Lessons in the Talmud
The Challenges of Justice in a Complex World
Baba Metsia 83a-83b
I. Introduction - a short recap on Talmud - Mishnah and Gemara. A brief account of this series on law, justice, and ethics in the Talmud, in Nezikin. We’ve been on two journeys in past sessions - one as to the matter of liability for spreading fire and the other, an exploration of the nature and operation of the Sanhedrin. Today we start with rules on how to establish appropriate working conditions, and wait until you see where we go!
II. A. Read the first two paragraphs of Mishnah.
1. What’s the basic principle we learn here?
(We make decisions about working conditions based on local custom, especially where there’s no agreement specifying specific conditions.)
2. What are the basic conditions required for this principle to work?
(The community in which custom governs must be one that is committed to virtues and ethics, right, or else why would the Mishnah push us to allow custom to govern? Think of ways that that condition could be disturbed, and you’ll be thinking about what worries the sages in the Gemara.)
3. But before we leave the Mishnah, let me ask: what strikes you about the basic ethical power of these general rules in what we’ve read?
(There’s an inherent concern about the other, the worker. It’s distinctly that the employer does not get to do whatever he/she wants. There appears, as Levinas teaches, to be a limit on the freedom of the powerful party purely to work its will. Custom, endorsed by law, he says, is a resistance to the raw and arbitrary of the powerful party.)
B. Read the last two paragraphs of the Mishnah.
1. What do we learn from the reference to Abraham, Isaac, and Jacob being the ancestors of these workers?
(This is likely a relatively homogeneous community, governed by the ethics of Torah, etc. Yet, as Levinas teaches, our tradition pushes us to see this community as ultimately much broader, indeed one day to all who come, as on that day at the mountain.
It is taught here that the workers are to be treated as liberally as possible, better than Solomon! This is our tradition, which is extremely important. Ideally, that should be the custom, which perhaps could be limited by contract, but not more than by bread and dry vegetables. While this may seem spare to us, it would have been seen then as a “higher floor,” especially since it’s both food elements that are required, connoting variety and amount.
We also recall that these are descendants of Abraham - a believer, a person of covenant, and a practitioner of hospitality. All this suggests traits of being and living, including as in Torah, mutuality in the relationship between employer and employee. So, while there are quite liberal duties to the other, there’s also sympathy for outer limits.)
2. All of this must be read into what constitutes “customs.” Yet, Shimon ben Gamaliel disagrees with the notion that custom requires such liberal treatment and that a contract to limit to a standard meal is necessary; custom only requires the standard meal, he argues. I’ll just point out that Levinas raises a concern with this. It’s not just custom per se, he argues; it’s customs informed by these values.
As you can see - the ground is already prime for later sages (and us) to explore whether the direction is mere custom or whether there is something else or in addition in play.
III. Let’s start the Gemara. A. Read the first sentence. What do we know right from the beginning?
(Clarification is needed as to how to implement local custom, suggesting right from the start that we’re now on a journey that will show us that reliance on local custom may not be such a simple proposition.)
B. Read the rest of the first paragraph. What do we learn here?
(Irrespective of custom, there is a limit that sustains the rights of the workers. The employer cannot play a game on them to get out of the limits. The workers have a response and power to enforce the principle. The worker can get paid for increased quality but not to give up needed conditions of life. These elements of the basic human condition are not on the auction block.)
C. We won’t dwell on the comment of Resh Lakish. It resolves an issue that is raised in the application of the principle of working from morning to night. But it is also another example of the desirability of defining a limit that fairly distributes responsibility between the employer and the worker, with the inclination to protect the less powerful player, the worker.
The reference to the psalm as a support is noteworthy. It’s as if the sage wants to bring certain ideas or values of the Tanach into resolving questions that arise. This again makes the resolution of issues more complex than simply relying on local custom.
D. So, here comes a big question in response to these rules: “But shouldn’t we look to custom?” It’s as if the sages are saying some might think the Mishnah had given us a simple solution and asking why are we working at it further. Read the text after the question. What does that mean to you?
(We find ourselves in a new city where people come from different places with different backgrounds, etc.,
What do we do? (Custom is not enough to guide us.)
Are we to think that this new city of varied peoples and customs is a rare occurrence, or do we think the Gemara is talking about a new condition we’re likely to see much more commonly than in the past?
(The history and traditions that Moses speaks of in his final oration are addressed to the tribes assembled before him. There were others in the group, but the groups in which the later sages lived may not be as homogeneous. So, custom may not be as reliable a guide for decision-making, no?
We may have to look elsewhere, such as to Torah/Tanach for guidance (line from Resh Lakish, with reference to verses in Psalm 104); there may be some human dignity that is derived from it that can guide us, some ways of promoting that dignity, that might rise to contest pure custom as a source that governs the way we decide and act. Wow! What does this mean?
It almost seems that it’s saying the Mishnah speaks to a time when all lived in more homogeneous settings where the custom conformed to Torah. In later times and indeed in the modern world, we may find ourselves in “new” cities in which we must look beneath or beyond custom for specific guidance, perhaps from Torah or wisdom in the tradition. This suggests that the conversation is likely to get more difficult and complex, surely just as life does.)
E. Now R. Zeira comes along and sees something different in the verses in Psalm 104 with a different bent altogether. Let’s read what he says.
1. Where have we gone with this?
(All of a sudden, we see beasts in the night. What are these wild beasts?
Traditionally, they’re thought to correspond to wicked people operating unconstrained, “in the dark”. Then all is better when the sun shines; either it rids the scene of the wicked ones, or it pushes them into Gehinnom; and it creates light for the good perhaps in this world, certainly in the next, with the effect that they have lodgings and the people can go onto their labor until evening.
What else? Could these wild beasts represent people or forces or challenges what we face in an environment characterized by a lack of reason? Forces of un-reason, so to speak?)
2. What just happened?
(It’s not as simple as we work in the day and rest in the night. Now there are beasts in the night and evil in the night. And there’s some sense of the need for light to clear it out with consequences for the wicked and the good, and a return home for the good and going to work. There’s a sense, too, of the victory for the good in this narrative, protection in the home, the availability and support of work, perhaps a sense of assuming duties and service at least “until evening,” and a sense of the world to come. Thus, we’re brought back to the idea of work with which the Mishnah began, but oh how much more complex it is now. We are, at the least, invited to think how all that complexity is to play out and to what effect.
Is the Gemara revealing the best tendencies of intellectual development - noting the radical changes that occur in history and life, and exploring how to apply reason and ethics to deploying basic values to living in the “new city?”)
F. Let’s read on. The discussion will take us further down the path. Let’s read about the encounter of R’ Elazar ben Shimon with a marshal and then break it down.
1. Why do you think the Talmud takes us here?
(There’s clearly an interest in understanding evil, especially through those who practice and spread it, namely the wicked (beasts) who crouch in their dens. (Notice the continuing thread of the idea in psalms of the beast, but this time it’s not from the rather pacific 104; it’s from the foreboding 10.9, in which the beast clearly represents the wicked who prey on the good, and the alarmed psalmist prays for relief to God, Who seems aloof.)
2. Who are these beasts? How do we tell the beasts from the good? How do we prevail over them? What action must we take, especially when the wicked seem to believe God will not act?
(We’ve come a long way from working conditions in the Mishnah. In this “new city” where custom can’t assure us of maintaining right order and justice, we are awakened to new great risks, especially the beasts we encounter in the psalm. We have a clear sense early that action against evil is in order.)
2. What’s the custom here as to how to deal with this risk, and what does R’ Elazar ben Shimon say to do?
(As to assessing apprehending the guilty party as opposed to the innocent, the marshal says simply “it’s the king’s order; I need to arrest someone.” This is unacceptable to the sage who proposes a set of criteria to sift out likely culpability based on traits, behaviors, work, etc. Whether this system is entirely reliable is beside the point. The sage is searching for the sort of criteria and judgment that would be reasonable and necessary to a system of justice that is far more in sync with the call of Torah than the local custom there.
Implicit in the criteria that the sage sets out are elements associated with good and evil. Again whether this is perfect or not, there is the notion that work and duty and service and study are good. Distraction, idleness, isolation, purposelessness, hanging around a tavern without any responsibility, lack of seriousness - these are bad. Now let’s just understand this orientation, without judging specifically whether this always predicts criminality or justifies arrest. These traits that are more predictive, according to the rabbi, of a bad actor, at least generally, weaken a community and could very well point to reasons for suspicion.)
G. The sage’s ideas are deemed so good by the higher authorities, the government asks him to become a detective and put his good ideas to work. Let’s read what happens.
What’s the criticism of him? How does he respond? How then does the critic respond back to him?
(a. He’s called vinegar, son of wine. (His father was the remarkable Shimon bar Yochai, who fleeing the Romans, is purported to have written the Zohar in a cave. Indeed Elazar was apparently with him in the cave. Further, it is thought that our sage studied with and was a peer of Judah the Prince. There’s quite a bit more to his life beyond today’s episode, but we’ll discuss some of it at the end tonight.) It’s unacceptable to the critics that he’s apprehending Jewish criminals, likely along with others, and handing them over to the authorities. This could threaten the very existence of Judaism, the critics argue.
b. He responds that he’s clearing the vineyard of thorns. In this, we’re reminded of Isaiah 5, where God is furious at the people for letting His lovely bequest of a vineyard turn wild with their straying, leading to waste and thorns. Indeed one could say that he’s the one protecting the wine of the community that is turning into vinegar (or thorns) through unrelenting criminality.)
c. The critic responds that God can clean up His own vineyard.
The sages disagree on this matter, though the predominant view seems to side with Elazar. What’s your view?
(Rashba and Rivash conclude that crime was so rampant that this extraordinary response by a rabbi was justified, if not actually required. Further, it’s hard to argue from Isaiah and our tradition generally that this level of thievery in the community should go unaddressed by us and be left to God to clean up.
Yet, it’s always been difficult to hand Jews over to the secular government, especially when there’s doubt about fairness and just punishment. This participation in politics in this way causes distress, to say the least.
One further point: the whole flow in the Gemara has been toward a concern about evil and stopping it in the “new city.” Elazar is surely a rabbi who confronts this in a very personal and painful way, one with doubt and considerable upcoming questioning and unpopularity directed at him. The narrative puts us right in the middle of the turmoil and forces us to consider the toughest issues in grappling with it. The idea that custom will guide us now seems quaint, does it not, as it would have to the prophet in the face of the evil that led to the abandoned vineyard?)
H. We’ll pass over the tale of the laundryman whom Elazar arrests on the basis of contemptuous behavior, which in our tradition is seen as perhaps far more dangerous than we do. He deeply regrets the arrest but is comforted to learn from his students that the laundryman had actually committed awful acts meriting punishment. Yet, even still, his “conscience was not put to rest.” What does that mean?
(The traditional answer is that the righteous worry about the harm they do others even when they’re obliged to. Could he still be conflicted about doing what he thinks is his duty to rid the vineyard of wickedness and turning fellows in? Could the pain of the criticism he continues to receive cut against his relief and right feeling of doing what was right? Did he feel the residue of guilt for arresting and seeing a person punished when a crime for which the punishment was exacted was not known to have happened or even directly suspected at the time of the arrest? Or is this whole business of fighting evil just hellacious, painful, and difficult work?)
I. Our text comes to the end with a description of a related incident. Let’s read it. a) What do you see? Elijah comes along and confronts a different marshal under similar circumstances? Why? b) What does Elijah ask the marshal, and what’s the significance of the answer by the marshal?
(a) Elijah helps those in distress. He comes to make things right. He advises rabbis on difficult matters. (There’s actually a story of our Elazar with Elijah, but not for tonight.) He precedes the messianic era. Surely, this person is in distress and in need of help.
b) As we read with the first marshal, this marshal says his basis for arrest is constrained, that it’s up to the king’s order; in other words, he arrests as desired by the king.
What’s the significance of this?
1. I think it’s back to a bad custom. It’s all politics again. It’s not about reason, or reasonable cause, or justice, or even intuition about good and evil. We’re in the “new city,” and the custom has nothing to do with Jewish values or ethics. As imperfect as were the means of Elazar, and as pained as his behavior was, it, we get a sense, was in the direction of Torah. This now again is the vineyard with thorns. This is custom without Torah or wisdom from the tradition. Elijah advises flight.
2. But, could one argue a different position. This is the Talmud, after all! I rarely disagree with Levinas, but I do here. He agrees one shouldn’t stay and live within the custom, but he goes in a different direction and applauds refusing to turn our people over to the authorities, even if “to rid the vineyard of thorns.” Even though the marshal flees, presumably leaving evil unabated, Elijah’s word will return another day to accompany a different order.
3. Another view: the first and third marshals may have been forced into service and/or didn’t have the strength to act on the basis of justice or other principled criteria. Perhaps Elijah was simply saying to one who couldn’t act on the basis of Torah to flee instead of mindlessly serving the king in what would inevitably involve unjust action.
Where are you? Are there elements of truth in several views? How do we handle that tension? What do we take away?
A. Let’s talk a little more about R’ Elazar ben Shimon. Fascinating. The plot thickens as we read on beyond our text tonight. It’s important to know that this sage suffers for the rest of his life, partly perhaps because of his own guilt but mostly because of the ill will toward him. Yet, he continued to serve and provide great value to others in his community. Indeed he did remarkable things in both life and death. There’s an amazing story about his death (84b). It gets very complicated, but he wasn’t buried for some time after death.
One feature of it that I want to focus on is that as long as his body was in his attic unburied, no wild animal came into their city. What does this mean?
(Some sages say it’s related to no vain oaths being made, thus no wild animals (who come out upon vain oaths). I want to suggest that this reference goes back to the wild animals we discussed earlier. I think his life and death were fundamentally devoted to, and about, warding off and fighting evil, however painful the consequences were to him and whatever interests he offended, even in his own community. The sages, I believe, recorded all this - warts and all - but mostly for the sake of understanding the most difficult nature of this struggle against evil, especially in the “new city.”)
And, by the way, his deceased, saintly father, who was the wine from which he had turned to vinegar, comes in a dream, seeking his son’s burial so they could be near to each other. Further, there are other fascinating discussions suggesting that the ethical quality of the life Elazar lived was greater than that even of the Rebbe.
I would submit the Talmud takes us to a place where we must conclude, or at least highly regard the view, that he was a pained, troubled man whose life was conflicted in the most difficult ways. But it’s a special life that we must respect and regard with appreciation, value, and meaning, as instruction in the difficult but essential Jewish task of understanding and fighting the evil in our world.
B. Enough of my thoughts. Where are you here at the end of our study? Describe our journey in your own words.