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The Oral Talmud with Benay Lappe and Dan Libenson Episode 30

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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 work through the case of a person who is sick and needs to eat on the austere fasting day of Yom Kippur. We give special attention to the moves which the sages make in order to resolve an apparent contradiction between the earlier Mishnah and a later rabbi whose opinion they clearly want to settle on - instead of the primary text taking ultimate precedence.
  • How do we appreciate the rabbis without being apologetic for their sexism or ableism?
  • How does noticing the intended audience play into the Talmud and college admissions?
  • Is the more essential value here listening to the individual? or stopping any potential harm?
  • In what ways are Torah, Mishnah, and Talmud constitutions? What are the super “precedents” in Jewish law?
  • What can we do when we recognize helpful legal concepts and tools being weaponized?
  • When it comes to judges, do we prefer one who claims to treat the role as an umpire, or one who is honest about the impact of their worldview?
  • How is studying Talmud like reading a book of magic tricks?

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] The episode of Dan Libenson’s other other podcast Stone News which discusses Am HaAretz in Pesachim 49b is Episode 27
[2] Am HaAretz has an entry in the Jewish Encyclopedia
[3] For an example of Jewish exclusion from colleges, read “Stanford apologizes for admissions limits on Jewish students in the 1950s and pledges action on steps to enhance Jewish life on campus” from the Stanford Report (Oct 2022)
[4] The idea that colleges used to be finishing schools for Protestant boys is discussed in the episode “Is the university good for the Jews? With Mark Oppenheimer” of Martini Judaism via ReligionNewsService
[5] Watch & read more about Benay’s CRASH Talk on SVARA’s website
[6] Prof. Rabbi Michael Chernick has a few articles at TheGemara, but I was unable to find the one which Benay references considering Torah, Mishnah, and Talmud each as constitutions.
[7] A discussion of “super precedent” posted during the confirmation hearings for Amy Coney Barrett (from WordOrigins)
[8] Joel Roth’s “The Halakhic Process: A Systemic Analysis” is currently unavailable on Archive dot org
[9] For more on Guf Torah explore “What Is the Subject of Principle 2 in Maimonides's Book of the Commandments? Towards a New Understanding of Maimonides's Approach to Extrascriptural Law” by Marc Herman for Cambridge University Press
[10] A reflection on John Robert’s umpire philosophy in analysis of his choices in Trump’s presidencies (at rsn dot org)
[11] Menachem Elon (wiki article) offers a definition of svara. From “The Basic Norm and the Sources of Jewish Law,” Jewish Law: History, Sources, Principles (Ha-mIshpat Ha-Ivri), Vol. 2, 987-989 (semi-available on Archive dot org, so scribed out as follows): An important creative source of Jewish law is the legal reasoning (sevarah) employed by the halakhic authorities. Legal reasoning as a creative source of halakhic rules involves a deep and discerning probe into the essence of halakhic and legal principles, an appreciation of the characteristics of human beings in their social relationships, and a careful study of the real word and its manifestations.
[12] It was Senator Cory Booker who asked Amy Coney Barrett what reading she had done on racism in the American Criminal Justice System (video at NPR) – Senator Brian Schatz also did not support Barrett’s nomination (article at HawaiiNewsNow)
[13] Read Noah Feldman’s opinion piece for Bloomberg: “Amy Coney Barrett Deserves to Be on the Supreme Court” (Sept 26, 2020, via WayBack Machine), which also discusses legal scholar Jenny Martinez (wiki)
[14] In talking about Noah Feldman going to Amy Coney Barrett for Gemirna and Jenny Martinez for Sevinra, Dan and Benay are referring to Rabbi Meir studying with Rabbi Yishmael to gamar his gemara, and Rabbi Akiva to savar his svara - discussed in The Oral Talmud: Episode 15 - Svara’ing Your Svara (Eruvin 13a and Sotah 20a)
[15] Bryan Stevenson is the author of the book Just Mercy, and founder of the Equal Justice Initiative, which offers narrative and facts of the brokenness of the American criminal justice system, and especially errors in death penalty cases. (EJI’s website)
[16] Kendi is Ibram X. Kendi, author of “How To Be An Antiracist” (2019) and “Stamped From The Beginning: The Definitive History of Racist Ideas in America” (2016) (his website)
[17] Ta-Nehisi Coates is author of “The Case for Reparations” (2014) and “The Message” (2024) (his website)
[18] I could not find the article which Dan mentions about the increased usage of the descriptor “smart” in the last 50 years.
[19] Amy Coney Barrett shows her so-called “impressive” blank notepad (YouTube)
[20] For a deep dive on the אוקימתא okimta (from להקים - to put up/uphold) listen to “The Pedagogy of Ukimta” from Rabbanit Lisa Schlaff (June 26, 2024, via YC Torah), with source sheet via SAR High School
[21] For the American Law counterpart to okimta, start with the wiki article on “Distinguishing
[22] For some Jewish history of Harry Houdini, read articles from Aish, NLI, and The Forward. Also recommended is the comic series “Minky Woodcock, The Girl Who Handcuffed Houdini,” which explores Houdini’s own attempts to reveal the trickery of certain Spiritualists.
[23] A Sefaria search for many times when the Talmud interprets the presence or lack thereof a vav
[24] Find Justice Anthony Kennedy’s full opinion on Lawrence v. Texas which overturned Bowers v. Hardwick’s Sodomy Laws (Wikipedia), with a recommendation to crtl+f for “dignity” (L v. T on Justia)
[25] For a primer on Gezerah Shavah, use the wiki entry on Talmudical Hermeneutics
[26] On removing guard from the gates of the bet midrash, listen to The Oral Talmud: Episode 7 - No More Gatekeeping (Berakhot 28a - Part 1)
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