5/03/2005

עיני העדה and the role of narratives in land disputes and conflict resolution

The Gemara in Bava Basra 4a calls the Sages 'the eyes of the world' and 'the eyes of the congregation'. More than just a cute 'vort', I believe (having actually learned large tracts of Nezikin) that it accurately describes the fundamental role of a judge in Jewish law; their goal is not one of decision, rather, one of perception.

Consider the basic structure of most cases in Chezkas Ha-Batim (3rd chap of BB) - two ingredients are necessary to successfully claim a property: chazakah and ta'anah - basically, a reality and a story which explains that reality. The role of the judge is to listen to the story and to look at the reality. Who is 'right' isn't entertained, even if someone else has a better story. Who does reality and narrative support as being consistent with ownership? Who has demonstrated control over the property? These are the key questions (I'm oversimplifying).

In essence, the one who is stronger is always the one who prevails judicially, but strength, in the normal case, is determined by behaving in a manner that is confident and consistent with ownership.

Another example - even sharper - is the first mishna in Bava Metzia. Two people come into court holding a single garment, each claiming the entire thing. Clearly, one of them is lying. Yet, looking at the facts, we acknowledgee that each is demonstrating control over whatever is in his hand, and the rest must be split down the middle. History doesn't enter the picture, only reality and the story of how that reality came to be.

The Mishna and Talmud include at least 7 potential resolutions to cases of property dispute:
  1. Presumtion that the current possesor is the true owner until proven otherwise
  2. Putting the property in escrow
  3. Putting only the disputed property in escrow
  4. Division after oath
  5. Division
  6. "Whomever is stronger wins' (which is a complicated solution, and might mean a number of things - but it may even be saying that sometimes 'war' is justified)
  7. Judicial discretion

The Talmud assumes that everyone has their narrative, and that even if two narratives conflict, neither is assumed to be lying. Their job is to formally state that which is upheld by a neutral perception of reality. 'History' - i.e., what 'really' happened, isn't on the Talmudic agenda.

I attended a lecture yesterday, where the lecturer was advocating a mutual affirmation of each side's narrative in the Israeli Palestinian conflict. I had been thinking along those lines for a while, and was glad to hear a really articulate, informed presentation on the issue.

Since so much of this attitude (for the most part a postmodern one, which seeks to affirm multiple narratives) corresponds with the Talmudic attitude, I thought (and was seconded and encouraged by an Orthodox Professor of Jewish Philosophy who i was shmoozing with afterward, and who, like me, shall remain nameless), that Nezikin should become a strong part of the curriculum in Israel, as it trains the mind to think like that judge would think. Of course, the teachers would have to be sensitive to this type of Talmudic thinking, and I've already lamented the dearth of qualified Talmud teachers.

Add to the curriculum the 1st and 2nd chapters of Bava Basra - which discuss what it means to be a good neighbor and what it means to be a good neighbor - and you've got a dynamite curriculum for teaching peaceful conflict resolution, and for seriously studying Halakhic texts in a way that it can become a serious element of Israeli discourse - a good example of what I advocated in yesterday's post.

As today's Daf states:

תלמידי חכמים מרבים שלום בעולם, שנאמר +ישעיהו נ"ד+ וכל בניך למודי ה' ורב שלום בניך, אל תקרי בניך אלא בוניך.

"The scholars of Torah increase peace in the world, as it says, 'and all of your sons are learned of God.' Don't read this as 'your sons', rather, 'your builders'.

(See what R' Kook has to say on this in Eyn Ayah. It's great. Perhaps for another post.)

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