Wimpfheimer_ Is it not so.pdf

84 ❙ Barry Wimpfheimer
64 Though arguments of empathy are di³cult to make within civil cases in light of the
fact that one side's loss is another's gain, the context of bailees (at least in the Talmud)
is generally one of economic imbalance. Siding with the bailee is
tantamount, then, to siding with the poor. Though justice might demand that the
poor receive no greater stake, this sort of leaning is often a necessary corrective to
the real-world realities of judicial imbalance in the opposite direction. Within
American law, this is often illustrated within the notion of unconscionability and
Williams v. Walker-Thomas. A similar notion can be found in Isa. 11:4, which associates
true justice with a correction for the poor. Some might question such a
reading of Rava as inconsistent with the biblical law that mandates that neither the
rich nor the poor receive unequal treatment in light of their di²ering monetary situations.
Yet it is undeniably the case that when Rava rules to accept the claim,
``What should he have done?'' he is doing precisely that, since the legal protections
o²ered to the wealthy bailee are being breached when the wealthy one is made to
su²er a loss while seemingly under the protection of the bailor's liability.
65 Rubenstein, Talmudic Stories, 275, argues that shame is a common feature of Babylonian
stories, particularly with respect to their Palestinian parallels. Je²rey L.
Rubenstein, ``The Bavli's Ethic of Shame,'' Conservative Judaism 53 [2001]: 3,
27±39, further articulates the cultural signi®cance of this focus on shame. Most of
his examples are from nonlegal narrative; the occurrence of shame in this legal narrative
is rare.
66 For an articulation of the various con¯icts responsible for creating law, see Pierre
Bourdieu, ``The Force of Law: Toward a Sociology of the Juridical Field,'' The
Hastings Law Journal 38 (July 1987): 814±53.
67 Echoes of Rava's tension can be found in a medieval argument. Rambam Sekhirut 2:3
asserts that a bailee who is negligent with a slave must pay damages ``because anyone
who is negligent is a tortfeasor.'' Ra¥bad ad loc. attacks this position, reprising
the role of Rava's students, by saying, ``One who is negligent is not a tortfeasor, for
were this the case, why would negligence in the owner's presence be exonerated?''
In other words, Rambam is moved by the egregiousness of negligence, and its status
as an exception to statutory law to transfer its case from the status of insurance
liability to that of tort liability. This logic is akin to Rava's focus on fault and his
assumption that negligence brings automatic liability. Ra¥bad recognizes our case
of owner presence as the limit case that prevents negligence from becoming a tort.
This argument demonstrates the impact of this legal story on a broader area of law.
68 In this argument, I am explaining not only Rava's shame, but his silence. Saddened by
the fact that he has been historicized, Rava is silent in his shame. His shame is
interconnected with this sadness.