The Blogs: The Optics of Retaliation, and Toxic Waste and Toxic Anger Bava Kama 27-31

The Optics of Retaliation and Rescue from Enemies

Our Gemara on Amud Beis discusses the principle of Avid Inish Dina Lenafshe, which is to the extent that a person can take the law into his own hands to protect, or recover his possessions. There are times where it may be permitted to even resort to violence to protect one’s possessions, see Shulkhan Arukh (CM 4). Of course, the potential for vigilantism and rationalization for out of control behavior is considerable, so one should be both well-versed in the laws, consult with competent poskim, and have sufficient self-control and judgment.

Our Gemara discusses a vignette where the person was technically justified in taking matters into his own hands to recover something that was rightfully his. However, the sage Ben Bag Bag ruled that if it has the appearance of theft such as by stealthily entering into the person’s property, it would still be forbidden because of the optics. It is not good for people to see others behave in a manner that appears sinful and lawless.

Be’er Yosef (Kedoshim) finds scriptural support for this. There are verses in the Torah that the sages say refer to theft of objects, but also verses that refer to human theft, i.e. kidnapping. Gemara Sanhedrin (86a) states that the verse in Shemos (20:13) “[You – singular], Do not steal” refers to kidnapping. And the verse in Vayikra (19:11) “[You – plural], Do not steal” refers to theft of objects. Unlike English, Hebrew has a plural verb form and singular verb form. Thus, the first verse by kidnapping is singular (“lo signov”), and the second verse referring to ordinary theft, is plural (“lo signovu”). Be’er Yosef says this hints at Ben Bag Bag’s principle. The provision against ordinary theft is said in a plural form to remind even the victim to be careful not to retaliate by stealing back. However, since the first verse is referring to kidnapping, which is considered a capital offense, it would be permitted to retaliate and engage in any means necessary to rescue the victim. Therefore it is stated in the singular form and is only addressing the thief not the victim.

I cannot help reflecting on the current situation regarding Israel, Hamas, and world opinion. Bizarrely, the world holds Israel to a twisted moral standard, that they should not defend and even retaliate to protect themselves from a sworn enemy, that has no interest other than our complete annihilation in the cruelest and inhumane manner. Lest we be tempted to worry about the optics, because it has the appearance of impropriety, let us remind ourselves of the words of the Be’er Yosef. When it comes to saving lives, we are not concerned about appearances.

God is the Baal Tekiah

Our Gemara on Amud Beis discusses the well-known principle that the Torah does not hold a person liable for sins committed that he could not stop or control, or if he was compelled by an overpowering force, or committed them under life threatening conditions. The precise language is, “The Merciful One exempts a victim of circumstances beyond his control.”

Rav Simcha Bunim Mipeshischa (Kol Mevaser II:Rosh Hashanah) notes the manner in which the phrase is stated. It doesn’t state, “A person is exempt…”, rather, it states “The merciful one exempts…” This indicates that it is not a blanket, automatic exemption. It is a special dispensation that God himself grants. He goes on to say, “It is not merely that God grants an exemption, but God considers it as if the person performed the commandment or abstained from the sin as would have been his will, without the circumstances beyond his control.

Rav Simcha Bunim uses this principle to beautifully explain another interesting phrase. The Gemara (Rosh Hashanah 29b) rules that when Rosh Hashanah occurs on Shabbos, we do not blow the shofar outside of the Temple. The language used is, “When the Yom Tov of Rosh Hashanah comes out on Shabbos.” Usually, Rosh Hashanah is not referred to as a “Yom Tov.” The word Yom Tov connotes a festival and celebration, such as Pesach, Succos and Shavuos. A day of judgment is not quite a joyous festival. Yet, Rav Simcha Bunim says that when there is a combination of Shabbos and Yom Tov, it is indeed a time of rejoicing, because ordinarily, when humans try to perform the mitzvah of blowing the Shofar, it is subject to the limitations of human intention and imperfection. However, since now the Jews are not allowed to blow the shofar because of matters not under their control, God, so to speak, blows the shofar for them. And this is a complete and perfect performance of the mitzvah but God is the Baal Tekiah.

Other sages also speak of the importance of intention and will, especially when circumstances prevent a person from performing a mitzvah. Kesav Sofer (Megillas Esther) and Sichas Haran (14) says that one who is under duress and technically exempt only receives the credit for the mitzvah, or is prevented from the toxic damage of the sin in his heart, if he truly desires to follow God’s will. Kesav Sofer (Bo) goes further to deduce the opposite. The principle of duress and intention is a two-way street. Namely, if a person performs a mitzvah, but in his heart does not wish to perform it, then he is feeling forced to do it, and not really wanting to do it undermines the credit as if he did not do it. However, Kesav Sofer (Beshalach) cautions against the slippery slope of over emphasizing the importance of intention. He rejects the idea that it is good enough to be “a Jew at heart“. While one must of course be a Jew in his heart, it is insufficient without also performing the physical action of the mitzvah whenever he has the ability to do so.

My father Z”L who was a veteran mechanech of over 60 years would remark, based on a teaching of his Rebbe (Rav Hutner ZT’L): You can tell the student’s attitude toward his studies by gauging how he or she behaves when it comes time for recess. Rav Hutner based this on an Aggadah at the beginning of Avodah Zara (3b) where in the end times the nations of the world complain that they were not given an opportunity to observe the Torah. In response, God gives them “one easy mitzvah”, and they are instructed to build a Succah. The Gemara predicts that God will make that day so hot that it will be unbearable to stay in the Succah and they will leave the Succah in frustration and despair, kicking it on the way out. The Gemara asks, why did the gentiles fail this test? Are we not taught that one is exempt from the mitzvah of Succah when it is too uncomfortable to properly dwell in it? The Gemara replies, “True, they were not required to stay in the Succah, but did they have to kick it on the way out?”

Life is complicated and there are times where we have regrets, and even times where we are unable to do the right thing or help the right person at the right time. When that happens, there often is a psychological defense against the sensation of despair and powerlessness by rejecting the mitzvah. Have you ever encountered a beggar on the street, and for whatever reason, you either do not have the free change to give him, or you don’t feel safe or able to give him, or perhaps, you wonder if he is legitimate or a grifter. It feels so much easier to reject the beggar aggressively, than to simply and warmly say, “I’m sorry, I can’t help you right now.” And to really mean it. Sometimes we cannot do something, but it is key that we relate to others, ourselves and God with full compassion and emotional presence.

Entrusted Possessions

Our Gemara on amud beis informs us of a legality involving a twilight zone of ownership and non-ownership:

The Gemara states that there are two entities that are not in a person’s legal possession and nevertheless the verse rendered them as though they were in his possession with regard to certain halakhic responsibilities. And these are: A pit that he dug in the public domain and leavened bread remaining in his possession on the eve of Passover from six hours, i.e., noon, onward. (Chametz is forbidden to have benefit, therefore, valueless. Because of this, it is in essence, ownerless.) Both of these entities are not considered his possession, yet he is liable for them as if they are his possessions.

Reflecting on this idea, let us consider the symbolic meaning of these two “possessions.” One is something that is literally a pitfall, the other is an external manifestation of a hidden process. Mystically, chametz is considered the internal fermenting of arrogance and sin (Zohar II 40b and 182a). In both cases, we would like to deny our association or “ownership” of our own role in the problems that result from not confronting pitfalls or hubris.

Homiletically speaking, there are other experiences where we do not have full possession yet we are still significantly liable. As parents we are in many respects liable for our children’s behavior, and we also can become controlling and possessive. Avos DeRabbi Nosson (14:6) refers to a child as an entrusted valuable object given to us for safekeeping. We do not own our children. Yet, we are entrusted to care for them and often are responsible for what they do and how they turn out.

Toxic Anger and Toxic Waste

Our Gemara on amud aleph discusses practices of the Chassidim Rishonim, a sect of sages who were distinguished by taking upon themselves strict requirements of piety.

תָּנוּ רַבָּנַן: חֲסִידִים הָרִאשׁוֹנִים הָיוּ מַצְנִיעִים קוֹצוֹתֵיהֶם וּזְכוּכִיּוֹתֵיהֶם בְּתוֹךְ שְׂדוֹתֵיהֶן, וּמַעֲמִיקִים לָהֶן שְׁלֹשָׁה טְפָחִים כְּדֵי שֶׁלֹּא יְעַכֵּב הַמַּחֲרֵישָׁה.

The Sages taught: The early pious people would conceal their thorns and their pieces of glass in their fields, and would dig to the depth of at least three handbreadths in order to bury them, so that they would not obstruct (Ye-akev) the plow.

Tosafos notes that the Yerushalmi uses a slightly different phrase: “…so that the plow would not dredge up the thorns or glass.”

The distinction is that the Yershalmi is focusing on the danger of dredging up the hazard that was originally buried. Our Gemara seems to be focusing on the obstruction that the plow would experience when it bumps into the material. The Yerushalami’s description is much more understandable and morally correct. If we take the Bavli’s description literally, of what great piety is it to be careful to safely dispose of your waste so that you do not encounter difficulties when plowing? That’s common sense.

I believe the answer is as follows. The Bavli is actually addressing a deeper issue. The Chassidim Rishonim were not just concerned about the waste casually resurfacing. That is something anybody would be careful to handle properly and remove. Rather, they were concerned that in the frustration of the plow getting fouled up with the hazardous material, perhaps out of impulsivity and anger, the field owner would hastily throw the shards out of his way into a more dangerous place.

The lesson is, that once we are frustrated and angry, our judgment is clouded. This is what the Chassidim Harishonim sought to avoid. See Psychology of the Daf Kiddushin (32), where we discussed this in more depth.

Getting Back on the Wagon

Our Gemara on Amud Aleph discusses the liabilities of one who trips, and then another trips on him. Even though there is a dispute about this liability between Rabbi Meir and the Chachamim, all agree that if the person tripped and did not get up within a normal interval, he then becomes liable if someone trips on him.

The Aramaic word used in the Gemara is Niskal, which is phonetically and linguistically equivalent to the Hebrew word nichshal, which is used to connote more than literal stumbling. It also connotes erroneous ideas, and even sin. See for example verses in Vayikra (19:14 according to rabbinic interpretation it is referring to poor advice, not literally a stumbling block) and Hoshea (14:10). Given this introduction, we can understand a metaphoric explanation of this legal sugya. Sefer Toldos Shem (Siman Aleph, p. 55) explains that when a person sins, they might be able to excuse themselves saying that they stumbled. After all, to err is human and our desires can get the better of us. To paraphrase Reish Lakish, sin, in and of itself, is a temporary form of insanity (Sotah 3a.) However, that is all fine and good and acceptable at the moment of the initial stumble. However, if one does not get back up right away, that is repent and correct his actions, then he is held liable, even for the fact that he stumbled.

This is an important perspective on sinful behavior. There is no need to get caught up in too much self recrimination or despair if one stumbles and sins, so long as they get back up and correct themselves. Notably, Ezer Mikodesh (EH 23:3) rules that one is not liable for a transient forbidden lustful thought. It is only forbidden to dwell on the fantasy. In studying the patterns of addiction and recovery it is found that the problem is not the breaking of sobriety. The problem is that once sobriety is broken, there is difficulty in returning back to the earlier state. The key is to immediately get right back on the wagon. Think of being on a diet. Having a slice of cake is not great for your diet but the fact of the matter is the body’s metabolism can easily adjust to an extra few hundred calories; this will not make or break anything. The problem is once you have that piece of cake and you break your momentum, you might binge for hours or days. The decisive factor is not to avoid stumbling, but rather how to learn to get right back up again.