On March 24, 1999, NATO warplanes lead by the United States Air Force began an eleven-week aerial assault on Serbia to prevent and reverse an ongoing humanitarian crisis in Kosovo. During the course of this brief war, NATO forces dropped 1,392 cluster bombs on Kosovo and Serbia. A cluster bomb is a large bomb that opens as it falls releasing many hundreds of bomblets, smaller explosives that can destroy enemy tank formations and can quickly devastate an army. 289,536 bomblets were released by NATO bombs during the eleven week war.
But sometimes a bomblet doesn’t detonate upon impact. In that case, those bomblets, which look like small balls, remain in the landscape, where they may rest undisturbed for years before exploding without warning if handled in the wrong way. The standard estimate is that 10% of bomblets fail to detonate which would mean that there were 30,000 unexploded cluster bombs left behind after the war. And indeed, in just one year following hostilities, 150 people were killed or wounded by unexploded bomblets. Many of them were children who were drawn to the bomblets by a curiosity aroused by the site of a strange metallic ball resting on the ground.
I do not want to evaluate today whether the NATO campaign in Kosovo was a just or a moral use of the American military. I do not want to evaluate right now whether the use of cluster bombs in the Kosovo campaign, or in any other campaign, was a just or moral use of those weapons. Because something else was also true about those cluster bombs. They were no longer under warranty. Their “sell by” date had expired and they were not supposed to be used. And because someone, a nameless bureaucrat at the Pentagon, or at NATO headquarters, decided to use old ordinance, the failure rate for these cluster bombs was higher than 10%. There were more unexploded bomblets, more dangerous explosives littering the countryside years after the was was over, and more dead civilians in the months and years following the cessation of hostilities.
Why do I mention forgotten victims of a forgotten war? Because there are certain types of evil choices that are so monstrous as to be outside our ability to comprehend or to influence. But other types of evil choices are more routine and more banal. This kind of evil choice is more amenable to our interventions as a community. And this form of evil is one that some of us may be complicit in perpetuating.
This is the second week that the Daf Yomi Talmud cycle is learning Bava Kama. We just began the second chapter and it’s a great time to join us on weekday mornings following Shacharit. It’s been a thrilling experience for me to return to this portion of the Talmud. The laws of damages and torts and responsibility for oxen goring other oxen or trampling on objects or eating other people’s foods is one of the core discussions in the Talmud, a mainstay of classic yeshiva learning, and a lot of fun.
But, the material is also profound and I’ve spent a lot of time this week reflecting on some of the core messages of Bava Kama. Laws about oxen trampling and eating and goring is not a pastoral depiction of our quaint rustic ancestors but something extremely important. Bava Kama is not Old MacDonald’s farm, but something very contemporary and very crucial.
There are four Avot Nezikin, for principal categories of damage that are delineated by the Torah and defined in Jewish Law. These are oxen, pits, human beings, and fire. These broad categories are then subjected to further analysis and subcategories are introduced. Oxen cause damage in several ways. They can gore with their horns, trample on property as the walk from place to place, or eat food belonging to another.
The analysis is complex and sophisticated. The Talmud wishes to identify the differences between the categories of damage. For example, oxen gore as an act of willful aggression but they damage through walking without any malice or intention. Oxen eat for their own pleasure and benefit, and in a similar way they may lean against an object to scratch an itch. The common denominator for all damage caused by oxen is that oxen are a paradigm for something which can belong to you, and that you are therefore obligated to prevent your stuff from harming others. And, if damage ensues, the owner of the ox is responsible to pay compensation. ממונך ושמירתן עליך
A pit in the public domain is not really someone’s property – I can’t own a pit in a public domain. Nonetheless by taking an action which endangers the public, I am ascribed responsibility by the Torah as though the pit were my own property.
Fire causes damage only when some other force acts upon it, a gust of wind can cause a fire to become uncontrolled and then cause great damage but the one who started the fire and watched it with insufficient care is responsible.
Human beings are distinct in having full liability:
אדם מועד לעולם
בין שוגג בין מזיד בין ער בין ישן
A human being is always considered responsible, whether he causes damage intentionally or accidentally; whether she is sleeping or awake.
The intricacies and nuances of these categories and distinctions, and learning how to apply them to countless situations can take a lifetime. Daf Yomi alone, a fairly quick, even superficial at times, survey of the tractate will take us several more months.
But the core insight of the tractate – which is really one of the Torah’s core insights, is quite simple and quite relevant:
ממונך ושמירתן עליך
You are responsible for your stuff. You are responsible for the things that you own. And human beings are directly responsible for damage that we ourselves cause. In contrast, so much of our contemporary cultural context pushes us to evade responsibility for ourselves and for our things.
In our hyper-capitalist economy, we are trained to see money as a means for acquiring more wealth rather than as a possession that we must prevent from causing harm in the world. Money is invested in income generating funds rather than being invested in support of our values and our community. When does one take stock of one’s property to ensure that we invest our wealth in support of our values rather than only in the wealth generating process itself?
The more complex financial instruments become, the harder it is to trace a clear line of responsibility connecting my mutual fund to oppressive labor conditions overseas or environmental destruction. Fiduciary responsibility pushes those making decisions to prioritize their responsibility to shareholders over their responsibility to their community and to future generations of humanity. The limited liability corporation, which has fueled economic growth for centuries, also shields real human beings from the consequences of their actual choices that cause actual harm. Instead of taking responsibility for our possessions, our economic life shields us from even knowing what our property is doing in the world and allows us to evade responsibility. What has happened to: ממונך ושמירתן עליך?
Whereas the Talmud teaches us that a person is always responsible for their actions, we too often speak of “automobile accidents” even though very few crashes and collisions are true “accidents” in which a driver was not negligent in some way. Someone texting while driving, someone driving under the influence of alcohol or drugs, someone driving in a reckless way does not get into an accident. He or she crashes a car and is responsible because the car is no less the responsibility of its driver than an ox, and because a person is no less responsible for his or her actions when behind the wheel of a car than at any other moment. לעולם אדם מועד
Whereas the Talmud identifies a pit in the public domain, an action which creates a danger to the general public, as a prime category of damage, we know of too many parents who refrain from vaccinating their children in opposition to universal medical recommendations. As vaccination rates fall, once vanquished diseases have made frightening resurgences that have targeted those who are most vulnerable. It isn’t necessarily the privileged families, with the affluence to indulge health fads who pay the price. Innocent victims are put at risk by that decision. We weaponize our own bodies by allowing them to be vectors for the spread of disease and in so doing we destroy herd immunity, a vital common resource, just as someone who digs a pit in the public domain puts the entire community at risk.
And just this week in Daf Yomi we encountered the position (Bava Kama 15b) of Rabbi Natan who forbids owning violent guard dogs ( “kelev rah” a bad, dangerous dog in the language of the Talmud). A subjective sense of protection a dog of that kind can provide is not a sufficient reason to override the objective risk that such a dog will create for innocent people in its neighborhood.
Elsewhere in the Talmud and in later Halakhic literature there is a range of opinions expressed concerning whether a prohibition of that sort might be mitigated in specific circumstances where guard dogs can be raised in a way that keeps innocent people safe, and where there is greater reason to need the protection they can provide. But the debate presumes two things: First, halakhic guidance must be sought to determine if there is an objective need for the protection of a guard dog. Judaism doesn’t allow individuals to decide based on their own feelings whether they would personally feel safer with a guard dog. Second, chains and enclosures for the dogs are indispensable to minimize the risk to innocent victims as much as can be possible.
Guard dogs are not a source of great danger to anyone in modern America and I’ve never been consulted by someone who wished to own one for protection. But guns are bought and sold for protection and I’ve also never been asked to provide halakhic guidance about a gun.
Sixty four people were shot in Chicago, one of them only blocks from our shul, while we celebrated Shabbat and commemorated Memorial Day. Forty nine young men and women murdered in cold blood in Orlando as we joined with our neighbors from the other Lakeview congregations and joyfully studied Torah on Leil Shavuot. There were monstrous choices that caused those deaths and injuries. But there were also banal choices that caused that bloodshed.
In Jewish Law one who sells a weapon is responsible for how it will be used in the future and so Jewish Law, as a general rule, makes it forbidden to sell any weapon to anyone other than to a government that will use it responsibly.
Being a Jew, certainly an Orthodox Jew requires one to embrace one’s counter-cultural ways of thinking and behaving. The very word “ivri” or Hebrew, according to the rabbis, alludes to our proud alternative identify standing me’ever, in opposition to, the values and morals and lifestyles of the surrounding society.
We are heirs to a tradition that teaches us to accept full responsibility for the consequences of the things we own. But we are tempted by an ethos that shelters us from what our wealth is doing in the world and shields us legally and emotionally from the consequences of our choices.
There are monstrous acts of violence and hatred that shock us to our core. But there are mundane acts, like allowing expired ammunition to be used in warfare, which in aggregate cause even more death and destruction. The Talmud teaches that one who wishes to become saintly should study these laws of damages, “l’kayem divrei d’nezikin.”
If you want a vision for a different kind of society – come join us at daf yomi. We’re learning Bava Kama.
Rabbi David Wolkenfeld 