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The Oral Talmud with Benay Lappe and Dan Libenson Episode 29

Welcome to The Oral Talmud!

Below you will find the original video recording of this episode, the core Talmud sources from the conversation (click their citation hyperlinks to find the texts in their fuller context), and a section of Further Learning (links to books, articles, and additional resources mentioned by our hosts). And remember, the most fulfilling way to deepen your learning is to find a chevruta (a study partner) to share it with!

About this episode & Questions to ask yourself and/or a chevruta as you encounter this conversation:

This week Dan & Benay continue to build on the discussion of Pikuach Nefesh – how the Rabbis established and expressed their fundamental value that one should put the preservation of life before almost any Torah law. We bring in a core text in the SVARA yeshiva which explores the case of a person who is sick and needs to eat on Yom Kippur, instead of fasting. The interplay between Torah, Mishnah, and Gemara are fabulous illustrations of their differing agendas, the rules of Talmudic debate, and a timely gateway into discussions of originalism in legal interpretation.
  • Is there a time for originalist readings, whether it be the American Constitution or foundations of Halakha?
  • What is the job of law? Is it to define the only rights that we have? Or to assume we have a complete freedom unless otherwise limited?
  • Reading Rashi’s commentary, what guesses can we make about where the debate developed in his time by noticing what he adds to the conversation?
  • What are the implications of using a verse from Proverbs as a proof text?

מתני׳ עוברה שהריחה מאכילין אותה עד שתשיב נפשה חולה מאכילין אותו ע"פ בקיאין ואם אין שם בקיאין מאכילין אותו על פי עצמו עד שיאמר די

MISHNA: With regard to a pregnant woman who smelled food and was overcome by a craving to eat it, one feeds her until she recovers, as failure to do so could lead to a life-threatening situation. If a person is ill and requires food due to potential danger, one feeds him according to the advice of medical experts who determine that he indeed requires food. And if there are no experts there, one feeds him according to his own instructions, until he says that he has eaten enough and needs no more.

חולה מאכילין אותו על פי בקיאין אמר ר' ינאי חולה אומר צריך ורופא אומר אינו צריך שומעין לחולה מ"ט (משלי יד, י) לב יודע מרת נפשו פשיטא מהו דתימא רופא קים ליה טפי קמ"ל רופא אומר צריך וחולה אומר אינו צריך שומעין לרופא מ"ט תונבא הוא דנקיט ליה תנן חולה מאכילין אותו ע"פ בקיאין ע"פ בקיאין אין ע"פ עצמו לא ע"פ בקיאין אין על פי בקי אחד לא הכא במאי עסקינן דאמר לא צריכנא וליספו ליה ע"פ בקי לא צריכא דאיכא אחרינא בהדיה דאמר לא צריך מאכילין אותו ע"פ בקיאין ספק נפשות הוא וספק נפשות להקל לא צריכא דאיכא תרי אחריני בהדיה דאמרי לא צריך ואע"ג דאמר רב ספרא תרי כמאה ומאה כתרי ה"מ לענין עדות אבל לענין אומדנא בתר דעות אזלינן וה"מ לענין אומדנא דממונא אבל הכא ספק נפשות הוא והא מדקתני סיפא ואם אין שם בקיאין מאכילין אותו על פי עצמו מכלל דרישא דאמר צריך חסורי מיחסרא והכי קתני בד"א דאמר לא צריך אני אבל אמר צריך אני אין שם בקיאין תרי אלא חד דאמר לא צריך מאכילין אותו על פי עצמו מר בר רב אשי אמר כל היכא דאמר צריך אני אפי' איכא מאה דאמרי לא צריך לדידיה שמעינן שנאמר לב יודע מרת נפשו תנן אם אין שם בקיאין מאכילין אותו ע"פ עצמו טעמא דליכא בקיאין הא איכא בקיאין לא ה"ק בד"א דאמר לא צריך אני אבל אמר צריך אני אין שם בקיאין כלל מאכילין אותו ע"פ עצמו שנאמר לב יודע מרת נפשו

It was taught in the mishna: If a person is ill and requires food due to potential danger, one feeds him according to the advice of medical experts. Rabbi Yannai said: If an ill person says he needs to eat, and a doctor says he does not need to eat, one listens to the ill person.What is the reason for this halakha? It is because the verse states: “The heart knows the bitterness of its soul” (Proverbs 14:10), meaning an ill person knows the intensity of his pain and weakness, and doctors cannot say otherwise. The Gemara asks: It is obvious that a person knows himself better than anyone else does. Why does this need to be stated explicitly? The Gemara answers: It is lest you say that the doctor is more certain because he has had more experience with this condition. Therefore, the verse teaches us that even so, it is the ill person who knows his own suffering better than anyone else. However, in the opposite case, if a doctor says that the ill person needs food, but the ill person himself says he does not need to eat, one listens to the doctor. What is the reason for this halakha? It is because confusion [tunba] has taken hold of the ill person on account of his illness, and his judgment is impaired. Consequently, he himself does not know how much he needs food. § We learned in the mishna: If a person is ill, one feeds him according to the advice of medical experts. This implies that if there are experts present, then according to the advice of experts, yes, one feeds the ill person; but at his own instructions, no, one does not feed him, contrary to Rabbi Yannai’s opinion. It further implies that according to the advice of several experts, yes, one feeds an ill person; however, according to the advice of only one expert, no, one does not feed him. There appears to be a requirement for at least two doctors, which also contradicts Rabbi Yannai’s opinion that the opinion of one expert is sufficient to override the opinion of the ill person. The Gemara rejects this: With what are we dealing here? We are dealing with a unique circumstance: The ill person says I do not need food, and the consultation of experts is required. The Gemara suggests: But let them feed him according to the advice of one expert, as Rabbi Yannai said that in such a circumstance one feeds the ill person based on the advice of one doctor. The Gemara answers: No, the requirement of two experts is necessary in a case where there is another, third expert with him who says that the ill person does not need to eat. In such a case, one feeds the ill person according to the advice of two experts who agree that he requires it. The Gemara asks: If so, this is obvious, since it is a case of uncertainty concerning a life-threatening situation, and in all cases of uncertainty concerning a life-threatening situation, the halakhais lenient. The Gemara answers: No, this halakha is necessary in a case where there are two other doctors who, along with the ill person, say that he does not need food. And although Rav Safra said that two witnesses are like one hundred witnesses, and one hundred witnesses are like two witnesses, that rule applies specifically to the matter of testimony; however, in the matter of assessing a situation, we follow the majority of opinions. Therefore, one might think in this case that the ill person should not be fed because the opinion of two doctors plus the ill person should override the opposing opinion of two other doctors. Generally speaking, two or more witnesses constitute complete testimony, and there is no difference between the testimony of two and the testimony of a large number of people. However, this principle of following the majority applies specifically to assessing monetary issues, but here it is a case of uncertainty concerning a life-threatening situation. Therefore, although it is the opinion of two doctors against the opinion of two doctors and the ill person, the ill person must eat. The Gemara asks: But from the fact that it is taught in the latter clause of the mishna that if there are no experts present one feeds him according to his own opinion, by inference, the first clause of the mishna is referring to a case where the ill person said he needs to eat. In that case, the mishna states that one follows the experts’ opinion, not his own, and feeds him. The Gemara answers: The mishna is incomplete and is teaching the following: In what case is this statement that he may eat only based on the advice of experts said? It is when the ill person said: I do not need to eat. But if he said: I do need to eat, and instead of two experts there is only one who says that he does not need to eat, one feeds him according to his own opinion.Mar bar Rav Ashi said: Any instance where an ill person says: I need to eat, even if there are one hundred expert doctors who say that he does not need to eat, we listen to his own opinion and feed him, as it is stated: “The heart knows the bitterness of its soul” (Proverbs 14:10). We learned in the mishna: If an ill person himself says he needs to eat and there are no experts present, one feeds him according to his own opinion. This implies that the reason one feeds him is because there are no experts present. One may infer from this that if there were experts present, no, one would not feed the ill person based on his own opinion but would instead listen to the advice of the experts. The Gemara rejects this: This is what the mishna is saying: In what case is this statement that one follows the opinion of the experts said? It is when the ill person said: I do not need to eat. However, if he said: I do need to eat, it is considered as if there were no experts there at all; we feed him based on his opinion, as it is stated: “The heart knows the bitterness of its soul” (Proverbs 14:10). All the experts are ignored in the face of the ill person’s own sensitivities.

References and Further Reading

[1] This history of the “Amy Coney Barrett Supreme Court nomination” (Wikipedia Article)
[2] For a well-sourced debate on the validity of Yeridat HaDorot “the diminution of the generations” explore this question on Mi Yodeya about its opposite Aliyat hadorot
[3] “like what Churchill said about democracy: It's the worst way except for all the others.” History of the saying at Quote Investigator
[4] For the “Tanur Shel Achnai” Oven of Achnai story, start with The Oral Talmud: Episode 3 - Misquoting God
[5] There was in fact a situation which flirted with the Third Amendment: in June of 2020 when DC Mayor Muriel Bowser worked to remove National Guard deployed to hinder the protests for Black Lives, and who were being housed in a hotel (rather than an army base) (article at LawAndCrime)
[6] The Oral Talmud first discussed Penumbra of the Emanations in The Oral Talmud: Episode 23 - Life Comes First (Yoma 83a & 85a/b)
[7] The 9th Amendment “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Wikipedia)
[8] While we’re on the subject of lesser known Amendments, your footnote scribe would like to recommend “27: The Most Perfect Album,” a partnership between the National Constitution Center and WNYC Studios to make a song for each amendment. (on WNYC’s website)
[9] “what are those Ur-values” – an entry for the prefix Ur- “proto/original” in Wiktionary
[10] The Oral Talmud’s journey into Pikuach Nefesh - “life should take precedence, even over the observance of anything in the Torah with three exceptions” - started with The Oral Talmud: Episode 23 - Life Comes First (Yoma 83a & 85a/b)
[11] More on Karet from MyJewishLearning
[13] “Torturing your soul” on Yom Kippur (not explicitly fasting) is Leviticus 16:31
[14] Isaiah on Fasting, which is connected with the same verbiage as the Leviticus 16:31 of afflicting the soul - is Isaiah 58:5
[15] For the history, impacts, and erosion of the Voting Rights Act, start with the Wikipedia page
[16] Resources for stare decisis from the American Bar Association
[17] Writing footnotes after the stare decisis of Roe v. Wade has been eroded, I found this article that describes the long process of eroding the Dred Scott decision and how the same cycle may support a return of abortion rights - “The Cycle of Delegitimization: Lessons From Dred Scott on the
Relationship Between the Supreme Court and the Nation” by Jonathon J. Booth (PDF from UC Law SF)
[18] For some slow motion typewriter line returns, and the legacy of their terminology in modern computers, check out the video “What is CRLF? Carriage Return?” on YouTube
[19] Dan compares The Book of Proverbs to Polonius’s monologue of cliches to his son Laertes, from Hamlet Act 1 Scene III (on Genius with community annotations) - Dan also brought this moment up in The Oral Talmud: Episode 22 - Hillel & Shammai: Beyond Elu v’Elu (Eruvin 13b)
[20] God holding the mountain, and basing the covenant on Esther was discussed in The Oral Talmud: Episode 2 - Voiding the Torah
[21] For a great book of Jewish Fairytales, explore anything compiled by folklorist Howard Schwartz who always has fabulous footnotes (many for free on Archive dot org)
[22] Our sugya is discussed in Julius Preuss’s Biblical and Talmudic Medicine (pg 149, on archive dot org)
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