Wimpfheimer_ Is it not so.pdf

Toward a Poetics of Legal Narrative in the Talmud ❙ 67
its existence. ``Our teacher,'' they say, ``but it is negligence in the owner's presence.''
At this comment, Rava is ashamed.
Rava is not ashamed simply because he is wrong. His shame is the shame of
one whose soul is nakedly revealed. His students contextualize their teacher's
comments and realize not only the existence of an error, but also the reason the error
has occurred. They are not only able to process the court case and note all
of its subtleties; they are also able to recognize the impact that their teacher's
leanings have on his ability to adjudicate. Rava is ashamed because he has been
contextualizedÐrendered part of the fabric of law that his students navigate their
way around. Rava is ashamed because he has been historicized; his mistake suggests
the beginning of his students' ascent, and his own antiquation.⁶⁸
But this shame cuts deeper into Rava's personality. It moves away from
intellectual limitations and towards the very essence of his activist work as a legistÐ
his willingness to side with the weaker party. By noting the economic empathy at
the heart of Rava's activist jurisprudence, we understand the ruling against Bei
¼ozai as a move in the opposite direction. Rava's privileging of negligence
demonstrates that fault has become, for him, part of the fabric of lawÐa new
statute. He is ashamed because he knows that his decision is based entirely on a
legally formalistic focus on negligence as the benchmark of obligation. At the
moment of shame, he knows that such formalism is the price that an activist judge
sometimes pays when innovating within the lawÐwhen the cost of shoring up one's
credentials as a jurist by sticking to the law's letter is borne by a hitherto protected
needy partyÐthe economically weaker shepherd, borrower, or renter. The students,
having learned from their teacher, are surprised by this move; the empathic bent is
so ingrained in them that they are puzzled by the ruling. Startled by a teacher who
has replaced spirit with letter, they cry out publicly, humiliating the one who had
modeled empathy for them.
Rava's mistake is not a momentary amnesia, a forgotten principle leading to a
wrong decision, but a methodological blunderÐa failure to weigh all aspects of the
case that results in shame not just for Rava, but for justice itself. The competition of
concepts has not yet been won; the debate between owner presence and negligence
has not yet been resolved. Rava's students are reminders. They remind him of his
limitations as an individual cog in the wheel of justice, of the idealism of his earlier