Manipulations in Justice and Deja Vu All Over Again Bava Metzia 2-4

2

The Mother of Intention 

The Gemara on this Amud discusses the proper way to adjudicate a dispute where two parties claim ownership over an object. Sometimes the remedy is to mandate that it be divided. However, that is only when there are grounds to consider each claim as equally valid, and possibly that both are equal legitimate owners.  But if one party had full possession of the object, and the other had no proof other than his claim, we would not divide the object. We will give priority to the one who has physical custody of the object.

Based on this, Akeidas Yitschok (36:1) raises a question regarding Solomon’s famous ruling to cut the baby in half, as described in Melachim (I:3:16-28). An infant died in the night, and two women of ill-repute were quarreling about whose baby died. One woman claimed her baby was the living one, and the other woman upon seeing her dead child, switched them while she was asleep. Yet, the other woman claimed that the living baby was hers all along. From the end of the story, we see that Solomon planned it as a subterfuge to flush out the fraudulent mother. Indeed the true mother, out of love for her child, begged that she be allowed to release her claim, and the other woman would keep the child, so at least he could live.  Solomon then knew that this woman was the true mother, as she was ready to make the ultimate sacrifice of losing custody of her child, and undergo being humiliated by her loss in the court case in order to save his life.

Even though this was just a ruse, how could Solomon allow himself to appear so foolish as to suggest cutting the baby in half? It is elementary to any sense of justice that the person who has physical custody of the object should not have to relinquish it based on an unsupported claim.  There had to be some rationale! Akeidas Yitschok responds with a lengthy discussion about the imperfections of law, and that a great judge must also use some degree of intuition when something smells fishy.  Law is broad and general, therefore it will be imperfect at times, because no amount of legislation is enough to cover every contingency. It is the role of the Sanhedrin to occasionally abrogate the law, when there seems to be a need to preserve a higher goal or safety for society (see Bava Metzia 39b, Yevamos 90b, and further in Aekidas Yitschok 43.)

Thus Solomon sensed that the woman who claimed her baby was stolen had basis for her claim. After all, why would a woman randomly claim a baby of another woman and wish to go through all the trouble of raising a child that is not even hers?  On the other hand, it is imaginable that a woman who was aware that her child died, in the throes of anguish and jealousy, might steal her housemate’s child and claim it as her own.  But then she would follow the MO of claiming the child to be hers, and not that it was stolen.  Thus, the claim by the other mother had a believable feel, as it was the less convenient or credible claim to make, and so perhaps she was telling the truth, even though she did not have physical custody.

This was Solomon’s tacit argument to split the baby in half, as he could show credence to both claims, and of course still be strategy of his ruse to flush out the liar.  

In life, sometimes we might have to resort to trickery in order to pursue ultimate justice. Yet other times, we must be willing to sacrifice our rights, and even the relationship itself, in order to spare a loved one. A modern example of Solomon’s dilemma is when a divorced parent feels he or she is being deliberately libeled as part of a campaign to alienate the child. When do you fight, even though the emotional and financial hardship to the child is great, and when do you concede?

3

Justified Manipulation

Our Gemara on Amud aleph uncharacteristically asks why the Torah obligates an oath by a person who partially admits, but exempts the person who flat out denies the claim. Usually the Gemara asks the “what”, but not the “why.”  For example, a Gilgul Shevua, on the face of it, makes little sense. (An additional oath, levied on the defendant once he already is obligated in a first oath, even if a second claim on the part of the plaintiff is lacking evidence.) Why should a claim with little merit, that ordinarily would not incur an oath, now, all of the sudden obligate the defendant? The Gemara never asks why Gilgul Shevua, even though it seems even less logical than the oath of partial admission, and otherwise many details of the “what” for gilgul shevua are discussed later on Daf 4 (where I hope to offer a possible explanation for the unique legal process.)  

Our Gemara delves into the logic behind the oath of partial admission, because the underlying logic has halakhic implications and also allows us to resolve a logical problem. The entire idea of requiring the person who makes a partial admission to take an oath, on the surface, is apparently absurd.  If we don’t trust him, why would we think he wouldn’t lie under oath?   And if we find his claim believable, why require an oath? The answer has to do with a perception of human psychology and motivations. It is possible  that the person owes the full amount, didn’t have enough money to pay and was afraid that he would be stripped of his possessions. He’s not really a crook and intends to pay back the full amount once he is more solvent. Meanwhile, he will admit to a portion of the amount he owes and pay it down. Since he is not a full fledged criminal or habitually deceitful person, the obligation to swear causes him to reconsider his claim and fess up. He might have been tempted to tell a white lie, but he’s not going to swear falsely.

There is a famous question (Shu”t Mutzal Me-Eish 53:2) as to why is any plaintiff allowed to push a lying defendant to make an oath? From the perspective of the plaintiff, who knows the truth, he is definitely causing the defendant to sin (lifnei iver)? It is a prohibition to cause a person to sin (Chinuch 232), so perhaps one should forgo monetary claims, to avoid causing the liar to swear. We are obligated to give up all our money so as not to violate a prohibition (see Shulchan Aruch OC 656:1), so why not here do the same to avoid lifnei iver? 

To answer this, Radbaz (IV:223) holds that in certain situations where the sinner is brazen and trespassing, we do not protect him. The adage is, “Feed it (the poison) to the sinner and let him die”, Bava Kama 69a. A different and logical answer given by Kley Chemda (beginning of Mishpatim) is by dint of the fact that the Torah allows for an oath to help resolve a court matter, it is de facto permission to override the prohibition of lifnei iver. This is similar to the idea that even Hashem allows his name to be erased for the sake of promoting peace (Sotah 53b). 

Sefer Daf Al Daf says his own answer, that it is not truly lifnei iver, as maybe the person will chicken out and be afraid to lie, as we saw from our gemara’s discussion.  Even in situations where the Torah is not obligating an oath, such flat out denial, but the Rabbis still required an oath, we can use the reasoning supplied from our Gemara. That is to say, we can understand that there might be rationales for certain types of thievery and denial, while a person still would not go as far to make a false oath, which is a more grievous sin than mere theft. Also, from the story of Shlomo Hamelech and the baby discussed in yesterday’s daf, we see the idea that sometimes a ruse is useful to bring about justice, even though there is an aspect of insincerity. (See the blogpost Psychology of the Daf Bava Metzi’a 2.) The gemara’s formulation shows that the Torah can engage in morally justified psychological manipulations in order to flush out a liar.

4

It’s Like Deja Vu, All Over Again

Our Gemara discusses various aspects of a unique kind of oath, known as Gilgul Shevua, which we can roughly translate as “A rolled-on Oath.”  When a defendant is obligated to make an oath to defend their claim, the plaintiff has the opportunity to levy additional accusations, compelling the defendant to take oaths on those matters as well. Remarkably, this applies even when the subsequent accusations lack substantial legal basis, or would otherwise be exempted from making an oath. This is derived from the repetition of “Amen” uttered by the Sotah, a woman accused of adultery. She too must swear oaths proclaiming her innocence, extending beyond the initial evidence and accusation (see Sorah 27b).

The Shalah (Torah Shebiksav, Bamidbar, Nasso, Beha’alotcha, Torah Ohr Nasso) makes a cryptic statement, which I will do my best to analyze so we can perhaps understand a small portion of his brilliant and holy words.  First I will simply translate it verbatim:

That we learn Gilgul Shevua from the Sotah, speaks of a secret mystical concept. Were it not for Adam’s first sin that caused Eve to become perverted, as the serpent made her into a Sotah, there would be no sin and therefore no gilgulim (reincarnation). There would only be new souls. But due to our many sins they are gilgulim. This is the true gilgul shevuah, literally a repeated oath because before a person is born his soul swears before God that it will not sin (see Niddah 30b), and if he does sin, he may need to repeat his life to repair his past misdeeds. 

Let’s try to sort out what the Shalah really means. For starters, we should analyze what is the possible rationale for gilgul Shevua in the first place. Why would we allow the plaintiff to heap on additional oaths, if ordinarily he lacks sufficient evidence to make this claim? That is the key point, credibility. Normally, an oath can be seen as a counter response to a claim that has some legitimacy. That is why the person who partially admits, needs to make an oath as we discussed in yesterday’s daf. So, once one claim of the plaintiff seems to have some legitimacy, this lends additional legitimacy to the other claims, and the need for an oath as a response is triggered.

Symbolically, this is a gilgul. Reincarnation is an expression of an additional unresolved guilt and liability, as the additional oath is also an expression of a vague undefined claim. We might even say that the Sotah’s original oath stems from a vague, undefined claim, and thus she is the mother of all Gilgul shevuous. 

Furthermore, the Sotah ritual itself is not only the source for Gilgul Shevua, but it is an enactment of the drama of God’s creation of the world, and all of the challenges that resulted in sin, repair, and sin and repair. Be’er Mayyim (Bamidbar 5:19) explains that the Cohen placing the water and the earth in the vessel, is reminiscent of God placing the soul into Man’s body, and the Sotah’s oath is reminiscent of the oath that the soul makes to stay true and faithful to God.  

Oaths in general have an interesting source, as they are based on the power of speech to create a certain reality, and thus speech itself is sacred (Bamidbar 30:3).  Man, made in God’s image, is unique in his ability to craft reality with his words.  God, of course, created the world by his words alone, and his “word” is equated to action, as it states in Yeshaiyahu (55:11)

כֵּ֣ן יִֽהְיֶ֤ה דְבָרִי֙ אֲשֶׁ֣ר יֵצֵ֣א מִפִּ֔י לֹֽא־יָשׁ֥וּב אֵלַ֖י רֵיקָ֑ם כִּ֤י אִם־עָשָׂה֙ אֶת־אֲשֶׁ֣ר חָפַ֔צְתִּי וְהִצְלִ֖יחַ אֲשֶׁ֥ר שְׁלַחְתִּֽיו׃ 

So is the word that issues from My mouth: It does not come back to Me unfulfilled,

But performs what I purpose, Achieves what I sent it to do.

Is it a coincidence that the Hebrew word for oath “Shavua” has the same root as “Seven – Sheva” the days of creation?

Putting all this together, this might be close to what the Shalah was hinting at. The sin of Man led to sensuality and the distortion that it causes, leading to sin. The Sotah is symbolic of the soul’s betrayal and unfaithfulness toward God, and its oath made before it was born to stay pure. This betrayal leads to a gilgul (reincarnation), as the soul must try again to correct its wrongs, and the Gilgul Shevua is a presumption of prior unresolved guilt for betrayals and dishonesties that have not been made clear now, but are in the background.  There is much that is still unclear here, such as, is it just a derash based on similarity of words, or does it represent something that is essential and fundamentally similar?  I don’t know, but this is at least part of the story.