Behavior, Intention and Moral Choices Bava Kama 4-7

4

An Ox-y-Moron

In our Gemara on Amud Aleph, an intriguing expression is employed to delineate the liabilities incurred by an ox that gores, as opposed to one that tramples or eats, and causes damage. The distinction lies in the fact that when the animal eats or tramples, it possesses no “intention” to cause harm, whereas when the ox gores, it “intends” to cause damage. You might wonder if the English word “intent” is a poor translation of the Aramaic term, but the Aramaic/Hebrew word used in the Gemara is “Kavanna,” and it is used in the same precise manner. Describing the actions of animals as intentional is not how we think of animals. How should we understand this description?

It appears that the Rabbis of the Gemara were not constrained by the sometimes arbitrary classifications of scientific terminology. I do not believe rabbinic or Biblical Hebrew employs a specific term for self-awareness or consciousness, as they did not evaluate animals through that lens. Nevertheless, they did consider humans to possess superior intelligence, primarily due to their ability to express themselves through language (see Targum Bereishis 2:7, Rashi, and Mizrachi). However, the intention to cause harm, while not seen as a sign of high intelligence, was viewed as the product of a being with some thought process, at least capable of wanting to cause damage and carrying out that desire. According to the Rabbis, an ox is indeed capable of intention.

This specific intention is not sophisticated. The ox did not “intend” to build a fusion reactor; as this ox is no rocket scientist but it did intend to cause damage and succeeded with its plan. Destruction is much easier than construction or repair, and so even an ox can accomplish this. This principle holds true in the emotional world as well as the physical world, reminiscent of the second law of thermodynamics. This law states that the total entropy of a system either increases or remains constant in any spontaneous process; it never decreases. It flows from more organized to less organized, making it easier to destroy than to build.

Speaking of entropy, as religious individuals, it’s worth noting that one of the strongest arguments in favor of Creationism is the absence of any example in physics of a naturally occurring reversal of entropy. While I may not be proficient in math or physics, I understand that local entropy may decrease, but never without an overall increase of entropy in the Universe. This implies that while a bird can build a nest or fertilized eggs can grow into chicks, the energy involved in these activities dissipates further, even if locally we hatched an egg. Understanding the immutability of entropic flow, means that the all-encompassing organization required to shape the Universe could not have spontaneously occurred; there had to be an organizing force. Similarly, in the context of Evolution, while we can conceptually agree that a random mutation might result in improved offspring, the overall trend would be toward disorganization and devolution. Our Sages respected this idea, taking it for granted that earlier generations were wiser, holier, and, biblically speaking, lived longer because they were closer to the original organizing and life-giving force of God’s creation. It is practically implausible to believe that matter spontaneously organized itself and science in many ways confirms this.

5

Punishment or Tax?

Rashi, at the beginning of Amud Aleph, makes a distinction between financial restitution and fines. He articulates that when the payment is a fixed amount rather than being contingent on repair or repayment, it is considered a fine.

This categorization and differentiation between restitution and fines are logically accepted by the Gemara, indicating that it is recognized, at least in the Oral tradition. This recognition is evident in legal distinctions, such as exemption from the fine if one admits to the offense prior to the testimony of witnesses (Bava Kama 74b). However, it’s noteworthy that in the scriptural context, there isn’t a linguistic differentiation between a “fine” and a “payment.” Instead, the payment is referred to as a “punishment” at least once (see Deuteronomy 22:19). Thus, the concept of a fine exists in Biblical Hebrew as a subset of punishment, but doesn’t have its own distinct term.

The Talmudic/Aramaic term “Kenas” originates from the Greek word “κῆνσος” or “Kensos,” which means to count. When a word appears in the Gemara that is not available in Hebrew, it signals a different psychological perspective or system of meaning that was not contained in the culture of that language, in this case l’shon kodesh. Although it may be subtle, in the linguistic world of the Bible, a fine is considered a form of punishment, while in the Greek context, it may be closer to a tax. A society viewing the court as an agent of God’s will would interpret a fine as punishment. Conversely, a society perceiving the courts as agents of the government or monarchy, with the potential for capricious and vengeful actions, might view fines as taxes.

Since the primary function of a “kenas” is not to compensate for damage or loss but to serve as a form of punishment, it should ideally function as an effective deterrent. If we were to argue that punishment serves as a means of seeking revenge, it would be a spiteful goal and not aligned with the principles of a just ruler or society, let alone God. What does research indicate about the effectiveness of punishments as deterrents? Common sense suggests that punishing people should deter them, but human nature and motivation often involve non-linear factors and influences. For example, once a fine is incurred, the issue can evolve into something akin to paying a tax or a toll. I have an entrepreneur friend who, despite receiving continuous traffic camera tickets, merely shrugs (typical of his ADD style) and says, “The cost of doing business.” Similarly, a child who faces frequent punishments and restrictions may come to view the risk of punishment or even the punishment itself as an acceptable price for their actions, rather than internalizing the moral message conveyed by the punishment.

The linguistic nuances we have discussed highlight a crucial psychological distinction in how a fine should be experienced to be effective. Is it a punishment for a moral transgression or a tax? According to researchers Kurz, Thomas, and Fonseca (Journal of Experimental Social Psychology, Volume 54, September 2014, Pages 170-177), if a fine is framed as compensatory, as payment for societal damage, it paradoxically increases the frequency of violations. This may be because it is internalized as the cost of doing business rather than a moral reprimand. Only when the fine is framed as a punishment does it effectively deter and serve as a catalyst for moral introspection and adjustment.

6

He Made Me Do It is Not an Excuse

The Gemara on Amud Aleph and Bais delves into a complex lomdishe discussion regarding various forms of damages and factors that influence leniency or stringency. For instance, fire, as a damaging force, also has wind mixed into it, which can propel the fire into another person’s property. In contrast, a pit solely causes damage by the fall itself. In a separate scenario, the Gemara addresses the case of someone who directed their sewage pipe into a public thoroughfare. In this case, the Gemara draws a comparison between the damage caused by slipping on the sewage and that of falling into a pit, rather than that of a fire.

Yismach Moshe, in Vaera 7:1, deduces from the flow of the Gemara and based on Tosafos (Harey Shor), that when a damaging force is combined with another force, it causes more damage because it is more powerful. Consequently, there is potentially greater culpability for not adequately safeguarding it and greater liability. Using this lomdus, Yismach Moshe astutely interprets a cryptic Midrash.

Shemos Rabbah (6:1) quotes a verse that denigrates King Solomon (1 Kings 11:4):

“In his old age, his wives turned away Solomon’s heart after other gods.”

The Midrash commentary on this verse exclaims, “It would have been better to describe Solomon as a sewer pipe cleaner than this.”

What does this vivid metaphor in the Midrash allude to? When someone is influenced and persuaded by others to sin, they may be tempted to rationalize that they are less to blame. They might think, “Everyone else was doing it,” or “I was coerced by my peers and social pressure.” However, Yismach Moshe argues the opposite is true. Because individuals are autonomous, they cannot claim reduced liability due to external pressure and influence. What’s more, we learn from our Gemara that a damaging force mixed with another force causes more destruction. Similarly, the intervention of persuasion from another person strengthens the alignment with sinful actions and morality, necessitating even stronger repentance and corrective measures.

This concept was subtly hinted at in the Midrashic lament regarding Solomon. It is better for Solomon to have been described as a public enemy expelling sewage because at least no other force was mixed in. However, since the scripture describes him as being influenced by his idolatrous wives, his corruption and damage resulting from the sin is greater.

Let’s examine the implications of this perspective. Yismach Moshe focuses on the damage caused by sin committed under the influence of persuasion. While one might technically argue that their intention was diminished due to feeling compelled, the moral corruption and destruction is more profound. It leads to a loss of self and the collapse of internal moral strength. The individual not only becomes corrupt from within but is now infected from the outside. This offers insight on the psychological damage caused from being corrupted by external influences.

7

Does God Owe Us Reward?

Our Gemara on Amud Aleph notes that the Hebrew form of Yeshalem (“He shall pay”) connotes being involuntarily forced to pay, as opposed to the passive tense, Yushlam (“Payment shall occur” or “It shall be paid”).

The sefer Daf al Daf quotes a question from the Parashas Derachim (Derush 26). Rus Rabbah (5:4) records a seemingly superfluous comment on the following verse (Rus 2:12):

יְשַׁלֵּ֥ם ה׳ יְשַׁלֵּ֥ם יְהֹוָ֖ה פׇּעֳלֵ֑ךְ וּתְהִ֨י מַשְׂכֻּרְתֵּ֜ךְ שְׁלֵמָ֗ה מעם ה׳ אלקי יִשְׂרָאֵ֔ל אֲשֶׁר־בָּ֖את לַחֲס֥וֹת תַּֽחַת־כְּנָפָֽיו

May the LORD reward your deeds. May you have a full recompense from the LORD, the God of Israel, under whose wings you have sought refuge.

Says Rav Chassah: “In that you sought to shelter under His wings.” 

What is Rav Chassah adding that the verse doesn’t already state?

An additional question regarding Boaz’s assertion that God will reward. Since Boaz used the directive tense “Yeshalem”, it is as if he is ordering God to make payment. What moral basis makes Boaz so sure that God owes Rus anything? Vayikra Rabbah (27:2) quotes a verse in Iyov (41:3):

מִ֣י הִ֭קְדִּימַנִי וַאֲשַׁלֵּ֑ם תַּ֖חַת כׇּל־הַשָּׁמַ֣יִם לִי־הֽוּא׃

Who has a claim on me from before, that I should repay him? whatever is under the whole heaven is mine.

The Midrash elaborates on this idea that God owes us nothing, by speaking for God: “Who puts on a mezuzah without first having a home? Who fulfills the mitzvah of placing a guard rail on their roof without first having a roof over their heads?” Meaning, God gives you all the benefits of living, and thus the mitzvos are US paying HIM back for what He has already done for us. So God does not owe us any reward. Yet, the Midrash (Bamidbar Rabbah, Naso 14) indicates an instance where God behaves as if He is obligated to pay: “One who has inadequate funds yet still gives charity, and one who does not have children yet still supports the local cheder.” In that case, God obligates Himself to grant such a person wealth or children in response to their selfless leap of faith.

Parashas Derachim says that Rus’ choice to convert was completely voluntary. True, God gave her the gift of life, but as she was not yet part of the Jewish covenant, she was only obligated in the Seven Noahide laws. Her choice to take on all the mitzvos was an example of the kind of leap of faith that God obligates Himself to reward. This is why Boaz could speak with such surety.

On a practical level, we cannot be as sure as Boaz, and should never assume that God owes us anything. Our observance and faith might not be pure enough to merit such miraculous affirmation (see Kiddushin 39b). It is notable that the Midrash believes one who makes the commitment to support a mitzvah even before God provides the means to act on it is a great merit toward being granted miraculous reward. This explains the theological value in committing to action that supports the desired goal for others, even when that same goal is personally being held back. For example, assisting others who suffer from a particular life circumstance or illness that is similar to the one you experience can create this merit, such as people who are childless donating to orphanages or someone with a terminal illness supporting cancer victims. We cannot demand from God in an absolute sense, but it does seem like we can be persuasive.