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Deborah Barer, "Going Off Script: Improvisational Judgment in the Talmud" (Oxford UP, 2026)
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- [00:00]
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- [00:30]
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- [01:01]
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- [01:05]
Deborah Behr
Well, yeah, I'm hot.
- [01:08]
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- [01:31]
Deborah Behr
Welcome to the New Books Network.
- [01:36]
Podcast Host
Hi, my name is Rabbi Mark Katz. Welcome to the New Books Network podcast. I'm here with Deborah Bearer, who is senior faculty with the Shalom Hartman Institute of North America and who has recently published the book Going Off Improvisational Judgment in the Talmud. And so we want to welcome you.
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Deborah Behr
Thanks for having me.
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Podcast Host
So we always begin the same way. Rather than me, read a long bio of you, tell us a little bit about yourself, and then eventually, what led you to this project?
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Deborah Behr
Yeah, absolutely. So I. I don't know where you want to start. A long background. But this project is largely based in my dissertation research, although I would say it was about 10 years from dissertation to book. And I stumbled across. I sort of fell into a love of rabbinic literature while I was in graduate school. I thought I wanted to study modern Jewish thought, and my advisor, Peter Oakes, at the time at the University of Virginia, pushed me to take a rabbinic literature class. And I took a class on midrash with Elizabeth Jenks Alexander, who became my dissertation advisor and absolutely fell in love. And that was sort of the end of the road for me. And I became really interested in rabbinic literature in Midrash and also in Gemara or Talmud. So I went to the part IS Institute of Jewish Studies for a year to study in Jerusalem. And I actually came across one of the sudio in the book, one of the passages that uses the language of Lehim Yeshua Hadin in my Talmud class that year. And I just kind of kept chewing on it in the back of my mind. It was one of those things where there was something about it that irked me, but I wasn't quite sure what it was. And I came across this sort of 40 year conversation among modern Jewish thinkers that kept invoking leafni mishretedim to discuss the relationship between halacha or Jewish law and Jewish ethics. And again, something about that conversation kept irking me. Something about the framing didn't seem quite right. So I decided to really just try to investigate what this phrase meant in the Talmud. And it was a nice defined project which one should always choose for a dissertation. There's only seven passages in the Talmud where it appears. It also shows up in one tonitic midrash. But it's a nice sort of contained corpus to study. But I would say actually in some ways the book really came together for me. Something about it clicked during the COVID 19 pandemic when I was working on developing these ideas further. And I found myself thinking a lot about decision making in a new way and about how one makes decisions where there's really no guidelines, which sort of led to a lot of the thinking about defaults and narrative scripts that provide some of the framing that I talk about in the book about how to think about this category of what I ultimately called improvisational judgment and how it relates to the other kinds of decisions we make in our lives.
- [04:29]
Podcast Host
The majority of people who are listening probably don't know what lifni misharat hadin is. And I know that's what your book is about. So before we get into let's call it the debate about how exactly to define it, are you able to combine it in such a way that it's broad and maybe all the debates kind of fall into one easy definition before we then get into your specific lens for which you saw what it meant?
- [04:53]
Deborah Behr
Absolutely. So literally, the words lifnim misharat hadin mean within the line of zillah, or could also mean lihnim, could also mean before. And it's kind of an enigmatic phrase in and of itself. What does it mean to be within a line of the law? That when we think about like, sort of a spatial analogy within a line, is not usually the analogy we would usually use, but it's clearly somehow related to Dean law or legal judgments and somehow juxtaposed to that kind of thinking and decision making. And the real debate is exactly how it's juxtaposed. So some people think it means going beyond the line of the law. That's a common conceptual translation, even though it's not a literal translation of the Hebrew, kind of morally superseding what the law requires. Some people have an interpretation that puts it more within law, but sort of navigating law in a particular way. So that's really the question at the heart of this phrase. But that's the literal meaning within the line of the law.
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Podcast Host
Now, you start the book before you give your kind of interpretation, which you know to preview is that it's improvisational judgment. Right. That's what you're. That's what your title said. You go through kind of the way that people have traditionally seen the purpose of Lifnim Misharat ed Din. So I'm wondering if you can take our readers through the traditional arguments first before we get into what you think the point and purpose of that term means.
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Deborah Behr
Absolutely. So there's, I would say, two primary scholarly camps, though there's a third one as well that's worth mentioning. And a lot of this, I'll just know, is actually based on the ways the phrase develops after the redaction of the Talmud in the medieval period, which my book doesn't treat. But it does come to be cited sometimes by legal courts as a principle. So it gets used and developed in different ways after the close of the Talmud, but there's two primary schools of that. One is that it is super irrigation. It is morally going beyond what the law demands. And people who fall in this camp tend to say we have halacha, we have Jewish law in sort of one domain, and there's a separate domain of Jewish ethics. Not that there's. You might think about it as a Venn diagram, maybe there's some overlap between those two, but that there are some actions that are prompted by moral necessity, moral principles that push us to do something the law doesn't ask of us. And actually, there is a passage that's often cited, based on a later commentary, as an example of leafni mishrahidin, even though that term doesn't appear in the Talmud where some porters are carrying these barrels and they break them and they end up in court. And the judge rule, it rules that the person can't confiscate the porter's clothing and has to pay their wages even though they ruined his property. And he cites this verse from Tanakh, you should do the right and the good. So that's an example, and it's seen as an example of leaking mishra hadin later on. But it's an example of saying, here's this moral principle, okay? The law's not gonna outline everything that's right and good, but sometimes there's things you're actually required to do by Torah that go beyond the specific rules that are outlined in the text. So that's one school of thought, and that's the super irrigation idea. The other main school of thought views as a waiver of rights, which is to say, I have certain rights under the law, but I can be morally prompted to not sort of stand on those rights, to not demand the fullness of what is due to me under the law, and to waive my rights in certain situations. And when I do that, I'm acting leichni mishrahin. And the thing I want to just highlight there, that's significant is both of those understand there to be some moral prompts behind this kind of activity. But the waiver of rights approach sees that as happening fully within the framework of Jewish law. And so the implication is there's not something called ethics that exists separately from halacha. Actually, all these moral principles like do the right and the good actually fall under that framework of halachah. Halachah should not just be reduced to a set of legal rules. So they indicate fundamentally different ways of thinking about the relationship between law and ethics. They also indicate fundamentally different ways of thinking about what law is and how broad of a category law is in and of itself. And then there's also a third school of thought that hasn't been written about so much in recent decades, but that sees this as sort of akin to a principle of equity in legal judgment, where, you know, a judge might decide, if the person who authored this rule were present here, what would he think is sort of the most equitable outcome? And you have some discretion there as a judicial assisor.
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Podcast Host
And so now let's move toward the fourth, which is your view. So let's tell our listeners kind of what's unique about your take in the book.
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Deborah Behr
Yeah, absolutely. So I think I'll just give a little background of where the take comes from, which is that I found myself, as I was reading these passages closely, hung up on the assumption that this is always a good thing to do. One of the things that I'll just know across all of these different approaches, whether you're morally superseding the law or you're morally prompted within the law to act in a certain way, there was sort of a conflation between the prompt to act morally. But I, I agree with that. It seems like people are trying to do something good when they do this and the assumption that it was therefore a good action, that it therefore led to a good outcome. And when I looked across the actual corpus, specifically the five stories that center on rabbis acting like Misha Hadin, there are two that center on God acting that way. And I think they're in a different category because God is a different kind of actor. But sometimes it seems clear that the outcome is good, but sometimes it seems clear the outcome is not so great. And there are other ones where this. It's not really clear what the moral stakes of the activity even are. And so I found myself looking for a way to understand what's happening here. And how could we understand sort of the moral prompt being good, but. But also not assume this is evaluating the action. And so that really led me to identifying that this phrase occurs in the stamatic layer of the text and the anonymous strata of the Talmud. So I started to investigate, okay, why would this is a phrase that's used to explain other people's actions. And my understanding really was that the editors, the people who redact the Talmud, who I understand to be the authors of the anonymous layer of the text. And there's lots of debate about where the anonymous layer comes from, but that's where I would position myself within that debate. They're surprised by these rabbis actions. They're confused by these rabbis actions. They're trying to make sense of them. And they're also clearly trying to contain their legal impact and whether or not they set precedent for future actions. And so the way I ultimately came to understand this is that these rabbis are improvising. There's something about sort of what I would call the narrative or normative script for behavior, which comes both from law, but also from social norms and past behavior and all other kinds of things where there's sort of an expected course of behavior in each of these scenarios. The rabbi in question thinks to himself, that's not going to lead to an ideal outcome here. There's some good. I want to Achieve that following sort of the normal practice wouldn't get me to. And he decides to improvise. He decides to deviate from that norm in a fully legal way, but based on his own judgments. And then once the interaction is over, kind of go back to the normal script and doing the normal things. And the key is that once you start relying on your own judgment and improvise in that way, that could lead, even if your prompt is a moral prompt, to try to achieve a good, that can go lots of different kinds of ways, that can cause something good to happen, that can cause something bad to happen. And so I actually really found this metaphor of improvisation helpful. I did a lot of theater when I was a kid. And that sort of idea of, you know, sometimes in life on stage, if you're doing a play, something happens and the script stops working. Someone forgets a line, you're doing an outdoor play and a dog runs across the stage. You know, you have to sort of adapt in the moment. And sometimes when people improvise, it actually makes the scene way better. And sometimes things go a little off the rails and it's not so great. So I wanted something that could capture sort of the instability that this kind of action introduces, but also the possibilities, the moral possibilities that it introduces as well.
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Podcast Host
So why don't you take us through, you know, there's seven examples. Why don't you take us through one of the ones that you find the juiciest to kind of show us how it works?
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Deborah Behr
Absolutely. My favorite of these examples, because it's the one where my thinking really concretized, I would say, is actually the last example I talk about in the book, which is Bava Mitzia 30B. And it's this encounter between Rabbi Ishmael and an unnamed man on the road. And so he is walking along the road. And a couple pieces of background information that are important to understand the interaction. Rabbi Ishmael has this special status, which is that he is Zakin v' ein elifita bodo, which is a certain kind of person. Zakin means elder. But it doesn't have to be an old person. It can be someone of especially honored status who is, as a result of that status, not obligated to help people with the loading and unloading things. In rabbinic society in general, there was an assumption or that you are required to help other people with loading and unloading. And the Talmud right before this passage has clarified that people with the status are exempt from that. That's important background. So he comes across this unnamed man Who's. Who's holding this bundle of sticks, and he asks Rabbi Ishmael to help him pick them up. And again, in normal interactions, Rabbi Ishmael will be obligated to help him carry them, but because he has a special status, he's not. Now, it's not clear that the man knows he's this special Zakane figure. But instead of telling him, I can't help you or helping him, it's not actually clear if he's allowed to or not. There's different ways of understanding that status. But instead he says, why don't I buy the sticks from him? And the man sells him the sticks. And then this is where the story really gets a little bit off track. Rabbi Ishmael declares the sticks he, which means they are ownerless and anybody can claim them. And if you see the story from Rabbi Ishmael's perspective makes sense. He actually can't carry the sticks. That's why he didn't help the man in the first place. He doesn't do this kind of physical labor. He's trying to be generous. He's trying to alleviate the man's burden, give him fair value, and then move on. But the man is completely confused by this and reclaims the sticks for himself. And then, in a sort of cheeky move, says to Rabbi Ishmael again, you know, help me pick them up. And this interaction transpires a second time. And now Rabbi Ishmael realizes that he's stuck, right? He doesn't. He has improvised, he's tried to do something good, it has not gone as planned, and he has to extricate himself from the situation. So he declares the sticks have or ownerless and available to anybody except for the man in question. Now, that's the end of the story. But this. The anonymous voice immediately pounces on this story and says, wait a second. You can't do that. You're not actually allowed to declare things ownerless for anybody except for one guy. And it goes through different traditions about, can you declare them ownerless just for poor people or things like that? But clearly you can't do this thing that Rabbi Ishmael has just done. His statement has no actual legal validity to it. And then it says it was by words alone that he stopped him. In other words, this poor everyday guy doesn't know the details of rabbinic law. He doesn't know any better. He assumes Rabbi Yashnal's statement is legally valid and he desists. And presumably both men go along their way. But then, and this is why I really like this. The sugya in particular. That story is fascinating in and of itself. I could talk about that story on its own for hours. But the suit given continues. The passage continues to both amid rash, which has the origins of the phrase leaky mishratadim, and then to cite this other teaching about why Jerusalem was destroyed by Rabbi Yochanan. And it Rabbi Yochanan says Jerusalem was destroyed because people only judged according to Dean Torah to the law of Torah, a teaching that doesn't really make any sense. Why would we not be judging according to Torah law? And the editors or the anonymous voice are very confused by this. And they say, what? Were we supposed to judge according to some different kind of law? No, what Rabbi Yochanan is saying is that Jerusalem was destroyed because people never acted leaf ni mishrahidin, they never improvised in the way that Rabbi Ishmael did. And so the Talmud, which I think is brilliant, juxtaposes the story where improvisation goes the most awry for a rabbi with this hyperbolic statement that the reason the temple was destroyed was because people didn't do this kind of thing. And I think it's actually really significant that it talks about both of those pieces together because it highlights both the moral possibilities that improvisation opens up and the necessity to sort of retain that possibility even as it acknowledges this isn't always going to go that well.
- [18:53]
Facebook Ad Narrator
This episode is brought to you by Facebook. So you were scrolling on Marketplace and there it was, the bike you'd been searching for. You sent a message and it turned out the seller was super chatty, kind of funny, and an avid cyclist. The next thing you know, you're in a cycling crew. Well, a community cycling group. The thing about Facebook, you might find more than what you're looking for from a browse to a bike ride this summer. Find more on Facebook.
- [19:23]
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- [19:54]
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- [19:58]
Deborah Behr
Well yeah, I'
- [20:01]
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- [20:24]
Podcast Host
I'm curious, and you likely know more than I do about the strata of the Talmud and what pieces of the Talmud know about other pieces of the Talmud. But whenever I've read that phrase about the temple being destroyed, I often think about, you know, the story in Tractate Gitin about, you know, about, you know, the party with, you know, the person who gets invited to the wrong party, basically. And we often talk about the temple being destroyed because of senseless hatred, right? Because, you know, the host hated this guy and wouldn't let him into a party. And that's why ultimately the temple gets destroyed. But ultimately. But the story actually continues on. And the real reason the temple's destroyed is because this guy gets really mad, right? He decides that he's going to trick the Jews and then tell the Romans that the Jews are rebelling. He then puts a moom or a. A blemish on an animal that the Romans don't consider a blemish, but the Jews consider a blemish. And then they're left with this question, right? Number one, do they sacrifice this animal with a blemish and they end up deciding not to? And then number two, if they're not going to sacrifice the animal, do they off the guy, right? Do they kill the guy before he gets to the Romans to tell them that they aren't sacrificing the animal? And ultimately, because they stick so close to law, they won't sacrifice the animal and they won't kill the guy. The temple is destroyed because of that. And I've always seen those two comments, the one you read about Lifnim misharat ha din and the story about refusing to deal with the guy in conversation with one another, because then it makes perfect sense. I'm curious, do they know of each other, these two statements? And can you put them in conversation with one another?
- [22:10]
Deborah Behr
I mean, that's fascinating. I can't analyze sort of historically, you know, who knows, what if they know of these two statements? The way that I often think about it in terms of just sort of the process through which the Talmud was created is that there's a school of editors who share similar orientations and assumptions. And as my Talmud teacher in Israel used to like to say, the Gemara assumes a comprehensive knowledge of everything the Gemara has ever said. So on some level, yes, the editors seem to know about traditions all over the place because they're constantly pulling them in from other places. And there are many, many traditions about why Jerusalem's destroyed. There's a whole list of them with different rabbis giving different cakes elsewhere. So I don't know for certain if all of these traditions are, like, directly aware of each other, but to put them into conversation a little bit, I think it's actually a great. I've never thought about the connection, so thank you. And it's a fascinating example to think about. And when I have used leaking mishrazin sort of in this framework of improvisational judgment, to think about decision making and the challenges that we face in the contemporary world in terms of making judgments and navigating different kinds of situations of uncertainty. One of the things that always strikes me about that story in Baphomet CF30D about Rabbi Ishmael is how much we assume about other people and how that creates so many misunderstandings. So you think that that story, Rabbi Ishmael. I think my best read of his behavior is that he assumes the other guy knows he's a Zakane and knows he can't pick up the sticks because he seems to think that the other guy will understand that in offering to buy them, he's being generous, as opposed to that he actually really wants a bundle of sticks, otherwise he wouldn't be confused when the guy claims them back after he declares them healthcare. Right. So there's a set of assumptions going on there. And the other guy is clearly assuming. Who knows what he's assuming? Rabbi Ishmael is just kind of a normal guy. And then he's assuming that he's weird, that he's playing some kind of trick. I mean, who knows? I don't know what he's thinking when. When he goes through this process, but they're really missing each other. And that there's a certain. There's so many places, if we imagine ourselves in this story, that either one of them could have intervened. Either one of them could have asked a question about, hey, like, why did you buy these sticks from me if you didn't want them? Or where Rabbi Ishmael could have volunteered, hey, I'd love to help you out, but I'm a Zakim and I actually don't do manual labor. Is there some other way? I Could assist you that would have avoided it kind of going awry. And that's actually what I think about the. It's commsa bar kamsa, I think, is that right, the story that you're referring to where it's not so much that maybe they should have sacrificed the blemished animal or that they should have offed the guy, as you say, but more that actually think earlier maybe there was a point where when the original misunderstanding happens and he got so offended, maybe there were ways to intervene early on if we were a little bit. Or if they were a little bit more curious and open to that possibility, oh, something's gone wrong here. Instead of just doing what we normally do, which is tell someone not to be offended, get very offended, you know, whatever. Is there some other set of ways we could try to work through this before it gets to this extreme point? And that's why I think for me, that idea of narrative scripts is so helpful. Because one thing that's important about this phrase, the Talmud never condones legal transgression. It never connects leaf mi mishrahuddin or as a form of legal transgression, it just offers it as a form of what I would call deviation, but within permitted activity. So I don't think we would describe, you know, doing something that's legally prohibited and sacrificing a blemished animal and killing someone, both potentially legally prohibited actions. But it would, it is sort of a way of saying think creatively, like think outside the box. This moment calls for something different.
- [26:33]
Podcast Host
Do you, do you see it in conversation with other, let's call it like minded, halakhic principles. I mean, you bring up this interesting question, right? There are specific Jewish legal principles for when it's okay to transgress, you know, like, you know, a famous phrase basically, like, you know, like it is like it is, it is time to. I'm trying to remember the exact. Eat lasot lashem. Yeah, time to do something bad for God. Because the good comes from it, right? Or you know, on the flip side, this legal category that you should, you should act tovi yashar, which is a quote from that, like, that oversees a lot of these like, let's call it supererogatory laws. Right? And so I'm curious, do you see lifni, misharat, hadin in combination with all of these others? Or is that like a later convention that we've done as we piece together all of these other, you know, mechanisms that allow us to play around with law?
- [27:39]
Deborah Behr
Yeah, it's a great question. And there are many scholars who have actually sort of collected these terms together. The phrases you've mentioned, phrases like the spirit of the sages is pleased or displeased with what somebody's done. All these kinds of expressing approval or disapproval of a type of action. And Leaf nimi shrot hadin is often grouped together with them, I would say, interestingly so. My colleague Alana Steinhein at Hartman has a book came out a few years ago now, I think, on loopholes in rabbinic law. And interestingly, in some ways I see Leafni Mishrat ad Din more in a category that's analogous to what she has studied than in, you know, do the right and the good, even though there's obviously overlap with both. Because I, I, I think of both of these as loopholes and, and Leaf Nimi Shahedeen as offering almost like a, a release valve within a legal system, introducing flexibility into a system that could otherwise become overly rigid and oppressive actually in some ways, or impede our ability to pursue the good. So obviously it's connected to these other kinds of overarching moral principles and statements in the Talmud in that it's about trying to do the good. But I think the way I understand it sort of functioning technically is actually to introduce flexibility when things would otherwise be too rigid. And that's where I actually understand that closing statement about Jerusalem was destroyed because people wouldn't act that when we become overly rigid in our approach to law, law can become destructive. And if we don't continue to see the humanity of other people and see the fact that these rules are applied to real human beings and they don't always perfectly map onto reality that that has a destructive capability. Whereas when we're able to be a little bit more flexible and improvise sometimes, then we can really see sort of a flourishing rabbinic society. So in some ways, and I know this is something that you have worked on and in your book, but I see this as part of sort of a pragmatic approach by the rabbis to make law livable.
- [29:54]
Podcast Host
Yeah, yeah, yeah. So I want to turn to God because you have a great chapter on Leaf ni Mishrat Adin and God. So I'm curious if you can tell us a little bit about how rabbinic literature talks about God, quote, going beyond the bounds of law, and how, how that differs from the rabbis. Right. Sometimes Judaism asks you to mimic God, right, to walk in God's ways. And sometimes we are shown what God does as like a model of what, like, we'll never achieve Right. And so I'm curious, can you. Can you expand first on the stories of God going beyond the law and then tell us what you think it means?
- [30:32]
Deborah Behr
Absolutely. So there's two passages that discuss God acting, at least in Mishrahizin. One is in Brahot, and it's this beautiful image of the Kohenka Dol going into the holy of holies, the high priest going into the holy of Holies on Yom Kippur. And God asks for a blessing from a human, which is fascinating in and of itself. And this, this rab is called a rabbi, but that's anachronistic. But whatever bestows this blessing on God, that God should basically be compassionate. There's various different ways act towards his. It's this parent child metaphor, act towards his children with compassion, and that this will ultimately culminate in entering before them. It's the only time that phrase is used. Leif ni nisharatin. So it's clearly connecting acting lifni misharahideen, when God acts that way, as a form of compassion. And it is sort of, I would say, when this category is connected to divine behavior, it is actually pretty exclusively God showing compassion to humans when we might otherwise not expect it. So because the other story, which is in Avoda Zara, actually the phrase actually shows up in a. As part of this discussion of praying and whether your prayer will be accepted or rejected, do you need to pray with a minion at certain times of day to ensure that your prayer is more likely to be accepted? And there's this fascinating discussion of the divine schedule in association with this conversation that suggests that when God is studying Torah, which is part of God's daily activity, God may be so focused on strict law that God's not able to act lehimish. And then there's sort of a reverse reading that says when God sits in judgment at a certain point, God moves from the seat of judgment to the seat of compassion, and that's when he acts lehi mishrabid. So it's all about like trying to time your prayer in exactly the right way so God's more likely to accept your prayer. But the framing of that conversation is a sort of awareness that God would be fully within God's rights to act harshly towards humanity. And this is a theme often in discussions of the divine human relationship, an awareness that human beings are flawed. God's not always thrilled with us. But this sort of idea, whether it's through this conversation and giving a text to what God prays for, God's Self, or whether it's through timing your own prayer. There's ways to sort of entice God to remember that God is the parent, we are the children, and God loves us and therefore should act compassionately. And it's a very different framework from the rabbinic stories. It plays really heavily on this parent child care metaphor. It is actually part of why I think we see the phrase leak Lehman shrouding show up in interpersonal one on one interactions when we're talking about rabbis. That there is a relational piece to this, that it's about responding to somebody else who deserves your caring concern that I think we sort of see established in those God narratives. But crucially in the God narratives, it's clear we love it when God actually needs Mishrahuddin. The more we could get God to actively Mishra adim, the better it is for us. It means our prayers are accepted, we're judged positively. This is a good thing. When it comes to the rabbis, the Talmud is a bit more circumspect, a bit more concerned about some of the possible implications of doing this kind of willy nilly. So that is a clear distinction. And the other thing I'll just say is that if we look way back to the Mechilta, there's two versions of the Mechiltah, but that's where the phrase originates. It's in a commentary on Exodus 20 where Moses's father in law, Yitro, is giving him instructions about how to set up a system of courts so he could delegate a little bit of his responsibilities to other people. And the midrash parses Yitro's instructions to mean several different types of activity, which include things like caring for the sick, burying the dead, and also acting like Mimi Shahudin. And those are all activities that we actually see grouped together as things that people learn from God in other places in rabbinic tradition, that basically things we might sort of often put under the broad framework of gimme lutchasadim, these kinds of care and concern that we show for other human beings, we see examples of God doing that. So there is an element, I think, of sort of imitating God here as well. But when God does it, no concerns. When human beings do it, we're not God, we should be a little bit
- [35:36]
Podcast Host
more careful because we could easily step outside the bounds and do the wrong thing.
- [35:39]
Deborah Behr
Exactly, exactly.
- [35:40]
Podcast Host
I want to return back to something that you had just said. I think you quote Christine Hayes, who's a scholar at Yale, when you, when you talk about the difference between truth and judgment, Right. I wonder if you can unpack that a little bit for listeners, because it's so. It's so fascinating, right, that, you know, when God is studying Torah, God's like that guy with a PhD up in the glass tower, removed from the world, and God's going to make decisions, but, like, they may or may not be right for the world around them. What a judge does is he sits there, he looks at the face of the person in front of him, sees their humanity, and ultimately couples that with the decision on what the law is to decide on what they think the answer is. And for the rabbis, judgment seems to take precedent over, let's say, truth finding in Torah. And I'm wondering if you can unpack that a little bit vis a vishni mishra tadeen, or in general, because I think it's such an important idea.
- [36:34]
Deborah Behr
Yeah. You know, there's a fabulous midrash in Brishi Rabha about the creation of humanity, where when God goes to create the first human being, God foresees both either goodness and wickedness, or good people and wicked people coming forth from this first human. And on different readings, it has to do with whether God has to hide this from certain angels or hide this from certain aspects of God's self, like separate God's self from certain Midot is how it's described. But there I think we do see, like, exactly this tension that you're pointing to. If you focus on that truth, that wickedness will emerge, bad things will emerge. If you. From creating the first human, maybe it's not just to do it at all. Right. But the midrash suggests dad loves righteous people so much that God is willing to sort of ignore that truth, like hide that truth from God's self in order to create the first person. It's a beautiful text, and I think it speaks to this dynamic. Truth is often very black and white. Right. And so especially when we look at the context of these two passages in the Talmud, they're both situated during the high holidays, One's on Rosh Hashanah, one's on Yom Kippur, in those that sort of ten days of awe that we talk about. This is the period for those who are, you know, used to the liturgy where God sits in judgment. And traditionally it's about to decide people's fate for the coming year. And there's sort of a. A sense, I think, that people are. Are flawed, people have done bad things, people have not lived up to God's expectations, and God would be justified in punishing that on some version, that is true. And when you're focused on the black and white, you can say, well, you did this thing you weren't supposed to do and the punishment should be X. And that's true. But as you said, when you're sort of in the seat of judgment and you're thinking about the person in front of you and you're thinking about the context in which they acted and what was possible and the fact that you, you know, again, that like, in this context, it's not even just a judge and a petitioner switch from judge and petitioner. It's a parent and their child. Right. My kids do things all the time they're not supposed to do, but I don't always punish them for it because sometimes I'm like, I love you and I understand that you're young and you didn't know better and you know all of that. Um, so I think there is this sort of shift in mindset to the relational, and that's what prompts the ability for God to be compassionate. Whereas when God is focused on Emmett, on truth, God is in this more black and white frame. I think that's what he's is pointing to there. And I think she's right on.
- [39:26]
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- [40:57]
Podcast Host
So I'm curious, based on the idea of the improvisational judgment and the fact that, you know, for the rabbis, they feel a little bit mixed about this, we call it ambivalent.
- [41:08]
Deborah Behr
Right.
- [41:09]
Podcast Host
About the nature of going on and off script, I'm curious what other safeguards exist within rabbinic literature to help the rabbis do this very thing.
- [41:22]
Deborah Behr
That's such a great question. You know, it's hard because I think. I think the key thing is to see this as part of a constellation because there's only seven passages in which it appears. And one of the things that I've thought about a lot as I use this sort of metaphor of improvisation, to think about this category and the Tom said, if you're an actor, if we go back to the theatrical metaphor for a minute, every actor trains in improvising, even if they don't do improv theory, right? An actor who only does Shakespeare trains in improvising because they know at some point something will go wrong and they'll have to do it. And the director of the show can't tell the actor when that's going to happen in advance, and he can't tell them what to do in advance when that happens. So the actor needs to just kind of like build that muscle and then do their best when the moment arises. And part of what I've sort of wrestled with in. In this study is to figure out, where do the rabbis build that muscle? Right? Where do they practice or figure out? And in some ways, I actually think the reason the Talmud includes these stories is for us as readers to. To mentally practice by reading them, to see what it looks like, what it can look like to do this, to see what its good and bad outcomes might be, to look at that story like the story of Rabbi Ishmael and say, oh, if only he'd done this first or if only he'd asked that question, maybe this wouldn't have gone awry in these ways. And the Talmud is sort of also careful to circumscribe and constrain, you know, what the impact of these behaviors is. It makes it clear that you can't set precedent. You can't establish a new rule based on acting like the Misharat Hadin. But I think it also goes back to that constellation of behaviors and Principles that you mentioned before of. We have all of these phrases that come up, you know, to do the right and the good. Kofi nami datsudom, you know, to like, coerce the. This is. I don't know exactly how to translate it, the character of the dome, which is. But it's like, to help with somebody who's not acting well, to think about the possibility of being a scoundrel with a Torah license, to label which kinds of activities the sages are pleased or displeased about. Like, we have lots of opportunities to kind of build an internal intuition of what good conduct looks like, if you read. And it's clear that the Talmud learns not just from the statements of rabbis, but from their actual activity, from their stories about what they did. Ma', asim, or narratives, are a real site for rabbinic education. And so I think in some ways, when we contextualize these stories within that canon, we can see different ways that the Talmud is trying to help us learn from rabbinic conduct about what might come up, what it might look like, where you kind of want your intuitions to guide you. And I think there's this really interesting thinker, Gary Klein, who's a psychologist, who talks about. I found this so, so fascinating. I did a little bit of reading in psychology and behavioral economics when I was preparing this book to understand how people think about decision making. And he had this fascinating study on firefighters and the ways that they can make very quick judgments in the context of fighting a fire that are not. They never even rise to the level of conscious. They're solely intuiting because they've been in so many burning buildings before. Oh, my gosh, this floor is about to collapse. I gotta get out of here. And you can really only build that intuition from doing it a lot and from learning from other people who are more experienced than you. But it is actually a form of judgment. It's just not a design deliberative process that you sit down, you think, I'm assessing that. This floor feels a little bit weaker here. And it's a sign, because if you did that, the floor would collapse under you. You don't have the time to do it. And so I think there's an analogy there of, like, by reading all of these stories and seeing the ways that the editors explain conduct, classify it, which principles they connect it to, which ways they want to constrain it, which things they want to validate. Is there a way of training that internal muscle?
- [45:50]
Podcast Host
Aristotle talks about that in the Nicomachean Ethics. He Talks about the idea that like, you know, you're supposed to, you're supposed to essentially make ethics into a habit by doing it enough times. And then Maimonides picks up on that and the debate between whether to give a hundred dollars to one person or a dollar to a hundred people, he picks the dollar to a hundred people because then you're going to be in the habit of giving money and you're going to give to the 101st person. So I love that.
- [46:13]
Deborah Behr
A hundred percent. Yeah. I never made that connection, but exactly. I think this is really connected to habit formation.
- [46:19]
Podcast Host
So I do want to ask, and we're getting toward the end, but you know, of all of those different phrases that you mentioned, I would put lif ni misharath ad din in terms of how famous it is probably, you know, on the top, if not like the top few. Right. In terms of kind of these big ethical overarching mandates, maybe like nadar che shalom, doing something for the sake of peace maybe edges it out just a little bit. But at the end of the day there's like, you know, there's probably a dozen to two dozen of these. And Lifnim misharat adim, even though it only appears seven times in the Talmud, is probably one of the most famous. So I'm curious why, like, why do you think it's the one that's captured people's imaginations?
- [47:00]
Deborah Behr
I would say a couple of different things. I think one is because it really does take on a significant post Talmudic life and it shows up in Maimonides, in Nachmanides, in Ashkenazi, legal jurists, decisions in courts. So there's this blossoming literature and also in the scholarly literature. This decades long debate that I referred to earlier dates back to an essay by Rav Aharon Lichtenstein I believe 1970. Does Jewish tradition recognize an ethic beyond Halakha? I think is the title and a lot of responses to that. So there's lots of reasons why it's really present in various literatures after the close of the Talmud in a way that some of these other phrases are maybe less so. But I actually think more fundamentally than that, it's an aspirational phrase in a sort of capacious way that it's not like also very, very widely cited, but seems to often sort of specifically be used in particular contexts. Right. The fact that it's about pursuing ways of peace means it shows up about specific types of interactions and something about whether you understand that, as I do, as improvising whether you understand that, as some people do, as going ethically, superseding the law, going beyond what the law asks of you. I think it's a, it's a category that catches in us, however we relate to Jewish law, the sense that we need to be aspiring towards something. We need a way of talking about what it looks like to aspire to be good, to do the good that is not solely a set of rules that help us do good actions. Not that those aren't really important, but how do we talk about who we aspire to be? How do we talk about what it looks like to try to achieve that in different moments? And I will say personally, one of the things that I love about these stories is I work in Jewish ethics and a lot of times when I used to teach in university and I would talk about ethics with my students, you know, they think about like war, heroic actions, end of life, decision making. And to me, the most interesting part of our ethical lives is our day to day interactions because that's where we spend most of our time and that's where we as individuals often are making the ethical decisions every day that shape who we ultimately are as people, the kind of people we want to be. And these are stories about that. These are stories about existing in the world as a rabbi, but also as an everyday person who does things like works the job as a money changer, sells property, hangs out with their kid, meets a guy on the road, all of these different kinds of things and how to aspire to be the best version of yourself in those kind of mundane interactions. I think that's why it's such a morally exciting category and why people keep coming back.
- [49:57]
Podcast Host
I love that. I mean, I can say, look, I'm, I'm an N of one, right? I'm one rabbi. But I can say probably the most common ethical conundrum that I help people deal with as a rabbi is the question of rebuke and whether or not they're going to rebuke their neighbor, their child, a friend of theirs who's posting stuff that's anti Semitic online. And I would like, you know, these aren't big ethical questions. These are basically like, do you tell someone that you think they're doing the wrong thing or do you hold your tongue? And I would say like, of every ethical issue out there, that's the most pervasive in my rabbit in terms of how I counsel people. And that's small, but it's not important, right?
- [50:37]
Deborah Behr
It is, yeah, yeah, great example.
- [50:40]
Podcast Host
So we always end the same way, which is what's the next project you're working on?
- [50:45]
Deborah Behr
Fantastic. Well, I will say my work has shifted a little bit in my role at Hartman to think a lot about. So right now in my professional work, I'm thinking a lot about flourishing in Jewish communities, what it looks like for a community to flourish, and working with that category, which actually comes from Aristotle, as you mentioned before, what that means for our Jewish communal life. And I'm really excited to keep developing that work. I've been long interested in virtue ethics and how it can help us think about communal life, not just the formation of the individual. So that's where my thinking is going right now, but it's still in early phases.
- [51:23]
Podcast Host
Well, when you get there, we'll have you on again for sure.
- [51:26]
Deborah Behr
I would love that.
- [51:28]
Podcast Host
So again, going off script, improvisational judgment in the Talmud, Deborah Behr. And thank you for being with us and everybody who's listening. Go out and buy the book. Learn from her. And I'm sure if you're at Hartman, there's other writings and other teachings that are probably available in public that you know in the public domain that you can learn more. So thank you very much.
- [51:52]
Deborah Behr
Thank you so much.
- [51:53]
Podcast Host
Thank you for listening to this episode of the New Books Network. We are an academic podcast network with
- [51:59]
Deborah Behr
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- [52:04]
Podcast Host
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- [52:06]
Deborah Behr
You can browse all of our episodes on our website newbooksnetwork.com Connect with us on Instagram and BlueSky with the handle
- [52:13]
Podcast Host
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- [52:34]
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