Q&A: Meta Talmudic Analysis
Meta Talmudic Analysis
Question
This is not such a classic question in Talmudic analysis. In the Talmud in Bava Kamma and Bava Metzia and other tractates, it says that Sumchus holds that with money in doubt, if there is an inherent monetary basis for the doubt, then they divide it. I understand, insofar as this is the law, the logic behind the idea—that if there is a real reason in reality to say that it belongs to one of the two, then each of them already has some connection to the money (in Rashbam’s wording), and that is what an inherent monetary basis for the doubt means. But I am trying to understand the logic behind it—meaning, what is the reason to enact such a rule? After all, whether there is an inherent monetary basis for the doubt or not, each of them has a fifty-percent chance, and in reality the statistics will be that fifty percent of the time it will turn out that the money belongs to the first, and fifty percent the opposite. So what makes Sumchus state his rule only where there is an inherent monetary basis for the doubt? The purpose of a religious court is to decide in a way that gets as close as possible to the truth, or is as beneficial as possible to the litigants, and what Sumchus says does not help with either of those goals.
Answer
You are assuming that statistics determine the result, and they do not. Statistically, the defendant has no advantage over the claimant, and yet his position is stronger. There are legal considerations beyond statistics. See my pamphlet on “legal reasoning” at the end of the pamphlet on migo. There is also a difference between a Torah-level doubt where a prohibition was already established and a Torah-level doubt where no prohibition was established, even though statistically it is the same. Also see my columns on statistical evidence in law, where I discussed these distinctions.
Discussion on Answer
I explained there that we do not always strive for truth in the sense of who the money actually belongs to. Legal truth is different from factual truth. This is sometimes true in other legal systems as well, but in Jewish law it is very much so. The Sages understood that this is the proper legal way to act even if it is not the factual truth. In other legal systems this usually happens because of considerations of efficiency and the effectiveness of the law; in Jewish law it also happens because there is a legal truth that is not necessarily the factual truth. There is a metaphysical layer at the foundation of Jewish law, including its legal component, and it operates differently from ordinary justice. I have pointed this out more than once (for example in my article on the laws of acquisition and ownership in Jewish law).
All the laws of monetary doubts, as explained in Tosafot at the beginning of Bava Metzia and in chapter 3 of Bava Batra and elsewhere, are not based on statistics but on a legal conception of how one ought to act in cases of doubt. An inherent monetary basis for the doubt is only one principle among several.
Thanks. I completely understand the distinction and the difference. Even so, I’m asking a simple question: why is the legal decision made this way? After all, statistics would bring us closer to the truth and to the utilitarian benefit of the two litigants. The question is not about what was said here, but about the logic behind the legal enactment.