Free Speech, Shear Profit, Feelings and Facts Bava Metzia 68-70

Speech is Not Free At All

Our Gemara on Amud Aleph references an incident whereby Rav Ashi raised a hypothetical question, which involved a halachic dimension of a student’s inheritance, Mar son of Ameimar. The power of Rav Ashi’s words were so great, that his mere mention of Ameimar’s possible death somehow induced his actual death.

Our tradition, among many ancient traditions of the world, believes that words have extraordinary power to create and shape matter.

The situation in our Gemara is even more unusual, because the comments made by Rav Ashi were not even meant as a curse nor even a prediction. This is more subtle than the more familiar idea that the Rabbis cautioned against, such as predicting one’s demise, effectively cursing oneself, characterized by the phrase, “All tiftach peh le-Satan – do not give the heavenly accuser (Satan) an opening argument.“ (See Kesuvos 8b and Moed Kattan 18a “Beris Kerusa”.) Here, the concern is that the words have a prophetic power, and even influence the future. (See Maharsha, “Beris Kerusa”, on Tosafos Moed Kattan 18a, “Ve-istayya.”)

Rav Elchonon (Kovetz Shiurim, Kesuvos 208) explains that a righteous person such as Rav Ashi never contaminated his speech, thus it retains a full spiritual power. An ordinary person’s speech may not be as strong because, much as a knife used too often becomes blunt and less sharp, so too, speech that is overused and made profane loses some of its intensity.

Psychologically speaking, as very young children observing the world around us and watching our parents, we get the universal impression that words are magic. Mother says, “I will warm up the bottle“, and moments later a warm bottle of formula miraculously appears. Father says, “Be careful with that glass, it’s going to drop and break“, and miraculously, father‘s prophetic prediction comes true, and the glass falls and breaks.

But it’s deeper than that. In the Hebrew language, a “word” is called a “teivah,” which also means box or container. Words are the way in which people contain and express thoughts and ideas. Words are a system by which we use to develop our own thoughts and inner dialogue. Lev Vygotsky, the “Russian Freud”, is most famously known for his final work, “Thinking and Speech”, which asserts that thought and speech are a social process. Through his observation and research of young children and how they talk to themselves and others, he concluded that there is a reciprocal relationship between speech and thought. The child learns through social interaction how to identify and construct the experiences recalled and imagined with the words used by caregivers who interact and respond. But then the words are internalized, and the child uses the dialogue he learned externally to organize his own internal norms and ideas. Using Vygotsky’s theory of thought and speech, we can define the sphere of Speech as the idea and concept learned initially from the social input, and the sphere of Thought might be the internalization of the idea in personal dialogue and terms. Words are how reality is described, but even more, they become how reality is defined

Speech is therefore sacred from a spiritual, but also a psychological perspective and should be given due reverence and recognition regarding its multi-dimensional impact.

Shear Profit

Our Gemara on Amud Aleph discusses an interesting economic and psychological scenario regarding partnership versus working as a subcontractor on commission. As we shall soon see, psychology and economics can be heavily intertwined. In our Gemara, due to certain halachic technicalities of usury, a person who enters into 50/50 financial partnership in raising an animal, actually makes out with less profit than if the owner of the animal had contracted with him to tend this animal for a percentage commission, at the same percentage of profit:

“The sharecropper said to him: Now will you not also give me as you did initially? Before, when I was not a partner in the animal but accepted it only in order to fatten it, you gave me the entire head. Now that I am a partner with you, are you going to give me only one-half of the head?”

Regardless of the halacha, how does the market sustain this inequity? What is the motivation to be an entrepreneur, if in the end, one makes less money? The reality is, that even when the immediate financial benefits of entrepreneurship are not realized, the psychological benefits of independence and self-mastery incentivize people who have a particular mindset and disposition. In other words, you can tax the heck out of them, but still somehow they will keep striving to make more money and take more risks. And yet, there seems to be a truth in life, that the middle class often suffer the most, without the benefits of wealth nor the subsidies of the poor.

The late Nobel Prize winning Israeli-American author, psychologist and economist, Daniel Kahneman made a career out of spoofing how human decisions, even those made by experts, are biased by emotions instead of mathematical losses, gains and rational calculation of risk. One of his key ideas is that people tend to feel the pain of losing something much more strongly than the happiness of profit. Losing $500 FEELS worse than how much making $500 feels good. Because of that key factor, so-called rational business investments often are unconsciously biased, placing more fear and importance in avoiding loss than the mathematical possibility or even likelihood of gain. Thus, even if the odds in an investment plan are 60% in favor of profit over time, many people would not have the stomach to sustain the emotional battering of the 40% losses all the time. Therefore many will foolishly choose, so-called, safe investments.

Here is a practical real world example of how that plays out, although I’m not giving anybody financial or insurance advice. I have known many middle-class wealthy people who let us say, for argument’s sake, have $500,000 in savings. Those same people will buy a car that’s worth $60,000 and spend an additional $5,000 a year on theft and collision insurance. If you take into account other types of insurance such as homeowner’s insurance, flood insurance, and low deductible health insurance, the cost of these various products that are sold for peace of mind amount to an additional $20,000 a year. If a person had the discipline, and set-aside the same money to themselves and invested it wisely, the chances are that over a lifetime, they would fare far better than the insurance pool. But the fear of loss is too strong. Most people, even very wealthy people who could absorb such losses, never consider such a strategy. Even more pertinent to those who are less wealthy, I noticed that my collision/theft insurance was $500 cheaper if I chose a $1,000 deductible. Do you get that math? If a person got into a car accident less than every other year, he would make out with a huge profit over a decade, just by choosing the $1,000 deductible. And, that is without paying the premium difference to yourself and investing it!

This might explain why in our Gemara, despite the economic disincentives, a person might still choose partnership instead of working on commission to raise the farm animals. Yes, he may not make as much money, but he does not feel the loss of the animal when the owner comes to collect his animals and divide the profit. If he owns the animals as a 50/50 partner, then all of it is divided 50/50, including the animals that he cared for, of which he is an equal owner. However, the sharecropper might keep 50% of the profits and even a bit more due to the halachos of ribbis, but still feel the loss of “his” animals that he cared for now being taken away.

The Issue is the Feelings, Not the Facts

Our Gemara on amud aleph uses an interesting idiom to refer to “older” orphans, “Diknanei”, meaning they have beards. Rashi adds, “They are no longer considered orphans.” What does Rashi mean? A beard does not add or detract from the status of an orphan!

To understand this, we need to appreciate the special status that orphans occupy in halacha and Jewish ethics. There are specific prohibitions and damnations that befall one who mistreats an orphan. The verse (Shemos 22:21-23) states:

כָּל־אַלְמָנָ֥ה וְיָת֖וֹם לֹ֥א תְעַנּֽוּן׃

You shall not ill-treat any widow or orphan.

אִם־עַנֵּ֥ה תְעַנֶּ֖ה אֹת֑וֹ כִּ֣י אִם־צָעֹ֤ק יִצְעַק֙ אֵלַ֔י שָׁמֹ֥עַ אֶשְׁמַ֖ע צַעֲקָתֽוֹ׃

If you do mistreat them, I will heed their outcry as soon as they cry out to Me

וְחָרָ֣ה אַפִּ֔י וְהָרַגְתִּ֥י אֶתְכֶ֖ם בֶּחָ֑רֶב וְהָי֤וּ נְשֵׁיכֶם֙ אַלְמָנ֔וֹת וּבְנֵיכֶ֖ם יְתֹמִֽים׃

and My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans.

Rambam (Deos 6:10) elaborates:

A person is obligated to show great care for orphans and widows because their spirits are very low and their feelings are depressed. This applies even if they are wealthy. We are commanded to [show this attention] even to a king’s widow and his orphans as [implied by Exodus 22:21]: “Do not mistreat any widow or orphan.”

How should one deal with them? One should only speak to them gently and treat them only with honor. One should not cause pain to their persons with [overbearing] work or aggravate their feelings with harsh words and [one should] show more consideration for their financial interests than for one’s own. Anyone who vexes or angers them, hurts their feelings, oppresses them, or causes them financial loss transgresses this prohibition. Surely this applies if one beats them or curses them…There is a covenant between them and He who spoke and created the world that whenever they cry out because they have been wronged, they will be answered as [ibid.:22] states: “When they cry out to Me, I will surely hear their cry.” (Look at tomorrow’s blogpost, Psychology of the Daf, Bava Metzia 71, for even more surprising rules regarding an orphan from Ibn Ezra.)

There is an exception to this rule, when done with great care and sincerity (ibid):

When does the above apply? When one causes them suffering for one’s own purposes. However, it is permitted for a teacher to cause them suffering while teaching them Torah, or a craft, or in order to train them in proper behavior. Nevertheless, he should not treat them in the same manner as he treats others, but rather make a distinction with regard to them and treat them with gentility, great mercy, and honor for [Proverbs 22:22] states: “For God will take up their cause.”

What is the definition of an orphan? Rambam (ibid) clarifies:

This applies to both those orphaned from their father and those orphaned from their mother. Until when are they considered orphans in the context [of this mitzvah]? Until they no longer need a mature individual to support, instruct, and care for them and are able to see to all their own needs by themselves, like other adults.

Therefore, we see that Rashi’s point about being old enough to have a beard roughly corresponds with the age of self-sufficiency in the economic realities of the Talmudic era..

One question remains. If self-sufficiency is the criterion, why then does the earlier halacha rule as follows:

“This applies even if they are wealthy. We are commanded to [show this attention] even to a king’s widow and his orphans.”

The answer to this shows how the Torah often considers subjective emotional states as worthy of consideration. The wealthy orphan, though in no financial straits, FEELS poor and helpless, and that is enough. This is why the Rambam prefaces this ruling with the following observation (ibid); “A person is obligated to show great care for orphans and widows because their spirits are very low and their feelings are depressed.” Another area in halacha where the subjective emotions are primary is the obligations of tzedakah, which extend to restoring a wealthy person back to his standard of living: “This includes even a horse upon which to ride and a servant to run in front of him.” (Kesuvos 67b).

We do not say, “It is all in your head, grow up.” The issue is their feelings, not the facts.