Fines, You Don’t Own Your Wife, and Animal Intelligence Bava Kamma 42-45

42

Fine by You, But is it Fine by Me?

Our Gemara on Amud Beis refers to the fine paid by the owner of an ox who gores and kills a Canaative slave. The amount is set at 30 shekel, regardless of the actual worth of the slave.  The gemara considers this a stringency, which then has implications in terms of inferences to and from other related laws, via reasoning of a kal v’chomer. The commentaries raise an obvious question: Why is this fixed amount assumed to be a stringency? If the slave was worth a large amount of money, it would actually be a leniency as compared to paying full value!

Rashba answers simply that the majority of times the slave is typically worth less than 30 shekel, so it is de facto a stringency to always require payment of 30 shekel.  Tosafos offers a different idea. Tosafos says the very nature of utilizing a fixed amount conveys a certain severity and harshness.  How does it do so?

To better understand Tosafos’ logic we must understand the psychology of fines.  What is the message when society, through a legal system issues a fine instead of demanding financial compensation and restitution? The demand of fixed fine signals to the offender that he has committed a moral violation, and is culpable for something beyond damage. It is a punishment and deterrent by society’s messaging disapproval of the act via the fine. On the other hand, a legal process that asks for payments of damages, focuses less on the moral violation and more on the need to restore and pay back the damage.  Therefore, fines have a different psychological effect than rulings about legal damages, and are more intensely focussed on correcting unwanted behavior regardless of the financial loss, big or small.  

The research supports this as well, having implications for policymakers in schools and other institutions which may use fines and financial restitution as forms of regulation and control. According to researchers Uri Gneezy and Aldo Rustichini (“A Fine is a Price”, Journal of Legal Studies, vol. XXIX (January 2000) fines do not always work out as planned.  Gneezy and Rustichini tested out the deterrent hypothesis via a field study at a daycare in Israel.  Being parents of k”ah large families, and being Jewish about timeliness, we can easily imagine frustration on the part of daycare staff who wait for parents to show up late in picking up their kids.  In the study, for the first four weeks, parents who came late were simply recorded.  For the next twelve weeks, parents were given a financial fine.  Incredibly, subsequent to the imposition of a fine, the number of tardy parents INCREASED.  Furthermore, when they tried to dial back and eliminate the fine, the numbers remained constant at the increased level.

How do we explain such a phenomenon, aside from shrugging and saying, “We Jews are a stiff-necked people”?  Researchers Tim Kurz, William Edward Thomas and Miguel A. Fonseca may have found the answer.  (“A fine is a more effective financial deterrent when framed retributively and extracted publicly.” September 2014, Journal of Experimental Social Psychology 54):

According to their research, two factors seem to make the difference between an effective fine and a non-effective one.  If the fine is framed as a punishment and it is public, it conveys moral and social disapproval, and thus acts as a deterrent.  If it is framed merely as a form of financial restitution, then it is less effective. When a person gets a parking ticket, they hate it, but do not usually feel it is a moral criticism about their moral responsibility as a citizen. In regard to the parents of the daycare center, because they were paying a fine for their tardiness, they might have rationalized that the staff was getting paid extra for the time anyhow. If they were told this is rude and they are being fined for their rudeness, perhaps coupled with the frowns of the teachers and administration, our theory holds they would be less likely to rationalize.  

Compare this to how many people view parking tickets or speed camera tickets.  Most do not consider it as if they did something immoral by speeding or driving dangerously. They just see the ticket as a cost of doing business for not following an arbitrary and silly rule by the government. (*Sigh*. This is especially true if one gets the sense that the requirement of 25 mph is so absurd, it is merely another form of taxation. Additionally, if the law is applied unequally, as evidenced by an unusual number of scratched or faded license plates on cars parked near police stations, presumably owned by officers and officials, which evade cameras.  Perhaps the only bit of truthful journalism emanating from the NY Times in the last 20 years, see https://www.nytimes.com/2022/12/17/nyregion/license-plate-vigilantes.html )  But a true fine conveys moral outrage and condemnation and may be highly effective.

That can explain why there is a fine for an ox that gores a Canaanite slave, but not a free-man.  If a free-man was killed by an ox, then there must be financial restitution. For a free man, the guilt and recognition of the loss of life is automatic and does not require reinforcement, thus payment of actual damage is the key concern of Torah society. However, one might rationalize or minimize the death of a slave, thus the Torah seeks to emphasize punishment and not payment. 

43

You Do Not Own Your Wife

Our Gemara on Amud Aleph discusses the payment requirements of someone who hit a woman causing an unborn child to miscarry. The perpetrator must pay the father of the unborn compensation for loss. The Netziv (Shu”t Meishiv Davar 4:35) makes an important observation that has implications for the philosophy of marriage,

Netziv says, you might wonder how the Gemara assumed it was obvious that the father was entitled to damages, even if he never married the mother. The simple reading of the verses imply a husband and not just the biological father. The answer is that the rabbis had no pre-existing notion that a married woman was “owned” by her husband. Unlike a slave whose earnings and children automatically go to the master, a wife is not like that at all. Netziv says this is also why it is only a rabbinic requirement that a woman render her earnings to her husband when she agrees that he will support her. But technically he’s not entitled to her earnings because he does not own her. Any mandated obligations of marriage stem from Biblical or rabbinic delineations of responsibilities, but not ownership, be they intimate or financial.  A commitment or obligation is not ownership. Therefore, when the Torah mandated that the financial payment for loss of the baby goes to the father, there was no reason to believe it was specifically stemming from rights as a husband, and thus was seen as a Torah mandate about fatherhood, not about husband-hood.

There are cultures throughout the world that have treated women like property.  Perhaps this also explains why the Rabbis deliberately changed the Hebrew word for marriage from something that connotes acquisition to a word that connotes consecration.  As Gemara Kiddushin 2b states:

מֵעִיקָּרָא תָּנֵי לִישָּׁנָא דְאוֹרָיְיתָא, וּלְבַסּוֹף תָּנֵי לִישָּׁנָא דְרַבָּנַן, וּמַאי לִישָּׁנָא דְרַבָּנַן? – דְּאָסַר לַהּ אַכּוּלֵּי עָלְמָא כְּהֶקְדֵּשׁ.

Initially, the mishna taught using the language of the Torah, in which betrothal is called taking. And ultimately, in the next chapter, it was taught using the language of the Sages. And what is the reason that betrothal is called kiddushin, literally, consecration, in the language of the Sages? The reason is that through betrothal the husband renders her forbidden to everyone like consecrated property. Therefore, this act is referred to as consecration

It is also noteworthy that tzaddikim consulted with their wives before making important life decisions.  For example, though Yaakov was already instructed by God in a prophetic vision that it was time to leave the house of Lavan, he nonetheless consults with his wives (see Bereishis 31:4-16).  Even when God tells you to do something, you still must discuss it with your wife. We also find in Berachos (27b) that Rabbi Elazar ben Azaryah consults with his wife prior to his accepting the position of Nasi.

This is related to a term coined by the famous marriage researcher John Gottman, known as Influenceability. As explained by clinician Jeff Pincus:

Research by Dr. John Gottman has shown that relationships are much more successful when men allow themselves to be influenced by their partner. It’s important for women to accept influence too, but the research has shown that the majority of women already do this.

Being open to influence requires a man to let go of avoidant strategies like distancing, attacking, and defensiveness. This doesn’t mean adopting an inferior position, but rather allowing his partner’s needs to be of primary importance in his life.  (https://www.gottman.com/blog/husband-can-influential-accept-influence/ )

It is important to counter this idea that many might subtly hold, that could be reinforced by misinterpreted Torah ideas of marital obligation.  Obligation and commitment is not ownership. 

44

Animal Behavior and Consequences

We learned in our Mishna on Amud Beis, that according to the Tanna Kamma, an ownerless ox that gored and killed someone is still executed. This suggests that killing of a murderous ox is not merely a punishment for the owner but even a punishment for the ox.  At first glance, this would seem absurd, to hold an ox liable for its choices, as if it is intelligent.  However, we have already seen that the Talmudic view of animal thought is more nuanced. Though they are incapable of advanced reasoning, and the sages considered only humans endowed with speech which allows for orderly analytic thought (see Onkelos Bereishis 2:7), they still saw them as capable of intentioned actions (see Bava Kamma 19b).

Related to the idea of animal intention and liability, there is an interesting verse  (Bereishis 9:5):

וְאַ֨ךְ אֶת־דִּמְכֶ֤ם לְנַפְשֹֽׁתֵיכֶם֙ אֶדְרֹ֔שׁ מִיַּ֥ד כׇּל־חַיָּ֖ה אֶדְרְשֶׁ֑נּוּ וּמִיַּ֣ד הָֽאָדָ֗ם מִיַּד֙ אִ֣ישׁ אָחִ֔יו אֶדְרֹ֖שׁ אֶת־נֶ֥פֶשׁ הָֽאָדָֽם׃

However, of the blood of your souls, I will demand an account; from the hand of every beast will I demand it. From the hand of man, even from the hand of man’s own brother, will I demand an account of man’s soul.

The simple reading of the verse seems to indicate that God will punish a beast for killing a human. Radak and Ramban both comment on this, wondering how animals could be held liable.  They each answer somewhat differently, but what they say amounts to agreeing that animals are not morally liable, but as a matter of legality must be held liable. Murder cannot be tolerated without a consequence. 

This notion is hinted at in other areas of the Torah, where there is a suggestion that the land itself becomes polluted by murder and must somehow be cleansed to avoid further ramifications of this injustice. See for example Bereishis (4:10) and Devarim (19:10, and 21:9). 

There is also an odd midrash that seems to hold animals responsible for higher order thought and a decision to martyr themselves in the name of God. Pesachim (53b) tells us that Chananiah, Mishael, and Azariah decided to defy Nebuchadnezzar’s orders and allow themselves to be thrown into a furnace based on the behavior of the frogs during the plague, who threw themselves into the Egyptian ovens:

With regard to frogs, which are not commanded concerning the sanctification of the name of God, it is written: “And the river shall swarm with frogs, which shall go up and come into your house, and into your bedchamber, and onto your bed, and into the houses of your servants, and upon your people, and into their ovens and kneading bowls” (Exodus 7:28). When are kneading bowls found near the oven? You must say that it is when the oven is hot. If in fulfilling the command to harass the Egyptians, the frogs entered burning ovens, all the more so, we, who are commanded concerning the sanctification of the name of God, should deliver ourselves to be killed in the fiery furnace for that purpose.

The commentaries explain this Gemara in less literal ways, that is something along the lines that Chananiah, Mishael, and Azariah drew inspiration from the idea that the frogs could defy survival instinct, or perhaps the opposite, that a Jew must follow God’s command without forethought like an animal behaves with instinct. This last idea is reminiscent to Rabbi Akiva’s argument about why he taught Torah, despite the danger to his life in defying a Roman edict (Berachos 61b):

To what can this be compared? It is like a fox walking along a riverbank when he sees fish gathering and fleeing from place to place. The fox said to them: From what are you fleeing?

They said to him: We are fleeing from the nets that people cast upon us. He said to them: Do you wish to come up onto dry land, and we will reside together just as my ancestors resided with your ancestors? The fish said to him: You are the one of whom they say, he is the cleverest of animals? You are not clever; you are a fool. If we are afraid in the water, our natural habitat which gives us life, then in a habitat that causes our death, all the more so. The moral is: So too, we Jews, now that we sit and engage in Torah study, about which it is written: “For that is your life, and the length of your days” (Deuteronomy 30:20), we fear the empire to this extent; if we proceed to sit idle from its study, as its abandonment is the habitat that causes our death, all the more so will we fear the empire.

We also find the donkey of Rabbi Pinchas ben Yair who would not eat untithed produce (Chullin 7a), although that might have been due to some spiritual effect or instinct instilled via ownership by such a great master, as we saw in Psychology of the Daf, Bava Kama 37.

So it is likely that we do not ascribe intelligence to animals in terms of rational thought, but they may still be capable of rudimentary thought, and benefit or suffer in the physical world based on their decisions. If the ox who gores a human and kills him is indeed liable and culpable for its actions, surely we who are intelligent must be even more careful about the effects of our actions. 

45

The “I”, in Idolatry

Our Gemara uses a famous principle of halakhic derivation, אֵין רִיבּוּי אַחַר רִיבּוּי אֶלָּא לְמַעֵט an inclusionary statement following another inclusionary statement implies an exclusion. 

Arvei Nachal (Parashas Eikev) sees this Torah idea as valid in all spheres of existence, and not merely derashos.  A person who seeks to aggrandize himself will lead to his diminishment.  

Socrates was considered by the Oracle to be the wisest man in Athens because he knew one thing, and that is that he knew nothing. In Plato’s Apology of Socrates, he states:

I am wiser than this man, for neither of us appears to know anything great and good; but he fancies he knows something, although he knows nothing; whereas I, as I do not know anything, do not fancy I do. In this trifling particular, then, I appear to be wiser than he, because I do not fancy I know what I do not know.

This is not just a moral idea, but it is also consistent with what we understand about psychology. Human intellect involves constantly making order out of chaos.  The existence of language and mathematics shows the human propensity for imprinting an illusion of meaning from abstract concepts to allow for manipulation of reality.  A chair is not really a chair; it is just a lump of wood and cloth, yet every human instantly recognizes it as a chair, and not a table, even if he or she never quite saw that particular design.  This is why, at least so far, CAPTCHAs (acronym for Completely Automated Public Turing test to tell Computers and Humans Apart) still work to weed out internet bots. 

But there is a downside to this constant human configuring of reality, and that is that we filter everything through a lens of what we need to see and believe.  To some extent this is healthy, as we would go mad if we acknowledged our helplessness and imminent death. (As far as I am concerned, 120 years is too imminent for me!)  Arrogance or the need to feel great will increase this filter fundamentally and cause us to tune out other realities. God is broadcasting His message and goodness in countless ways constantly, but we need to set the dial to the correct frequency. If we are preoccupied with self-promotion we will not hear God’s message. Worse than that, when we engage with other humans who are made in the image of God, instead of seeing God in them, we will see only ourselves, a form of idolatry.