Ketuvot 105 ~ Bribery

כתובות קה ב

ת"ר "ושוחד לא תקח" אינו צריך לומר שוחד ממון אלא אפילו שוחד דברים נמי אסור מדלא כתיב "בצע לא תקח". היכי דמי שוחד דברים? כי הא דשמואל הוה עבר במברא אתא ההוא    גברא יהיב ליה ידיה אמר ליה "מאי עבידתיך?" אמר ליה "דינא אית לי" א"ל פסילנא לך לדינא

The rabbis taught in a Baraisa: "You shall not take a bribe" (Exodus 23:8) It is obvious that this forbids not only a monetary bribe, but even bribery through words, since it did not write "You shall not take money." What is to be understood by ‘a bribe of words’?  Like that given to Shmuel when he was crossing a bridge. A man came up and offered Shmuel his hand. "What"  [Shmuel] asked him, ‘are you doing here?" He replied "I have a lawsuit [to be tried in your court]."  Shmuel said to him ["now that you offered me help over the bridge] I am disqualified from judging your case."  (Ketuvot 105b.)

Judicial Corruption Around the World

A 2013 report on global corruption  in 107 countries reported that more than one in four people had paid a bribe in the last twelve months "when interacting with key public institutions and services." And among the eight services that they evaluated, "the police and the judiciary are seen as the two most bribery- prone. An estimated 31 per cent of people who came into contact with the police report having paid a bribe. For those interacting with the judiciary, the share is 24 per cent." Sadly, Israel as a whole was among the most corrupt of the OECD nations, but, on a brighter side, its judiciary received one of the highest rankings.  

From The Global Corruption Barometer 2013. Transparency International.

In his 1985 paper on the moral and legal history of bribery, John Noonan suggested that in the ancient Near East, the concept of a bribe "did not exist". However, "if one wanted to meet a powerful stranger without a hostile reaction, one was required to bring an offering...One came with something to give. One expected something in return.." This pattern was only broken with the Hebrew Bible. " A very powerful force  was necessary to  break the ordinary relationship of reciprocity. That powerful force is the example of God."  

“Nowhere in the Hebrew Bible is there an example of anyone being caught, tried and punished for taking bribes. Moreover, no one’s material interests are enlisted in the effort to prevent bribery. No class of persons has an interest in preventing bribery, detecting it, or even avoiding it. The idea of the bribe is presented as bad, God is given as an example, there is divine example and instruction, but the idea is at such a level of abstraction that one suspects that the anti- bribery rule could not have often been observed.”

— John T. Noonan. Bribery. Notre Dame Journal of Law, Ethics, and Public Policy Vol 2, 1985-1987: 743.

Judicial Corruption in the US 

While the notion that bribery of the judiciary is wrong is as old as the Bible, the earliest known example in the English literature of a judge being tried and convicted of bribery did not occur until the trial of Francis Bacon in 1621.  Bacon, who served as the Lord High Chancellor, was convicted of making  between 12,000 and 15,000 pounds a year in bribes - in an age when the average income was 30 pounds a year).  Here in the US, Section 201 of Title 18 prohibits a direct or indirect action to offer, promise, or give anything of value to any public official or witness. Likewise, the  solicitation of anything of value by a public official or witness is prohibited. Although is it less common than in, say Liberia, judges in the US have been known to take bribes.  For example, in the 1980s the FBI launched Operation Greylord to investigate corruption of the judiciary in Cook County Illinois. The operation, which ran for over three years, resulted in the conviction of 15 out of the 17 judges who were tried on a series of bribery charges. More recently, State District Judge Abel Limas of Texas was sentenced to 6 years in federal prison for offenses that included accepting  "money and other consideration from attorneys in civil cases pending in his court in return for favorable pre-trial rulings in certain cases." (Limas awarded $14 million in a compensation case...and later received a check for $85,000 from a law firm that represented a litigant. Bacon would have been proud.)

From The Global Corruption Barometer 2013. Transparency International.

The $3 Million Gift and the Fourteenth Amendment 

A recent case about the limits of judges accepting money from litigants reached the US Supreme Court, and stands in sharp contrast to the rules we learn about in todays daf in Ketuvot. (Fun fact about this: it was used as the plot for John Grisham's best-selling legal thriller, The Appeal.) In West Virginia, Hugh Caperton sued the Massey Coal Company for fraud over a business deal, and was awarded $50 million in damages.  The Coal Company appealed the verdict to the West Virginia Supreme Court. Sitting on that court was Justice Brent Benjamin, to whom the CEO of Massey Coal Company had donated $3 million for his election campaign.  (For those of you who live outside of the US, here's an explanation of this extraordinary phenomenon. In almost forty states, judges - including Supreme Court judges - are not appointed. Instead, they are elected, just like politicians. And like politicians, they have election campaigns to which contributions are needed. Now back to our story.)

Now you and I would think that having donated $3 million to a judge's election campaign would would be a pretty powerful conflict of interest, but the Justice did not share our belief. Justice Benjamin denied a request that he recuse himself, and in 2007 he was part of a 3-2 decision which - shocker - found for Massey and ordered the case dismissed. 

The case was then appealed to the US Supreme Court, which ruled in June 2009.  In a 5-4 decision, the court found that Justice Benjamin should have indeed reduced himself from hearing the case, and that his not doing so violated the constitutional right to due process under the Fourteenth Amendment ("...nor shall any State deprive any person of life, liberty, or property, without due process of law").  In his short dissenting opinion, Justice Scalia cited the Mishnah in Avot, and opined that the Court's decision would "create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges."  

“A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22. Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed...”

— Justice Scalia, (dissenting). Caperton v. A. T. Massey Coal Co., 556 U. S. 868 (2009).

In response to Scalia's citing of Avot, an alert blogger thought a better citation would have been  today's daf  in Ketuvot:

Given the context of the case, I recommend to Justice Scalia the following Talmudic passage ... from the Ketubot 105 (which records many such stories), where the Talmud relates that bribes can come in the form of cash as well “in words.” In inquiring what constitutes a “bribe in words”, the Talmud reports: Like the case of when [the Talmudic sage] Samuel was crossing a bridge. A certain man approached him and gave Samuel his hand for support while crossing Samuel asked him: “What is your business?” He replied: “I have a suit in your court.” Samuel said: “I am disqualified from serving as the judge in your case”... In any event, if Scalia is going to cite Talmudic law in a case concerning judicial impartiality, he should at the very least inform us that the result he favors lies in sharp contrast to Talmudic conceptions of judicial ethics...

The Massey Case in Light of the Talmud

Writing in the Touro Law Review, Jacob Weinstein analyzed the Massey case in light of today's page of Talmud. He observed that in the Talmud, when there is a prior relationship of gift giving or favors between a litigant and the judge, the latter is automatically invalid to judge the case; no motion for recusal is necessary.  

“[In American law,] a judge has broad discretion to recuse himself, as the guidelines are vague at...Jewish law, however, requires the recusal by the judge even under circumstances that appear inconsequential. Furthermore, Jewish law takes the next logical step from American jurisprudence, decreeing that such conduct is outright bribery and not just “bias” or “unfairness.””

— Jacob Weinstein. Bribery in the Judiciary: Rethinking recusal and judicial elections in the wake of Caperton v. A.T. Massey Coal Co.: A Jewish Law perspective. Touro Law Review 2012:28; 536.

The Talmud set a very high standard regarding judicial impartiality. How high? Well try this. We read today that Mar Ukva refused to hear a case because one of the litigants had covered some spittle that was on the ground in front of Mar Ukva.  That was enough to threaten his impartiality.  But here in the US, four out of nine Supreme Court Justices did not think that a $3 million contribution to a judge's election fund threatened his impartiality.  Sometimes the truth is stranger than fiction. And sometimes truth becomes the plot for best-selling legal fiction.  Either way, there's a lot of cleaning up to do.

Ketuvot 103 ~ The Death of the Editor

כתובות קג, א

ת"ר בשעת פטירתו של רבי אמר לבני אני צריך נכנסו בניו אצלו אמר להם הזהרו בכבוד אמכם נר יהא דלוק במקומו שולחן יהא ערוך במקומו מטה תהא מוצעת במקומה

The rabbis taught in a Baraisa: At the time of Rebbi's death he said "I need my sons." They came to him and he said to them: "[After I die] be careful of you mother's honor. Leave a lamp to burn [for me] in its usual place. Let [my usual place at] the table be set, let [my] bed be ready in its usual place...

The Talmud has been discussing the obligations of a man’s heir’s to their father’s widow. As an example, it records the instructions that Rabbi Yehudah HaNassi – known to all simply as Rebbi – gave to his sons to honor his widow. This is how he began:"הזהרו בכבוד אמכם -be careful of your mother's honor." 

As the story spills onto daf 104, the Talmud hints at the cause of Rebbi’s demise. He seems to have been suffering from an intestinal disorder, since Rebbi’s maid noted that he needed to use the latrine very often. This was causing him great distress –although apparently the distress was not because he needed to move his bowels so often, but rather that as a result of his condition, he could not wear tefillin. 

Rabbi Yehudah HaNassi, Editor Extraordinaire

According to the great scholar of the Talmud David Halivni, the Mishnah came into being 

...as a result of the exigencies of the post-Temple era...towards the second half the of century with the termination of the oppressive Roman regimens, the Mishnah continued to flourish through the activities of the enormously prestigious R. Judah Hanassi...only to collapse of its own weight soon after R. Judah Hanassi's death.  

As a result, relatively few additions entered the Mishnah; it basically remained much the same as it was when compiled by the editor-anthologist.  This is why the Mishnah is the only classical rabbinic book about whose editor we are relatively certain.  We have no idea who the editors were of any of the other classic rabbinic texts (including the Talmud) but the evidence clearly indicates that R. Judah Hanassi was the editor-anthologist of the Mishnah.  This evidence is based on two sources: the occasional cross reference by R. Yochanan to R. Judah as editor-anthologizer and, above all, the fact that no one who lived after R. Judah Hanassi is mentioned in the Mishnah. 

The Medical History of Rabbi Yehudah HaNassi

Recent scholars have been tempted to diagnose the many illnesses from which Rebbi suffered. In her Hebrew paper The Illnesses of Rabbi Yehudah HaNassi in Light of Modern Medicine, the historian Esther Divorshki  from the University of Haifa noted that more is known about the ailments of Rebbi than about any other talmudic sage. Some think that Rebbi suffered from painful hemorrhoids, to such a degree that his cries could be heard when he used the latrine ( and as described in Bava Metziah 85a). Rebbi was so distressed by this illness that he ascribed to it a religious meaning, and proclaimed: “The righteous die though intestinal diseases.” But as Divorshki correctly notes, hemorrhoids are not painful to the degree described in the Talmud (– unless complicated by anal fissures). She therefore suggests that Rebbi’s illness - the one from which he died - was an inflammatory bowel disease.

Rebbi suffered from a number of other diseases throughout his life. In Nedarim  we learn that he had episodes of temporary memory loss. He was also afflicted with צמירתא and צפרנא (Bava Metziah 85a). Divorshki the historian notes that some have suggested that צמירתא is kidney stones, perhaps complicated with urinary tract infections. As for צפרנא, (or, in variant forms, צפדנא) Avraham Steinberg from Sha'arei Tzedek Hospital suggests that since this disease was characterized by bleeding from the gums, “it seems reasonable to identify this illness with scurvy.” Julius Preuss had a similar suggestion, one he offered with great certainty: “There can be no doubt that tzafdina refers to stomatitis, perhaps scorbutic stomatitis which also occurs sporadically.” And if these were not enough, Rebbi also had an eye ailment, which his personal physician Shmuel was able to cure, as well as inflammation of his joints, (Yerushalmi Shabbat 16:1) that suggests the illness we call gout. 

A Unifying Diagnosis?

Can a wise clinician put all this together and come up with a single unifying diagnosis that can explain all of Rebbi’s terrible symptoms? In 1978, Ari Shoshan suggested in Korot, The Israel Journal of the History of Medicine and Science, that Rebbi suffered from a psychosomatic disease.  However, Divorshki suggests that the rapidly advancing field of genetics can provide a more satisfying solution. She posits that Rebbi had a seronegative spondyloarthritis associated with a specific tissue type called HLA (Human Leukocyte Antigen) B-27. (Don't be afraid. Seronegative means that the condition is not associated with rheumatoid factor, and spondyloarthritis is a group of conditions that causes inflammation of the joints - and other tissues.)  This tissue disorder –a kind of autoimmune disease - is associated with gout (Rebbi had that) and inflammation of the mouth (check) and uveitis – a painful inflammatory eye condition (also that). Perhaps, Divorshki notes, צמירתא was not in fact kidney stones or a urinary infection, but an inflammation of the bladder wall or referred pain from an inflammation of the intestines, caused by the same nasty tissue disorder. For reasons that are still not known, this autoimmune disease can flare up and then, just as mysteriously, become dormant for months or years, which could explain how Rebbi appeared to have been cured.

Schematic ribbon diagram of the HLA-B27 molecule’s peptide-binding cleft with a bound peptide (light blue); the letters N and C indicate, respectively, the amino and carboxy termini of the bound peptide. HLA-B*27:06, one of the two subtypes that seem to have no association with ankylosing spondylitis, and the disease-associated subtype HLA-B*27:04 (from which Rebbi may have been suffering) differ from each other by two residues at positions 114 and 116. From Khan, MA.  Polymorphism of HLA-B27: 105 Subtypes Currently Known.  Current Rheumatology Reports. (2013) 15:362 

We now have identified at least 105 subtypes of HLA-B27, and the list continues to grow.  Today, seronegative spondyloarthitis, of the sort that may have afflicted Rebbi, can often be managed with medications that suppress the immune response. But without these, damage to the host tissues slowly builds until the organ systems start to fail, offering no respite from the painful symptoms of this disease. Perhaps now we are in a position to better understand Rebbi’s dying words, which appear on daf  104a.

“May it be Your will that there will be peace when I rest in eternity.”

Rebbi wanted nothing more than respite from his pain, and his wish was granted: ‘A voice from heaven emerged and said: “He will come with peace, they will rest on their resting places.”

Ketuvot 86b ~ Who Wants to Marry More?

 תלמוד בבלי כתובות פו ב

יותר ממה שהאיש רוצה לישא אשה רוצה להנשא

More than a man desires to wed, a woman desires to be wed.

What happens if a man owes money to both a debtor and to his ex-wife to pay for her כתובה?

In today's daf, the Talmud teaches that if this unlucky person can only repay one of the debts, he should repay the creditor and not his ex-wife. Although this ruling might discourage women from getting married in the first place, we should not be concerned, because "more than a man desires to wed, a woman desires to be wed."  

We've had other occasions to look at sweeping statements made by the rabbis of the Talmud about ways women view marriage. Resh Lakish famously stated (יבמות 118) that "it was better for a women to live with a husband than to live alone" (though you may recall that there were at least four ways to understand this statement of Resh Lakish). We also noted that the late Rabbi J.B. ("the Rav") Soloveitchik believed that this statement reflected "an existential fact." (It also turned out that he was wrong.) While the Rav didn't declare our new psychological insight to be an "existential fact," does it have any validity to it in today's society? Do women really want to be married more than men?

Societal norms change very fast

Yesterday the US Supreme Court heard oral arguments about whether the Constitution guarantees same-sex couples the right to marry. On the one hand, Justice Kennedy pointed out that the traditional  definition of marriage "has been with us for millennia.  And it ­­— it’s very difficult for the Court to say, oh, well, we ­­— we know better."  On the other hand, gay marriage is now legal in 36 states in the US. The lesson here is that societal norms of about all aspects of marriage are changing very quickly. It may indeed have been true in talmudic times that women wanted to marry more than did men, but our society is vastly different. And with that note of caution, we may proceed.

Who Wants to be Married?

In 2011 the anthropologist Helen Fisher and two colleagues released the "largest and most comprehensive nationally-representative study of single men and women ever done." They surveyed 5,200 single people in the US aged 21 to over 65, and found "a new picture of single Americans emerges that is radically different than it was 50 years ago..." And what of the talmudic claim that women are more eager to marry?

“This national survey clearly shows that men are just as eager to marry as women are; 33% of both sexes want to say “I do.”

— Helen Fisher 2011. The Forgotten Sex: Men.

So today, in the US it is not correct to say that women want to be married more than men.  Some of Fisher's other findings about the attitudes of single men might surprise you too:

Men in every age group are more eager than women to have children.  Even young men. Among those between ages 21 and 34, 51% of men want kids, while 46% of women yearn for young.  Men are less picky too.  Fewer men say it is important to find a partner of their own ethnic background (20% of men vs 29%  of women said this is a “must have” or “very important”); and fewer say they want someone of their own religion (17% of men vs 28% of women said this is a “must have” or “very important”).   Men are also more likely to have experienced love at first sight...

Let's give the last word to Dr Fisher, (who serves as an advisor to Match.com), and remember the danger of assuming that human nature does not change.  

My colleagues and I have put over 60 men and women ages 18-57 into a brain scanner to study the brain circuitry of romantic passion.  We found no gender differences.  This..study supports what I have long suspected: that men are just as eager to find a partner, fall in love, commit long term and raise a family.   It’s an illuminating, indeed myth-shattering, new set of scientific data.  And the sooner we embrace these findings, and fling off our outmoded and unproductive beliefs about both sexes, the faster we will find—and keep–the love we want.

Ketuvot 86 ~ 1,000 pages, and Counting

Tomorrow we will study the 1,000th page of Talmud in the current Daf Yomi cycle.  That's right, Ketuvot 86 is the 1,000th page. Here's how:

 64=ברכות 

 157=שבת

105=עירובין

121=פסחים

22=שקלים

88=יומא

56=סוכה

40=ביצה

35=ראש השנה

31=תענית

32=מגילה

29=מועד קטן

27=חגיגה

122=יבמות

86=כתובות

Add that all up and you get...1,015. Whoops? Not really. As you may recall, each new מסכת (tractate) of the Talmud has a title page, but the text always starts on page 2 (ב). So we need to subtract one page for each of the 15 tractates we've covered so far. And 1,015-15=1,000.

Pagination in the Talmud

It wasn't always the case that Ketuvot 86 meant the same thing to all readers. Before the printed Talmud, everything was written by hand, and your particular manuscript (if you were lucky enough to have one) might well differ from that in another town.  Here, for example, is the opening of the ninth chapter of Ketuvot, (the one we are currently studying in this Daf Yomi cycle,) in the 1342 manuscript held in the Munich State Library (Babylonischer Talmud – BSB Cod. heb. 95. 1342.) You'll notice how completely different it looks from anything we have today:

Opening of Ketuvot Chapter 9 (=83a), Babylonischer Talmud – BSB Cod. heb. 95. 1342

According to Marvin Heller (who knows everything about early Hebrew printing and the printing of the Talmud) it was Daniel Bomberg, a Christian printer who lived in Venice, who established the form of the Talmud that we have today.

“The first complete edition of the Babylonian Talmud, the edito princeps, was printed from 1519/20-23. The Bomberg Talmud became a standard for the editions that followed, almost all subsequent editions adhered to his layout and foliation.”

— Marvin Heller. Earliest Printings of the Talmud. In Mintz and Goldstein. Printing the Talmud 2002. p 73.

Bomberg printed the tractate Ketuvot in 1521, and so that is the earliest date we would recognize where we are now- Ketuvot 86, the 1,000th page of the Talmud. 

Some Light Summer Reading Suggestions

There are many novels with 1,000 pages of more. Perhaps you've read JRR Tolkien's Lord of the Rings Trilogy,  or Tolstoy's War and Peace?  What about Ayn Rand's Atlas Shrugged, or Victor Hugo's Les Miserables, (only 1,504 pages, in paperback!) None of them appeal to you? Want something a bit more biblical? Then try Thomas Mann's Joseph and His Brothers, a retelling of a few chapters of Genesis...in 1,400 plus pages. (It must be good - he won a Nobel Prize.) Too high-brow? Then consider Stephen Kings's It (only 1,104 pages) Too scary? Then go for Charles Dicken's classic Bleak House; it's a story about the injustices of the British legal system, and the Penguin Classic edition is 1,096 pages long. Perfect beach reading.  

“I looked up War and Peace and it’s about this guy Pierre who fights in France, and all this terrible stuff happens to him, but in the end because of his charm he gets to be with this girl he really loves, and who really loves him even though she cheated on him.”

— Gary Shtenygart, Super Sad True Love Story

Visualizing Numbers

1

​Back on August 3, 2012 we opened the new cycle of Daf Yomi with Berachot 2. That day just happened to be ט׳ו באב.

10

Ten. It's no big deal really, other than we count using base 10 because that's how many fingers we have. We learned the tenth page of  the Talmud (Berachot 11) on August 12, 2012.

Ten is actually of great importance in Judiasm. Here are some of the significant ones:

• There were Ten Plagues in Egypt

• There were Ten Commandments. 

• The Torah (Deut. 26:12) commands that the poor be given one-tenth of our produce: כי תכלה לעשר את כל מעשר תבואתך בשנה השלישת שנת המעשר 

• We observe the annual Ten Days of Repentance from ראש השנה to יום כפור.

• There were Ten Martyrs that are rememberer in Jewish prayers on יום כפור.

• There are said to be Ten Lost Tribes of Israel.

• There are Ten Sephirot in the Kabbalah.

• Ten men are needed to make a minyan.

100

We studied the 100th page on Nov 10, 2012. That was Shabbat 38.  100 is of a special number, it being the square of 10. 

We make a big deal out of 100. It's the basis of our percentage calculations, and we count centuries based on their 100 year cycles. 100 is also the sum of the cubes of the first four integers: 100=[1x1x1]+[2x2x2]+[3x3x3]+[4x4x4].

Rabbi Meir taught that  a person should make 100 ברכות every day ( מנחות דף מג, ב). A person should hear 100 notes blown on the שופר on ראש השנה.

1,000

“1,000 is also a huge deal in our world and has a bunch of nicknames, like a grand, a G, a kilo, and k. It’s also part of the elite chain of numbers in the “order-of-magnitude” chain, which we know as million, billion, trillion, etc. Million is actually the third number in that chain, with the dud 1 as the first number and 1,000 as the second number. And 1,000 is the key multiplier that defines the whole chain.
That said, 1,000’s dirty secret is that it’s a fraud like 10 and can’t be made into a square. The square root of 1,000 is an embarrassing 31.62277660168 etcetera without even a vinculum”

— Tim Urban. From 1 to 1,000. Waitbutwhy.com

So we’ve covered 1,000 pages of the Babylonian Talmud. There are 2,711 pages in all, so we’re not even half-way done. But we’re closer than we were yesterday, and we will be even closer tomorrow. Congratulations to all who've reached this milestone.

Bomberg Talmud Ketuvot, title page 1521. From Marvin Heller, Printing the Talmud; A History of the Earliest Printed Editions of the Talmud 1992, p.147.