Wimpfheimer_ Is it not so.pdf

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Table 2. Rava Decisive Factor 1 Owner Presence Mishnah Force majeure Toward a Poetics of Legal Narrative in the Talmud ❙ 65 Rava’s Innovation 1 Force majeure because of work Mishnah Ordinary loss/theft Rava’s Innovation 2 Ordinary loss/theft with no unwarranted activity Decisive Factor 2 Negligence Rava’s Innovation 3 Negligence unrelated to loss Borrower Not liable Liable Not liable Liable Ð Liable Ð Renter Not liable Not liable Ð Liable Not liable Liable Ð Free Watchman Not liable Not liable Ð Not liable Ð Liable Not liable recording of an actual plea, and other times, more signi®cantly, in Rava's articulation of such a plea on behalf of the theoretical weaker party.⁶⁴ Held up to this light, our narrative comes into stronger focus. This case represents not only a clash of formal principlesÐowner presence and negligenceÐbut a clash of ideals of adjudicationÐempathic lenience and immediate causality. In this case of fundamental clashes, Rava deviates from his pattern of leniency to rule stringently against Bei ¼ozai. Upon questioning, Rava is ashamed. Deconstructive readings are perhaps most compelling when they revivify texts by resuscitating silenced portions of context. The act of reading against the grainÐ against the force of narrationÐis compulsory when the context suggests that the narrator, in forming the text, doth protest too much. Within our passage, Rava's shame stands at the heart of this narration. Shame is a human and emotional response. It has resonance beyond that of the cold statute or dry legal history. It transforms judgment, ordinarily seen as calculating and impersonal, into an instance of poignant human relationship and response. A judge can be an errant teacher. Shame embraces the reader, encouraging an empathy that transports the reader into the story. We are drawn into Rava's courtroom because his shame is humanly familiar. The rarity of a shame narrative in the Talmud piques our curiosity, drawing us closer.⁶⁵ Traditional scholars since the stam have understood Rava's shame as proof of his students' legal vindication. In so doing, they pretend that Rava had never
66 ❙ Barry Wimpfheimer erredÐthat no correction had taken placeÐand that no one was ashamed. They ignore the text's decision to tell us a story about the law. They ignore the insight into the complexity of the case, the complexity of judgment, the complexity of error, and the complexity of shame. Rava's shame, like his anger in the ®rst story, is a gratuitous inclusion if the purpose of this statement is merely to indicate that he erred in law. His shame, like his anger, presents a window into his psyche and into the various power dynamics within which the situation is inscribed. The telling of Rava's shame provides us with a rare and unique insight into the trials and tribulations of rabbinic adjudication, describing in raw form the challenge of molding a theoretical construct onto life itself. Mar v. Bei ¼ozai is an instance of amoraic case law among many such cases recorded by the Talmud. In most of these instances, a hitherto established law is applied to an actual case. Not infrequently, life's realities and their literary representations combine to narrate cases that vary from their statutory antecedents, blurring issues governed by multiple statutes or by none at all and complicating the cases at hand. Since most of the decisions recorded in such cases state the legal verdicts absent any argumentation, it is di³cult to gain insight into the strugglesÐinternal and politicalÐinherent in the process of legislation and adjudication.⁶⁶ In fact, the absence of argumentation and the simple dogmatic narration of the judge's decision propagate a myth of judicial certainty by fostering the impression of uncomplicated statutory application. Imagine, for a moment, that Rava's decision were not responded to by his students, or that he had gotten it right on his own, without intervention. By asserting the ruling absent any disagreement, his decision would leave the reader with no awareness of the elemental clash of owner presence and negligence. But Rava's decision is not unproblematically rendered. His correction points the reader to the complexity of rendering a decision when one must weigh the formal categories of law against one's own vision of justice, and when that vision begins to overwhelm justice itself. The narrative does not provide insight merely into the psychological dynamics of law; it directs us to the core tensions inherent in adjudication.⁶⁷ Hearing that Bei ¼ozai were negligent, Rava is convinced of their liability. He has heard all he needs to hear. The students, aware of Rava's proclivities, step in and remind him of owner presenceÐperhaps of its existence in the scenario, perhaps of the rami®cations of
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