique individual before G o d . But—to say the obvious—corporate Israel has no counterpart in mankind. T h e r e is no other collectivity, besides Israel, that is subject to divine j u d g m e n t over a n d above the j u d g m e n t coming to its individual constituents. A n d the entire category-formation of R a b b i n i c J u d a i s m encompasses, focuses u p o n , that unique social order, Israel, a n d its constituent components. It follows that, with the definition of corporate Israel as sui generis in h a n d , our starting point is clear. T h e conflicts within Israel that will prove systemically consequential a n d that will require Halakhiccategorical attention are those between the entities by which corporate Israel is comprised. T h e s e will be formed by classes of Israelites. A n d the H a l a k h i c system itself will define the signifiers of class-identification. O u r completed inquiry on the individual Israelite a n d corporate Israel has already shown us, that is not by idiosyncratic individuals, e.g., Israelites who distinguish themselves. T h e indicative traits of social differentiation within the composite, Israel, are diverse in quality: genealogy is one, caste-status a n o t h e r , location in the social order a third, gender a fourth, a n d so on. W h a t , then, do we do in identifying the social entities within Israel that like c o r p o r a t e Israel itself f o r m interests a n d come into conflict? W e define those building blocks of the social order that replicate the model of the sole social entity to begin with possessed of integrity. And that is corporate Israel. Sui generis, that entity or genus is comprised by things—species—like itself. And that is, by

C O N F L I C T S B E T W E E N FAMILIES

49

species of a c o m m o n genus, in t h e l a n g u a g e that t h e M i s h n a h h a s t a u g h t us t o use. T h e n t h e decisive point is clear: the components of the genus bear in common the indicative traits of the genus: its corporate quality. J u s t as Israel is d e f i n e d as a c o r p o r a t e social entity, t r a n s c e n d i n g individual c o m p o n e n t s , so t h e c o m p o n e n t s of that same Israel a r e similarly defined. J u s t as Israel imposes t h e categorical traits ("Israelness") u p o n individuals ("Israelites"), so its constituent parts d o t h e same, dealing n o t in individuals, m a n o r w o m a n , for instance, b u t individuals in relationship, h u s b a n d - w i f e , c h i l d r e n - p a r e n t s , a n d t h e like. T h a t t h e c o m p o n e n t s of the social o r d e r , Israel, have in c o m m o n such indicative traits accords t h e m a place in t h e genus; that e a c h h a s its distinctive indicative traits as well speciates that genus. It follows that that which is c o m p a r a b l e to corporate Israel will define the constituent c o m p o n e n t s of that society. T h i s s o m e w h a t abstruse a r g u m e n t yields t h e operative point. It c o n c e r n s t h e identification of social entities that c a n be p a r t y to t h e systemically-engaging conflict. T h a t is conflict a m o n g those entities within c o r p o r a t e Israel that a r e d e f i n e d b y t h e traits of c o r p o r a t e Israel itself. A n d — t o double back t o t h e m a i n p o i n t — t h e building block of c o r p o r a t e Israel is not t h e individual Israelite. R a t h e r , Israel for R a b b i n i c J u d a i s m is c o m p r i s e d by subsets like itself: t h e social collectivities—classifications—of Israelites linked a priori by c o m m o n characteristics. T h i s is expressed, a m o n g m a n y o t h e r places, in t h e following, which shows h o w t h e categorical units that e n c o m p a s s individuals dictate w h o m those individuals m a y consider f o r m a r riage: MISHNAH-TRACTATE QIDDUSHIN 4 : 1

A.

B. C.

D.

Ten genealogical castes came up from Babylonia: (1) priests, (2) Levites, (3) Israelites, (4) impaired priests, (5) converts, and (6) freed slaves, (7) mamzers, (8) Netins, (9) "silenced ones" [shetuqi], and (10) foundlings. Priests, Levites, and Israelites are permitted to marry among one another. Levites, Israelites, impaired priests, converts, and freed slaves are permitted to marry among one another. Converts, freed slaves, mamzers, Netins, "silenced

50

CHAPTER ONE

ones," and foundlings are permitted to marry among one another. For p u r p o s e s of m a r r i a g e , t h e castes a r e carefully defined, a n d , as we see, t h e c a t e g o r y - f o r m a t i o n s d o n o t begin with indicative traits of individuals, only classes of Israelites. T o state m a t t e r s otherwise, in t h e cited passage we k n o w precisely w h e r e a n d h o w individuation forms a systemic c o n c e r n . It h a s n o t h i n g to d o with conflict a n d the resolution thereof; t h e c a t e g o r y - f o r m a t i o n s that govern c o n c e r n themselves with t h e legitimation of individuality a n d t h e disposition thereof. T h e s e classes of persons, then, b e a r c o n s e q u e n c e f o r t h e system as a whole because they participate in t h e composition of that syst e m . T h a t is s o m e t h i n g t h e individual Israelite does n o t a n d c a n n o t do. A c c o r d e d a legitimate place in t h e system as a whole, t h e individual is a c c o r d e d a p p r o p r i a t e occasions for individuation. T h a t w e have seen at some length in V o l u m e O n e . B u t — a review of the First T e a c h i n g shows c l e a r l y — o n e of those occasions is not consequential c o n t e n t i o n . I refer to t h e kind, b e y o n d t h e r a n g e of legitimate intersection a n d conflict, that t h e system a c c o m m o d a t e s . At n o point in t h e First T e a c h i n g does t h e resolution of conflict figure in t h e a c c o u n t of the individual Israelite a n d c o r p o r a t e Israel. W h a t t h e n does? M o v i n g u p f r o m t h e individual t o t h e individual in relationship, it is t h e family o r t h e household, by contrast, that signifies t h e smallest whole unit of social o r g a n i z a t i o n . T h e family or h o u s e h o l d f o r m s t h e irreducible m i n i m u m of the social entity. It is that which p r o d u c e s conflict of categorical interest. H o w d o we know that fact? W e r e t u r n to t h e categorical structure of R a b b i n i c J u d a i s m , which defines t h e construction of this b o o k as of V o l u m e O n e . T h e table of c o n t e n t s of this book, t h e outline of t h e topics addressed in this c h a p t e r ' s p r o g r a m b y r e a s o n of the p e r t i n e n t c a t e g o r y - f o r m a t i o n s — t h e s e leave n o d o u b t as to t h e c h a r a c t e r of t h e system as a whole. T h e individual finds his o r h e r position in Israelite society as m e m b e r of a family o r household, a n d t h e Halakhic system ordinarily d e e m s t h e e x t e n d e d family to f o r m , also, a h o u s e h o l d , that is, a selfc o n t a i n e d u n i t of e c o n o m i c activity, a unit of p r o d u c t i o n , m o s t c o m m o n l y a f a r m . S o f a r as I a m able to discern, there is n o social entity that c o m p a r e s with t h e f a m i l y / h o u s e h o l d , a n d n o n e of which the H a l a k h a h takes categorical c o g n i z a n c e is smaller. W h a t r e n d e r s

CONFLICTS BETWEEN FAMILIES

51

that unit remarkable is its definition in both genealogical and economic terms. As between family and householder, words that refer to the same entity, "family" defines the governing m e t a p h o r . W h a t confirms for the family its critical position as the building block of the social order a n d its castes is the mythic theology that governs, and is realized in the generative category-formations by, the Halakhic system. With its account of the formation o f l s r a e l out of the generations of Abrah a m , Isaac, and J a c o b , Israel as a large holy family, the theology of mythic monotheism accomplishes the selection for us. "Israel" is "the children o f l s r a e l , " portrayed by generations, the descendants of the same forebears, ultimately A b r a h a m a n d S a r a h . A n d converts to J u d a i s m become children of A b r a h a m a n d Sarah, joining the family ab initio. All Israel therefore is d e e m e d an extended family. It is a family defined by a genealogy of a supernatural character to be sure, for idolaters m a y join the family by renouncing idolatry and worshipping the one true God. But then the family is defined uniquely, different from this-worldly families; that is systemically intuitive. T h e n corporate Israel forms the composite of Israelite families. Scripture, moreover, links possession of the L a n d o f l s r a e l to the definition of the Israelite families a n d the larger locative-genealogical divisions that they constitute. T h u s by " J u d a h " is m e a n t both the (genealogical) family of J u d a h a n d the portion of the L a n d of Israel assigned to the family of J u d a h , so Benjamin and his familial inheritance, so too Levi, Simeon, Issachar a n d Zebulun. T h e Halakhah makes the distinction, deriving f r o m Scripture, between the status of real property by reason of how it is acquired. O n e type of real estate in the Land of Israel is that received as an inheritance, which cannot be permanently sold, alienated from family possession. It reverts to the original representative of the initial family assigned the plot at the division of the L a n d o f l s r a e l . T h e n there is property purchased with funds and not inherited. T h a t property in the L a n d of Israel that is acquired not by inheritance but merely by purchase is bought and sold in a routine way, not subject to the special rules governing restoration of property to those that originally received it in the conquest of the L a n d u n d e r J o s h u a . T h a t distinction makes the same point. Genealogy governs the disposition of the L a n d of Israel as m u c h as it defines the composition of the people of Israel. So once we have established that the smallest whole unit of construction of corporate Israel must itself constitute a corporate entity—

52

CHAPTER

ONE

individuals viewed as a collectivity for moral purposes—the family takes center-stage. And, it follows, the systemic interest in quarrels between families derives f r o m its definition of corporate Israel as a conglomerate of families. In this discussion I have interchangeably used "family" and "household." T h a t is only partially accurate. Both words, however, find a legitimate place. "Family" comes first, serving as it does as a theological m e t a p h o r within social thought. But "household," referring to precisely the same social entity, formed out of the same relationships, applies as well. "Family" as m e t a p h o r subordinates the individual Israelite to itself, establishing his position within the social order both locatively and genealogically ("father^ house,") as well as in the encompassing Israelite caste- a n d class- structure. Family, I stress, does not mediate between the autonomous individual and "all Israel," it forms the g r o u n d of being of the individual, who, though responsible on his own before G o d , still is conceived in functional terms in relationship to others through his family-identification and position. T h e Halakhic concept states in abstract, categorical terms three points. These are [1] the concrete scriptural narratives of the formation of Israel out of the patriarchal a n d matriarchal progenitors, [2] the conquest a n d division of the L a n d by a n d a m o n g social groups defined along those original lines of family a n d genealogy (now: by tribes m a d e u p of families), a n d [3] the c o n t i n u i n g possession of, a n d transactions concerning, ownership of real property in the L a n d divided by tribes, and, within the tribes, by families. O n the family as the building block of the social order of C o r p o rate Israel both the A g g a d a h a n d the H a l a k h a h then concur. But "household" in the H a l a k h a h of the Mishnah-Tosefta-YerushalmiBavli. T h a t is why we begin with conflicts interior to the life of the Israelite family." But "household"•—not a theological but a juridical a n d economic category—defines the boundaries of category-formations as well, a n d conflicts between households figure in the Halakhic categorical framework. " H o u s e h o l d " serves as a social m e t a p h o r , invoking the notion of dominion over shelter ("house") or place or location or unit of agricultural production as the key to all else. But just as with the case of "family,' ‫ י‬the membership of a "household" encompasses more

CONFLICTS BETWEEN FAMILIES

53

than those who dwell u n d e r one roof. And it m a y include, by reason of extended family, those that do not live in the same physical housing at all. It is rather, all those engaged in one way or a n o t h e r in the tasks of a whole unit of production (generally assumed to be a farming enterprise). And m e m b e r s of a c o m m o n household u n d e r the authority of the head of the household (ba'al habbayit) do not form a c o m m o n unit of genealogy, e.g., descendants of a single progenitor, short of "our father" A b r a h a m . In the H a l a k h a h the household is comprised by the head of the household and his extended family, including adult sons, their wives a n d children, and u n m a r r i e d adult daughters, but also beyond the natural family, the indentured household servants ("slaves"), who have been converted to J u d a i s m or were born Jews, and other affiliated workers, craftsmen and artisans. A b r o a d range of dependents may figure in a c o m m o n household, hence that too forms a building block of the social order capable of engaging in systemically-consequence conflict. As the unit of production, entering transactions of an economic c h a r a c t e r , the household involves conflicts over property. Disputes about movables, for example, ordinarily are f r a m e d in the language of conflict between households. T h e household is also taken for granted as a unit of ownership and possession of real property, even absent an economic function as means of production. O n the household as the building block of the economic order of corporate Israel the H a l a k h a h constructs its principal disquisitions on contention a n d conflict. Given its focus on the interiorities of Israelite existence, the Halakhic system finds in this area no counterpart in the Aggadah, with its interest in exterior relationships. N o w to the Rabbinic identification a n d analysis of disputes between Israelite families or households and their resolution. We begin with the starting point: the union of families.

II. Disputes in the Union of Families through Marriage. Qiddushin W e follow the Halakhic exposition of conflicts involved in category-formations of the formation of a family, Qiddushin and Ketubot, then of its breakdown, Sotah, a n d dissolution, Gittin and Y e b a m o t , the cessation of a marriage by h u m a n and divine intervention, respectively. In all instances, what concerns us is where the H a l a k h a h addresses conflict between and among parties to the family-unit. What

54

CHAPTER

ONE

we notice even before we address the pertinent category-formations is, the principal parties to the relationship are the husband, the wife, and the wife's father. Omitted categorically are relationships between a n d a m o n g siblings (except so far as the wife's brothers enter the position of the father upon his death, or of the h u s b a n d in the case of the husband's death without children). T h e extended family—e.g., other daughters of the same family, or co-wives of the same widow, or other relationships addressed at Lev. 18 a n d its systematic exposition of prohibited marriages by reason of consanguinity) plays only a circumstantial role. Not only so, but while the H a l a k h a h of the pertinent category-formations, Q i d d u s h i n , then K e t u b o t , is extensive, the relationships of conflict to which the H a l a k h a h of those category-formations pertains is not. Explicit points of contentious intersection are few, and, in due course, we shall find it possible to explain why these, a n d no other possible, conflicts are subjected to an exposition by the H a l a k h a h that embodies Rabbinic J u d a i s m in its formative statement. A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship T h e family defines the smallest whole a n d indivisible building block of the Israelite social order that embodies corporate Israel's constituent components. In Rabbinic J u d a i s m . T r u e , individuals play their role; but while individuals marry, what counts is that families merge a n d emerge. T h a t merger of families requires the w o m a n ' s family to assign to the daughter her share of the patrimony, which the man's family takes over, just as the m a n ' s caste-status defines that of the offspring of the union. T h e systemic interest, then, is clear: the relationship of the individuals in the formation of a marital union links two families, enriching the one that receives the bride, compensâting the one that gives her up. T h a t explains why the act of betrothal forms a particular detail of the larger theory of how a m a n acquires title to, or possession of, persons or p r o p e r t y of various classifications. T h a t is the this-worldly side of the H a l a k h a h ; the transcendent part emerges with the result: the sanctification of the relationship between a particular w o m a n a n d a particular m a n , so that she is consecrated to him a n d to no other. 2 T h e upshot is, just 2

No one in the formative age deemed the relationship reciprocal; a particular man was not consecrated to a particular woman, since the Halakhah presupposes polygamy.

CONFLICTS BETWEEN FAMILIES

55

as a f a r m e r acquired a slave or an ox or real estate, so he effected possession of, gained title to, a w o m a n . But while the slave or ox or field could never be called "consec r a t e d " to that particular farmer, so that the language of sanctification never operates in such transactions, the act of acquisition of a w o m a n has also transformed the relationship of the w o m a n not only to that m a n who acquired her but to all other m e n . T h e w o m a n to begin with is d e e m e d by the W r i t t e n T o r a h to f o r m a p r o p e r t y belonging to her father, to be transferred to the ownership of her husband. In that regard, the governing analogy for the acquisition of a w o m a n as consecrated wife derives from the rules of the transfer of title to property. But the w o m a n must concur in the transaction, and that separates her from all others subject to the ownershi{> the free-will—of others. A n d there is a second difference. T h e language that is used here, the language of sanctification, derives from the T e m p l e , and, as I said, w h e n we speak of sanctifying or consecrating a w o m a n to a specific m a n , we are using the language of the altar, which speaks of sanctifying an animal to the altar for a particular purpose. So m u c h for the context in which conflicts take place. A survey of the tractate in search of a pertinent conflict and its resolution yields the following item. O n c e more I stress, I present only items that articulate conflict and resolve it, not the many, m a n y Halakhic compositions that yield a picture of how two or more parties can have set forth claims against one another. These I do not reconstruct; they lie beyond the range of this inquiry, which concerns itself only with what the Halakhic category-format ions make explicit, not what they might imply. H e r e a n d throughout, I select the entries from the reprise of the H a l a k h a h , with the articulated outline thereof, set forth in The Halakhah: An Encyclopaedia of the Law of Judaism:'' ‫ יי‬The Halakhah: An Encyclopaedia of the Law of Judaism. Volume I. Between Israel and God. Part A. Faith, Thanksgiving, Enlandisement: Possession and Partnership. Volume II. Between Israel and God. Part B. Transcendent Transactions: Where Heaven and Earth Intersect. Volume III. Within Israel's Social Order. Volume IV. Inside the Walls of the Israelite Household. Part A. At the Meeting of Time and Space. Sanctification in the Here and Now: The Table and the Bed. Sanctification and the Marital Bond. The Desacralization of the Household: The Bed. Volume V. Inside the Walls of the Israelite Household. Part B. The Desacralization of the Household: The Table. Foci, Sources, and Dissemination of Uncleanness. Purification from the Pollution of Death. (All: Leiden, 1999: E . J . Brill. THE B R I M . R E F E R E N C E LIBRARY O F A N C I E N T J U D A I S M ) .

56

CHAPTER ONE

M. 3:10 He who says to a woman, "I have betrothed you," and she says, "You did not betroth me''—he is prohibited to marry her relatives, but she is permitted to marry his relatives. [If] she says, "You betrothed me," and he says, "I did not betroth you"—he is permitted to marry her relatives, and she is prohibited from marrying his relatives. "I betrothed you," and she says, "You betrothed only my daughter," he is prohibited from marrying the relatives of the older woman, and the older woman is permitted to marry his relatives. He is permitted to marry the relatives of the young girl, and the young girl is permitted to marry his relatives. T. 4:13 "I have betrothed you, but she says, " You have betrothed only my daughter, " he is prohibited to marry the relatives of the older woman, and the older woman is prohibited to marry his relatives. And he Is permitted to marry the relatives of the younger woman, and the younger woman is permitted to marry his relatives. M. 3:11 "I have betrothed your daughter," and she says, "You betrothed only me," he is prohibited to marry the relatives of the girl, and the girl is permitted to marry his relatives. He is permitted to marry the relatives of the older woman, but the older woman is prohibited from marrying his relatives." T. 4:14 "I betrothed your daughter," and she says, " You betrothed only me, " he is prohibited from marrying the relatives of the younger girl, and the younger girl is permitted to marry his relatives. And he is permitted to marry the relatives of the older woman, and the older woman is prohibited from marrying his relatives [M. Qid. 3:10]. 1. What is subject to dispute? U n d e r dispute at M . Q i d . 3:10-11 is w h e t h e r t h e b e t r o t h a l h a s taken place, a n d if so, b e t w e e n which parties. At M . 3:10 t h e conflict c o n c e r n s t h e c o n s e q u e n c e of o p p o s e d claims t h a t a b e t r o t h a l h a s taken place. T h e r e is n o issue of a transfer of p r o p e r t y . At stake is only t h e c o n s e q u e n c e s as to f u r t h e r unions. W e impose u p o n t h e claimant t h e implications of his claim. Since t h e m a n claims to have b e t r o t h e d the w o m a n a n d she denies it, h e is believed vis-à-vis h e r female relatives a n d m a y n o t m a r r y a n y of t h e m . But she is believed vis-à-vis his m a l e relatives a n d m a y m a r r y a n y of t h e m . T h e same issue works itself o u t in variations. W e note that t h e testimony of the m o t h e r that t h e m a n h a s b e t r o t h e d t h e d a u g h t e r h a s n o affect u p o n t h e d a u g h t e r . So t h e issue is n o t t h e d e t e r m i n a t i o n of the facts subject to c o n t e n t i o n , only t h e resolution of the implications of the

CONFLICTS BETWEEN FAMILIES

57

several claims. T h a t yields the anomaly that lies at the heart of the matter. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e governing principle is, a person's claim in his own regard is affirmed so far as he, but no one else, is concerned. A person cannot on his own cannot define another party's status. T h e context does not encompass the transfer of property or the formation of a family-unit, only the consequences of the self-ascribed status. These have to do with the prohibitions of consanguineous relationships as defined by the T o r a h at Lev. 18. T h a t is the sole systemic interest in the transaction. As I said, this is the sole pertinent entry in the Halakhic category-formation, Qiddushin. B. The Halakhic Resolution of Conflict T h e resolution of the conflict accepts the conflicting claims and simply turns t h e m back u p o n those w h o enter them. But the claim of one party has no bearing on the standing of the other party. N o institutional intervention is c o n t e m p l a t e d . T h e law simply declares the standing of the two parties vis-à-vis those affected by their claims in their own behalf. T h e obvious premise is, further intervention beyond a declaration of fact is not required. So the sages' court is not instructed on how to reach a decision on the conflicting claims, only on how to work out the consequences of these claims, none of which can be verified, all of which bear implications for relationships with third parties. C. How does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof C o r p o r a t e Israel concerns itself with insuring that the relationships prohibited by Lev. 18 not be entered into in Israel. T h e particular class of conflicts that is addressed—conflicting claims as to personal status—is resolved in the simplest possible way. T h e range of issues d e m a n d i n g attention could not be defined m o r e narrowly. Property does not enter in, because the H a l a k h a h does not contemplate affirming that a betrothal in actuality has taken place; implicit is the opposite result; so there are no transfers of property involved in the

58

CHAPTER

ONE

resolution. T h a t is self-evident, because the party who denies the betrothal is unaffected by the claim of having been betrothed; she is treated as not-betrothed. T h e issue of her receiving a writ of divorce a n d p a y m e n t for the marriage-settlement that the m a n ' s allegation claims he has entered into is not raised; his claim on her does not extend to her requiring alimony or a writ of divorce to nullify the effect of his claim. So the point of the Halakhah is, what one says about oneself affects one's own standing but no one else's. Now, as a m a t t e r of fact, an entire c a t e g o r y - f o r m a t i o n , N e d a r i m , is built on that point. T h e principle by which the conflict is resolved indeed extends to a variety of category-formations. T h e systemic interest is particular to this context, not a generalized concern to register a principle that transcends the case, a n d it is, as I said, to make certain the prohibitions of Lev. 18 register even in a conflict over whether a betrothal has taken place, and, if so, with w h o m . T h e Halakhic system does not imagine that the sages' court can sort out the truth a m o n g the conflicting claims; that is not the focus of the ruling at all. T h e case before us offers the hypothesis that, where disputes register a n d receive Halakhic articulation and resolution, issues partieular to the T o r a h ' s imperatives define w h a t is at stake. T h e n what about the generative problematic of the category-formation before us, that is, Qiddushin? Now, as a matter of fact, the one important dispute in the entire category-formation in no way engages with that matter. Let m e explain. T h e problematic of the H a l a k h a h of Qiddushin, the sanctification of a particular w o m a n for a particular m a n , emerges in the intersection of the language of acquisition with the language of sanetiflcation. A householder buys a cow, in acquiring it, he does not sanctify it. Unless he m e a n s to offer it on the altar in J e r u s a l e m , a person who utilizes the same cow, e.g., milks it or uses it for plowing, does not offend G o d . T h e issue of sanctification does not enter the transaction. But a householder acquires a w o m a n thereby consecrates the w o m a n as his wife. Another person who utilizes the same w o m a n , e.g., has sexual relations with her and produces children by her, enormously outrages G o d (not to mention the husband). T h e category, sanctification and its opposite, applies. Yet in both instances the result is, acquiring title to, rights over the cow or the w o m a n . T o turn, after this brief statement of matters, to the question at hand: where a dispute as to a transaction registers and is resolved,

CONFLICTS BETWEEN FAMILIES

59

it has nothing to do with the generative problematic of the topical exposition at all. It has to do with the point at which the topical exposition bears implications for the law of the written Torah, the issue of consanguinity. It suffices, then, to derive a simple conclusion. O n e type of conflict to which the H a l a k h a h will devote attention will concern contention that bears upon the law m a d e explicit in the written T o r a h , with special concern to avoid violating the T o r a h ' s law. Along with the present one, o t h e r categories of conflict will c o m e before us in Ketubot. But what we now contemplate, as a hypothesis, is, where the system identifies consequential conflict within its category-formations, the reason for the choice is not linked to the generative tensions of the c a t e g o r y - f o r m a t i o n at h a n d but the intersecting interests of the T o r a h ' s law. Stated more simply: knowing what defines the points of acute concern for the category-formation, Qiddushin, does not tell us m u c h about the character of the conflicts that the exposition of that category-formation will highlight—not at all. A different focus comes to bear altogether. 4

III. Disputes in the Union of Families through Marriage. Ketubot T h e marriage-contract, or K e t u b a h , providing a settlement to support the wife, validates the relationship that families establish through the union of their offspring. T h e h u s b a n d thereby undertakes to support the wife, should he divorce her or die, to permit her time to remarry. T h e a m o u n t of the settlement depends on the status of the wife—virgin or n o t — a t marriage. But the p a y m e n t of the settlement m a y depend upon the conduct of one or another party to the union, e.g., the husband's abuse of authority in the relationship, the wife's violation of the implicit obligations of an Israelite wornan. In the f o r m e r case, the h u s b a n d has to pay off the marriagesettlement a n d issue a writ of divorce, in the latter, the wife loses all claim to alimony. These are the instances in which articulated (as distinct f r o m fabricated or imagined) conflicts d e m a n d attention within the Halakhic system. 4 A hypothesis presents itself. T h e kind of conflict that, from a systemic perspective, would mar the perfection of corporate Israel is then defined as unresolved conflict with a bearing on the law of the written T o r a h . But at this point that is too general to serve.

60

CHAPTER ONE

A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M a t t e r s of p e r s o n a l status d o n o t exhaust t h e H a l a k h i c p r o g r a m f o r the u n i o n of families, f o r t h e transaction e n c o m p a s s e s a n e x c h a n g e of wealth b e t w e e n t h e m . T h e h u s b a n d ' s family gains t h e d a u g h t e r as wife for its son a n d m o t h e r of future generations; property pledged in s u p p o r t of the w o m a n c h a n g e s h a n d s . T h e wife's family loses a n asset b u t also ceases to have to s u p p o r t t h e d a u g h t e r ; she f u r t h e r h a s a claim o n a n i n h e r i t a n c e o u t of h e r f a t h e r ' s h o u s e h o l d ' s p r o p e r t y , a n d that h a s to b e h o n o r e d t h r o u g h t h e p a y m e n t of a dowry. N e a r ly t h e whole of t h e H a l a k h a h of K e t u b o t , d e v o t e d as it is to t h e transaction in p r o p e r t y in a marital union, covers conflicting claims. But only at specific points a r e t h e conflicts articulated, a n d to these we restrict o u r a c c o u n t . T h e r e are, in fact, t h r e e parties t o potential conflict, t h e wife a n d h u s b a n d a n d wife's f a t h e r . All t h r e e e n j o y m a t e r i a l rights, t h e f a t h e r to certain fees a n d fines u n d e r conditions specified b y Scripture, a n d , m o r e t o t h e point, t h e wife to p r o t e c tion d u r i n g t h e m a r r i a g e a n d a l i m o n y o r s u p p o r t in t h e event of divorce o r w i d o w h o o d , t h e h u s b a n d to t h e d o w r y . T h e basic question facing t h e H a l a k h a h is h o w to spell o u t t h e reciprocal a n d c o r r e s p o n d i n g rights a n d obligations of all parties t o the m a r r i a g e as it unfolds. T h e m a r r i a g e - c o n t r a c t defines t h e locus for w o r k i n g o u t those rights a n d obligations; e a c h p a r t y h a s a n interest in t h e orderly f o r m a t i o n of the social a n d e c o n o m i c fact of the m a r r i a g e — a n d in its fair a n d orderly dissolution as well. H e r e the dissolution involves collecting t h e m a r r i a g e - s e t t l e m e n t f r o m t h e h u s b a n d ' s estate). T h a t d o c u m e n t a n d the a r r a n g e m e n t s it represents have n o f o u n d a t i o n s in Scripture a n d constitute a c o n t r i b u t i o n of the O r a l p a r t of the T o r a h alone. M. 2:1 The woman who was widowed or divorced—she says, "You married me as a virgin"—and he says, "Not so, but I married you as a widow"—if there are witnesses that [when she got married], she went forth to music, with her hair flowing loose, her marriage contract is two hundred [zuz]. T. 1:4 [If] he married her in the assumption that she was suitable and she turned out to have had prior sexual relations, even though she was in private [with him], [or] there are witnesses that she was not alone with him for sufficient time to have sexual relations, the second has

CONFLICTS BETWEEN FAMILIES

61

no claim of virginity against her. Therefore the marriage-contract on his account is only maneh. T. 1:5 He who accuses [his bride of having had sexual relations with another man before marriage], and his witnesses against her turn out to be conspirators—he is scourged and pays four hundred zuz [to the accused woman]. And the conspiratorial witnesses are taken out for stoning. [If] she was an orphan, he is scourged, and her marriagecontract remains valid, and he pays her four hundred zuz [in addition to it]. And the conspiratorial witnesses are taken out for stoning. [If] he did not tell the witnesses to bear witness, but they came along on their own and testified against the girl [and they turned out to be conspirators]—he [the husband] is not scourged and does not pay her four hundred zuz. But the conspiratorial witnesses are taken out for stoning. [If] she committed fornication when she was a girl, and after she had matured, he accused her [of having done so], he is not scourged and does not pay four hundred zuz. And she or the conspiratorial witnesses against her are then taken out for stoning. 1. What is subject to dispute? T h e articulated conflict concerns the status of the bride on the occasion of the marriage: virgin or otherwise (widow, divorcee). If the former, she collects twice the sum owing for alimony or support should the h u s b a n d divorce her or die. Dt. 22:13-21 covers this matter. I give the entire text, so that the contrast between the formulation of matters by the Written T o r a h and the focus of the O r a l T o r a h in Q i d d u s h i n will be sharply drawn in detail: If any man takes a wife and goes in to her and then spurns her and charges her with shameful conduct and brings an evil name upon her, saying, "I took this woman and when I came near her, I did not find in her the tokens of virginity,'' then the father of the young woman and her mother shall take and bring out the tokens of her virginity to the elders of the city in the gate; and the father of the young woman shall say to the elders, "I gave my daughter to this man to wife, and he spurns her, and lo, he has made shameful charges against her, saying, I did not find in your daughter the tokens of virginity. And yet these are the tokens of my daughter's virginity." And they shall spread the garment before the elders of the city. Then the elders of that city shall take the man and whip him, and they shall fine him a hundred shekels of silver and give them to the father of the young woman, because he has brought an evil name upon a virgin oflsrael; and she shall be his wife; he may not put her away all his days. But if the thing is true, that the tokens of virginity were not found in the young woman, then they shall bring out the young woman to the door of her father's house, and the men of her city shall stone her to death with stones, because she has wrought folly in Israel, by playing the

62

CHAPTER ONE

harlot in her father's house; so you shall purge the evil from the midst of you. T h e H a l a k h a h provides for t h e resolution of the claim long after the first act of intercourse. T h e entire c o n t e x t — s e x u a l m i s c o n d u c t vs. d e f a m a t i o n — d e f i n e d by Scripture is side-stepped in the f o r m u l a t i o n of the terms of the conflict. But as to t h e identification of c o n s e q u e n tial c o n t e n t i o n , t h e issue i m p o r t a n t to t h e O r a l T o r a h is precisely the o n e urgent in t h e W r i t t e n T o r a h . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e entire t r a n s a c t i o n intersects with S c r i p t u r e ' s c o n c e r n over a conflict as t o t h e status of t h e wife a t m a r r i a g e . But t h e r e is n o e n g a g e m e n t with Scripture's p r o c e d u r e , o r even its definition of the m a t t e r , t h o u g h t h e conflict is t h e s a m e . T h e conflict is resolved judicially, t h r o u g h t h e provision of witnesses. If the w o m a n claims to have b e e n a virgin at m a r r i a g e , a n d circumstantial evidence sustains h e r claim, she is a w a r d e d t h e a p p r o p r i a t e a l i m o n y for a virgin. T h e case is not parallel to Scripture's; it is d e f i n e d as a contest c o n c e r n i n g p r o p e r t y , n o t status, in t h e absence of a n explicit m a r riage-contract, which will have settled t h e m a t t e r . T h e next set of rulings involves a conflict b e t w e e n h u s b a n d a n d wife, in which sages have to b a l a n c e t h e h u s b a n d ' s a u t h o r i t y against the wife's h u m a n rights. W e d o n o t have a n explicit articulation of the conflict, e.g., t h e h u s b a n d p r o h i b i t s . . . , t h e wife c l a i m s . . . . But the conflict is close t o explicit: h e prohibits t h e wife b y v o w f r o m d o i n g such a n d such (thus t h e m a t t e r is articulated), a n d , b y implication, she appeals t o t h e sages f o r relief. T h i s is o n e of those r a r e cases in which t h e failure of the H a l a k h a h t o e x p o u n d t h e conflict leaves n o a m b i g u i t y as t o w h a t is at stake, a n d h e n c e I include it in this account of the systemic definition a n d disposition of consequential c o n t e n t i o n . I give a fairly sizable sample of the H a l a k h i c repertoire. M. 7:1 He who prohibits his wife by vow from deriving benefit from him for a period of thirty days, appoints an agent to provide for her. [If the effects of the vow are not nullified] for a longer period, he puts her away and pays off her marriage contract. M. 7:2 He who prohibits his wife by vow from tasting any sin-

CONFLICTS BETWEEN FAMILIES

T.

M.

M.

T.

M.

T.

T.

T.

63

gle kind of produce whatsoever must put her away and pay off her marriage contract. 7:2 A. [If] he prohibited her by vow from tasting any type [of produce whatsoever, M. Ket. 7:2A], whether it is foul or delectable food, even if she for her part had never tasted that sort of produce once in her entire life, he must put her away and pay off her marriage-contract. 7:3 He who prohibits his wife by a vow from adorning herself with any single sort of jewelry must put her away and pay off her marriage contract. 7:4 He who prohibits his wife by a vow from going home to her father 5 s house—when he [father] is with her in [the same] town, [if it is] for a month, he may persist in the marriage. [If it is] for two, he must put her away and pay off her marriage contract. And when he is in another town, [if the vow is in effect] for one festival season he may persist in the marriage. [But if the vow remains in force] for three, he must put her away and pay off her marriage contract. 7:3 [If] he prohibited her by vow from adorning herself with any sort of adornment [M. Ket. 7:4A], even if she is a young girl, and he prohibited her by vow from putting on the clothes of an old lady, even if she is an old lady, and he prohibited her by vow from putting on the clothes of a young girl, he must put her away and pay off her marriage-contract. 7:5 He who prohibits his wife by a vow from going to a house of mourning or to a house of celebration must put her away and pay off her marriage contract, because he locks the door before her. But if he claimed that he took such a vow because of some other thing, he is permitted to impose such a vow. [If he took a vow,] saying to her, (1) "On condition that you say to So-and-so what you said to me," or (2) "what I said to you," or (3) "that you draw water and pour it out onto the ash heap," he must put her away and pay off her marriage contract. 7:4 [If] he prohibited her by vow from lending a sieve or a strainer, millstones or oven [to her girlfriend], he must put her away and pay off her marriage-contract, because he gives lier a bad name among her neighboring women. And so she who prohibited him by vow from lending a sieve or a strainer, millstones or oven, must go forth without payment of her marriage-contract, because she gives him a bad name in his neighborhood. 7:5 [If] he prohibited her by vow from going to a house of mourning or to a house of celebration, he must put her away and pay off her marriage-contract, because sometime later she will be laid out [for burial] and not a single human being will come to pay respects to her. 7:6 [If] he required her by vow to give a taste of what she was cooking to everybody [who came by], or that she draw water and pour it

64

CHAPTER ONE

out onto the ash-heap [M. things which are between her away and pay off her haved with her in accord

Ket 7:5D], or that she tell everybody about him and her [M. Ket. 7:5D], he must put marriage-contract, because he has not bewith the law of Moses and of Israel.

1. What is subject to dispute? At issue is w h e t h e r t h e h u s b a n d m a y impose his will u p o n t h e wife c o n c e r n i n g m a t t e r s in which she h a s t h e right t o exercise h e r o w n will a n d a u t o n o m o u s j u d g m e n t . H e does not, a n d if h e a t t e m p t s to d o so, t h e costs a r e e n o r m o u s . T h e h u s b a n d t h e n claims t h e right to control p e r s o n a l details of his wife's c o n d u c t , a n d t h e wife resists t h a t claim. W h a t is s u b j e c t to d i s p u t e , t h e n , is t h e r a n g e of t h e h u s b a n d ' s control of the wife, a n d t h e sages' j u d g m e n t is clear: h e m a y n o t interfere with long-standing relationships of a n a u t o n o m o u s c h a r a c t e r that t h e wife m a i n t a i n s . S h e retains personality a n d a u t o n o m y in the m a r r i a g e . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e H a l a k h a h does n o t c o n t e n d with the h u s b a n d ' s claim, it resolves the conflict b y dismissing t h a t claim. T h e wife is paid off, t h e h u s b a n d incurs t h e costs of t h e m a r r i a g e - s e t t l e m e n t called f o r in t h e marriage-contract; the conflict that he has precipitated is t a n t a m o u n t to a n act of divorce. T h e upshot is, t h e H a l a k h a h regards as weighty the claim of the h u s b a n d for control of the wife a n d n o t only rejects that claim b u t summarily dismisses it a n d t h e marriage that embodies it. N o w t h e c o u n t e r p a r t f o r t h e wife c o m e s to t h e fore: h e r implicit obligation t o c o n d u c t herself in a c c o r d with t h e law of the T o r a h a n d t h e penalties inflicted o n h e r if she does n o t . M. 7:6 And those women go forth without the payment of the marriage contract at all: She who transgresses against the law of Moses and Jewish law. And what is the law of Moses [which she has transgressed]? [If] (1) she feeds him food which has not been tithed, or (2) has sexual relations with him while she is menstruating, or [if] (3) she does not cut off her dough-offering, or [if] (4) she vows and does not carry out her vow. And what is the Jewish law? If (1) she goes out with her hair flowing loose, or (2) she spins in the marketplace, or (3) she talks with just anybody. T. 7:6 And so she who goes out with her hair flowing loose [M. Ket. 7:6D], who goes out with her clothes in a mess, who acts without shame in

CONFLICTS BETWEEN FAMILIES

65

the presence of her boy-slaves and girl-slaves and her neighbors, who goes out and spins wool in the marketplace [M. Ket. 7:6], who washes and bathes in the public bath with just anyone, goes forth without payment of her marriage-contract, for she has not behaved with him [her husband] in accord with the law of Moses and Israel [M. Ket. 7:6], T. 7:7 What is a loudmouth? Anyone who, when she talks in her own house—her neighbors can hear her voice [M. Ket. 7:6P]. All these women who have transgressed the law must have fair warning, but [if they persist after fair warning], then they go forth without receiving payment of their marriage-contract. [If] one did not give them fair warning, he must put her away but pay off her marriage-contract— and one need not say it is two hundred to a virgin and a maneh to a widow. But as to more than this: Even if her marriage-contract is in the sum of a hundred manehs, she has lost the whole thing. She takes merely the old rags which are laid out before her [and leaves], 1. What is subject to dispute? N o w the limits on the wife's claim to conduct herself any way she wishes are set. T h e conflict is exposed by the wife's conduct and the h u s b a n d ' s implicit objections to the sages. For at stake, once more, is property: does the h u s b a n d have to pay the marriage-settlement stipulated in the marriage-contract in the present circumstance? O n c e m o r e , the H a l a k h a h does not seriously confront the wife's implicit claim to collect. It declares that she has no such right. 2. How does the system resolve the conflict in line with the systemic interest that is in play? J u s t as the husband's conduct is summarily penalized, so here too, the H a l a k h a h does not for one minute contemplate according to the wife any part of her claim. She has no right to violate the law of the T o r a h , which overrides all property claims she may have in mind. So in both instances—the h u s b a n d ' s overreaching in one direction, the wife's in a n o t h e r — t h e H a l a k h a h recognizes no conflict that requires adjudication. But while the husband's offense is against the wife, the wife's is against the T o r a h , a n d the husband is joined, in the conflict, by the T o r a h itself. T h e final unit concerns itself with the collection of the marriagesettlement. T h e wife wishes to collect f r o m the h u s b a n d or his estäte the stipulated sum. Implicit is the husband's or the estate's claim that she already has done so. H e r e again, the issue is, how to resolve conflict when the facts cannot be established, e.g., when the h u s b a n d has no receipt, or quittance, to show that he has paid the

66

CHAPTER ONE

stipulated sum, o r t h e wife h a s t h e m a r r i a g e c o n t r a c t b u t n o writ of divorce t o show that she h a s a legitimate claim o n alimony. Given the r a n g e of u n c e r t a i n transactions, w h e r e each p a r t y enters a plea, we m u s t ask, w h y this p a r t i c u l a r conflict, a m o n g t h e entire set of possibilities, involves t h e articulation of a conflict a n d t h e m e d i u m of resolving it? T h e a n s w e r is clear f r o m t h e starting point: here is where H e a v e n intervenes. A n oath is taken, alerting G o d to the truthclaim a n d asking h i m to validate it, a n d t h e only issue, in resolving the conflict, is w h o gets t o take t h e o a t h a n d so validate t h e claim? M. 9:7 She who impairs her marriage contract collects it only through an oath. [If] one witness testified against her that it had been collected, she collects it only through an oath. From (1) the property of the heirs [orphans], or from (2) property subject to a lien, or (3) in his [the husband's] absence should she collect [her marriage contract] only through an oath. T. 9:4 She who claims less than the full value of her marriage-contract collects it without an oath. How so? [If] her marriage-contract had a value of a thousand zuz, and he said to her, "You have collected your marriage-contract," and she says, "I have not collected it, but it is of a value of only a maneh," she collects that amount without an oath [M. Ket. 9:7A, 9:8A—C], As to [collecting what is owed to her by seizing] mortgaged property [M. Ket. 9:7C2], it is not necessary to say after her husband's death, but even while her husband is yet alive [does she collect only through an oath]. As to the property belonging to the orphans, it is not necessary to say, that of the adults [minors], but even that of the minors [adults] [does she collect only through an oath]. M. 9:8 "She who impairs her marriage contract" [M. 9:7A]: How so? [If] her marriage contract was worth a thousand zuz, and he said to her, "You have collected your marriage contract," but she says, "I have received only a maneh [a hundred zuz]," she collects [the remainder] only through an oath. [If] one witness testified against her that it had been collected: How so? [If] her marriage contract was worth a thousand zuz, and he [the witness] said to her, "You have collected the value of your marriage contract," and she says, "I have not collected it,'' and one witness testified against her that it had been collected, she should collect the marriage contract only through an oath. "From property subject to a lien" [M. 9:7C2]: How so? [If the husband] sold off his property to others, and she comes to collect from the purchasers, she should collect from them only through an oath. From the property of the heirs [orphans] [M. 9:7C1]: How so? [If the husband] died and left his property to the

CONFLICTS BETWEEN FAMILIES

67

orphans, and she comes to collect [her marriage contract] from the orphans, she should collect from them only by an oath. "In his absence" [M. 9:7C3]: How so? [If the husband] went overseas, and she comes to collect [her marriage contract] in his absence, she collects [what is due her] only by an oath. M. 9:9 [If] she produced a writ of divorce, and a marriage contract is not attached to it, she collects her marriage contract. [But if she produced] a marriage contract, and a writ of divorce is not attached to it, [and if] she claims, "My writ of divorce is lost," [while the husband] claims, "My quittance is lost''—and so, too, a creditor who produced a bill of indebtedness and a prosbol [securing the loan in the year of release] is not attached to it—lo, these [parties] may not collect [what they claim]. [If she produces] two writs of divorce and two marriage contracts—she collects [the value of] two marriage contracts. [If she produces] (1) two marriage contracts but only one writ of divorce, or (2) one marriage contract and two writs of divorce, or (3) a marriage contract and a writ of divorce and a death [certificate], she collects only one marriage contract. For he who divorces his wife and then remarries her—on the strength of the first marriage contract does he remarry her. And a minor boy whose father married him off—her [his wife's] marriage contract is confirmed [as valid after he reaches maturity]. For on the strength ofthat document he confirmed [the marriage when he came of age]. A proselyte who converted, and his wife alongside [did the same]—her [original] marriage contract is valid. For on the strength of that document he [the husband] confirmed [the marriage]. T. 9:5 [If] she produced a writ of divorce, and a marriage-contract is not attached to it [M. Ket. 9:9A]—a virgin collects two hundred zuz, and a widow, a maneh. [If she produced] a marriage-contract, and a writ of divorce is not attached to it [M. Ket. 9:9B], she collects nothing, because if she says, "My writ of divorce got lost," then he counters, "My quittance got lost" [M. Ket. 9:9C-Dj. M. 13:4 He who claims that his fellow [owes him] jugs of oil, and the other party admitted that he owes him [empty] jugs—since he has conceded part of the claim, let him take an oath. M. 13:9 Two who produced bonds of indebtedness against one another—this one collects his bond of indebtedness, and that one collects his bond of indebtedness. 1. What is subject to dispute? Scripture's a n d t h e O r a l T o r a h ' s legal p r o c e d u r e s m e r g e with t h e

68

CHAPTER

ONE

oath, to which Scripture attaches the most solemn importance, involving as it does taking the Lord's n a m e . T h e H a l a k h a h articulates the dispute over the collection of the marriage-settlement to indicate whether or not an oath is required for the plaintiff to collect w h a t is owing to her. T h e specified cases, M . 9:7-8, involve the h u s b a n d ' s provision of witnesses for his claim; these are overridden by the wife's oath. But at M . 9:9 the condition of the d o c u m e n t a r y evidence—a marriage contract without a writ of divorce, as against the loss of the quittance indicating the marriage-settlement has been p a i d — d o e s not justify introducing the oath. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict that attracts attention is one in which G o d ' s n a m e is introduced, as with the oath. T h e system provides for the oath when the evidence is insufficient to sustain a decision on any other basis. T h e n the person w h o is allowed to take the oath also collects what she claims. T h a t represents a n absolute validation, because the w o m a n takes the oath by invoking G o d ' s n a m e . T h e n the conflict between the parties to the marriage a n d property settlement concerns, whose claim is established by the right to take the oath? It is the plaintiff, the wife, not the defendant, who does not wish to transfer the property. T h e s e represent the conflicts articulated by the category-formation, Q i d d u s h i n , a n d resolved by that category-formation in the specified m a n n e r . These data in hand, we turn to the theoretical task. B. The Halakhic Resolution of Conflict T h e s e represent the articulated conflicts in the category-formation, Ketubot. H o w are they resolved, a n d why these conflicts in partieu l a r — t h e answers to both questions intersect. T h e resolution of conflict takes three media. First, the court decides on the basis of evidence, whether of witnesses or attested circumstances, M . 2:1. Second, where either party to the conflict has crossed the b o u n d s set by the T o r a h , the plaintiff is s u m m a r i l y a w a r d e d the ruling. T h e h u s b a n d has to pay off the marriage-setd e m e n t , or the wife loses it, as the case m a y be. So in either case, the T o r a h ' s rules dispose of conflict: whoever has violated the T o rah's law has no case to make. T h i r d , where both parties have ev-

CONFLICTS BETWEEN FAMILIES

69

idence sustaining their respective claims, the wife is given the right to take an oath a n d realize her claim. C. Ilow does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof W h e n the K e t u b a h evokes the transformation of the status of the w o m a n , it takes its place in those formularies—whether d o c u m e n tary or not, whether fully articulated or n o t — t h a t bear the power to change facts on earth. T h a t is because H e a v e n responds to and confirms that same language. H e a v e n takes seriously the language of h u m a n transactions, in oaths a n d vows as other formularies in which H e a v e n has a special interest, so that if m a n violates his commitment to m a n , G o d intervenes. T h e entire relationship of betrothal a n d marriage, fidelity in marriage on the part of the w o m a n , and the dissolution of marriage—all of these transactions are effected through Heavenly-supervised formularies. T h a t is why two of the three important points at which the Halakhah articulates conflict and resolves it—the h u s b a n d ' s or the wife's overreaching, the one in control, the other out of control, in rebellion, and the imposition of the oath—focus not on the marriage-contract but on the relationship entailed by it. H e a v e n is interested in the correct writing of the d o c u m e n t , to be sure, but imposes its will, whether or not the docu m e n t itself is involved. T h a t is the lesson that we learn from the matter of the husband's excessively controlling the wife's relationships, on the one side, a n d of the provision for the wife to take an oath where the d o c u m e n t is somehow impaired, on the other. H e r e the conflict that requires articulation involves H e a v e n ' s particular interest, in the one case because the h u s b a n d ' s or the wife's conducts overrides all the protections of the d o c u m e n t , in the other because of the engagement of G o d ' s n a m e via the oath. T h e question of who takes the oath and so secures his or her claim will arise again, when conflicts between individuals over property come to resolution in that same m a n n e r . T h e law then has to determine w h o has the right to collect by taking an o a t h — w h o is the presumptive owner of contested property. T h e issue in the present context is, who is favored by the power of the oath, and it is the wife w h o seeks to collect the marriage-settlement. So while the marital relationship presents numerous occasions for conflicting claims, where the H a l a k h a h identifies a conflict and

70

CHAPTER

ONE

resolves it, it is where H e a v e n ' s interest, for one reason or another, proves p a r a m o u n t . W h a t about the claim against the wife's virginity? T h a t too, as a m a t t e r of fact, is an issue raised by the T o r a h . So all three principal cases of exposition of conflict—for one reason or another—involve a H e a v e n ' s interest, a n d there, we see time a n d again, H e a v e n setties matters as it will, without negotiation. O n c e more, therefore, where a dispute makes its a p p e a r a n c e , the setting tends to be defined by the engagement of the law of the T o r a h . But the Written T o r a h ' s definition of a category-formation does not g u a r a n t e e attention to conflict a n d resolution thereof, as we shall now see.

IV. When Marriages Break Down. The Systemic Interest. Sotah F r o m Q i d d u s h i n a n d K e t u b o t , we turn to Sotah and Gittin, dealing with the dissolution of the marriage. These tractates present no the c o u n t e r p a r t to the conflict that characterizes certain aspects of the category-formations, Q i d d u s h i n a n d Ketubot. But each is for its own reason. T h e Halakhic system engages with not only the formation, but also the breakdown, of marriages. But that does not m e a n there is a systemic interest that identifies conflicts for intervention, such as we noted in c o n n e c t i o n with the f o r m a t i o n of the family-unit at Qiddushin and Gittin. Neither of the pertinent category-formations, Sotah a n d Gittin, in their expositions of the H a l a k h a h , addresses conflict between Israelites a n d how to resolve it. T h a t is despite an obvious fact: the relationships within Israel that are subject to discussion e m b o d y contention a critical c o m p o n e n t of Israelite society. For both rest on the foundation of a breakdown in the family-unit— conflict by definition. But for each category-formation, there is a particular reason that explains the failure to contribute to this account of the categorical recognition of consequential conflict a n d its resolution. In the case of Sotah, it is because Scripture's identification of the subject of contention entails, also, a device for resolving the matter. T h a t is the rite of the bitter water imposed u p o n the wife accused of infidelity a n d carried out in the T e m p l e . H e r e the area of conflict a n d the m e d i u m for working out the conflict are specified by Scripture, a n d the R a b b i n i c c o m p l e m e n t to the Written T o r a h has

CONFLICTS BETWEEN FAMILIES

71

no task assigned to it. T h e category-formation, Sotah, takes up the ordeal imposed on the w o m a n accused of unfaithfulness, spelled out in the Written T o r a h (Num. 5:1-31). So, as I said, the Written T o r a h has defined the conflict to which sages devote themselves. T h e topic elicits from the sages of the O r a l T o r a h no searching inquiry. Not only so, but in the Halakhic exposition of the matter, I identify not a single conflict that is identified a n d resolved. T h a t is because Scripture not only has identified, but also has provided the m e d i u m for resolving, the conflict at h a n d . T h a t is, the heart of the matter is the conflict between husband a n d wife on the husband's suspicion of the wife's unfaithfulness, a n d Scripture, on its own, has both defined a n d resolved the matter. T h a t is no articulated conflict left for the sages to address accounts for the secondary and derivative character of their exposition of the category-formation. ' T h a t is not to suggest that the sages do not reshape the H a l a k h a h of Scripture; within its framework, they do. Scripture speaks both of the wife w h o has actually committed adultery, and whose husb a n d is m a d e jealous and the w o m a n whose husband expresses jealousy but who is guildess. Scripture focuses upon the rite at the Temple that a c c o m m o d a t e s the situation. T h e Rabbinic H a l a k h a h takes the ordeal a n d encases it in juridical p r o c e d u r e s , rules of evidence, guidelines m e a n t to protect the w o m a n from needless exposure to the ordeal to begin with. Not only so, but the H a l a k h a h radically revises the entire transaction when it says, if the h u s b a n d expresses jealousy by instructing his wife not to speak with a specified person, a n d the wife spoke with the m a n , there is no juridical result: she still is permitted to have sexual relations with her husband and is permitted to eat heave-offering. But if she went with him to some pri5 In my Scripture and the Generative Premises of the Halakhah, I classify the types of relationship between Scripture and the Halakhic category-formations; the expianation offered here does not pertain throughout. See Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. I. Halakhah Based Principally on Scripture and Halakhic Categories Autonomous of Scripture. Binghamton, ' 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series. Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. II. Scripture's Topics Derivatively Amplified in the Halakhah. Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series. Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. III. Scripture's Topics Independently Developed in the Halakhah. From the Babas through Miqvaot. Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N ! J U D A I S M series. Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. IV. Scripture's Topics Independently Developed in the Halakhah. From Moed Qatan through <'ebahim. Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series.

72

CHAPTER

ONE

vate place a n d r e m a i n e d with him for sufficient time to b e c o m e unclean, she is prohibited f r o m having sexual relations with her h u s b a n d a n d if the h u s b a n d is a priest, she is prohibited from eating heave-offering. T h e H a l a k h a h thus conceives of a two-stage process, two kinds of testimony. In the first kind, she is warned not to get involved, but she is not then prohibited to the husband. In the second kind of stage, witnesses attest that she can have committed adultery. N o t only so, but the H a l a k h a h wants valid evidence if it is to deprive the wife of her marriage-settlement. T h e provision of the H a l a k h a h certainly closes off the possibility of conflict, except as to facts. If a single witness to the act of intercourse is available, that does not suffice. People w h o ordinarily cannot testify against her do not have the power to deprive her if her property rights in the marriage, e.g., her mother-in-law and the daughter of her motherin-law, her co-wife, and the husband's brother's wife, and the daugh-. ter of her husband. T h e accused wife still collects her settlement. But because of their testimony, she does not u n d e r g o the rite; she is divorced in course a n d the transaction concludes there. Before the ordeal is invoked, the Rabbinic H a l a k h a h therefore wants some sort of solid evidence [ l j of untoward sexual activity and also [2] of clear action on the part of the wife: at least the possibility, confirmed through a specific case, that adultery has taken place. Scripture leaves everything to the h u s b a n d ' s whim, the "spirit of jealousy." So here if the h u s b a n d gives his statement of jealousy and the wife responds by ignoring the statement, the ordeal does not apply. By her specific action the wife has to indicate the possibility that the h u s b a n d is right. This is a far cry from Scripture's "spirit of jealousy." For the Written T o r a h , the ordeal settles all questions. For the O r a l T o r a h , the ordeal takes effect only in carefully defined cases where [1] sufficient evidence exists to invoke the rite, but [2] insufficient evidence to make it unnecessary: well-established doubt, so to speak. Here, in addressing a raw a n d blatant conflict, the H a l a k h a h thus identifies not a single point at which to a u g m e n t , with its own exposition of conflict a n d resolution, the situation of contention that Scripture resolves through the imposition of the rite of the bitter water. T h a t negative result contributes to the unfolding thesis that where R a b b i n i c J u d a i s m takes u p conflict between Israelites, it is where the Written T o r a h for one reason or a n o t h e r has defined a systemically-consequential controversy but requires sages' interven-

CONFLICTS BETWEEN FAMILIES

73

tion to restore Israel's wholeness. In t h e case of the wife accused of unfaithfulness, Scripture h a s a c c o m p l i s h e d t h e entire task. N o w we turn to a similar result, f o r a different reason, in t h e dissolution of the h o u s e h o l d union, t h e writ of divorce.

V . When the Union of Families through Marriage Dissolves. Gittin As with Sotah, Gittin presents t h e a n o m a l y of a c a t e g o r y - f o r m a t i o n d e v o t e d to t h e regulation of t h e result of c o n t e n t i o n in Israel, a n o t h e r o n e that contains n o H a l a k h a h of articulated conflict. I see here n o identification a n d mediation of the kind of contentious claims of two parties that t h e H a l a k h a h of Q i d d u s h i n a n d K e t u b o t yields. T h a t is n o t to suggest t h a t G i t t i n c o n t a i n s n o implicit p o i n t s of conflict; the opposite is t h e case. Every line of the H a l a k h a h of Gittin a n n o u n c e s t h e p r e s e n c e of conflict in Israel. A single e x a m p l e suffices. T h e sages p r o v i d e d for a resolution of the c o n t e n d i n g claim to title of a field, seized b y t h e o c c u p a n t f r o m the original householder. T h e t h i r d - p a r t y p u r c h a s e r of the p r o p e r t y m u s t satisfy b o t h claims, t h e original o w n e r ("householder") a n d t h e u s u r p i n g occup a n t as well (we n e e d n o t digress t o a c c o u n t f o r t h e success of the land-grabber): M. 5:6 The law concerning the usurping occupant did not apply in Judah in the case of those slain in the war. From the time of those slain in the war and thenceforward the law of the usurping occupant did apply. How [does the law apply]? [If] one purchased a property [first] from the usurping occupant and [then] went and [also] purchased it from the householder, his purchase is null. [If he purchased it first] from the householder and [then] went and purchased it from the usurping occupant, his purchase is confirmed. [If] a man purchased it from a man and then purchased it from a woman, his purchase is null. [If] he purchased it from a woman and then purchased it from a man, his purchase is confirmed. This is the first Mishnah. The court after them ruled: He who purchases a property from a usurping occupant pays the owner a fourth of the value. Under what circumstances? When he [the original owner] has not got the means to buy it.

74

CHAPTER ONE

But [if] he has got the means to buy it, he takes precedence over all other people. Rabbi called a court into session and they voted that if the property had remained in the hands of the usurping occupant for twelve months, whoever comes first has the right to purchase it. But he pays the [rightful] owner a quarter of the value. H e r e is a n obvious effort at c o p i n g with p o w e r b e y o n d sages' c o n trol. T h e " u s u r p i n g o c c u p a n t " (land-grabber) h a s possession of the p r o p e r t y in conflict, t h e original, rightful o w n e r has rights that someone, n o t t h e sages, h a s d e n i e d h i m . H o w t o m e d i a t e t h e conflict, w h e r e sages themselves c a n n o t b r i n g a b o u t a j u s t resolution, t h e r e t u r n of the p r o p e r t y t o t h e title-holder? Clearly, a conflict between the original o w n e r a n d t h e l a n d - g r a b b e r underlies t h e provisions of the H a l a k h a h , a n d t h e c o n t e n d i n g claims to title have to be resolved. T h e t h i r d - p a r t y p u r c h a s e r is obligated first to deal with t h e original h o u s e h o l d e r / l a n d o w n e r , t h e n m a y t u r n to t h e l a n d - g r a b b e r , w h o holds title that must be satisfied as well. F r o m o u r perspective, h o w ever, t h e conflict implicit in t h e provisions of the law, b e t w e e n landg r a b b e r a n d h o u s e h o l d e r , does n o t e n t e r into consideration, f o r we deal only with those conflicts that t h e H a l a k h a h f r a m e s as such. W h y n o conflict in Gittin? M u c h of the tractate deals with sages' disposition of t h e writ of divorce u n d e r various circumstances. As with K e t u b o t , so here too, t h e issue engages sages in their scribal role a n d involves questions of correct p r o c e d u r e . T h e social tensions represented by the transaction do not generate the Halakhic p r o gram. While implicit in the sages' discussion is the status of the w o m a n w h o h a s relied o n t h e writ of divorce a n d n o w finds it is invalid (the m a n c a n m a r r y m o r e t h a n o n e wife, so his situation differs), here again, conflict between Israelites—the h u s b a n d alleges the writ is null, the wife d e m a n d i n g its c o n f i r m a t i o n — d o e s n o t surface. N o t e t h e contrast with Sotah. I n the m a t t e r of the conflict between a h u s b a n d a n d t h e wife accused of infidelity, t h e written T o r a h h a s identified the conflict d e m a n d i n g attention a n d h a s also provided for its resolution. In t h e case of Gittin, t h e written T o r a h contributes m i n i m a l i n f o r m a t i o n , at D t . 24:1-4: When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some uncleanness in her and he writes her a certificate of divorce, puts it in her hand and sends her out of his house, when she has departed from his house and goes and becomes another man's wife, if the latter husband detests

CONFLICTS BETWEEN FAMILIES

75

her and writes her a certificate of divorce, puts it in her hand and sends her out of his house, or if the latter husband dies who took her as his wife, then her former husband who divorced her must not take her back to be his wife after she has been defiled; for that is an abomination before the Lord, and you shall not bring sin on the land that the Lord your God is giving you as an inheritance. Scripture lays emphasis u p o n the prohibition of a divorced w o m a n , once remarried, to return to the husband who has divorced her. T h e H a l a k h a h , by contrast, finds its focus of interest in the subordinated details of the transaction set forth in Scripture. In that context, where scribes take over, conflict between Israelites generates no concerns for the pertinent Halakhic category-formation. A thumb-nail sketch of the H a l a k h a h that defines the categoryformation shows what is at stake. T h e H a l a k h a h takes as its principal p r o b l e m the delivery of the writ of divorce to the wife. T h e h u s b a n d m a y send it through his agents, in which case they must give testimony that they have witnessed the writing a n d the signing, by witnesses, of the d o c u m e n t . T h a t guarantees one of the m a i n requirements of the m a t t e r has been met, the document has been p r e p a r e d for this particular w o m a n , by this particular m a n . These and comparable requirements make certain the writ is valid and takes effect, so that all parties to the transaction know that the w o m a n ' s status has changed irrevocably. But that means, even an imperfection without any bearing on the substance of the transaction, such as mis-dating or mis-identifying the writ (using the wrong date, or mis-identifying the locale of the h u s b a n d , suffices to invalidate the writ. So too, if the scribe erred a n d gave the writ of divorce to the w o m a n a n d the quittance to the m a n , rather than giving the writ to the m a n to give to his wife a n d vice versa, it is a complete disaster. Both cases a n d comparable ones bring to b e a r the most severe penalties. T h e n , if she should r e m a r r y on the strength of the impaired writ of divorce, her entire situation is ruined. She has to get a new writ of divorce from the first husband and f r o m the second; she loses her alimony; she loses m a n y of the benefits a n d guarantees of the marriage-settlement. And the offspring f r o m the marriage fall into the category of those whose parents are legally unable to wed, e.g., the offspring of a married w o m a n by a m a n other than her husband. Everything is lost by reason of the innocent actions of the wife in remarrying on the strength of an impaired writ, and that means, the wife has an acute interest in, a n d bears full responsibility for, the

76

CHAPTER

ONE

validity of the writ. T h e h u s b a n d ' s only unique power is to direct the writing a n d delivery of the writ; otherwise, the wife bears equal responsibility for the accurate preparation of the document, the valid delivery (hence insistence that she be alert to the transaction), a n d the fully-correct details inscribed therein. While these provisions make the correct provision of the writ an urgent matter, they do not articulate conflict between Israelites as the focus of the Halakhic category-formation—only the outcome of conflict as definitive in f o r m i n g that Halakhic category. T h e generative energy derives f r o m the interests of scribes in the correct preparation of documents, not from the requirement to preserve the flawless p e r f e c t i o n of Israelite society by resolving conflict b e t w e e n Israelites, here: families. For the m a i n t e n a n c e of that perfection, Scripture has sufficiently provided.

VI. Disputes in the Dissolution of the Union of Families through Marriage: Death without Offspring. Tebamot W h a t h a p p e n s if the h u s b a n d ' s goal in consecrating the w o m a n — engendering children in his n a m e ( " n a m e " standing for household, extended family)—has not come to fruition? T h e n , Scripture maintains, the original act of consecration has not accomplished its goal. T h e n desacralization of the original intention, confirmed by action, of sanctification, does not take place. T h e w o m a n therefore remains consecrated for the as-yet-unrealized purpose embodied in the intention of betrothal a n d the action of c o n s u m m a t i o n of the union. T h e n , so far as is possible, the widow bears the obligation to accomplish the intention that effected the original act of consecration. Here circumstance intervenes. Since at issue is the household, the T o r a h holds, if brothers survive the deceased, then a surviving brother of the childless deceased m a y take his place as h u s b a n d of the widow. T h e law of Levirate m a r r i a g e — m a r r i a g e of the widow to a brother of the childless deceased h u s b a n d for purpose of procreation—aims at bringing about the realization of that original act of consecration. T h a t is the explicit view of the Written T o r a h , which frames matters in terms of maintaining the deceased's " n a m e " in Israel. T h a t means, the deceased's widow is to p r o d u c e a child with a surviving brother, so carrying forward the purpose of the original union, if not

CONFLICTS BETWEEN FAMILIES

77

as originally contemplated. T h e pertinent verse of Scripture, Dt. 25:5‫־‬ 10, is as follows: If brothers dwell together and one of them die and have no son, the widow of the dead man shall not be married to a stranger outside the family; her husband's brother shall go in to her and take her as his wife and perform the duty of a husband's brother to her. And it shall be that the firstborn son which she bears will succeed to the name of his dead brother, that his name may not be blotted out oflsrael. But if the man does not want to take his brother's wife, then let his brother's wife go up to the gate to the elders and say, "My husband's brother refuses to raise up a name to his brother in Israel; he will not perform the duty of my husband's brother." Then the elders of his city shall call him and speak to him. But if he stands firm and says, "I do not want to take her," then his brother's wife shall come to him in the presence of the elders, remove his sandal from his foot, spit in his presence, and answer and say, "So shall it be done to the man who will not build up his brother's house." And his name shall be called in Israel, "The house of him who had his sandal removed. T h e match of the penalty (the deceased's brother is called a demeaning name) to the failure (not preserving the deceased's name) rests on the premise that the original act of consecration of this w o m a n to this m a n m e a n t to bring a new generation into being. Scripture deems the widow's role in realizing the initial intentionality, to which she has acceded, to be active; she is the one who d e m a n d s the realization of the original transaction. T h e surviving brother forms a mere instrumentality in the fulfillment of the deceased husband's and now widowed wife's agreement. T h e surviving brother(s) m a y then prevent the transaction, in which case the woman is freed of her status of sanctification, halisah or the rite of removing the shoe then forming the counterpart to the presentation of a writ of divorce. But there is this obvious difference: now the unwilling b r o t h e r takes the passive role, the outraged widow, the active one. It is that the e m b o d iment a n d fulfillment of that sanctification that she has willingly accepted for herself that the surviving b r o t h e r has refused to assist. She bears as heavy a stake in the transaction as the now-deceased husband; her brother-in-law has failed in his Heavenly task. W h e n Heaven intervenes in a consecrated relationship and severs it, no writ of divorce is required to free the w o m a n from the m a r riage. In the Levirate connection, H e a v e n m a y also have arranged matters so that a union of a surviving b r o t h e r with the widow contravenes other laws of the T o r a h . So H e a v e n bears responsibility for a complication of the Levirate connection comes about when the

78

CHAPTER ONE

deceased childless m a n ' s w i d o w is related to t h e surviving b r o t h e r in a relationship p r o h i b i t e d b y t h e T o r a h , e.g., if she is t h e sister of the surviving b r o t h e r ' s wife. T h e potential conflict b e t w e e n t h e p r o hibition of consanguinity (and incest) a n d t h e r e q u i r e m e n t of Levir a t e m a r r i a g e is w o r k e d o u t in t h e following p a s s a g e of t h e Y e r u s h a l m i , which best serves t o explain w h y o n H e a v e n ' s p a r t , t h e Levirate c o n n e c t i o n m a y p r o v e null; then n o rite of r e m o v i n g t h e shoe is carried out, j u s t as, at t h e d e a t h of a h u s b a n d w h o h a s p r o d u c e d offspring, n o writ of divorce is necessary to sever t h e marital bond. A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship T h e r a n g e of conflict e n c o m p a s s e s only t w o issues, n e i t h e r of t h e m at t h e c e n t e r of t h e H a l a k h i c p r o g r a m of t h e c a t e g o r y - f o r m a t i o n , Y e b a m o t . T h e first is conflict a m o n g t h e b r o t h e r s as t o t h e selection of the particular Levir. T h e second is conflict in establishing t h e fact of the h u s b a n d ' s d e a t h . M. 4:5 It is the duty of the oldest surviving brother to enter into Levirate marriage. [If] he did not want to do so, they pass in turn to all the other brothers. [If] they [all] did not want to do so, they go back to the oldest and say to him, "Yours is the duty! Either undergo the rite of removing the shoe or enter into Levirate marriage.'' M. 4:6 [If the Levir proposed to] suspend [his decision, waiting] for a youngster to grow up, or for an adult to come from overseas, or for a deaf-mute or an idiot [to recover sound or sense], they do not listen to him. But they say to him: "Yours is the duty. Either undergo the rite of removing the shoe or enter into Levirate marriage." 1. What is subject to dispute? S c r i p t u r e leaves o p e n t h e question, which of the surviving b r o t h e r s b e a r s t h e responsibility of Levirate m a r r i a g e ? T h e H a l a k h a h t h e n articulates conflict a m o n g t h e m ("if he did n o t w a n t t o d o so..."). Its resolution is t h r o u g h t h e rules of process. T h e oldest comes first here as in o t h e r m a t t e r s , e.g., t h e right of a d o u b l e p o r t i o n in inheritance. O t h e r s in s e q u e n c e address t h e obligation. But it is, in t h e end, t h e eldest's.

CONFLICTS BETWEEN FAMILIES

79

2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest is in c a r r y i n g out t h e rite, a n d it is realized w h e n t h e priority of the eldest surviving b r o t h e r is carried over f r o m one transaction, inheritance, to the other, Levirate connection. If that is t h e correct consideration, t h e n w h a t t h e sages have d o n e is simply e x t e n d t h e m e t a p h o r of L e v i r a t e c o n n e c t i o n — i n h e r i t i n g t h e deceased, childless brother's relationship—to t h e b r o a d e r f r a m e w o r k of rules of p r i m o g e n i t u r e . W e t u r n t o t h e principal conflict set forth in Y e b a m o t : h a s t h e h u s b a n d actually died, a n d if so, whose testimony suffices t o establish t h e fact of the m a t t e r . T h e conflict, w e see, is b e t w e e n t h e wife a n d o t h e r w o m e n in relationship t o t h e s a m e m a n : his m o t h e r , his sister, his o t h e r wives a n d others whose status o r p r o p e r t y a r e affected b y t h e h u s b a n d ' s alleged d e a t h . M. 15:4 All are believed to testify in her behalf [that her husband has died], except for (1) her mother-in-law, (2) the daughter of her mother-in-law, (3) her cowife, (4) her sister-in-law [who will enter Levirate marriage in case the husband has died childless], and (5) the daughter of her husband [by another marriage]. What is the difference between evidence for [severing a marital relationship] through a writ of divorce and [evidence for doing so] through death? The written document [of divorce] proves the matter. [If] one witness says, "He died," and she remarried, and then another witness comes and says, "He did not die," lo, this woman does not go forth [from the second marriage]. [If] one witness says, "He died," and two witnesses say, "He did not die," then even though she has remarried, she goes forth. Two witnesses say, "He died," and one witness says, "He did not die," even though she has not remarried, she may remarry. T. 14:1 The woman who said, "My husband has divorced me," [or] "My Levir has performed the rite of removing the shoe with me," [or] "My Levir has entered into Levirate marriage with me and then died"— lo, this woman is not believed. All those who are not believed to testify concerning a woman [M. Yeb. 15:4A]—she too is not believed to testify concerning them. [If] one witness says, "He has died," and one witness says, " H e has not died, " a woman says, " H e has died," and a woman says, "He has not died," lo, this one should not remarry [M. Yeb. 15:5E-G]. Two women [who contradict] one woman are like two male witnesses [who contradict] a single male witness. If two witnesses say, "He has died," and a hundred say, "He has not died," lo, the hundred are deemed equivalent [merely] to the two witnesses.

80

CHAPTER ONE

M. 15:5 [If] one woman [co-wife] says, "He died," and one [cowife] says, "He did not die," this one who says, "He died," may remarry and collect her marriage contract, and that one who says, "He did not die," may not remarry and may not collect her marriage contract. [If] one witness says, "He has died," and one witness says, "He has not died," [or] a woman says, "He has died," and a woman says, "He has not died"—lo, this woman may not remarry. M. 15:6 A woman who went, she and her husband, overseas, and came and said, "My husband has died," remarries and collects her marriage contract [M. 15:3]. But her co-wife is prohibited [from remarrying, for a woman is not believed concerning the death of her husband so as to free her cowife from the marital tie, as at M. 15:4]. M. 15:7 [If] she said, "My husband died and afterward my father-in-law died," she may remarry and collect her marriage contract. But her mother-in-law is prohibited [from doing so]. [If] a man betrothed one of five girls and it is not known which one of them he betrothed, [and] each one of them says, "Me did he betroth''—he gives a writ of divorce to each one of them. M. 15:8 The woman who went, she and her husband, overseas, and her son was with them—and she came and said, "My husband died, and afterward my son died" is believed. [If she said], "My son died, and afterward my husband died," she is not believed. But they scruple on account of her testimony, so that she performs the rite of removing the shoe, but she does not enter into Levirate marriage. M. 15:9 "A son was given unto me overseas," and, she said, "My son died, and then my husband died," she is believed. "My husband died and afterward my son died"—she is not believed. But they scruple on account of her testimony, so that she performs the rite of removing the shoe, but she does not enter into Levirate marriage. M. 15:10 "Α Levirate brother-in-law was given unto me overseas," and, she said, "My husband died, and afterward my Levirate brother-in-law died"—"My Levirate brother-in-law died and afterward my husband died"—she is believed. [If] she went, she and her husband and her Levirate brotherin-law, overseas, and she said, "My husband died and afterward my Levirate brother-in-law died"—"My Levirate brother-in-law died and afterward my husband died"—she is not believed. For a woman is not believed to testify, "My Levirate brother-in-law has died," so that she may remarry. Nor is she believed to testify, "My sister has died," so that she may enter into his [her brother-in-law's] house. And a man is not believed to say, "My brother has died," so that he may enter into Levirate marriage with his [the brother's]

CONFLICTS BETWEEN FAMILIES

81

wife. [Nor is he believed to testify,] "My wife died," so that he may marry her sister. M. 16:2 Two sisters-in-law [wives of two brothers]—this one says, "My husband died—and that one says, "My husband died —[each being believed about her own husband but not about the marital condition of the other,] this one is prohibited on account of the husband of that one [to whom she is bound in a Levirate connection], and that one is prohibited on account of the husband of this one. [If] this one has witnesses [who testify independently that the husband has died], and that one does not have witnesses—the one who has witnesses is prohibited. And the one who does not have witnesses is permitted. [If] this one has children and that one does not have children, the one who has children is permitted, and the one who does not have children is prohibited. [If] they entered into Levirate marriage and the Levirs died, they are prohibited from remarrying. 1. What is subject to dispute? W h e n it comes to m a t t e r s of personal status, a p e r s o n is believed so far as he o r she is c o n c e r n e d , b u t n o t with r e g a r d to o t h e r parties; hence the matter of status permits anomalies, as we saw at Qiddushin. H e r e too, w h a t a w o m a n says is a c c e p t e d f o r herself, b u t t h e implications f o r others w h o a r e affected b y h e r status a r e n o t realized. At t h e focus of c o n c e r n , M . 15:4, t h e conflict of interest b e t w e e n the various female relatives of the deceased requires resolution. A w o m a n m a y n o t testify with t h e result that h e r co-wife is f r e e d f r o m the m a r i t a l b o n d , so she is believed a b o u t herself, b u t n o t a b o u t h e r co-wife (M. 15:5, 6, 7). A w o m a n also m a y n o t give u n s u p p o r t e d testimony that frees h e r of the Levirate b o n d (M. 15:9). T h e n w h o are t h e parties to t h e dispute? A w o m a n w h o wishes to b e free of the Levirate obligation clearly takes o n e side. But, since others a r e not affected by h e r testimony, t h e nay-sayer c a n only b e , t h e sages responsible for the p r o p e r m a i n t e n a n c e of the standards of the T o r a h for Israel. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict is b e t w e e n t h e w o m a n w h o wishes to free herself of the Levirate obligation a n d o t h e r w o m e n with a n interest in their status by reason of h e r claim. But that is n o t t h e c e n t e r of the m a t t e r ; that is a m e r e m a t t e r of rules of evidence. W h a t is at t h e h e a r t is conflict b e t w e e n t h e T o r a h ' s law a n d t h e w o m a n ' s interest. H e r e t h e H a l a -

82

CHAPTER THREE

k h a h introduces conflicts a m o n g Israelite w o m e n to register its concern that the T o r a h ' s law be realized in an honest a n d conscientious manner. B. The Halakhic Resolution of Conflict I identify these points of conflict b e t w e e n Israelites in their familyunits: [1] b r o t h e r s equally obligated to u n d e r t a k e the Levirate obligation; [2] co-wives (and o t h e r w o m e n ) affected by a c h a n g e in the status of o n e of the set. In the f o r m e r case, the H a l a k h a h invokes p r i m o g e n i t u r e , h e r e in the p r i n c i p l e t h a t t h e f i r s t b o r n b e a r s the u l t i m a t e responsibility. I n the latter, it assures t h a t t h e L e v i r a t e obligation is not lightly disposed of, p r e v e n t i n g a w o m a n f r o m avoiding it m e r e l y o n h e r o w n say-so. As to the conflict a m o n g the worna n a t t a c h e d to the d e c e a s e d , t h e H a l a k h a h invokes the f a m i l i a r principle that we believe a p e r s o n as to w h a t she says a b o u t herself, but not a b o u t the implications o f t h a t statement for the status of third parties. C. How does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof T h e H a l a k h a h takes for g r a n t e d the categorical i m p e r a t i v e s a n d principles of the W r i t t e n T o r a h c o m m e n c e not with the rules gove r n i n g w h e n or h o w Levirate m a r r i a g e takes place. Scripture has defined the m a t t e r . R a t h e r , the imperatives begin with the rules that define w h y in a c c o r d with the law of the T o r a h Levirate m a r r i a g e does not take p l a c e — t h u s the first c h a p t e r of Y e b a m o t . A n d , along these same lines, conflict gets a t t e n t i o n w h e n the W r i t t e n T o r a h is e n g a g e d . T h e H a l a k h a h a s c e r t a i n s t h a t t h e r e q u i r e m e n t s of t h e T o r a h ' s law be carried out in good f o r m . T h a t is w h y the conflicting interests of the female parties to the m a r r i a g e — c o - w i v e s , m o t h er-in-law a n d the like—yield a n a n o m a l y , w h i c h is tolerable, r a t h e r t h a n the possibility of a conspiracy to violate the basic r e q u i r e m e n t of the t o r a h , which is not. T h u s the w o m a n is believed as to herself but n o t as to h e r co-wife! T h e spirit of matters is expressed in a f a m o u s passage that asserts, despite differences of o p i n i o n yielding c o n s e q u e n c e s for the p e r s o n al status of individuals, h e n c e w h o m a y m a r r y w h o m , the p r o t a g o nists of conflicting viewpoints nonetheless c o n d u c t e d themselves in a spirit of amity. W h a t that m e a n s is, m a r r i a g e s d e e m e d unlawful

C O N F L I C T S B E T W E E N FAMILIES

83

by o n e o r a n o t h e r p a r t y would p r o d u c e offspring d e e m e d lawful b y b o t h — a p r o f o u n d a n o m a l y indeed. M . Yeb. 1:1 states t h e position of the H o u s e o f H i l l e l , which is t h e n o r m a t i v e law, a n d M . Yeb. 1:4 a n d its T o s e f t a t h e n p r o c e e d to reflect o n t h e c o n s e q u e n c e s of t h e conflict of o p i n i o n b e t w e e n t h e t w o H o u s e s in Israel. T h e y a r e alleged t o have b e e n nil. MISHNAH-TOSEFTA YEBAMOT 1 : 1 , 1 : 4 / 1 : 1 0 - 1 1

M. 1:1 Fifteen women [who are near of kin to their deceased, childless husband's brother] [because they cannot enter into Levirate marriage with the deceased childless husband's brother also] exempt their co-wives, and the co-wives, from the rite of removing the shoe [halisah] and from Levirate marriage, without limit. And these are they: (1) His daughter, and (2) the daughter of his daughter, and (3) the daughter of his son; (4) the daughter [by a former marriage] of his wife, and (5) the daughter of her son [by a former marriage], and (6) the daughter of her daughter [by a former marriage]; (7) his mother-in-law, and (8) the mother of his mother-in-law, and (9) the mother of his father-in-law [married to his brother by the same father]; (10) his sister by the same mother, and (11) the sister of his mother, and (12) the sister of his wife; (13) and the wife of his brother by the same mother, and (14) the wife of his brother who was not [alive] at the same time as he [but who died before he was born, in which case the surviving brother has no claim]; and (15) his [former] daughter-in-law [who then married his brother]—lo, these exempt their co-wives and the co-wives of their co-wives, from rite of removing the shoe and from Levirate marriage, without limit. M. 1:4 The House of Shammai declare the co-wives permitted [to enter into Levirate marriage with] the other brothers. And the House ofHillel declare [them] prohibited. [If] they have performed the rite of removing the shoe, the House of Shammai declare [them] invalid [for marriage with] the priesthood. And the House of Hillel declare [them] valid. If] they have entered into Levirate marriage, the House of Shammai declare them valid [for marriage with the priesthood]. And the House of Hillel declare them invalid. Even though these declare prohibited and those permit, these declare invalid and those declare valid, the House of Shammai did not refrain from taking wives from the wornen of the House of Hillel, nor [did] the House of Hillel [refrain from taking wives from the women] of the House of Shammai. [And despite] all those decisions regarding matters of clean-

84

CHAPTER THREE

ness or uncleanness in which these did declare clean and those unclean, they did not refrain from preparing things requiring preparation in a state of cleanness in dependence on one another. T. Yebamot 1:10 Even though the House of Shammai and the House of Hillel disputed concerning the co-wives, concerning sisters, concerning the married woman, concerning a superannuated writ of divorce, concerning the one who betroths a woman with something of the value of a perutah, and concerning the one who divorces his wife and spends a night with her in an inn, the House of Shammai did not refrain from taking wives among the women of the House of Hillel, and the House of Hillel from the House of Shammai [M. Yeb. 1:41]. But they behaved toward one another truthfully, and there was peace between them since it is said, "They loved truth and peace" (Zech. 8:19). T. 1:11 Even though these prohibit what the others permit, they did not refrain from preparing foods requiring cleanness depending upon one another, thereby fulfilling that which is said, "Every way of a man is right in his own eyes, but the Lord weighs the heart" (Prov. 21:2). T h e difference of o p i n i o n b e t w e e n t h e H o u s e s c o n c e r n s t h e rule of M . Yeb. 1:1 o n t h e standing of the co-wives as to Levirate m a r r i a g e , in a case in which o n e of the co-wives c a n n o t e n t e r into Levirate m a r r i a g e while t h e others m a y . T h e n o r m a t i v e l a w is, if one of the co-wives c a n n o t c a r r y o u t t h e Levirate c o n n e c t i o n , all a r e e x e m p t . N o w if o n e does n o t accept t h a t view, t h e n t h e co-wives d o e n t e r into Levirate m a r r i a g e . But f r o m t h e Hillelite viewpoint that is a n illegal m a r r i a g e , t h e parties to it a r e n o t legally p e r m i t t e d t o w e d . T h e allegation b e f o r e us is, even in so serious a violation of the law, the H o u s e s n o t only t r e a t e d o n e a n o t h e r with dignity a n d respect b u t i n t e r m a r r i e d . Clearly, those w h o f r a m e d m a t t e r s in this w a y d e e m e d t h e resolution of conflict to constitute t h e t r a n s c e n d e n t interest, even at t h e expense of o b s e r v a n c e of the law of the T o r a h ! But, as I have said, t h e social good r e p r e s e n t e d by amity b e t w e e n c o n t e n d i n g schools of t h o u g h t does n o t a n i m a t e t h e p r e s e n t a t i o n of conflict a n d its resolution. Conflicts that m a k e a difference, m é d i a t ing conflict that m a t t e r s — t h e s e e m b o d y a social t e a c h i n g that vastly transcends t h e H a l a k h i c category-formations that p o r t r a y contention a m o n g Israelites. A n d a t stake is s o m e t h i n g o t h e r t h a n public policy that fosters social conciliation. T h e social t e a c h i n g of R a b binic J u d a i s m on the m a t t e r of conflict has its o w n interest altogether.

CONFLICTS BETWEEN FAMILIES

85

V I I . Between Israelites: The Halakhic View of Conflicts between Families and their Resolution A brief reprise of the articulated conflicts calls into question w h e t h er there is a H a l a k h i c view of conflicts b e t w e e n families a n d their resolution. For the focus of the H a l a k h a h on conflicts proves awry. W e shall n o w see that while conflict b e t w e e n families does play a role in the H a l a k h i c c a t e g o r y - f o r m a t i o n s that p e r t a i n , the p o r t r a y a l of conflict does not involve the critical tensions or the generative logic of those c a t e g o r y - f o r m a t i o n s at all. T h a t j u d g m e n t rests not on the paucity of d i s p u t e s — n o n e in two entire category-formations, Sotah a n d Gittin!—but on the c h a r a c t e r of the conflicts that are p o r t r a y e d , as we shall n o w see. A. The Halakhic Definition of the Systemic Interest and how it is Realized If we review the critical units that p e r t a i n to conflict, we find the following consequential entries: 1.

2. 3.

4. 5. 6.

M. Qid. 3:10: conflicting testimony as to personal status defines the status of the person who gives that testimony but not of others affected by it M. Ket. 2:1: conflicting testimony as to personal status of a woman when she was wed, the conflict settled by circumstantial evidence M. Ket. 7:Iff.: The husband cannot disrupt the normal human relationships of the wife, the wife must obey the law of Moses in specified matters: dietary laws, prohibition of sexual relations during the menstrual period, giving up dough offering to the priest, not carrying out vows, and general conduct of a modest character M. Ket. 9:7ff.: conflicting claims on the payment of the marriagesettlement are settled by the wife's taking an oath M. Yeb. 4:5-6: who is responsible, among the surviving brothers, to carry out the Levirate obligation M. Yeb. 15:4ff: a person's testimony about her personal status defines her status vis-à-vis the Levir, but not that of others related to her

O f these items, not a single o n e engages with the systemic interest of the category-formation in which it occurs. N o . 1 is tangential; Nos. 2, 4, a n d 6 c o n c e r n rules of evidence a n d yield principles not at all particular to their category-formations. N o . 3 a n d No. 5 fit well with the t h e m e of their c a t e g o r y - f o r m a t i o n s but d o not e n g a g e with the generative p r o b l e m a t i c thereof. So, we m a y generalize in a simple way. W h e r e we find a u t h e n t i c conflicts set forth in c o n n e c t i o n with

86

CHAPTER THREE

relationships b e t w e e n families, the conflicts a n d their resolution d o n o t o r d i n a r i l y p e r t a i n to t h e H a l a k h i c d e f i n i t i o n of the systemic interest in those relationships. W h a t , t h e n is at stake? B. Considerations that Come into Play A n o t h e r brief recapitulation of the detailed results provides a definitive a n s w e r to the final question. Qiddushin: the laws of consanguinity (Lev. 18) Ketubot: the bride price, Dt. 22:13-21; proper conduct of the husband and the wife vis-à-vis the Torah of Moses; oath-taking Sotah: none Gittin: none Yebamot: which brother is Levir, Dt. 25:5-10; the laws of consanguinity, now with regard to Levirate obligations of the childless widow W h e n disputes are articulated, they will ordinarily p e r t a i n to the realization of the laws of the T o r a h that p e r t a i n to the topic of the c a t e g o r y - f o r m a t i o n at h a n d . T h a t is, in so m a n y words, w h a t is at stake in Q i d d u s h i n a n d Y e b a m o t . K e t u b o t follows suit for the bride price a n d for details of oath-taking. T h e one exceptional e n t r y — n o t involving the laws of the T o r a h in detail—turns out to prove the rule, since its disputes concern the laws of the T o r a h in m o r e general terms. T h e m e c h a n i s m for resolving conflict involves three matters: [1] how to deal with conflicting testimony; [2] the application of the o a t h ; [3] the articulation of the written T o r a h ' s rule that prevails a n d is to be enforced. T h e kind of conflict taken u p in the H a l a k h a h is one that has a b e a r i n g u p o n the law of t h e written T o r a h . For that reason it is a kind of conflict that m a r s the perfection of c o r p o r a t e Israel, p e r f e c t i o n d e f i n e d as realization of the imperatives of the written T o r a h . Within that theory, we ought to find c o m p a r a b l e evidence p e r t i n e n t to o t h e r situations of articulated c o n t e n t i o n in the H a l a k h a h . T h a t is, w h e r e the H a l a k h a h spells out conflict a n d its resolution, at stake will be the p e r f e c t i o n of Israel f r o m the perspective of the T o r a h . H o w to explain the silence of the H a l a k h a h o n conflict in connection with Gittin a n d Sotah? In the f o r m e r case, Scripture scarcely figures (Dt. 24:1 -4 h a r d l y g e n e r a t e the p r o g r a m of Gittin or even relate to it). In the latter case, Scripture itself defines the conflict a n d decrees the rite that resolves it. So the c o n d i t i o n that should signal a n interest in the definition a n d resolution of conflict is [1] a detail

CONFLICTS BETWEEN FAMILIES

87

of the law of the written T o r a h that [2] yields contention not resolved by the mechanisms provided by the written T o r a h itself. T h e interest of corporate Israel governs in the broadest and most general way: Israel's inner strife demands attention at those points at which Israel's e m b o d i m e n t of the written T o r a h ' s vision of the kingdom of priests a n d the holy people is affected. T o state the social teaching of Rabbinic J u d a i s m yielded by the consideration of conflict and its resolution: when classes of Israelites contend, what matters above all is that the contending parties subordinate their dispute to that larger obligation incumbent u p o n them: to r e m e m b e r the interest of corporate Israel. T h a t interest is in the realization, by the Israelite social order, of the rules of sanctification of God's n a m e that form the imperative of the written T o r a h . Just as corporate Israel transcends the interest of individual Israelites, while affording full opportunity for legitimate individuation, so corporate Israel will interest itself in conflicts between classes of Israel. T h a t is when G o d ' s n a m e is at stake, either in the oath or in the provisions of the written T o r a h .

3.

CONFLICTS BETWEEN

HOUSEHOLDERS:

RESTORING T H E SOCIAL

ORDER

I. When Households Collide: Corporate Israel's Interest in Conflicts between the Genealogical Units of Production O f the six divisions of the H a l a k h a h set forth in the M i s h n a h - T o s e f t a Yerushalmi-Bavli, only the third, N a s h i m ( " W o m e n , " "Families), a n d the f o u r t h , N e z i q i n ( " D a m a g e s " ) , explicitly spell out a n d resolve conflicts b e t w e e n a n d a m o n g Israelites. A c c o u n t s in the H a l a k h a h of the locus of conflict are limited to elements of the family (Nashim), a n d households in their p a r t i c i p a t i o n in the m a r k e t - a n d workplaces (Neziqin). I c a n n o t p o i n t to the systematic disposition of articulated conflict b e t w e e n classifications of Israelites in a n y of the o t h e r four divisions of the M i s h n a h , Agriculture, A p p o i n t e d T i m e s , H o l y T h i n g s , a n d Purities. T h a t fact presents n o surprise, in light of our observation that the family/household forms the smallest whole unit of social composition within the H a l a k h i c category-formations. If we w a n t to k n o w a b o u t the H a l a k h a h ' s t h e o r y of social tension a n d h o w it is resolved, t h e r e f o r e , it is to be f o u n d in the divisions that p o r t r a y the H a l a k h a h ' s Israel's social building-blocks in their relationships. T h e o t h e r four divisions focus o n o t h e r elements in the construction of c o r p o r a t e Israel. At n o p o i n t c a n I locate H a l a k h i c categorical disposition of c o n t e n t i o n b e t w e e n p r i e s t h o o d a n d Israelite, e.g., in Agriculture, or b e t w e e n or a m o n g households in c o n n e c t i o n with S a b b a t h - c o n d u c t , e.g., in A p p o i n t e d T i m e s . T r u e , the H a l a k h i c exposition in Agriculture a n d A p p o i n t e d T i m e s refers to points of conflict b e t w e e n priests a n d Israelites or b e t w e e n (in context) confessing a n d non-confessing Israelites. But these d o not define categ o r y - f o r m a t i o n s or their subdivisions. In those two divisions, w h e n Israelites d o differ, the difference is controlled for, not articulated a n d negotiated. A g o o d e x a m p l e is at E r u b i n w h e n non-confessing a n d confessing Israelites share the same c o u r t y a r d , some participating, others

RESTORING THE SOCIAL ORDER

89

not, in the fictive fusion-meal that forms of the whole a single domain. T h e H a l a k h a h controls for that complication in the activities of the Israelites w h o practice the law of fusing domains through a fictive fusion-meal or boundary-line. It tells them how to go about their business. It does not acknowledge the conflict as, e.g., it does when it tells us how to deal with a m a n who claims to have betrothed a w o m a n , while the w o m a n denies the matter. Another evasion of conflict and its possibilities for Halakhic exposition is at T o h o r o t , where the same mixture of populations—observant of the Halakhah, not observant of the Halakhah—interact in matters concerning cultic cleanness of food and drink, some households observing the taboos, others not. H e r e is an obvious occasion for conflict: whether or not a given law is efficacious or even applies, in the respective cases. But the H a l a k h a h does not portray such conflict or suggest it requires resolution, it simply devises rules for confessing Israelites to accomm o d a t e their circumstance as best they can. T h e s e rules e m b o d y presuppositions about what such a non-observant Israelite can be assumed to do or not to do. T h e H a l a k h a h of Demai, to take a huge instance of the matter, works out rules governing relationships between Israelites who tithe properly and those who do not. It negotiates the givens, it does not portray conflict resulting f r o m them. T h e law of D e m a i makes an entire class of Israelites responsible for the conduct of a n o t h e r entire class—without at a single point articulated conflict between those two classes. W h e n it comes to Purities, even the differences between those that meticulously observe the purity laws for secular, domestic meals a n d those that keep them only in T e m p l e pilgrimages yield no contention of social consequence. T h e H a l a k h a h simply assesses what the non-confessing Israelite is likely to do and shapes rules accordingly. Portraits of the conduct of the T e m p l e rites in Holy Things show priesthood a n d laity in partnership for a shared activity. Accordingly, in those four irenic divisions of the law we find indications throughout that the laws d e e m e d by sages to be O r a l T o r a h from Sinai did not win uniform acquiescence within Israel—this is articulated at tractates Erubin for the second division, D e m a i for the first division, and for the sixth division, as I said. But only in W o m e n a n d D a m ages does the H a l a k h a h describe claims and counterclaims of one party against another and explain how these are to be resolved. And in both divisions, W o m e n a n d Damages, cases of conflict between classes of Israelites are articulated here and there, but implied ev-

90

CHAPTER THREE

e r y w h e r e . C o u n t e r p a r t s in Agriculture, A p p o i n t e d T i m e s , a n d Purities are difficult to identify, a n d in H o l y T h i n g s , impossible. So in all these instances, it is r a r e for the conflict b e t w e e n a conf o r m i n g a n d a n o n - c o n f o r m i n g Israelite to receive H a l a k h i c attention c o m p a r a b l e to the H a l a k h i c disposition of c o n t e n t i o n c o n c e r n ing families, o n t h e one side, a n d h o u s e h o l d s , o n the o t h e r . T h e upshot is, we c a n n o t treat c o n t e n t i o n in a b s t r a c t i o n , only as a very p a r t i c u l a r e m b o d i m e n t of relationships of a quite d e t e r m i n a t e c h a r acter. Conflict c o m e s a b o u t principally b e t w e e n Israelites in their family-units or in their household-units, there alone. T h e n the p r o b lern before us is, w h y does the H a l a k h a h restrict to the smallest whole unit of Israelite society its utilization of conflict its the p r e s e n t a t i o n of m a t t e r s . — a p r o b l e m of not literary b u t social-systemic analysis. W i t h the perspective afford by c o m p a r i s o n in h a n d , we t u r n to the social t e a c h i n g b e f o r e us. W h e r e to begin? In the c o n t e x t of W o m e n a n d D a m a g e s , as to the large bodies of conflict-rulings, we m u s t ask, w h o is e n g a g e d ? Cui bono? A n d m o r e b r o a d l y , w h a t are the stakes t h a t r e q u i r e a focus o n the p a r t i c u l a r m a t t e r s d e m a n d i n g resolution? T h e answer is, the principals are H e a v e n on the one side, in conflicts b e t w e e n families, a n d c o r p o r a t e Israel on the other, in conflicts b e t w e e n households d e f i n e d as e c o n o m i c units of p r o d u c tion. 1 T h e y define the principal parties e n g a g e d by the conflict a n d its resolution. W e have a l r e a d y seen h o w H e a v e n evinces its heavy stake in the sanctification of the family. T h e few contentious engagem e n t s that the H a l a k h a h does articulate in that context stand out f r o m the m a n y that we m a y readily imagine b u t d o not find; that is because the m e c h a n i s m s established b y the written p a r t of the T o r a h suffice to work out those conflicts without the e n g a g e m e n t of the O r a l T o r a h (Sotah), or b e c a u s e the principal player in the situation at h a n d is the scribe, n o t the c o n t e n d i n g families (Gittin, a m o n g many). W h e n it c o m e s to relationships b e t w e e n households a n d in the m a r k e t p l a c e , c o r p o r a t e Israel is possessed of t h e c o r r e s p o n d i n g , intense interest. H e a v e n sometimes, scribes o f t e n e n o u g h , b u t cor1

If we invoke Heaven and corporate Israel, what is left for the composition of the active partners is the Land; Israel, Land, and Heaven altogether constitute the restoration of Eden. But the Land, while an active player, e.g., in vomiting out the Canaanites and affording a welcome and rich crops to Israel, is accorded no counterpart to the active role in conflict-resolution assigned to Heaven in Nashim and corporate Israel in Neziqin.

RESTORING THE SOCIAL ORDER

91

porate Israel above all, concerns itself with contention between Israelites. H e r e conflicting claims as to persons and property, but not personal status vis-à-vis H e a v e n , have to be adjudicated. T h e n it is only when invited to participate in the transaction that Heaven enters in. Specifically, Heaven's engagement comes to realization principally in the utilization of the oath, to which we turn via the Halakhah of Shabuot in C h a p t e r Five. But, it goes without saying, Heaven's generalized concern for Israel's repair and perfection permeates the whole system. Most of the H a l a k h a h that the O r a l T o r a h sets forth on strife in Israel's civil society makes its categorical appearance in the first three tractates of the fourth division, Neziqin. T h e s e are, collectively, the Babas ("Gates"), Baba Q a m m a ("First Gate"), Baba Mesia ("Middie Gate"), a n d Baba Batra ("Final Gate"), with procedural issues worked out in connection with the oath in Shabuot T h e r e we m a y readily identify corporate Israel's stake in resolving conflict. T h e H a l a k h a h in the civil law establishes a n d maintains stasis, which signifies teleological perfection, all things in their place, each accomplishing its foreordained purpose, all persons possessed of appropriate value in property, security in person. T h a t goal the H a l a k h a h accomplishes, as is clear, by [1] righting imbalances and [2] preserving them.‫ '־־‬T h a t dual purpose explains why, as we shall now see, the three tractates of the civil law, Baba Q a m m a , Baba Mesia, and Baba Batra, form a single, unfolding and coherent statement, in two equal parts. T h e first half (Baba Q a m m a ' s ten chapters and the first five chapters of Baba Mesia) is devoted to repairing damages done to the political economy of society by chattel a n d persons. T h e other half (the second five chapters of Baba Mesia and Baba Batra's ten chapters)^ is assigned to m a i n t a i n i n g the perfection of equitable relationships.

2 We should have expected conflict-compositions in Sanhedrin-Makkot, on the administration of criminal law and its penalties. But there the focus is on not relationships but crime and punishment. True, in some instances the crimes are committed against Israelites, not against Heaven; but these are not treated as occasions at which equal parties, e.g., households, engage, and the transaction of murder, for example, is not reduced to a case of social tension between victim and aggressor. I cannot point to a single instance in Sanhedrin-Makkot in which classes of Israelites come into conflict and mechanisms or rules are provided for the résolution of that conflict. 3 T h e division into chapters is integral to the presentation of the tractates, as shown by the formal traits that define a given chapter and separate it from others,

92

CHAPTER THREE

Indeed, each set of chapters bears two indicative traits, [1] provision for the restoration of a person or property to the condition of stasis, [2] consideration of aspects of intentionality, as against [1] provision for the m a i n t e n a n c e of stasis of persons a n d property, a n d [2] utter absence of interest in intentionality. T h e opening u n i t — the ten chapters of Baba Q a m m a a n d the first five chapters of Baba Mesia—takes the m o r e difficult labor of restoring the perfection of the social order, with attention to the role of intentionality in the disruption thereof; the closing unit, the second five chapters of Baba Mesia a n d the ten chapters of Baba Batra, is given the easier one of maintaining the social order, intentionality being irrelevant to the issues at h a n d . T h e interest of corporate Israel in the conflicts portrayed in the three Babas is manifest. T h e first fifteen chapters involve the restoration to stasis of Israel's condition, which through injury done to an Israelite (ordinarily: householder) by an Israelite householder has been set into imbalance by an act of overreaching, aggrandizement, or a tort. In that connection matters of malice a n d other issues of intentionality intervene. For culpability is proportionate to intentionality. T h e other part involves the maintenance of Israel's steady-state condition. T h e r e , issues of intentionality simply do not register. So the cases and laws seen in the aggregate stress restoring and preserving the status quo, securing for all parties to a transaction a p r o p e r exchange so that value remains constant, designing a n d sustaining a social order aimed at an equitable structure a n d secured by ancient custom. For the present purpose, therefore, I have divided into two the civil law pertaining to conflict within Israel. In this C h a p t e r I deal with resolving conflicts that necessitate restoring Israel's social order, then, in C h a p t e r Four, with maintaining that same social system in perfect stasis.

fore and aft. So form-analysis has revealed. If the printers had not imposed the divisions by chapters, we should still know how to divide the several tractates and the Halakhah they set forth, since where a topic changes, the language-pattern or form shifts as well. This is now a well-established fact. It accounts for the analysis given in the text, which on formal-analytical bases treats the division into tractates and chapters as integral to the document and not imposed at some later point by copyists or printers.

RESTORING T H E SOCIAL ORDER

93

II. The Principal Parts of Civil Law, Torts and Damages: Where Intention Matters, Where Intention Does Not Register Before t u r n i n g to the p a r t i c u l a r compositions that engage us, let us gain perspective o n the law as a whole. W h e n we survey the entire construction of the three Babas in their thirty chapters, w h a t we see is a simple set of eight units, split into two distinct g r o u p s of four. T h e eight units m o v e f r o m a b n o r m a l to n o r m a l events, the f o r m e r , units I-IV, t h e n the latter, V - V I I I . T h e whole begins with d a m a g e s d o n e by chattels or by persons, thefts a n d o t h e r sorts of conversion of the p r o p e r t y of others, with special attention to h o w we restore to a state of n o r m a l i t y the p r o p e r t y a n d p e r s o n of the i n j u r e d party. N u m b e r s I - I V r u n t h r o u g h the whole of Baba Q a m m a a n d h a l f w a y t h r o u g h B a b a Mesia, to M . B.M. 5:11. T h e second half of the three tractates then shifts to n o r m a l transactions, not those involving torts a n d d a m a g e s : l a b o r relationships, rentals a n d bailments, real estate transactions, inheritances a n d estates, units V - V I I I , f r o m M . B.M. 6:1 t h r o u g h 10:8. T h e whole produces two c o m p l e m e n t a r y constructions, involving first the a b n o r m a l or illicit, then the n o r m a l or licit transactions. T h a t is shown by the c o r r e s p o n d e n c e , in m y outline of the three tractates that follows, of unit IV, illicit commercial transactions (overc h a r g e a n d usury) a n d unit V I I , licit c o m m e r c i a l transactions, the legal transfer of goods, unstipulated conditions a n d h o w they are e n f o r c e d . T h i s p l a n f u r t h e r m o r e explains w h y we treat bailments twice, at III.C, d a m a g e s to bailments, a n d t h e n at V . C , E, responsibilities of the bailiff (that is, the bailee, with w h o m the b a i l m e n t is deposited). T h e f o r m e r fits into the larger structure of law on the restoration of the b a l a n c e of the social o r d e r (here, the value possessed by parties to the t r a n s a c t i o n at the outset, equitably distributed at the end), the latter, that on the preservation of the same order. H e r e , in brief is the picture of the whole: I. ILLICIT TRANSACTIONS; RESTORING O R D E R . REGISTERS

Baba Qamma i. ii.

Damage by Chattels 1:1-6:6 Damages Done by Persons 7:1-10:10

INTENTIONALITY

94

CHAPTER

THREE

Baba Mesia iii.

The Disposition of Other Peoples' Possessions; Bailments 1:1— 3:12 Illicit Commercial Transactions. Overcharge, misrepresentation, usury 4:1-5:11

iv.

Π. L I C I T T R A N S A C T I O N S ; P R E S E R V I N G O R D E R .

INTENTIONALITY

D O E S N O T MATTER

Baba Mesia v.

Hiring Workers. Rentals and Bailments 6:1-8:3

Baba Mesia, Baba Batra vi.

Real Estate B.M. 8:4-10:6, B.B. 1:1-5:5

Baba Batra vii. viii.

Licit Commercial Transactions 5:6-7:4 Inheritances and Wills. Other Commercial and Legal Documents 8:1-10-8

T h e whole of B a b a Q a m m a takes u p the results of wicked intentionality, expressed w h e t h e r in acts of commission or in acts of omission: a n act of will that takes the f o r m of malice, on the one side, or f l a g r a n t neglect of o n e ' s duties, o n t h e o t h e r . T h e rules of B a b a M e s i a ' s t e n c h a p t e r s in s e q u e n c e a d d r e s s [1] situations in w h i c h intentionality plays a role, [2] is excluded as irrelevant, a n d [3] m a y or m a y not e n t e r into the a d j u d i c a t i o n of a situation of conflict. A n d the topics t r e a t e d in B a b a B a t r a take a c c o u n t of the idiosyncratic c h a r a c t e r of intentionality simply by excluding private interest f r o m intervening in customary arrangements. So we m a y say that the entire repertoire of topics lays itself out as a huge essay on the role of m a n ' s intentionality—his will, his private p l a n s — i n the o r d e r i n g of c o r p o rate Israel's public life. All topics g r o u p e d by m e as illicit transactions involve righting the w r o n g s d o n e by p e o p l e o n their o w n account. W h e n free will is taken into account, encompassing negligence a n d malice, the social o r d e r requires forceful intervention to right the b a l a n c e upset by individual aggression. S o m e licit transactions p e r m i t individual intentionality to register, specifically, those freely entered into and fairly balanced a m o n g contracting parties. A n d some licit transactions leave n o space for the will of the participants a n d their idiosyncratic plans. C o n s i d e r a t i o n s of fairness take over a n d

RESTORING THE SOCIAL ORDER

95

exclude any engagement with the private and the personal. So Israel's social order takes account of intentionality, especially controlling for the d a m a g e that ill will brings about. T h e first fifteen chapters then treat intentionality as a critical factor in assessing damages, negligence representing a chapter therein. But n o r m a l licit transactions are carried forward in accord with those rules of balance, proportion, a n d coherence that yield a society that is stable a n d enduring, fair a n d trustworthy. In the second fifteen chapters, intentionality forms only one consideration in the process of preserving the status, as to value, of parties to transactions and exchanges; it m a y make all the difference, no difference, some difference; it m a y not enter into consideration at all. T h a t underscores the j u d g m e n t of the Halakhah that, when it comes to righting wrongs against chattels and persons, the malefactor has acted willfully a n d has therefore to be penalized in an equitable m a n n e r . By his act of will, he has diminished the property or person of the victim; he must then restore the property or person to its prior value, so far as this is possible, and may not benefit f r o m what he has done. Sin, crime, torts and damages—these carry forward bad attitudes; differentiating types a n d degrees of intentionality when addressing how the social order is disrupted yields nothing of interest. By contrast, in treating ordinary exchanges a n d transactions, the H a l a k h a h turns out to form an essay on when intentionality matters and when it does not. H o w is this the case? Intentionality or attitude matters in situations of conflict. T h e n the attitude of both parties makes all the difference, since to resolve conflicting claims, we have in the end to conciliate all parties to a c o m m o n outcome; there, intentionality or attitude forms the critical m e d i u m for restoring a n d sustaining balance a n d order. Parties to an exchange are now responsible to one another, a n d they must intend the outcome to be a proportionate a n d equal exchange of value. Both parties must accept the outcome, that is, form at the end the same attitude toward the transaction. A claim of ownership ends in an act of despair. O n c e the owner of property despairs of the possibility of recovering it, the law holds he has relinquished title. Responsibility is proportionate to the attitude of the bailiff, that is, to the degree of accountability that he has accepted to begin with. So m u c h for the uses of intentionality in the restoration a n d m a i n t e n a n c e of the social order. But then where do we dismiss as null all considerations of intentionality or attitude, even when parties to an exchange concur? In

96

CHAPTER THREE

market transactions, by contrast, true value overrides the attitude of the players, who cannot agree to an exchange that in objective terms is d e e m e d null. Even where all parties agree on the price, the T o rah too must approve. And, we noted, we impute to all parties the same attitude a n d deny the pertinence of idiosyncratic or private meanings. Broadly-held expectations govern, whether those of eustorn or of the written T o r a h ' s own law. In these two ways—the T o r a h ' s law, which is not relative to the will of m a n , a n d established custom, which defines the n o r m for man—intentionality possesses no power, because it serves no purpose in restoring or sustaining the balances of a well-ordered society. So the thirty chapters, breaking into two halves at the end of the first fifteen, in the middle of the second tractate, through the exposition of the law set forth a massive exercise in the applied reason a n d practical logic of the abstract categories, responsibility a n d intentionality. W h a t message emerges when we move from the illicit to the licit, the a b n o r m a l to the normal? T h e transactions that all together form the ordinary life of inner Israel, Israel on its own, yield two m a t c h i n g propositions. First, when it comes to acts that disrupt the social order, m a n is responsible for what he does. But, second, when we turn to transactions that sustain the ordinary relationships within Israel, m a n ' s proper intentionality takes over. T h e n m a n ' s will forms only one element in a complex transaction. W h e r e wills clash, c o m p r o m i s e takes over. W h e r e the T o r a h imposes its own rule, intentionality is null. Publicly-accepted custom and procedure take the p a r a m o u n t position. In cases of negligence or malfeasance, m a n takes responsibility for what he has d o n e — s o m u c h for the first half of the Babas. W h e r e Scripture pertains, it is accorded ample exegesis. W h a t Scripture presents episodically, the H a l a k h a h portrays systematically. But the purpose of the tractates in no way comes to realization in the articulation of the law of Scripture on the topics at hand. T h a t is proved by the simple fact that most of Baba Mesia and Baba Batra pursues problems to which Scripture in no way devotes itself. So where Scripture provides H a l a k h a h , the O r a l T o r a h faithfully attends to that H a l a k h a h ; but the O r a l T o r a h in no way limits itself to Scripture's repertoire of topics. M o r e to the point, the O r a l T o r a h organizes the H a l a k h a h systematically, but in accord with its own system and its problematics, not in accord with the system—the order, the p r o g r a m — o f the Written T o r a h .

RESTORING THE SOCIAL ORDER

97

T h r o u g h their exposition of Scripture's laws of injury a n d misapp r o p r i a t i o n a n d t h r o u g h their f o r m u l a t i o n of their o w n , m u c h m o r e e l a b o r a t e topical p r o g r a m for the civil o r d e r a n d the resolution of conflict at h o m e , sages expose the rationality a n d o r d e r that inheres in the episodic rules of Scripture. Since, in their intellectual context, consistency, immutability, c o h e r e n c e m a r k perfection, sages affirm that in its details the T o r a h ' s design for dealing with conflict within holy Israel promises to perfect Israel's w o r k a d a y world in the m o d el set forth at Sinai. T h e W r i t t e n T o r a h m a k e s clear G o d ' s intense interest in the justice a n d equity of the Israelites' o r d i n a r y transactions a m o n g themselves. T h e y are to f o r m the k i n g d o m of priests a n d the holy people. T h e i r c o n d u c t with one a n o t h e r — t h e W r i t t e n T o r a h ' s civil law insists in every line—shapes G o d ' s j u d g m e n t of t h e m a n d t h e r e f o r e dictates their fate. So sages here d e m o n s t r a t e w h a t a m a n can d o actively to participate in the perfection of the social order t h r o u g h the results of his own a n d his chattels' c o n d u c t . H e r e the consideration of m a n ' s free will proves p a r a m o u n t : w h a t m a n by an act of will has upset, m a n by an act of will m u s t restore. W i t h these general observations in h a n d , let us t u r n to the specificities of the H a l a k h a h of conflict such as is realized in torts a n d d a m a g e s a n d o t h e r transactions between households a n d their principals.

III. Baba Qamma Specifically, in a c c o r d with the H a l a k h a h of B a b a Q a m m a m a n u n d e r t a k e s to assume responsibility for w h a t he does, his liability assessed always in just p r o p o r t i o n to causation. W i t h i n Israel's social o r d e r w h a t G o d wants a m a n to d o is take responsibility for his o w n actions, accountability for the results of w h a t he or his chattel has d o n e — n o m o r e , n o less. Responsibility begins in right attitude. M a n m u s t f o r m the intentionality of t a k i n g responsibility for his actions; this he must do by a n act of will. T h a t is w h y the whole of B a b a Q a m m a plays itself out as a n exercise in the definition of the valid intentionality in transactions involving d a m a g e a n d conflict. W h e r e one has diminished a n o t h e r , he must willingly take responsibility for his deed of omission or commission (as the tractate u n folds). T h e message of the H a l a k h a h on m a n ' s taking responsibility c a n n o t be missed in the ringing o p e n i n g w o r d s of the M i s h n a h - t r a c täte: " W h a t they [various a n i m a t e a n d i n a n i m a t e causes of d a m a g -

98

CHAPTER THREE

es] have in c o m m o n is that they customarily d o d a m a g e a n d taking care of t h e m is your responsibility. A n d w h e n one of t h e m has caused d a m a g e , the [owner] of that which causes the d a m a g e is liable to p a y c o m p e n s a t i o n . . . In the case of anything of which I am liable to take care, I am deemed to render possible whatever damage it may do. If I am deemed to have rendered possible part of the damage it may do, I am liable for compensation as if [I have] made possible all of the damage it may do. " T h a t r e m a r k ably e l o q u e n t , decisive f o r m u l a t i o n contains the entire message of B a b a Q a m m a a n d the first half of B a b a Mesia. T h e H a l a k h a h holds that we a r e responsible for w h a t we d o a n d w h a t we cause, b u t we a r e not responsible (or not responsible in the same degree) for w h a t we c a n n o t control or even foresee. So the law asks, h o w does o u r action or lack of action relate to the c o n s e q u e n c e of w h a t we d o or not do? If we d o not k n o w that a n act has caused a result, we c a n n o t hold responsible the p e r s o n w h o has d o n e the act for the c o n s e q u e n c e s he has b r o u g h t a b o u t . T h e law works out these gradations between total culpability or blame, by reason of one's f o r m i n g the efficient cause w i t h o u t mitigating considerations, a n d total a b s o l u t i o n f r o m c u l p a b i l i t y a n d b l a m e , b y r e a s o n of o n e ' s b e a r i n g n o responsibility w h a t s o e v e r for w h a t has h a p p e n e d : [1] responsibility for all d a m a g e s d o n e , because the event that has caused loss a n d d a m a g e is v o l u n t a r y a n d foreseeable, not the result of overwhelming external force; preventable; brought about by willful action; the result of culpable knowledge; deliberate choice, not m e r e negligence; [2] responsibility for the greater part of the d a m a g e s that are done, because the d a m a g e is foreseeable; not the result of o v e r w h e l m i n g external force; p r e v e n t a b l e ; thus in the event the i g n o r a n c e is classified as culpable; b u t not voluntary; [3] responsibility for the lesser p a r t of the d a m a g e s that are d o n e , because the d a m a g e is foreseeable; b u t the result of o v e r w h e l m i n g external force a n d not p r e v e n t a b l e , thus: involuntary, b u t the result of culpable i g n o r a n c e a n d negligence; [4] n o responsibility at all, the event b e i n g involuntary, the result of o v e r w h e l m i n g external force, not foreseeable, h e n c e , inculpable i g n o r a n c e ; e.g., p u r e c h a n c e . W e t h e r e f o r e identify in the w o r k i n g out of the H a l a k h a h three operative c r i t e r i a — p o i n t s of differentiation in the analysis of events a n d the actions that p r o d u c e t h e m , w h i c h f o r m a cubic grid, with, in theory, nine gradations of blame a n d responsibility a n d consequent culpability:

RESTORING T H E SOCIAL ORDER

99

[1] a n event p r o d u c e d by a n action that is v o l u n t a r y vs. involuntary; [2] a n event that is foreseeable vs. n o t foreseeable, o r a n action the c o n s e q u e n c e s of which a r e foreseeable vs. n o t ; [3] a n event that is p r e v e n t a b l e vs. n o t p r e v e n t a b l e ; o r a n action that is necessary a n d t h e r e f o r e blameless, o r o n e that is n o t . T h u s w e m a y construct a grid of three layers o r dimensions, o n e grid f o r m e d of considerations of w h a t is v o l u n t a r y vs. involuntary, the second, of w h a t is foreseeable vs. n o t foreseeable, t h e third, of w h a t is p r e v e n t a b l e vs. n o t p r e v e n t a b l e , lines. T h a t permits us to identify a n efficient cause that is voluntary, foreseeable, a n d preventable; voluntary, foreseeable, a n d n o t p r e v e n t a b l e ; involuntary, foreseeable, a n d p r e v e n t a b l e ; involuntary, n o t foreseeable, a n d not p r e ventable; a n d so on. W h a t is voluntary, foreseeable, a n d preventable imposes m a x i m u m liability f o r restoration. M a n c a n n o t b l a m e his ox, n o r in t h e public w a y impose u p o n bypassers t h e responsibility to a c c o m m o d a t e t h e obstacles he h a s set u p . O n c e m o r e , I r e m i n d readers, w e deal only with conflict that is m a d e explicit. I ordinarily 1 d o n o t fabricate conflict, even w h e r e it is implicit in t h e f o r m u l a t i o n of the law itself. A single case suffices to m a k e that point, illustrating t h e m a n y compositions not t r e a t e d here: M . BABA Q A M M A 2 : 3

The dog or the goat which jumped from the top of the roof and broke utensils - [the owner] pays the full value of the damage [they have caused], because they are attested dangers. The dog which took a cake [to which a cinder adhered] and went to standing grain, ate the cake, and set the stack on fire - for the cake the owner pays full damages, but for the standing grain he pays only for half of the damages [his dog has caused]. Obviously, t h e o w n e r of the d o g a n d t h e h o u s e h o l d e r whose utensils have b e e n b r o k e n have c o m e into conflict. T h e o n e claims c o m 4

At some very few points, I take for granted that a claim has been made by a plaintiff against the householder-defendant; these concern compensation for damages to the plaintiffs person. T h a t is because the Halakhic focus is, how to assess damages that clearly have been demanded by the plaintiff/victim. But this should be treated as an exception to the prevailing rule: only explicit accounts of claim and counterclaim register for us here.

100

CHAPTER THREE

p e n s a t i o n , t h e o t h e r resists t h e claim. But w i t h o u t addressing t h e specificities of the case, t h e H a l a k h a h sees n o p r o b l e m in resolving the m a t t e r . T h e particularities of the h o u s e h o l d e r w h o owns t h e d o g a n d t h e h o u s e h o l d e r w h o s e utensils have b e e n b r o k e n b y t h e d o g are irrelevant to t h e resolution of the conflict, w h i c h follows established lines. T h e implicit conflict yields n o m o r e t h a n a case illustrative of the w o r k i n g of a rule, here, o n e t h a t c o n c e r n s responsibility f o r a t t e s t e d d a n g e r s . T h e c o n f l i c t i n g claims a r e s u b s u m e d t h e r e u n d e r — n o c o n t e n t i o n h e r e , e x c e p t b e t w e e n individuals, of which t h e H a l a k h i c system takes a c c o u n t only in its o w n categories, terms, a n d p r o p o r t i o n s . W h a t w e a r e seeking, I h a r d l y n e e d r e p e a t , is a case of conflict that is articulated, t h e resolution of which is fully w o r k e d o u t in a m a n n e r p a r t i c u l a r t o t h e case at h a n d , n o t resolved b y imposition of s t a n d a r d rules that a r e m e r e l y instantiated. F o r o u r interest is in the criteria t h a t dictate w h a t class of c o n t e n t i o n r e a c h e s t h e level of articulated, e x e m p l a r y conflict, a n d w h a t m e c h a n i s m s serve t o resolve such conflict. K n o w l e d g e of h o w t h e m a t t e r is w o r k e d o u t will yield t h e social t e a c h i n g that w e seek. T h e p e r t i n e n t compositions n o w follow. W e n o w t u r n t o t h e p e r t i n e n t entries. A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M. 3:1 He who leaves a jug in the public domain, and someone else came along and stumbled on it and broke it—[the one who broke it] is exempt. And if [the one who broke it] was injured by it, the owner of the jug is liable [to pay damages for] his injury. [If] his jug was broken in the public domain, and someone slipped on the water, or was hurt by the shards, he is liable. Y. 3:1 1.2 An ox which mounted its fellow, and the owner of the one beneath came along and pulled his beast out from underneath: if before it had mounted, he pulled it out, and the ox fell down and died, the one who did so [and saved his property] is exempt. If he pushed it off and it fell and died, he is liable. [That is, the owner pulled his ox away before the other ox mounted up; he in no way bears responsibility for the death of the other ox, nor can he be accused of saving his own capital at the expense of the other party's. Clearly, then, there is a distinction to be drawn between saving one's property at the expense of someone else when the damage already has been done, and doing so when it has not yet been done. If the damage has been done, one may not necessarily injure one's fellow. If the

RESTORING THE SOCIAL ORDER

M.

T.

T.

M.

T.

T.

101

damage has not been done, one may save himself at the cost of his fellow so that he will not suffer any damage at all.] 3:2 He who pours water out into the public domain, and someone else was injured on it, is liable [to pay compensation for] his injury. He who put away thorns or glass, and he who makes his fence out of thorns, and a fence which fell into the public way—and others were injured by them— he is liable [to pay compensation for] their injury. 2:5 He who places thorns and pebbles on his wall, [which extends] into the public domain, and someone else came along and was injured by them, lo, this one is exempt. [If the walls] fell down, and someone else came along and was injured by them, lo, this person is liable [M. B.Q. 3:2D-H]. [If] he built them in the normal way, he is exempt, unless they gave him time [to clear them out]. [If] they gave him time, and they fell down during that time, he is exempt. [If they fell] after that time, he is liable. How much is the time [they must give the man]? No less than thirty days. 2:6 He who stored away thorns and glass in the wall of his fellow, and the owner of the wall came along and tore it down, and someone else came along and was injured by them, lo, this one [nonetheless] is liable. 3:3 He who brings out his straw and stubble into the publie domain to turn them into manure and someone else was injured on them—he is liable [to pay compensation for] his injury. But whoever grabs them first effects possession of them. 2:4 If] one's jug or jar broke in public domain, and someone else came along and was injured by them, lo, this person is liable. [If] he left his stone or burden in the public way, [and] they said to him, "Clear them out," [and] he said to them, "I don't want them," whoever grabs them first acquires possession of them. [If] someone else came along and was injured by them, lo, this person [nonetheless] is liable. [If] his walls fell into the public domain, and they said to him, "Clean them out," and he said to them, "I don't want them,"—whoever grabs [the stones of the walls] first acquires possession of them. [If] someone else came along and was injured by them, lo, this person is liable [cf. M . B.Q. 3:3A-F], 2:8 He who heaps up cattle dung to acquire possession of it in the public domain, and someone else came along and was injured by itlo, this person is liable. And [to others the dung] is prohibited under the laws of robbery [vs. M. B.Q. 3:3].

1. What is subject to dispute? T h e conflict, M . 3:1, focuses u p o n the classification of causality: direct or efficient. W h o is t h e responsible party, t h e o n e w h o left the j u g or t h e o n e w h o stumbled o n the j u g a n d broke it? E a c h h a s a d e -

102

CHAPTER THREE

fense, t h e o n e w h o left the j u g is n o t t h e direct cause of the breakage, a n d t h e o n e w h o is t h e direct cause is n o t t h e efficient cause. In this classification of causation, t h e efficient cause is assigned full b l a m e . I include M . 3:2, 3, even t h o u g h n o conflict is articulated, because they continue t h e exposition o f M . 3:1, where there is a clear c o n t e n t i o n based o n conflicting claims of responsibility a n d their classifications. But at t h e a d d e d rules t h e r e is n o d o u b t as to w h o is responsible f o r t h e injury; it is t h e p e r s o n w h o h a s taken over p u b lie d o m a i n f o r private use. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict allows a n explicit a d j u d i c a t i o n of conflicting claims of responsibility b y r e a s o n of diverse classes of causation, e.g., direct vs. indirect, p r o x i m a t e vs. efficient. T h e system takes t h e position that t h e efficient cause bears full responsibility. T h e T o s e f t a introduces a f u r t h e r distinction: o n e m a y save o n e ' s p r o p e r t y a t someo n e else's expense only w h e n t h e d a m a g e that o n e fears will affect his p r o p e r t y is going to take place in t h e f u t u r e . If the d a m a g e h a s b e e n d o n e , o n e m a y n o t i n j u r e o n e ' s fellow t o save o n e ' s o w n p r o p erty f r o m f u r t h e r d a m a g e s . M. 3:4 Two pot sellers who were going along, one after another, and the first of them stumbled and fell down, and the second stumbled over the first—the first one is liable [to pay compensation for] the injuries of the second. T. 2:9 Ass-drivers going after one another—the first of them stumbled and fell down, and his fellow came along and stumbled on him and fell down—even if they are a hundred—all of them are exempt [from having to pay damages]. An ox which pushed its fellow, and its fellow pushed its fellow—the first pays [compensation] to the second, and the second to the third. But if it was on account of the first one that they all fell down, the first one pays for all of them. Five people who sat down on a bench, which broke—all of them are liable to pay [compensation for the bench]. But if it was on account of the last one [alone] that it broke, the last one must pay damages for all of them. T. 2:10 Asses, the legs of one of which were infirm—they are not permitted [e.g., in a narrow passage] to set him aside [and pass him], [If] one of [the asses] was loaded and one of them was mounted, they set aside the one which was loaded in favor of the one which was mounted. [If] one of them was mounted and one of them was unburdened, they set aside the one which is unburdened in favor of the one which is mounted. [If] both of them were carrying burdens, both of them

RESTORING THE SOCIAL ORDER

103

were mounted, or both of them were unburdened, they make a compromise-agreement among themselves. And so is the rule governing two boats which were coming toward one another, one of them unloaded, and one of them loaded—they set aside the one which is unloaded in favor of the one which is bearing a burden. [If] both of them were unloaded or both of them were carrying cargo, they make a compromise between themselves. B.

3 : 4 1 . 1 / 3 1 A : P O T T E R S OR GLASS CARRIERS W H O W E R E WALKING INDIAN FILE, T H E FIRST OF THEM STUMBLED AND FELL, AND T H E SECOND STUMBLED ON T H E FIRST, T H E T H I R D ON T H E SECOND

T H E FIRST IS LIABLE F O R

T H E DAMAGES SUFFERED BY T H E SECOND, T H E SECOND IS LIABLE F O R T H E DAMAGES SUFFERED BY T H E T H I R D , B U T IF IT WAS ON A C C O U N T ONLY OF T H E FIRST ONE T H A T T H E Y FELL D O W N , T H E N T H E FIRST ONE IS LIABLE FOR T H E DAMAGES SUFFERED BY ALL OF THEM. B U T IF EACH O F THEM GAVE A W A R N I N G T O T H E OTHERS, T H E N ALL O F THEM A R E EXEMPT FROM HAV‫״‬ ING T O PAY COMPENSATION.

1. What is subject to dispute? T h e conflicting claims between the first a n d second in line once m o r e c o n c e r n responsibility. Even t h o u g h t h e first in line fell accidentally, he b e a r s responsibility f o r w h a t h a s h a p p e n e d to t h e second in line. T . 2:10 clarifies s u b o r d i n a t e m a t t e r s , b u t it also articulates t h e principle: "if it w a s on a c c o u n t of the last o n e alone that it broke t h e last o n e m u s t p a y d a m a g e s f o r all of them.' 5 S o t h e issue of responsibility requires t h e articulation of t h e conflicting claims of successive parties to a n accident. T h e Bavli introduces yet a n o t h e r principal consideration: But if e a c h of t h e m gave a w a r n i n g to t h e others, t h e n all of t h e m a r e e x e m p t f r o m h a v i n g to p a y c o m p e n s a tion. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest once m o r e stresses t h e m a t t e r of responsibility. H e r e , if o n e h a s t h e c h a n c e t o w a r n t h e others, he is relieved of responsibility f o r w h a t h a p p e n s , because each m a y take c h a r g e of his o w n fate. But if he does n o t d o so, h e b e a r s t h e b u r d e n of the d a m a g e s affecting all of t h e m . T h e systemic interest, t h e n , c o m e s t o the surface in t h e stress of the successive H a l a k h i c statements u p o n the possibility of taking, o r shifting, responsibility f o r t h e d a m a g e s . M. 3:5 This one comes along with his jar, and that one comes along with his beam—[if] the jar of this one was broken by the beam of that one, [the owner of the beam] is exempt,

104

CHAPTER

THREE

for this one has every right to walk along [in the street], and that one has every right to walk along [in the same street] M. 3:6 Two who were going along in the public domain, one was running, the other ambling, or both of them running, and they injured one another, both of them are exempt. M. 3:7 He who chops wood in private property, and [the chips] injured someone in public domain, in public domain, and [the chips] injured someone in private property, in private property, and [the chips] injured someone in someone else's private property—he is liable. B. 3:7 I.7/33A: A W O R K E R W H O HAS COME T O C O L L E C T HIS WAGES FROM T H E H O U S E H O L D , AND T H E OX OF T H E HOUSEHOLDER G O R E D HIM, OR T H E D O G O F T H E H O U S E H O L D E R B I T HIM, AND H E D I E D

T H E HOUSEHOLDER IS

E X E M P T [FROM HAVING T O PAY RANSOM],

1. What is subject to dispute? T h e i n j u r e d p a r t y claims d a m a g e s . But t h e d e f e n d a n t c o u n t e r s that he h a d every right to b e w h e r e h e was a n d d o w h a t h e was doing, which was, utilizing t h e public d o m a i n f o r a licit p u r p o s e . T h e o n e w h o suffered t h e d a m a g e b e a r s responsibility for his o w n loss. If, b y contrast, one chops wood, the licit activity produces a secondary effect of which he h a s to take a c c o u n t , t h e chips, a n d for w h a t they do, he is responsible u n d e r t h e stated condition. S o t h e g r o u p in t h e aggregate m a k e s t h e p o i n t that all have e q u a l rights to utilize public d o m a i n ; n o n e b u t t h e h o u s e h o l d e r h a s unrestricted rights in private d o m a i n ; w h e r e w h a t o n e does in o n e d o m a i n h a s s e c o n d a r y effects for t h e o t h e r d o m a i n , he is responsible f o r those effects. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest is in t w o m a t t e r s , responsibility a n d t h e distinction b e t w e e n private a n d public d o m a i n . T h e f o r m e r retains its p r i m a r y standing. But t h e latter leads t o c o m p l i c a t i o n s t h a t limit c o m p l e t e f r e e d o m of action. If o n e is in his o w n d o m a i n a n d p r o duces b y his licit action s e c o n d a r y effects in public d o m a i n , h e is responsible therefore. M. 3:11 An ox which was running after another ox, and [that latter ox] was injured—this one claims, "Your ox did the injury," and that one claims, "Not so, but it was hit by a stone"—he who wants to exact [compensation] from his fellow bears the burden of proof. If two [oxen] were run-

RESTORING THE SOCIAL ORDER

105

ning after one [ox]—this one says, "Your ox did the damage,5' and that one says, "Your ox did the damage'5—both of them are exempt. [But] if both of them belonged to the same man, both of them [oxen] are liable [to pay compensation]. [If] one of them was big and one little—the one whose ox has suffered an injury says, "The big one did the damage," but the one who is responsible for the damage says, "Not so, but the little one did the damage"— one of them was deemed harmless, and one was an attested danger— the one whose ox has suffered an injury says, "The one which was the attested danger has done the damage," but the one who is responsible for the damage says, "Not so, but the one which had been deemed harmless did the damage,— he who wants to exact [compensation] from his fellow bears the burden of proof. T. 3:6 An ox which was running after its fellow, [and] the one which was being pursued turned around and clobbered [the partner]—[if] others clobbered the pursuer—lo, these are liable. [If] the pursuing ox was injured by the one which was being pursued, [the latter] is exempt. [If] the one which was being pursued was injured by the pursuer, [the owner of the latter] is liable. An ox which mounted its fellow, and the owner of the one beneath came along and pulled [his beast] out [from underneath]—or if [the ox] pulled itself off, and fell and died—[the owner of the ox underneath] is exempt. [If] he pushed him and he fell and died, [the owner of the ox underneath] is liable. An ox which was grazing, and another ox went out after it, and the one which was grazing was found dead—even if this one has been gored, and that one is an attested danger as to goring, or this one died of a bite, and that one was an attested danger as to biting, [the owner of the surviving ox] is exempt. T. 3:7 Two oxen who were grazing, and two other oxen went out after them, and these which were known [to be grazing] were found dead— it is a matter of doubt whether these killed them, or whether death came from some other source and they died—lo, [the owners of] these are exempt. If it is a matter of certainty that they killed them, lo, [the owners of] these [oxen] pay compensation, in accord with the value of the smaller of the two, not in accord with the value of the larger of the two; in the assumption that the one which was deemed harmless did the killing, not in the assumption that the one which was an attested danger did the killing. If it is a matter of certainty that the black [oxen] did the killing of the white ones, [if] there was there one large one and one small one, one which was deemed harmless and one which was an attested danger, lo, these pay compensation for the large ox and for the small one—for the large ox from the carcass of the small

106

CHAPTER THREE

one, and for the small ox from the carcass of the large one; for the large ox from the value of the one which had been deemed harmless, and for the small ox from the value of the one which had been an attested danger. [If] the oxen which had been injured belonged to two people, and the oxen which had done the damages belonged to one person, [if it is then] a matter of doubt that those oxen had killed them, or that death had come from some other source and they died, lo, these [owners of the accused oxen] are exempt. If it is a matter of certainty that they had killed them, lo, these pay compensation—in accord with the value of the small one, and not in accord with the value of the large one; in accord with the rules governing the one which had been deemed harmless, and not in accord with the rules governing an attested danger. If it is a matter of certainty that the black ones had killed the white ones, if there were there one which was large and one which was small, one which was deemed harmless and one which was an attested danger, lo, these pay compensation for the large one and for the small one—for the large one from the [value of the] smaller [of the two oxen which had done the killing], and for the smaller one from the larger one; for the large ox from the value of the one which had been deemed harmless, and for the small ox from the value of the one which had been an attested danger. And the owners of those oxen which had been injured divide the compensation between them— this one takes a sum in accord with the value of his ox, and that one takes a sum in accord with the value of his ox. 1. What is subject to dispute? H e r e is a well-articulated dispute, p e r h a p s t h e most c o m m o n type that t h e H a l a k h a h a d j u d i c a t e s : a conflict as t o actualities. W h e n subject t o dispute a r e t h e m e r e facts of the m a t t e r , t h e n t h e principie that is invoked is simple: p r o v e your case. J u s t as at Q i d d u s h i n , a p e r s o n ' s claim affects himself b u t , absent a d e q u a t e proof, n o o n e else, so h e r e too, t h e claim against t h e o t h e r m u s t be substantiated by t h e c l a i m a n t o r it is null. 2. How does the system resolve the conflict in line with the systemic interest that is in play? Resolving conflict as to fact, t h e system invokes t h e simple principie, prove t h e claim. T h e status q u o shifts only in response t o establishing what has actually taken place. M. 5:2 (1) The potter who brought his pots into the courtyard of the householder without permission, and the beast of the householder broke them—[the householder] is exempt. (2) And if [the beast] was injured on them, the owner of the pots is liable. (3) If [however], he brought them in with

RESTORING THE SOCIAL ORDER

M.

T.

T.

T.

107

permission, the owner of the courtyard is liable, (1) [If] he brought his produce into the courtyard of the householder without permission, and the beast of the householder ate them up, [the householder] is exempt. (2) And if [the beast] was injured by them, the owner of the produce is liable. (3) But if he brought them in with permission, the owner of the courtyard is liable. 5:3 (1) [If] he brought his ox into the courtyard of a householder without permission, and the ox of the householder gored it, or the dog of the householder bit it, [the householder] is exempt. (2) [If] that [ox] gored the ox of the householder, [the owner] is liable. [If] it fell into his well and polluted its water, [the owner of the ox] is liable. [If] his father or son was in [the well and was killed], [the owner of the ox] pays ransom money. (3) But if he brought it in with permission, the owner of the courtyard is liable. 5:13 There is that [owner] who pays the ransom, and [the ox] is not stoned, there is that ox which is stoned, and the [owner] does not pay ransom. He who digs a pit with permission and an ox fell in on him and killed him—[the owner of the ox] pays the ransom, but [the ox] is not stoned. [II] he went into the courtyard of a householder without permission, and the ox of the householder gored him, or the dog of the householder bit him, and he died—[the animal] is stoned, but [the owner] does not pay the ransom. 6:2 He who digs a pit in his own domain, and an ox fell on him and killed him—[the owner of the ox] is liable to pay the ransom-money. And if the ox was injured [in the pit], the owner of the pit is exempt. 6.3 He who digs a pit in public domain and an ox fell on him and killed him—[the owner of the ox] is exempt from having to pay the ransom money. And [if] the ox is injured in the pit, the owner of the pit is liable.

1. What is subject to dispute? T h e o w n e r of the pots claims that the h o u s e h o l d e r is responsible f o r the b r e a k a g e . T h e h o u s e h o l d e r claims that t h e pots were located in his c o u r t y a r d w i t h o u t his p e r m i s s i o n . T h e n h e h a s n o t a c c e p t e d responsibility for t h e pots; he is n o t in t h e status of a bailiff, a n d the pots d o n o t constitute a licit b a i l m e n t . T h e issue of responsibility is w o r k e d o u t by a p p e a l t o t h e m a t t e r of responsibility f o r w h a t h a p p e n s in t h e location controlled b y t h e h o u s e h o l d e r , a key consideration in assigning culpability. T h e potter h a d n o right to p u t his pots w h e r e they were; he is responsible f o r w h a t h a s h a p p e n e d to t h e m . T h e h o u s e h o l d e r never u n d e r t o o k t o t e n d t h e pots. H e is n o t culpable f o r w h a t h a s h a p p e n e d to t h e m .

108

CHAPTER THREE

2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e system concerns itself with assigning responsibility, n o w d e m a n d ing that t h e c i r c u m s t a n c e of o w n e r s h i p e n t e r in once m o r e . H e r e , if the o n e w h o owns t h e location of the t r a n s a c t i o n h a s a s s u m e d responsibility f o r w h a t is situated in his p r o p e r t y h e is responsible, otherwise not. S o t h e resolution of conflict once m o r e focuses u p o n types a n d degrees of culpability, m e a s u r e d against the exercise of will by t h e o n e whose intentionality governs: t h e h o u s e h o l d e r . M. 5:6 A pit belonging to two partners—one of them passed by it and did not cover it, and the second one also did not cover it, the second one is liable. [If] the first one covered it up, and the second one came along and found it uncovered and did not cover it up. the second one is liable. [If] he covered it up in a proper way, and an ox or an ass fell into it and died, he is exempt. [If] he did not cover it up in the proper way and an ox or an ass fell into it and died, he is liable. [If] it fell forward [not into the pit] because of the sound of the digging, [the owner of the pit] is liable. [If] it fell backward [not into the pit] because of the sound of the digging, [the owner of the pit] is exempt. [If] an ox carrying its trappings fell into it and they were broken, an ass and its trappings and they were split, [the owner of the pit] is liable for the beast but exempt for the trappings. [If] an ox belonging to a deaf-mute, an idiot, or a minor fell into it, [the owner] is liable. [If] a little boy or girl, a slave boy or a slave girl [fell into it], he is exempt [from paying a ransom]. T. 6:10 A pit belonging to two people, one covers it, and one uncovers it—the one who uncovers it is liable. [If] he covered it up and it became uncovered, while he was standing there and saw it uncovered but did not cover it up, lo, this one is liable. [If] he covered it up and went along, even though it became uncovered later on, he is exempt. M. 6:1 He who brings a flock into a fold and shut the gate before it as required, but [the flock] got out and did damage, is exempt. [If] he did not shut the gate before it as required, and [the flock] got out and did damage, he is liable. [If the fence] was broken down by night, or thugs broke it down, and [the flock] got out and did damage, he is exempt. [If] the thugs took [the flock] out, [and the flock did damage], the thugs are liable. T. 6:19 [If] he shut the gate as is required [M. B.Q. 6:1 A], tied up [the beasts] as is required, made for [the flock] a fence ten handbreadths

RESTORING THE SOCIAL ORDER

109

high, or handed it over to a sick person or an old person of sound senses, [the owner of the flock] is exempt [from liability to damages done by the flock]. [If] he shut the gate not as is required, tied up the gate not as is required, made for [the flock] a fence less than ten handbreadths high, or handed it over to a deaf-mute, an idiot, or a minor, he is liable [to pay compensation for damages done by the flock]. What is the definition of doing so in a way not such as is required? Any situation in which [the corral-fence] cannot stand up to the wind. M. 6:2 [If] he left it in the sun, [or if] he handed it over to a deaf-mute, idiot, or minor, and [the flock] got out and did damage, he is liable. [If] he handed it over to a shepherd, the shepherd takes the place of the owner [as to liability]. [If the flock] [accidentally] fell into a vegetable patch and derived benefit [from the produce], [the owner must] pay compensation [only] for the value of the benefit [derived by the flock]. [If the flock] went down in the normal way and did damage, [the owner must] pay compensation for the [actual] damage which [the flock] inflicted. T. 6:20 A shepherd who hands over his flock to another shepherd—the first is liable, and the second is exempt. He who hands over his flock to a shepherd, even if it is one who is lame, or even sick, or even if there are under his oversight as many as three hundred sheep, is exempt [cf. M. Q.B. 6:2E], [If] he handed it over to a deaf-mute, an idiot, or a minor, he is liable. [If he handed it over to] a slave or a woman, he is exempt. And they pay compensation after an interval. How [does a woman or a slave pay compensation after an interval]? They call a court into session to deal with their case. They write a writ of debt against them. [If] the woman is divorced or the slave freed, they are then liable to pay compensation. M. 6:3 He who stacks sheaves in the field of his fellow without permission, and the beast of the owner of the field ate them up, [the owner of the field] is exempt. And [if] it was injured by them, the owner of the sheaves is liable. But if he had put his sheaves there with permission, the owner of the field is liable. T. 6:25 [If one] went into the shop of a carpenter without permission [and] a chip flew and hit him in the face, [the carpenter] is exempt [from liability for damages]. If he went in with permission, the owner of the shop is liable [cf. M. B.Q. 6:3] T. 6:26 [If] one went into the shop of a smith without permission, [and] sparks flew and did damage to him, [the smith] is exempt. If he went in with permission, the owner of the shop is liable [cf. M. B.Q. 6:3]. T. 6:27 A worker who went into the courtyard of a householder without permission, even though he has the right to go in and to collect their [the workers'] salary, if the ox of the householder gored him, or if his dog bit him, [the householder] is exempt. But if [the householder] said to him, "Come in," the householder is liable [cf. M. B.Q. 6:3].

110

CHAPTER THREE

1. What is subject to dispute? Since b o t h p a r t n e r s are responsible for keeping the pit covered, in theory they share equally in the obligation to compensate the claimant d a m a g e d b y the pit. But the abstract t h e o r y of the m a t t e r conceals a c o m p l i c a t e d reality. Both p a r t n e r s h a d the o p p o r t u n i t y to p r e v e n t the accident. T h e first of the two to pass by, however, is not responsible, if the second went by later, for the latter is assigned full blame. H e is d e e m e d the efficient cause, t h r o u g h his negligence, of w h a t has h a p p e n e d . W h a t if the second h a d not c o m e by? T h e n the first o w n e r w o u l d b e a r responsibility, in line with T o s e f t a ' s c o m p l e m e n t : If he covered it u p a n d it b e c a m e u n c o v e r e d , while he was s t a n d i n g there a n d saw it u n c o v e r e d b u t did n o t cover it up, lo, this o n e is liable. H e r e the direct cause is also the efficient cause. O n e carries out his responsibility by m a k i n g a d e q u a t e provision, M . 6:1; that shows his intention to p r e v e n t d a m a g e . O n c e he hires s o m e o n e to d o the work, the latter takes over his responsibility. In these circumstances, the i n j u r e d p a r t y has n o claim on the h o u s e h o l d e r , w h o has carried out his responsibilities. If. M . 6:2, suitable provision was not m a d e for the flock, the h o u s e h o l d e r of course is responsibility. M . 6:3 goes over familiar g r o u n d : the h o u s e h o l d e r has not a c c e p t e d responsibility, so he is not in the status of bailiff. If he has accepted responsibility, then he is in the status of a n u n p a i d bailiff. 2. How does the system resolve the conflict in line with the systemic interest that is in play? Causality once m o r e registers. T h e conflict b e t w e e n the two owners is resolved by a p p e a l to the efficient cause, which is the failure of the second, not the first of the p a r t n e r s to c o m e by. M u c h dep e n d s o n covering the pit in the p r o p e r m a n n e r ; here too, negligence involves a h a p h a z a r d provision for the d a n g e r . Responsibility is, moreover, for p r i m a r y damages, to the beast, but not secondary ones, to the t r a p p i n g s or the yoke. T h e T o s e f t a ' s clarification of m a t t e r s uncovers the full systemic resolution. T. 7:24 "Give me back my ox!" And that one said, "I have only the money [paid for it]"—"Give me the money!" "I have only the beast [I purchased with that money]"—"Give me fourfold or fivefold compensation!" And that one said, "I have only enough for a single ox"—if it was worth, in fact, the value of all [fivefold restitution], they make an estimate of its value [and it is paid over as acceptable restitution].

RESTORING THE SOCIAL ORDER

Ill

1. What is subject to dispute? T h e conflict c o n c e r n s the restitution of the ox in accord with the Scriptural provision of fourfold or fivefold c o m p e n s a t i o n . If the ox has been sold, the f u n d s paid for it are to be h a n d e d over; if these have b e e n invested in a n o t h e r beast, that is h a n d e d over; a n d so throughout. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e system extends to the outer limits of the transaction the claim of the plaintiff for c o m p e n s a t i o n . T. 8:2 "Where is my ox, which you stole?" And the other said to him, "You sold it to me, ‫ יי‬or, "You gave it to me as a gift!" "Your father sold it to me!" or, "Your father gave it to me as a gift!" and witnesses bear testimony against him that he stole it [and] slaughtered or sold it—he pays fourfold or fivefold restitution. But if he confessed to the matter before witnesses gave testimony against him, he pays only the principal. [If he did so] after the witnesses gave testimony against him, he pays fourfold or fivefold restitution. T. 8:3 "Where is my ox, which you stole?" He said to him, "I found it wandering around and I slaughtered it!" "It came to me of its own accord, and I slaughtered it" "It came to me of its own accord and I slaughtered it!;' "It was standing around in the market and I slaughtered it!" [the plaintiff then says], "I impose an oath upon you to that effect," and he says, "Amen"—and then witnesses come along and testify against him that he had stolen and slaughtered or sold [the sheep or the ox]—he pays fourfold or fivefold restitution. But if he confessed to the matter, whether this is after the witnesses came upon the scene or even before the witnesses came upon the scene, he pays only the principal. T. 8:4 "Where is my ox, which I left under your guardianship?" He said to him, "I don't know what in the world you're talking about!" or if he said to him, "It disappeared," and then witnesses came along and testified against him that he had eaten it- he pays only the principal. And if he confessed to the accusation, whether this was after the witnesses came along or before the witnesses came along, he pays only the principal. T. 8:5. "Where is my ox, which you stole?" [if] he said to him, "You sold it to me!" or, "You gave it to me as a gift!" "Your father sold it to me!" Your father gave it to me as a gift!" [and the plaintiff responds], "I impose an oath upon you," [and the defendant said,] "Amen"— and then witnesses come along and testify against him that he had stolen and slaughtered or sold [the sheep or the ox], he pays fourfold or fivefold restitution. But if he had confessed to the matter after the taking of the oath, if this was before the witnesses came along, he pays the

112

CHAPTER THREE

principal and an added fifth, as well as a guilt-offering. Now if this was after the witnesses came along, he pays fourfold or fivefold restitution. T. 8:6 "Where is my ox, which you stole?" He said to him, "I found it wandering around and I slaughtered it!" " O n its own it came to me and I slaughtered it!" "I impose an oath upon you [that you are telling the truth]," and he said, "Amen"—then witnesses come along and give testimony against him that in fact he had stolen and slaughtered or sold it—he pays fourfold or fivefold restitution. [If] he confessed after the taking of an oath, whether this is after the witnesses had come along or before the witnesses had come along, he has to pay the principal, an added fifth, and a guilt-offering. T. 8:7 "Where is my ox, which I left under your guardianship? 1 ' He said to him, "I haven't got the slightest idea what you're talking about!" or if he said to him, "It got lost," "I impose an oath on you," and he said, "Amen," then witnesses come along and give testimony against him that he had in fact eaten it—he pays only the principal. [If] he confessed after the taking of the oath, whether this was before the witnesses came along or after the witnesses came along, he pays the principal, the added fifth, and a guilt-offering. T. 8:8 "Where is my ox?" He said to him, "It was stolen." "I impose an oath on you!" And he said, "Amen." Then witnesses come along and give testimony concerning him that he had stolen it—he pays twofold restitution. 1. What is subject to dispute? T h e conflict is over facts, b u t the ruling c o n c e r n s the imposition of the T o r a h ' s penalties. T h e plaintiff accuses the d e f e n d a n t of stealing the ox; the d e f e n d a n t claims to have a c q u i r e d the ox legitimately, as a gift or p u r c h a s e , a n d witnesses testify for the plaintiff. T h e facts h a v i n g b e e n established, the d e f e n d a n t is subject to the fourfold or fivefold restitution. But if he h a d confessed b e f o r e their test i m o n y , he pays off t h e p r i n c i p a l , a n d so t h r o u g h o u t . W h i l e t h e conflict registers, t h e r e f o r e , the i m p o r t a n t p o i n t has to d o with the principle that by reason of o n e ' s o w n confession one does not incur liability for fines over a n d a b o v e restitution of w h a t one has stolen o r o t h e r w i s e m i s a p p r o p r i a t e d . T h e rest of T o s e f t a ' s r e f i n e m e n t s i m p r o v e u p o n the same rule. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e question does not p e r t a i n here. T h e conflict is resolved t h r o u g h the routine m e c h a n i s m of valid testimony of witnesses. T h e issue has n o b e a r i n g o n settling a claim, only o n h o w it is d o n e .

RESTORING THE SOCIAL ORDER

113

M. 8:1 He who injures his fellow is liable to [compensate] him on five counts: (1) injury, (2) pain, (3) medical costs, (4) loss of income [lit.: loss of time], and (5) indignity For injury: How so? [If] one has blinded his eye, cut off his hand, broken his leg, they regard him as a slave up for sale in the market and make an estimate of how much he was worth beforehand [when whole], and how much he is now worth. Pain: [If] he burned him with a spit or a nail, and even on his fingernail, a place in which [the injury] does not leave a lasting wound, they assess how much a man in his status is willing to take to suffer pain of that sort. Medical costs: If] he hit him, he is liable to provide for his medical care. [If] sores arise on him, if [they are] on account of the blow, he is liable; [but if] they are not on account of the blow, he is exempt. [If] the wound got better and opened up again, got better and opened up again, he remains liable to provide for his medical care. [If the wound] properly healed, he is no longer liable to provide medical care for him. Loss of income: They regard him [in estimating income] as if he is a keeper of a cucumber field, for [the defendant] already has paid off the value of his hand or his leg. Indignity: All [is assessed] in accord with the status of the one who inflicts the indignity and the one who suffers the indignity. He who inflicts indignity on one who is naked, he who inflicts indignity on one who is blind, or he who inflicts indignity on one who is asleep is liable. But one who is sleeping who inflicted indignity is exempt [on that count]. [If] he fell from the roof and did injury and also inflicted indignity, he is liable for the injury [he has inflicted] but exempt from the indignity. One is liable on the count of indignity only if he intended [to inflict indignity]. M. 8:4 A deaf-mute, idiot, and minor—meeting up with them is a bad thing. He who injures them is liable. But they who injure other people are exempt. A slave and a woman—meeting up with them is a bad thing He who injures them is liable. And they who injure other people are exempt. But they pay compensation after an interval: [if] the woman is divorced, the slave freed, they become liable to pay compensation. T. 9:8 He who injures his adult sons or daughters is liable under all counts. If he injured a Hebrew boy-slave or girl-slave belonging to other people, they collect from him. And [as to what he owes] his daughter, he pays her off immediately. [As to what he owes] his son, he sets it aside for him [in trust]. [If he injured] his minor sons or daughters, he is exempt on all counts. He who injures his minor daughter— the compen-

114

T.

T.

T.

T.

T.

Y.

CHAPTER THREE

sation for her injury belongs to her, and for all other forms of compensation lo, he is exempt. 9:9 [II] others injured her, compensation for her injury belongs to her. And as to the rest of the compensation, he sets it aside for her [in trust]. And if she dies, he inherits her estate. 9:10 He who injures his minor son is liable on all counts. [If he injured] his Canaanite boy-slave or girl-slave, he is liable on all counts, but exempt on the count of compensation for the loss of time, for compensation for loss of time in any event belongs to him [the owner] [M. B.Q. 8:3D-E], [If] he beat them more than is appropriate, he is liable. 9:11 A father who hits his son, and a teacher who smites his disciple, who smote and did damage—lo, these are exempt. [If] they beat them more than is appropriate, lo, these are liable. A court-officer who administered a blow at the behest of the court and did injury is exempt. [If] he beat the criminal more than is appropriate, lo, this one is liable. A qualified physician who administered a remedy at the behest of a court and did damage is exempt. [If] he did more damage than was appropriate for this case, lo, this one is liable. 9:13 He who inflicts injury on a deaf-mute, idiot, or minor, is liable on four counts, but exempt on the count of indignity, because they are not subject to indignity. 9:14 He who inflicts injury upon his wife—whether he injured her or whether others injured her—they collect [damages] from him. With the compensation, a field is purchased, and he enjoys the usufruct thereof. 8:4 1:1 [With reference to Ex. 21:26-27: "When a man strikes the eye of his slave,. . .and destroys it, he shall let the slave go free for his eye's sake. If he knocks out the tooth of his slave,. . .he shall let the slave go free for the tooth's sake."] Witnesses who stated, "We testify concerning Mr. So-and-so, that he has blinded both eyes of his slave simultaneously, " "he has knocked out two of his teeth simultaneously, "—the master pays nothing to the slave at all [but sends him forth free]. [If they testified that he had done so] one after another, the slave goes forth to freedom on account of the first, and the master pays him compensation for the loss of the second. The witnesses who testified, "We give evidence that Mr. So-and-so blinded the eye of his slave and afterward he knocked out his tooth, " and so the master says, and who turned out to be perjurers—they pay compensation to the slave. [If they said,] ". . . he knocked out his tooth and afterward he blinded his eye, " And so the slave says, and they turned out to be perjurers, they pay to the master. [If they said,] "He blinded both of them at once, " or "He knocked out both of them at once, " and others came and said, "Not so, but it was two of them in succession," and they turned out to be perjurers—they pay to the slave. [If they said,] "He blinded both of them one after the other, or knocked out both of them one after the other, " and others came along and said, "Not so, but he did both of them at once, " and they turned out to be perjurers—they pay to the master. He blinded the eye of his slave, and 10, he is yet subject to him and working for himN and they turn out to be perjurer, they pay both the value of the slave and of the blinding to the master [-T. Mak. 1:4-5],

RESTORING THE SOCIAL ORDER

115

1. What is subject to dispute? T h e conflict is not articulated but the composite d e m a n d s inclusion. T h e plaintiff claims d a m a g e s , the d e f e n d a n t admits responsibility. At issue t h e n is the s e c o n d a r y question, for the p r i m a r y o n e — c u l pability—is d e e m e d settled. T h e n the focus is o n the resolution of the conflict, the p r o p e r restoration of the victim's condition: h o w to assess d a m a g e s that are fair? T h e T a l m u d ' s principal c o n c e r n is to d e m o n s t r a t e that exact justice ("an eye for an eye") involves c o m pensation, not imposition of lex talionis via removal of the d e f e n d a n t ' s eye. F o u r of the five items—all but medical c o s t s — r e q u i r e assessing d a m a g e s t h r o u g h the m e c h a n i s m s that are specified; only m e d ical costs are not subject to a process of estimation. T h e r e , however, the issue of causation is raised: at w h a t point d o we conclude that the d e f e n d a n t has p a i d all that he owes for w h a t he has d o n e or brought about. Intentionality enters in at M . 8:4: the n a m e d parties are not held responsible for their actions, since they are d e e m e d u n a b l e to f o r m a valid intentionality. But others are responsible for i n j u r i n g t h e m . A w o m a n a n d slave are not responsible for their deeds, being subj e c t to the will of a n o t h e r , but c a n b e c o m e liable once their status changes. T h e T o s e f t a ' s m o r e subtle cases clarify s e c o n d a r y points. Even where inflicting pain is d e e m e d licit, the father to the son, the teacher to the disciple, the court-officer to a criminal, a physician to a p a tient, t h e r e is a limit to w h a t is licit. G o i n g b e y o n d the limit of a p p r o p r i a t e n e s s brings its o w n penalties. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict over bodily d a m a g e s c o n c e r n s w h a t constitutes justice for the plaintiff, w h o has b e e n subjected to physical injury, a n d also for the d e f e n d a n t , w h o has caused a d e t e r m i n a t e value of d a m a g e a n d should not be asked to m a k e e x t r a v a g a n t r e c o m p e n s e . At issue, specifically, is h o w to translate the i n j u r y into m o n e t a r y c o m p e n s a tion. J u s t i c e for the d e f e n d a n t involves imposing an exact penalty, not m o r e t h a n is right, for w h a t he has d o n e . Issues of negligence a n d intentionality are not introduced. If we are guided by the Bavli's r e a d i n g of matters, then the dispute c o n c e r n s applying the T o r a h ' s law of exact c o m p e n s a t i o n for d a m a g e s , not m o r e , not less.

116

CHAPTER THREE

M. 8:6 He who boxes the ear of his fellow pays him a sela. [If] he smacked him, he pays him two hundred zuz. [If] it is with the back of his hand, he pays him four hundred zuz. [If] he (1) tore at his ear, (2) pulled his hair, (3) spit, and the spit hit him, (4) pulled off his cloak, (5) pulled apart the hairdo of a woman in the marketplace, he pays four hundred zuz. M. 8:7 Even though [the defendant] pays off [the plaintiff], he is not forgiven until he seeks [forgiveness] from [the plaintifï]. He who says, "Blind my eye," "Cut off my hand," "Break my leg"—[the one who does so] is liable. [If he added,] ". . . on condition of being exempt," [the one who does so] is liable [anyhow]. "Tear my cloak,5' "Break my jar," [the one who does so] is liable. [If he added,] " . . . on condition of being exempt," [the one who does so] is exempt. "Do it to Mr. So-and-so, on condition of being exempt," he [who does so] is liable, whether this is to his person or to his property. T. 9:32 He who says, "Blind my eye, which is doing me harm," "Chop off my hand, which is doing me harm,"—he is exempt [cf. M. B.Q. 8:7Ε-η. T. 9:33 [Ii] gentiles forced a person and he took away the possessions of his fellow in his very presence, he is exempt. [But if on his own volition] he took them and handed them out, lo, this person is liable [cf. M. B.Q. 8:7N-0]. B.

8 : 7 1 . 1 / 9 2 A A L L O F T H E S E SUMS T H A T A R E S P E C I F I E D R E P R E S E N T T H E M O N -

ETARY COMPENSATION FOR HUMILIATION, BUT AS TO THE ANGUISH, EVEN IF THE OFFENDER BROUGHT ALL OF THE FINEST RAMS IN THE WORLD, THE MAN IS NOT FORGIVEN UNTIL HE ASKS FORGIVENESS FROM HIM, AS IT IS SAID, " N o w RESTORE THE MAN'S WIFE...AND HE WILL PRAY FOR YOU‫ ( ״‬G E N .

20:7). 1. What is subject to dispute? O n e i m p o r t a n t side of resolving conflict is at M . 8:7: even if someo n e asks a n o t h e r to blind his eye, t h e o n e w h o does t h e d e e d rem a i n s liable. Inflicting physical d a m a g e o n a n y c o u n t is p u n i s h a b l e . But w h e n it c o m e s to p r o p e r t y , if o n e asks a third p a r t y to destroy his o w n p r o p e r t y , t h e o n e w h o accedes does n o t have to p a y c o m pensation. If third parties a r e involved, that distinction does n o t hold. T h e o t h e r i m p o r t a n t side, a p a r t f r o m t h e T o s e f t a ' s s e c o n d a r y clarifications, is at Bavli. H e r e c o m p e n s a t i o n f o r humiliation does n o t suffice. W h e n it c o m e s to anguish, the i n j u r e d p a r t y m u s t b e r e c o n ciled.

RESTORING THE SOCIAL ORDER

117

2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e Bavli's r e a d i n g strikes m e as t h e systemic intervention: t h e insistence that, in a d d i t i o n to c o m p e n s a t i o n , there must be a n effort at reconciliation. C o m p e n s a t i o n for actual d a m a g e s does n o t suffice. At issue is t h e restoration of c o r p o r a t e Israel's wholeness. M. 9:3 [If the householder] gave [something] to craftsmen to repair, and they spoiled [the object], they are liable to pay compensation. [If] he gave to a joiner a box, chest, or cupboard to repair, and he spoiled it, he is liable to pay compensation. A builder who took upon himself to destroy a wall, and who smashed the rocks or did damage is liable to pay compensation. [If] he was tearing down the wall on one side, and it fell down on the other side, he is exempt. But if it is because of the blow [which he gave it], he is liable. T. 10:8 A carpenter who drove a nail into a box, chest, or cupboard, and it broke [M. B.Q. 9:3B], is liable to pay compensation, because he is tantamount to a paid bailiff. [If] one handed [wood] over to a joiner to make a chair for him, and he made a bench, a bench, and he made a chair, the hand of the owner is on top. If he gave [wood] to a carpenter to make him a nice chair, and he made him an ugly one, a nice bench, and he made him an ugly one [M. B.Q. 9:3A], the hand of the owner is on top. T. 9:4 He who hands over wool to a dyer, and the [dye in the] cauldron burned it, [the dyer] pays the value of the wool. [If] he dyed it in a bad color, if [the wool] increased in value more than the outlay [of the dyer], [the owner of the wool] pays him the money he has laid out in the process of dyeing. But if the outlay of the dyer is greater than the increase in value of the wool, [the owner] pays him back only the value of the improvement. T. 10:9 He who brings wheat to be ground, and [the miller] did not moisten it, but made it into coarse bran or second-rate flour, or flour to a baker, and he made it into crumbly bread, or meat to a butcher, and he burned it, he is liable to pay damages, because he is in the status of a paid bailiff. T. 10:10 He who hands over his beast to a butcher, and it is made into carrion [by the butcher's error], [if he was] a professional, he is exempt. [If he was] an ordinary person, he is liable. [If] he was a paid bailiff, one way or the other, he is liable. He who shows a denar to a money-changer and it turns out to be bad is liable to pay [a good denar], because he is in the status of one who is a paid bailiff.

118

CHAPTER THREE

1. What is subject to dispute? T h e h o u s e h o l d e r gives t h e c r a f t s m a n materials f o r processing, e.g., an object to repair, or a wall to dismantle, o r wool to dye. H e r e again the conflict of claims is d e e m e d resolved: t h e c r a f t s m a n is responsible to t h e h o u s e h o l d e r . T h e only issue is, H o w , in t h e case of p o o r c r a f t s m a n s h i p , is h e c o m p e n s a t e d ? If t h e c r a f t s m a n destroys t h e materials, h e h a s t o p a y t h e h o u s e h o l d e r their value. T . 10:8 specifies t h e reason: h e is in t h e status of a p a i d bailiff. T h e n t h e craftsm a n ' s claim in this conflict—e.g., t o have d o n e his best o r t o have m e t t h e s t a n d a r d s of his p r o f e s s i o n — i s s u b o r d i n a t e d t o t h e legal classification into which t h e t r a n s a c t i o n is set. 2. How does the system resolve the conflict in line with the systemic interest that is in play? At issue is t h e disposition of the bailment assigned by the householder to t h e c r a f t s m a n . T h e conflict is resolved by the imposition u p o n t h e c r a f t s m a n of the d e f i n e d status, paid bailiff, with t h e c o n s e q u e n c e s for t h e case at h a n d . T h e systemic interest seems t o m e t o n a r r o w d o w n to t h e identification of the p e r t i n e n t m e t a p h o r : t o w h a t established classification of t r a n s a c t i o n s does t h e p r e s e n t set c o n f o r m ? Issues of b a l a n c e a n d fairness a r e set aside, e.g., t h e possibility of the c r a f t s m a n ' s showing a b s e n c e of negligence b u t p r e s e n c e of d u e diligence. M. 9:7 [If] he paid him back the principal but swore [falsely] to him about the added fifth [and then confessed], lo, this one pays back an added fifth for the added fifth, [and so is the rule] until the value of the principal [of the added fifth] becomes less than a perutah in value. And so [is the rule] in the case of a bailment. If this one pays back the principal, an added fifth, and a guilt offering. [If one said], "Where is my bailment?" he said to him, "It got lost." "I impose an oath on you!" and he said, "Amen," then witnesses come along and give testimony against him that he had eaten it up—he pays back the principal. [If] he had confessed on his own, he pays back the principal, the added fifth, and a guilt offering. M. 9:8 "Where is my bailment?" He said to him, "It was stolen." "I impose an oath on you!" And he said, "Amen,"— Then witnesses come along and testify against him that he stole it, he pays twofold restitution. [If] he had confessed on his own, he pays the principal, an added fifth, and a guilt offering.

RESTORING THE SOCIAL ORDER

119

M. 9:9 He who steals from his father and takes an oath to him, and then [the father] dies—lo, this one pays back the principal and an added fifth to his [father's other] sons or brothers [and brings the guilt offering]. But if he does not want to do so or does not have what to pay back, he takes out a loan, and the creditors come along and collect what is owing. 1. What is subject to dispute? T h e conflict c o n c e r n s claim of a b a i l m e n t a n d taking of a false o a t h o n t h e p a r t of the bailiff. If o n e h a d confessed to t h e false o a t h , he w o u l d p a y b a c k t h e p r i n c i p a l , a d d e d fifth, a n d guilt offering, as Scripture dictates. But if witnesses establish t h e facts, he pays back the principal only, a n d so t h r o u g h o u t . 2. How does the system resolve the conflict in line with the systemic interest that is in play? For t h e system the issue is n o t t h e conflict b u t t h e circumstances that p e r t a i n w h e n it is resolved t h r o u g h a definitive establishment of the facts of the m a t t e r . M. 10:2 [If] excise collectors took one's ass and gave him another ass, [if) thugs took his garment and gave him another garment, lo, these are his, because the original owners have given up hope of getting them back. He who saves something from a river, from a raid, or from thugs, if the owner has given up hope of getting them back, lo, these belong to him. And so a swarm of bees: If the owner had given up hope of getting it back, lo, this belongs to him. And one may walk through the field of his fellow to get back his swarm of bees. But if he did damage, he pays compensation for the damage which he did. But he may not cut off a branch of his tree [to retrieve the swarm, even] on condition that he pay damages for it. T. 10:23 A thief who took from this one and gave to that one—what he has given he has given, and what he has taken he has taken. A robber who took from this one and gave to that one—what he has given he has given, and what he has taken he has taken [cf. M. B.Q. 10:2AC]. The Jordan [river] which took [a piece of ground] from this one and [by changing its course] gave it to that one—what it has taken it has taken, and what it has given, it has given. T. 10:24 [II] the river swept away wood, stones, and beams, from this one, and gave them to that one, if the owner has given up hope of recovering [what he has lost], lo, these belong to him [on whose property they were deposited] [M. B.Q. 10:2E-F]. If the owner continued

120

CHAPTER THREE

to go looking for them, or if they were in some other place, lo, these remain [the possession] of the owner. T. 10:27 At what point does a man acquire possession of a swarm of bees? Once it enters his own enclosed yard. Lo, this one, whose swarm of bees has gone down into the garden of his fellow, but the owner of the garden will not let him go in, so that he will not break down the greens of his vegetables—lo, this one goes down against the will of the other, and saves his swarm of bees [M. B.Q. 10:3J]. But if he did damage, he pays compensation for the damage which he did. 1. What is subject to dispute? W h o owns p r o p e r t y forcibly seized f r o m one o w n e r a n d h a n d e d over to a n o t h e r ? T h e conflict is b e t w e e n t h e t w o owners, t h e o n e w h o has lost his p r o p e r t y a n d t h e o n e to w h o m it h a s b e e n h a n d e d over. If we have reason to suppose that t h e original o w n e r h a s given u p h o p e of getting his p r o p e r t y back, t h e n t h e n e w o w n e r holds o n to w h a t h e h a s b e e n given, establishing title to t h e object to which title has b e e n relinquished. T h e key-language is at T . 10:24: If the o w n er c o n t i n u e d t o go looking f o r t h e m , o r if they were in some o t h e r place, lo, these r e m a i n t h e possession of the o w n e r . 2. How does the system resolve the conflict in line with the systemic interest that is in play? Invoking t h e consideration of attitude, t h e system resolves t h e c o n flict in such a way that t h e will a n d e x p e c t a t i o n of the parties t o t h e conflict over t h e o w n e r s h i p of the stolen p r o p e r t y a r e realized. So long as t h e original o w n e r m a i n t a i n s his claim, that claim preserves his title to t h e p r o p e r t y ; once h e a b a n d o n s h o p e of r e c o v e r i n g t h e p r o p e r t y , t h e o n e w h o t h e n holds it gains title. M. 10:3 He who recognizes his utensils or his books in someone else's possession, and a report of theft had gone forth in the town—the purchaser takes an oath to him specifying how much he had paid and takes [the price in compensation from the original owner, and gives back the property]— And if not, [the original owner] has not got the power [to get his property back]. For I say, " [The original owner] sold them to someone else, and this one [lawfully] bought them from that other person." 1. What is subject to dispute? T h e conflict c o n c e r n s o w n e r s h i p of objects p u r c h a s e d by o n e p a r t y but stolen f r o m a n o t h e r . T h e p u r c h a s e r h a s the right to establish t h e

RESTORING THE SOCIAL ORDER

121

legitimacy of his claim a n d so b e c o m p e n s a t e d f o r r e t u r n i n g t h e objects t o their original o w n e r , w h o h a s n o t given u p h o p e of getting t h e m back. N o t only so, b u t if the p u r c h a s e r does n o t take such a n o a t h , t h e original o w n e r h a s n o r e m e d y at all. So t h e claim of legitimate acquisition by t h e p u r c h a s e r is p r i m a r y . 2. How does the system resolve the conflict in line with the systemic interest that is in play? H e a v e n intervenes to resolve t h e conflict between t h e p u r c h a s e r a n d the original o w n e r . T h e resort t o t h e o a t h once m o r e i n t r o d u c e s H e a v e n ' s interest in resolving conflict. M. 10:4 This one is coming along with his jar of wine, and that one is coming along with his jug of honey—the jug of honey cracked—and this one poured out his wine and saved the honey in his jar, he has a claim only for his wages. And if he said, "I'll save yours if you pay me back for mine," [the owner of the honey] is liable to pay him back. [If] the river swept away his ass and the ass of his fellow, his being worth a maneh and his fellow's worth two hundred [zuz] [twice as much], [if] he then left his own and saved that of his fellow, he has a claim only for his wages. But if he said, "I'll save yours, if you pay me back for mine," [the owner of the better ass] is liable to pay him back. T. 10:26 [If] this one unloaded his pieces of wood and saved the flax of his fellow, [the latter] pays him his wages, calculated as the value of returning a lost object. If he had said to him, ". . . on condition that he [I] may collect the value of mine [which I shall lose] out of yours," he is liable to pay it to him. T. 10:28 Two who were in the wilderness, and in the hand of one of them was a j a r of water, while in the hand of the other was a j a r of honey, [if] the jar of water cracked, it is a condition imposed upon the court that this one should pour out his honey and save the water of his fellow. And when he reaches a settled area, he pays him back the value of his honey. For water preserves life in the wilderness, and honey does not preserve life in the wilderness. T. B.M. 7:13 A caravan that was passing through the wilderness, and a band of thugs fell on it and seized it for ransom they make a reckoning in accord with the property loss and not in accord with the number of people. But if they sent out a pathfinder before them, they also make a reckoning of the number of people. But in any event they do not vary from the accepted practice governing those who travel in caravans. T. B.M. 11:25 T h e ass drivers have the right to declare, "Whoever loses an ass will be given another ass." But if the loss is caused by negligence, they would not have to meet that stipulation, and if it was not

122

CHAPTER THREE

on account of negligence, he is given another ass. And if he said, "Give me the money and I'll watch out for it as a paid bailiff," they do not listen to him. T. B.M. 7:14 A boat that was coming along in the sea and got hit by a storm, so they had to toss some cargo overboard—they make a reckoning in accord with the property loss and not in accord with the number of people. But in any event they do not vary from the accepted practice of sailors. T. B.M. 11:26 And the sailors have the right to declare, "Whoever loses a ship—we'll provide him with another ship." If it was lost through flagrant neglect, they do not have to provide him with another ship. If it was lost not through flagrant neglect, they do have to provide him with another ship. But if he set sail for a place to which people do not prudently set sail, they do not have to provide him with another ship if he loses his on the perilous voyage. 1. What is subject to dispute? T h e dispute c o n c e r n s t h e claim of o n e p a r t y that he h a s i n c u r r e d a loss so as to save t h e p r o p e r t y of t h e o t h e r . T h e d e f e n d a n t denies responsibility. H e is right. W h e r e n o a g r e e m e n t in a d v a n c e h a s been r e a c h e d , t h e sole claim is t o wages f o r t h e p l a i n t i f f s effort. But if there is a n a g r e e m e n t to c o m p e n s a t e f o r t h e loss, t h e n that agreem e n t prevails. 2. Ilow does the system resolve the conflict in line with the systemic interest that is in play? T h e conflicting claims a r e settled by a p p e a l t o t h e status of a n y preexisting a g r e e m e n t . O n e m a y n o t invoke a n unstipulated a g r e e m e n t that exceeds t h e limits set by established custom. O n e h a s a n established right to b e c o m p e n s a t e d f o r his labor, which t h e beneficiary has implicitly affirmed. A n y f u r t h e r claim, without prior negotiation, is o v e r r e a c h i n g . M. 10:5 He who stole a field from his fellow, and bandits seized it from him—if it is a blow [from which the whole] district [suffered], he may say to him, "Lo, there is yours before you." But if it is because [of the deeds] of the thief [in particular], he is liable to replace it for him with another field. [If] a river swept it away, he may say to him, "Lo, there is yours before you." Y. 10:5 If he left his own to save that of his fellow, but his fellow's property emerged on its own [without the help of the other], the fellow does not owe him a thing. But if he left his own property to save that of his fellow, and his own property

RESTORING THE SOCIAL ORDER

123

emerged on its own, what is the law governing his claim, "I had given up hope of saving my property," [and since it therefore was lost to me,you owe me compensation for it]? [The stipulated payment must be given. 1. What is subject to dispute? If the land-grabber can claim, " H a d I not taken your land, you would have lost it in t h e general conflagration (in which I have in fact lost it too)," t h e d e f e n d a n t n e e d n o t p a y c o m p e n s a t i o n . But if the landg r a b b e r bears p a r t i c u l a r responsibility for t h e m a t t e r , a n d t h e landg r a b b e r himself t h e n lost t h e land, h e must c o m p e n s a t e t h e original o w n e r b y replacing t h e lost l a n d with a n o t h e r field. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e issue is, h a s t h e thief himself b e c o m e a victim, in which case he does not have to c o m p e n s a t e t h e original owner? In t h e case of a general catastrophe, he has, b u t if not, he h a s not, a n d in t h e latter case, h e h a s to m a k e u p t h e loss of the original o w n e r . T h e landg r a b b e r is n o t responsible f o r w h a t affects everyone, b u t he is responsible f o r w h a t takes place b y reason of his p e r s o n a l intervention. M. 10:7 He who says to his fellow, "I have stolen from you. . .," "You have lent something to me. . ."You have deposited something with me. . .," ". . ·and I don't know whether or not I returned [the object] to you"'—is liable to pay him restitution. But if he said to him, "I don't know whether I stole something from you," " . . . whether you lent me something," ". . . whether you deposited something with me," he is exempt from paying restitution. M. 10:8 He who steals a lamb from a flock and [unbeknownst to the owner] returned it, and it died or was stolen again, is liable to make it up. [If] the owner did not know either that it had been stolen or that it had been returned, and he counted up the flock and it was complete, then [the thief] is exempt. T. 10:33 He who steals a lamb from the flock and returned it to the flock, and afterward the entire flock was stolen, if he had informed the owner, or they had counted [the sheep], he is exempt. And if not, he is liable [M. B . Q 1 0 : 8.‫]״‬.He who steals a jug from a cellar and returned it to the cellar, and afterward all the jugs in the cellar were stolen, if he had informed the owner [that he had returned the jug], he is exempt. And if not, he is liable.

124

T.

T.

T.

T.

T.

CHAPTER THREE

10:35 He who steals a sela from a purse and put it back into the purse, and afterward the entire purse was stolen, if he had informed the owner, he is exempt. And if not, he is liable. 10:36 He who steals the purse of his fellow and returned it to him while he was asleep, and he woke up, and lo, his purse is in his hand, if [the victim] recognizes it as his, [the other] is exempt. And if not, he is liable. He who steals a sela without the knowledge of the owner that it has been stolen, and then [to return it] included it into the reckoning [of what he owed the owner], has fulfilled his obligation. 10:39 Thieves who sneaked in by stealth and then repented—all of them are liable to restore what they have stolen. [If] only one of them repented, he is liable to restore only his share [of the theft] alone. [If] he had been taking out what was in the house and placing it before the others, then he is liable to make restitution of all that had been stolen. 11:1 They do not accept bailments from women, slaves, or minors. [If] one has accepted a bailment from a woman, he must return it to the woman. [If the woman] died, he must return it to her husband. [If] he accepted a bailment from a slave, he must return it to the slave. [If the slave] died, he must return it to his master. [If] he accepted a bailment from a minor, he sets up a trust for him. [If] he died, he returns it to his father. And in all of these cases, [if] they said at the moment of death, "Let my bailment be given to so-and-so, to whom they belong," let that which has been spelled out be done in accord with the stipulation thereby given. 11:2 A son who does business with what belongs to his father, and so too a slave who does business with what belongs to his master, lo, [the goods] are deemed to belong to the father, [or] lo, they are deemed to belong to the master. If they said at the moment of death [however], "Let such-and-such an object be given to So-and-so, to whom they belong, ‫ >י‬let that which has been spelled out be done in accord with the stipulation thereby given.

1. What is subject to dispute? If the p e r s o n concedes that he has h a d in h a n d p r o p e r t y b e l o n g i n g to the other p a r t y but does not know w h e t h e r or not he has r e t u r n e d the p r o p e r t y , he is liable to p a y restitution for the o t h e r ' s claim to that p r o p e r t y . But if he does not c o n c e d e the claim a n d says he does not k n o w w h e t h e r the claim is a valid one, he does not have to p a y restitution. So too, if s o m e o n e stole p r o p e r t y a n d r e t u r n e d it a n d the p r o p e r t y was lost or stolen again, the thief m u s t m a k e u p the loss. But if the o w n e r k n e w n o t h i n g of the t r a n s a c t i o n , t h e n the o w n e r has not laid claim, a n d the thief, M . 10:8, is e x e m p t . T h e T o s e f t a ' s cases u n d e r s c o r e the issue of responsibility a n d intentionality. If the thief has i n f o r m e d the o w n e r of the transaction, then he has restored

RESTORING THE SOCIAL ORDER

125

the p r o p e r t y a n d the o w n e r is responsible for his p r o p e r t y . If not, t h e n the thief continues to b e a r responsibility. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e m a i n consideration is the awareness of the victim of the theft that he has lost p r o p e r t y . If the o w n e r is i n f o r m e d , then the thief w h o restored the p r o p e r t y is e x e m p t f r o m h a v i n g to p a y restitution. T h e o w n e r has responsibility for his p r o p e r t y . But if the victim of the theft is u n i n f o r m e d as to the transaction, then the thief bears responsibility for the p r o p e r t y t h a t he has t a k e n over, w h a t e v e r b e c o m e s of it. B. The Halakhic Resolution of Conflict W h a t , precisely, are the conflicts that the H a l a k h a h of B a b a Q a m m a articulates and resolves, a n d h o w are they resolved? T h e following s u m m a r i z e s the conflicts that a r e p o r t r a y e d (left h a n d margin) a n d the principles that are e m b o d i e d in the disposition of those conflicts (right h a n d margin): M. 3:1-3: responsibility for damages done in the public domain—is it the direct cause or the efficient cause? The efficient cause bears responsibility M. 3:4: responsibility for damages that one has caused the adjudication of conflicting claims If one has given warning to the others, he has carried out his responsibility M. 3:5-7: responsibility for damages that one has caused—the circumstance in which the damages have taken place If one has every right to be where he was when the damages took place, he is not liable to pay compensation. But one is still responsible for secondary effects of his licit action. M. 3:11: when versions of what has happened conflict, then the claimant has to prove his case The status quo is preserved, absent compelling evidence to revise it. M. 5:2-3: the householder is not responsible for what happens to bailments left on his property without his permission

126

CHAPTER THREE

If one has not agreed to accept responsibility for what is in his power, he is not culpable for what happens to what is left there. M. 5:6, 6:1-3: the partner who saw the uncovered pit last bears full responsibility for damages done by the pit The efficient cause bears full responsibility T. 7:24: The requirement to compensate in accord with the provision of fourfold or fivefold restitution extends to the proceeds of the stolen ox, however these have been disposed of The secondary utilization of the proceeds is subject to the primary requirement T. 8:2: Once the fact is established that an ox has been stolen, the defendant is subject to the Torah's restitution rules, involving supererogatory penalties; but if the defendant confessed before the facts are established, he is not. One is not subjected by his own testimony to a supererogatory penalty. M. 8:1, 4, 6, 7: The requirement to make restitution for bodily injuries involves only monetary compensation. Inflicting physical injury is always punishable, even if the victim solicits the injury; but inflicting property damage at the instance of the victim is not penalized. The issue of assessing damages in a just manner involves an exact penalty, no more and no less than a fair assessment dictates. M. 9:3-4: The craftsman who ruins materials given by the householder must compensate the householder for their worth. The craftsman is in the status of a paid bailiff; he cannot claim that he has done his best and is exempt from compensating the householder. M. 9:7-9: One who confesses to a false oath of bailment pays the Scripturally-indicated penalties. If witnesses establish the fact, he pays only the principal. The circumstances that establish the guilt also dictate the penalty. M. 10:2,3: If property is forcibly taken from one party and handed over to another, the original owner retains title until he despairs of recovering his property. At M. 10:3, the claim of the purchaser to legitimate acquisition is primary as well; he gets to take an oath to recover what he paid for the property, title to which is now in doubt.

RESTORING THE SOCIAL ORDER

127

The will and intention of the original owner dictate the status of his title to the property. M. 10:4: Without negotiation, one can claim only wages for incurring loss in saving another person's property; if there is a prior agreement, the beneficiary makes up the loss. There is no unstipulated presumption of recompense for loss incurred in saving another person's property. M. 10:5: If a land-grabber loses the land he has stolen and bears responsibility for his loss of what he has stolen, he must make up the loss; if not, he does not. One is responsible for what he personally has brought about. M. 10:7-8: If someone concedes he has stolen property but is uncertain of whether he has made restitution, he is liable to do so; but if he does not know that he has stolen, he is exempt. If the thief informs the owner of what he has done and has restored the property, the owner is responsiblefor his property; but if not, the thief bears responsibility. I identify these articulated classifications of conflicts b e t w e e n householders, relying on the classification established at the right h a n d margin: A. Causation Responsibility and causation (including bailments): M. 3:1-3; M. 3:4, M. 3:5-7; M. 5:2-3; M. 5:6, 6:11-3; M. 9:3-4; M. 10:5, M. 10:7-8 B. Will and intentionality Will and intention of parties to property disputes: M. 10:2,3; M. 10:4 C. Assessing damages Assessing damages and making restitution: M. 8:1-4, 6-7; M. 9:7-9 D. Establishing the facts of the matter Conflicting versions of what has happened: M. 3:11 Clearly, conflicts involving issues of responsibility a n d causation, will a n d intentionality, p r e d o m i n a t e . T h e s e m o r e o v e r f o r m a congeries of c l o s e l y - c o n n e c t e d analyses. T h e u p s h o t is, disputes involving considerations of causation, translated into rulings on responsibility, p r e d o m i n a t e in the c o n s i d e r a t i o n of c o n t e n t i o u s relationships

128

CHAPTER THREE

b e t w e e n h o u s e h o l d e r s o r h o u s e h o l d e r s a n d o t h e r categories of society, e.g., l a n d - g r a b b e r s , c r a f t s m e n , a n d t h e like. Stated differently: t h e conflict that t h e H a l a k h a h d e e m s systemically consequential involves t h e resolution of claims as to w h o b e a r s responsibility f o r loss o r d a m a g e . T h e issues in general terms contain n o surprises; what govern a r e considerations of responsibility o r causation o r intentionality. T h e s e considerations p r o v e p a r t i c u l a r t o t h e kinds of conflict b e t w e e n householders that p r e d o m i n a t e in B a b a Q a m m a . O n c e t h e principle is a d o p t e d , In the case of anything of which I am liable to take care, I am deemed to render possible whatever damage it may do, t h e focus of c o n s e q u e n t i a l conflict u p o n issues of responsibility, e n c o m p a s s i n g intentionality, e x t e n d i n g o u t w a r d to considerations of causality, is predetermined.

IV. Baba Mesia 1-5 B a b a Q a m m a concludes with analysis of the H a l a k h a h of restoring w h a t has b e e n stolen; Baba Mesia starts with restoring w h a t has been lost. T h e n it shifts t o a n e w topic, t h e H a l a k h a h g o v e r n i n g transactions of a n e q u i t a b l e c h a r a c t e r b e t w e e n b u y e r a n d seller, t h e n , e m p l o y e r a n d employee. I n t h e f o r m e r case t h e H a l a k h a h focuses o n t h e c o u n t e r p a r t to theft, which is o v e r c h a r g i n g a n d usury. I n the latter, we p r o c e e d to a n a c c o u n t of w h a t e a c h p a r t y owes t h e other. W i t h t h e m a t t e r of o v e r r e a c h i n g , w e c o m e t o t h e e n d of the exposition of h o w t h e social o r d e r is restored t o t h e condition of stasis that signifies perfection. T h e corpus of compositions pertinent to o u r inquiry is m o d e s t , b u t right f r o m t h e outset, t h e points of c o n t e n tion a r e vividly p o r t r a y e d . A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M. 1:1 Two lay hold of a cloak—this one says, "I found it!"— and that one says, "I found it!"—this one says, "It's all mine!"—and that one says, "It's all mine!"—this one takes an oath that he possesses no less a share of it than half, and that one takes an oath that he possesses no less a share of it than half, and they divide it up. This one says, "It's all mine!"—and that one says, "Half of it is mine!" the one who says, "It's all mine!" takes an oath that he possesses no less

RESTORING THE SOCIAL ORDER

129

of a share of it than three parts, and the one who says, "Half of it is mine!," takes an oath that he possesses no less a share of it than a fourth part. This one then takes three shares, and that one takes the fourth. T.

1:1 Two lay hold of a cloak—This one takes the part of the cloak which is held [by him], and that one takes the part of the cloak which is held [by him]. Under what circumstances? When both of them are holding on to it. But if it was in the hand of one of them, he who wishes to remove property from the hand of his fellow bears the burden of proof. T. 1:2 This one says, "It's all mine!" And that one says, "A third of it is mine! The one who says, "It's all mine!" takes an oath that he has no less of a share of it than five parts And the one who says, "A third of it is mine!" takes an oath that he has no less of a share of it than a sixth [part]. T h e governing principle of the matter [is this] : O n e is subjected to an oath only up to one-half of his claimed share alone. Y . 1:2 1.1 A woman who was riding along on a beast, with two men leading it, [and she comes to court and claims,] "These are my slaves, and the ass and its burden belong to me, " while this one says, "This is my wife, and the other man is my slave, and the ass and its burden are mine, " and the other party claims, "This is my wife, and the other man is my slave, and the ass and its burden are mine"—she requires a writ of divorce from each of the men, and she must also declare both of them free men. And both of them issue writs of emancipation to one another. And as to the ass and its burden, all three of them lay an equal claim [and divide it up].] M. 1:2 Two were riding on a beast, or one was riding and one was leading it—this one says, "It's all mine!"—and that one says, "It's all mine!"—this one takes an oath that he possesses no less a share of it than half, and that one takes an oath that he possesses no less a share of it than half. And they divide it. But when they concede [that they found it together] or have witnesses to prove it, they divide [the beast's value] without taking an oath. 1. What is subject to dispute? F a c e d with conflicting claims to title t o a n object, t h e H a l a k h a h i m m e d i a t e l y raises t h e issue of the o a t h , its principal m e a n s f o r resolving conflicts as to t h e facts of a case. But w h o takes t h e oath? E a c h legitimate c l a i m a n t does so, a n d t h e only issue is, c o n c e r n i n g w h a t p o r t i o n of the disputed object does t h e oath p e r t a i n ? 2. How does the system resolve the conflict in line with the systemic interest that is in play? H e r e t h e conflict is articulated, b u t t h e resolution is m a d e to d e p e n d u p o n t h e m e c h a n i s m of the oath. T h a t is to say, t h e H a l a k h a h does

130

CHAPTER THREE

not settle t h e conflict, it administers it. Since t h e oath is assigned in the p r e s u m p t i o n that t h e o a t h - t a k e r tells t h e t r u t h a n d will n o t take G o d ' s n a m e in vain, the systemic interest lies in defining that to which a valid claim c a n be e n t e r e d , m e a n i n g , w h a t p o r t i o n of the disputed object is subject to t h e p e r s o n ' s o a t h ? T h a t represents a detail, a n d the m a i n point is not to be missed: p r o c e d u r e predominates when facts d o n o t clearly establish themselves. M. 1:3 [If] one was riding on a beast and saw a lost object, and said to his fellow, "Give it to me," [but the other] took it and said, "I take possession of it"‫[ ־‬the latter] has acquired possession of it. If after he gave it over [to the one riding on the beast], he said, "I acquired possession of it first," he has said nothing whatsoever. M. 1:4 [If] he saw a lost object and fell on it, and someone else came along and grabbed it, this one who grabbed it has acquired possession of it. [If] he saw [people] running after a lost object—after (1) a deer with a broken leg, (2) pigeons which could not fly, and he said, "My field has effected possession for me,"—it has effected possession for him. [If] (1) the deer was running along normally, or (2) [if] the pigeons were flying, and he said, "My field has effected possession for me," he has said nothing whatsoever. Y. 1:4=T. 1:4 He who says, "Let my house effect possession for me of any lost object which falls into it today" has said nothing whatsoever. But if any sort of lost object should turn up for him, his words are confirmed. 1. What is subject to dispute? T h e issue n o w is h o w title is a c q u i r e d t o a lost object. T h e answer is, only by taking physical possession of the object; a m e r e déclaration h a s n o b e a r i n g , so m u c h f o r M . B.M. 1:3. M . 1:4 complicates the m a t t e r . O n t h e o n e side, if the m o v i n g object h a s c o m e to rest in his d o m a i n , t h e o w n e r of the d o m a i n m a y effect rights of possession by a d e c l a r a t i o n that his p r o p e r t y h a s a c q u i r e d possession f o r h i m . If t h e object did n o t c o m e t o rest in his d o m a i n b u t merely passed over it, that h a s n o effect. 2. How does the system resolve the conflict in line with the systemic interest that is in play? M e r e w o r d s settle n o t h i n g , only a n act effects valid claim to possession of ownerless objects. T h e dispute over t h e object is settled b y assigning o w n e r s h i p t o t h e o n e w h o actually takes hold of the o b ject a n d declares his possession thereof. T h i s is a variation o n t h e n o r m of a f f i r m i n g t h e status q u o .

RESTORING THE SOCIAL ORDER

131

M. 2:11 [If one has to choose between seeking] what he has lost and what his father has lost, his own takes precedence. [If he has to choose between seeking] what he has lost and what his master has lost, his own takes precedence. [If he has to choose between seeking] what his father has lost and what his master has lost, that of his master takes precedence. For his father brought him into this world. But his master, who has taught him wisdom, will bring him into the life of the world to come. But if his father is a sage, that of his father takes precedence. [If] his father and his master were carrying heavy burdens, he removes that of his master, and afterward removes that of his father. [If] his father and his master were taken captive, he ransoms his master, and afterward he ransoms his father. But if his father is a sage, he ransoms his father, and afterward he ransoms his master. T. 2:31 [If one has to choose between seeking] what his father has lost and what his mother has lost, seeking what his father has lost takes precedence over seeking what his mother has lost. Under what circumstances? When she is living with [his father]. But when she is not living [with his father], both of them are equivalent. T. 2:32 [If one has to choose between seeking] what the husband has lost and what the wife has lost, seeking what the husband has lost takes precedence over seeking what the wife has lost. T. 2:33 Gentiles and shepherds of small cattle and those who raise them do not make a difference one way or the other [in figuring out whose lost object to seek first], Minim, apostates, and renegades are regarded as subordinate and in no way can be regarded as taking priority. 1. What is subject to dispute? T h e dispute c o n c e r n s rights of priority, e.g., in seeking a lost object. First of all, a p e r s o n takes priority for himself vis-à-vis all others. As b e t w e e n his f a t h e r a n d his m a s t e r , b y c o n t r a s t , his m a s t e r takes priority, unless b o t h t h e m a s t e r a n d t h e father a r e of e q u a l standing. T h e n his f a t h e r ' s claim comes first. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict concerns the claim of a relationship established by nature (the father's) as against that established by H e a v e n (the master's), a n d the resolution is in favor of H e a v e n . T h e s u p e r n a t u r a l family takes priority over t h e n a t u r a l family. M. 3:2 He who rents a cow from his fellow, and then lent it to someone else, and it died of natural causes—let the one who rented it take an oath that it died of natural causes, and

132

CHAPTER THREE

the one who borrowed it then pays compensation to the one who rented it out. T. 3:1 O n e who borrows has no right to lend out, and one who rents has no right to rent out, and one who borrows has no right to rent out, and one who rents has no right to lend out. And the one with whom these things are left as a bailment has no right to leave them as a bailment with someone else, unless the householder [who owns the objects] has given him permission to do so. 1. What is subject to dispute? T h e dispute c o n c e r n s w h o pays a n d receives c o m p e n s a t i o n f o r t h e cow: t h e o n e w h o r e n t e d it o r t h e o n e w h o b o r r o w e d it f r o m h i m , o n t h e o n e side, a n d t h e o n e w h o o w n e d t h e c o w a n d r e n t e d it o u t as against t h e o n e w h o r e n t e d it f r o m h i m a n d t h e n lent it, o n t h e o t h e r . T . 3:1 beautifully exposes t h e principles in play. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e o a t h once m o r e resolves t h e conflict, b y settling t h e facts of the m a t t e r a n d p e r m i t t i n g t h e operative principles to e n t e r in. T h e o n e w h o r e n t e d t h e cow takes t h e o a t h as to t h e facts of the m a t t e r : t h e cow h a s died of n a t u r a l causes. T h e o n e w h o b o r r o w e d it t h e n h a s to p a y c o m p e n s a t i o n . T h e original o w n e r receives the compensation. T h e o n e w h o r e n t e d t h e c o w a n d t h e n lent it o u t h a s fulfilled his d u t y in establishing t h e facts; h e did n o t r e n t t h e c o w o u t a n d so has d o n e n o t h i n g w r o n g . M. 3:3 [If] one said to two people, "I stole a tnaneh [a hundred zuz] from one of you and I do not know from which one of you it was." "The father of one of you deposited a tnaneh with me, and I do not know the father of which one of you it was," [he] pays off a m an eh to this one and a mane h to that one, for he has admitted it on his own. M. 3:4 Two who deposited something with one person, this one leaving a maneh [a hundred zuz], and that one leaving two one says, "Mine is the deposit of two hundred [zuz\—this hundred [zuz ]," and that one says, "Mine is the deposit of two hundred [zuz ]"—he pays off a maneh to this one, and a maneh to that one, and the rest is left until Elijah comes. M. 3:5 And so is the rule for two utensils, one worth a maneh, and one worth a thousand zuz—this one says, "The better one is mine," and that one says, "The better one is mine"— he gives the smaller one to one of them. And from the [funds received from the sale of] the larger one, he gives the cost

RESTORING THE SOCIAL ORDER

133

of a smaller one to the other party. And the rest of the money [received for the sale of the larger one] is left until Elijah comes. 1. What is subject to dispute? T h e dispute is, t o w h o m is t h e m o n e y o r b a i l m e n t owing? Since t h e m a n h a s a d m i t t e d he owes, he pays all possible claims. T h e r e is n o f r a u d u l e n t claim, e.g., of o n e of the alleged victims, t o be avoided. But if two o r m o r e parties lay claim to t h e same funds, then b o t h are p a i d t h e lesser claim, a n d t h e disputed s u m is left over. 2. How does the system resolve the conflict in line with the systemic interest that is in play? W h e r e t h e debt certainly is owing, t h e o n e w h o confesses t o it pays all parties to t h e debt. W h e r e , M . 3:4-5, there a r e conflicting claims, the payoff is to t h e limit of the lower of the two claims. T h e upshot is, we resolve t h e conflict by fulfilling t h e m i n i m a l claim of all p a r ties. M. 3:9 He who deposits a jar with his fellow, and the owner did not specify a place for it, and [someone] moved it and it was broken—if in the midst of his handling it, it was broken, [and if he moved it to make use of it] for his own needs, he is liable. [If he moved it] for its needs, he is exempt. If after he had put it down, it was broken, whether he had moved it for his own needs or for its needs, he is exempt. [If] the owner specified a place for it, and [someone] moved it and it was broken—whether it was in the midst of his handling it or whether it was after he had put it down, [if he had moved it] for his own needs, he is liable. M. 3:10 He who deposits coins with his fellow—[if the latter] (1) wrapped them up and threw them over his shoulder, (2) gave them over to his minor son or daughter, or (3) locked them up in an inadequate way, he is liable [to make them up if they are lost], because he did not take care of them the way people usually take care [of things]. But if he did take care of them the way people usually take care of things, he is exempt. Y. 3:7 1.2 Under what circumstances have they ruled: An unpaid bailiff takes an oath [that he has not violated his trust] and quits? When he has carried out his guardianship in an adequate way, as people generally take care of bailments. If he locked up the goods in an adequate way, tied up a beast in an adequate way, put coins in his pouch, bound them in his kerchief, and put them before him, or if he put them in a chest, box, or cupboard—if the money was stolen or lost, he is liable

134

CHAPTER THREE

to take an oath and is exempt from having to make restitution. And if there are witnesses available that he has done things property, even from an oath is he exempt. If he locked up the goods in an inadequate way, tied up a beast in an inadequate way, tossed the coins over his shoulder, or put them up on the roof of his house, and the bailments were stolen, he is liable to make restitution. If he put them in a place in which he was accustomed to put his own possessions, if it was suitable for taking care of a bailment, he is exempt. And if not, he is liable. M. 3:11 He who deposits coins with a money changer—if they are wrapped up, [the money changer] should not make use of them. Therefore if they got lost, he is not liable to make them up [as an unpaid bailiff (M. 2:7)]. [If they were] loose, he may make use of them. Therefore if they got lost, he is liable to make them up. [He who deposits coins] with a householder, whether they are wrapped up or whether they are loose—[the householder] should not make use of them. Therefore if they got lost, he is not liable to make them up. M. 3:12 He who makes improper use of a bailment—restores the bailment as it was at the moment at which he took it out [to use it for his own purposes]. He who expresses [in the presence of witnesses] the intention of making use of a bailment is liable [for damages incurred] only when he will actually make use of the bailment, since it is said, "If he has not put his hand to his neighbor's property" (Ex. 22:7). [If] he tipped over the jug and took a quarter-Zog of liquid from it, and it broke—he pays only the value of the quarter-log he has actually removed. But if he raised it up [so making acquisition of it], and took a quarter-fog of liquid from it and it broke, he pays the value of the whole jug. 1. What is subject to dispute? At issue is c o m p e n s a t i o n f o r t h e loss of the b a i l m e n t . T h e responsibility of the bailiff for t h e b a i l m e n t is w h a t is at issue. T h e b a i l m e n t is m o v e d a n d b r o k e n . If the m o v e d t h e b a i l m e n t f o r his o w n convenience, h e is liable, b u t if for t h e better p r o t e c t i o n of the b a i l m e n t , he is n o t liable; he has kept t h e trust. So too, if he has met the n o r m a l s t a n d a r d s of c a r e of a b a i l m e n t , h e is n o t liable f o r d a m a g e s . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict b e t w e e n bailer a n d bailiff is resolved by r e f e r e n c e to the b a i l i f f s m e e t i n g t h e n o r m a l s t a n d a r d . If h e h a s d o n e things in the usual way, he h a s carried o u t his obligation a n d is n o t liable f o r d a m a g e s . If n o t , h e is. S o too, if h e h a s p l a c e d a priority o n t h e p r o t e c t i o n of the b a i l m e n t , h e is e x e m p t ; if o n his o w n needs, h e is

RESTORING THE SOCIAL ORDER

135

liable. T h e systemic interest then is in securing the good faith of all parties: meeting the n o r m a l standards, keeping the faith with the one w h o has e n t r u s t e d his goods to the bailiff. B. The Halakhic Resolution of Conflict O n c e m o r e I s u m m a r i z e the conflicts that are p o r t r a y e d (left h a n d margin) a n d the principles that are e m b o d i e d in the disposition of those conflicts (right h a n d margin): M. 1:1 Conflicting claims to property are settled by imposing an oath, each party's oath covering the portion of the property that he alleges is his. Where parties have an equal claim, each is given the right to take the oath and establish his claim M. 1:3-4 Rights of ownership are established through physical possession, not mere verbal declaration An act, not only words, effects possession M. 2:11 A person is responsible first of all to himself. As between father and master in Torah, the latter takes priority. Family relationships give way to those established in Torah. M . 3:2 In the case of renting a cow and then lending it to a third party, if the cow dies of natural causes, the one who rented it takes the oath, and the borrower pays the owner. The oath settles the facts of the matter. M. 3:3-5 One who admits stealing but is unsure from whom pays all parties. Where there are several claimants, the lowest claim is satisfied for all parties. The minimum amount that is claimed by one party is paid to both; the law does not secure a claim that is fraudulent. M. 3:9 A bailment that is lost by reason of the bailiffs fulfilling the terms of his bailment does not entail compensation; if the bailiff has acted in his own interest and the bailment is damaged, the bailiff pays compensation. All parties meet the standard of good faith. T h e categories are roughly the same as before: responsibility a n d causation, here at M . 3:9; conflicting versions of what has h a p p e n e d , M . 1:1, 3:2; assessing d a m a g e s a n d m a k i n g restitution, M . 1:3-4, M ;

136

CHAPTER THREE

3:3-5. A p a r t f r o m the i m p o r t a n c e a t t a c h e d to the o a t h in settling conflicts as to facts, M . 1:1, M . 3:2, I see n o p a t t e r n in the cases of Halakhic definition a n d resolution of conflict of the first half of Baba Mesia. A. Causation Responsibility and causation, M. 3:9 B. Will and intentionality No entry C. Assessing damages Assessing damages and making restitution, M. 1:3-4, M; 3:3-5 D. Establishing the facts of the matter Conflicting versions of what has happened, M. 1:1, 3:2 T h e u p s h o t is simply stated: B a b a Q a m m a a n d B a b a M e s i a 1-5 identify as c o n s e q u e n t i a l disputes a limited repertoire i n d e e d . T h e H a l a k h a h devoted to restoring Israel's social o r d e r , seen as a system as p o r t r a y e d in unit ii, a n d the collection of conflict-rulings in t h a t same c o r p u s p r o v e asymmetrical to o n e a n o t h e r . T o review briefly: the goal of the system of civil law is the restoration of the just o r d e r that c h a r a c t e r i z e d Israel u p o n entry into the L a n d . T h e law aims at the restoration a n d preservation of the established wholeness, b a l a n c e , p r o p o r t i o n , a n d stability of the social e c o n o m y realized at that m o m e n t . T h e civil law in b o t h aspects pays closest attention to h o w the p r o p e r t y a n d person of the injured p a r t y so far as possible are restored to their p r i o r condition, t h a t is, the state of normality disrupted by the d a m a g e d o n e to property or injury d o n e to a p e r s o n . So attention to torts focuses u p o n penalties p a i d by the m a l e f a c t o r to the victim, r a t h e r t h a n u p o n penalties inflicted by the c o u r t on the m a l e f a c t o r for w h a t he has d o n e . So m u c h for the c h a r a c t e r i z a t i o n of the H a l a k h i c system viewed whole for B a b a Q a m m a a n d B a b a Mesia 1-5. But t h e actual conflicts t h a t the H a l a k h a h p o r t r a y s or vividly a d u m b r a t e s d o not c o r r e s p o n d in their focus to the d o m i n a n t concerns of Baba Q a m m a a n d Baba Mesia 1-5. If the H a l a k h a h in those c a t e g o r y - f o r m a t i o n s aims at restoring a n d preserving wholeness, the H a l a k h a h for resolving conflict has its o w n interest. If I h a d to state, in b r o a d a n d general terms, its principal p o i n t of c o n c e r n , it is with [1] issues of causation, e n c o m p a s s i n g attitude a n d responsibility, on the one side, a n d [2] p r o c e d u r e in resolving disputes, o n the o t h e r .

RESTORING THE SOCIAL ORDER

137

Causation·. B a b a Q a m m a a n d the first half of B a b a Mesia identify as c o n s e q u e n t i a l conflict those cases that c o n c e r n issues of r e s p o n sibility, c a u s a t i o n , will a n d i n t e n t i o n . T h e f i f t e e n c h a p t e r s yield conflicts that are resolved by assessing, for torts a n d bailments alike, the limits of the d e f e n d a n t ' s responsibility, on the one side, a n d the extent to which one w h o has caused loss must m a k e restitution, o n the o t h e r . O n e is responsible for d a m a g e s he has caused in public d o m a i n , which he c a n n o t freely convert to private use. But w h e n b o t h parties have the same right of use of public d o m a i n , the inj u r e d p a r t y has n o claim for restitution. But w h e n it comes to private d o m a i n , the householder is not responsible for damages incurred by an intruder. T h e H a l a k h a h works out the distinction between levels of causation, e.g., direct versus efficient. T h e m a t t e r of responsibility c o m e s to the surface in disputes c o n c e r n i n g bailments, e.g., by the h o u s e h o l d e r of r a w materials to be processed by a c r a f t s m a n . T h e m a t t e r of intentionality enters in once m o r e w h e n a n o w n e r of a p r o p e r t y loses title t h r o u g h despairing of recovery of the p r o p e r ty. But the law does not recognize implicit a g r e e m e n t s . O n e c a n n o t take for g r a n t e d that if he suffers loss to save a n o t h e r ' s p r o p e r t y , he will be c o m p e n s a t e d for the loss; t h a t d e p e n d s o n prior stipulation. Procedure: the p r i m a r y , t h o u g h not sole, occasion for the p r e s e n t a tion of conflict a n d the resolution thereof involves oath-taking as the m e a n s for establishing facts. W h e n it comes to conflicts over the facts of a case, the c l a i m a n t bears the b u r d e n of proof. W h e r e b o t h p a r ties have a valid basis for their respective claims, one or a n o t h e r is permitted to establish the facticity of his claim through taking an oath. Before we m a y p r o p e r l y take u p a b r o a d e r r e a d i n g of the H a l a khic view of conflicts b e t w e e n Israelite householders, we address the o t h e r half of the Babas. O n l y t h e n will t h e c o m p l e t e a c c o u n t of restoring a n d m a i n t a i n i n g the social o r d e r b e t w e e n a n d a m o n g Israelite households e m e r g e . For the systemic interest a n d h o w it is realized is only partially p o r t r a y e d in the c o m p o s i t i o n s we h a v e e x a m i n e d to this point. C. How does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof in Baba Qamma and Baba Mesia 1-5 H o w does the interest of c o r p o r a t e Israel guide us t o w a r d a n u n d e r s t a n d i n g of the types of c o n t e n t i o n t h a t are articulated in the p e r t i n e n t H a l a k h i c exposition of the M i s h n a h - T o s e f t a - Y e r u s h a l m i -

138

CHAPTER THREE

Bavli? J u s t as in C h a p t e r T w o , so here, we gain perspective when we consider the relationship between the pertinent H a l a k h a h of the Written T o r a h with that of Baba Q a m m a a n d the first half of Baba Mesia. A tentative hypothesis c a m e to the surface when, at the end of C h a p t e r T w o , we noted a correlation between Scripture's interests a n d a particular e n g a g e m e n t with issues of conflict. Specifically, we earlier noted, when disputes are articulated, they ordinarily pertain to the realization of the laws of the written T o r a h that apply. T h a t hypothesis in that context showed that the Halakhic representation of contention is not arbitrary but conforms to a pattern. Heaven's intense interest, as expressed in the Written T o r a h , accounted for the particular kinds of conflict a n d resolution thereof that are portrayed in the third division of the H a l a k h a h . But that is not how matters emerge in the setting of the Israelite householders a n d their relationships with one a n o t h e r a n d with the rest of the Israelites. H e r e , not H e a v e n but corporate Israel is principal, as we noted earlier, and its interests, not those of Heaven, come to expression in the conflicts that are portrayed a n d resolved. W h a t interests corporate Israel is not personal status as it affects familyrelationships in Israel, but considerations of the public realization of intentionality, e.g., in taking responsibility. Personal status is governed by considerations of sanctification and particularity, hence those i m p o r t a n t to H e a v e n ; the realization of intentionality in relationships between Israelite households shapes the Israelite social order, a n d hence, as I said, preoccupies corporate Israel. W e already realize that where conflicts are not introduced across the b o a r d , at r a n d o m , but focus on a particular type of Halakhic category-subdivision. It is the conflict of will, intentionality, yielding assessments of responsibility, that predominates. A n d corporate Israel has a heavy stake in the formation within Israel of right attitude a n d appropriate intentionality. It is, after all, Israel's task to constitute a society based on the one a n d motivated by the other. T h a t aspiration comes to c o n c r e t e expression, in this setting, in accounts of conflicts between householders; these ordinarily, though not always, come about by reason of incorrect intentionality a n d improper attitude of responsibility. Where the Halakhah engages with cases or principles in which attitude serves as a principal variable, e.g., the attitude of the bailiff, there issues of conflict are raised; otherwise, contention a n d the resolution thereof do not afford media for the exposition of the H a l a k h a h .

RESTORING THE SOCIAL ORDER

139

W h a t is the upshot of that observation? H e r e we find out, the identification of c o n s e q u e n t i a l conflicts also is a s y m m e t r i c a l with S c r i p t u r e ' s as m u c h as t h e M i s h n a h ' s (therefore the H a l a k h a h ' s ) p r o g r a m . T h a t negative result contradicts the hypothesis yielded by C h a p t e r T w o . But that is so, only if the hypothesis is treated in formal terms, as a n explanation for w h a t we d o not find as m u c h as for what we do. I have already hinted at a different view of the matter. C h a p t e r T w o has told us H e a v e n ' s e n g a g e m e n t , realized in the intensity of a c c o u n t s of c o n t e n t i o n ; C h a p t e r T h r e e , for its p a r t , portrays c o r p o rate Israel's e n g a g e m e n t . Conflicts here serve a p u r p o s e of intensifying the H a l a k h i c a c c o u n t of m a t t e r s , just as they did in the m a t t e r of conflicts b e t w e e n families, b u t , as I said, C h a p t e r T w o pertains to H e a v e n ' s , a n d C h a p t e r T h r e e to c o r p o r a t e Israel's, stake in Israelite c o n t e n t i o n . T h a t e x p l a n a t i o n takes o n weight, w h e n we realize that the p r o g r a m of the W r i t t e n T o r a h is j u s t as p r o m i n e n t in the f o r m a t i o n of the H a l a k h i c system of B a b a Q a m m a as it is in connection with that most scriptural of c a t e g o r y - f o r m a t i o n s , Sotah! W h a t we shall n o w see is, B a b a Q a m m a responds to the written T o r a h ' s p r o g r a m , organizing a n d rationalizing it. W e are able p o i n t by point to link the principal propositions of Baba Q a m m a to c o u n t e r p a r t s in Scripture. But in the process, issues of conflict a r e spelled out only in the selected a r e a s j u s t n o w specified. T h e y a r e those in w h i c h a very particular point is realized.‫ י‬T o the selection of those areas, the p r o g r a m of Scripture as realized in B a b a Q a m m a is hardly g e r m a n e , its e m p h a s e s a n d p r o p o r t i o n s scarcely p e r t a i n i n g . As we have n o t e d , viewed whole, B a b a Q a m m a takes as is task the exposition of h o w the victim of assault or r o b b e r y is to be ret u r n e d to his p r i o r condition, the t h u g or thief not gaining. T h e ten topics are briefly s u m m a r i z e d by the o p e n i n g sentences of e a c h of the ten chapters: INJURY

1. There are four generative causes of damages. 2. A beast is an attested danger to go along in the normal way and to break something. But if it was kicking, or if pebbles were scattered 5 Baba Mesia yields too limited a corpus of data to sustain the present inquiry, but what we do have conforms to the picture of Baba Q a m m a .

140

CHAPTER THREE

3.

4.

5.

6.

7.

from under its feet and it thereby broke utensils—the owner pays half of the value of the damages caused by his ox. He who leaves a jug in the public domain, and someone else came along and stumbled on it and broke it—the one who broke it is exempt. He who pours water out into the public domain, and someone else was injured on it, is liable to pay compensation for his injury. Two oxen generally deemed harmless which injured one another— the owner pays half-damages for the excess of the value of the injury done by the less injured to the more injured ox. He who digs a pit in private domain and opens it into public domain, or in public domain and opens it into private domain, or in private domain and opens it into private domain belonging to someone else, is liable for damage done by the pit. He who brings a flock into a fold and shut the gate before it as required, but the flock got out and did damage, is exempt. If he did not shut the gate before it as required, and the flock got out and did damage, he is liable. He who causes a fire to break out through the action of a deaf-mute, idiot, or minor, is exempt from punishment under the laws of man, but liable to punishment under the laws of heaven. If he did so through the action of a person of sound senses, the person of sound senses is liable. MISAPPROPRIATION

8. More encompassing is the rule covering payment of twofold restitution than the rule covering payment of fourfold or fivefold restitution. For the rule covering twofold restitution applies to something whether animate or inanimate. But the rule covering fourfold or fivefold restitution applies only to an ox or a sheep alone 9. He who injures his fellow is liable to compensate him on five counts: (1) injury, (2) pain, (3) medical costs, (4) loss of income [lit.: loss of time], and (5) indignity 10. He who steals wood and made it into utensils, wool and made it into clothing, pays compensation in accord with the value of the wood or wool at the time of the theft. Nos. 1-7 in treating injury all work on assessing culpability a n d assigning responsibility. If a question recurs, it concerns how we sort out that mishap against which we can take precautions f r o m what cannot ordinarily be foreseen a n d prevented. But a variety of givens p r e d o m i n a t e , and those givens involve facts, not principles of general intelligibility such as might pertain in other Halakhic cat-

RESTORING THE SOCIAL ORDER

141

egories altogether; the givens seem r e m a r k a b l y p a r t i c u l a r to their context. A n d the facts o n the face of m a t t e r s scarcely can be said to i n h e r e in the topic at h a n d . Nos. 8 - 1 0 in addressing m i s a p p r o p r i a tion w a n t to know h o w we assess d a m a g e s a n d p a y for t h e m . H e r e too, responsibility to restore the status q u o defines the r e c u r r e n t question. T h e H a l a k h a h categorized as B a b a Q a m m a — t h e H a l a k h a h of i n j u r y a n d m i s a p p r o p r i a t i o n — s y s t e m a t i z e s facts supplied by Scripture, identifying the general principles a n d utilizing those general principles as the basis for the orderly recapitulation of the established facts, n o w in an i m p r o v e d f o r m u l a t i o n . N o t only so, b u t that work of s e c o n d a r y amplification of facts of Scripture encompasses nearly the entire tractate; I see little in the H a l a k h a h that aims at m o r e t h a n to articulate w h a t is implicit in facts set f o r t h by the W r i t t e n T o r a h . N o H a l a k h i c p r o b l e m a t i c deriving f r o m the O r a l T o r a h dictates the course of the presentation of the topic. T o show that that is the case, let m e r e t u r n to the r e p e r t o i r e of topics given j u s t n o w ask these specific questions a n d answer t h e m . I ask the question r e q u i r e d by the r o u g h reprise given above, a n d I answer by a systematic d e m o n s t r a t i o n that the H a l a k h a h finds in the W r i t t e n T o r a h not only its facts b u t also such a generative p r o b l e m a t i c s as pertains. W h e n we c o m e to the o t h e r Babas, we shall see a very different picture. 1. H o w d o sages know that t h e r e are f o u r generative causes of d a m a g e s [covering Nos. 1, 3, 5, 6, 7)? Ox (No. 1): "When one man's ox hurts another's, so that it dies, then they shall sell the live ox and divide the price of it; and the dead beast also they shall divide. O r if it is known that the ox has been accustomed to gore in the past, and its owner has not kept it in, he shall pay ox for ox, and the dead beast shall be his" (Ex. 21:35-6) Pit (No. 5): "When a man leaves a pit open or when a man digs up a pit and does not cover it, and an ox or an ass falls into it, the owner of the pit shall make it good; he shall give money to its owner and the dead beast shall be his" (Ex. 21:33) Crop-destroying beast (No. 6): "When a man causes a field or vineyard to be grazed over or lets his beast loose and it feeds in another man's field, he shall make restitution from the beast in his own field and in his own vineyard" (Ex. 22:5) Fire (No. 7): "When fire breaks out and catches in thorns so that the stacked grain or the standing grain or the field is consumed, he that kindled the fire shall make full restitution" (Ex. 22:6) T h e s e c o n d a r y amplification of these generative causes, so elegantly carried f o r w a r d by the T o s e f t a ' s a n d Bavli's exegesis of the Mish-

142

CHAPTER THREE

n a h ' s statement, leaves no doubt that, within the prevailing hermeneutics of the native category at h a n d , the sole task is to articulate the givens of Scripture. T h a t fact becomes m o r e blatant at the next stage. 2. W h e r e do sages learn the distinction between a beast that is d e e m e d harmless and one that is an attested d a n g e r [covering Nos. 2, 4, inclusive of [1] half-damages paid in the case of the goring of the former, full damages of the latter; a n d [2] of selling an ox a n d dividing the proceeds? When one man's ox hurts another's, so that it dies, then they shall sell the live ox and divide the price of it; and the dead beast also they shall divide. Or if it is known that the ox has been accustomed to gore in the past, and its owner has not kept it in, he shall pay ox for ox, and the dead beast shall be his (Ex. 21:35-6) When an ox gores a man or woman to death, the ox shall be stoned and its flesh shall not be eaten; but the owner of the ox shall be clear. But if the ox has been accustomed to grow in the past, and its owner has been warned but has not kept it in, and it kills a man or a wornan, the ox shall be stoned, and the owner also shall be put to death. If a ransom is laid on him, then he shall give for the redemption of his life whatever is laid upon him. If it gores a man's son or daughter, he shall be dealt with according to this same rule. If the ox gores a slave, male or female, the owner shall give to their master thirty shekels of silver, and the ox shall be stoned (Ex. 21:28-32) T h e entire p r o g r a m of the specified chapters of the Mishnah's presentation of the H a l a k h a h derives from Scripture; the exegesis of the implications of the facts, the invention of illustrative problems for solution, a n d the specification of theorems for demonstration—all depend upon the factual postulates supplied by Scripture. 3. W h e n c e the distinction between the rule covering p a y m e n t of twofold restitution t h a n the rule covering p a y m e n t of fourfold or fivefold restitution (No. 7)? If a man steals an ox or a sheep and kills it or sells it, he shall pay five oxen for an ox and four sheep for a sheep. He shall make restitution; if he has nothing, then he shall be sold for his theft. If the stolen beast is found alive in his possession, whether it is an ox or an ass or a sheep, he shall pay double (Ex. 22:1-3). If a man delivers to his neighbor money or goods to keep and it is stolen out of the man's house, then if the thief is found, he shall pay double (Ex. 22:7).

RESTORING THE SOCIAL ORDER

143

T h e specified chapter does nothing m o r e than take u p Scripture's distinctions and explore their implications. 4. H o w do we know that one compensates a person w h o m he has injured (No. 9)? When men quarrel and one strikes the other with a stone or with his fist and the man does not die but keeps his bed, then if the man rises again and walks abroad with his staff, he that struck him shall be clear; only he shall pay for the loss of his time and shall have him thoroughly healed (Ex. 21:18-19). When men strive together and hurt a woman with child so that there is a miscarriage and yet no harm follows, the one who hurt her shall be fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe (Ex. 21:2225). Sages derive the laws of misappropriation a n d torts f r o m Scripture, the categories being defined out of the passage at h a n d . 5. W h a t is the basis for requiring compensation for what one has stolen (No. 10)? If any one sins and commits a breach of faith against the Lord by deceiving his neighbor in a matter of deposit or security or through robbery, or if he has oppressed his neighbor or has found what was lost and lied about it, swearing falsely, in any of all the things that men do and sin therein, when one has sinned and become guilty, he shall restore what he took by robbery or what he got by oppression or the deposit that was committed to him or the lost thing that he found or anything about which he has sworn falsely; he shall restore it in full (Lev. 5:20-24). H e r e again, it is not the topic and its inherent logic but Scripture that has dictated the character of the H a l a k h a h , within the obvious proviso that, both Scripture's and the O r a l T o r a h ' s H a l a k h a h concur on the justice of restoring stolen property as a principle of the o r d e r i n g of society. I have now shown how, point by point, the H a l a k h a h of Baba Q a m m a r e s p o n d s to Scripture's p r o g r a m by organizing, systematizing, a n d regularizing Scripture's rules and the implicit principles in them. Does the presentation of conflict between Israelites in that same context r e s p o n d to Scripture in p r o g r a m a n d p r o p o r t i o n ? N o it scarcely concerns itself with a fair part of the scriptural agendum—

144

CHAPTER THREE

or with that of B a b a Q a m m a ! T h i s s o m e w h a t p r o t r a c t e d exposition was n e e d e d , because it n o w p e r m i t s us tout court to say, while Scripture has dictated the p r o g r a m of Baba Q a m m a , it in no way accounts for the selection of subjects to be realized in the m e d i u m of disputes. O t h e r considerations a r e in play t h a n those we identified in C h a p ter T w o . As to B a b a Mesia, the d a t a p r o v e so sparse as scarcely to sustain o u r inquiry at all. So m u c h for Scripture's p r o g r a m as m e d i a t e d by the O r a l T o r a h . W h a t t h e n c a n we say a b o u t the interest of the H a l a k h a h in resorting to a c c o u n t s of conflict to e x p o u n d the topics set forth by S c r i p t u r e ? In C h a p t e r T w o we f o u n d that conflicts over rules of S c r i p t u r e c a p t u r e d the H a l a k h i c focus; h e r e t h a t is the case only p a r t i a l l y , — t h e r e f o r e not at all. T h o s e conflicts that define the p r o g r a m of restoration of the social o r d e r m a i n l y c o n c e r n the househ o l d e r ' s exercise of will a n d intention a n d the result thereof: causation a n d responsibility for w h a t o n e has caused. W h e n it comes to the m e d i a for resolving conflict, they are two: restitution or c o m p e n s a t i o n , w h e r e called for, a n d a p p e a l to H e a v e n via the o a t h to establish the facts, where necessary. T h e f o r m e r presents n o surprises; it expresses the essence of the H a l a k h i c p r o g r a m in the p r e s e n t division of the law. W e n o t e d t h e p r o m i n e n c e of t h e o a t h as m e d i u m of resolving conflict b e t w e e n Israelites. T h a t is a n item that Scripture contributes a n d that the r e p e r t o i r e of conflicts chooses to highlight. But, we n o w realize, the principles that guide the H a l a k h i c exposition r e q u i r e a t t e n t i o n to all, not to j u s t o n e c o m p o n e n t of the Scriptural p r o g r a m . So we have to explain the p r o m i n e n c e of a Scriptural item by a p p e a l to the H a l a k h i c r e p r e s e n t a t i o n of conflict b e t w e e n Israelites. T h a t r e p r e s e n t a t i o n selects issues i m p o r t a n t in the exposition of conflicts of will a n d intention, realized in c o m m i t m e n t s to responsibility, e.g., in bailments. Since we deal not with a r a n d o m selection b u t with the result of a well-crafted p r o g r a m , we have to take u p a very p a r t i c u l a r question. It is, w h a t has the o a t h — t h e o t h e r focus of conflict-representation in B a b a Q a m m a a n d the first half of B a b a M e s i a — t o d o with will a n d intention a n d responsibility? T h e answer is contained within the question. A p e r s o n w h o takes a n o a t h invokes G o d ' s n a m e in expressing his i n n o c e n c e , o n the o n e side, or the authenticity of his claim, on the other. T h e o a t h is taken as an act of free will a n d total p e r s o n a l c o m m i t m e n t to, responsibility for, the claim as to facts that

RESTORING THE SOCIAL ORDER

145

the householder has registered. W h o takes the o a t h forms a variable, but the s t a n d i n g a n d effect of the o a t h d o not. So, viewed in this perspective, the interest of c o r p o r a t e Israel comes to the surface. T h e conflicts b e t w e e n householders that the H a l a k h a h portrays are those involving questions of the exercise of will or intentionality: types of causation differentiated by levels of responsibility. T h e n the key is responsibility, j u s t as the H a l a k h a h says time a n d again. I state m y conclusion with heavy emphasis: The Halakhic system finds particularly interesting those relationships between householders, or between a householder and another class of Israelite society, e.g., the craftsman, that embody in one way or another the exercise of the householder's autonomous will. T h a t is hardly surprising, since the Rabbinic system reads the entire T o r a h , b u t especially the W r i t t e n p a r t of the T o r a h , as a n exercise in p u r i f y i n g the h e a r t of m a n . H e n c e conflict will define the m e a sure of the T o r a h ' s work that is yet to be d o n e in Israel. A n d , it follows, w h e n the building blocks of the Israelite social o r d e r engage in c o n t e n t i o n , the conflict is going to be explained in terms of will, attitude, intentionality a n d responsibility. T h a t carries us as far as we c a n go until we have taken u p the o t h e r half of the m a t t e r of conflict b e t w e e n households: the m a i n t e n a n c e of social o r d e r a n d the role of c o n t e n t i o n in the representation of that p r o g r a m . At the e n d of C h a p t e r F o u r , we shall c o m plete this a c c o u n t of the social t h e o r y of R a b b i n i c J u d a i s m t h a t pertains to social conflict a n d its resolution.

4.

CONFLICTS BETWEEN HOUSEHOLDERS: MAINTAINING THE SOCIAL ORDER I. Corporate Israel's Interest: Where Intentionality Gives Way Will, a t t i t u d e , i n t e n t i o n — t h e s e figure p r o m i n e n t l y in d i s r u p t i n g , therefore restoring, the social order. But they play n o i m p o r t a n t role in m a i n t a i n i n g it. For, if intentionality f o r m s a critical d e t e r m i n a n t in the restoration of the social o r d e r of c o r p o r a t e Israel, as in B a b a Q a m m a a n d the first half of B a b a Mesia, w h e n it c o m e s to m a i n taining that social o r d e r , the h o u s e h o l d e r ' s attitude or intention n o longer plays a principal role. In the licit transactions covered in the second half of the Babas, the emphasis is o n preserving o r d e r . Individual attitude or will does not f o r m a g o v e r n i n g criterion of analy sis. W h a t emerges f r o m the p r e s e n t a t i o n of B a b a Mesia is a c o h e r e n t exercise on the three dimensions of will or intentionality: where m a n ' s will defines the n o r m , w h e r e G o d ' s will overrides m a n ' s will, a n d where custom a n d the social n o r m enter into the assessment of m a n ' s will a n d t u r n out to exclude u n a r t i c u l a t e d idiosyncrasy. B a b a Batra works on yet a n o t h e r aspect of intentionality, the negative. It sets f o r t h t h e classifications of cases in w h i c h i n t e n t i o n a l i t y is simply irrelevant to transactions of a certain o r d e r . T h e n we eliminate all c o n s i d e r a t i o n of individual p r e f e r e n c e or will. T h a t completes the picture. T o review the p r o g r a m of the second half of the Babas: we deal, in the c o n t i n u a t i o n of B a b a Mesia, with hiring workers, rentals a n d bailments B.M. 6:1-8:3. W e t u r n next to p r o b l e m s of real estate law, B . M . 8:4-10:6, B.B. 1:1-5:5, a n d c o n c l u d e , in B a b a Batra, with licit c o m m e r c i a l transactions, B.B. 5:6-7:4, a n d finally, d o c u m e n t s imp o r t a n t in civil relationships, such as inheritances a n d wills, a n d other c o m m e r c i a l a n d legal d o c u m e n t s , B.B. 8:1-10-8. T h e entire exposition t u r n s out to f o r m a n exercise o n the interplay b e t w e e n intentionality a n d value, with specific a t t e n t i o n to w h e r e the attitude of p a r t i c i p a n t s to a t r a n s a c t i o n governs, w h e r e it is dismissed as null,

MAINTAINING THE SOCIAL ORDER

147

a n d w h e r e it takes a s u b o r d i n a t e position in a n exchange. T h e s e are the three readings of the role of the will of the parties to a transact i o n — [ 1 ] p a r a m o u n t , [2] excluded, a n d [3] s u b o r d i n a t e d but effective. T h e y f o r m the expository p r o g r a m that a n i m a t e s the presentation of the topic of B a b a Mesia. For its p a r t , Baba Batra e x p o u n d s those topics in which o n e ' s idiosyncratic intentionality is null. In B a b a Mesia the m a t t e r moves in a progression, partly covered in C h a p t e r T h r e e , partly fresh. As we have seen, w h e n it c o m e s to resolving conflicting claims, we focus u p o n the attitudes of the p a r ticipants to the conflict. T h r e e points a r e familiar. First, we w a n t conflicting parties to resolve conflict in a m a n n e r that is not only equitable but also that is deemed by all parties to be equitable. Seco n d , in assessing rights of o w n e r s h i p , we take a c c o u n t of the attitude of the original o w n e r , w h o gives u p his title w h e n he despairs of regaining his p r o p e r t y . T h i r d , in assessing liability of a bailiff, we assign restitution in p r o p o r t i o n to the responsibility that the bailiff has a c c e p t e d . In all three instances, t h e r e f o r e , the variables of the law r e s p o n d to the attitudes of the participants in a transaction, to acts of will that d e t e r m i n e the o u t c o m e of u n t o w a r d consequences. W h e n we deal with m a r k e t - t r a n s a c t i o n s , by contrast, o t h e r considerations override, so we treat as s u b o r d i n a t e or dismiss outright as irrelevant the attitude, e.g., t o w a r d usury a n d fixed prices, of the p l a y e r s — i n f o r m e d seller, willing buyer. R a t h e r , we impose the criterion of a fixed or true value. T h a t supersedes the a g r e e m e n t of the parties to the transaction. A n d the law goes out of its way to u n d e r score that in the face of the fixed a n d true value that inheres in a transaction, the willingness of the parties to ignore true value is simply nullified. A b o r r o w e r m a y willingly p a y usury—in the innocent f o r m of a w a r m greeting for instance or a gesture of f r i e n d s h i p — b u t the transaction is illegal. Even t h o u g h a p u r c h a s e r is willing to p a y a p r e m i u m for a n object, his attitude does not affect the value of the object. O n e m a y be willing to p a y a p r e m i u m for the use of capital, but such a p r e m i u m is d e e m e d not a r e t u r n o n capital but usury a n d is illegal. All transactions m u s t c o n f o r m to a m e a s u r e of exact exc h a n g e of true value, a n d that extends to e x c h a n g e s of labor. Indeed, u n e a r n e d value m a y take the f o r m of not only special concessions but even a polite or o b s e q u i o u s greeting a n d so is outlawed. It follows that prices will be fixed—in t e r m s of m a r k e t - c o n d i t i o n s affecting what is immediately available—and private agreements cannot upset the public a r r a n g e m e n t s .

148

CHAPTER THREE

But private agreements can be taken into account in other exchanges. T h a t carries us to what is new for this exposition of conflict. Specifically, in transactions involving labor, rentals, a n d bailment, the attitude of the participants to an agreement fixes the terms of the agreement, which then cannot be unilaterally revised. L a b o r — like slaves, bonds, and other d o c u m e n t s — h a s no true value in the way in which grain or p r o d u c e or a pot does; each party bargains in good faith without the constraints governing usury. But then the transaction involving such-and-such a wage for so-and-so a span of labor, once agreed u p o n by both parties, is binding. H e r e the initial a g r e e m e n t governs, each party having acceded willingly, a n d the attitude or intention of one party cannot then dictate changes not accepted by the other. In the matter of bailments, liability responds to the level of responsibility imposed by variable compensation of the bailiff; he is assumed to be willing to take greater precautions a n d accept m o r e substantial liability in response to greater compensation. W h a t about what is not articulated but only assumed? H e r e too, we impose u p o n the parties an imputed attitude, that is, we assume that all parties accept the prevailing n o r m s a n d make those n o r m s their own. O n c e m o r e individual intentionality plays no role; individuality is null. In resolving conflicts in real estate, certain implicit a g r e e m e n t s are assumed. Prevailing attitudes or expectations are imputed to the parties, custom then defining what we assume the players to have accepted. O n that basis, I characterize the second half of the Babas as an exercise in maintaining the social order, the restoration of which is covered in the first half. It follows that the H a l a k h a h of Baba M e s i a — t h e m e d i a t i n g c o m p o n e n t of the civil l a w — b o t h sets forth information about the topics at h a n d a n d also works out a theoretical concern through the presentation of those topics. T h a t concern focuses u p o n the attitude of parties to a conflict or transaction. T o what extent does the intentionality or attitude of a participant in a n e x c h a n g e govern, a n d to w h a t extent do i m m u t a b l e rules override the will of the individual householder? Baba Mesia provides a good exercise in answering that question. [1] In certain situations of conflict, we take full account of the attitude of all parties. W h e n two persons claim ownership of the same object, either because both have g r a b b e d it at the same m o m e n t or because one has lost what the other has found, or because one has

MAINTAINING THE SOCIAL ORDER

149

accepted responsibility in proportion to the other's inveiglement (good will, a fee, and so on), then intentionality reigns supreme. T h a t is to say, we settle the conflict by a weighing or a m a t c h i n g of wills. T h e T o r a h requires fairness, and, no other considerations' intervening, all parties have a say on what is equitable. [2] But the willingness of two persons, e.g., a buyer a n d seller, to c o m e to an a g r e e m e n t is set aside by o t h e r considerations. T h e householder's will cannot overcome the law of the T o r a h . T h e T o r a h prohibits usury, which involves the concept of distributive economics that inherent in an exchange is a set valuation, which the partieipants m a y not set aside. A theory of static wealth comes into play when we maintain that true value inheres in things. G o d ' s will overrides man's, a n d what G o d does not want, m a n cannot legitimate merely by a n act of will, even in an e x c h a n g e involving m u t u a l consent. Intentionality or attitude—willingness to evaluate at a higher or lower value than the intrinsic o n e — n o longer enter into the disposition of a transaction. G o d ' s will outweighs m a n ' s will, hence intentionality plays no part in settling these transactions. [3] Established custom modifies intentionality, in that people are assumed to conform to a c o m m o n n o r m . In exchanges not of conflict nor of fixed value but of service, attitude or intentionality is s u b o r d i n a t e d to expectations that are b r o a d l y accepted: general considerations of sound public policy. We may formulate matters in the following way: intentionality plays its part, but idiosyncrasy does not. W e do not impute to an individual an intention or expectation that diverges f r o m the n o r m . T h e parties may willingly enter a valid agreement to exchange service—work, rental of property, a n d the like—but their agreement cannot violate fixed procedures, any more than a buyer a n d seller m a y ignore true value. Custom in intangible relationships matches inherent worth in tangible ones. Against the background of issues of will and attitude, we now take up conflicts connected with the maintenance of the social order, once m o r e surveying the articulated encounters of contention.

150

CHAPTER THREE

II. Baba Mesia

6:1-10:3

A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M. 6:1 He who hires craftsmen, and one party deceived the other—one has no claim on the other party except a complaint [which is not subject to legal recourse]. [If] one hired an ass driver or wagon driver to bring porters and pipes for a bride or a corpse, or workers to take his flax out of the steep, or anything which goes to waste [if there is a delay], and [the workers] went back on their word—in a situation in which there is no one else [available for hire], he hires others at their expense, or he deceives them [by promising to pay more and then not paying up more than his originally stipulated commitment]. T. 7:1 He who hires workmen—whether they deceived the householder [and did not provide the promised work]—they have no claim on one another except a complaint [which is not subject to legal recourse] [M. B.M. 6:1C]. Under what circumstances? When the workers did not show up. But [il] he hired ass-drivers and they came, but he did not find them, or [if] he went and hired workers and they came and found the field when it was wet [and not suitable for plowing], he pays them wages in full. But one who actually does the work is not equivalent to one who sits and does nothing. And one who comes bearing a burden is not equivalent to one who comes empty-handed. Under what circumstances? In a case in which they did not begin [the work]. But if they had actually begun the work, lo, they make an estimate for him [of how much work actually had been done]. How so? [If] one undertook for the householder to cut down his standing grain for two selas, [and] had cut down half of it and left half of it, [or if he undertook] to weave a cloak for two selas, and [had woven] half of it and had left half of it—lo, these make an estimate for him. How so? If what he had made was worth six denars, they hand over to him a sela [four denars], or he completes his work. And if it was worth a sela, they hand over to him a sela. Under what circumstances? In the case of something which does not go to waste. But in the case of something which goes to waste [if there is a delay] [M. B.M. 6:IF], he hires others at their expense, or deceives them [by promising to pay more and then not pay up more than his originally stipulated commitment]. How so? He says to [the worker], "I agreed to pay you a sela. lo, I'm going to give you two." He goes and hires workers from another location, then comes and takes the money from this party and hands it over to that party. Under what circumstances? In a situation in which he comes to an agreement with him while he cannot find others to hire. But if he saw ass-drivers coming along, [the

MAINTAINING THE SOCIAL ORDER

151

worker] says to him, "Go and hire one of these for yourself." And he has no claim on the other party except a complaint. T. 7:2 He who hires a boat, and it unloaded his goods in the middle of the wharf—he has no claim against it except a complaint. T. 7:3 He who hires a worker who suffers a bereavement, or who suffers heat-prostration—lo, they make an estimate for him [of the work already done]. How do they make an estimate for him? If he had been hired for a month, they pay him off in accord with his salary [propordonate to the part of the month he has worked]. [If he had been hired by the job] as a contractor, they pay him off in proportion to the part of the job he has completed. He who hires a worker to bring something from one place to another, and he went but [because he did not find what he had been sent for], he did not bring back [what he was supposed to], he [nonetheless] pays off his full salary. T. 7:4 He who hires a worker to bring reeds and poles to a vineyard, and he went but did not bring them [as above]- he pays off his salary in full. 1. What is subject to dispute? T h e conflict b e t w e e n h o u s e h o l d e r a n d h i r e d h a n d s c o n c e r n s the workers' failure to fulfill their c o m m i t m e n t or the householder's failure to provide the p r o m i s e d work. W h e r e there is the possibility of loss, the d i s a p p o i n t e d h o u s e h o l d e r m a y deceive the workers into d o i n g the work, p r o m i s i n g a higher wage t h a n he actually pays. T h a t is the case w h e n the workers did not show up. But if the fault did not lie with the workers, t h e n they are p a i d their wages. 2. How does the system resolve the conflict in line with the systemic interest that is in play? Breach of c o n t r a c t bears only limited liability for the h o u s e h o l d e r a n d the worker. In the present case, there has been deception, e.g., the workers did not show up. If a c o n t r a c t o r causes loss, the househ o l d e r has the right to d e f e n d his interest. If there is n o loss, the conflict is treated as inconsequential. If there is loss, the h o u s e h o l d er c a n protect his interest. T h e w o r k e r s ' good faith is taken into a c c o u n t ; if they failed to d o the work t h r o u g h n o fault of their o w n , they a r e c o m p e n s a t e d for their time. T h e systemic interest is in securing c o m p e n s a t i o n w h e r e the d a m a g e is real, a n d avoiding litigation w h e r e it is not. N o w we p r o c e e d to a case of not d e c e p t i o n but unilateral a b r o g a t i o n of the c o n t r a c t , e.g., c h a n g i n g the terms of the original contract. T h a t is not the s a m e t h i n g as w h a t is treated here.

152

CHAPTER THREE

M. 6:2 He who hires craftsmen and they retracted [from the terms of the original contract]—their hand is on the hottorn. If the householder retracts, his hand is on the bottom. Whoever changes [the original terms of the agreement]— his hand is on the bottom. And whoever retracts—his hand is on the bottom. T. 7:6 [If] he hired him to pull weeds and he finished the field to which he may not say to him, "Come along and hoe two vines." If he hired him to hoe and he finished the field to which he had been he may not say to him, "Come along and pull the weeds around two If he finished plowing by noon-time, he may not say to him, "Come and pull the weeds in another field." For the worker may say to him, "Provide me with work in your property, or pay me my wage for the work I already have done." [If] he finished pulling weeds by noontime, he may not say to him, "Come and pull the weeds in another field." For the worker may say to him, "Provide me with work in your property, or pay me my wage for the work I already have done." And so too, he who completed his plowing by noon-time may not say to him, "lo, I am going to plough in the field of Mr. So-and-so." [If] he finished his weeding by noon-time, he may not say to him, "lo, I'm going to pull weeds with you in such-and-such a field." But if he had stipulated with him in advance in such wise, lo, this is permitted. T h e householder has the right to change the terms of work by assigning an easier form of labor, but not by assigning a more exacting form of labor. How so? [If] he hired him to pull weeds, and he completed the work in the field to which he was assigned, he may say to him, [only] with his permission, "Come and hoe around two vines." [If] he hired him to hoe and he completed the work in the field to which he had been assigned, he may say to him whether he likes it or not, "Come and pull the weeds around two vines." T. 7:7 A. He who hires workers to work in his property, and they made a mistake and did their work in the property of someone else—he pays them their full wages and goes and collects from the householder [in whose property the work was done] [the value of] what he has done for him. [If] he showed them his property, and they went and worked in the property of his fellow, he does not have to give them a thing. But they go and collect from the [other] householder [in whose property the work was done] [the value of] what they have done for him. B.

6 : 1 - 2 1 . 1 3 7 7 B A N D WHOEVER R E T R A C T S — H O W SO? L O , IF ONE SOLD HIS FIELD TO HIS FELLOW FOR A THOUSAND ZUZ AND THE OTHER PAID A DEPOSIT OF TWO HUNDRED ZUZ, IF THE SELLER RETRACTS, THE PURCHASER'S HAND IS ON THE TOP. I F HE WANTED, HE MAY SAY TO HIM, " G 1 V E ME MY MONEY BACK OR GIVE ME THE LAND UP TO THE VALUE OF MY MONEY." A N D FROM WHAT PART OF THE LAND DOES HE COLLECT IT? FROM THE BEST QUALITY LAND. B U T WHEN T H E PURCHASER IS THE ONE WHO RETRACTS, THE HAND OF THE SELLER IS ON TOP. I F HE WANTS, HE MAY SAY T O HIM, " H E R E IS YOUR MONEY BACK." I F HE WANTS, HE MAY SAY T O HIM, " H E R E IS THE LAND T O

MAINTAINING THE SOCIAL ORDER

153

THE VALUE OI• YOUR MONEY." A.ND FROM WHAT PART OF THE LAND DOES HE COLLECT IT? FROM THE WORST QUALITY LAND.

1. What is subject to dispute? T h e conflict b e t w e e n h o u s e h o l d e r a n d workers c o n c e r n s b r e a c h of contract; t h e o n e w h o fails to keep t h e a g r e e m e n t in its exact t e r m s loses. T h e h o u s e h o l d e r c a n n o t a d d to t h e stipulated work o r c h a n g e the conditions of labor. If it is t o ease t h e task, it is p e r m i t t e d . 2. How does the system resolve the conflict in line with the systemic interest that is in play? While, as w e saw earlier, b r e a c h of c o n t r a c t to p e r f o r m labor is n o t actionable, b r e a c h of the terms of the c o n t r a c t in t h e actual p e r f o r m a n c e of the work is. T h e e m p l o y e r m a y n o t a d d to t h e stipulated assignment o r c h a n g e t h e conditions of labor. H e r e t h e conflict is resolved b y a strict r e a d i n g of the t e r m s of the a g r e e m e n t . T h e systemic interest is in securing t h e inviolability of explicit contracts. M. 6:6 All craftsmen are in the status of paid bailees [responsible for both negligence and theft]. But any of them who said, "Take what is yours and pay me off [because the job is done]" [enters the status of] an unpaid bailiff [responsible for negligence but not theft]. [If one person said to another], "You keep watch for me, and I'll keep watch for you," [both are] in the status of a paid bailiff. "Keep watch for me," and the other said to him, "Leave it down before me," [the latter] is [in the status of] unpaid bailiff. T. 7:15. A weaver who left a thread on the side of a garment and it caught fire is liable to pay compensation, because he is in the status of a paid bailiff [M. B.M. 6:6A]. [II] the debris [of a falling building] fell on it before it was completely manufactured, he is liable [to pay compensation]. [If] it was after the work was completed, if the craftsman had informed the owner [that it was ready to be picked up], [the craftsman] is exempt. And if not, he is liable [cf. M. B.M. 6:6B], T. 7:16 [If] he said to him, "I told you [to make] a shirt," and [the craftsman] said, "You told me [to make] a cloak," it is the householders job to bring proof. T. 7:17 [If the householder] said, "I told you [I'd pay] a seta," [and the craftsman] said, "You told me two," so long as the goods are in the hand of the craftsman, it is the householder's job to bring proof [of the agreed price]. [If the goods] are in the householder's possession, during the interval, the craftsman has to bring proof. After the interval, the weaver takes an oath [that the agreed price was as he claimed] and collects [what is owing to him], T. 7:18 He who hands over utensils to the craftsman to do work [on them]

154

CHAPTER THREE

for him, and the work was completed, before he has received his wages, lo, he is in the status of a paid bailiff. Once he has received his wages, lo, he is in the status of an unpaid bailiff. Under what circumstances? When [the craftsman] has laid claim upon the householder and said to him, "Come and take what's yours." But if he did not lay claim on him and did not say to him, "Come and take what's yours," even though he already has received his wages, lo, he remains in the status of a paid bailiff. T. 7:19 He who says to his fellow, "Lend to me, and I'll lend to you"— "Keep watch for me, and I'll keep watch for you,"—"Lend to me, and I'll keep watch for you,"—lo, these are in the status of an unpaid bailiff [cf. M. B.M. 6:6C-F], And they are not in the status of a paid bailiff. T. 8:1 He who hires a worker to watch his cow for him, [or] to watch his child for him does not pay him a salary for the Sabbath. Therefore [the watchman] does not bear responsibility [to make up any loss which takes place] on the Sabbath. But if he was hired by the week, by the month, by the year, or by the septennate, he does pay him a salary covering the Sabbath. Therefore [the watchman] does bear responsibility to [make up any loss] on the Sabbath. [The watchman] may not say to him, "Pay me my salary for the Sabbath." But he says to him, "Pay me my salary for a ten-day period." 1. What is subject to dispute? T h e h o u s e h o l d e r ' s relationship to the c r a f t s m e n c o n c e r n s the status of the p r o p e r t y left with the c r a f t s m a n for processing, e.g., cloth into clothing. If the materials are stolen, the c r a f t s m a n bears responsibility as p a i d bailiff, unless he has c h a n g e d that status in c o m m o n agreement. But the m e t a p h o r of the b a i l m e n t does not cover all c o m p o n e n t s of the transaction, so T . 7:16. T h e r e , once m o r e , a conflict as to the facts of the m a t t e r has to be resolved. T h e issue t h e n is, w h o brings proof? A n d the answer is, the c l a i m a n t , not the d e f e n d a n t . If there is a m i s u n d e r s t a n d i n g on the instructions for processing, the householder, w h o claims c o m p e n s a t i o n , has to b r i n g proof. So too, if there is a d i s a g r e e m e n t o n t e r m s of the t r a n s a c t i o n , the c l a i m a n t has to b r i n g proof. T . 7:17 then links the m a i n issue, the status of the goods in b a i l m e n t , with the s e c o n d a r y issue o f T . 7:16, with the result that is b e f o r e us: a n o a t h is i m p o s e d . 2 .How does the system resolve the conflict in line with the systemic interest that is in play? T h e g o v e r n i n g m e t a p h o r is the b a i l m e n t , a n d it is by a p p e a l to the rules of b a i l m e n t t h a t t h e conflict b e t w e e n the c r a f t s m a n a n d the

MAINTAINING T H E SOCIAL ORDER

155

h o u s e h o l d e r is resolved. O n c e w e c a n classify t h e relationship of conflict, we know how to resolve it. T h e present case then works itself out easily. T h e paid bailiff is responsible to c o m p e n s a t e for t h e loss of t h e b a i l m e n t . T h e plaintiff has to validate his claim. T h e s e a r e familiar principles. T h e system succeeds in its work w h e n it c a n find a valid m e t a p h o r to impose u p o n a discrete case. M. 7:1 He who hires [day] workers and told them to start work early or to stay late—in a place in which they are accustomed not to start work early or not to stay late, he has no right to force them to do so. In a place in which they are accustomed to provide a meal, he must provide a meal. [In a place in which they are accustomed] to make do with a sweet, he provides it. Everything accords with the practice of the province. M. 7:2 And these [have the right to] eat [the produce on which they work] by [right accorded to them in] the Torah: he who works on what is as yet unplucked [may eat from the produce] at the end of the time of processing; [and he who works] on plucked produce [may eat from the produce] before processing is done; [in both instances solely] in regard to what grows from the ground. But these do not [have the right to] eat [the produce on which they labor] by [right accorded to them in] the Torah: he who works on what is as yet unplucked, before the end of the time of processing; [and he who works] on plucked produce after the processing is done, [in both instances solely] in regard to what does not grow from the ground. T. 8:2 A worker has no right to do his own work by night and to hire himself out by day, to plough with his cow by night and to hire it out in the morning. Nor may he deprive himself of food and starve himself in order to give his food to his children, on account of the robbery of his labor, which belongs to the householder [who hires him]. T. 8:3 Workers have the right to eat their bread with brine, so that they will [have the thirst to] eat a great many grapes. And the householder has the right to make them drink wine, so that they will not eat a great many grapes. T. 8:4 A householder has the right to starve and torment his cow, so that it will eat a great deal when it is threshing. And one who hired a cow has the right to feed it a bundle of sheaves, so that it will not eat a great deal when it is threshing. T. 8:5 An ass and a camel may eat from the burden which is on their backs as they go along, on condition that [the beasts' owner] not take [the fodder in the burden, which he is paid to carry] by hand and feed it to them. B.

7 : 2 1.1 3 / 8 9 B WORKERS WHO WERE WORKING AT PICKING FIGS, HARVESTING DATES, VINTAGING GRAPES, OR GATHERING OLIVES, MAY NIBBLE AS THEY

156

CHAPTER THREE

GO ALONG AND ARE EXEMPT FROM HAVING TO DESIGNATE TITHES, FOR THE T O R A H HAS ENDOWED THEM WITH THE RIGHT TO DO s o . BUT AS TO EATING THESE THINGS WITH THEIR BREAD, THEY ARE NOT TO EAT THEM UNLESS THEY HAVE GOTTEN PERMISSION FROM THE HOUSEHOLDER, AND THEY SHOULD NOT DRIP THEM IN SALT AND EAT THEM. BUT SALTING THE PRODUCE IS IN THE SAME CATEGORY AS EATING GRAPES AND SOMETHING ELSE. H E WHO HIRES A WORKER TO HOE AND COVER UP THE ROOTS OF OLIVE TREES

THE WORKER MAY NOT EAT [SINCE THIS IS NOT WORK THAT COM-

PLETES THE PROCESSING]. I F HE HIRED HIM TO VINTAGE GRAPES, PLUCK OLIVES, OR GATHER FRUIT, HE MAY NIBBLE AND IS EXEMPT FROM THE OBLIGATION TO DESIGNATE TITHES, FOR THE T 0 R A H HAS ENDOWED HIM WITH THE RIGHT TO DO SO. I F HE STIPULATED THAT HE MAY EAT, HE MAY EAT THEM SINGLY, BUT NOT TWO AT A TIME [SINCE TWO TOGETHER COUNT AS A STORE AND ARE SUBJECT TO TITHES; SINCE HE HAS STIPULATED HE MAY EAT, IT IS PART OF HIS PAYMENT AND IS SOMETHING THAT IS BOUGHT, AND HE MAY NOT EAT THE STORES WITHOUT TITHING] . A N D HE MAY DIP THEM IN SALT AND EAT.

M. 7:6 A man makes a deal [with the householder not to exereise his right to eat produce on which he is working] in behalf of himself, his adult son, or daughter, in behalf of his adult manservant or woman-servant, in behalf of his wife, because [they can exercise] sound judgment [and keep the terms of the agreement]. But he may not make a deal in behalf of his minor son or daughter, in behalf of his minor boy servant or girl servant, or in behalf of his beast, because [they can] not [exercise] sound judgment [and keep the terms of the agreement]. 1. What is subject to dispute? T h e h o u s e h o l d e r w a n t s t h e workers t o extend their h o u r s b e y o n d the n o r m ; t h e workers a p p e a l t o t h e n o r m . If the h o u s e h o l d e r imposes exceptional r e q u i r e m e n t s , a n d t h e workers protest, t h e dispute is readily resolved by i m p o s i n g t h e established n o r m . T h e workers' claim is u p h e l d . T h a t is b e c a u s e a valid, u n w r i t t e n c o n t r a c t covers the transaction. T h e r e also is a right explicit in t h e T o r a h , M . 7:2, a n d that is vigorously u p h e l d . Specifically, t h e T o r a h accords t h e workers t h e right t o eat p r o d u c e o n which they a r e working. But t h e h o u s e h o l d e r also h a s c u s t o m a r y rights. Workers, for their p a r t , owe their best efforts to their employers a n d c a n n o t work night a n d d a y a n d so give less t h a n their best effort. T h e s e a r e fixed o b ligations, b u t a r e subject to negotiation.

MAINTAINING THE SOCIAL ORDER

157

2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e h o u s e h o l d e r m a y n o t c h a n g e t h e n o r m a l conditions of labor, a n d t h e w o r k e r h a s to be c a p a b l e of giving a full day's work f o r a full day's pay. T h e systemic interest here is in realizing the provisions of the T o r a h that govern householder-worker relationships. T h e systemic interest in stasis overrides conflict c o m i n g f r o m either side. But it is a stable condition of b a l a n c e , p r o p o r t i o n , a n d o r d e r : b o t h sides must c o n c u r . M. 8:2 He who borrows a cow—[if] he borrowed it for half a day and hired it for half a day, [or] borrowed it for one day and hired it for the next day, [or] borrowed one [cow] and hired another—and [the cow] died—the lender says, (1) "The borrowed one died"—(2) "On the day on which it was borrowed, it died " (3) "At the time that it was borrowed, it died,"—and the [borrower] says, "I don't know"—[the borrower] is liable. The hirer [lessee] says, (1) "The hired one died," (2) "On the day on which it was hired, it died," (3) "at the time that it was hired, it died'" and the other party says, "I don't know"—[the hirer] is exempt. [If] this party claims that the borrowed one [died], and that party claims that the hired one [died], the one who rents it is to take an oath that the rented one died. [If] this one says, "I don't know," and that one says, "I don't know," then let them divide [the loss]. T. 8:22 "lo, it is on loan to you today, if you will watch it for me tomorrow," "lo, it is on loan to you today, if you will watch its mate for me tomorrow," "lo, its mate is on loan to you today, if you will guard it for me tomorrow," "lo, it is on loan to you up to noon, if you will guard it for me from noon and thereafter," "lo, it is on loan to you up to noon, if you will guard its mate for me from noon onward," "lo, its mate is on loan to you up to noon, if you will guard it for me from noon onward," "lo, it is on loan to you from noon onward, if you will guard its mate for me up to noon"- lo, [the parties who make such agreements] are not in the status of unpaid bailees, but are only in the status of paid bailees. Whether one has borrowed it today and hired it for tomorrow, or hired it for today and borrowed it for tomorrow, or if there were two, one which was borrowed and one which was hired—this one says, "I don't know"—and that one says, "I don't know"—let them divide up [the loss] [M. B.M. 8:2S-T]. [If] this one says it was borrowed, and that one says it was hired [M. B.M. 8:2PQ], be who lays claim against his fellow has to bring proof [in support of his claim]."

158

CHAPTER THREE

1. What is subject to dispute? T h e conflict c o n c e r n s t h e responsibility to m a k e u p t h e lost cow. If the b o r r o w e r c a n n o t ascertain the facts, the lender's claim is allowed. W h e r e b o t h parties lay claim, t h e o n e w h o r e n t e d t h e cow takes t h e o a t h to establish his position. If neither p a r t y has access to t h e facts, they divide t h e loss. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest is in establishing t h e correct p r o c e d u r e f o r settling t h e conflicting claims. T e s t i m o n y of one o r a n o t h e r p a r t y or a n o a t h serves, d e p e n d i n g o n t h e c i r c u m s t a n c e . W h e r e there is a direct conflict as to t h e facts of the matter, the c h a r a c t e r of the claim m a k e s t h e difference. If b o t h claim t o k n o w t h e facts, o n e takes a n o a t h ; if neither claims to k n o w the facts, they divide w h a t is at stake. T h r o u g h o u t the H a l a k h a h , t h e system assumes that Israelites tell t h e t r u t h a n d rarely controls f o r lying. M. 8:3 He who borrowed a cow, and [the one who lent it out] sent it along with his son, slave, or messenger, or with the son, slave, or messenger of the borrower—and it died—[the borrower] is exempt. If the borrower had said to him, "Send it with my son," "...my slave," ". . .my messenger," or "...with your son,'' "...with your slave," "...with your messenger," or if the lender had said to him, "lo, I'm sending it to you with my son," "my ...slave," "My ...messenger '" or "...with your son," "...your slave," "...your messenger," and the borrower said, "Send it along," and he did send it along, but it died, [the borrower] is liable. And so is the rule as to returning the beast. Y. 8:3 1.1 [The borrower said to the cow owner,] "Lend me your cow for ten days, andyou be lent to me yourselffor the first five days," [if then the cow] died in the latter period, it is deemed to have died while subject to the indenture of the former period, [and the borrower is exempt from paying compensation, in line with M. 8:1]. [If he said], "Lend me your cow for after ten days [during which ten-day period, the cow owner himself had been lent to the borrower], and the old lady [who owned the cow] said to him, "It is [a weak cow, and it is] as if it is already dead, " [then if the cow should die, it is deemed to have died while subject] to the indenture of the latter period, [so that even if the owner was already employed with the borrower before the cow came on the scene, the borrower is responsible to pay compensation for the deceased cow]. [We do not maintain in this case that the cow was with the owner.] [If the borrower had said,] "Lend me your cow, and I shall be lent to you," "Lend me your cow, and come and work with me," "Lend me your spade, and come and weed with me," "Lend me your dish, and come and eat with me, " if one had borrowed it from the superintendent of the

MAINTAINING THE SOCIAL ORDER

159

well, from the steward, or from the town clerk [of the householder], and it died, it is as if the owner was with the cow [and the borrower need not pay]. [These are agents of the owner.] 1. What is subject to dispute? T h e b o r r o w e r is e x e m p t because t h e l e n d e r of the c o w h a s provided for t h e care of the cow. But if the b o r r o w e r m a d e provision, t h e n he bears responsibility f o r m a k i n g restitution. 2. Ilow does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest is in establishing w h o bears responsibility f o r the c a r e of the beast, e.g., agents of the o w n e r o r of the b o r r o w e r . M. 8:4 He who exchanges a cow for an ass, and [the cow] produced offspring, and so, too: he who sells his girl slave and she gave birth—this one says, "It was before I made the sale," and that one says, "It was after I made the purchase"—let them divide the proceeds. [If] he had two slaves, one big and one little, or two fields, one big and one little— the purchaser says, "I bought the big one," and the other one says, "I don't know"—[the purchaser] has acquired the big [slave]. The seller says, "I sold the little one," and the other says, "I don't know"—[the latter] has a claim only on the little one, This one says, "The big one," and that one says, "The little one"- let the seller take an oath that it was the little one which he had sold. This one says, "I don't know'" and that one says, "I don't know"—let them divide up [the difference]. T. 8:23 He who sells a cow to his fellow and it turns out to be pregnant and gives birth—this one says, "It was while in my domain that it gave birth" and the other one remains silent—[the former] has acquired possession [of the calf]. [If] the other one claims, "It was while in my domain that she gave birth," and this one remains silent—[the former] has acquired possession [of the calf] [M. B.M. 8:4L-N], [If] this one says, "I don't know," and that one says, "I don't know," let them divide up [the proceeds] [M. B.M. 8:4A-i]. T. 8:24 And so too: He who sells a girl-slave to his fellow, and she turns out to be pregnant and gave birth—this one says, "It was in my domain that she gave birth," and the other remains silent—[the former] has acquired possession [of the baby], [If] this one claims, "It was in my domain that she gave birth," and the other remains silent, he has acquired possession [of the baby], [If] this one says, "I don't know," and that one says, "I don't know," let them divide [the proceeds of the sale of the slave-child]. T. 8:25 A caravan which was traveling along in the wilderness, and a troop

160

CHAPTER THREE

of brigands attacked it, and one of them went and saved [the property]—what he saved, he has saved for the common fund [of all partieipants]. But if he made a stipulation with them in a court, what he has saved he has saved for his own advantage. Ass-drivers who were going along the way, and a band of thugs attacked them, and one of them went and saved [the property]—what he has saved, he has saved for the common fund [of all participants]. But if they had given him domain, what he has saved he has saved for his own advantage. Partners who were forgiven part of their taxes by the tax-collectors—what they have been remitted falls to the common fund shared by both parties. But if [the tax-collectors] declared, "It is for Mr. So-and-so that we have remitted the taxes," then what they have remitted falls to the advantage of Mr. So-and-so. 1. What is subject to dispute? T h e conflict c o n c e r n s t h e facts of the m a t t e r . W h e r e e a c h p a r t y h a s a valid claim a n d there is n o w a y of settling t h e question, t h e p r o ceeds a r e divided. W h e r e t h e p u r c h a s e r claims to know the facts a n d the seller does not, t h e p u r c h a s e r establishes his claim, a n d so in t h e reverse. I find n o n e of this surprising. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e law assesses t h e weight of conflicting claims, a n d if one p a r t y alleges knowledge a n d t h e o t h e r does n o t , t h e f o r m e r ' s claim p r e vails. O n c e m o r e , t h e system affirms its c o n f i d e n c e in Israelites to tell the truth. But the oath is the m e c h a n i s m for ascertaining the facts. M. 8:5 He who sells olive trees for firewood and [before they had been chopped down], they produced fruit which yielded less than a quarter-[log] of olive oil to a seah—lo, this belongs to the owner of the olive trees [not to the owner of the land, who sold only the trees, not the ground]. [If] they produced a quarter-[log] of oil for a seah, this one says, "My olive trees made it,'' and that one says, "My ground made it"—let them divide it up. [If] the river overflowed one's olive trees and set them down in the field of his fellow [where they bore fruit], this one says, "My olive trees made it," and that one says, "My ground made it" Let them divide it up. 1. What is subject to dispute? T h e dispute c o n c e r n s t h e disposition of the trees sold f o r firewood. If the olive trees p r o d u c e d a negligible a m o u n t of oil, it is assigned

MAINTAINING THE SOCIAL ORDER

161

to t h e p u r c h a s e r of the trees, n o t t h e g r o u n d ; it is t r e a t e d as residual. If t h e oil is considerable, t h e n we have t h e conflicting claim, a n d t h e result is t h e division of the oil. 2. How does the system resolve the conflict in line with the systemic interest that is in play? As usual, w h e r e parties have equally valid claims, w h a t is disputed is divided. M. 8:7 He who rents out a house to his fellow—he who rents it out is liable [to provide] (1) a door, (2) bolt, and (3) lock, and anything which is made by a craftsman. But as to anything which is not made by a craftsman, the one who rents the house makes it [for himself]. Shit [left in a rented courtyard by cattle belonging to a third party] is assigned to the householder. The renter has a claim only on the refuse of an oven or stove alone. T. 8:29 He who rents a store from his fellow has a say concerning the place in which the oven is to be located Hut he does not have a say concerning the place in which the stove is to be located. If he hired a courtyard from him, he does not have a say concerning the place in which the oven is to be located or concerning the place in which the stove is to be located. But he sets up the oven in a place which is suitable to it, and the stove in a place which is suitable to it. T h e ashes which come out of the oven—whatever he collects, lo, it belongs to him [M. B.M. 8:7G] That [manure] which is in the cattle-shed and in the courtyard—lo, it belongs to the owner of the courtyard [M. B.M. 8:7F]. T. 8:30 He who rents out a house to his fellow, and the house was smitten with a nega' says to him, "lo, there is what is yours before you." [If] he consecrated [the house to the Temple], he who dwells in it pays the rental fee to the Temple. He who hires a house from his fellow—the latter provides for him millstones turned by an ass, but not millstones turned by hand. He may not make a place to store wine in it, because it lays a burden on the walls. And he may not raise chickens in it, because they peck at the walls. And he should not prepare in it a fixed mortar, because it shakes the walls. And he may not make it into a stall for cattle or into a storage-house for grain. T. 8:31 He who rents out a house to his fellow for twelve golden denars a year—lo , this one pays them out throughout the year. [If he rented the house] up to Adar, and the year was intercalated [receiving a second Adar]—this one says, "It was up to the first Adar," and that one says, "It was up to the second Adar inclusive of the second Adar," they divide the difference between them [M. B. M. 8:8G-I]. [If he had rented the house] to the end of Adar, it is to the end of the second Adar. [If] the year was intercalated [receiving a second Adar] this one says, "It was

162

CHAPTER THREE

up to the end of the first Adar," and that one says, "It was up to the end of the second Adar," they divide the difference between them. 1. What is subject to dispute? T h e h o u s e h o l d e r - l a n d l o r d m u s t p r o v i d e w h a t is ordinarily d e e m e d essential to a house. T h e r e n t e r makes u p w h a t o r d i n a r y people, n o t c r a f t s m e n , c a n p r o d u c e o n their o w n . Fertilizer in t h e r e n t e d courty a r d is assigned to t h e h o u s e h o l d e r , n o t t h e r e n t e r , since t h e househ o l d e r owns t h e land utilized b y t h e cattle. T h e h o u s e h o l d e r - l a n d lord rents in good faith; acts of H e a v e n go to the account of the renter, T . 8:30. But, as we see in t h e next entry, if the landlord is obligated to supply a usable house, a n d should t h e house collapse, h e m u s t replace it. 2. How does the system resolve the conflict in line with the systemic interest that is in play? O n c e m o r e , established custom dictates obligations of the householde r - l a n d l o r d t o t h e t e n a n t . N e i t h e r p a r t y m a y e n t e r a n exceptional claim. T h e systemic interest is t h e same as that for conflicts b e t w e e n h o u s e h o l d e r s a n d workers. M. 8:9 He who rents out a house to his fellow, and [the house] fell down, is liable to provide him with [another] house. [If] it was a small house, he may not make it large. [If] it was a large house, he may not make it small. [If] it was a single-family dwelling, he may not make it a duplex. [If] it was a duplex, he may not make it a single-family dwelling. He may not provide fewer windows [than had been in the house which fell down] nor more windows, with the concurrence of both parties. T. 8:32 H e who rents out a house to his fellow and [the house] fell down is liable to provide him with another house [M. B.M. 8:9A-C]. [If] it had had a roof of cedar, he may not roof it with sycamore, of sycamore, he may not roof it with cedar. T. 8:33 [If] it had had windows, [the householder] has not got the right not to open windows for him. [If] it had had no windows, the householder has the right to open windows [in the new house] [cf. M. B.M. 8:9Η-Γ|. Under what circumstances? When the tenant had rented the house from him for a very long time. But if the tenant had rented the house from him for a brief period, [the landlord] has the right to say to him, "There is yours right in front of you!"

MAINTAINING THE SOCIAL ORDER

163

1. What is subject to dispute? In r e p l a c i n g t h e house that h a s fallen d o w n , w h a t does t h e landlord owe t h e renter? T h e answer is, h e m u s t m e e t t h e conditions originally a g r e e d u p o n . 2. How does the system resolve the conflict in line with the systemic interest that is in play? N e i t h e r p a r t y m a y c h a n g e t h e t e r m s of the established a g r e e m e n t . M. 9:2 He who leases a field from his fellow, which is an irrigated field, or an orchard-field—[if] the water source went dry, or the trees were cut down, [the tenant] may not deduct [the damages] from the rental. If he had said to him, "Lease me this irrigated field," or "...this orchard-field," and the water source went dry, or the trees were cut down, [the tenant] may deduct [the damages] from the rental. M. 9:3 He who [as a sharecropper] leases a field from his fellow and then lets it lie fallow—they make an estimate of how much [the field] is suitable to produce, [and the tenant] pays [that amount] to [the landlord]. For thus does he write to him [in the writ of occupancy or lease], "If I let the field lie fallow and do not work it, I shall make it up to you at its highest rate of yield." T. 9:7 He who leases a field from his fellow should not plough one year and sow it another year. But he ploughs half of it and sows half of it, so that [the lessor] may have a source from which to collect [an income] [cf. M. B.M. 9:3]. T. 9:8 He who leases a field from his fellow and he would plough one year and sow another year—[the lessor] should not say to him at the time of the harvest, "Give me my rent for two years." But [the lessee] pays him the rent each year by itself. T. 9:9 He who estimated [the valuej of the standing grain of his fellow at ten kors of wheat, and it produced more or less [than the estimate] they pay him what he estimated [the yield of the field to be]. T. 9:10 He who leases a field from his fellow, in a place in which people are accustomed to put beans among the barley, may put beans among the barley. [In a place in which they are accustomed to plant] twice as much barley as wheat, they put in twice as much barley as wheat, and anything which is received for storage. 1. What is subject to dispute? If the original a g r e e m e n t did n o t stipulate that t h e p r o p e r t y w o u l d be irrigated o r supplied with fruit trees, t h e water-failure o r loss of the trees n e e d n o t be c o m p e n s a t e d ; if it w a s with that stipulation, the t e n a n t deducts t h e d a m a g e s f r o m t h e rent. If the s h a r e - c r o p p e r

164

CHAPTER THREE

does n o t p l a n t a field h e h a s leased, he m u s t supply t h e a n t i c i p a t e d yield nonetheless. T h e n o r m a l c u s t o m prevails. 2. How does the system resolve the conflict, in line with the systemic interest that is in play? T h e system o n c e m o r e settles conflict b y c o n f i r m i n g established a g r e e m e n t s a n d practices. N e i t h e r p a r t y m a y c h a n g e either w h a t was originally stipulated o r t h e w a y things a r e ordinarily d o n e . M. 9:4 He who leases a field from his fellow and did not want to weed it, and said [to the landlord], "What difference does it make to you? I'm going to give you the rental anyhow!"— they pay no attention to [his claim]. For the [landlord] has the right to say to him, "Tomorrow you're going to leave this field, and it's going to give me nothing but weeds!" M. 9:5 He who leases a field from his fellow, and it did not produce [a crop], if there was in it [nonetheless sufficient growth] to produce a heap [of grain], [the lessee] is liable to tend it. T. 9:13 He who leases a field from his fellow, and it did not produce a crop]. if there was in it [nonetheless, sufficient growth] to produce a heap of grain], he is liable to tend it [M. B.M. 9:5A-D]. For thus he writes in the lease: "I shall plough, sow, weed, cut, and make a pile [of grain] before you, and you will then come and take half of the grain and straw. And for my work and expenses I shall take half." And just as in the case of a field which is planted with seed, if there was in it sufficient growth to produce a heap of grain, one is liable to tend it, and if not, he is not liable to tend it, so in the case of an orchardfield, if there was in it sufficient produce to cover his expenses, he is liable to tend it. And if not, he is not liable to tend it. T. 9:14 H e who leases a field from his fellow harvests the crop, makes it into sheaves, and winnows. T h e measurers, the diggers, the bailiffs, and the town-clerks come and collect [their fees] from the common [stack of wheat, before the division of the crop between landlord and tenant]. T h e superintendent of the well, bath master, scribe, and the freight-ship captain, when they come as legal agents of the householder, collect their fee on the authority of the householder. When they come as legal agents of the tenant, they collect their fee on the authority of the tenant. And they do not vary from the accepted practice of the province T. 9:15 H e who leases a field from his fellow and died—[the landlord] may not say to his sons, "Give me what your father has consumed." And so they may not say to him, "Give us what father has produced." But they make an estimate [of what is owing to each party] and pay it. T. 9:16 H e who leases a field from his fellow, [il] he sowed it in the first year and the seed did not sprout, they force him to sow it a second

MAINTAINING THE SOCIAL ORDER

165

year. [If] he sowed it a second year and the seed did not sprout, they do not force him to sow it a third year [cf. M. B.M. 9:5], He who sells garden-seed to his fellow, in the case of seed which cannot be consumed, if he sowed it, and it did not sprout, he is liable to make it up. In the case of seed which can also be eaten, if he sowed it, and it did not sprout, he is not liable to make it up. But if he had made a stipulation with him to begin with that it was purchased for seed, he is liable to make it up. What does he have to pay over to him? T h e cost of the seed. And some say, "The entire expense of the farmer's outlay in planting the seed." 1. What is subject to dispute? T h e dispute, M . 9:4, is fully articulated, with t h e c o n t r a r y claims set forth. T h e landlord c a n require t h e t e n a n t n o t to p e r m i t his p r o p erty t o deteriorate. If the field p r o d u c e d even a negligible crop, the lessee m u s t t e n d t h e field. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e public interest requires t h e u p k e e p of fields, which m u s t n o t be neglected o r allowed to go to seed. Fields must b e t e n d e d even if the s h a r e - c r o p p e r c a n anticipate a negligible r e t u r n o n his labor. T h e s e a r e n o t subject to negotiation; t h e public interest intervenes. M. 9:6 He who leases a field from his fellow, and locusts ate it up, or it was blighted—if it is a disaster affecting the entire province, he may deduct [the damages] from his rental. If it is not a disaster affecting the entire province, he may not deduct it from his rental. M. 9:7 He who leases a field from his fellow [in return] for ten kors of wheat a year, [if the field was] smitten [and produced poor-quality grain], [the tenant] pays him off [from produce grown] in [the field]. [If] the grain which it produced was of good quality, he [has] not [got the right to] say to him, "lo, I'm going to buy [you grain] in the marketplace." But he pays him off [with produce grown] in [the field]. T. 9:17 He who leases a field from his fellow to plant trees in it -lo, this [lessor] takes upon himself responsibility for ten failures out of a hundred trees planted [and has no claim on the lessee]. [If there is] more than this, they assign to the lessee all [the loss]. 1. What is subject to dispute? T h e h o u s e h o l d e r claims t h e full rent, despite t h e locust-disaster, a n d the lessor denies t h e claim. If it affects t h e entire region, t h e lessee

166

CHAPTER THREE

n e e d n o t a b s o r b t h e loss. T h e householder-lessor is victim to p r e vailing c i r c u m s t a n c e . If that field in p a r t i c u l a r is affected, it is to t h e loss of the lessee. If the field p r o d u c e s p o o r quality grain, t h e t e n a n t pays the landlord's share in that grain; so too, if the crop was of good quality. T h e a g r e e m e n t is f o r a s h a r e of t h e c r o p of that field in particular. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e possibility of a general disaster is taken f o r g r a n t e d in such a n a g r e e m e n t , in which case, t h e o n e w h o lets o u t t h e field is affected along with e v e r y b o d y else. But t h e o n e w h o leases t h e field is responsible despite local calamities; these he took into account in leasing the field. S o too, t h e s h a r e - c r o p p e r h a n d s over t h e c r o p of the field, w h a t e v e r its quality; that represents t h e terms of the original agreement. M. 10:2 A house and an upper story belonging to two people— [if the floor of] the upper room was broken, and the householder does not want to repair it, lo, the owner of the upper story goes down and lives downstairs, until [the other] will repair the upper story for him. Y. 10:2 1.1 If the place on which the oven stood broke through [and the householder, living below, does not want to repair it], the tenant may move downstairs. If the place of the double-stove broke through, the tenant may do likewise. M. 10:3 A house and an upper story belonging to two people which fell down—[if] the resident of the upper story told the householder [of the lower story] to rebuild, but he does not want to rebuild, lo, the resident of the upper story rebuilds the lower story and lives there, until the other party compensates him for what he has spent. B.

1 0 : 3 1 . 2 / 1 1 7 b I F T H E O W N E R OF T H E L O W E R STORY [ O F T H E CONDOMIN!UM] WANTS T O CHANGE T H E BUILDING MATERIALS IN T H E HOUSE, FROM H E W N T O U N H E W N STONES, H E IS P E R M I T T E D T O D O SO; IF H E WANTS T O CHANGE FROM U N H E W N T O H E W N STONES, H E IS FORBIDDEN

[LITERALLY:

THEY LISTEN T O HIM, THEY D O N O T LISTEN T O HIM, AND SO T H R O U G H O U T ] ; IF H E WANTS T O C H A N G E FROM W H O L E BRICKS T O HALF BRICKS, H E IS P E R M I T T E D , FROM HALF T O W H O L E , H E IS FORBIDDEN; IF H E WANTS T O MAKE A CEILING OF C E D A R , H E IS P E R M I T T E D , O F SYCAMORE, H E IS F O R BIDDEN; IF H E WANTS T O C U T D O W N ON T H E NUMBER OF W I N D O W S , H E IS P E R M I T T E D , T O INCREASE T H E M , H E IS F O R B I D D E N ; IF H E WANTS T O E L E VATE T H E STORY, H E IS F O R B I D D E N , T O C U T I T D O W N IN H E I G H T , H E IS P E R M I T T E D . [ I F H E WISHES T O MAKE AN A L T E R A T I O N T H A T STRENGTHENS T H E L O W E R STORY AND ADS T O ITS W E I G H T , SO T H A T IT CAN BETTER BEAR T H E BURDEN O F T H E UPPER STORY, H E IS P E R M I T T E D . B U T H E MAY N O T

MAINTAINING THE SOCIAL ORDER

167

WEAKEN IT.] I F T H E O W N E R OF T H E UPPER STORY WANTS T O CHANGE FROM U N H E W N T O H E W N STONES, H E IS P E R M I T T E D , FROM H E W N T O U N H E W N , HE IS FORBIDDEN; T O HALF-BRICKS, H E IS F O R B I D D E N , T O W H O L E BRICKS, HE IS P E R M I T T E D ; IF HE WANTS T O MAKE A CEILING W I T H CEDARS, H E IS FORBIDDEN, W I T H SYCAMORES, H E IS PERMITTED; IF HE WANTS T O INCREASE T H E NUMBER OF W I N D O W S , HE IS PERMITI‫־‬ED; T O DIMINISH THEM, HE IS N O T PERMITTED; T O ELEVATE T H E UPPER STORY, H E IS N O T PERMITTED, T O C U T IT D O W N , H E IS P E R M I T T E D . [ H E MAY W E A K E N T H E UPPER P O R T I O N , LESS‫״‬ ENING T H E BURDEN ON T H E L O W E R , BUT MAY N O T STRENGTHEN IT AND SO INCREASE T H E W E I G H T ON T H E L O W E R P O R T I O N . ]

M. 10:4 And so too: An olive press which is built into a rock, and a garden is on top of it [on its roof, above], and [the roof] was broken—lo, the owner of the garden [has the right to] go down and sow the area below, until the other party will rebuild vaulting for his olive press. The wall or the tree which fell down into public domain and inflicted injury—[the owner] is exempt from having to pay compensation. [If] they gave him time to cut down the tree or to tear down the wall, and they fell down during that interval, [the owner] is exempt. [If they fell down] after that time, [the owner] is liable. T. 11:6 A. A person may bring dirt and pile it up at the door of his house in the public way to knead it into mortar. [But if it is] to keep it there, lo, this is prohibited. And if another party came along and was injured by it, lo , this person is liable. And he should not knead the mortar on one side and build on the other side. But he should knead on the side at which he builds. T. 11:7 [If] the wall fell down because of earthquakes or because of heavy rains, if it had been properly built, [the owner] is exempt [for damage it may do]. But if not, he is liable [cf. M. B.M. 10:4F-G], 1. What is subject to dispute? T h e h o u s e h o l d e r does n o t wish t o m a k e u p t h e loss of the r e n t e d r o o m o r g a r d e n . H e m u s t d o so, a n d until h e does, t h e t e n a n t m a y take over the available space. T h e householder is n o t responsible f o r claims resulting f r o m u n f o r e s e e a b l e accidents. But if h e is assigned responsibility t o r e m o v e t h e public nuisance, he b e c o m e s liable f o r d a m a g e it m a y d o after t h e deadline f o r removal. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e h o u s e h o l d e r h a s u n d e r t a k e n t o rent a space, a n d he must supply t h e space; t h e obligation is n o t negotiable. T h e upshot is t h e familiar principle, t h e original t e r m s of the c o n t r a c t m u s t b e h o n ored.

168

CHAPTER THREE

M. 10:5 He whose wall was near the garden of his fellow, and it was damaged [and fell down]—and [the owner of the garden] said to him, "Clear out your stones"' but the other said to him, "They're yours!"—they pay no attention to [the latter]. [But i f ] after the other party had accepted [the ownership of the stones] upon himself, [the original owner of the wall] said to him, "Here's what you laid out! Now I'll take mine!"—they do not pay attention to [the former]. He who hires a worker to work with him in chopped straw and stubble, and [the worker] said to him, "Pay me my wage," and [the employer] said to him, "Take what you've made for your wage!"—they do not pay attention to [the employer]. But [if,] after [the worker] had accepted [the proposition), [the employer] said to him, "Here's your salary, and now I'll take mine!"—they do not pay attention to [the employer]. T. 11:8 A person may take out his manure and pile it up at the door of his house in the public way—[if this is] to take it out to manure with it. [But if it was] to keep it there, lo, this prohibited. If another party came along and was injured by it, [the owner] is liable. 1. What is subject to dispute? T h e h o u s e h o l d e r h a s t h e obligation t o clear a w a y t h e stones of his wall that have caused d a m a g e t o t h e n e i g h b o r . H e c a n n o t simply assign o w n e r s h i p of the stones t o t h e o t h e r . But if the o t h e r p a r t y concurred, he is n o w owner of the stones, a n d the householder cannot r e n e g e o n t h e a g r e e m e n t . S o t o o , a w o r k e r m u s t b e p a i d in t h e c o n v e n t i o n a l m a n n e r . H e c a n n o t b e p a i d in kind. If he agrees, t h e h o u s e h o l d e r c a n n o t go back o n his w o r d . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e h o u s e h o l d e r b e a r s fixed obligations u n d e r t h e law. T h e s e a p ply w h e t h e r stipulated o r not. O n e c a n n o t c h a n g e t h e t e r m s of the social c o m p a c t . But if the o t h e r p a r t y h a s a g r e e d t o t h e proposal, it is a valid a n d e n f o r c e a b l e c o n t r a c t .

III. Baba Batra B a b a Batra begins in t h e m i d d l e of B a b a M e s i a ' s c o n c l u d i n g topical unit, t h e rules g o v e r n i n g j o i n t holders of a p r o p e r t y . It p r o c e e d s to f u r t h e r licit real estate transactions: n o t infringing t h e p r o p e r t y

MAINTAINING THE SOCIAL ORDER

169

rights of others, establishing title through usucaption, transferring real estate a n d movables through sale. T h e next m a j o r section turns to licit commercial transactions and unstated stipulations in c o m m e r cial transactions. T h e final unit turns to inheritances and wills and other commercial documents. In its topical exposition, therefore, Baba Mesia flows uninterruptedly into Baba Batra, and, it follows, the issue of whether a n d how intentionality plays a role requires attention. But why cut off the discussion of a topic, such as is done in the break f r o m Baba Mesia C h a p t e r T e n to Baba Batra C h a p t e r O n e ? If not topical, the break then must derive f r o m some other consideration. Since, we noted, the concluding third of Baba Mesia takes u p situations in which intentionality m a y or m a y not enter into the adjudication of a case, it becomes relevant to observe that in the opening unit of Baba Batra, intentionality plays no role at all. T h a t is to say, joint holders enjoy certain rights in c o m m o n , and how they personally wish to arrange matters has no bearing. T h e same point repeats itself throughout Baba Batra: the established custom overrides intentionality; the right of the c o m m u n i t y overrides even agreements a m o n g individuals; the rights of the other must be respected. If we wish to make the point that certain considerations override intentionality, there is, moreover, no m o r e effective way of making such a statement than to say, even where the owner of a property has not a b a n d o n e d the hope of recovering the p r o p e r t y — e v e n w h e n despair has not nullified his titie—he m a y still lose the property. His neglect of his rights speaks for itself and overrides his intentionality toward the property; actions here set aside attitude. T h a t comes about when the owner neglects the property, so, by his action, indicates disinterest in the property. T h e insistence throughout Baba Batra on the irrelevance of individual intentionality, let alone idiosyncrasy, is marked. For example, the private intention of the purchaser is null, if c o m m o n usage is violated. T h e buyer m a y say that he assumed the sale of property encompassed various movables, that claim is null. People c o n f o r m to customary usage, including language, and cannot invent their own conditions of sale. T h e law does not take account of private intentionality. T h a t same m a t t e r carries us forward to cases in which unstated stipulations govern when all parties share the same general view; so far as nullifying a transaction, the reasonable expectations of each party are taken into account in accord with a comm o n law. W h e n it comes to inheritances, there is a way for one's

170

CHAPTER THREE

intentionality to prevail, a n d that is t h r o u g h a n act of d o n a t i o n (gift); b u t w h e n it c o m e s t o t r a n s f e r r i n g p r o p e r t y t h r o u g h t h e right of inheritance, then t h e T o r a h ' s law takes over, a n d personal intentionality—which w e should have placed at t h e very c e n t e r of dividing a n estate—is null. So, seen f r o m this perspective, t h e entire set of rules f o r m s a sustained essay o n w h e r e a n d h o w intentionality gives w a y b e f o r e established p r o c e d u r e s a n d usages. A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M. 1:2 ...in a place in which it is customary to build a fence, they require [a recalcitrant owner] to do so. But in a valley, in a place in which it is not customary to build a fence, they do not require him to do so. But if he wants, he may withdraw inside his own portion [of the property] and build it. And he places the facing of the wall outside of [the fence] [on the side of the neighbor, indicating his ownership]. Therefore, if the wall should fall down, the location [on which it had stood] and the stones are his. If they had made it with the consent of both parties, they build the wall in the middle. They place the facing of the wall on this side and on that side. Therefore, if the fence should fall down, the location [on which it had stood] and the stones belong to both parties. Y. 1:3 [1:1 In the case of a garden [vegetable patch], whether it is a place in which it is customary to build a fence [cf. M. 1:2Β], or whether it is a place in which it is not customary to build a fence, they force [a recalcitrant owner to build a fence if the partner so desires]. But as to a valley, in a place in which it is eustomary to build a fence, they force [the recalcitrant partner to build a fence], while in a place in which it is not customary to build a fence, they do not force [him to participate in the project], M. 1:3 He whose [land] surrounds that of his fellow on three sides, and who made a fence on the first, second, and third sides—they do not require [the other party to share in the expense of building the walls]. M. 1:4 The wall of a courtyard which fell down—they require [each partner in the courtyard] to [help] build it up to a height of four cubits. [Each one is] assumed to have given, until one brings proof that the other has not contributed to the cost. [If the fence was built] four cubits and higher, they do not require [a joint holder in the courtyard to contribute to the expenses]. [If the one who did not contribute] built another wall near [the restored one] [planning to roof over the intervening space], even though he did not [actually] put a roof on it, they assign him [his share in the cost of the]

MAINTAINING THE SOCIAL ORDER

171

whole [other wall]. [He is now] assumed not to have contributed to the cost, until he brings proof that he has contributed to the cost. T. B.M. 11:4 [If] the ruined building of one party stood alongside the vegetable patch of his fellow and [the latter] went and built a fence [for his] patch, they assign to [the owner of the ruined building his share in] the cost fully in accord with the manner in which [the gardener] has built up the wall. If the ruin was alongside the courtyard of his fellow, even though the owner of the ruin, when he went to rebuild his house, did not put the beam on that side of the building, they assign the owner of the ruin his share in the outlay for the wall when he rebuilds his house. If the building of one party was above the courtyard of his fellow, the owner of the upper building may not say to the owner of the lower, when they build a wall between their houses, "Lo, I am going to provide plaster with him only from the level of my courtyard and above it." But he supplies plaster with him from below to above the entire height of the common wall. If the building lay wholly above the roof of another one, the owner of the higher building in no way is obligated to share in the costs of a wall between his building and the one below. T. B.M. 11:22 T h e people who live in a common courtyard have the power to force one another to build for the courtyard a roof ten handbreadths high [cf. M. B.B. 1:4]. [If] one is assumed to have given, they accept his claim not to lay the beam [on his wall]. [If] he is assumed not to have given, they do not accept his claim to lay the beam [on his wall], 1. What is subject to dispute? Local custom prevails, M . 1:2. But t h e individual h a s t h e right to act o n his own, within his o w n p r o p e r t y . Does t h e n e i g h b o r o n t h e f o u r t h side h a v e to share t h e cost of building t h e walls f r o m which he benefits? N o , he m a y reject t h e claim of the o t h e r party, M . 1:3, even t h o u g h he benefits f r o m t h e o t h e r ' s fence. It is optional. Since the courtyard must have a wall, every p a r t n e r m a y be forced to c o n t r i b u t e to building a n d m a i n t a i n i n g it. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e H a l a k h a h balances t h e claim of the p a r t n e r s h i p of householders t o provide f o r t h e c o m m o n good with t h e right of the individual to m a n a g e his o w n p r o p e r t y . As before, local c u s t o m prevails. But that custom m a y encompass the obligation of all householders to p a y their fair share of facilities benefiting t h e g r o u p as a whole. M. 1:5 They force [a joint holder in the courtyard to contrib-

172

T.

T.

T.

T. T.

T.

CHAPTER THREE

ute to] the building of a gatehouse and a door for the courtyard. They force [each joint holder to contribute to] the building of a wall, gates, and a bolt for the town. How long must one be in a town to be deemed equivalent to all other townsfolk? Twelve months. [If] one has purchased a permanent residence, lo, he is equivalent to all the other townsfolk forthwith. B.M. 11:17 He who has a dwelling in another courtyard—the others who dwell in that courtyard may require him to share with them in the costs of making a door, bolt, and lock for the courtyard. But as to any other requirements of the courtyard, they are not able to impose upon him the requirement to share in the cost. But if he would dwell with them in that same courtyard they do have the power to impose upon him a share [of the cost] of all which is required for the common upkeep of the courtyard. B.M. 11:18 People who live in a common courtyard may force one another to share in the cost of making a sidepost and crossbeam for an alleyway [for a commingling of the property for carrying on the Sabbath]. People who share a common valley have the power to force one another to share in the cost of making a trench and a rut. B.M. 11:23 T h e townspeople have the power to require one another to build a synagogue, and to buy a scroll of the Torah and prophets. And the townspeople have the power to stipulate concerning prices, measures, and wages of workers. They have the power to define their stipulations. They have the power to say, "Whoever will be seen with so-and-so will have to pay such-and-so [a fine]." And, "whoever will be seen with the ruling power will have to pay such-and-such [a fine]." And, "whoever lets his cow pasture in the crops [of others] will have to pay such-and-such." They have the power to define their stipulation. B.M. 11:24 The wool-weavers and dyers have the power to say, "Any order which comes to town—all of us will share in it." B.M. 11:25 The bakers have the right to make an agreement on weights and measures among themselves. T h e ass-drivers have the right to declare, "Whose-so-ever ass dies—we shall provide another ass for him." [If] the ass died through flagrant neglect, they do not have to provide the owner with another ass. [If] the ass died not through flagrant neglect, they do have to provide him with another ass. And if he said, "Give me the money, and I shall buy it for myself," they pay no attention to him. But they purchase an ass for him and give it to him. B.M. 11:26 T h e ship-masters have the right to declare, "Whoseoever , s ship is lost—we shall provide him with another ship." [If] it was lost through flagrant neglect, they do not have to provide him with another ship. [If it was lost] not through flagrant neglect, they do have to provide him with another ship. But if he set sail for a place to which people do not [prudently] set sail, they do not have to provide him with another ship [if he loses his on the perilous voyage].

MAINTAINING THE SOCIAL ORDER

173

T. B.M. 11:27 He who was a bath attendant for the community or a barber for the community, or a baker for the community, and he is the only one of his profession there, and the time of the festival came, and he wants to go to his home—[the other residents of the community] have the power to stop him, unless he sets up for someone else in his place. But if he had made a stipulation in court with them, or if they had done wrong to him, he has the right to do so. T. B.M. 11:28 He who plants a tree for the community—one [has the right to] gather the produce and eat it, or to gather the produce and take it into his home. But he should not gather the produce and turn it into dried fruit, or gather the produce and turn it into pressed fruit. For to begin with he planted it only on that condition, for travelers to gather and eat the produce. And it is prohibited for [a traveler] to bring in the produce into his home. T. B.M. 11:29 He who digs a cistern for the community—one may fill his bucket and drink the water, fill his bucket and bring it home. But he should not fill his bucket and provide water in the market place, or fill his bucket and sell water in the market place. T. B.M. 11:30 Wool-dealers and dyers draw water for drinking, and they do not draw water for commercial purposes. And bakers and tavernkeepers do not draw water for commercial purposes. The measurers, diggers, and bailiffs draw water for drinking and do not draw water for use. But they pickle pickles in the shop, and they rinse bundles of vegetables for travelers. One draws water and drinks it. But he is prohibited from bringing it home. If workers were working with him, he should not draw water and provide them with it. But each one goes and drinks on his own. T. B.M. 11:31 He who makes a cave of water for public use—one washes his hands, face, and feet. [If] his feet were dirty with mud or excrement, it is prohibited. In the case of a cistern or a trench, one way or the other, it is prohibited. T. B.M. 11:32 He who goes into a bathhouse—they warm the cold water for him, or cool the warm water. He shampoos his hair in niter or in urine even though he makes a mess for those who come after him. For it was on this stipulation that Joshua caused the Israelites to inherit the land. T. B.M. 11:33 A spring belonging to the townsfolk—[when there are waiting to draw water] they and others [outsiders], they come before others. [When there are] others and their cattle, the others take some first, before their cattle. T. B.M. 11:34 [When there are] their cattle and the cattle of others, their cattle come before the cattle of others. T. B.M. 11:35 [When there are] others and their own laundry [to be done], [the needs of] the others come before the doing of their laundry. When there is] their laundry and the laundry of others to be done, their laundry comes before the laundry of others. T. B.M. 11:37 [When there are] the cattle of others and their [own]

174

CHAPTER THREE

laundry [in line for water], the cattle of others comes before their laundry. [If] their irrigation-ditches and the cattle of others [are to draw water], their irrigation ditches come before the watering of the cattle of others. And all of them are taken into account at the end. 1. What is subject to dispute? T h e s a m e issue is carried f o r w a r d : all parties benefit f r o m t h e facilities, so each must contribute. T h e Tosefta, which is particularly rich here, extends t h e application of the principle, e.g., at T . B.M. 11:2326, which allows f o r guilds t o control their o w n prices a n d o u t p u t . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e necessities of the c o m m u n i t y , o r its subdivisions, take priority over t h e individual's predilections. W h e r e t h e public interest intervenes, t h e c o m m u n i t y imposes its will o n t h e individual householder. M. 2:2 A person should not set up an oven in a room, unless there is a space of four cubits above it. [If] he was setting it up in the upper story, there has to be a layer of plaster under it three handbreadths thick, and in the case of a stove, a handbreadth thick. And if it did damage, [the owner of the oven] has to pay for the damage. M. 2:3 A person should not open a bake shop or a dyer's shop under the granary of his fellow, nor a cattle stall. To be sure, in the case of wine they permitted doing so, but not [building] a cattle stall [under the wine cellar]. As to a shop in the courtyard, a person may object and tell [the shopkeeper], "I cannot sleep because of the noise of people coming in and the noise of people going out." One may [however] make utensils [and] go out and sell them in the market. Truly one has not got the power to object and to say, "I cannot sleep because of the noise of the hammer, the noise of the millstones, or the noise of the children." T. B.M. 11:16 People who live in the same alleyway may force one another not to set up among them a tailor-shop or a tannery or any sort of crafts-man's shop. But they are not able to prevent a neighbor from doing so. T.

1:4 A man should not urinate against the wall of his fellow unless he kept [the urine] three handbreadths away from bricks, and a handbreadth away from stones. And in the case of what is cold, lo, this is permitted. T o be sure, in the case of wine, they permitted doing so, but not a cattle stall [M. B.B. 2:3C-D], And even though he limits him, it is only to improve its [the property's] value. If the [bake or dyer's] shop or cattle-stall was there before the storehouse [M. B.B. 2:3A], one has not got the power to stop him and to say, "I cannot

MAINTAINING THE SOCIAL ORDER

175

sleep because of the noise of the hammer or because of the bad smell or because of the noise of the children" [M. B.B. 2:3H], As to one's neighbor [however], they may not force him [to desist from annoying practices]. [If] one has a store in the public domain, and he wants to open a door for it into the courtyard [in which he lives], the jointholders [of the courtyard] have the power to stop him, because he increases traffic for them. [If] he has a house in the courtyard as one of the joint-holders, and he wants to divide it up and to teach children in it, [the joint-holders of the courtyard] have the power to stop him, because he increases traffic for them. [If] he owns a roof in the public domain and he wants to build on it an upper story to open out into the courtyard, [the other joint-holders] have the power to stop him, because he increases traffic for them. What should he do instead? He makes a staircase and opens it up into his own house. Y. 2:31.3 7/ was taught: But [if he wanted to rent the store or the stall] to his neighbor, once he has accepted the agreement, he has not got the power to retract. [That is, once one such shop is accepted by the others in the court, they cannot object to someone else's running the same sort of shop] 1. What is subject to dispute? O n e c a n n o t m a i n t a i n a public nuisance, a n d w h e r e there is a dispute (e.g., because of the noise or the traffic), the intrusive party gives way. 2. How does the system resolve the conflict in line with the systemic interest that is in play? H e r e again, t h e public good overrides private interest. All parties have rights t o t h e c o m m o n facilities, a n d n o o n e c a n a b r i d g e t h e e n j o y m e n t of others. But if a n established custom o r facility causes discomfort to n e w c o m e r s , t h e system favors t h e status q u o . M. 3:1 [Title by] usucaption of (1) houses, (2) cisterns, (3) trenches, (4) caves, (5) dovecotes, (6) bathhouses, (7) olive presses, (8) irrigated fields, (9) slaves, and anything which continually produces a yield—title by usucaption applying to them is three years, from day to day [that is, three full years]. A field which relies on rain—[title by] usucaption for it is three years, not from day to day. M. 3:3 Any act of usucaption [along] with which [there] is no claim [on the property being utilized] is no act of securing title through usucaption. How so? [If] he said to him, "What are you doing on my property," and the other party answered him, "But no one ever said a thing to me!"—This is no act of securing title through usucaption. [If he answered,] "For you sold it to me," "You gave it to me as a gift," "Your father sold it to me," "Your father gave it to

176

T.

T.

T.

T.

T.

CHAPTER THREE

me as a gift'5—Lo, this is a valid act of securing tide through usucaption. He who holds possession because of an inheritance [from the previous owner] requires no further claim [in his own behalf]. (1) Craftsmen, partners, sharecroppers, and trustees are not able to secure title through usucaption. (2) A husband has no claim of usucaption in his wife's property, (3) nor does a wife have a claim of usucaption in her husband's property, (4) nor a father in his son's property, (5) nor a son in his father's property. Under what circumstances? In the case of one who effects possession through usucaption. But in the case of one who gives a gift, or of brothers who divide an estate, and of one who seizes the property of a proselyte, [if ] one has locked up, walled in, or broken down in any measure at all—Lo, this constitutes securing a claim through usucaption. 2:2. He who purchases a field from another purchaser—even though the original purchaser says, "It is stolen by me," he has not got the power to destroy the right of this one. He who enjoys the usufruct of a field by reason of a deed, and it turns out that his deed is invalid— Lo , this does not constitute valid securing of title through usucaption. 2:3 He who enjoys the usufruct of a field in the assumption that it belongs to him, and [someone else] produced a writ against him that he had sold it to him, or that he had given it to him as a gift—let the writ be confirmed through its signatories [cf. M. B.B. 3:3F], If he claimed, "I wrote this document, but I did not receive the money,' ‫י‬ "It is a fraudulent writ which is in your possession"—everything follows usucaption. 2:4 He who enjoys the usufruct of a field for six years, and [the other party] complained against him for the first three years [of his usucaption]—and at the end, the holder of the field said to him, "But you yourself sold it to me," "You yourself gave it to me as a gift"—[M. B.B. 3:3F] if it is by reason of his original complaint, he has not secured title through usucaption. For any claim, part of which is nullified, is deemed to be wholly nullified. 2:5 Under what circumstances have they ruled, "A share-cropper is given an oath when he is not subject to a claim"? So long as he is a sharecropper. When a share-cropper leaves his status as share-cropper of this field, lo, he is like anybody else. A guardian—when a guardian leaves his status as guardian, he is like anybody else. A son who took his share in his father's estate [cf. M. B.B. 3:3M]—a wornan who was divorced [cf. M. B.B. 3:3K]—Lo , they are like everybody else. Those who accept bailments, shepherds, and a hired hand are not able to effect title through usucaption [of the field on which they work or for which they bear responsibility]. 2:6 Craftsmen are not able to effect title through usucaption [M. B.B. 3:31], How so? [If] one saw his utensils at a laundry-man's shop, or his slave at a crafts-man's shop, [if the laundryman or the craftsman] said to him, "You sold them to me," or, "You gave them to me as a

MAINTAINING THE SOCIAL ORDER

177

gift" [cf. M. B.B. 3:3F], it is not a valid claim of title through usucaption. [If he said], "You told me to sell them," or, "You told me to give them away as a gift," Lo , this constitutes a valid claim of effecting title through usucaption. T. 2:11 One who seizes the property of a proselyte, and has locked up, walled in, or broken down in any measure at all—lo, this constitutes securing a claim through usucaption [M. B.B. 3:3S-U], [If] one party has locked up, and another party has walled in, lo, this constitutes securing a claim through usucaption. [If] two people have locked up or walled in, lo, this constitutes securing a claim through usucaption. [If the proselyte] had ten fields, once one has secured a title through usucaption to one of them, he has secured a title through usucaption to all of them. [If the proselyte had] ten slaves, even though one has secured title through usucaption to one of them, he has not secured title through usucaption to all of them. [If he had] utensils and slaves, [if] one has made acquisition of the utensils, he has not made acquisition of the slaves. [If he has made acquisition] of the slaves, he has not made acquisition of the utensils. [If he had] utensils and real estäte, [if] one has made acquisition of the utensils, he has not made acquisition of the real estate. [If he has] made acquisition of the real estate, he has not made acquisition of the utensils. [If he had] slaves and real estate, [if] one has made acquisition of the slaves, he has made acquisition of the real estate. [If he has made acquisition of] the real estate, he has not made acquisition of the slaves. T. 2:12 [If] one has purchased from another party ten fields, as soon as he has acquired title through usucaption to one of them, he has acquired title through usucaption to all of them. [If] he leased from him ten fields, as soon as he has acquired title through usucaption to one of them, he has acquired title through usucaption to all of them. [If he acquired] ten slaves, even though he has acquired title through usucaption to one of them, he has not acquired title through usucaption to all of them [If] he purchased part and rented part and acquired title [of part] through usucaption, whether this involves the portion which is acquired through purchase or the portion which is acquired through rental, Lo , this constitutes a valid act of securing title through usucaption. T. 2:13 Movable property is acquired along with real estate through an exchange of money, a document, and usucaption. How so? [If] one said to him, "The courtyard and everything which is in it do I sell to you," once [the purchaser] has written the document, [the seller] has received the money, and [the purchaser] has effected usucaption of one of [the objects in the courtyard], he has acquired title through usucaption to all of them. [If one has] a place for setting up an oven or a double-stove in a courtyard, these are not a valid mode of securing title through usucaption [M. B.B. 3:5B], [If] one has a beam [setting] on them in any measure at all, Lo , this constitutes a valid act of securing title through usucaption. [Merely keeping] chickens in a courtyard is not a valid mode of securing title through usucaption. [If]

178

CHAPTER THREE

one made a roof for them ten handbreadths high, Lo, this is a valid means of securing title through usucaption. A gutter-spout does not [impart title through] usucaption, but the place on which it discharges is subject to securing of title through usucaption [M. B.B. 3:6A]. [Having] a doorway in a courtyard, even though one has stopped it up—this is a valid means of securing title through usucaption. [If] one has broken down the sideposts, this is not a valid means of securing title through usucaption. 1. What is subject to dispute? T h e squatter's claim is spelled o u t at M . 3:1: three years of undisr u p t e d u s u c a p t i o n of the p r o p e r t y , j o i n e d to a claim of legitimacy. It is contested b y t h e original o w n e r , as outlined in M . 3:3. M e r e utilization of the p r o p e r t y does n o t suffice. T h e squatter must be able to allege n o t merely u n i n t e r r u p t e d utilization b u t a valid claim, e.g., of sale, gift o r t h e like. But this applies only to real p r o p e r t y . W h e r e the claim would n o t likely b e contested, e.g., a claim of u s u c a p t i o n by a h u s b a n d , p a r t n e r , a s h a r e c r o p p e r , o r a trustee, there t h e claim is null. So a claim of o w n e r s h i p via u s u c a p t i o n is a dispute over t h e basis of l a n d - o w n e r s h i p n o t all that different f r o m a claim of acquisition t h r o u g h gift o r p u r c h a s e . W e note, also, that u s u c a p t i o n c a n take effect over movables, e.g., clothing o r o t h e r objects held b y a c r a f t s m a n , T . 2:6, T . 2:13. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e systemic interest does n o t favor p r o m i s c u o u s claims of acquisition of title t h r o u g h u s u c a p t i o n , a n d that is w h y t h e most i m p o r t a n t detail, expressive of the systemic interest, is that there must be a valid basis f o r t h e claim, a n d n o t only use of the p r o p e r t y f o r t h e requisite three years. W i t h such a claim in h a n d , u n i n t e r r u p t e d u s u c a p tion b e a r s a solid claim. M. 3:4 [If] two were testifying for another party that he has enjoyed the usufruct of the property for three years, and they turn out to be false witnesses, they must pay to [the original owner] full restitution (Deut. 19:19). [If] two witnesses [testify] concerning the first year, two concerning the second, and two concerning the third—They divide up [the costs of restitution] among themselves. Three brothers, and another party joins together with [each of] them—lo, these constitute three distinct acts of testimony, and they count as a single act of witness when the evidence is proved false. T. 2:7 [Title by] usucaption is secured in three years [of usufruct]. [If]

MAINTAINING THE SOCIAL ORDER

T.

T.

M.

M.

179

the father effected usucaption for one year and the son for two years, the father for two years and the son for one year, Lo , this constitutes a valid act of securing title by usucaption. [If] the father [effected usucaption] for one year, the son for one year, and a purchaser [from the father and son] for one year, Lo, this constitutes a valid act of securing title by usucaption. 2:8 [If a squatter] held the property in usucaption in the presence of the father [the original owner] for one year and in the presence of the son for two years, the father for two years and the son for one year, Lo, this constitutes a valid act of securing title by usucaption. [If one held the property in usucaption in the presence of] the father for one year, the son for one year, and a purchaser for one year, Lo, this constitutes a valid act of securing title by usucaption. 2:9 [If] one held a field in usucaption in the presence of two for one year, in the presence of two in the second year, and in the presence of two in the third year, Lo, these constitute three distinct acts of testimony, and they count as a single act of witness when the evidence is proved false [M. B.B. 3:4G-H], [If] the testimony of the first group proved false, lo, one has in his possession [valid evidence about] two years. [If] the second group proved false, lo, he has in his possession [valid evidence about] one year. [If] the third group proved false, he has nothing whatever in hand. [If] the first group and the last group are the same, and they turn out to be false witnesses, [if] the testimony which turned out to be false concerned the first year, he has nothing at all in hand. [If it concerned] the second [year] lo, he has [valid evidence about ] one year in hand. [If it concerned] the third [year], lo, he has [valid evidence about] two years in hand. 3:5 What are [usages] that are effective in the securing of title through usucaption, and what are [usages] that are not effective in the securing of title through usucaption? [If] one put (1) cattle in a courtyard, (2) an oven, (3) double stove, (4) millstone, (5) raised chickens, or (6) put his manure, in a courtyard—this is not an effective mode of securing title through usucaption. But [If] (1) he made a partition for his beast ten handbreadths high, and so, too, (2) for an oven; so, too, (3) for a double stove; so, too, (4) for a millstone— [If] (5) he brought his chickens into the house, or (6) made a place for his manure three handbreadths deep or three handbreadths high—Lo, this is an effective mode of securing title through usucaption. 3:6 The right to place a gutter spout does not [impart title through] usucaption [so that the spout still may be moved], but the place on which it discharges does impart title through usucaption [so that the place must be left for its present purpose]. A gutter does [impart title through] usucaption. An Egyptian ladder does not [impart title through] usucaption, but a Tyrian ladder does [impart title through] usucaption. An Egyptian window does not [impart title

180

CHAPTER THREE

through] usucaption, but a Tyrian window does [impart tide through] usucaption. What is an Egyptian window? Any through which the head of a human being cannot squeeze. A projection [if it extends] a handbreadth [or more] does [impart title through] usucaption, and concomitandy,] one has the power to protest [its being made]. [If it projects] less than a handbreadth, it is not subject to [imparting titie through] usucaption, and one has not got the power to protest [its being made]. M. 3:7 A person should not open his windows into the courtyard of which he is one of the joint-holders. [If] he purchased a house in another courtyard [which adjoins the one in which he is living], he may not make an opening into the courtyard of which he is one of the joint-holders. [If] he built an upper story on his house, he should not make an opening for it into a courtyard of which he is one of the jointholders. But if he wanted, he may build a [new] room inside of his house, or he builds an upper story on top of his house, and he makes an opening for it into his house. One should not open up in a courtyard of which he is one of the joint-holders a doorway opposite the doorway [of another resident], or a window opposite [another's] window. [If] it was small, he should not enlarge it. [If it was] a single one, he should not make it into two. But he may open into the public domain a doorway opposite [another's] doorway [in the public domain], or a window opposite [another's] window [in the public domain]. If it was small, he may enlarge it. If it was a single one, he may make it into two. T. 2:15 [If] one has built a bathhouse next door to the bathhouse of his fellow, or a store next to the store of his fellow, [the owner of the bathhouse or store next door] cannot prevent him [from doing so], saying to him, "You have brought ruin on me." For the former may say to him, "Just as you do on your property, so I [have every right to] do on mine." [If] one's rain-water was pouring off the roof of his fellow, and the latter went and stopped it up, one has the right to prevent him from doing so, unless he knows in which direction he is going to lead it down. [If] the public way or a stream passed through one's field, and one went and fenced off [the road or the stream]— [so that now] people cross the field of his fellow, the latter has not got the power to stop him, and to say to him, "You have brought ruin on me." For the other party may say to him, "Just as I do on my property, so you have every right to do on yours." T. 2:16 [If] one owns a cistern in the courtyard of his fellow and lo, the owner of the courtyard wants to dig another cistern for his own use, one has the power to stop him. But he may not make it into a well for the public, or into an immersion pool for the public. And he may not draw water and water [his beasts], [or] draw water and sell it. But he

MAINTAINING THE SOCIAL ORDER

181

may draw water and water his cattle in the market place, draw water and sell it in the market place. 1. What is subject to dispute? T h e dispute concerns how testimony is c o n j o i n e d in connection with a claim of ownership t h r o u g h usucaption. T h e kind of activities that signify ownership, M . 3:5, include c h a n g i n g t h e physical condition of the p r o p e r t y o r d o i n g deeds o n t h e p r o p e r t y that only a n o w n e r does. T h o s e that d o n o t signify u s u c a p t i o n , M . 3:6, a r e t e m p o r a r y or superficial. 2. How does the system resolve the conflict in line with the systemic interest that is in play? Usucaption properly established prevents the disruption of established relationships, e.g., M . 3:7: o n e m a y n o t c h a n g e t h e conditions of holding a property in such wise that other joint-Oholders a r e affected. M. 5:6 There are four rules in the case of those who sell: [If] one has sold good wheat and it turns out to be bad, the purchaser has the power to retract. [If one has sold] bad wheat and it turns out to be good, the seller has the power to retract. [If he has claimed to sell] bad wheat, and it turns out to be bad, [or if he claimed to sell] good wheat and it turns out to be good, neither one of them has the power to retract. [If one sold it as] (1) dark-colored, and it turns out to be white, white, and it turned out to be dark, (2) olive wood, and it turned out to be sycamore [wood], sycamore wood, and it turned out to be olive wood, (3) wine, and it turned out to be vinegar, vinegar, and it turned out to be wine, both parties have the power to retract. T. 5:1 There are four rules in the case of those who sell [M. B.B. 5:6A], Under what circumstances? In the case of [the use of] a measure which does not belong to either one of them. But in the case of a measure which belonged to one of them, as soon as the first party [has made acquisition], he has acquired [the item in the sale, and there can be no retraction]. Under what circumstances? [When the transaction takes place] in the public domain, or in a courtyard which does not belong to either one of them. But if the transaction takes place in the domain of the purchaser once he has accepted [the deal], lo, this one has made acquisition. [And if it took place] in the domain of the seller, [unless the purchaser] will lift up [the object] or unless he will remove it from the domain of the owner, [the transaction is not final]. [If it was] in the domain of this party with whom the objects for sale had been left

182

CHAPTER THREE

as a bailment, the sale is not complete until he will agree or until he will rent him the place in which the bailment is located]. 1. What is subject to dispute? T h e dispute c o n c e r n s t h e quality of w h e a t t h a t t h e h o u s e h o l d e r h a s sold, with special r e f e r e n c e to w h o h a s t h e right to retract. If t h e h o u s e h o l d e r claimed t h e w h e a t was of g o o d quality a n d it t u r n s o u t b a d , t h e p u r c h a s e r withdraws; if contrariwise, t h e seller. If the seller h a s claimed t o sell precisely w h a t h a s b e e n sold a n d t h e b u y e r p a i d f o r t h a t , t h e n t h e deal is final. 2. How does the system resolve the conflict in line with the systemic interest that is in play? A transaction b e c o m e s p e r m a n e n t only w h e n b o t h parties a r e satisfied that they have b e e n t r e a t e d fairly, in a c c o r d with t h e intent of e a c h . T h e conflict over w h o c a n cancel t h e sale is resolved b y a p peal to t h e facts of t h e t r a n s a c t i o n a n d to t h e p r e s u m p t i o n of t h e will of e a c h p a r t i c i p a n t . T h a t is w h y t h e final c a s e — d a r k / w h i t e , o l i v e / s y c a m o r e — y i e l d s a n a m b i g u o u s result. T h e systemic interest r e m a i n s constant: t o establish rules that work o n their o w n t o resolve conflicts, without a n adversary proceeding. I n rules such as this, the H a l a k h a h provides f o r resolving conflict without c o n f r o n t a t i o n . M. 6:3 He who sells wine to his fellow that went sour, is not liable to make it up. But if it was known that his wine would turn sour, lo, this is deemed a purchase made in error [and null]. And if he had said to him, "I'm selling you spiced wine,'5 he is liable to guarantee it [and make it up if it goes sour] up to Pentecost. [If he said it is] old [wine, it must be] last year's. [If he said it is] vintage old [it must be] from the year before last. T. 6:5 He who sells wine to his fellow without further specification is liable to make it up [if it goes sour] up to Passover. [If it is] spiced [wine], he is liable to make it up [if it goes sour] until Pentecost [M. B.B. 6:3D], If he said it was] vintage wine, he is liable to make it up, [if it goes sour] up to the Festival [Tabernacles] [M. B.B. 6:3Fj. T. 6:7. "A jug of wine I sell you"—he must give him good wine. "A jug of this wine I sell you"•—he gives him wine which is acceptable in a store. "This jug I am selling to you"—even if it is vinegar, it belongs to [the purchaser, who cannot retract]. T. 6:9 "A hundred jugs of wine I am selling to you"—he hands over to him wine as good as the average wine which is sold in that shop. "These hundred jugs I am selling to you"—even if it is vinegar, it belongs to [the purchaser, who cannot retract].

MAINTAINING THE SOCIAL ORDER

183

T. 6:11 [If] rain falls on the wine-presses, if it is a public calamity, he does not have to inform him [that the wine is watered down]. If it is not a public calamity, he does have to inform him. T. 6:12 [If] he purchased from him logs, half-logs, quarter-logs, or eighthlogs [of the aforesaid] wine, he should not give it as drink to ass-drivers, workers or anyone who has a claim on him for nourishment unless he so informed them. T. 6:13 [If] he was going to a house of mourning or a house of rejoicing, and he had in hand a flagon of wine which was shaking about he should not fill it up with water, because he deceives him. But if there was an assembly in the town, it is permitted. T. 6:15 A person should not send to his fellow a j a r of water, and put oil on at the mouth of it, because of the danger [involved in doing so], T. 6:16 He who purchases utensils to send to the house of his father-inlaw, and who said, "If they are accepted by him, lo, I'll pay you what they cost, and if not, lo, I'll pay you such-and-so," if they were taken from him when he was on his way, he is liable. [If it was when he was] on his way back, he is exempt, because he now is in the status of a paid bailiff. T. 6:18 "An orchard I am selling you"—even if there is not a single tree in it, it belongs [to the purchaser], for he sold it to him only by its name. "A vineyard I am selling to you"—even if there is not a single vine in it, it belongs [to the purchaser], for he sold it to him only by its name. "A kor of ground I am selling to you,"—whether it is twenty or forty seahs [in size], it belongs [to the purchaser], for he referred to it only by its name. T. 6:19 "A kor of ground surrounded by a fence I am selling to you"— whether it is twenty or forty sea's in size, it belongs [to the purchaser], for he has [a right] only to the area surrounded by the fence. T. 6:20 They do not collect from indentured property [a debt incurred] for consummation of produce, for the good order of the world. How so? [If] he purchased a field from him and consumed its produce, and lo, [the field] leaves his possession—[the original owner] collects the principal [the cost of the field] from indentured property, but for the produce of the field [which he had eaten] he collects only from unindentured property. T. 6:21 And they do not collect from indentured property [a debt incurred] for the improvement of real estate and for the support of a wife and daughters, for the good order of the world. How so? [Ιί] lie purchased a field from him, and he paid for improvements, and lo, it is leaving his possession—[the owner of the field] collects from indentured property But the cost for the improvement of the real estate he collects only from an unindentured property. Under what circumstances? When the purchase on the part of this one came before the investment for the improvement of the field on the part of the other one. But if the investment for the improvement of the field of this one came before the sale on the part of that one, both this one and that one collect

184

CHAPTER THREE

only from unindentured property. If this one says, "My investment for improvement came first,1' and that one says, "My sale came first"— he who lays claim against his fellow bears the burden of proof 1. What is subject to dispute? Does t h e seller take responsibility f o r t h e f u t u r e c o n d i t i o n of w h a t he sells? T h e b u y e r claims t h e wine w e n t sour, t h e seller m a i n t a i n s he is n o t responsible; these things h a p p e n . O n t h e o n e side, if the o u t c o m e was k n o w n in a d v a n c e , then t h e transaction is null. O n t h e o t h e r h a n d , if not, t h e n fixed rules apply. If the wine w e n t sour, t h e seller is n o t obligated to m a k e it up. If he set a condition, e.g., spiced wine, that contains a n implicit g u a r a n t e e that it will n o t go sour until a specified point, a n d so t h r o u g h o u t , as T . 6:5 clarifies. T h e Tosefta's extension of the m a t t e r instantiates t h e s a m e principle. T . 6:7 t h e n interprets t h e various usages that govern t h e transaction. T h e p r e m i s e t h r o u g h o u t is, " I a m selling y o u a j u g of w i n e " m e a n s , suitable wine. T h a t is t h e rule yielded b y c o m m o n usage. But if the seller uses m o r e p a r t i c u l a r l a n g u a g e t o describe t h e sale, e.g., "this wine," then the situation changes. T h e m a i n point is, the seller cannot misrepresent matters b u t does not have t o expose facts that the buyer on his o w n should know, e.g., T . 6:11. 2 .How does the system resolve the conflict in line with the systemic interest that is in play? T w o principles guide t h e resolution of t h e conflict b e t w e e n b u y e r a n d seller. First, t h e seller c a n n o t b e held responsible for w h a t h a p pens b e y o n d t h e point of sale in t h e case of p r o d u c e that c a n b e expected t o c h a n g e over time. H e is obligated only to sell w h a t is a t that m o m e n t suitable, since he c a n n o t control w h a t will take place later on. H o w e v e r , certain expectations a r e in play, a n d these guide the expectations of the buyer. O n c e m o r e , t h e n , t h e status q u o at the m o m e n t of sale, e n c o m p a s s i n g t h e conditions of sale, governs the disposition of the conflict. M. 8:6 He who says, "This is my son," is believed. [If he said], "This is my brother,5' he is not believed, and [the latter] shares with him in his portion [of the father's estate]. If the brother whose status is in doubt] died, the property is to go back to its original source. [If] he received property from some other source, his brothers are to inherit with him. T. 7:2 A midwife is believed to say, "This one came out first." Under

MAINTAINING THE SOCIAL ORDER

T.

T.

T.

T.

T.

185

what circumstances? When there is no contesting opinion. But if there is a contesting opinion, she is not believed. 7:3 [If] people took for granted concerning someone that he was a firstborn, and at the time of the gift, [the father] said, "He is not the firstborn,' ‫[ י‬the father] is not believed. [If] people took for granted concerning someone that he was not the firstborn, and at the time of the gift, [the father] said, "He is the firstborn," he is believed. [If] people took for granted concerning someone that he was his son, and at the time of his death, the [putative father] said, "He is not my son," he is not believed. [If] people took for granted concerning someone that he was not his son, and at the time of [the man's] death, he said, " H e is my son," he is believed [M. B.B. 8:6A], [If] people took for granted concerning someone that he was his son, and at the time of his death, he said, "He is [my] brother," he is believed [cf. M. B.B. 8:6B], [If] people took for granted concerning someone that he was his brother, and at the time of his death, he said, "He is my slave," he is not believed. [II] people took for granted concerning someone that he was his slave, and at the time of his death, he said, "He is my son," he is believed. [If] he was standing among tax-collectors and said, "He is my son," and then he went and said, "He is my slave," he is believed. [If] he said, "He is my slave," and then he went and said, "He is my son," he is not believed. 8:5 Two who were coming from overseas—even though their trading, eating and drinking were done in partnership, [if] one of them died, his fellow does not inherit him. But if he had conducted affairs in this way because of their being brothers, [the survivor] does inherit. 8:6 He who went overseas with his son—and [the son] came home, and with him was a brother [born to the father, who had died overseas]—and [the son] said, "This is my brother, who was born to me overseas"—and [the son who had come home] had five brothers, and before them was an estate of five kors of land—they do not give [to the other brother, born overseas] any portion whatsoever [M. B.B. 8:6B], But the son [from overseas] gives him a sixth out of his share [M. B.B. 8:6C], [If then the brother born abroad] died, [the brother who had given him a share] takes what [ the decedent] had given to him [M. B.B. 8:6D], and the rest [of the decedent's estate] they bring and divide among [all surviving brothers] [M. B.B. 8:6E], 8:7 He who went overseas, he and his father—and the son died, or the father died—under all circumstances the property is assumed to belong to the elder [the father, and not the son, so that the father's other sons inherit], 8:8 He who was writing a will, and was afraid of the heirs—[the scribe and witnesses] go into visit him like ordinary visitors and hear what he has to say inside. Then they go out and write the will outside.

186

CHAPTER THREE

T. 8:9 A healthy person who wrote a will—a dying man who wrote his property as a gift—even though he gave possession after the gift, he has done nothing at all. But he who writes over his property in the name of his fellow, and he gave him possession after the gift, his statement is confirmed [M. B.B. 8:6H-J], T. 8:10 He who writes a will can retract. He who writes a deed of gift cannot retract. What is a will? "Let this be confirmed: If I die, let my estate be given to So-and-so." And what is a deed of gift? "As of this date let my property be given to So-and-so." T. 8:11 He who writes a will, before he gives possession, whether it is he or another party—he can retract. Once he has given possession, whether it is he or another party—he cannot retract. T. 8:12 Guardians [of the estate of minors] before they have made acquisition of the estate of minors, can retract. Once they have made acquisition of the estate of minors, they cannot retract. T. 8:13 A. A guardian whom the father of the orphans has appointed is to be subjected to an oath [that he has not misappropriated the property of the minor]. [if] a court appointed him, he is not required to take an oath. T. 8:14 Guardians set aside heave-offering and tithes out of the property of orphans. They sell houses, fields, vineyards, cattle, boy-slaves, girlslaves, to provide maintenance for the orphans, [or] to build a Sukkah, acquire a lulab, show-fringes, and otherwise to make it possible to carry out any and all commandments stated in the Torah, to purchase a scroll of the Torah or prophets, [or] any matter which is written in the Torah. But they do not contribute to funds for the redemption of captives on their account, and they do not contribute to charity in the synagogue, [or provide for] any matter, the fixed amount of which is not set forth in the Torah. They have not got the right to emancipate slaves, but they may sell them to others, and the others emancipate them. T. 8:15 [The guardians of estates of minors] do not sell land at a distance to buy land nearby, land of poor quality to buy land of good quality. They do not go to court to the disadvantage or to the advantage [of the trust], to collect or to disburse in behalf of the orphans, unless they get permission from the court. T. 8:16 [The guardians of an estate of minors] sell slaves to buy real estate with the proceeds, but they do not sell real estate to buy slaves with the proceeds. T. 8:17 A court does not appoint women and slaves as guardians to begin with. But if their father had named them while he was alive, they do appoint them guardians. T. 8:18 A. [If] one has written in a document, "I have money and utensils in the possession of Mr. So-and-so," the witnesses have the right to sign [the document]. But [the claimant] cannot collect until he brings proof [of his claim].

MAINTAINING THE SOCIAL ORDER

187

1. What is subject to dispute? T h e dispute is b e t w e e n o t h e r heirs of the m a n , o n the o n e side, o r with h i m , o n t h e other. T h e m a n w h o recognizes a n o t h e r as his son thereby gives him a share of his estate by inheritance. T h e other heirs c a n n o t stop t h e transaction, since t h e m a n h a s t h e p o w e r to distribute a share of his estate as a gift. So he is believed, since h e c a n effect the results of the status h e h a s c o n f e r r e d . W h e n it comes to s h a r i n g his f a t h e r ' s estate, t h e o t h e r heirs of t h e f a t h e r c a n object t o t h e designated m a n ' s inheriting as a b r o t h e r ; b u t t h e m a n is believed so that t h e designated b r o t h e r shares in his p o r t i o n of the f a t h e r ' s estäte. T . a d d s n o t only a n obvious ruling, T . 7:2, b u t a n i m p o r t a n t clarification, T . 7:3. If p e o p l e generally a s s u m e that a m a n enjoys a certain status, e.g., as firstborn, h e c a n n o t be deprived o f t h a t status by the father's testimony. T h e testimony of the father c a n n o t deprive h i m of his share. But if h e is a s s u m e d n o t t o b e so a n d t h e f a t h e r then says h e is t h e firstborn, t h e f a t h e r is believed, because h e h a s the p o w e r to effect his view, if not t h r o u g h inheritance then t h r o u g h d o n a t i o n giving t h e m a n a d o u b l e - p o r t i o n as a gift, n o t as a n inheritance. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict concerns t h e status of the alleged son. Since the father's declaration affects t h e son n o t only as t o p e r s o n a l status b u t also as to p r o p e r t y — h e gains a share in t h e estate a n d his b r o t h e r s lose p r o p o r t i o n a t e l y — t h e principle in play is clear. W h a t t h e f a t h e r c a n accomplish o n his o w n is d e e m e d a valid claim. S o m e o n e c a n n o t m a k e a n effective s t a t e m e n t that deprives third parties of p r o p e r t y or rights, b u t he c a n validly attest t o a m a t t e r that is wholly subject to his o w n control, j u s t as at t h e c o m p a r a b l e passage of Q i d d u s h i n . So t h e conflict is resolved very simply. C o n c e r n i n g w h a t t h e m a n c a n d o o n his own, he is believed, b u t c o n c e r n i n g w h a t h e does n o t wholly control b u t w h a t involves t h e claim of others, he is n o t b e lieved. M. 8:8 [If] he left adult and minor daughters, the adults may not take care of themselves [from the estate] at the expense of the minor daughters, nor may the minors support themselves [from the estate] at the expense of the adult daughters. But they divide the estate equally. If the adult daughters got married [at the expense of the

188

CHAPTER THREE

estate], the minor daughters may get married [at the expense of the estate]. And if the minor daughters said, "Lo, we are going to get married just as you got married [while father was still alive]," they pay no heed to them. This rule is more strict in regard to daughters than to sons. For the daughters are supported at the disadvantage of the sons [M. 9:1], but they are not supported at the disadvantage of [other] daughters. T. 8:18 [If the decedent] had left adult and minor sons [M. B.B. 8:7J] and they continued to enjoy support without complaint, the minors should not say to the adults, "Lo, we are going to be supported [at the expense of the estate] in the way in which you were supported when father was alive [and you were minors]." [If] the adults had been married during the lifetime of the father the minors should not say, "Lo, we are going to be married [at the expense of the estate] in the way in which you were married." And not only so, but even if the father [in his lifetime] had left [to the adults] slave-boys and slave-girls, silver and gold utensils, Lo, they are theirs [cf. M. B.B. 8:7F]. T. 8:19 [If] he [the decedent] left adult and minor daughters, [M. B.B. 8:8A], and they continued to enjoy support without complaint, the minors should not say to the adults, "Lo, we are going to be supported [at the expense of the estate] in the way in which you were supported [when father was alive, and you were minors]." [If] the adults had been married [during the lifetime of the father], the minors should not say, "Lo, we are going to be married [at the expense of the estate] in the way in which you were married." And not only so, but even if their father [in his lifetime] had left [to the adults] slave-boys and slave-girls, gold and silver utensils Lo, they are theirs [cf. M. B.B. 8:8], 1. What is subject to dispute? T h e dispute c o n c e r n s t h e disposition of the assets of a n estate b y t h e various classes of heirs. H e r e w e deal with adult a n d m i n o r d a u g h ters; t h e estate is responsible t o s u p p o r t b o t h a n d t o p r o v i d e f o r dowries f o r b o t h . But w h a t if t h e m i n o r s c o m e along a n d claim a w e d d i n g along the lines of weddings that t h e f a t h e r p r o v i d e d for t h e d a u g h t e r s in his lifetime? T h a t they m a y n o t have. W h a t t h e f a t h e r did in his lifetime is n o measure of what the estate does after his death. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e conflict is resolved b y t h e provision of the reason given at t h e end: daughters a r e not supported at the disadvantage of other daughters. T h e estate is responsible to treat all heirs fairly, f r o m the m o m e n t

MAINTAINING THE SOCIAL ORDER

189

at which the estate c a m e into being, which is, u p o n the father's death. W h a t h a p p e n e d prior to that m o m e n t is n o t a consideration. T h e conflict is resolved b y a p p e a l to a rule applied equally to all parties, as t h e T o s e f t a ' s amplification u n d e r t a k e s to d e m o n s t r a t e . M. 9:3 [If] he left adult and minor sons—[if] the adults improved the value of the estate, the increase in value is in the middle [shared by all heirs]· If they had said, "See what father has left us. Lo, we are going to work it and [from that] we shall enjoy the usufruct," the increase in value is theirs. And so in the case of a woman who improved the value of the estate—the increase in value is in the middle. If she had said, "See what my husband has left me! Lo, 1 am going to work and enjoy the usufruct,'5 the increase in value is hers. T. 10:2 T h e woman who inherited [property] and went and improved the value of the property, [and she claims], "I brought them to a condition of abundance," may not say, "Give me the value of the increase in worth of the property which I have brought about." And not only so, but [only] if there is property which is real estate does she collect her marriage-settlement. But if not, she does not collect her marriage-settlement. T. 10:3 Brothers to whom their father left property, and one of them had sons, and his sons went and improved the value of the property, and they brought them to a state of abundance—[their father] may not say, "Give me the value of the increase in the worth of the property which my sons have brought about," and so too, they should not say to him, "Give us the usufruct which your sons have enjoyed." But the usufruct which they have enjoyed they have enjoyed from the common holding, and the increased value which they have brought about goes to the common holding. 1. What is subject to dispute? T h e estate increases in value by reason of t h e adults' labor. W h o benefits? If n o stipulation is in effect, all heirs equally share in t h e increase. If the adults stipulated that they would e n j o y t h e usufruct of their labor, they get t h e increase in value. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e c o m m o n o w n e r s h i p a n d e n j o y m e n t of t h e p r o p e r t y governs, unless a c o n t r a r y stipulation h a s b e e n e n t e r e d . T h e rule of equal o w n e r s h i p , e q u a l benefit, governs, b u t m a y b e set aside if a n articulated a g r e e m e n t is invoked. T h i s follows t h e resolution of the c o n -

190

CHAPTER THREE

flict in which one p a r t y accepts a loss of his p r o p e r t y in o r d e r to save the m o r e valuable p r o p e r t y of the other. H e is paid only for his labor unless a p r i o r stipulation is in effect that h e is to b e c o m p e n s a t e d also f o r his loss. In all, t h e status q u o governs until it is set aside. M. 9:5 He who sends gifts to his father-in-law's household—[if] he sent gifts worth a hundred manehs and he there ate a wedding feast of even a denar—[if he divorced his wife], [the gifts] are not recoverable. [If he did not eat a wedding feast at all], lo, they are recoverable. [If the husband] had sent many gifts, which were to be returned with her to her husband's house, lo, they are recoverable. [If he had sent] few gifts, which she was to use in her father's house, they are not recoverable. T. 10:10 H e who sends gifts to his father-in-law's household [M. B.B. 9:5A]—and {the gifts] were consumed in connection with the celebration for the birth of a son or for some other purpose, what [the members of the father-in-law's household] have consumed, they have consumed. He who sends gifts to his father-in-law's household—things which are usually used in the father-in-law's household, [the bride] does not have to bring back with her. But things which usually are not used in the father-in-law's household, [the bride] does have to bring along with her. [If] she died, those things which she would usually have used in her lifetime, the father-in-law does not have to return. And those things which she usually would not have used in her lifetime, the father-inlaw does have to return [cf. M. B.B. 9:5E-F], 1. What is subject to dispute? T h e dispute is b e t w e e n t h e g r o o m a n d t h e b e t r o t h e d ' s family: have the g r o o m ' s gifts a c c o m p l i s h e d their p u r p o s e o r a r e they recoverable, in t h e event of a divorce p r i o r to t h e c o n s u m m a t i o n of t h e marriage? T h e g r o o m sends gifts to the wife's father's household, a n d these a r e n o t recoverable, e.g., even t h o u g h t h e w e d d i n g feast is n o t c o m m e n s u r a t e to his c o n t r i b u t i o n , in t h e event of a divorce. H e h a s p a r t i c i p a t e d in t h e feast, a n d that m a r k e d t h e final transfer of the gifts to t h e father-in-law's household. T h e gifts a r e assumed integral to t h e celebration, so T . 10:10. But a m o n g t h e gifts a r e things that clearly are i n t e n d e d for t h e h o u s e h o l d of the d o n o r , a n d these c o m e a l o n g with t h e bride w h e n she moves.

MAINTAINING THE SOCIAL ORDER

191

2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e donation is not recoverable if it has carried out its purpose, which is to celebrate t h e wedding. If t h e d o n o r h a s p a r t i c i p a t e d , he h a s a c c o m p l i s h e d his goal, a n d t h e d o n a t i o n is final. M. 9:8 [If] the house fell on him and on his father, or on him and on those whom he inherits, and he was liable for the settlement of his wife's marriage contract and for payment of a debt—the heirs of the father claim, "The son died first, and afterward the father died,"—the creditors claim, "The father died first, and then the son"—the property remains in its former status [in the hands of those who inherit the father]. M. 9:9 [If] the house fell on him and on his wife, the heirs of the husband say, "The wife died first, and afterward the husband died"—the heirs of the wife say, "The husband died first, and afterward the wife died"—the property remains in its former status. The [money for the] marriage settlement remains in the hands of the heirs of the husband. [But] the property which goes into the marriage with her and goes out of the marriage with her [at the value at which it was assessed to begin with] is assigned to the possession of the heirs of the father [of the wife]. 1. What is subject to dispute? T h e claims are clearly articulated. W h o inherits the property accruing to t h e m a n a n d his father? T h e heirs of the f a t h e r want t h e f a t h e r to have inherited by reason of the son's d e a t h , before the father died; h e n c e those w h o benefit f r o m t h e f a t h e r ' s estate get the whole p r o p erty. T h e creditors w a n t the son to have inherited first, in which case they collect f r o m his estate, which is p r o p o r t i o n a t e l y larger. T h e m a t t e r is still m o r e clearly expressed at M . 9:9. H e r e t h e respective heirs m a k e t h e claim, which is unsubstantiable, that benefits their cause. T h e marriage-settlement, which t h e h u s b a n d would have h a d to p a y h a d h e divorced t h e wife o r h a d h e died, r e m a i n s in t h e h u s b a n d ' s estate. But t h e p r o p e r t y that would have reverted to the wife's family h a d t h e h u s b a n d died first reverts to h e r family. 2. How does the system resolve the conflict in line with the systemic interest that is in play? By this point t h e resolution of the conflict is predictable. W e affirm the status q u o . T h o s e w h o w o u l d have inherited t h e estate of t h e

192

C H A P T E R THREE

f a t h e r d o so; we assume the son has died first. M . 9:9, to a c c o m plish that goal of keeping the p r o p e r t y in the h a n d s of those w h o would have b e e n a s s u m e d to get it, requires conflicting presuppositions as to the o r d e r of the d e a t h s

IV. The Halakhic Resolution of Conflict, Baba Mesia 6-10 and Baba Batra W h a t , precisely, a r e the conflicts that the H a l a k h a h of B a b a Mesia 6-10 a n d B a b a B a t r a articulates, a n d h o w a r e they resolved? T h e following s u m m a r i z e s t h e conflicts t h a t a r e p o r t r a y e d (left h a n d margin) a n d the principles that are e m b o d i e d in the disposition of those conflicts (right h a n d margin). W h a t is n o t e w o r t h y is the quite u n r e m a r k a b l e c h a r a c t e r of the g o v e r n i n g principles, only detail of which is p a r t i c u l a r to the d u a l T o r a h . BABA M E S I A 6 - 1 0

M. 6:1-2 Breach of contract by itself—failure to do the promised work— is not actionable. But breach of the terms of the contract, e.g., through deception, is. The terms of the contract are enforceable, and established custom governs. M. 6:6 T h e contractor or craftsman is in the status of the paid bailiff. If there is a misunderstanding on the terms of the contract, the plaintiff must bring proof. The rules of bailment govern. M. 7:1-2 Conditions of employment conform the accepted practice. The established custom governs. M. 8:2 The borrower of a cow is liable if the cow dies. Under the stated conditions an oath is taken to establish the facts of the case. M. 8:3 If the lender delivers the bailment, he is responsible for what happens during delivery. Who takes responsibility for a bailment bears the liability. M. 8:4 In an exchange of beasts, where one gives birth and both claim ownership, the seller takes an oath and retains ownership. An oath is taken to establish the facts of the case.

MAINTAINING THE SOCIAL ORDER

193

M. 8:5 If in the sale of olive trees, a small volume of oil is produced by a tree sold for firewood, the purchaser of the trees gets it; if a large volume, the owner of the land. If there is a conflict, the produce is divided up. Where each party has a valid claim, the two divide what is subject to contention M. 8:7 One who rents a house includes in the property what is ordinarily deemed essential, but the renter provides what does not require an expert craftsman to supply. Established custom governs. M. 8:9 One who rents a house out, which collapses, must provide repairs. Neither party may change the established terms of an agreement. M. 9:2 One who leases a an irrigated field from his fellow that loses its water source pays the agreed upon rent, unless the rental agreement stipulated that the field would be watered. Neither party to a contract may change the terms of the agreement. Normal custom prevails. M. 9:4-5 A sharecropper is required to tend the field, not just pay the share of the crop. Normal custom prevails. M. 9:6-7 If a field is blighted as part of a general disaster, the one who leases a field may deduct the loss from his rental; if it does not affect the entire province, he may not. General disaster is covered by implicit terms, but what is particular to the field at hand is subject to negotiation. M. 10:2-4 The householder who rents out space must repair damages and if he fails to do so, the tenant may take over the householder's space. The householder cannot change the terms of the original agreement and is responsible to keep the original terms. M. 10:5 The householder who causes damage must clear up the nuisance; he may not unilaterally deal with the problem. The worker must be paid in conventional terms. If the neighbor or the worker concurs, however, then the agreement is enforceable. The law imposes fixed obligations, whether stipulated or not.

194

CHAPTER THREE

BABA BATRA

M. 1:2-4 Joint holders may be required to participate in maintaining public facilities. Local custom prevails. M. 1:5 Joint holders are required to contribute to the public necessities of the courtyard. Where the public interest pertains, the community may impose its will on the individual. M. 2:2-3 One cannot create a public nuisance, and if he does, he can be forced to remove it. The public good overrides private interest. M. 3:1, 3-7 Claim of ownership by usucaption is to be accompanied by some sort of validation, e.g., a basis for usucaption in prior sale or gift. Established patterns of land-holding are not lightly altered. M. 5:6 If the seller misrepresented the goods, the buyer may retract; if the goods turn out to be of better quality than promised, the seller may retract; if the conditions stipulated by both parties are met, neither may retract. A transaction becomes permanent only when both parties are treated fairly, the intent of each being carried out. M. 6:3 The buyer must accept the possibility that wine will turn sour, but if it is known that that would happen, it is a purchase made an error and null. The seller is not responsible for what happens to what he has sold, unless it is known in advance that the goods would be ruined, in which case the transaction is null. M. 8:6 One can testify to facts over the consequences of which he has control, but not over those that affect third parties. Someone cannot make an effective statement that deprives third parties of property or rights, but he can validly attest to a matter wholly subject to his own control. M. 8:8 Heirs to an estate have fixed claims on the assets of the estate.

MAINTAINING THE SOCIAL ORDER

195

T h e estate is obliged to treat all heirs equally, within the stipulation that the sons and daughters form two distinct classes of heirs, each subject to its own rule. M. 9:3 Unless otherwise stipulated, the heirs share equally in the gain of the estate. Agreements that alter standard arrangements must be reached in advance and not after the fact. M. 9:5 The groom cannot recover his gifts, even though they are incommensurate, in the event of a divorce. Once he has participated in the feast, the gifts are finally transferred. But what is clearly marked for return to the groom's household must be returned. Once the transaction has accomplished its goal, the transfer is final. M. 9:8 If we do not know the sequence of deaths, the property that is inherited remains in the former status. The law confirms the status quo: those likely to receive property do receive what is anticipated to belong to them. W h a t have we established? I see these g r o u p s of rulings that are realized in accounts of conflict b e t w e e n Israelite householders: Established custom or rule governs and neither party may change the terms of the agreement M. B.M. 6:1-2, 6:6, M. 7:1-2, 8:3, 8:7, 8:9, 9:2, 9:4-5, 9:6-7, 10:2-4, 10:5, M. B.B. 1:2-4, 1:5 3:1, 3-7, 9:3, 9:5, 9:8) Where each party has a valid claim, what is subject to contention is divided equally; fairness prevails M. B.M. 8:5, M. B.B. 5:6, 6:3, 8:8 The public good overrides private interest M. B.B. 2:2-3 One may effectively testify concerning that over which he has control but may not obligate third parties by his testimony M. B.B. 8:6 An oath is taken to resolve a conflict as to the facts of a case M. B.M. 8:2, 8:4

196

C H A P T E R THREE

T h e interest of c o r p o r a t e Israel in resolving conflict is effected by affirming the status q u o , which is hardly surprising. I n d e e d , we have t u r n e d out a series of quite u n r e m a r k a b l e principles, which h a r d l y c h a r a c t e r i z e this system in p a r t i c u l a r . T h e y qualify as s t a n d a r d a n d o r d i n a r y for civil law. O n e exception is not routine a n d is r e m a r k able. T h e o n e rule of special interest c o n c e r n s the utilization of the o a t h to resolve c o n t e n t i o n b e t w e e n Israelites. T h a t is u n d e r t h e carefully d e m a r c a t e d conditions set forth in Scripture, as we shall see in C h a p t e r Five.

V . How does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof in Baba Mesia 6-10 and Baba Batra N o w we ask, within the p r o g r a m of Baba Mesia 6-10 a n d Baba Batra, w h a t are the relationships of conflict that are taken up, a n d h o w are these resolved? A n d w h a t is Scripture's c o n t r i b u t i o n to the m a i n t e n a n c e of t h e social e q u i l i b r i u m t h a t is t h e goal of t h e p e r t i n e n t H a l a k h i c system? W h a t w e shall n o w see is a familiar result: w h e r e S c r i p t u r e c o n t r i b u t e s a p e r t i n e n t fact, the H a l a k h a h extends a n d amplifies that fact. But the H a l a k h i c p r o g r a m is not s h a p e d within the limits of Scripture. T h e O r a l T o r a h r e p r e s e n t e d by the H a l a khah composes its own structure a n d system, partially concentric with the W r i t t e n T o r a h ' s c o u n t e r p a r t , b u t here, in large p a r t not. BABA M E S I A

6-10

M U T U A L OBLIGATIONS IN LABOR, RENTAL, BAILMENT

1.

Employer-Employee: Each party is responsible to the other to make up loss caused by failure to carry out an agreement. Whoever changes the original terms of an agreement is liable to make up the loss. The prevailing rules of the labor market govern and may not be changed by private agreement. Workers are permitted by right to eat produce on which they are working. The act of will on the part of one party cannot set aside the agreement entered into by freely-undertaken acts of will of the two parties. But, self-evidently, if both parties concur, the original terms of the agreement are set aside.

W h e r e conflicts arise in c o n n e c t i o n with h o u s e h o l d e r / w o r k e r relationships, each p a r t y is held to the original a g r e e m e n t a n d n o n e m a y

MAINTAINING THE SOCIAL ORDER

197

unilaterally a b r o g a t e it. T h e same is so for rentals. As we have seen, conflicts in this m a t t e r are taken u p a n d resolved. O n e detail of the foregoing derives f r o m Scripture: When you do into your neighbor's vineyard, you may eat your fill of grapes, as many as you wish, but you shall not put any in your vessel. When you go into your neighbor's standing grain, you may pluck the ears with your hand, but you shall not put a sickle to your neighbor's standing grain (Dt. 23:25-26). T h i s is taken to p e r t a i n to workers, as indicated. 2.

3.

Rentals: One who changes the original terms of a rental agreement is liable to make up the loss or pay damages consequent upon the change. But if there is an unavoidable obstacle, the lessor is not obligated to the lessee. Here, force majeure overrides the original agreement, since the unavoidable obstacle does not come about through an act of poor faith on the part of one or the other party. Bailments‫׳‬. In transactions with craftsmen, craftsmen who receive materials from householders are in the status of paid bailees, responsible for negligence and theft. Once the job is done and the craftsman informs the householder, the craftsman is in the status of an unpaid bailiff. We differentiate among four classes of bailees, by the criterion of compensation. One who is not paid bears only limited liability. One who is paid, who borrows, or who leases, bears greater liability to compensate the bailiff for damages. Differentiation between damage done through negligence and damage that cannot have been prevented accommodates a range of cases. What has already been said pertains here. REAL ESTATE

1.

Conflicting Claims of Landlord and Tenant If one sells trees but not ground, then unanticipated fruit in modest volume belongs to the purchaser of the trees. Where the volume is substantial, the produce is divided. The landlord may not evict the tenant without notice. The landlord makes an implicit contract to provide those components of a building that a craftsman makes, but the rentee provides what is not ordinarily made by a craftsman. The lessor must provide a replacement for a house that collapses, and it must be equivalent to the one originally leased. We impute to the act of agreement of both parties the prevailing customs of the area, e.g., if a building ordinary includes certain appurtenances, then the agreement between landlord and tenant is assumed to encompass those appurtenances. An act of will

198

2.

3.

CHAPTER THREE

on the part of the one or the other is null in the face of the legitimate expectations that both parties bring to the transaction. Conflicting Claims of Landlord and Tenant-Farmer·. The lessee must follow prevailing practice, farming the leased land as is customary, and returning the land in suitable condition. The lessee may not change the conditions of the lease in any way. The lessor must supply what is ordinarily included in the lease. The lessor is liable for damages that affect everyone. What has just been said applies here too. Paying Day-Laborers Promptly: Wages and fees must be paid at the end of the work-period, e.g., at the end of the day for a day-laborer, at the end of the night for a night-worker. The scriptural rules on not holding on to a pledge are recapitulated. But if the worker agrees to some other arrangement, the scriptural requirement may be set aside. His act of will, involving relinquishing established rights, is valid. Here the act of will on the part of the worker overrides the protections that the Torah has provided for all workers.

P r o m p t l y p a y i n g workers is explicit in Scripture: "You shall not oppress your neighbor or rob him. The wages of a hired servant shall not remain with you all night until the morning" (Lev. 9:13). "You shall not oppress a hired servant who is poor and needy, whether he is one of your brethren or one of the sojourners who are in your land, within your towns; you shall give him his hire on the day he earns it; before the sun goes down, for he is poor and sets his heart upon it; lest he cry against you to the Lord and it be sin in you" (Dt. 24:14-15). "If you lend money to any of my people with you who is poor, you shall not be to him as a creditor, and you shall not exact interest from him. If you take your neighbor's garment in pledge, you shall restore it to him before the sun goes down, for that is his only covering; it is his mantle for his body; in what else shall he sleep? And if he cries to me, I will hear, for I am compassionate" (Ex. 22:25-27). "When you make your neighbor a loan of any sort, you shall not go into his house to fetch his pledge. You shall stand outside, and the man to whom you make the loan shall bring the pledge out to you. And if he is a poor man, you shall not sleep in his pledge; when the sun goes down, you shall restore to him the pledge that he may sleep in his cloak and bless you, and it shall be righteousness to you before the Lord your God" (Dt. 24:10-13) "You shall not take a widow's garment in pledge" (Dt. 24:17-18). "No man shall take a mill or an upper millstone in pledge, for he would be taking a life in pledge" (Dt. 24:6). Scripture has supplied the facts b u t not a d u m b r a t e d the g o v e r n i n g

MAINTAINING THE SOCIAL ORDER

199

p r o b l e m a t i c s , so far as I can discern. T h e same is so in c o n n e c t i o n with restoring the pledge. 4.

joint-Holders of a Common Property: Both parties are equally liable to repair damages suffered in common. If one property-holder depends upon the other, the latter must carry out his obligation, even in the property the latter himself holds. BABA

BATRA

R I G H T S OF J O I N T HOLDERS OF A COMMON P R O P E R T Y

1.

2.

Partitioning property: Apart from the equal contribution of each party to the property that the law requires, the main concern is to affirm the prevailing custom of the region. A secondary concern is that if a person benefits from a project, he must pay his share of the project. A tertiary concern of the law is, what is done for the community must be generally available (as with the produce of the seventh year) and not used in a selfish manner. Not Infringing on the Property Rights of Others: One may not utilize his own property in such a way as to damage the rights of the other. One has a right to expect others to respect his property rights and to enforce those rights. The same pertains to the rights of the community as a whole. ESTABLISHING T I T L E T O P R O P E R T Y

1.

2.

Establishing title through usucaption: Three years of utilization of a property establishes the presumptive right of ownership to the property, provided there is an explicit claim to that effect, accompanied by successful demonstration of a claim should it be opposed. Transferring Real Estate and Movables through Sale: What Is Included in the Transaction? It is taken for granted that what is essential to that which is sold is included in the transaction, but what is not essential and is not explicitly included is not covered by the sale, e.g., a permanent mortar but not a movable one. But if the language is used, "It and everything which is in it," lo, all of them are sold. The same goes for a cistern, the water goes with. C O N D I T I O N S OF IRREVOCABLE TRANSFER OF GOODS

1.

Both parties to a transaction have the right to a fair deal. If one has sold good wheat and it turns out to be bad, the purchaser has the power to retract. If one has sold bad wheat and it turns out to be good, the seller has the power to retract. If he has claimed to sell bad wheat,

200

2.

C H A P T E R THREE

and it turns out to be bad, or if he claimed to sell good wheat and it turns out to be good, neither one of them has the power to retract. Unstated stipulations govern in accord with reasonable expectations. T h e buyer assumes some of what he buys will be rotten. Customary usage governs.

T h e r e q u i r e m e n t of the H a l a k h a h that m e a s u r e s be kept clean a n d a c c u r a t e is explicit in Scripture: You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the Lord your God who brought you out of the land of Egypt (Lev. 19:35-36). Dt. 25:13ff. goes over the s a m e m a t t e r . I N H E R I T A N C E S , WILLS, AND O T H E R LEGAL DOCUMENTS

1.

Rules of Inheritance: There are those who inherit and bequeath, there are those who inherit but do not bequeath, bequeath but do not inherit, do not inherit and do not bequeath. These inherit and bequeath: the father as to the sons, the sons as to the father; and brothers from the same father but a different mother, as to one another inherit from and bequeath to one another. The man as to his mother, the man as to his wife, and the sons of sisters inherit from, but do not bequeath to, one another. The woman as to her sons, the woman as to her husband, and the brothers of the mother bequeath to, but do not inherit from one another. Brothers from the same mother do not inherit from, and do not bequeath to one another. O n e may not stipulate an inheritance that violates the laws of the Torah, but he may divide his property by donation. He who died and left sons and daughters—when the estate is large, the sons inherit, and the daughters are supported [by the estate]. [If] the estate is small, the daughters are supported, and sons go begging at [people's] doors.

T h e right of the d a u g h t e r to inherit is explicit, so too t h a t inheritances pass t h r o u g h the m a l e , not the female line, as stated in the M i s h n a h ' s rule, cited just above: If a man dies and has no son, then you shall cause his inheritance to pass to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father's brothers. And if his father has no brothers, then you shall give his inheritance to his kinsman that is next to him of his family, and he shall possess it (Num. 27:8-11).

MAINTAINING THE SOCIAL ORDER

201

Scripture, like the H a l a k h a h of the O r a l T o r a h , wants inheritances to r e m a i n in the male line. 2.

3.

4.

5.

Testimony as to Relations: One may not give unsubstantiated testimony as to a relationship in such wise as to affect someone else's property rights. Joint Management of an Estate: [If] he left adult and minor sons—[if] the adults improved the value of the estate, the increase in value is in the middle [shared by all heirs]. If they had said, "See what father has left us. Lo, we are going to work it and [from that] we shall enjoy the usufruct," the increase in value is theirs. If brothers who jointly hold an estate incur public duties, the estate is charged. Gifts in Contemplation of Death: A gift in contemplation of death may be retracted. A dying man who wrote over all his property to others [as a gift] but left himself a piece of land of any size whatever—his gift is valid. [If] he did not leave himself a piece of land of any size whatever, his gift is not valid. Preparing Commercial Documents, e.g., Writs of Debt, Bonds and the like: If one has the power to issue such a document, it may be prepared in the absence of the other; but if both parties must concur, then both parties must be present when the document is prepared.

Scripture contributes a m o d e s t c o m p o n e n t to the system, but, as we shall see in a m o m e n t , it is also a critical one, for out of Scripture derives the one unsettling c o m p o n e n t of the system, the o a t h . W h i l e Baba Mesia 6-10 a n d Baba B a t r a e n c o m p a s s a few facts of Scripture, the set pursues its o w n p r o g r a m , e n c o m p a s s i n g relev a n t laws of Scripture but by n o m e a n s s h a p e d by t h e m . T h e m a i n points are these. [1] J o i n t holders of a c o m m o n p r o p e r t y e n j o y equal rights a n d equal responsibilities. [2] Title passes t h r o u g h u s u c a p t i o n , p r o p e r l y established. [3] Title covers w h a t is integral to that w h i c h is sold, not w h a t is p e r i p h e r a l (encompassing r e a s o n a b l e expectations). [4] I n h e r i t a n c e s pass t h r o u g h the m a l e line. I have several times r e m a r k e d a b o u t the u n r e m a r k a b l e c h a r a c t e r of the H a l a k h i c p r o g r a m . If I h a d to identify the c e n t e r of it all, it would be: b o t h parties have a right to a fair deal, neither m a y c h a n g e a g r e e d u p o n stipulations arbitrarily, a n d n e i t h e r m a y e m e r g e with m o r e t h a n he e n t e r e d the transaction. H e r e , once m o r e , Scripture has m a d e its c o n t r i b u t i o n of facts, but the c o n t r i b u t i o n proves pal-

202

CHAPTER THREE

try. J u s t as in C h a p t e r T h r e e , so h e r e again, we observe that Script u r e m a k e s its c o n t r i b u t i o n of facts but hardly imposes its p r o g r a m u p o n the H a l a k h i c p r e s e n t a t i o n of matters. Apart f r o m the matter of bailment, the issue of intentionality hardly arises w h e n the H a l a k h a h provides for the m a i n t e n a n c e of the established r e l a t i o n s h i p s of the social o r d e r c o m p r i s e d by Israelite householders. Conflict of will or intentionality defines a focus for the H a l a k h i c p r o g r a m of restoring the social equilibrium. T h e contrast yields a ready observation: the Halakhic system takes account of issues of will a n d intentionality in assessing responsibility for disrupting the social o r d e r . T h a t is b e c a u s e , within the systemic m y t h , it is the conflict of w i l l s — G o d ' s a n d m a n ' s — t h a t to begin with r u i n e d the perfection of E d e n . By contrast, w h e n it c o m e s to m a i n t a i n i n g the status q u o , b a l a n c e d e x c h a n g e s a n d considerations of equal r e s p o n sibility for a g r e e m e n t s freely u n d e r t a k e n govern. W i t h the class of conflicts that the H a l a k h a h takes u p in m i n d , we m a y m a k e a few obvious observations. T h e interest of c o r p o r a t e Israel c o m e s to realization in the disposition of conflicts b e t w e e n classes of society—workers a n d employers, craftsmen a n d householders, householders a n d householders, bailers a n d bailees, a n d the like. In all of these transactions, the system aims at not c o n f r o n t i n g conflict but r a t h e r i m p o s i n g the correct rule: dismantling a n d classifying the c o m p o n e n t s of the transaction, r e c k o n i n g on the rights a n d responsibilities of e a c h , a n d a d m i n i s t e r i n g the p e r t i n e n t rule. T h a t is best illustrated by the classifications of b a i l m e n t s a n d the conseq u e n t rules that p e r t a i n . T h e systemic interest, t h e n , is to c a r r y forward its analytical m e t h o d of hierarchical classification to the realm of conflict over p r o p e r t y : not so m u c h negotiation of difference as a d m i n i s t r a t i o n thereof.

VI. Between Israelites: The Halakhic View of Conflicts between Households. Restoring and Maintaining the Social Order W h e n we c o m p a r e the p r o g r a m of the Babas, which we have n o w considered in its principal parts, with the a c c o u n t of conflict between Israelites, we find a n a s y m m e t r y . Even by the liberal definition of "conflict" that operates here, articulated p r o b l e m s of conflict attract a t t e n t i o n in only a m o d e s t s e g m e n t of the Babas' topical p r o g r a m .

MAINTAINING THE SOCIAL ORDER

203

Entire chapters of Baba Q a m m a , C h a p t e r s O n e , T w o , Four, Six, Seven, Baba Mesia Chapters Four a n d Five, and Baba Batra, C h a p ters Four, Seven, a n d T e n — o n e third of the whole!—provoke no conflict between householders at all. A reprise of the topical programs of those chapters is hardly necessary to establish the simple fact: major c o m p o n e n t s of the laws of civil order are presented without provision for resolving conflict that pertains to those category-formations. We already know the kinds of issues that are portrayed in the framework of conflict. T h e y are those that encompass issues of responsibility and causation, will and intentionality, and establishing the facts of a case, for Baba Q a m m a and Baba Mesia 1-5, and those that insist on confirming established custom or agreed u p o n contracts, imposing rules of fairness, a n d the like, for Baba Mesia 6-10 and Baba Batra. W h a t do these facts show us? T h e answer is self-evident. T h e representation of conflicts is not r a n d o m l y distributed over the topical p r o g r a m of the Babas. R a t h e r , the H a l a k h a h is so portrayed as to identify principles for the resolution of conflict and to realize those principles in particular components of the Babas' topical repertoire. T h a t means when we wish to explain how, for the civil law, conflict is resolved, we step aside f r o m the governing p r o g r a m of the triple tractate. Instead, we select those c o m p o n e n t s that serve a different expository purpose. Now, in the present context, the topics prove instrumental in establishing a proposition that applies as required to all topics equally. Conflicts in theory can arise anywhere. But only w h e n the resolution of conflict focuses u p o n a few t r a n s c e n d i n g principles do they become central to the sages' purpose in presenting the Halakhah in its well-crafted category-formations of MishnahTosefta-Yerushalmi-Bavli. W e already know what these principles are, which is to say, the Halakhic view of conflicts that require resolution in the enterprise of restoring and maintaining the social order. T h e y concern issues of causation, will, a n d responsibility; affirming the status q u o of fairness, balance; methods for deciding the facts of a case; a n d imposing an oath in specified cases for settling conflicting accounts of the facts of a case. In theory, the principles embodied in the cases of consequential conflict apply t h r o u g h o u t the civil law. But the specific realizations of those principles come to the surface only in the particular topical c o m p o n e n t s of the system that we have iden-

204

CHAPTER THREE

tified. It is time to step b a c k a n d seek perspective o n the system of conflict-identification a n d conflict-resolution in the civil o r d e r as a whole. A. The Halakhic Definition of the Systemic Interest and how it is Realized T h e task is n o w to place the entire m a t t e r into its larger systemic context. Dealing with conflict between Israelite householders is where R a b b i n i c J u d a i s m ' s restorationist theology, which I have spelled out in Theology of the Oral Torah: Revealing the Justice of God,1 makes its deepest i m p a c t u p o n the H a l a k h a h . T h a t theology aims at recapitulating within the social o r d e r of Israel the h u m a n condition p o r trayed in the narrative of Eden. With its stress on preserving the status q u o , securing for all parties to a t r a n s a c t i o n a p r o p e r e x c h a n g e so that value r e m a i n s c o n s t a n t , designing a n d sustaining a social o r d e r a i m e d at a n equitable structure a n d secured by a n c i e n t custom, the H a l a k h a h realizes the p r o m i s e of E d e n . T h a t is because it establishes a n d m a i n t a i n s stasis, which signifies perfection, all things in their place, every c o m p o n e n t of the social o r d e r realizing the p u r p o s e for w h i c h it was c r e a t e d , all p e r s o n s possessing a p p r o p r i a t e value in p r o p e r t y , security in p e r s o n . T h a t goal the H a l a k h a h accomplishes, as is clear, by righting i m b a l a n c e s a n d preserving balances. M a t t e r s t h a t Scripture presents episodically, the H a l a k h a h p o r t r a y s systematically, as we saw in B a b a Q a m m a . Is that to suggest the Babas simply translate into public law w h a t is implicit in the n a r r a t i v e of Scripture? N o t h i n g could be f u r t h e r f r o m the facts. Scripture figures in, b u t does not define, the H a l a khic p r o g r a m . I n d e e d , the p u r p o s e of the H a l a k h a h of the Babas in n o w a y c o m e s to entire realization in the articulation of the law of Scripture on the topics at h a n d . T h a t is p r o v e d by the simple fact that most of B a b a Mesia a n d B a b a Batra pursues p r o b l e m s to which S c r i p t u r e in n o w a y d e v o t e s itself. So w h e r e S c r i p t u r e p r o v i d e s H a l a k h a h , the O r a l T o r a h faithfully a t t e n d s to that H a l a k h a h ; b u t the O r a l T o r a h in n o w a y limits itself to Scripture's r e p e r t o i r e of topics. M o r e to the p o i n t , the O r a l T o r a h organizes the H a l a k h a h systematically, but in a c c o r d with its o w n system a n d its p r o b l e m a t ics, not in a c c o r d with the s y s t e m — t h e o r d e r , the p r o g r a m — o f the W r i t t e n T o r a h . W e have, t h e r e f o r e , to look elsewhere for the con' Montreal & Kingston, (1998: McGill-Queens University Press).

MAINTAINING THE SOCIAL ORDER

205

text—the theological p r o g r a m — t h a t animates the H a l a k h a h of the Babas. For that purpose, our mind naturally turns to the results of our reading of the Aggadic formulation of matters, specifically, the formation of a theological structure a n d system to spell out the m e a n ing of the generative conviction that the one a n d only G o d created the world i n j u s t i c e . T h a t system further found its dynamism in the dialectics of God's justice and the world's manifest imperfections, such as are embodied in the realities to which the Babas are devoted. T h e tension between divine justice and m a n ' s fate, the claim of a perfect creation and the palpable failure of world order to realize stasis and perfection, c o m e to resolution in the T o r a h ' s story of h u m a n i t y beginning with Eden, losing Eden, attaining regeneration through the T o r a h , a n d recovering Eden. F r o m Eden m a n through an act of arrogant will sinned a n d was expelled. But through the T o r a h , given to Israel defined by the T o r a h as G o d ' s people, G o d repaired the condition of m a n . In the realization of the T o r a h , m a n through Israel will return to Eden, the world to its intended, a n d original, perfection. T h e H a l a k h a h before us takes as its task the work of defining how, in full realization in the here and now, Israel's interior relationships may c o n f o r m to the principles of perfection embodied in Eden in the beginning, and in the Land of Israel at the end. Stability, stasis, equity in exchange a n d restoration of what is i n e q u i t a b l e — t h e s e m a r k p e r f e c t i o n of the social o r d e r that the H a l a k h a h proposes to bring about in Israel's inner existence. Specifically, we have to ask, what has the restorationist reworking of the civil order into a state of perfection and stasis to do with Israel's interior bonds a n d relationships—and why does the limited, crafted repertoire of instantiation of conflict and the resolution thereof take the shape that it does? H o w , specifically, does the formation of a civil order of stable, p r o p o r t i o n a t e relationships in accord with principles of justice bring about Israel's right relationship with God? Asking the question in this way dictates the answer. T h e opening u n i t — B a b a Q a m m a a n d the first half of Baba Mesia—undertakes the more difficult labor of restoring the perfection of the social order, the closing unit, the rest of Baba Mesia and Baba Batra, the easier one of maintaining it. H o w do sages accomplish their statem e n t in the m a t t e r of restoring o r d e r a n d value? T h r o u g h their exposition of Scripture's laws of injury and misappropriation and through their formulation of their own, m u c h m o r e elaborate top-

206

CHAPTER THREE

ical program for the civil order and the resolution of conflict at home, sages expose the rationality a n d order that inheres in the episodic rules of Scripture. Since, in their intellectual context, consistency, immutability, c o h e r e n c e m a r k perfection, sages affirm that in its details the T o r a h ' s design for dealing with conflict within holy Israel promises to perfect Israel's workaday world in the model set forth at Sinai. T h e Written T o r a h makes clear G o d ' s intense interest in the justice a n d equity of the Israelites' ordinary transactions a m o n g themselves. T h e y are to form the kingdom of priests a n d the holy people. T h e i r conduct with one a n o t h e r — t h e Written T o r a h ' s civil law insists in every line—shapes G o d ' s j u d g m e n t of t h e m a n d therefore dictates their fate. So sages here demonstrate what a m a n can do actively to participate in the perfection of the social order through the results of his own and his chattels' conduct. H e r e the consideration of m a n ' s free will proves p a r a m o u n t : what m a n by an act of will has upset, m a n by an act of will must restore. G o d ' s role in that transaction is defined with precision, as we shall see presently. Specifically, in accord with the H a l a k h a h of Baba Q a m m a m a n undertakes to assume responsibility for what he does, always in just proportion to causation. Within Israel's social order what G o d wants a m a n to do is take responsibility for his own actions, for the results of w h a t he or his chattel has d o n e — n o m o r e , no less. A n d that pervasive point of insistence transforms our view of the Halakhic category before us. T r u e , it forms an exercise in restoration and stasis of the just society. But in the details of the law is worked out a chapter of theological anthropology, an answer to the question, what, in the formation of the just society, can a m a n do? A n d the answer is, a m a n can a n d must take responsibility for not only w h a t he does but also—and especially—what he brings about. H e is answerable for the things he m a y not have d o n e but has caused to h a p p e n . Viewed in this way, the laws of Baba Q a m m a form a massive essay u p o n the interplay of causation a n d responsibility: w h a t one can have prevented but through negligence (in varying measure depending on context) has allowed to take place, he is d e e m e d in that same measure to have caused. And for that, he is held in that same measure to make amends. N o t only so, but the classification of types of conflict and their resolution conforms, underscoring the sources of conflict in irresponsibility a n d overreaching a n d disrupting the established order. A n d therein, in the account of conflict, its sources a n d resolution, independent of the topical p r o g r a m of the Babas a n d pro-

MAINTAINING THE SOCIAL ORDER

207

portioned within a different paradigm altogether, as I shall point out presently, lies the systemic message in its most dynamic formulation. It follows that m a n in all of his dignity is portrayed through the H a l a k h a h of the Babas as possessed [1] of free will to assume responsibility, on the one side, and [2] of the power to take action in consequence of responsibility, on the other. And that principle assûmes religious status in two steps. First, in the words of the Written T o r a h G o d himself has f r a m e d the laws that link causation a n d responsibility—negligence a n d culpability, for instance. In the very portrayal of the holy society that Israel at Sinai is c o m m a n d e d to realize, G o d ' s stake in m a n ' s f r a m i n g of the social order is m a d e explicit. And consequently, second, Israel in the workaday transactions of one person with a n o t h e r acts out in this-worldly terms its governing principle of transactions with Heaven. T h e one in palpable terms shows the character of the other in intangible ways. In a society ordered by G o d ' s justice—as Israelite society is supposed to b e — m a n will acknowledge his responsibility a n d bear the consequences of his actions. T h e negative here makes all the difference. W h a t will Israelite m a n not do? H e will not deny or dissimulate. H e will not blame others but take no blame himself. W'hen he has upset the social order by diminishing the other and aggrandizing the self, by altering the terms of an established contract or covenant, he will restore the balance he has upset. C o n f r o n t e d with the result of his own negligence or worse, m a n cannot shift the burden of blame or avoid responsibility for the consequences of what he has caused. And the entire a r r a n g e m e n t for restoring the social balance a n d preserving the social order builds u p o n that principle. In a situation of stasis, on the other side of the equation, m a n will keep his word, abide by agreements that are rationally shaped to a c c o m m o date the interests of all parties. T h e social order then forms an exercise in m a n ' s accepting responsibility for what he does. W h a t , in Israelite context, marks that statement as critical to the religious world of the T o r a h ? T o answer that question, we revert to the initial point at which the world order of perfection was disrupted by an act of m a n . And when we take u p that m o m e n t of flaw and imperfection, we must examine whether and how the consideration of accepting responsibility for the d a m a g e one has done enters in. In this context, then, we turn to beginnings. We revert, specifically, to the story of A d a m ' s fall from Eden by reason of rebellion against G o d ' s word. For the

208

CHAPTER THREE

theology of the sages of the O r a l T o r a h , the fall is r e c a p i t u l a t e d in the setting of Israel's loss of the L a n d for rebellion against the T o r a h . Israel's r e t u r n to the L a n d m a r k s the o p p o r t u n i t y to correct the errors of E d e n . T h e Babas in their sector of the system of the H a l a k h a h spells out h o w this is to be d o n e . H o w does the m a t t e r of taking responsibility for w h a t o n e has caused p e r t a i n , so that the H a l a k h a h b e f o r e us t u r n s out to realize in its t e r m s the challenge of t h e fall a n d Israel's response to the restoration: d o right w h a t then went wrong, correct the error of Eden. T h e story of m a n ' s disobedience in E d e n (Gen. 3:11-13) tells w h y m a n ' s a c c e p t i n g responsibility for w h a t he causes f o r m s the c e n t e r of t h e H a l a k h a h of d a m a g e s a n d m i s a p p r o p r i a t i o n . H e r e is t h e original version of m a n ' s denial of responsibility: G o d : Did you eat of the tree from which I had forbidden you to eat? M a n : The woman you put at my side—she gave me of the tree and I ate G o d : What is this you have done? W o m a n : The serpent duped me and I ate. At the center of the story of the h u m a n condition after E d e n is m a n ' s a n d w o m a n ' s denial of responsibility for the d e e d e a c h did, a n d , implicitly, rejection of responsibility for the c o n s e q u e n t loss of E d e n that is c o m i n g . At the h e a r t of the H a l a k h a h of the Babas is the opposite: Israelite m a n ' s explicit acceptance of responsibility for what he causes. W h y so? Because if Israel wants to show G o d that it is regenerate, h o w better to d o so t h a n act out in cases of d a m a g e s a n d i n j u r y the r e q u i r e m e n t to b e a r responsibility for w h a t o n e does a n d causes to h a p p e n (Adam, Eve, respectively)? H e r e in its everyday c o n d u c t of the inner affairs of the c o m m u n i t y , Israel shows h o w , unlike A d a m a n d Eve, t h r o u g h the instruction of the T o r a h , Israel has learned what it m e a n s to take responsibility for injury a n d d a m a g e to others, a n d , m o r e still, to accept the obligation of preserving the status q u o of b a l a n c e , o r d e r , a n d teleological perfection. W i t h i n Israel's w o r k a d a y life, in the very practicalities of conflict a n d its resolution a i m e d at restoring a n d preserving the perfection of the status q u o , is c o n d u c t e d a n o n - g o i n g exercise. It is o n e of m a k i n g explicit one's responsibility for w h a t one has caused, t h e n a p p o r t i o n i n g d a m a g e s in p r o p o r t i o n to o n e ' s negligence or malfeasance. T a k e the conflicts arising in B a b a Q a m a a n d the message of h o w they are resolved. W h a t is voluntary, foreseeable, a n d p r e v e n t able imposes m a x i m u m liability for restoration. M a n c a n n o t b l a m e

MAINTAINING THE SOCIAL ORDER

209

his ox, nor in the public way impose u p o n bypassers the responsibility to a c c o m m o d a t e the obstacles he has set up. T h e premise of the exercise is that Israel's inner affairs, the transactions between and a m o n g Israelites, in the most practical terms, are conducted as a test of whether regenerate man—Israelite m a n — c a n bear responsibility for his own actions, now viewed in the broadest context of causation, and, if so, what it means to m a t c h levels of compensation to degrees of responsibility. N o excuses ("the w o m a n you put at my side," "the snake d u p e d me") exculpate w h e n one has caused d a m age, because Israelite m a n assumes the burden of his actions and takes responsibility so far as possible to restore the world to its original condition, before, in the here a n d now, some deed or act of negligence of his has disrupted it. I can think of no m o r e direct response to "the w o m a n . . . t h e snake..." t h a n the language, "In the case of anything of which I a m liable to take care, I am deemed to render possible whatever d a m a g e it may do." So m u c h for the first of the Babas. T h e second and third gates complete the picture. H e r e the issue is sustaining the social order, as we have seen. H e r e too attitude and intentionality come into play, but in a different way from before. Sin, crime, torts and d a m a g e s — these carry forward bad attitudes; differentiating types a n d degrees of intentionality when addressing how the social order is disrupted yields nothing of interest. By contrast, in treating ordinary exchanges a n d transactions, the H a l a k h a h turns out to form an essay on when intentionality matters and when it does not. H o w is this the case? W h e n it comes to restoring the perfection of society, specifically, where do we take account of intentionality a n d where not? Intentionality or attitude matters in situations of conflict. T h e n the attitude of both parties makes all the difference, since to resolve condieting claims, we have in the e n d to conciliate all parties to a c o m m o n outcome; there, intentionality or attitude forms the critical m e d i u m for restoring and sustaining balance a n d order. Parties to an exchange are now responsible to one another, and they must intend the outcome to be a proportionate a n d equal exchange of value. Both parties must accept the outcome, that is, form at the end the same attitude toward the transaction. A claim of ownership ends in an act of despair. Responsibility is proportionate to the attitude of the bailiff, that is, to the degree of accountability that he has accepted to begin with. So m u c h for the uses of intentionality in the restoration and m a i n t e n a n c e of the social order.

210

CHAPTER THREE

But then where do we dismiss as null all considerations of intentionality or attitude, even when parties to an exchange concur? In market transactions, by contrast, true value overrides the attitude of the players, who cannot agree to an exchange that in objective terms is d e e m e d null. Even where all parties agree, the T o r a h too must approve. And, we noted, we impute to all parties the same attitude and deny the pertinence of idiosyncratic or private meanings. Broadly-held expectations govern, whether those of custom or of the written T o r a h ' s own law. In these two ways—the T o r a h ' s law, which is not relative to the will of m a n , a n d established custom, which defines the n o r m for man—intentionality possesses no power, because it serves no purpose in restoring or sustaining the balances of a wellordered society. W h a t message emerges w h e n we move f r o m the illicit to the licit, the a b n o r m a l to the normal, the first half of the Babas to the second? T h e transactions that all together form the ordinary life of inner Israel, Israel on its own, yield two matching propositions. First, when it comes to acts that disrupt the social order, m a n is responsible for w h a t he does. But, second, when we t u r n to transactions that sustain the ordinary relationships within Israel, m a n ' s p r o p e r intentionality takes over. T h e n m a n ' s will forms only one element in a complex transaction. W h e r e wills clash, compromise takes o v e r — t h a t is the message of the layer of the law devoted to conflict. W h e r e the T o r a h imposes its own rule, intentionality is null. Publicly-accepted custom a n d p r o c e d u r e take the p a r a m o u n t position. In cases of negligence or malfeasance, m a n takes responsibility for what he has d o n e — s o m u c h for the first half of the Babas. In the Babas these distinct and inter-related forces—[1] man's will, [2] G o d ' s law, a n d [3] accepted public practice—are far f r o m abstractions. Each contributes to conflicting relationships between Israelites. In the interplay of individual will, G o d ' s absolute law, and ancient, e n d u r i n g custom, Eden endures in the realization of Israel in the here a n d now. N o w o n d e r the great teacher, Samuel, took the view, " T h e r e is no difference between the world to come and the days of the messiah, except the end of the subjugation of the exilic communities o f l s r a e l " (B. S a n h é d r i n 11:12 1.24/9IB). T h a t is to say, in context, the Messiah will restore Israel to the L a n d (one of his two principal missions, raising the dead beyond the other), the T o r a h to the government of Israel in the Land. T h e n , for all eterni-

MAINTAINING THE SOCIAL ORDER

211

ty m a r k e d by " t h e world to c o m e , " E d e n once recovered will end u r e forever. But w h a t precisely is m e a n t by " E d e n " ? In t h e context of the A g g a d a h , E d e n is a location. But for the H a l a k h a h E d e n is an occasion, a situation, a m o d e of o r g a n i z a t i o n , a condition a n d not a location. In the s t a t e m e n t of the H a l a k h a h , specifically, E d e n is a condition that prevails in the here a n d n o w of inheritances a n d wills, real estate a n d market transactions, a circumstance that comes a b o u t in the c o m p r o m i s e of conflict a n d t h r o u g h the fair a n d just a r r a n g e m e n t s b r o u g h t a b o u t a m o n g the h o u s e h o l d e r a n d laboring craftsm a n a n d f a r m worker. W i t h the p r o p e r intentionality, in full responsibility, maintaining the ancient order a n d arrangements of the T o r a h , Israel in the L a n d will realize E d e n — t h i s time a r o u n d forever. T h a t is w h y the stakes a r e so high w h e n it c o m e s to c o n f r o n t i n g a n d resolving conflict b e t w e e n Israelites. B. Considerations that Come into Play W h a t is p a r t i c u l a r to IsraePs social o r d e r in all this, a n d o n w h a t basis does sages' doctrine of the social o r d e r speak of that c o r p o r a t e Israel that is u n i q u e in h u m a n i t y ' s social a r r a n g e m e n t s ? W h y should conflicts b e t w e e n individual householders, w h e t h e r Israelite or not, be defined a n d resolved in a n y different w a y f r o m the o n e b e f o r e us? I n d e e d , in all aspects b u t one, the H a l a k h i c p r o g r a m for restoring a n d m a i n t a i n i n g the social o r d e r presents little that is p a r t i c u l a r to the H a l a k h i c theory of c o r p o r a t e Israel a n d m u c h that is plausibly c h a r a c t e r i z e d as quite u n r e m a r k a b l e , s h a d i n g over into m e r e " c o m m o n sense." T h e insistence on c a r r y i n g out a g r e e m e n t s , taking responsibility, assessing d a m a g e s a n d restoring the wholeness of injured parties—that will not have surprised the framers of other legal systems of the social o r d e r b o t h t h e n a n d there a n d here a n d now. But in one detail the H a l a k h i c view of resolving conflict is noteworthy. A n d that is Scripture's c o n t r i b u t i o n , which is, the imposition of the o a t h in special circumstances, all of t h e m involving contention. T h a t provision for resolving conflict pertains in particular to conflict b e t w e e n Israelites. T h a t is the p o i n t at which the H a l a khic system addresses conflicts in Israel in particular, whether in order to restore or to m a i n t a i n the social o r d e r . T h e r e , a n d principally there, the certainties of applying the right rule to the a p p r o p r i a t e case give way, a n d the conflict over the facts of the case registers. O r d i n a r i l y , t h e H a l a k h a h does n o t really c o n f r o n t conflict. It

212

CHAPTER THREE

reorders relationships in accord with prevailing rules. It does not so m u c h settle disputes as close t h e m off. N o r , most commonly, does it rely upon an adversarial transaction to resolve contention. In most of the cases we have reviewed, as I said, the system prefers to find the correct rule and impose that rule. It carries over into relationships of social contention its theory that all things are subject to the rules of hierarchical classification, so that, when we have found out the prevailing pattern, we also know how to sort out the conflicting claims at h a n d , e.g., between householder and workers or bailiff and bailer, that is, the one with w h o m the bailment is left, the one who deposited it. T h e r e , when we know the classification of the bailiff, we know that for which he bears responsibility and that for which he is not responsible; then the o u t c o m e is dictated by the t a x o n o m ic process that takes over a n d resolves the case of conflict. But that is not always so. At a few, significant turnings, H e a v e n is invoked to participate in settling not scores but conflicting claims. T h e n G o d ' s presence in Israel, a presence that is ubiquitous a n d eternal, becomes the governing premise in the resolution of conflict. Specifically, there are cases in which we know the governing classification of participants a n d their actions, e.g., responsible or not responsible, c o n f o r m i n g to established agreement or not conforming. W h a t we do not know are the facts of the transaction, e.g., has the widow collected her marriage-settlement, has the bailiff faithfully attended to the bailment? W h e t h e r affected by issues of intentionality, in C h a p t e r T h r e e , or u n t o u c h e d by such intangible considerations, as in the present C h a p t e r , the transaction is the same. T o one party or a n o t h e r is administered the oath, and, taking it establishes the truth of the claim, e.g., the bailiff, the widow, respectively. T h e o a t h — w h o takes it, what issues are covered by it—forms the one m e d i u m for the resolution of social conflict that transcends universals of fairness a n d faithfulness to agreements. H a v i n g been taken, the oath in G o d ' s n a m e automatically establishes the facts of the m a t t e r a n d resolves the conflicting claims of the participants to the transaction. But then the oath presupposes that G o d is present, hears the oath, and himself knows the facts of what has occurred. So here is a legal system that at critical turnings invokes an other-than-this-worldly power and presence to make the system work. W e deal with a social doctrine, a doctrine of conflict, that at its foundations is a theological doctrine in the strictest sense. Israelite society at this particular m o m e n t invokes G o d ' s very près-

MAINTAINING THE SOCIAL ORDER

213

ence in its midst: he knows the facts, he hears the claims, he responds when his n a m e is called upon. I cannot overemphasize the importance of the legal procedure for resolving conflict through the ordeal of the oath, counterpart to the ordeal of drinking the bitter water, in which, also, an oath is taken. H e r e is a system that specifically relies on G o d ' s intervention to resolve conflicts as to allegations of facts. T h a t is because, at the foundations of the H a l a k h a h , the fact is, G o d is present at the taking of the oath, knows the truth, a n d will enforce the c o m m a n d m e n t against taking his n a m e in vain, meaning, taking an oath to sustain a lie. It follows that the social o r d e r is restored a n d m a i n t a i n e d t h r o u g h a variety of this-worldly principles a n d procedures, but permeating the entire system is an other-worldly consideration. T h a t is the eternal presence of G o d within Israel's social order, ever ready to engage with the Israelites in the ordinary conduct of their everyday affairs. Conflict between Israelites comes to resolution in one of two ways. Either the conflict can be administered in accord with established facts a n d procedures. So the status q u o takes over a n d rights itself. O r one or a n o t h e r party takes an oath in G o d ' s n a m e to support a claim as to the facts of the matter. So G o d intervenes— and by definition, that is not an extension of the regular, the orderly, the affirmation of the status q u o and its realization.

5.

THE PLACE OF THE OATH IN RESOLVING CONFLICTS BETWEEN ISRAELITES I. Invoking God's Presence in Israel's Conflicts O a t h s , in four classifications b u t for a single p u r p o s e , represent exceptional m e d i a for the resolution of conflict. 1 T h e oath of the j u d g e s , the o a t h of testimony, a n d the o a t h of b a i l m e n t all serve to i n t r o d u c e the criterion of t r u t h a n d to exclude the exercise of force. T h e c l a i m a n t seeks a j u s t restoration of his p r o p e r t y or c o m p e n s a tion for his loss, the d e f e n d a n t insists u p o n a fair a d j u d i c a t i o n of the matter. For that purpose, words backed u p not by deeds but by divine supervision serves. But c o n t e n t i o n precipitates also the r e m a i n i n g classes of oaths: the taking of the vain a n d rash oath. T h e rash oath involves securing c r e d e n c e for a p r e p o s t e r o u s a l l e g a t i o n — o n e that others deny. T h e vain o a t h asks p e o p l e to believe o n e will carry out a n implausible resolve, again b e a r i n g within itself the implicit m o tive to secure credibility w h e r e there is n o n e . So one w a y or a n o t h er, the o a t h serves, within the Israelite polity, to engage G o d ' s p a r ticipation within the transactions of m a n , to involve G o d in Israel's points of i n n e r conflict, to ask G o d to i m p a r t certainty to the points of stress a n d strain. Let m e explain. G o d is e v e r y w h e r e present, a n d ultimately, it is G o d w h o keeps Israel's peace. T h a t statement should be u n d e r s t o o d in concrete, not intangible ("spiritual") terms. T h e c o n c r e t e fact e m e r g e s f r o m w h a t

1

Whether it was desirable or otherwise to take an oath is not entirely clear to me. In the Halakhic evidence we survey, as well as in the corresponding Aggadic evidence, that question is rarely raised. Professor Guenter Stemberger, University of Vienna, provides the following: "The oath always remains an ultima ratio. Already in Second Temple Judaism there is a tendency to avoid oaths wherever possible (for the Essenes, see e.g. Josephus BJ 2,139 C D 15,1; in the New Testament, Mt 5,33ff belongs into the same context). Leviticus Rabbah 6,3 (and many similar texts) is, of course, Aggadic, but it expresses a widespread sentiment (that according to M. Nedarim 1,2 people sometimes use similar terms in order to avoid the word "oath" points into the same direction although here the word is already just an alternative for "vow"). I should therefore read all Halakhic texts with this consideration in mind. Evidence to the contrary would have to be very clear-cut."

OATHS AS MEDIA FOR RESOLVING CONFLICTS

215

we have learned about resolving conflict between Israel's families and households. Heaven's heavy stake in family ties, G o d ' s engagement in securing truth-telling in response to the invocation of his n a m e — these form the foundations of J u d a i s m ' s theory of the social order, its social teaching. T h a t is not always a p a r a m o u n t consideration, but it is everywhere potentially present. T r u e , conflicts that pertain to restoring a n d maintaining the social order come to resolution within the this-worldly media of Israelite society in all but the single instance of oaths. But that instance tells the tale. H e r e we find ourselves in the setting of the T e m p l e a n d its offerings, for oaths are prescribed at Leviticus 5-6 (not to m e n t i o n N u m b e r s 5, which we met in C h a p t e r T w o ' s survey of conflicts in the category-formation, Sotah), along with the offerings presented for taking a false oath. T h a t is where civil law a n d its matters of contention shade over from the realm of the everyday to the domain of the sacred. For the critical teaching of the social order is, G o d intervenes in transactions that, in all other aspects, are guided by this-worldly rules a n d exchanges. T h a t is because G o d is explicitly called to attest to the truth. Everywhere present, G o d knows the facts a n d "will not hold him guiltless who takes his n a m e in vain" by swearing to the contrary. O n w h a t basis does the H a l a k h i c system of Israel's social o r d e r confidently call u p o n G o d to resolve Israelites' own conflicts? T h e written T o r a h answers that question, specifying the character of oaths in G o d ' s n a m e a n d where they pertain. For its part, in the m a t t e r of oath-taking the Aggadah refines and systematizes and extends what the Written T o r a h has set forth. T h e H a l a k h a h of oaths, in tractate Shebuot, covers two distinct topics, [1] imparting uncleanness to the sanctuary and its Holy Things and [2] oaths. T h e y are joined by reason of the Written T o r a h ' s formulation of matters; the focus there (as in Sanhedrin-Makkot and Shebuot in the Halakhah) is on c o m m o n penalties for diverse sins or crimes. Accordingly, the category-formation of the H a l a k h a h , Shebuot, sets forth penalties effected through sacrificial offerings, the guilt-offering required at Leviticus C h a p t e r s Five and Six. A principal occasion for a guilt-offering is the violation of an oath or transgression against a bailment. Leviticus 5:1-6 set forth the oath of testimony, the case of one w h o in the cult touches what is unclean, a n d the rash oath; all bring a guilt-offering. Lev. 6:1-7 proceed to bailments in which a false oath has been taken.

216

CHAPTER THREE

T h a t the bailiff—the one with w h o m a bailment is deposited—is responsible to take an oath at the instance of the claim of the one w h o has left the bailment, the bailer, a n d not required to m a k e restitution if he has not committed negligence is indicated in the following: For every breach of trust, whether it is for an ox, for ass, for sheep, for clothing, or for any kind of lost thing, of which one says, "This is it," the case of both parties shall come before the God; he who God shall condemn shall pay double to his neighbor. If a man delivers to his neighbor an ass of an ox or a sheep or any beast to keep, and it dies or is hurt or is driven away, without anyone seeing it, an oath by the Lord shall be between them both to see whether he has not put his hand to his neighbor's property; and the owner shall accept the oath and he shall not make restitution. But if it is stolen from him, he shall make restitution to its owner. If it is torn by beasts, let him bring it as evidence; he shall not make restitution for what has been torn. If a man borrows anything of his neighbor and it is hurt or dies, the owner not being with it, he shall make full restitution. If the owner was with it, he shall not make restitution; if it was hired, it came for its hire (Exodus 7:15ff.). T h e bailiff concedes part of the claim ("This is it"), a n d G o d settles the matter. So too, the character of the oath that resolves the matter, which responds to the nature of the claim of the competing parties depends, further, on w h a t portion of the property a claimant alleges is his. T h e will of each party enters into the transaction, therefore, embodied as it is in the extent of each party's claim. T h e themes are [1] oaths of adjuration; [2] imparting uncleanness to the T e m p l e and its Holy Things; [3] the rash oath; [4] the false claim in connection with bailments. Lev. 5:1-13 are as follows: If any one sins in that he hears a public adjuration to testily and though he is a witness, whether he has seen or come to know the matter yet does not speak, he shall bear his iniquity. Or if any one touches an unclean thing, whether the carcass of an unclean beast or a carcass of unclean cattle or a carcass of unclean swarming things, and it is hidden from him, and he has become unclean, he shall be guilty. Or if he touches human uncleanness, of whatever sort the uncleanness may be with which one becomes unclean, and it is hidden from him, when he comes to know it he shall be guilty; or if anyone utters with his lips a rash oath to do evil to do good, any sort or rash oath that men swear, and it is hidden from him, when he comes to know it, he shall in any one of these be guilty. When a man is guilty in any of these, he shall confess the sin he has committed, and he shall bring his guilt offering to the Lord for

OATHS AS MEDIA FOR RESOLVING CONFLICTS

217

the sin that he has committed, a female from the flock, a lamb or a goat, for a sin offering, and the priest shall make atonement for him for his sin. But if he cannot afford a lamb, then he shall bring as his guilt offering to the Lord for the sin that he has committed two turtledoves or two young pigeons, one for a sin offering and the other for a burnt offering. He shall bring them to the priest, who shall offer first the one for the sin offering; he shall wring its head from its neck, but shall not sever it, and he shall sprinkle some of the blood of the sin offering on the side of the altar; it is a sin offering. Then he shall offer the second for a burnt offering according to the ordinance; and the priest shall make atonement for him for the sin that he has committed, and he shall be forgiven. But if he cannot afford two turtledoves or two young pigeons, then he shall bring, as his offering for the sin that he has committed, a tenth of an ephah of fine flour for a sin offering; he shall put no oil upon it, and shall put no frankincense on it for it is a sin offering. And he shall bring it to the priest, and the priest shall take a handful of it as its memorial portion and burn this on the altar, upon the offerings by fire to the Lord; it is a sin offering. Thus the priest shall make atonement for the sin that he has committed in any one of these things, and he shall be forbidden, and the remainder shall be for the priest, as in the cereal offering. Lev. 6:1-7 on bailments completes the matter, a n d its distinctions, along with those at Ex. 7:15ff., play a role in the Halakhic exposition: Lev. 6:1-7: "The Lord said to Moses, If any one sins and commits a breach of faith against the Lord by deceiving his neighbor in a matter of deposit or security, or through robbery, or if he has oppressed his neighbor or has found what was lost and lied about it, swearing falsely, in any of all the things that men do and sin therein, when one has sinned and become guilty, he shall restore what he took by robbery, or what he got by oppression or the deposit that was committed to him or the lost thing that he found or anything about which he has sworn falsely; he shall restore it in full and shall add a fifth to it and give it to him to whom it belongs, on the day of his guilt offering." "And he shall bring to the priest his guilt offering to the Lord, a ram without blemish out of flock, valued by you at the price for a guilt offering, and the priest shall make atonement for him before the Lord, and he shall be forgiven for any of the things that one may do and thereby become guilty." T h e H a l a k h a h of oaths defines types of oaths and the counts on which, in the taking of an oath that turns out to be false or that is violated, one incurs culpability. T h e first issue involves all oaths in general. It concerns the assessment of the divisibility of a mental

218

CHAPTER THREE

condition: how m a n y counts of guilt does one incur within a single oath by multiple acts in violation thereof? T h e answer derives from a close reading of the language that is used; if it is partitive, treating as distinct each component of the oath ("wine, oil, and honey"), each action is culpable, forming a distinct classification. If it is inclusive, treating as a g r o u p a variety of categories ("many different beverages"), all actions fall into the same classification a n d are penalized u n d e r a single count. From rules pertinent to all oaths, the Halakhic exposition proceeds to the subdivision of oaths into four categories, noted earlier: rash, vain, testimony a n d bailment. A separate category of oaths, those imposed by the judges as p a r t of a court proceeding, is taken up in due course. T h e s e four principal types obviously fall into two distinct categories as well, the f o r m e r being oaths of a private character, the latter involving public policy—the courts, the protection of property. O n c e m o r e we distinguish inadvertent taking of such an oath, in which case an offering suffices, a n d deliberately doing so, in which case the sanction is corporal. T a k i n g the f o r m e r two types of oath is itself culpable, in the latter cases, violating the oath or taking the oath u n d e r false pretenses is culpable, an important difference. T h e rash or vain oath takes effect as a general statement, the oath of testimony or of bailment must be particular to the case at h a n d . O n e is not penalized for taking a true oath of testimony or oath of bailment, but one is automatically subject to sanctions for taking a rash or a vain oath. T h a t difference accounts also for the character of the rules that define the application of the law: m e n a n d w o m e n , relatives a n d otherwise, a n d the like. O a t h s pertaining to the court m a t t e r only w h e n taken by those qualified to give testimony, e.g., m e n not w o m e n , unrelated parties but not relatives of the litigants, a n d the like. T h a t explains, also, why for these categories of oaths only taking a false oath is penalized. In these cases, too, the oath must be particular to the case, e.g., imposed on specific, n a m e d persons. T h e judges investigate the case by imposing oaths. These form their own category, involving not only private persons but the agency of the c o m m u n i t y at large. T h e judges exercise the power to impose an oath u p o n contesting parties, in the certainty that Israelites will not take a false oath, involving G o d ' s n a m e or Presence. H e r e the character of the claim and the concession governs. If the defendant denies that he owes anything, he is exempt from having to take an

OATHS AS MEDIA FOR RESOLVING CONFLICTS

219

oath; if he concedes the facts but quibbles about details, he is required to do so. And once he does, he prevails and pays no m o r e than he has conceded. T h a t indicates the power of the oath in court. Five classes of claimant take the oath and collect what they claim. T h e oaths as they affect bailments are subdivided in terms of the character and quality of the guardianship promised by the bailiff, the unpaid bailiff being held to a lower standard than the paid bailiff, and so on. H e r e the oath proves effective where there are no witnesses as to the facts. T h e facts on which the H a l a k h a h builds derive wholly from Scripture, and even the proportions of the category correspond with those of the relevant passages of Scripture. T h e H a l a k h a h explores the character of the breach of faith toward God: knowingly, not knowingly. As to oaths, the H a l a k h a h finds its dynamic in the differentiation a m o n g spells of awareness, c o m p a r a b l e to the spells of knowing or unknown involved in contaminating the cult. Here too we deal with the assessment of the mental state: the divisibility of a mental condition a n d the counts on which one is liable therefor. W h e n it comes to the penalties for diverse types of oath, the point of interest derives from inadvertent as distinct f r o m deliberate taking of a false oath. So far as the H a l a k h a h forms more than a systematic presentation of facts but, rather, an inquiry into a problem instantiated by facts, the H a l a k h a h takes as its problem the interplay of consciousness and activity: what did one know when, a n d with what result? Certainly that point of interest will not have astonished Moses, who formulates the law in such a way that the intentionality of the actor always comes to the fore: someone sins by swearing that he has not testimony to give when he does, a n d so throughout. Every case set forth by Moses involves a deliberate action, based on firm knowledge of facts and the consequences of one's own intentional deed. T h a t is why someone, guilty in any of these, has the power to confess: he knew just what he was doing and did it anyhow—all the more so the breach of faith in regard to bailments! We may, therefore, conclude that the H a l a k h a h has identified the animating consideration of Scripture's law, which is the deliberate act of deceit of one sort or another, and has recapitulated the character a n d the results of intended deceit.

220

CHAPTER THREE

II. Shebuot N o w in t h e context of S h e b u o t , w e address in p a r t i c u l a r t h e définition of conflict a n d h o w it is resolved. A. The Definition of the Relationship and of Conflicts of Systemic Interest in that Relationship M. 5:2 A11 oath concerning a bailment—how so? He said to him, "Give me my bailment which I have in your hand" "I swear that you have nothing in my hand"—or if he said to him, "You have nothing in my hand,'' "I impose an oath on you", and he said, "Amen" lo, this one is liable. [If] he imposed an oath on him five times, whether this is before a court or not before a court, and the other party denied it, he is liable for each count. T. 2:11 [If] one was looking for witnesses—"Why are you coming after us? We swear that we know no testimony concerning you"—they are exempt until he will lay claim on them. But in the case of a bailment, the law is not so. But: "Why are you coming after me? I swear you have nothing in my hands"—he is liable. This rule is more strict in the case of an oath regarding a bailment than in the case of an oath regarding the giving of testimony by witnesses [cf. M. Sheb. 5:2]. T. 2:12 [If] he said to witnesses, "Come and give testimony concerning me, that I have in the hand of Mr. So-and-so two hundred zuz, deriving from the matter of a hired hand or money owing to my wife and daughters"—"We swear that we will not testify concerning you"— Lo, these are exempt, until they say, "We swear that we do not know any evidence concerning you." And so is the rule concerning a bailment: [If] he said to him, "Give me the two hundred zuz which I have in your hand, deriving from the matter of a hired hand or money owing to my wife and daughters" "I swear that I will not give a thing to you"— he is exempt, until he will say to him, "I swear that you have nothing whatsoever in my hands." T. 2:13 [If he] said to witnesses, "Come and give testimony concerning me, that Mr. So-and-so promised to give me two hundred zuz, and he has not given it to m e / ' "a garment in which to clothe myself, and he has not clothed me." "We swear that we know no evidence concerning you"—they are exempt, for they may claim, " H e promised to give you, but it is not possible for him to give it to you." Or, " H e promised to clothe you, but it is not possible to clothe you." And so is the rule for a bailment. Y. 5:2 1:1 "If any one [sins in that he hears a public adjuration to testify, and though he is a witness...does not speak]," (Lev. 5:1). "[Ij] any one [sins and commits a breach offaith...by deceiving his neighbor in a matter of deposit or security]" (Lev. 6:1). Just as [with reference to the oath of bailment] the oath is taken on one's own initiative ["I swear"], so with reference to the oath of testimony, the

OATHS AS MEDIA FOR RESOLVING CONFLICTS

221

oath may be taken on one's own initiative [as at M. 5:2CJ. Just as with reference to the oath of testimony, the oath may be administered by others ["Do you swear" "Amen"], so with reference to the oath of bailment the oath may be administered by others [as at M. 5:2D, thus in accord with the sages of M. 5:1]. 1. What is subject to dispute? In line with Scripture, t h e conflict c o n c e r n s a claim o n a b a i l m e n t denied b y t h e bailiff. T h e — w h o h a s left t h e b a i l m e n t — i m p o s e s t h e oath, t h e b a i l i f f — w h o is responsible for t h e b a i l m e n t — a c c e p t s it. If he h a s lied, h e is liable. T h e exposition proceeds, T . 2:12, to a n oath of a d j u r a t i o n . T h e o a t h h e r e m u s t c o n c e r n n o t t h e willingness to testify b u t t h e capability. T h e Y e r u s h a l m i ' s gloss underscores that the o n e w h o takes t h e o a t h must d o so, ultimately, o n his o w n initiative. 2 .How does the system resolve the conflict in line with the systemic interest that is in play? T h e taking of the o a t h resolves t h e conflict. T h e H a l a k h a h takes for g r a n t e d that Israelites take G o d ' s n a m e only with reverence a n d will not lie in that context. It f u r t h e r knows that G o d is p r e s e n t w h e n called u p o n , so if the o n e w h o takes t h e o a t h is lying, G o d will take note. M. 5:3 [If] five people laid claim on him and said to him, "Give us the bailment which we have in your hand"—"I swear that you have nothing in my hand"—he is liable on only one count. "I swear that you have nothing in my hand, nor you, nor you5'—he is liable on each and every count. "Give me my bailment, loan, stolen goods, and lost property [Lev. 6:2] which I have in your hand"—"I swear you have nothing in my hand"—he is liable on only one count. "I swear that you do not have in my hand a bailment, loan, stolen goods, or lost property"—he is liable for each and every count. "Give me the grain, barley, and spelt, which I have in your hand"—"I swear you have nothing in my hand"—he is liable on only one count. "I swear that you have not got in my hand wheat, barley, or spelt"—he is liable for each and every count. M. 5:4 "You raped and seduced my daughter"—and he says, "I did not rape and I did not seduce" "I impose an oath on you"—and he said, "Amen"—he is liable. M. 5:5 "You stole my ox"—and he says, "I did not steal it"— "I impose an oath on you,"—and he said, "Amen"—he is liable. "I stole it, but I did not slaughter it, and I did not sell it"—"I impose an oath on you"—and he said, "Amen"—

222

CHAPTER THREE

he is exempt. "Your ox killed my ox"—and he said, "It did not kill"—and he says, "I impose an oath on you"—and he said, "Amen"—he is liable. "Your ox killed my slave"—and he says, "It did not kill"—"I impose an oath on you5'—and he said, "Amen,''—he is exempt. [If] he said to him, "You injured me and made a wound on me," and he said, "I did not injure you and I did not make a mark on you," "I impose an oath on you"—and he said, "Amen"—he is liable. [If] his slave said to him, "You knocked out my tooth and you blinded my eye," and he said, "I did not knock out your tooth or blind your eye," and he said to him, "I impose an oath on you,"—and he said to him, "Amen"—he is exempt. This is the governing principle: Whoever pays compensation on the basis of his own testimony is liable. And whoever does not pay compensation on the basis of his own testimony is exempt [in the case of these oaths]. 1. What is subject to dispute? T h e issue n o w is t h e liabilities i n c u r r e d for multiple oaths, as spelled out. W e note that at M . 5:4-5 we m o v e o n f r o m bailments t o c o n flicts as t o t h e facts of o t h e r transactions altogether, including r a p e a n d theft. O n c e t h e o a t h is taken, w h e t h e r i m p o s e d b y t h e j u d g e s or b y t h e plaintiff, it is e n f o r c e a b l e . 2. How does the system resolve the conflict in line with the systemic interest that is in play? I see n o f u n d a m e n t a l interest n o t a l r e a d y established. M. 6:1 The oath imposed by judges [is required if] the claim is [at least] two pieces of silver, and the concession [on the part of the defendant is that he owes] at least a penny's [perutah's] worth. But if the concession is not of the same kind as the claim, [the defendant] is exempt [from having to take the oath]. How so? "Two pieces of silver I have in your hand"—"You have in my hand only a perutah"—he is exempt [from having to take the oath]. "Two pieces of silver and a perutah I have in your hand"—"You have in my hand only a perutah"—he is liable. "A maneh I have in your hand"—"You have nothing at all in my hand"—he is exempt [from having to take the oath]. "I have a maneh in your hand"—"You have nothing in my hand except for fifty denars"—he is liable. "A maneh belonging to my father you have in your hand" "He has nothing in my hand but fifty denars"—he is exempt [from having to take the oath], for he is in the status of one who returns lost property.

OATHS AS MEDIA FOR RESOLVING CONFLICTS

223

T. 3:1 He who imposes an oath on his fellow concerning a matter which involves a value of [at least] a perutah—Lo, this one [who has sworn falsely] pays the principal and an added fifth, and also brings a guiltoffering [Lev. 6:5]. And so too: he who imposes an oath on witnesses concerning a matter which involves a value of a perutah, and they denied [having evidence to give, and it turns out that they did have such evidence]lo, these are liable for an offering. But they are exempt from having to pay monetary compensation, since it is said, "And he will bear his iniquity" (Lev. 5:1). T. 5:1 The oath imposed by judges [is imposed] if the claim is [at least] two pieces of silver and a perutah, and the concession [on the part of the defendant is that he owes at least] a perutah's worth [M. Sheb. 6:1 A], And the concession is a perutah—of the same kind as the claim. And if the concession is not of the same kind as the claim, he is exempt [M. Sheb. 6:IB]. How so? "Two pieces of silver I have in your hand"—"You have in my hand only a perutah,"—he is exempt. "Two pieces of silver and a perutah I have in your hand"—"You have in my hand only a perutah"—he is liable [M. Sheb. 6:1C-I]. T. 5:5 "I have a maneh in your hand"—"You have nothing in my hand"—"You had it in my hand, but I gave it back to you"—or, "I have a maneh's worth of clothing," " a maneh's worth of produce in your hand"—or if he said to him, "You have only fifty zuz in my hand, but I have fifty zuz of utensils," or "fifty zuz of produce, in your hand"—he is exempt [from the requirement of taking an oath]. But if he said to him, "I gave you back fifty zuz of them," he would have been liable. For he is subjected to an oath on the strength of his own claim T. 5:6 "A maneh belonging to my father is in your hand" [M. Sheb. 6:1 P]—"He has nothing at all in my hand"—"He had something in my hand, but I gave it back to him"—or, "I have a maneh's worth of clothing," or "a maneh's worth of produce in his hand"—he is exempt [from the requirement of taking an oath]. Or if he had said to him, "He has only fifty zuz in my hand, and I have fifty zuz worth of produce, or "fifty zuz worth of utensils in his hand," he is exempt. But if he had said, "I gave back to him fifty zuz," he is liable. For lo, he is subjected to an oath on the strength of his own claim. T. 5:7 "I have a maneh in your father's hand"—"You have nothing in his hand"—"You had something in his hand, but he gave it back to you"—or, "He has in your hand clothing worth a maneh," or, "produce worth a maneh"—he is exempt. Or if he had said to him, "You have in his hand only fifty zuz, and he has in your hand fifty zuz worth of utensils," "fifty zuz worth of produce," he is exempt. But if he had said to him, "I gave him back fifty zuz," he would have been liable. For he is subjected to an oath on the strength of his own claim.

224

CHAPTER THREE

1. What is subject to dispute? N o w t h e issue is t h e w o r t h of the claim c o n c e r n i n g which t h e o a t h is taken. It must r e a c h a stipulated m i n i m u m . If it is less, t h e oath is null. 2. How does the system resolve the conflict in line with the systemic interest that is in play? I assume t h e systemic interest is in avoiding trivial claims. M. 6:2 "I have a maneh in your hand''—before witnesses he said to him, "Yes"—On the next day he said to him, "Give it to me"—"I already gave it to you"—he is exempt [from having to take the oath]. "You don't have anything in my hand"—he is liable [to pay]. "I have a maneh in your hand," and he said to him, "Yes,"—"Don't give it to me except before witnesses"—On the next day, he said to him, "Give it to me"—"I already gave it to you"—he is liable [to pay], because he has to hand it over to him before witnesses. T. 5:3 If the plaintiff was claiming a maneh in the presence of a court, and the defendant denied it, and two witnesses came and gave testimony that he owes him fifty zuz, Lo, this one pays [fifty zuz] and is exempt from the requirement of taking an oath. But if there was only a single witness who was giving evidence against him, Lo, this one takes an oath covering the whole amount. T. 5:9 "A golden denar I have in your hand"—"You have in my hand only a silver denar, a terisit, a pondion—he is liable [M. Sheb. 6:2DF] If he laid claim against him for wheat, and the other party conceded barley, he is exempt [from taking an oath]. 1. What is subject to dispute? At M . 6:2 t h e bailiff has c o n c e d e d t h e b a i l m e n t , b u t claims that h e has p a i d it off. N o o a t h pertains; his claim is a c c e p t e d . T h e key lies in t h e contrast b e t w e e n n o t establishing t h e condition that r e p a y m e n t take place before witnesses a n d imposing that condition. I n the latter case, t h e claim a l r e a d y to have h a n d e d over t h e b a i l m e n t is null, in t h e absence of witnesses. T h e r e is n o issue of a n oath. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e condition of r e p a y m e n t before witnesses once i m p o s e d is e n forceable. M. 6:3 "I have a litra of gold in your hand"—"You have in my hand only a litra of silver"—he is exempt [from having to

OATHS AS MEDIA FOR RESOLVING CONFLICTS

225

take the oath]. "A denar of gold I have in your hand"—"You have in my hand only a denar of silver, a terisit, a pondion, and a perutah,5'—he is liable, for all of them are kinds of a single coinage. "I have a kor of grain in your hand"—"You have in my hand only a letekh of pulse"—he is exempt [from having to take the oath]. "A kor of produce I have in your hand"— "You have in my hand only a letekh of pulse"—he is liable, For pulse falls into the category of produce. [If] he claimed wheat and the other admitted to having barley, he is exempt [from having to take the oath]. He who claims jars of oil from his fellow, and the other confessed to having flagons—this confession is not of the same kind as that which is subject to claim. [If] one laid claim against him for utensils and real estäte, and the other party conceded the claim for utensils but denied the claim for real estate, or conceded the claim for real estate and denied the claim for utensils, he is exempt [from having to take the oath]. [If] he conceded part of the real estate, he is exempt [from having to take the oath]. [If] he conceded part of the utensils, he is liable [to take an oath]. For property for which there is no security imposes the requirement of an oath in regard to property for which there is security. M. 6:4 They do not take an oath in the case of a claim made by a deaf-mute, an idiot, or a minor. And they do not impose an oath upon a minor. But an oath is imposed in the case of a claim against [the property of] a minor, and against property which has been consecrated. T. 5:10 [If] one laid claim against him for produce, clothing, and utensils and the defendant conceded one of them he is liable [cf. M. Sheb. 6:3R]. And these are the ones upon whom they impose an oath, but in the case of whom they do not take an oath [cf. M. Sheb. 6:4], 1. What is subject to dispute? If the concession involves p a r t of w h a t is c l a i m e d — e . g . , a claim of silver a n d a concession of silver—the o a t h is i m p o s e d . But if t h e concession c o n c e r n s s o m e t h i n g o t h e r t h a n w h a t is c l a i m e d ( " t h e b a i l m e n t is n o t w h a t you claim at all"), he does not. T h e exposition of the m a t t e r then works o u t t h e speciation of a c o m m o n genus, e.g., pulse/produce. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h i s question does n o t apply.

226

CHAPTER THREE

M. 6:5 And what are matters on account of which an oath is not imposed? [Claims involving] slaves, bonds, real estate, and consecrated property. To these also do not apply the rules of twofold restitution or fourfold or fivefold restitution. [In the case of these] an unpaid bailiff is not subjected to an oath. [In the case of these] a paid bailiff does not pay compensation. T. 5:11 "Ten chests full of bonds I have in your hand"—"You have in my hand only one chest, and in it is one bond, as is"—"Ten slaves and on them ten garments I have in your hand"—"You have in my hand only a single slave, as is"— T. 5:12 "Ten chests full of bonds I have in your hand"—"You have in my hand only one chest, and in it is one bond"—"Ten slaves and on them ten garments I have in your hand"—"You have in my hand only one slave, and on him is a little loin cloth," "Ten houses full of produce I have in your hand"—"You have in my hand only a single house filled with wheat"—he is exempt, because he did not lay claim by reference to a particular measure. T. 5:13 "A kor of wheat of mine is in your possession," and the other says, "You have nothing at all in my possession, , ‫ י‬the latter is exempt from taking an oath. "A large candelabrum of mine is in your possession"—"You have nothing in my possession except for a small candelabrum"—the latter is exempt from taking an oath. "A large girdle of mine is in your possession"—"You have nothing in my possession except for a small girdle"—he latter is exempt from taking an oath. But if he said to him, "A kor of wheat of mine do you have in your possession,'' and the other says, "You have in my possession not so much as a kor but only a letekh," he is liable. "A candelabrum of ten liters of mine is in your possession," "you have in my possession one of only five liters [in weight]," he is liable. The governing principle of the matter is this: one is liable to take an oath only in a matter involving a claim which specifies a concrete measure, weight, or number, and in which he concedes a claim which specifies a concrete measure, weight, or number. T. 5:14 "Candelabrums I have in your hand"—"You have in my hand only a single candelabrum"—"Clothing worth ten litras I have in your hand"—"You have in my hand only a single small loin cloth"—"Produce I have in your hand"—"You have in my hand only a single kor of wheat"—he is exempt. For he did not lay claim by reference to a particular measure. "Candelabrums I have in your hand"—"You have in my hand only one candelabrum of ten litras"—"Ten garments I have in your hand"—"You have in my hand only a single small loin cloth"—"Ten kors of wheat I have in your hand"—"You have in my hand only one kor of wheat"—he is liable. For he laid claim against him by measure, and he conceded [part of the claim] to him by measure. T. 5:16 A. "Ten candelabrums of a hundred litras I have in your hand"— and the other party claims he has no information about it—"Lo, they

OATHS AS MEDIA FOR RESOLVING CONFLICTS

227

are before you"—he is exempt. For he did not concede [a thing] to him.. " T e n cups I have in your hand"—and the other party claims he has no information about it—"Lo, they are before you"—"Ten kors of wheat I have in your hand"—and the other party claims he has no information about it—"Lo, they are before you"—he is exempt. For the other party did not concede the claim by measure. T. 5:17 "A room full of produce I have in your hand"—"A wallet full of money I have in your hand"—"You have in my hand only half of them" or "a third of them"—he is liable. For a house constitutes a fixed measure, and a half and a third constitute fixed measures. A wallet constitutes a fixed measure, and half or a third of it constitutes a fixed measure. 1. What is subject to dispute? T h e explicit conflicts a r e p o r t r a y e d at T . 5:1 Iff. T h e o a t h pertains only t o tangible m o v a b l e p r o p e r t y , n o t to personalty (slaves) o r realty o r to c o m m e r c i a l p a p e r (bonds). T h e dispute that registers, then, is a t T . 5:12: t h e claim h a s t o involve a p a r t i c u l a r m e a s u r e ; t h e concession m u s t involve s o m e t h i n g of t h e s a m e sort as h a s b e e n claimed, so T . 5:13: : o n e is liable t o take a n o a t h only in a m a t t e r involving a claim w h i c h specifies a c o n c r e t e m e a s u r e , weight, o r n u m b e r , a n d in which he c o n c e d e s a claim which specifies a c o n crete m e a s u r e , weight, o r n u m b e r . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e o a t h pertains to a very d e t e r m i n a t e conflict of p r o p e r t y ; like all transactions of a sacred c h a r a c t e r , it m u s t be specific to a n object of a p a r t i c u l a r description. T h e o a t h c a n n o t be generalized b u t m u s t specify that to which it pertains. M. 6:6 Ten fruit-laden vines I handed over to you5'—and the other says, "They were only five"—whatever is attached to the ground is classified as real property. They are forced to take an oath only in a matter involving a claim which specifies a concrete measure, weight, or number. How so? "A room full of goods I gave you," "A wallet full of money I gave to you," and this one says, "I don't know—but whatever you left is what you can take"— he is exempt [from having to take the oath]. This one says, "[I gave you a heap of produce] as high as the projection," and that one says, "It was only as high as the window," he is liable [to take an oath for denying the bailment]. M. 6:7 He who lends money to his fellow on the strength of a pledge, and the pledge got lost—[the creditor] said to him,

228

CHAPTER THREE

"I lent you a sela on the strength of it, but it was worth only a shekel," and [the debtor] says to him, "Not so. But you lent me a sela on the strength of it, and it was worth a sela"—he is exempt [from having to take the oath]. "A sela I lent you on the strength of it, and it was worth a shekel,‫ יי‬and the other says, "Not so. But a sela you lent to me on the strength of it, and it was worth three denars"— he is liable. "A sela you lent to me on the strength of it, and it was worth two,‫ יי‬and the other says, "Not so. But I lent you a sela on the strength of it, and it was worth a sela"—he is exempt [from having to take the oath]. "A sela you lent me on the strength of it, and it was worth two," and the other says, "Not so, but a sela I lent to you on the strength of it, and it was worth five denars"—he is liable. And upon whom is the oath imposed? Upon him with whom the bailment was left, lest this one take an oath, and the other one then produce the bailment. 1. What is subject to dispute? O n c e m o r e , t h e o a t h p e r t a i n s t o m o v a b l e s of a certain value, a n d to a p a r t i c u l a r c o r p u s , involving a c o n c r e t e m e a s u r e , weight, o r n u m b e r . H e r e , e x e m p t i o n f r o m h a v i n g to take a n o a t h m e a n s , t h e d e f e n d a n t , t h e bailiff, is n o t p e n a l i z e d in a n y w a y . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e o a t h serves as t h e plea of the d e f e n d a n t , e.g., t h e bailiff in t h e p r e s e n t sequence. If the plaintiff took t h e o a t h validating t h e claim, it leaves o p e n t h e possibility of the d e f e n d a n t ' s nullifying t h e entire p r o c e d u r e b y p r o d u c i n g t h e b a i l m e n t a f t e r all. M. 7:2 T h e victim of a theft—how so? [If people] were giving testimony against a person that he had gone into his house to exact a pledge without permission, and [the victim of the theft] says, "You took my utensils,"—and the other party says, "I never took them"—lo, this one takes an oath and collects [what he claims], M. 7:3 The victim of a beating—how so? [If people] were giving testimony against a person that [the plaintiff] had gone into his [the defendants] hand whole and come forth injured, and he said, "You beat me up,"—and he says, "I never beat you up"—lo, this one takes an oath and collects [compensation]. T. 6:2 The victim of a beating—how so [M. Sheb. 7:3A]? [If] people were giving testimony against a person that he had gone in, his hand whole

OATHS AS MEDIA FOR RESOLVING CONFLICTS

229

and come forth injured, and he said, " You beat me up," and he says, "I never beat you up"—Lo, this one takes an oath and collects compensation [M. Sheb. 7:3A-E], So long as they are friends with one another, lo, they take an oath and collect what is owing. But if one of them was bitten in a place in which one cannot bite himself, he collects compensation without taking an oath. [If] after a while, this one says, "You beat me up," and that one says, "I never beat you up," lo, this one is equivalent to all other claims [and evidence is required]. 1. What is subject to dispute? O n c e m o r e , t h e v i c t i m — t h e bailiff, t h e plaintiff—takes t h e o a t h to validate his claim. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e T o s e f t a ' s amplification, T . 6:2, introduces considerations that go b e y o n d t h e limits of the o a t h . M. 7:4 He whose contrary litigant is not trusted [even if he takes] an oath—how so? All the same are an oath regarding testimony, an oath regarding a bailment, and even a rash oath—[if] one of the litigants was a dice player, gave out loans on usury, [was] a pigeon racer, or a dealer in Seventh-Year produce [M. San. 3:3], the other litigant takes an oath and collects [his claim]. T. 6:3 A. He whose contrary litigant is not trusted [even if he takes] an oath—how so [M. Sheb. 7:4À]? T h e other party takes an oath and collects [his claim]. If both of them were suspect concerning an oath, both of them are exempt [cf. M. Sheb. 7:4E], since it is said, "An oath by the Lord shall be between them both" (Ex. 22: 10)—at a time at which one of them may be suspect [concerning an oath] but not at a time at which both of them are suspect. Between them both—it does not emerge from between the two of them. If the one who takes an oath swears falsely, ultimately [the curse accompanying] the oath will come to rest on him, as it is said, "This is the curse...and everyone who swears falsely shall be cut off henceforth according to it. I will send it forth says the Lord of hosts and it shall enter the house of the thief and the house of him who swears falsely by my name; and it shall abide in his house and consume it, both timber and stones" (Zech. 5:3). Come and see that even things which fire cannot consume a false oath burns up.

230

CHAPTER THREE

1. What is subject to dispute? W h a t h a p p e n s if the d e f e n d a n t is u n t r u s t w o r t h y ? T h e n t h e a d v a n tage of taking the o a t h shifts t o t h e plaintiff. If b o t h a r e u n t r u s t w o r thy, n e i t h e r takes a n o a t h . 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e system protects t h e institution of the o a t h b y shifting it to t h e plaintiff w h e r e t h e d e f e n d a n t will a b u s e it. M. 7:5 A storekeeper concerning [what is written in his] account book—how so? It is not that he may say to him, "It is written in my account book that you owe me two hundred zuz." But [if the householder] said to him, "Give my son two seahs of wheat," [or] "Give my worker change for a sela," and he says, "I already gave it to him,"—and they say, "We never got it"—[the storekeeper] takes an oath and collects what is owing to him, and [the workers] take an oath and collect what they claim from the householder. M. 7:6 [If] one said to the storekeeper, "Give me produce for a denar," and he gave it to him—he said to him, "Give me the denar,‫—יי‬he said to him, "I already gave it to you, and you put it in the till"—let the householder take an oath. If he gave him a denar and said to him, "Give me produce"— he said to him, "I already gave it to you and you brought it home"—let the storekeeper take an oath. [If] he said to the money changer, "Give me small coins for a denar,‫ יי‬and he gave them to him—he said to him, "Give me the denar"—he said to him, "I already gave it to you, and you put it in the till"—let the householder take an oath. If he gave him a denar and said to him, "Give me small change," he said to him, "I already gave them to you, and you tossed them into your wallet,‫ יי‬let the money changer take an oath. T. 6:4 A storekeeper concerning what is written in his book [M. Sheb. 7:5A]—and not what is sold on terms have they stated the rule. For if one may claim, "You have written [the debt] in this page, it has been erased from that page." But if he said, "Give my son two seahs of wheat," "Give my worker change for a sela," and he says, "I already gave it to him/' and they say, " We never got it"—he takes an oath and collects what is owing to him, and they take an oath and collect what they claim [M. Sheb. 7:5C-F] He said to the storekeeper, "Give me produce for a denar," and he gave it to him. He said to him, "Give me the denar" and he said to him, "I already gave it to you, and you put it in the let the house-

OATHS AS MEDIA FOR RESOLVING CONFLICTS

231

holder take an oath [M. Sheb. 7:6A-E] or let him bring proof that he had given [the money] to him. [If] he gave him a denar and said to him, "Give me produce," and he said to him, ' I already gave it to you and you brought it home," let the storekeeper take an oath [M. Sheb. 7:6F-H], or let him bring proof that he had given him [the produce]. 1. What is subject to dispute? T h e disputes a r e spelled o u t at M . 7:5-6. I n t h e f o r m e r case, t h e storekeeper takes a n o a t h to collect w h a t is owing, a n d so d o t h e workers. T h a t is to say, t h e o a t h ascertains that t h e storekeeper gave the m o n e y o r t h e w h e a t , a n d t h e workers say they never got it. Both c a n be telling t h e t r u t h . T h e o a t h t h e n secures r e p a y m e n t of t h e storekeeper a n d of the workers b y t h e h o u s e h o l d e r , w h o h a s initiâted t h e transaction a n d w h o is t h e plaintiff. At M . 7:6, t h e plaintiff shifts f r o m o n e case to t h e other. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e system ordinarily identifies t h e p e r t i n e n t plaintiff, t o w h o m is assigned t h e privilege of validating a claim by taking a n o a t h . M. 7:8 And these [must] take an oath even when there is no claim [laid against them]: (1) partners, (2) tenants, (3) guardians, (4) a woman who manages her household, and (5) a manager of a common legacy ("son of the household"). [If] he said to him, "What is your claim against me?" "I want you to take an oath to me"—he is liable. [Once] the partners have divided up the property, or the tenant farmers, then one cannot impose an oath upon the other. [If the requirement to take] an oath happened to come upon him from some other source [cause], they impose upon him an oath covering the entire [enterprise]. The advent of the Sabbatical Year releases the requirement to take an oath. 1. What is subject to dispute? T h e listed parties, M . 7:8, take a n o a t h even w h e n n o t specifically designated as defendants of a claim. T h e oath then specifies that there has b e e n n o o v e r r e a c h i n g o r m a l f e a s a n c e , e.g., t h e w o m a n w h o m a n a g e s h e r h o u s e h o l d takes a n o a t h that she h a s n o t stolen a n y p r o p e r t y , even t h o u g h she is n o t accused of h a v i n g d o n e so.

232

CHAPTER THREE

2. How does the system resolve the conflict in line with the systemic interest that is in play? H e r e a r e areas to which t h e o a t h extends as a m e a n s of forestalling suspicion of m i s c o n d u c t . M. 8:1 There are four kinds of guardians: (1) an unpaid bailiff, (2) a borrower, (3) a paid bailiff, and (4) a renter. (1) An unpaid bailiff takes an oath under all circumstances. (2) A borrower pays compensation for damages in all circumstances. (3) A paid bailiff and (4) a renter take an oath on account of a beast which is lamed, driven off, taken for ransom, or deceased, but they pay compensation for what is lost or stolen. Y. 8:1 1:4 A borrower, to whom the Torah applied a strict rule, when the owner is present, is exempt. When the owner is not present, he is liable. A paid bailiff, to whom the Torah applied a lenient rule, all the more so should be exempt when the owner is present, and liable when the owner is absent. [That is, the borrower has to pay restitution in the case of injury, ransom, or death. But if these events take place in the presence of the owner, he is exempt. The paid bailiff, who is under a more lenient rule in that he is exempt in the stated instances, all the more so should be liable for theft or loss only when the owner is absent. But if the owner is present, he surely should be exempt.] M. 8:2 [If] one said to an unpaid bailiff, "Where is my ox?" (1) he said to him, "It died," but in fact it had been lamed, driven off, stolen, or lost, (2) "It was lamed," but in fact it had died, or been driven off, stolen, or lost, (3) "It was driven off," but in fact it had died, been lamed, stolen or lost, (4) "It was stolen," but in fact it had died, or been lamed, driven off, or lost, (5) "It was lost, "but in fact it had died, been lamed, driven off, or stolen, "I impose an oath on you," and he said, "Amen5'—he is exempt. M. 8:3 "Where is my ox?" (1) and the bailiff said to him, "I have no idea what you're talking about"—but in fact it had died or been lamed or driven off or stolen or lost—"I impose an oath on you," and he said to him, "Amen"—he is exempt. (2) "Where is my ox?" He said ί ϋ him, "It got lost"—"I impose an oath on you"—and he said, "Amen"—and witnesses testify against him that he had eaten it—he pays him compensation for the principal. If he conceded on his own, he pays compensation for the principal, the added fifth, and a guilt offering. (3) "Where is my ox?" he said to him, "It was stolen" "I impose an oath on you" he said, "Amen"— and witnesses testify against him that he had stolen it—he pays twofold compensation. [If] he confessed on his own, he pays the principal, an added fifth, and a guilt offering [but not twofold compensation (M. 5:4)]. M. 8:4 (4) He said to someone in the market, "Where is my ox

OATHS AS MEDIA FOR RESOLVING CONFLICTS

233

which you stole?" and he says, "I never stole it, ‫ יי‬but witnesses testify against him that he had stolen it—he pays twofold restitution. [If) he had slaughtered and sold it, he pays fourfold or fivefold restitution. [If] he saw witnesses [to what he had done] coming along and said, "I stole it, but I never slaughtered or sold it," he pays only the principal." M. 8:5 He said to a borrower [M. 8:1A2], "Where is my Ūx?" (1) He said to him, "It died," but in fact it had been lamed or driven away, stolen, or lost—(2) "It was lamed," but in fact it had died or been driven off or stolen or lost—(3) "It was driven off," but it had died or been lamed or stolen or lost—(4) "It was stolen," and in fact it had died or been lamed or driven off or lost—(5) "It was lost," and in fact it had died or been lamed, driven off, or stolen—"I impose an oath on you" and he said, "Amen"—he is exempt. M. 8:6 "Where is my ox?"—He said to him, "I have no idea what you^e talking about"—and it had in fact died or been lamed or driven off or stolen or lost—"I impose an oath on you" and he said, "Amen"—he is liable. If he said to a paid bailiff or a renter [M. 8:1A3,4], "Where is my ox?" (1) he said to him, "It died," but in fact it had been lamed or driven off—(2) "It has been lamed," but in fact it had died or been driven off—(3) "It has been driven off,‫ יי‬and in fact it had died or been lamed—(4) "It has been stolen," and in fact it had been lost—(5) "It has been lost," and in fact it had been stolen—"I impose an oath on you,‫—יי‬and he said, "Amen"—he is exempt. "It died or was lamed or driven off/ 5 and in fact, it had been stolen or lost—"I impose an oath on you," and he said, "Amen"—he is liable. "It was lost or was stolen/ 5 but in fact it had died or been lamed or been driven off—"I impose an oath on you," and he said, "Amen"—he is exempt. This is the governing principle: Whoever [by lying] changes [his claim] from one sort of 11ability to another sort of liability, from one count of exemption to another count of exemption, or from a count of exemption to a reason for liability, is exempt. [If he changed his claim, by lying] from grounds for liability to a reason for exemption [from having to make restitution], he is liable. This is the governing principle: Whoever [falsely] takes an oath so as to lighten the burden on himself is liable. Whoever takes an oath so as to make more weighty the burden on himself is exempt. T. 6:6 T o an unpaid bailiff apply two rules, which do not apply to the borrower. T o the borrower apply two rules, which do not apply to the unpaid bailiff. T o the borrower who did business [with the ox which he had borrowed] apply two rules, which do not apply to the borrow-

234

CHAPTER THREE

er. One applies to the paid bailiff, There are two which do not apply to the unpaid bailiff. T. 6:7 [If one] said to an unpaid bailiff, a borrower, a paid bailiff, and a renter, "Where is my ox?" and he said, "I don't know," "I impose an oath on you," and he said, "Amen," and afterward he confessed that he had eaten it, he is liable. [If] he said to an unpaid bailiff, "Where is my ox?" he said to him, "I don't know"—"I impose an oath on you" and he said, "Amen," and afterward he confessed that it had been stolen, or that it had gotten lost, he is exempt, which is not the case for a borrower. "It was stolen or lost"—"I impose an oath on you"— and he said, "Amen," and afterward he confessed that he had eaten it, he is liable, which is not the case for the [read:] unpaid bailiff. [If he said to an unpaid bailiff,] "Where is my ox?" and he said to him, "I don't know," and he said to him, "I impose an oath on you," and he said, "Amen," and afterward he confessed that it had been stolen or lost he is exempt, which is not the case for the paid bailiff and renter. "It was stolen or lost," "I impose an oath on you," and he said, "Amen," and afterwards he confessed that it had died or been lamed or driven away, he is exempt, which is not the case for the paid bailiff and the renter. If he said to a paid bailiff, "Where is my ox?" and he said to him, "I don't know" "I impose an oath on you," and he said, "Amen," and afterward he confessed that it had died or been lamed or driven away, he is liable, which is not the case for the borrower. "It died, or was lamed or driven away," and afterward he confessed that it had been stolen, or that it was he is liable, which is not the case for the borrower. [If] he said to a paid bailiff or renter, "Where is my ox?" and he said to him, "I don't know" "I impose an oath on you" and he said, "Amen," and afterward he confessed that it had been stolen or lost, he is exempt—which is not the rule for the unpaid bailiff. "It was stolen or lost" "I impose an oath on you," and he said, "Amen," and after a while he confessed that he had eaten it, he is exempt, which is not the case for the unpaid bailiff. It turns out that for a claim for which one is liable in the case of a borrower, he is exempt in the case of an unpaid bailiff. [If he is] liable in the case of an unpaid bailiff, he is exempt in the case of a borrower. [If he is] liable in the case of a borrower, he is exempt in the case of a paid bailiff and a renter. If he is liable in the case of a paid bailiff and renter, he is exempt in the case of a borrower. This is the governing principle. Whoever changes his claim] from one sort of exemption from liability to another sort of exemption of liability, or from one sort of liability to another sort of liability, or from one sort of exemption from liability to liability, is exempt. [If it is from] liability to exemption from liability, he is liable [M. Sheb. 8:6X-Y], 1. What is subject to dispute? T h e conflicts a d u m b r a t e d at M . 8:1 are articulated in detail. W e n o w see that the o a t h is assigned as an a d v a n t a g e to the u n p a i d bailiff;

O A T H S AS MEDIA F O R R E S O L V I N G

CONFLICTS

235

once h e h a s claimed that t h e b a i l m e n t was lost n o t t h r o u g h his own negligence, h e is e x e m p t f r o m h a v i n g to p a y c o m p e n s a t i o n . T h e b o r r o w e r never takes an oath. H e is always liable. T h e p a i d bailiff a n d t h e r e n t e r take a n oath in t h e specified instances. T h e y define the interstitial cases. 2. How does the system resolve the conflict in line with the systemic interest that is in play? T h e classification of the several g u a r d i a n s of the p r o p e r t y of a n o t h er is m a t c h e d with t h e possibilities of restitution. T h e u n p a i d bailiff satisfies the claim with an oath as to his innocence of negligence u n d e r all circumstances; the b o r r o w e r pays compensation u n d e r all circumstances; t h e paid bailiff a n d t h e r e n t e r a r e responsible t o c o m p e n sate in t h e case of loss o r theft b u t n o t unforeseeable o r u n p r e v e n t able accident. B. The Halakhic Resolution of Conflict T h e o a t h serves as a principal m e a n s of establishing t h e facts of a case, t h e t r u t h of a claim. But then, if two parties take a n o a t h as to the s a m e point of c o n t e n t i o n , o n e is lying? H o w , then, c a n t h e sages utilize a p r o c e d u r e that g u a r a n t e e s o f f e n d i n g G o d , by o n e p a r t y if not by t h e other? T h a t question is raised in t h e familiar context of M i s h n a h - t r a c t a t e B a b a Mesia 1:1 : M I S H N A H - T R A C T A T E B A B A M E S I A 1 : 1 AND BAVLI 1 : 1 I . 2 / 2 B

A. B. C.

D. E. F. G. H. I. J· K.

L.

Two lay hold of a cloak — this one says, "I found it!" — and that one says, "I found it!"— this one says, " I t s all mine !‫— יי‬ and that one says, "It's all mine!" — this one takes an oath that he possesses no less a share of it than half, and that one takes an oath that he possesses no less a share of it than half, and they divide it up. This one says, "It's all mine!" — and that one says, "Half of it is mine!" the one who says, "It5s all mine!" takes an oath that he possesses no less of a share of it than three parts, and the one who says, "Half of it is mine!,‫ יי‬takes

236

1.2.

CHAPTER THREE

an oath that he possesses no less a share of it than a fourth part. M. This one then takes three shares, and that one takes the fourth. A. May one claim that the Mishnah-passage before us [in requiring the taking of an oath to settle the matter] does not accord with the principle of Ben Nannos. B. For Ben Nannos has said, "How is it possible that this party and that that party should be brought into the state of taking a false oath?" (M. Shebuot 7:5) [Daiches, Baba Mesia ad loc.: For does not Ben Nannos express surprise at the decision of the Sages to impose oaths on disputants one of whom is bound to swear falsely?] [The reference is to M. Shebuot 7:1 A, C: These are the ones who take an oath and collect what is owing to him:...a shopkeeper concerning what is written in his account book. M. Shebuot 7:5: A shopkeeper concerning what is written in his account book—how so? It is not that he may say to him, "It is written in my account book that you owe me two hundred zuz." But if the householder said to him, "Give my son two seahs of wheat, ‫" יי‬Give my worker change for a sela," and he says, "I already gave it to him," and they say, "We never got it"—the storekeeper takes an oath and collects what is owing to him, and the workers take an oath and collect what they claim from the householder. Said Ben Nannos, "How so? But these or those then are taking a vain oath! Rather, the storekeeper collects what is owing to him without taking an oath at all, and the workers collect what they claim not to have received without taking an oath.‫]יי‬ C. [The case before us may accord] even with the principle of Ben Nannos [who will not impose an oath in a case in which it is clear one or another party will be taking the oath falsely]. In the case to which Ben Nannos refers [in stating his princiD. pie], there is most assuredly going to be a false oath. E. But in the present case, there is the possibility of claiming that there is no false oath. F. One may say that the two of them at the same instant raised up the object [and thereby effected possession of it, so both can be telling the truth],

OATHS AS MEDIA FOR RESOLVING CONFLICTS

237

T h e premise of the question confirms sages' view that taking the oath guarantees a just result. T h e r e m a i n d e r of the discussion need not detain us. T h e point is clear. W h e n I say, at the oath-taking, G o d is tangibly present and intervenes in the administration of justice, I stand on firm ground indeed. It is the Halakhah of the Rabbinic sages, not solely the declaration by G o d to Moses at Sinai, that encompasses and systematizes God's presence as a principal way of resolving contention. T h e H a l a k h a h defines through the oath precisely where we encounter G o d ' s stake in certain modes of resolving conflict between Israelites. In line with what is implicit in Moses's f r a m i n g of the matter, Shebuot centers its interest upon the intangibles of words that are spoken. T h e aspect of the law that is systematically explored concerns the sorts of statements that constitute false oaths. T h e fact that the Written T o r a h deems the specified offering—the guilt-offering—to effect a t o n e m e n t for the two classes of sins or crimes— uncleanness in the sanctuary, taking a false oath (breach of faith)— indicates that, within the theory of the Written T o r a h , the sins or crimes are of the same order. These we may differentiate in a rough sort of way as follows. W h a t the guilt offering covers is sins or crimes principally affecting G o d , and m a n only contingently if at all. C a p ital punishment and flogging, by contrast penalize sins or crimes that principally (but not solely) affect m a n . As we noted at the outset, Scripture itself classifies false oaths with other intangible matters, imposing a penalty of a single type, the guilt offering, for a variety of m a t t e r s that b e a r the c o m m o n trait of impalpability. In general, the acts of commission or omission (mostly the former) covered by Sanhedrin-Makkot involve things one does that people can witness, sequences of deeds of a tangible, palpable character, e.g., m u r d e r , idolatry, invest, a n d the like. And the larger n u m b e r of those sins or crimes affect m a n directly, G o d only contingently. But when it comes to taking a false oath, on the one side, or imparting uncleanness to the T e m p l e a n d its Holy Things, on the other, G o d is immediately engaged. T h e false oath calls on G o d ' s n a m e to validate a statement that is false. C o m i n g to the T e m p l e in a condition of cultic uncleanness bears the same conseq u e n c e so far as G o d is c o n c e r n e d . T h e principal characteristic throughout is breach of faith, whether with m a n in the protection of the bailment or with G o d in the sanctity of the T e m p l e a n d its Holy Things. Confession restores the faith, the offering removes the guilt.

238

CHAPTER THREE

Conflict lurks in the background of oath-taking, even where it has no speaking part to play. As to the four types of oath that Israelite householders impose u p o n themselves, the rash, the vain, the oath of testimony, the oath of bailment: what is at stake? In all cases, the oath-taker uses the oath to close (if not to win) an a r g u m e n t . T h e rash oath attracts attention because it is one that in the end is going to be violated willy-nilly: the oath not to do something that one is highly likely to do. T h e vain oath is one that is contrary to fact or condition, e.g., an oath that one has seen what is impossible, or an oath not to do what one is c o m m a n d e d to do. T h e s e oaths misuse, abuse language; they represent the utilization of the formula of the oath in inappropriate ways, asking by an oath that people believe one will do the impossible or believe the implausible. T h e conflict is between contradictory opinions; one party strengthens his allegation by resorting to the rash or vain oath. In the context of the H a l a k h a h , we require two things: a definition of the sin or crime, a n d a specification of the penalty for deliberate and for inadvertent commission of the sin or crime. T h e H a l a k h a h then identifies those whose oaths bear consequences. In the present instance anyone m a y take such a n oath, anyone m a y be affected by it: m e n and w o m e n , persons not related a n d those related, a n d the like. But what distinguishes the classification is that the oath represents a n act of one's own volition. T h e other two types of o a t h — o a t h of testimony, oath of bailm e n t — b y contrast m a y be imposed by the court or by the law, especially, as we saw in C h a p t e r s T h r e e a n d Four, where testimony conflicts. T h e s e two types then pertain only to those who to begin with are able to give testimony. M e n , not related to the parties to the conflict, suitable to bear witness, are subject to the oath of testimony. Gentiles, w o m e n , children, a n d others invalid to testify in a court of J u d a i s m are not. T h e o a t h of testimony then serves the process of the courts in the a d m i n i s t r a t i o n of law, imposing the requirement to testify u p o n reluctant witnesses. T h e oath of testim o n y is particular to the person on w h o m it is imposed; it cannot form a generalized imprecation applicable to all who hear it. T h e transaction moreover takes a highly personal form, the oath being imposed by the party that requires the testimony upon the party that is supposed to know pertinent facts. T h e oath of bailment has no b e a r i n g u p o n court transactions, so a n y o n e m a y take it. It must

OATHS AS MEDIA FOR RESOLVING CONFLICTS

239

p e r t a i n to s o m e t h i n g of value. Its t e r m s a n d c o n s e q u e n c e s are defined by the diverse definitions of responsibilities for bailments. T h e o a t h i m p o s e d by the j u d g e s , finally, e m b o d i e s S c r i p t u r e ' s disposition of the conflicting claims to p r o p e r t y , e.g., the claim of a n u n d i s c h a r g e d d e b t in specie or in kind, b u t o n e that is tangible a n d not p e r s o n a l or theoretical (ownership of land), e.g., to m o n e y b u t n o t slaves, to m o v a b l e s b u t not real estate. So t h e o a t h , by definition, signals the p r e s e n c e of conflict a n d provides for its resolution. C . How does the Interest of Corporate Israel Come to Realization in the Disposition of a Particular Class of Conflicts and the Resolution thereof U p to this point we have asked a b o u t the interest of c o r p o r a t e Israel in the resolution of conflict. But h e r e we deal with those specific classifications of conflict in the resolution of which G o d , very present in Israel, has an interest. In the written T o r a h he has told Moses precisely that. Accordingly, the social t e a c h i n g before us introduces G o d ' s stake into the resolution of conflicts b e t w e e n Israelites. G o d is p a r t y to the c o r p o r a t e life of Israel, as he says m a n y times. T h a t he has m a d e clear not only to M o s e s a n d the p r o p h e t s , b u t also t h r o u g h the T o r a h ' s provisions of the law. Ever-responsive to the words of m a n a n d always cognizant of his intentionality, G o d not only lays d o w n the laws of Israel's social o r d e r . H e also sees to their realization, o n e by one, case by case. T h e use of a c o m m o n l a n g u a g e f o r m s the bridge b e t w e e n Israelites, a n d b e t w e e n c o r p o r a t e Israel a n d G o d . If the sages wished to make the statement that m a n ' s word is c o m p a r a b l e to G o d ' s a n d that, for m a n as for G o d , words f o r m m e d i a of sanctification, they could find n o m o r e suitable occasion for d o i n g so t h a n in their discussion of the o a t h . A n d if, f u r t h e r , they w a n t e d to say, G o d is e v e r y w h e r e present, a sentient b e i n g w h o pays close attention to everyone all the time, to w h a t people say, not only to w h a t they do, a n d , especially, to w h a t they say u p o n the invocation of G o d ' s presence, his h e a r i n g , in p a r t i c u l a r — i f t h a t is w h a t they w a n t e d to say, t h e n S h e b u o t provides not the ideal occasion but the only really a p p r o priate one. T h a t is because of two reasons. First, the o a t h by definition calls G o d to witness the transaction; the p e r s o n w h o takes the oath invokes G o d ' s n a m e a n d calls u p o n G o d to c o n f i r m his allegation. So

240

CHAPTER THREE

the c o n s e q u e n c e of asking G o d to j o i n in o n e ' s claims a n d certify t h e m , the conviction that G o d is everywhere, all the time, w h e n he is called u p o n , f o r m s the f o u n d a t i o n of all else. Second, the oath represents a purely verbal transaction, to be sure, c o n c e r n i n g , b u t n o t ordinarily c o n f i r m e d by, c o n c r e t e action, one that is not c o m m o n l y subjected to the supervision of all parties. It is the t r a n s a c t i o n that in the e n d d e p e n d s u p o n the integrity of the person w h o makes the statement in G o d ' s n a m e , "By a n oath, I shall not e a t , " — w h o is going to keep w a t c h to see t h a t the m a n does not eat? " A m e n — t o w h a t you h a v e s a i d , " — w h o but G o d knows the truth? But if G o d knows the t r u t h , that suffices. It is no exaggeration, therefore, to say that the entire social teaching of R a b b i n i c J u d a i s m comes d o w n to a single principle: G o d establishes his worldly p r e s e n c e in Israel. A n d , given the system's définition of I s r a e l — t h o s e w h o will have a p o r t i o n in the world to c o m e , d e f i n e d as those w h o w o r s h i p the one a n d only G o d a n d k n o w h i m t h r o u g h his self-manifestation in the T o r a h — t h a t is a s t a t e m e n t of universal significance.

III. Between Israelites: God's Presence

A. The Halakhic Definition of the Systemic Interest and how it is Realized T h e premise of o a t h - t a k i n g accordingly involves a n assessment of m a n ' s a n d of G o d ' s c h a r a c t e r . T h e e m b o d i m e n t of truth, G o d oversees all things; he will k n o w w h e n his n a m e has b e e n taken in vain. M a n is possessed of c h a r a c t e r a n d conscience; he does not n e e d to be subjected to supervision by a this-worldly force outside of h i m self, w h e n , h a v i n g invoked G o d ' s n a m e , he has subjected himself to G o d ' s oversight. So to l a n g u a g e sages i m p u t e r e m a r k a b l e p o w e r . It is, specifically, the capacity to c h a n g e a t r a n s a c t i o n , t h r o u g h intangible b u t p o w e r f u l f o r m u l a t i o n s , by the i n t r o d u c t i o n of a n interest on G o d ' s p a r t into a n a r r a n g e m e n t otherwise b e t w e e n m e n alone. T h e s e religious convictions of a theological c h a r a c t e r c o m e to full expression in the H a l a k h a h at h a n d , stating in concrete language a n d n o r m s the conviction that G o d r e s p o n d s w h e n his n a m e is invoked a n d is not to be d e c e i v e d — e v e r . T h a t conviction provides a m p l e motivation for a detailed definition, in norms of speech, of the circum-

OATHS AS MEDIA FOR RESOLVING CONFLICTS

241

stances a n d f o r m u l a s that e n g a g e G o d ' s interest a n d participation, respectively. T h e o a t h e m b o d i e s the single most i m p o r t a n t c o m p o n e n t of the S e c o n d Social T e a c h i n g of R a b b i n i c J u d a i s m , the o n e c o n c e r n i n g relationships b e t w e e n a n d a m o n g Israelites. Its message is, at critical t u r n i n g s , relationships b e t w e e n Israelites take place in G o d ' s presence. A n d that is w h y the o a t h also forms a bridge to the third of the three social teachings that comprise the Rabbinic J u d a i c design for Israel's social order: that it is in Israel in particular that G o d forms a presence, takes place, on e a r t h . b. Considerations that Come into Play Israel is c o m m a n d e d to be like G o d , a n d , in the resolution of conflict t h r o u g h an o a t h , Israel is imitating G o d ' s own deeds. So the final consideration that comes into play in resolving conflict between Israelites is how Israelites m a y c o n f i r m their veracity in the m a n n e r in which G o d does so. A highly tangible transaction, the oath represents the use of words for a n inviolable a n d utterly d e p e n d a b l e result: if I take an o a t h , I invoke G o d ' s n a m e , a n d in d o i n g so, I declare myself completely t r u t h f u l — " s o h e l p m e G o d . " But in so doing, the Israelite househ o l d e r imitates G o d himself. G o d not only enforces the oath, having a p e r s o n a l stake t h e r e i n . G o d himself takes o a t h s a n d b i n d s himself thereby, Scripture being rich in divine oath-takings, e.g., G e n . 22:15, "By myself I have sworn a n d o a t h , says the L o r d , because you have d o n e this a n d have not withheld y o u r son, y o u r only son, I will indeed bless you " In f o r m u l a t i n g m a t t e r s in that way, G o d u n d e r t a k e s a p e r p e t u a l blessing for A b r a h a m ' s heirs, the taking of the oath securing c r e d e n c e f r o m A b r a h a m a n d imposing an ironclad obligation u p o n G o d . T h e u p s h o t is, t h e o a t h possesses a n integrity, an a u t o n o m y of p o w e r , such that G o d as m u c h as m a n is b o u n d . W o r d s p r o p e r l y f o r m u l a t e d t h e r e f o r e exert e x t r a o r d i n a r y p o w e r , a n d that is why, f r o m deeds that represent sins or crimes, the H a l a k h a h n o w turns to words. It follows that the H a l a k h a h will carefully define the f o r m u l a by which w o r d s take on the p o w e r to b i n d or loose, by which G o d himself is e n g a g e d in the transaction a m o n g m e n . But, as we already realize, the H a l a k h a h also focuses its attention u p o n the p o w e r of the o a t h here at h o m e , within Israel's interior transactions, in relationships between one Israelite householder a n d a n o t h e r .

242

CHAPTER THREE

Invoking theological considerations, we deal with a H a l a k h i c category-formation that is not to be understood except in dialogue with the Aggadic reading of the same category-formation. And, in the present instance, that is not how the Aggadah frames its discussion of the same matter. T h e oath involves the n a m e of G o d , a n d at the foundation of the H a l a k h a h is the fourth of the T e n C o m m a n d m e n t s , cited earlier, "You shall not take the n a m e of the Lord your G o d in vain, for the Lord will not hold him guiltless w h o takes his n a m e in vain' 5 (Ex. 20:7). the oath figures, as noted, in the T e n C o m m a n d m e n t s , the fourth c o m m a n d m e n t being explicitly linked to not taking false oaths. T h e view of the A g g a d a h that at issue in the fourth c o m m a n d m e n t is the inviolability of oaths is stated explicit in the following: 1.

A. R. Hiyya taught, "(The statement, 'Say to all the congregation of the people of Israel' (Lev. 19:2)) teaches that the entire passage was stated on the occasion of the gathering (of the entire assembly.) B. "And what is the reason that it was stated on the occasion of the gathering (of the entire assembly)? Because the majority of the principles of the Torah depend upon (what is stated in this chapter of the Torah)." C. R. Levi said, "It is because the Ten Commandments are encompassed within its (teachings). D. " Ί am the Lord your God' (Ex. 20:2), and here it is written, '1 am the Lord your God' (Lev. 19:2). E. " Y o u shall have no (other gods)' (Ex. 20:3), and here it is written, Y o u shall not make for yourselves molten gods' (Lev. 19:4). F. " Y o u shall not take (the name of the Lord your God in vain)' (Ex. 20:7), and here it is written, Y o u shall not take a lying oath by my name'" (Lev. 19:12). Leviticus Rabbah XXIV.V.l

T h e principles of the T o r a h may be derived from a few basic statements, which yield them all, a n d the T e n C o m m a n d m e n t s serve as the source for the rest. H e r e the way in which the o a t h forms a f u n d a m e n t a l c o m p o n e n t of m a n ' s relationship to G o d is m a d e explicit. In taking the oath, m a n is like G o d ; G o d binds himself by an oath, so does m a n . T h e r e is one difference between G o d and m a n . G o d supervises m a n . G o d needs no supervision; he is truth. T h a t is what the Aggadah, building u p o n the facts of the Written T o r a h , sets forth as the theology implicit in oaths, a n d that is w h a t the

OATHS AS MEDIA FOR RESOLVING CONFLICTS

243

H a l a k h a h , organizing both the facts of the Written T o r a h and the facts p r o d u c e d by logical reflection, defines as the action-symbols, the n o r m s expressed in concrete ways, of that same theology. But the difference between the A g g a d a h a n d the Halakhah— theological lore and equally-theological law—when addressing the oath is not to be missed. T h e Aggadah speaks to the larger world of humanity, the H a l a k h a h to the inner life, the domestic transactions, o f l s r a e l at home, within its own social frontiers. T h e Aggadah takes for granted the power a n d probative capacity of the oath, the Halakhah, for its part, embodies that power, defining how it is invoked and exercised. T h e Aggadah speaks of the power of the oath at large, the H a l a k h a h the concrete force of the oath in workaday transactions in Israel's inner life. T h e Halakhah then bears the message that the language Israelites use a m o n g themselves in the engagement with G o d ' s n a m e affects not only the intangibles of transcendent faith but the palpable results of ordinary activities: acts of faith and faithlessness, acts of honesty and dishonesty, acts of integrity a n d deceit— all of them measured by the criterion of truth established in what is said and in the way it is formulated. Using G o d ' s n a m e in certain contexts brings G o d into the here a n d now. T h a t fact of the law represents a power that language, rightly used, possesses. N o wonder sages find the topic so richly engaging. In general, the Aggadah focuses upon the oath as G o d is b o u n d by it, the H a l a k h a h always centers on the oath as m a n is affected by it. H e r e is how the Aggadah of the O r a l T o r a h expresses the conception that G o d is b o u n d by the oath: X:1.1. A.

B.

C. D.

E.

"[The Lord said to Moses,] 'Take Aaron [and his sons with him, and the garments, the anointing oil, the bull of the sin offering, the two rams, and the basket of unleavened bread, and assemble all the congregation at the door of the tent of meeting]'" (Lev. 8:1-3). (Gen. R. 39:6:) "You love righteousness and hate wickedness, [therefore God, your God, has anointed you with the oil of gladness above your fellows]" (Ps. 45:7). R. Yudan in the name of R. Azariah interpreted the verse to speak of Abraham, our father: "When [Abraham] was pleading for mercy for the people of Sodom, he said before him, 'Lord of the world! You have taken an oath that you will not bring a flood upon the world.' "That is in line with the following verse of Scripture: 'For this is like the days of Noah to me; as I swore that the waters of

244

CHAPTER THREE

F.

G. H. I.

Noah should no more go over the earth, so I have sworn that I will not be angry with you and will not rebuke you' [Is. 54:9]. '"Now [Abraham continued], it is a flood of water that you will not bring, but a flood of fire you will bring! Then you turn out to practice deception with regard to the oath. '"If so, you will not carry out the obligation of your oath.' "That is in line with the following verse: 'Far be it from you to do such a thing!' [Gen. 18:25]. "He said before him, 'Far be it from you . . . shall not the judge of all the earth do justly' [Gen. 18:25]." Leviticus Rabbah X:I-III.l

W h a t emerges is that the language of the oath is deemed precise and determinative, so that A b r a h a m can read God's oath concerning the flood to be exclusionary, not a flood of water but of some other flood; that would represent an act of deception, violating the oath in spirit if not in letter. H o w in the Aggadah does an oath figure? It is to impose u p o n oneself restrictions or limitations, to strengthen one's own resolve to avoid sin. W e find ourselves some distance f r o m the representation of the oath in the H a l a k h a h , which, as we know, sees the oath in a different context. For example, these three invoked an oath so as to avoid temptation by the impulse to do evil, specifically, sexual sin: 1.

A.

B. E. J.

Said R. Yosé, "There were three who were tempted by their inclination to do evil, but who strengthened themselves against it in each case by taking an oath: Joseph, David, and Boaz. "Joseph: 'How then can I do this great wickedness and sin against God' (Gen. 39:9). "David: 'And David said, "As the Lord lives, no, but the Lord shall smite him" (1 Sam. 26:10).' "Boaz: 'As the Lord lives, I will do the part of the next of kin for you. Lie down until the morning.'" Ruth Rabbah LXXILiii.l

T o avoid sexual sin, the three principals take the oath, thus gaining fear of G o d as a buttress against sin. N o w these are private transactions, so the oath brings G o d ' s oversight into the conduct of the n a m e d saints even when they are all by themselves. T h e oath here governs G o d ' s relationship to individuals, as m u c h as the oath as taken to A b r a h a m governs G o d ' s relationship to A b r a h a m (and his seed). In the Halakhah, by contrast, matters are otherwise; there the oath is invoked to regulate m a n ' s relationship to m a n , G o d being asked to validate the c o m m i t m e n t therein undertaken.

OATHS AS MEDIA FOR RESOLVING CONFLICTS

245

Further, in the Aggadic representation of the world, the nations are a d j u r e d as m u c h as Israelites, and in the same transaction. By an oath, G o d imposes the a r r a n g e m e n t that the gentiles must not rule Israel so harshly that Israel will rebel, and Israel must not rebel against the gentiles but must accept their government as punishment for sin: 1.

A.

R. Yosé b. R. Hanina said, "The two oaths [Song 2:7: '1 adjure you, Ο daughters of Jerusalem,' and Song 3:5, '1 adjure you, Ο daughters of Jerusalem, by the gazelles or the hinds of the field'] apply, one to Israel, the other to the nations of the world. B. "The oath is imposed upon Israel that they not rebel against the yoke of the kingdoms. C. "And the oath is imposed upon the kingdoms that they not make the yoke too hard for Israel. D. "For if they make the yoke too hard on Israel, they will force the end to come before its appointed time." Song of Songs Rabbah XXIV:ii.l

In the H a l a k h a h , it is difficult to find a case in which a gentile figures in o a t h - t a k i n g to settle conflicting claims to p r o p e r t y . T h e perspective of the H a l a k h a h and that of the Aggadah scarcely intersect. T h a t is because, in general terms, the H a l a k h a h turns inward and focuses on the interiorities of Israel's corporate being, the Aggadah faces outward and speaks to the externalities o f t h a t same existence. T h a t is why the Aggadic representation of the oath in no way prepares us for the issues that, as we have seen in some detail, p r e d o m inate in the Halakhic treatment of the same topic. In the Aggadah the setting for the oath proves either entirely private (not corporate) and personal or quite public a n d political. It affects an individual's relationship with G o d a n d Israel's collective relationship with the gentiles. T h e intermediate ground, occupied by corporate Israel, the g r o u n d between Israelites all by themselves a n d Israel's outer frontiers with the nations, is taken u p by the H a l a k h a h . In the Aggadah the oath figures as a m e d i u m of securing a stable relationship between G o d a n d m a n , a m o d e of setting and maintaining the rules that will govern. G o d binds himself a n d imposes bonds u p o n m a n , all through the m e d i u m of words. W h e n m a n takes an oath, for his part, the concern is an equivalent transaction of power. T h a t brings us back to the Halakhic setting. W h a t is at issue in

246

CHAPTER THREE

the H a l a k h i c presentation of the o a t h is establishing trustworthy relationships, effected t h r o u g h verbal formulas, between Israelite householders. T h e upshot is, G o d ' s relationship with m a n , defined a n d regulated by the use of language to impose an oath, forms the model of m a n ' s relationship to m a n . If G o d is b o u n d by the oath that he takes by his own n a m e , m a n all the m o r e so is b o u n d by the oath that he takes in God's name; m a n is like G o d , and m a n ' s words matter just as G o d ' s words matter; the same formulas pertain. T o that principle of theological anthropology the laws in detail attest, even though the principle itself remains implicit, being articulated only in the Aggadic setting, merely implicit in the Halakhic. T h e power imputed to the oath, the context in which the oath exercises its controlling authority, the cogency of the details of the types of oaths—all work together to say in concrete and detailed ways precisely w h a t the sages wish to express. T h a t is G o d ' s intimate, eternal, tangible e n g a g e m e n t with what Israelites say to one another within Israel's interior social order. If sages wanted to declare, " G o d listens carefully to what people say a n d pays attention to the details of what they do, G o d knows what you promise and observes how you carry out your promise, G o d oversees what no m a n witnesses, G o d lives a m o n g us a n d abides with us"—if sages wished to underscore the perpetual presence of G o d within Israel's everyday life, they could have accomplished their goal no more effectively than they have. T h a t is by setting forth the laws of Shebuot in the way that they do, as the ultimate m e d i u m for the resolution of public conflict. T h e oath calls G o d to witness what the individual Israelite states as truth a n d so transforms the public conflict between Israelites into a personal encounter with G o d . T r u e , then, the oath a n i m a t e d only the specified conflicted transactions within Israel. But it represented the way to form an Israel able to live with, indeed thrive from, controversy, such as is natural to the h u m a n condition. With G o d ever present an Israel took shape that was able to trust itself even midst conflict a n d contention, an Israel at peace. At that point, the Second Social T e a c h i n g of R a b binic J u d a i s m , c o n c e r n i n g conflict b e t w e e n Israelite families or households, directs us toward the T h i r d a n d last Social Teaching: that Israelite society conducts its affairs in the immediacy of perpetual encounter with G o d .

INDEX

Abodah Zarah, 28, 39 Achan, 21 Adultery, 25, 71-73 Aggadah analogical-contrastive reasoning in, 6n5 focus on exteriorities oflsrael, 16n6 oaths in, 242-245 Alimony, 59 Analogical-contrastive thought, 5 - 9 Attitudes, 146 147, 169, 209 see also intentionality Autonomy, personal conflict brought about by, 145 individuation and, 18-19, 20 rejected, 48 Baba Batra, 91, 92, 94, 146-147, 168170, 194-195, 199-201 Baba Mesia, 91, 92, 94, 128-136, 146, 147, 148-149, 169, 192-193, 196199 Baba Q a m m a , 91, 92, 93-94, 97 128, 139-145 Babas, focus of, 91-92, 93-97, 148 Bailments, oath of, 118-119, 133-135, 147, 148, 154-155, 196-197, 2 1 5 217, 220-221, 224-229, 232-235, 238-239 Beasts, dangers of, 142 Blasphemy, 23-24, 25 Bloodshed, 24 Borrowing, 157-159 Causation, 100-102, 108-110, 127, 136, 137 Claim affirmation, 5 7 - 5 8 , 104-106, 127, 133, 136, 209 see also oaths Cleanness/uncleanness, 237 Cohen, Shayne D., 29n12 Coherency of Halakhic discourse, 14—15 Cohorts, 46 Community individual responsibility and, 17 18, 21-22

individuals make up, 17-19 individuals subordinate to, 30 31, 36-37 joint possession and, 170 175 removing aberrant individuals from, 21 22 Compensation, 110-111 Confessions, 112 Conflict in Babas, 202-203 claim affirmation, 57-58, 104-106, 127, 133, 136, 209 defined, in Quiddushin, 4 1 - 4 5 of gentiles, 22-29, 39-40 as Halakhic focus, 29-34, 36, 136137, 203-204 within Israel, 29-34, 37-38, 40 man's will causing, 38-39 resolution not focus of T o r a h , 70 smallest foci of inquiry, 4 6 - 5 3 see also oaths Consanguinity, 42, 59, 78 Contracts, breach of, 150-153 Courts of justice, 23, 24, 27 C r a f t s m e n / c r a f t s m a n s h i p , 117- 118, 150-157, 196-197 Cultic cleanness, 89 Cultural classes, 34 Damages fairness of assessed, 113-115, 127, 136 generative causes of, 141-142 responsibility for, 97-99, 166-168 Dangers, attested, 9 9 - 1 0 0 , 102-103, 175 Death, 22 Death-penalty, 25 Dema'i, 89 Divorce, 73-76 Donation, personal, 170 Dowries, 187-189 Eden in Halakhic thought, 211

248

INDEX

intentionality in, 207-208 Employment conflicts, 150-157, 196197 Equitable transactions, 113-115, 127, 136, 147, 181-182 Erub meal, 8 8 - 8 9 Erubin, 88 89 Estates, 187-191, 200-201 Families defined, 52 Halakhic view of disputes in, 85-87 heirs, 184-191, 200-201 rights of priority of, 131 as smallest focus of inquiry, 4 6 - 5 3 see also marriage Fields, 165 Fornication, 24, 27 Future conditions of goods, 182-184 Genealogy, 51, 53, 76-84 see also families Gentiles, 22-29, 39-40 Gifts, donating to Temple, 170 Gifts in contemplation of death, 201 Gittin, 73-76 Guilt-offerings, 215 Halakhah analogical-contrastive reasoning in, 5-9 conflict of gentiles in, 22-29 conflict resolution in, 2 9 - 3 4 , 36, 136-137, 203-204 conflict within Israel, 22-34, 3 8 - 3 9 focus on interiorities of Israel, 16n6, 22-23, 28-29, 3 1 - 3 2 3 incongruous with social philosophy, 1-3 native category-formations in, 2 - 3 oaths in, 242-246 Scripture as part of, 9 6 - 9 7 , 2 0 4 205, 211-213 social stability as goal, 34—35, 91-92, 203-204, 205, 209 speciation of mankind, 2 7 - 2 8 systemic interest of, 32-33, 35-41 see also oaths Halisah, 77 Heaven, engaged in resolving conflict, 90-91, 121, 211-213 Heirs, 184-190, 200-201

Hermeneutics, comparative, 4 Hillel, House of, 83 84 Η ϋ 1γ Things, 89 Households conflict within, 33, 40 craftsmen working in, 150-157 defined, 5 2 - 5 3 engendering children through marriage, 76-84 estates, 187-190, 200-201 Idiosyncrasy, 19-20 Idolaters, see gentiles Idolatry, 24, 39-40 Immersion-pools, 6 8 Incest, 78 Individuals as smallest focus of inquiry, 46-53 Individuation autonomy and, 18-19, 20 as norm for humans, 16, 35 opportunities for, 18-19 subordinated to c o m m o n good in Israel, 37 Infidelity, 61-62, 70, 71 Inheritance, 184-187, 200-201 Injury, 139-145 Intentionality in acts, 115, 124-125, 127, 136, 137, 138 in Babas, 94-97, 146, 148-149, 169, 202 in damage assessment, 115 dismissed as null, 95-96, 146-147, 149, 210 irrelevance of, in transactions, 169170, 209 man's will, 3 8 - 3 9 in transactions, 146-147, 148-149, 169-170 see also will, Man's Israel atonement for sin of, 20-21 Cohen on, 29n12 conflict within, 29-34, 37-38, 90-91 duties of, 24—27 entities of, 4 8 - 5 3 formation of, 51 individuals and, 21-22, 29-31, 3 5 ‫־‬ 47-53 ,37 meanings of, 17-18, 20 as unique social entity, 16, 18-19, 28-29, 35-36, 4 8 - 4 9

249

INDEX

Jealousy, 7 1 - 7 3 Jews, 29n12 Joshua, 21 J u d a h , 51 Judaic Reformation, 20 Judgment, divine, 48 Ketubah, 59 Ketubot, 5 9 - 7 0 Kingdom of God, 23-24 Labor conditions of, 155-157 value of, 148, 150-153, 196-197 Land o f l s r a e l , 51-52, 90nl Landlords, 162-167, 197-198 Laws, responsibility determined by, 9 8 99 Legal documents, 200, 201 Legal principles, determining, 9 - 1 5 Levirate marriage, 76-84 Life eternal, 22 Lost objects, 130-131 Lying, 158 Marriage bonds, 32, 40, 42-45, 4 9 - 5 0 breakdowns of, 70-73 disputes in family unions, 53-70 divorce, 73-76 dowries, 187-189 grooms' gifts, 190-191 Levirate obligations, 76-84 marriage-settlement, 60, 6 5 - 6 6 , 191-192 status of wife in, 54-59, 62-64, 69, 77 women consecrated to men by, 54— 59 Mashal, 4n2 Misappropriation, 140, 141 Mishnah, 2 Moses, 219 Murder, 25, 27 Mythic monotheism, 51 Nashim, 88, 8 9 - 9 0 Neziqin, 88, 89-90, 91 Norms of behavior, 149 Oaths in Aggadah, 242-245

bailments, 118-1 19, 133-135, 147, 148, 154-155, 196-197, 2 1 5 217, 2 2 0 - 2 2 1 , 2 2 4 - 2 2 9 , 2 3 2 235, 238-239 desirability of taking, 214n1 God's presence through, 240-246 intentionality and, 219 of judges, 218-219, 221-222, 239 rash, 214, 218, 238 role of, 214-215, 238, 239-240 testimony, 6 7 - 7 0 , 1 19, 121, 127, 129-130, 136, 144-145, 158, 160, 2 1 1 - 2 1 3 , 2 2 9 - 2 3 2 , 2 3 5 237, 238 trivial claims, 222-224 vain, 214, 218, 238 violation of, 217-218, 237 Obedience, 20 Ownership, 108, 119-121, 175-181, 199

128-130,

Parables, Aggadic, 4n2 Partnerships, 108-110, 171 Perfection/imperfection of world, 2 0 6 209 Personal status, 138 Physical damages, 116-117 Platoons, 46 Polygamy, 54n2 Principles, determining from cases, 3-5, 9 - 1 5 , 31-32 Private agreements, 148 Private/public domains responsibility for damages in, 103104, 106-108, 137 Property conflicting claims to, 119-121, 175181

damages to, 116-117, 123-125 heirs, 184-191 inheritance, 184-187, 200-201 joint possession, 170-175, 189-190, 199 marriage-settlement, 60, 6 5 - 6 6 , 191-192 ownership and responsibility, 107-

108 usurpation of, 73-74, 122-123, 175181, 199 wives as, 54-55, 60, 65 Protestant Reformation, 20 Public interest/good, 165, 175

250

INDEX

Qiddushin, 41-45, 5 3 - 5 9 Rabbinic Judaism, 20-21, 46nl Rabbinic sages analogical-contrastive thought, 5 - 9 determining representative positions, 3-5 thought-patterns of, 3 - 5 , 9 - 1 5 Rabbis, see Rabbinic sages Real estate, 148, 168-170, 184-191, 196-197, 199-201 see also property Religious obligations, 24—27 Renting, 162-167, 197 Responsibility, 97-99, 137, 138, 140141, 145 joint possession and, 170-175 restorative theology and, 207-208 see also causation Restitution, 111-112, 113-115, 142143, 157-158 Restorationist theology, 204-209 Roman Catholicism, 20 Sanhedrin-Makkot, 91n2 Schuerer, Emil, 20 Scripture in Babas, 141-144, 204-205 as part of Halakhic system, 96-97, 204-205, 211-213 Seven commandments, 24-27 Shammai, House of, 8 3 - 8 4 Share-cropping, 165-166 Shebuot, 215, 237, 239-240 Social classes, 34 Social philosophy determining, in Halakhah, 1-5, 2 9 34 Social stability, 34-35, 91-92, 203-204, 205, 209 Sotah, 70-73

Squatters, 175-178 Stealing, 111-112 Stemberger, Guenter, 214n1 Tenants, 162-167, 196-198 Testimony, oath of, 57-58, 67-70, 104106, 119, 121, 127, 129-130, 133, 136, 144-145, 158, 160, 229-232, 235-237, 238 Thievery, 24, 27, 28, 123-125, 143 Tohorot, 89 Transactions canceling, 181-182, 199-200 equitable, 113-115, 127, 136, 147, 181-182

intentionality in, 146-147, 209 value in, 147-148, 149, 210 see also contracts, breach of; employment conflicts Transactions, intentionality in, 146-147 Trustworthiness, 229-230 Usucaption, 175-181, 199 Usury, 147 Value in transactions, 147-148, 149, 210 Virginity, 61-62, 70 Vows, 6 2 - 6 4 Wages, 151, 198-199 Will, Man's, 38-39, 97, 127, 136, 2 0 6 208 see also intentionality Women, 18n8 status and marriage-bonds, 54-59, 62-64, 69, 77 widows' obligations, 76-84 Yebamot, 76-84