Lessons in the Talmud 5 Study Guide
The Hopes of Justice

Lessons in the Talmud Study Guide

Sanhedrin 36b-37a


The Mishnah envisages a single Sanhedrin in Jerusalem, presided over by the finest judges and overseeing lesser courts throughout the nation, administering Torah. Local courts would have three judges, competent to administer non-capital matters. The courts of 23 judges could handle all matters. The Sanhedrin, the Great Court, consisted of 71 elders and served as a final court of appeal and a court of matters of national importance.

This is key: to the extent that a system of this sort was ever fully functional, it was a distant memory even as early as the time the Mishnah was assembled. Thinking about why it mattered so much to both the early and the later sages will be a big part of our study tonight. 

We want to get some understanding of the structure, the work, and the importance of the court, but, at a deeper level, we want to understand other and perhaps more fundamental underlying levels of concern to the sages. The amoraim, the sages who contributed over many decades in the development of the Gemara, wanted to use this piece of Mishnah text to explore and discuss profound ideas involving justice, ethics, the importance of the mitzvoth, and the mores and ways by which we as individuals and the community construct and live our lives as God expects and that are worthy and good. 

For those of you who attended my earlier session, you know that this sort of dive into the deep end of the pool of the Talmud is essentially what we did in multiple exercises in other tractates within the order of Nezikin. This is the order, you will recall, that generally involves damages within the context of what we today consider civil and criminal law and the judicial process.

There are so many ways into the Talmud, but, as an attorney interested in ethics and Divine direction, and as one whose education was steeped in political philosophy and sociology, I love jumping in on these matters. I hope you do, too. So, though we’re all relatively new to the world of Talmud, let’s use the guidance we can get from those who are more expert as well as our own curiosity, excitement, knowledge, intelligence, and experience to get a meaningful and valuable taste of the Talmud tonight. 

Finally, by way of introduction, I want to disclose that my principal teacher in preparing for teaching tonight, though no longer alive, was the great Jewish thinker, Emmanuel Levinas. He wrote and gave a brilliant talk on this very piece of Talmud that appears in his book, Nine Talmudic Readings, and is the foundation for my study and preparation.

A.     Mishnah - read the text.

1.      Why a semi-circle?

(They all could see each other. Panim al panim. No one sees a back. Interpersonal relationship was never interrupted. This was so helpful to getting to just and merciful results, as well as the truth. Open to the world, as if to welcome testimony as well as being transparent, is seen as crucial to achieving just results.)

2. Why the two versions of the clerks, the first one and Rabbi Judah’s? 

(The first connotes balance and fairness as to the two sides and the two possible outcomes. It’s people who are recording, thus giving a human touch, as if to make clear that people are involved in the process of taking down everything, each side of the case, in the interest of fairness and justice. That two take it all down gives some assurance that it gets recorded right, akin to the requirement that there be two witnesses. 

But the second idea of three clerks, in which two take down each side and the third takes down both sides, assures that there are “two witnesses,” in that each side must have confirmation in the record.)

3. What do we make of the presence of students in the court and how they are and might get further involved? 

(There is no complete bifurcation of the learning and the practicing, which makes the process of serving more seamless and holistic; yet only the best can be brought forward into actual judging, if needed, and the process of moving forward is based entirely on merit. This seems to comport entirely with the requirements of justice. This goes for people from the public, too, who, if absolutely needed, would come forward on the same basis. This order makes sense in assuring justice is done, to the best extent possible.) 

B. Gemara - Here the amoraim want to establish the basis upon which the tannaim teach the structure and somewhat the operation of the Sanhedrin. Some of it this is clear from the Mishnah. Perhaps more was sought because there may have been some Greek influence on the matter. Not so much to hide that, but rather because the later sages were after more, as Levinas says, “in what spirit something is borrowed,” they sought to discover and reveal underlying purposes and meaning of the Mishnah text, perhaps to see a convergence of the spiritual efforts of, and requirements for, mankind. So, how they do so, how they answer questions about the origin of text and its practices, and where they go in their exploration amount to a treasure for us. We are heirs to these rich discussions and beneficiaries of the meaning we can derive from them. 

What appears in the Mishnah as reasonable and wonderful rules of jurisprudence leading to more justice in the world is important on its own. But wait until you see where the sages go with it! 

We’re in the important arena of law and judicial procedure, but we’ll go on a journey deeper through justice to ethics and morality and profound understandings of how we are to live our lives more broadly. This is beautiful, in and of itself. And, once we complete that journey, we will come full circle back to the procedures in the Mishnah. Remarkable. 

1.      Read the first chunk of text in the Gemara. According to Rav Aha bar Hanina (Palestine, 300 CE), what’s the source text of the Mishnah? The Song of Songs! Before we go to its verses, how do you react to this book of love, even erotic love, being the source for the Mishnah language? 

(The easy answer is that the rabbis generally saw this text as about our relationship with God, the love between God and the people, Israel. In that way, it would be natural to see the gift of our understanding the judicial process that furthers justice as something that would come from that relationship. Yet, at another level, this is an erotic love story between the actors in the story. It’s also about love, physical love, and indeed erotic love. What do we think about that sort of understanding of the book being the basis for rules of operation of the court?

There’s some satisfaction in there simply being a paradox! Plus it helps open us up to the mystical possibilities or at least the more metaphorical.

Is there something about this mix of justice, love, and the erotic? Or rather is there something about acknowledging the passions in life, incorporating them in healthy ways, and yet mastering passion as part of a balance? Levinas believes that on the other side of passion is vice, and justice requires we know that and that we make the commitment and develop the wherewithal to avoid crossing the line. There must be a harmony between the order of love and absolute spirit. The order within the Sanhedrin we discussed is related to the order we’re about to investigate in this book of love.

Do we get our first sense even before we get to the text that we’re being taught something quite important about the foundation upon which a justice system must be built?)

2. Let’s get into 7:3 of the Song of Songs.

a)     What does the navel have to do with our Mishna lesson? 

(The basic idea is that the Sanhedrin is the center of the world for us as the navel is the center of the body. There is a centrality in the justice done in the court and the Torah upon which that justice is based. Levinas had this lovely idea that the navel too is the place from which we got sustenance before independent life, before creation. And the Sanhedrin recalls a sort of heavenly food that we were given before.

Yet, as lovely as this insight is, and important, other cultures had the notion of law or justice being the center of their world. Let’s dive deeper to see what makes this text uniquely Jewish.

The Yale Professor of Semitic Languages, Marvin Pope, in his Anchor work on Song of Songs, finds a way to translate sharirech as vulva, but this is rare, and we won’t go there now. Maybe we can re-convene off campus for a more x-rated exploration of this piece of Talmud another day.)

b) the navel…is like a round goblet full of drink. Note, as we read in the text, that the Hebrew for goblet is aggan. And the Talmudist wants us to associate it with meggin, to protect. Also, see that the Talmudist wants us to know that the Hebrew for round is sachar, as in the crescent shape of the moon. Finally, full of drink or not lacking in liquid seems to relate to the point in the Mishnah that there must be enough potential judges in the room to assure that there would be a full complement to judge.

So, what does this fragment of the verse mean - a goblet that is round and full of drink, as those words have been defined?

 (The goblet is made as is the Sanhedrin so that both the goblet and the court are like a “semi-circle.” It protects. As Levinas teaches, the court protects the universe. He goes further to the idea that the Sanhedrin is symbolic of Judaism more broadly, in that both carry justice as full drink, and play a universal service, as a “deaconry in service of the totality of being.”      

Full of drink may also mean the order that gives possibility to justice and/or is that the fruit of justice is contained in the structure of both the goblet and the Sanhedrin.

Or full of drink may mean the proper duty of all who work within the court will be fulfilled, that it is full in that the public responsibility is assured to be fulfilled.

c) Your belly is like a heap of wheat; everyone profits from wheat. Let’s discuss this for a moment before I ask you a question. First, on a lighter note, it’s clear this was written before science uncovered the perils of gluten and the wisdom of a paleo diet! More seriously, we get the tie-in that people find worthy the reasons for decisions in the Sanhedrin. So, what is being said here? 

(One gets a full and satisfying “meal” from the Sanhedrin. There’s a nutritious and satisfying basis for the decisions - presumably in fairness, reason, and orderly process, and just results are the satisfaction therefrom.) 

d) Though the separation is only a hedge of roses, they will make no breach in it. This is complicated. Think first: what comes to mind when you think of a hedge, and then one of roses? And why would we be thinking here about the separation the hedge provides and the desirability of not breaching it? In other words, what is the hedge here? Who do we want not to breach the hedge? And why is it important that it not be breached? Ideas? 

(We have the idea that the mitzvoth create a hedge that keeps our actions on the right path, between life and death, between good and evil. So, hedging is a traditional idea. What is intended here, do you think?

The hedge seems intended first for the court, the judges. Perhaps it’s a standard for their behavior, their decision-making, their approach to reaching verdicts in the court. Maybe it’s not to cross over into allowing personal interest to affect a neutral or non-biased judgment.

Maybe it’s to going into error or wrong in deciding. Maybe this discussion is beginning to speak more broadly to us, and not just to judges for reasons we’ll explore in a minute. We must avoid breaching the hedge into erring or doing wrong or acting unfairly.

But so why is this discussed as a hedge of roses? They’re certainly tempting to get near, to touch, to smell. Isn’t that suggestive of hedges in real life? If we had no hedge, the space between doing right and doing wrong is too precariously close. It’s interesting to see language that gives us a hedge that is real and can work but has the lure of roses and is hardly impenetrable. But isn’t that close to reality? If hedges were tall walls of steel and concrete, there would be no issue of a breach. Yet, that’s not the way it is in real life, is it?

Though roses draw us close through their appeal, the hedge of bushes (and their thorns?) can keep us on “this side,” if…. The sage is saying the judge is picked, is constructed such, conducts life in such a manner, or should (must) that a hedge of roses is quite sufficient. Meaning?

Justice depends on our picking judges in whom this confidence is justified and from whom this hedge is assured. So, it seems this speaks not only to the judge but also to all of us who have some say in the operation of the community that picks the judges and, in some ways, holds them accountable. Indeed it may speak more broadly to us as human beings who should have this capacity and discipline in the conduct of our own lives. It is important that the hedge is tempting, seductive, inviting because we must be vigilant; it is here where must see and act by a hedge.

In a way, Levinas teaches that we here see a different image of what we often think of as the yoke of the law or at least the expectations of the covenant as a hedge of roses. That’s a different and pretty cool image to put in our heads!, no?

3. A “min” rises to object. By tradition, the Min might be a Sadducee. It is one who generally opposes rabbinic exegesis, one who would rise up to “muck up the works” of this talmudic process. So, the way it’s done here is for the objector to come forward and challenge the hedge idea. He does it by reminding everyone that men and women who are not permitted relations cannot by law be alone, that a husband and wife are not permitted to have relations during her period, yet the law permits them to be alone. Surely, there would be a potential fire here, he seems to suggest, by asking if there’s fire in flax, won’t it burn?

a) What does Rav Kahana say, and what does it mean?

 (Scripture makes clear that the hedge of roses is there to, and must, prevent the breach. It seems that Rav Kahana ducks the challenge on exegesis and says the scripture, which is good to the Min, is the basis here, too. And, he also carries the discussion from truth just about the court to truth about human relations, that we must and can conduct ourselves with the needed care by minding the hedge of roses. Indeed our doing so may be a needed foundation for how we live, how we get and hold good judges accountable, and that justice requires that we live by the hedge everywhere, including in the court.)

b) Resh Lakish answers with another reference to Song of Songs (4:3), “your brow is like a pomegranate.” Or since rakkathek is close to rekanin, it could be your good-for-nothings are like a pomegranate. What is a pomegranate in this context? What would this mean under either translation?

(It’s a rich fruit that connotes vitality and life. Its seeds are abundant and representative of life. Again, as was the case with roses, it has an alluring, if sexual connotation. This fascinates, to be sure. 

But, of course, the rabbis go further, to the symbolic of what supports life for us, giving us life. The mitzvoth! The Torah! Our brow (or even the good-for-nothings in our midst) is/are as full of the capacity to do good, to live out good deeds, as a pomegranate is full of seeds. 

We see other references in the Tanach. In Isaiah 1:18, we see in a discussion of the High Priest’s prayer on Yom Kippur to the king who was “full of precepts like the pomegranate,” and was there with others “who were righteous and in whom there was no evil.”

Midrash Rabbah applies this verse to the Song of the Sea when Moses extols Israel, saying, “Your temples are like a split pomegranate,” as if to say all, even the emptiest among you, are full of pious deeds as a pomegranate with seeds. 

Isn’t all of this the hope, the needed basis for a community where the Sanhedrin is constructed right? Those who are hedged have the brow of a pomegranate, that is, they bear the fruit of life, the mitzvoth, which enable them to do good and live right (with righteousness, kindness, and justice). It is this character and life that undergirds a just court and a just community. And this way of life must be fresh and ongoing. It is not inherited or assumed or automatic.)

Indeed, if one goes with the other Hebrew word, what meaning do we make of this being so for good-for-nothings?

(Can it can turn them in the right direction, too? Is it a counter in them causing the possibility and hope for teshuvah? It’s stronger than the bad, but within those who can be bad, as if to say that it’s everywhere to pull us above the natural plane.)

And why would we be interested in this in a discussion of the Sanhedrin? 

(We would want to think that it could prevent such people from getting into trouble that brings them to court, right? We’d like to think it would, thus, “limit the business” before the court. And we might hope that it would mean that something like this would be at work to correct someone who had been adjudicated.) 

Levinas: “What Judaism brings to the world is not the easy generosity of the heart, or new and immense metaphysical visions, but a mode of existence guided by the practice of the mitzvoth.”) 

c) 1. Rav Zera says the explanation comes from Genesis 27:27, where Isaac says his son’s clothes smell of the field watered by the Lord. But then the text wants us to look at the possibility that rebels (bogedav) is intended, not clothes (begadav).

OK, let’s dig into this. Can someone recall the Bible story that is raised here? (Remember Zera is addressing the Min.) What are the possible meanings?

(Was the smell of paradise due to Jacob’s coming into the room, as some commentators say, not the clothes? That though there would be rebels from his seed, Jacob still smelled of good? Indeed is it possible that even in Jacob’s deception there was good? Or an ultimate sense of his hoped-for reconciliation of Jacob and Esau? Was that the smell of Paradise?

Or is there in Jacob’s standing in Esau’s clothes or in the stead of all the rebels to come a sense of taking on responsibility for all. This is Levinas’ view. That Israel will be responsible. 

Maybe more to the point is the response to the Min here. Even with the reality of the temptation, the fire in the flax, Isaac senses the capacity, the commitment, the future of Israel, through God, to avoid the fire. This is indeed the purpose of the Sanhedrin, relying upon the mitzvoth and properly constructed justice, exercised by judges within the context of a moral community, governed by the mitzvoth. This, I think, is what Isaac sees.) 

2. This seems confirmed by the discussion that follows about Zera. What do we learn in it that bears on our lesson?

(Zera’s influence on “rebels” or good-for-nothings in his own neighborhood. He never gave up on them. He saw them as part of the community. He kept encouraging the good upon them. And his legacy seems to be they remembered, felt a duty, and changed for the better. There is hope for virtually all, and that hope can play out for the best, if we work at it and in the right way. This continues and emphasizes the lesson we learned a moment ago. Isn’t this what we want from the Sanhedrin, from our community, something that keeps the potential for fire in the flax to keep from burning, so to speak? 

The story goes deeper than we can go today in the various explanations for how Zera, the little man with the burned thighs, got those burned thighs. It seems possible from the talmudic stories about him that either through his own and/or others’ selfishness, bad judgment, etc. he might have been afflicted by flame. So, though burned, he lived to help keep others from the flame. Isn’t that so true, for us, our community, and our courts, in how we live forward, at our best?)

4. Our study concludes with a return to the direct subject of the Mishnah - which is often the case in Talmud - full circle, lovely.

What does this conclusion mean?    

Lessons in the Talmud 5 Study Guide    The Hopes of Justice

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