The Rebbe's Gavel
METZGER, SOLOMON A.
The REBBE'S Gavel SOLOMON A. METZGER AI the age ()!'Leu I studied the following Mishnah: Two hold a garment. One of them says, "I found it," and the other says, "I found it.'' One of (hem says,...
...they simply made their way back and started again...
...Afaint smile came across the rebbe's face and the quiet demeanor that I had once mistaken for timidity now reflected confidence...
...Dividing the proceeds from the sale of the garment seemed a decent solution, but I said I would think on it some more...
...I shrugged my shoulders and pursed my lips...
...The rebbe congratulated me on my appointment to the bench...
...8...
...After a brief exchange of pleasantries, he congratulated me on my appointment to the bench and told me that to his knowledge, I was the first of his students ever to become a judge...
...If he cannot prove it by a preponderance of credible evidence, Reuven loses because he has the burden of proof...
...In cases where the evidence is equal, which again, Rebbe, I emphasize is a rare event, the person with the burden of proof loses...
...swearing otherwise would perforce be false for one of them...
...was 1957, and the cheder was a weak link in tin: cultural heritage of Orthodox Judaism...
...I shrugged my shoulders, pursed my lips and acknowledged that I didn't know what to do...
...How do you decide who is telling the truth...
...it had no more lines today than I remembered from my high school days...
...Big Shot from the suburbs, how about solving the Mishnah's problem...
...This process is sometimes misconstrued as hair-splitting, and thus unworthy of our time...
...I was cooked...
...With the mention of Reuven and Shimon, the rebbe visibly warmed to his task...
...Big Shot from the suburbs, how about solving the Mishnah's problem...
...Certainly, this sometimes takes the disputants down blind alleys and into logical boxes, but this was of no concern to the rabbis...
...He was a small, lean and erect man...
...He asked me whether I remembered Rashi and the other commentators who discussed this Mishnah...
...Now, almost 25 years later, his mostly gray beard was thinning...
...But the undertone of my rather defensive remark had been insulting...
...In the real world," I blurted out, "there is no need to split the garment...
...He was back with the next question: "But what if the burden of persuasion is equal...
...I had attacked the Mishnah, trivialized it...
...The unstated assertion in my evaluation of the mishnaic solution was that my system, the one in which I had been trained after I left the Yeshiva and in which I was spending my career, was a better system than the one which the rebbe saw as integral in his life...
...They each seek, and therefore must show, entitlement to the entire garment...
...We again wished each other a chag sameach, happy holiday, and went our separate ways...
...It is for this reason that each swears that he does not own less than half...
...They are teachers or businessmen, not pulpit rabbis...
...My answer, which I had assumed would put the matter to rest, scarcely slowed him down...
...The Mishnah approaches problem-solving somewhat differently than does our own system...
...Our own system, legislative and judicial, has a tendency to be pragmatic, to solve the simple cases while hoping that the hard ones never occur...
...One of them says, "I found it," and the other says, "I found it.'' One of (hem says, "li is all mine," and the other says, ''It is all mine...
...The shul was emptying now, and my father stood nearby talking and watching me with pride...
...I came now with my own family and with the first patches of gray in my hair and beard...
...Though the rebbe was a kindly man who never would have insulted anyone, his simple and final question really said, well now, Mr...
...He accepted this but pressed on: "What if the record did not lead to a result...
...but no one asked that question...
...How does a judge discern between competing testimony...
...it only mattered that we immerse ourselves...
...The rebbe seemed genuinely pleased that I used these names as part of my explanation...
...I did not...
...I told him that this happened occasionally, but even in a close case there was generally something that tipped the balance, allowing the case to be resolved...
...This is the first Mishnah of the tractate Babu Xhtziti in Seder \ezikin 'Damages"), which deals with contracts, torts, and the like, a favored beginning point for new students...
...he asked...
...As ill-equipped as our minds were to the task, we would no doubt have Ijeen equally or more confused by the tractate Sanhedrin, dealing with the judicial process, or Gittin, dealing with divorce law, and so on...
...Among these is the man with whom I studied Talmud in my third year at Yeshiva High School, my rebbe...
...When we finished this Mishnah, we went on to the next one and the next one, and after a few years we were permitted to learn Gctnara...
...His simple and final question said, "Well now, Mr...
...In every case, I said, one side or the other bears this burden of persuasion...
...But in the end, I said, it comes to a judgment call...
...I answered that this was rare but that when this occurs, the law calls it "equipoise," and under these circumstances, the decision is based on allocation of the burden of proof, or the burden of persuasion...
...For us, time is money, and we don't enjoy the luxury of splitting hairs...
...The example of the garment is a case of equipoise where both parties carry an equal burden of proof...
...A number of other rabbis also pray there because they reside in the neighborhood...
...The party seeking the court's relief must show entitlement...
...When he was my teacher he was probably 40 and clean-shaven...
...Until this point, we had been engaged in a scholastic discussion in which my rebbe was seeking a practitioner's insight into problems that he had been working out theoretically over a lifetime as a student and teacher of the Talmud...
...we had just passed the frontier of my knowledge...
...Once the extreme case is faced—despite the fact that there may be no good answer—it makes the pedestrian cases fall more clearly into place...
...To this I answered that in many years of experience as a lawyer and now on the bench, I had never come across such a case...
...Neither can do it on the facts presented, and the only solution is a compromise...
...they had the time...
...The rebbe took no notice of anything other than the problem at hand...
...After prayers, I approached him with the appropriate salutation for the holiday...
...Through Yeshiva High School and Yeshiva University, I never broke out of Seder Nezikin...
...In each case, a careful review of the testimony in combination with all of the documents in the record leads to an answer in which the person who tries the case can have reasonable confidence...
...I had recently been appointed to the bench...
...After all, I was not a kid in cheder...
...It just took a while...
...This did not seem to matter to anyone, for every time we were brought back to this same problem, we were a little older and could see more of it...
...Nor, as I have since learned, arc there easier points of entry...
...But even as I completed my answer, I began to feel vaguely uncomfortable...
...The shul employs a rabbi, a well-known and able man...
...He asked me to assume as these traditional commentators had, that each of the two men truly believed that he saw the garment first, that they grabbed its edges at exactly the same moment and held equal dominion over it, that of course neither had any connection to it before, that its true owner could not be found or even known, that the owner had in fact abandoned the garment, fn short, I was to assume that there was no other evidence in the entire universe that lent greater support to the claim of Reuven over that of Shimon...
...it was an unrealistic question...
...Musty volumes of the Talmud on their shelves beckoned...
...The rebbe asked me very simply, "What would you do in the circumstance of the Mishnah...
...Then the one shall swear thai his share in it is no less than half and the other shall swear that his share in it is not less than half, and the value of the garment shall then be divided between them...
...Rather, it poses a legal conundrum, a one-in-a-million case, impossible to resolve by means the courts normally employ to assess who gets what...
...It creates difficult, impractical and unlikely cases in an effort to define the outer boundaries of a problem...
...Of course, no one expected that we fifth-graders would fully understand our new subject, but the dominant pedagogic thinking of our circumscribed world dictated that we begin...
...Mine was a small, rundown cludti religious school) in the Bronx...
...Before I could recover frorh this ego balm, he began to question me...
...When more parties are needed to discuss a hypothetical situation, students just add a few more of Jacob's sons...
...But no one was in any particular hurry to open these doors...
...Yet, as I reshape my thinking, it seems that this willingness to split hairs serves as the very mechanism by which propositions are tested...
...This took me aback, and I have since suspected that he noticed me during prayers, and prepared for our anticipated meeting...
...How do you decide who is telling the truth...
...Our studv didn't seem to follow anv set pattern, and in some sense it didn't matter which Mishnah or Gemara we engaged...
...But the answer was simple enough...
...It had been several years since I last saw him...
...I told him that this was an ancient problem, that there had been much scholarly writing in recent years on the subject, seeking to quantify this decision-making process...
...Every few years we would return to the same beginning point of the two men and the garment...
...The synagogue was empty but for the rebbe, my father and me...
...I had returned from the suburbs to the home of my parents for the Jewish holidays...
...I was a judge...
...The memory of that first Mishnah had long faded when I walked up the steps of the synagogue where I grew up...
...The situation in the Mishnah simply cannot occur in real life," I said, sensing that I was once again his student...
...Reuven and Shimon are names commonly used when discussing hypothetical cases in Talmud study, the way others might say: Assume that X did this or that to Y. Reuven and Shimon are the first two of Jacob's sons in the Bible...
...The projier question I suppose would have been whether this was the lime for us to commence the study of Mishnah...
...The rabbis of the ancient academies took the long view...
...If Reuven claims that Shimon owes him money, or that Shimon's ox has gored his cow, or, for that matter, that Shimon's car hit his car, Reuven must prove it...
...the grass there seemed somehow greener, the study more interesting...
...after all, study was the work of a lifetime...
...This always seemed a shame...
...He had a genuine smile and the look of someone who has lived a life of internal peace...
...In the end, my rebbe had taught me a Mishnah lesson...
...It is not about two men and a garment...
...That was fine, he said, "but what if a thorough review of the record does not lead to a clear result, what then...
...Except for the beard, his face had not changed...
...Nevertheless, the answer was solid...
...I have since revisited that first Mishnah...
Vol. 14 • January 1989 • No. 1
