Q&A: Real Generalizations?
Real Generalizations?
Question
In the Talmud in Bava Kamma (54a) it is explained that one might have thought that an ox is included in liability for a pit but not a donkey, because an ox is fit to be brought on the altar and a donkey is not. The same kind of challenge appears regarding ox and donkey in various places and in different contexts. What kind of nonsense is going on here? Holiness in the firstborn, or suitability for the altar, creates liability or exemption???
In Eruvin 28 they derive from a general-and-specific formulation that for second tithe money one may include something that comes from fruit and is produce of the ground—excluding fish—and the Meiri there explains that fish do not get their sustenance from the ground???????? And again—how are fish worse off than animals?
In Tosafot on Sabbath 73b they explain the distinction between wounding an animal for its blood and wounding a fish (= the hillazon) for its blood, since it is not produce of the ground.
In short, I don’t understand the generalizations found in the Sages in all kinds of places like these. Maybe in some cases one can answer locally, but isn’t there some overall logic here?
Answer
There are places where it is hard to understand, but I assume there is always some sort of answer. Each case has to be judged on its own. For example, with the ox and the donkey, it could be that the fact that a donkey is not fit for the altar is an indication that my ownership of it is not complete (I can’t do with it whatever I want), and therefore perhaps I also would not be liable for its damages. Alternatively, perhaps the donkey is considered an inferior animal and therefore is not fit for the altar, and maybe that is a reason to exempt liability for it in the case of a pit (if you have a dumb animal, don’t send it into the public domain unsupervised). But these are of course only guesses, and in truth the Sages’ line of thinking is not always clear.
As for second tithe, that is less difficult, because there we are dealing with Torah laws and not with a halakhic legal framework that is close to common sense. I don’t know what may be redeemed with second tithe money or what the criterion is. It may be that the tithe is connected to the land, and therefore one does not eat with its money something that is not produce of the ground (and something that comes from fruit).
As for threshing, something that is not produce of the ground is excluded because of the formal definition of the labor of threshing.
Each such case has to be discussed on its own, but I don’t think it is all that far-fetched.
Discussion on Answer
That’s an interesting challenge, and focused enough. I’ll try to think of some explanation for this question.
Just as background, let me mention that all the Torah’s tort laws are based on similar notions: why does it matter whether the ox intended to cause damage? Why is the exemption for concealed items only in damage by fire? Why for damage caused by pebbles does one pay only half damages (and why is that monetary liability and not a fine)? Why are the four primary categories defined דווקא in the following way: horn, tooth, foot, pit, and fire? Why this division specifically? Some of these things have plausible explanations, but one should remember that the whole framework is built on assumptions that need clarification. Maybe clarifying that can also shed light on the point you asked about.
But as I said, I’ll try to think about it. If I come to any insight, I’ll update.
Initial thoughts:
A.
I looked again at the Talmud in Bava Kamma, and there is an important point there that should not be ignored. This is not an initial assumption to obligate only an ox and not a donkey. The context is a general-and-specific exegetical derivation in which, according to the rules of interpretation, the specific term comes to exclude something from the general category. The Torah is instructing us to exclude something. Now the question is: what is it coming to exclude? Even if you have no logical candidate to exclude, you still have to exclude something, because the Torah wrote the passage in a general-and-specific form that requires it. So here there is more room to say that if you already need to exclude something and can’t find what, there is an initial assumption to exclude the donkey, which is not fit for the altar. Otherwise, what would you exclude? Notice that this is not an independent line of reasoning by which we on our own would say to exempt a donkey. The question is what the Torah intended to exclude.
I once explained this regarding Shimon HaAmsuni’s derivation in Pesachim 22b, where he wanted to give up on interpreting the word “et” because he could not find what to include from “You shall fear the Lord your God.” “To whom can you liken Me, that I should be equal?” Meaning, he has a line of reasoning that forbids including fear of Torah scholars, and he is not willing to do so even when he gets stuck with the word “et” and has nothing to include from it. But then Rabbi Akiva came and said to him: you are right, but we have the word “et,” and the rule is that we must include something from it. There is no choice but to include Torah scholars. My assumption is that Rabbi Akiva too is aware of the logical and substantive problem, and includes it only because of the constraint. That is the plain sense of the Talmud. So you see that even though the reasoning says not to include fear of Torah scholars, because the Torah requires us to include something, we choose what is least implausible. By the same token, I argue that a general-and-specific formulation requires us to exclude something. Even though there is not much logic in excluding a donkey, I look for some criterion, however weak, and exclude it because I have to.
B.
Beyond all that, and following my remark in the first answer above, we should remember that we are dealing with the tort laws of Jewish law. There the matter works in halakhic categories, and the distinctions are not always logical. But alongside that there is rational and moral law (“the king’s law”), the laws of the Noahides, and perhaps there there would never have been any initial assumption to exempt a donkey. That casts the entire story in a completely different light… Of course, this follows my view that morality and Jewish law are two independent planes that operate in parallel.
According to this suggestion, even if we were to choose to exclude a donkey, we would still obligate payment for damage caused by a donkey—but under the law of the king and morality, not under the Torah’s tort law. A possible practical implication: even as a matter of strict law, one would not need judges with semikhah for this.
Moving the question from the Sages to the Torah—is that just in order to make it easier to assign this reasoning to the halakhic, non-moral plane?
Indeed, but not only. I argue that the moral plane also remains in force and fills a place in our lives as well (on the extra-halakhic, legal-moral plane).
Many thanks for the generous attention.
(Although the supervisor taught me that Rabbi Akiva’s “et” including Torah scholars really changed the whole picture 🙂 )
The question is whether you have to fear that supervisor 🙂
Honestly, the whole business with the ox and the donkey is what bothers me most.
And what the Rabbi wrote isn’t enough for me.
I’m just going crazy over this. Lots of animals are not fit for the altar because they are impure, and for all sorts of other reasons. From here to making that detail into an indication about a donkey’s intelligence…? Even if it is a donkey..?
It’s just infuriating.