We meant what we said....

[rhu]

Today, the Daf Yomi started Horayot, the tractate that covers what happens when a court makes a mistake. The gist of it is that one who follows the court's ruling is patur, exempt from consequences, because they acted in good faith. But the Talmud makes it clear that that exemption only applies to the exact ruling of the court.

The first example that they gave was intriguing: If a woman's husband has disappeared, and two witnesses testify before the court that they saw him die, the court issues a decree that the woman is free to remarry. If she does so, and then her husband turns up alive, then although her second marriage is voided, she is not guilty of adultery or bigamy.

However, if instead of remarrying, she merely has sex with another man, then if her husband turns up alive she is guilty of adultery, because while the court issued a decree that she was free to remarry, they did not issue a decree that she was as free as an unmarried woman or an ordinary widow.

The end of the Mishna really troubled me, though. It says that if a member of the court, or any other individual who is a scholar, is certain that the court is erring, and he relies on their ruling anyway, he is not exempt from punishment. I am looking forward to reaching the Gemara's exploration of this section of the Mishna. Is it only in cases where the court ruled that a forbidden thing is permitted, and so an individual can (and should) continue to refrain from it? What implications does this have for the authority of a court to rule for its district? How does it relate to the famous story of Rabban Gamliel and R' Yehoshua b' Chanania, and their disagreement regarding the date of Yom Kippur, or the incident regarding the Oven of Akhnai?

Comments

[elainetyger.livejournal.com]

I'm not religious in any flavor, and have never been Jewish; I would take the end bit of the Mishna as saying you are still required to, as my brother always says, "use the common sense God gave you." I don't know what your last sentences mean, but using the first analogy of the woman with the presumed-dead husband, if she saw a guy who looked like him walking down the street the day after the court hearing, and he waved and kept walking, and she was certain it was him, then she would not be free to remarry despite the court ruling, because if she believed in all these teachings then in her heart she would believe that remarrying was wrong.

[530nm330hz.livejournal.com]

LJ has a length limit on comments. Who knew? So my reply is in two parts.

Two bits of introduction to my repsonse:

First, I think this Mishna poses some deep fundamental questions about the individual's relationship to societal norms that transcend the specifics of the Jewish legal system.

Second, in case you or any other readers don't know the terminology, the Talmud comprises two "layers". The Mishna is a compilation of short and memorable (i.e., written in a form meant to be easily memorized) teachings, each of which is also called a Mishna, which were transmitted orally for centuries and committed to writing around the second century of the Common Era. The Gemara is a (usually lengthy and rambling) commentary, exploration, and (at its best) an explanation of each Mishna; it was committed to writing a few hundred years after the Mishna.

Now, on to my response.

Here's the problem I have with the bit at the end.

It seems to me that the point of this Mishna is that once the court has given a ruling, even if it later turns out to be in error, one who relies on the court has behaved properly and has obeyed the Law (i.e., the set of laws that make up the legal system) even if one's action was in violation of what the law (i.e., the specific rule in this case) should have been.

Now in a case where the court rules, for example, that a particular food item is kosher, and one eats it, and it later turns out that it was not kosher, that's nice and simple. But there are a few difficulties with this.

The first difficulty is that there's a "slippery slope" potential, which is why the Gemara clarifies that if the court rules that X is permissible, and someone does X' which is similar to X but not exactly within the parameters of X, then the person can't use the court's ruling as a justification. Which may seem legalistic and petty, but without this limitation, the law makes no sense. If the court rules that brand X cheese is kosher because everyone knows that American cheese companies no longer use animal rennet, and someone goes and eats brand Y cheese, and then the court finds out that actually some American cheese companies DO still use animal rennet, then people who relied on the court's ruling to eat brand X cheese are fine, but even the court knew that brand Y was actually hand-made the old-fashioned way and the person who took it upon himself to broaden the court's ruling shouldn't have done so.

But it all hangs on the idea that there is a system of law, and that even when the system gets it wrong, if everyone goes off and rules for him- or herself then the system falls apart.

[More...]

[530nm330hz.livejournal.com]

[Part II]


So now we get to the dissenting judge or independent scholar. And there are two cases to worry about here.

In the first case, the court has mistakenly ruled that such-and-such is permitted, and there's a dissenting judge or an independent scholar who knows that they got the facts wrong in this case, or misapplied the law. Our Mishna would indicate that such a person should act scrupulously and continue to treat the item in question as forbidden. Which on the face of it seems reasonable, but I'll return to that.

The second case, which I'm not sure is included in the scope of this Mishna (but I'm sure we'll find out in the Gemara), is the reverse. If the court rules that something is forbidden, but an individual scholar knows better, may he (or she; this is the 58th century after all) continue to treat it as permitted? If so, may they do so in public or only in private, so as to avoid causing confusion, showing disrespect for the court, or leading others to think that this scholar is a heretic? I'm hoping that the Gemara comes down on the side of saying that in this case, one follows the court.

But even in the first case, there are a few problems. If one refrains from something that the court has permitted, and others see one doing so, does that not also cause confusion and show disrespect for the court? In the case of a Jewish legal system, does it not violate the Torah commandment, "That which the judges shall rule for you, do not deviate from it to the right or to the left."? Does it not lead to a mindset in which people say "Well, I know the rule says I can do such-and-such, but to be on the safe side, I'm going to refrain."? Does it not lead to schisms in society, and to the kind of creeping "stricter-than-thou" social evolution that we're currently seeing among certain sects of Jews, notably in Brooklyn?

That's why I found this Mishna troubling and interesting. It drives right to the heart of what it means to be an educated individual in a larger society. When does an individual have the right and/or the obligation to allow "the common sense that God gave us" to trump the ruling of a competent court that happened to make a good-faith error? I don't think the answer is either "never" or "always."

So... when?

[cellio]

This is an interesting discussion. Thank you for raising it.

The "better safe than sorry" reasoning that leads to chumrot upon chumrot seems to me more dangerous than the original risk, and I am curious to see where the g'mara will go with this. We have to take transgressions seriously, but is there such a thing as taking them too seriously and depriving ourselves of that which is permitted? And when does it all become "adding to or subtracting from the law"?

I presume that an independent scholar would disagree on process (reasoning or precedents), not on facts. If he knew of other facts relevant to the case wouldn't he be obligated to bring them?

[cellio]

I don't know what your last sentences mean

The story about Rabban Gamliel and R' Yehoshua b' Chanania concerns the date of Yom Kippur one year. (This was back when they set new months by seeing the new moon, not by working out the calendar in advance.) R' Yehoshua disagreed with the court's declaration of the new month and thus held that Yom Kippur was one day earlier or later (I forget which) than the court had ruled. Rabban Gamliel required him to violate Yom Kippur on the day that R' Yehoshua thought it was, to establish the court's authority.

The case of the oven of Akhnai (tractate Bava Metzia 59a) involved a dispute between R' Eliezer and the rest of the sages over whether a particular oven was kosher. After failing to persuade them using conventional means he called for various miracles to testify that he was right, ending with a voice from heaven saying "he's right". The sages responded: we do not legislate by miracles, and R' Eliezer was banished.