On Violence, the Law and Justice (pt. 1)

A meditation on a sugya (talmudic discussion) that I am currently teaching and thinking about.

Babylonian Talmud Baba Bathra 34b
There was a certain boat that two [people] were fighting over.
This one says: “It is mine.” And this one says: “It is mine.”
One of them came to the court.
He said: “Seize it until I bring witnesses that it is mine.”
Do we seize it or not?
Rav Huna says: “We seize.”
Rav Yehudah says: “We do not seize.”
He went.
He did not find witnesses.
He said: “Release it. The one who is stronger will prevail.”
Do we release it or not?
Rav Yehudah says: “We do not release.”
Rav Papa says: “We release.”
The law is that we do not seize. If we do seize we do not release.

What is it about these two men that engages the curiosity? They, both of them, lay claim to the same boat or barge—or, later, piece of land—and neither can draw down the gods of the law through the sacred ritual of evidence to prove his side. The boat lays between them in a nether space, neither here nor there—bodies of water not being owned by one or the other. The turn to the court is of last resort, it seems. “Intervene” is the cry of the one, certain in his ability to scare up a witness, a scrap of paper that will tilt the scales, a proof incontestable which will move the boat to his possession. Ownership, the ability to bond with inanimate objects in a manner signaling “mine own”—”part of me.” And are they? And how are they? Land especially it seems floats through the dark arts of transferal of ownership without transformation, for how would it? Its bond with its owner more sorcery than sophistry. At the last, it is violence, is it not, that bounds one’s property as part of one’s self.

In any event, the turn to the court, the plea “intervene!” is a plea to seize. A plea to take hold of and render neutral for the moment this boat, this field, so that one can possibly bring proof irrefutable. So that one can conjure the spell of “mine” in such manner as to bring it into the world of the real.

The court, faced with this set of options, this singular option, asked not to decide now on the ownership, not to engage in Solomonic decision making—or perhaps this court ignores or dismisses the Solomonic as an evasion of responsibility, as an admission that truth is not an option, as failure—the court seizes the boat. What could go wrong? And yet, this was the cry of the dissent. While R. Huna full throated in support of the activism of the court advocated and perhaps celebrated the seizure option, R. Judah demurred cautiously perhaps, fearful perhaps, weak perhaps? R. Judah said the court should leave well enough alone. Perhaps he was right for the claimant gone in search of proof returns empty-handed. They now turn to the court and demand the boat’s release. But to whom? Might the court just return the boat to the chaos of the fray? Verily this is the demand. Release the boat, and the stronger person will claim it. How now? Is this to be a judicial decision? That in this case we, the three august judges come to decide the matter of ownership of this boat, decide that under prevailing law it is he who can more successfully release the dogs of war, whom we will recognize as the rightful owner. Or is this the ultimate failure? The court in a corner, without options, deems that the only option is to revert to the “state of nature.” The court lifts its hands and says: we have not the tools to resolve this dilemma. Yet we have no right to hold on to the boat as it is not ‘ours’. (‘Ours’ in this scenario is also a problematic variable.) So we release it to the world, and then when the violent clash of claims is resolved by might, order will again prevail and if the losing party wishes to contest the outcome, then he may bring proof of his ownership in the manner prescribed.

This, in any event, is the way R. Papa would see the events through. R. Judah again dissents. If after having seized the boat (wrongly, R. Judah might add wryly) there is no proof, the court cannot absolve itself of responsibility by merely throwing the boat away to the forces of violence. Once the court intervenes, the court must continue a responsible presence. That is, the court cannot abdicate its responsibility when faced with this conundrum of its own device (again, according to R. Judah, it should not have seized in the first place).

But what of compromise?

 

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