Peace at Any Price, Disorder, and Teshuva and Recidivism Bava Kamma 106-108

106

Peace At Any Price?

Our Gemara on Amud aleph discusses a scenario when a defendant swears falsely, and later is proven to have lied, certain exemptions of liabilities remain in effect nonetheless. The idea is that having made the oath, there was a certain settlement between the owner and him. Even though the oath was false, certain liabilities are dismissed by the act of swearing itself, almost in exchange for making the oath, true or not.

The derivation for this unusual law is from the verse (Shemos 22:10) “And the owner will accept the oath”, as if to hint that there is quid quo pro release of liability between the defendant to the plaintiff, just for agreeing to make the oath.  

Agra Dekallah (Mishpatim 23) notes that the verse uses terminology which also hints that the oath is metaphorically put on the accuser as well. It can be considered improper to be so unyielding in legal proceedings as to compel the defendant to swear, see Shulchan Aruch (C.M. 87:22.). This stems from an interesting Jewish ethic, even when a person intends to tell the truth, it is preferable to avoid an oath and instead seek some form of settlement or payment. Chasam Sofer (Responsum 90, and Pischei Teshuva, Shulchan Aruch 87:22) explains that it is considered a lack of respect to invoke God’s name for an oath, even if true. To illustrate, it is likened to lowly, feuding ministers who demand that the King review their dispute instead of settling it among themselves.

The bottom line is that it is better to incur financial loss than induce an oath, and both the plaintiff and defendant are responsible for this sin. They should have found a way to compromise for the sake of peace, and not bother God with it, so to speak, like squabbling siblings. 

However, this seems to contradict a teaching from Devarim Rabbah (5:15) which states:

Rabbi Akiva said: Know how great is the power of peace! The Holy One Blessed Be He said that when a man has grounds to suspect his wife of adultery, let the very Holy Name of God be erased in water, in order to perform the Sotah ritual and restore peace in the home.

This shows that God’s honor is sacrificed to bring about peace. If so, why should the plaintiff or defendant be reluctant to invoke an oath that will help settle the matter? If you were to argue, the plaintiff shouldn’t be petty and instead forgive, so too, the jealous husband should also forgive and let go! You might try to answer this contradiction by arguing that infidelity is different, since it is a sin before Man and God, so a restoration of fidelity in marriage brings honor to God as well. The problem with this answer is not the logic, but the text. The Midrash does not say God had His name erased on behalf of His holiness, but rather to promote peace in the home. This suggests that the key distinction is not the unholiness of the infidelity, but the lack of peace and trust. The Midrash apparently believes that once trust is broken, mere forgiveness or letting go is not realistic without drastic measures to enable a restoration.

This underscores the fundamental difference between the emotional betrayal of sexual infidelity and milder forms of financial betrayal (though, of course, still serious.) It is expected to compromise and let go when it comes to financial disputes, but loss of trust in a marriage is not forgiven as quickly, and even God is willing to step in and help.

107

An Order to the Disorder

Our Gemara on Amud Aleph grapples with legal and textual inconsistencies, where the subject matter of the various legal cases and oaths described in Shemos (chapter 22) are difficult to ascertain. According to one approach, עירוב פרשיות כתוב כאן, there is a blending of distinct cases within the verses. In the same verses, one part might be referring to an oath for partial admission, while the second half could be referring to a watchman’s oath.

This idea that the Torah seems to have no order or logical sequence is alien to the western scientific approach. We have similar statements such as,  אין מוּקְדָּם וּמְאוּחָר בַּתּוֹרָה there is no absolute chronological order in the Torah, as events that occurred later in time can appear earlier in the Torah (Pesachim 6b). And, most recently we saw, אֵין סֵדֶר לַמִּשְׁנָה The Mishna is not sequential (Bava Kamma 102a). 

Amongst the commentaries, there are qualifications and distinctions regarding when do we say there is no order, and when we say there is order, but for the purposes of this discussion, we are going to look at the general theme.  Torah follows a system, however sequential order is not its particular kind of system. It is more like a web of simultaneously related items. That is why, especially when you are learning Gemara, though one might expect that the title of the mesechta dictates its contents, often there are discussions that range through all kinds of related topics, far away from what the original title would suggest. My famous personal rule of Gemara is that every daf assumes you know every other daf in shas, except for that one, and every Tosafos expects you to know every other Tosafos and Gemara in Shas except for the one that the question is dealing with. Once you have that basic fact down, the rest is easy.

Gershon Scholem, the brilliant Jewish scholar of mysticism (and apikores), I believe, was correct in his observation that the more something is authentically Jewish, the less systematic it is.  It is notable that when the Rambam ambitiously sought to codify the entire Torah Sheba’al Peh in his magnum Opus, the Mishna Torah, he divided everything into strict topics, sections and subsections. (This was pan unparalleled feat by a single person in history, and it encompassed Bavli, Yerushalmi, Toseftos, Safra, Sifri etc.) The Rambam’s “rebbe”, so to speak,  in philosophy was Aristotle (quoted more than 70 times in the Moreh Nevuchim.)  Aristotle was a great classifier and organizer of information and wisdom.  This is the scientific, rational and linear method which surely has advantages. However, if you are considering something that represents the infinite multi-faceted will of God, how could it possibly be systematic from a human perspective? We are bound by time and space, but God is not. The Torah, by necessity, goes in all directions at once.  Torah is grand and hyperlinked (think gezeira shava), with various levels of meaning and cross references, that it cannot be fully contained in any order.  The fact that there is an appearance of some order, is a nod to human intellectual frailty, “The Torah speaks in the vernacular” (Berachos 31b).  

108

Buy Now, Repent Later

Our Gemara on amud aleph discusses a case where one stated the claim that a thief stole the deposit and took an oath and then witnesses came and testified that he had taken it, and he returned and again stated the claim that a thief stole the same deposit and again took an oath and then witnesses came and again testified that he had taken it. More notably, Rambam (Hilchos Geneiva, 4:5) rules that even if this occurred 100 times, if he makes the oath and then is discredited by witnesses, he will have to pay double for each oath made. 

Chashukei Chemed suggests this case as a possible proof to the ruling that even if one has been shown to lie several times, if he has demonstrated appropriate and credible repentance, that might be believed once again. Otherwise, how would the judges of the court allow this man to repeatedly make this oath when he is a proven liar.

What are we to make of someone who repeatedly repents, breaks our trust, and then repeats it again? A sinner who repeatedly sins, and then repents?

The Gemara Yoma (85b) warns:

One who says, “I will sin and then I will repent, I will sin and I will repent”, Heaven does not provide him the opportunity to repent. 

The Gemara 87a notes the repetition, and therefore states that it specifically means repetition, because with the repetition, I would say through habit and rationalization, “it becomes to him as though it were permitted to him”, and therefore more difficult to repent.

Many commentaries understand that this is not an absolute refusal to accept his teshuva, it just requires extra effort and mindfulness to overcome the loss of sincerity (see Likute Amarim Tanya (25:4). He also says in (Iggeres HaTeshuva 11:1) that this rule only applies if he has the ability to resist the temptation but nonetheless decides to “put it on the tab”, and figure, “I’ll buy now, repent later.”  Bas Ayin (Derushim Leshabbos Teshuva Shabbos 4) offers a clever analysis.  It is difficult to do teshuva on the sin because he must first repent on the sin of abusing God’s patience and kindness, that is he must repent for thinking he could get away with sinning and repenting. After that repentence, his repentence for the actual sin can now be accepted.  

This is not a perfect comparison to our case, as we do not know the state of mind of the person who made the false oath, repented, and falsely swore again. However, we can say, it should not be no worse than the person who cynically decided to sin and repent later. The person in our example, might have said that, or might have been fooling himself and genuinely meant to repent.

There is a fascinating Rambam which caused many commentaries to stretch to fit various answers, but I believe can be explained by understanding something I discovered about the Rambam’s approach, leshitaso, when it comes to an attitude of sin.

The Rambam (Laws of Teshuva 4:1) seemingly codifies this halacha, but neglects to add the repetition clause. He states a number of examples where God will not grant the person assistance in repenting, including: “One who says, I will sin and then repent.” Included in this category is one who says: “I will sin and Yom Kippur will atone [for me].” 

The Lechem Mishna and other commentaries wonder why the Rambam doesn’t include the repetition, even though it is very clear from the context and discussion of the Gemara it is referring specifically to a repeat offender. Some offer the answer that Rambam is basing his ruling on a different beraisa, which does not have the repetition.

This is similar to another Rambam found in Hilchos Deos (2:3) which states: “Whoever gets into a rage is considered as if he committed idolatry.” Over there as well, the commentaries ask that the Rambam diverges from the Gemara (Shabbos 105b), which states “One who destroys his vessels in a rage is as if he is committing idolatry.” The Gemara requires more specific action, and instead the Rambam codifies it as a mode of thought without action. 

Various answers and distinctions are given. However, I believe the answer to both of these apparent divergences between the Gemara and the Rambam’s codification is that according to the Rambam it is not about the sin alone, but about the state of the mind and soul. According to the Rambam the human intellect is the link from God to Man. The greater the person elevates his thinking, and his modes of thought and resultant behavior, the more his intellect becomes in harmony and resonates with God. This is a divine pipeline between God and man. (To understand more about this Maimonidean philosophy, study the poetically sweeping and climactic chapter of the Moreh Nevuchim III:51. Also see what I wrote on my blog Psychology of the Daf, Bava Kamma 104.) Therefore, Rambam interpreted both cases not as actually breaking something, nor sinning repeatedly. Instead, he interprets the Gemara to be discussing a state of mind which predisposes one to repeated sin, and a state of mind where rage is so strong that somebody is out of control and could break vessels. It’s not about the action. It’s about the state of mind that has become animalistic, and no longer connected to God. And I believe you can see this reflected in the Rambam’s words, “I will sin and recant is in the same category as somebody who says I will sin, and Yom Kippur will attain forgiveness.” Because, to the Rambam’s thinking, it is all the same. It is reflective of an inner attitude of disregard and being given over to sin, a sign of an inner state. It is a symptom, not the disease. The disease is the loss of intellectual spiritual capacities, that is rational and God – focused mentality.

Regardless, Teshuva is always possible. But that is between God and Man. There are certain personalities that are so distorted, that it is foolhardy to trust, as sincere as they may sound. For example, persons in the throes of addictions, will say and do anything to get away from the pain of the moment.  Also, some, (but not all,) kinds of sexual predators may feel true remorse but still be under strong compulsions that are not easily redirected.  In the past, certain rabbinic authorities were found to have erroneously turn a blind eye or even participated in covering up crimes because of a well meaning belief that the person did teshuva. I believe misapplication of halakhic technical thinking and misguided halakhic rationales, such as the concept of accepting the Baal Teshuva have been incorrectly applied to dangerous and unmanageable compulsive behavior. We have come to understand that sexual abuse is not merely a moral lapse, but rather comes from more complex psychological dynamics that cannot be remediated by remorse alone. 

Teshuvah is fine for God but it doesn’t necessarily make the potential offender safe.