The Aggada Concerning Herod and Its Meaning

 

In this shiur, we will study the aggada concerning the rabbinical judge R. Yannai, found in Bava Batra 60a-b. The aggada's immediate context in the passage is a mishna that records the following law: "Spars of beams must not be allowed to project [from the wall of a house] over the public way." The quotation from the mishna is immediately followed by a short story concerning someone who had a spar projecting over the public way (i.e., a road), and the case was brought before R. Ammi for adjudication. Following the case involving R. Ammi, the Gemara brings the aggada concerning R. Yannai, which concludes the passage dealing with this section of the Mishna.

I. The Story

1. R. Yannai had a tree that overhung the public domain,

2. and another man also had a tree that overhung the public domain.

3. Some passers-by objected [to the other man’s tree]

4. and [the other man] came before R. Yannai.

5. [R. Yannai] said to [the other man]: "Go away now and come again tomorrow."

6. During the night [R. Yannai] sent and had his own tree cut down.

7. On the next day the man came back before [R. Yannai]

8. and [R. Yannai] said to [the other man]: "Go and cut the tree down."

9. [The other man] said: "But you, sir, also have one?"

10. [R. Yannai] replied: "Go and see. If mine is cut down, cut yours down, and if mine is not cut down, you need not cut yours down."

II. Literary analysis

The story before us deals with the Eretz-Israel Amora R. Yannai. It is short, with a simple structure consisting of several background statements (lines 1-3) and three short sections describing the incident itself. The sections are separated by different time designations: a. the first day (lines 4-5); b. that night (line 6); c. the next day (lines 7-10).[1] The story appears to be simple and straightforward, and yet it has an elaborate literary design that greatly emphasizes its theme.

The first two sentences in the story create symmetry between R. Yannai and the litigant: they both have a tree that overhangs the public domain. The symmetry is highlighted by identical formulation:

1. R. Yannai had a tree that overhung the public domain,

2. and another man also had a tree which overhung the public domain.

The symmetry ends in the following line (3), for the passers-by object to the litigant's tree, but not to R. Yannai's tree. The reason for this discrepancy is unknown. Perhaps R. Yannai's tree is objectively less disturbing to those using the public domain. It is also possible that the trees are equally disruptive, but the passers-by do not complain about R. Yannai's tree due to his elevated status (for reasons of respect, fear or consideration of long-term benefit).

On the face of it, the law is clear. The owner of the tree must cut down branches that disturb those passing through the public domain, in accordance with the criteria appearing in the Mishna (Bava Batra 2:14):

If a tree overhangs a public thoroughfare, the branches should be cut away to a height sufficient to allow a camel to pass underneath with its rider.

However, R. Yannai is not ready to decide the case until he cuts down his own tree, and therefore adjourns the case to the next day. Between the two court sessions, night arrives (section b), during which R. Yannai cuts down his own tree. The next day, R. Yannai orders the litigant to cut down his tree. Thus, the symmetry that ruled at the beginning of the story is restored. At the end of the story as well the symmetry between the two parties is highlighted linguistically, this time through the words of R. Yannai (line 10):

If mine is cut down, cut yours down,

and if mine is not cut down, you need not cut yours down.

The symmetry between R. Yannai and the litigant, which is disturbed at first and eventually restored, draws our attention to the fact that the story has a chiastic structure, which emphasizes this theme:

A. R. Yannai had a tree that overhung the public domain, and another man also had a tree that overhung the public domain.

B. Some passers-by objected

C. and [the other man] came before R. Yannai.

[R. Yannai] said to [the other man]: "Go away now and come again tomorrow."

D. During the night [R. Yannai] sent and had his own tree cut down.

C¹. On the next day the man came back before [R.

Yannai] and [R. Yannai] said to him: "Go and cut the tree down."

B¹. [The other man] said: "But you, sir, also have one?"

A¹. [R. Yannai] replied: "Go and see. If mine is cut down, cut yours down, and if mine is not cut down, you need not cut yours down."

• A and A¹ are the opening and closing statements, which reflect the symmetry, as stated above.

• B and B¹ are both claims: the claim put forward by those passing through the public domain that the litigant must cut down his tree, and the claim put forward by the litigant against R. Yannai that R. Yannai must cut down his tree. We are dealing here with two essentially different claims. The claim put forward by those passing through the public domain is a strictly legal argument, and deals with the disturbance caused by the branches to those passing through the public domain in accordance with the law of the mishna (2:14). In contrast, the litigant's claim against R. Yannai is expressed on personal-moral grounds. It is not directed at the interference caused by R. Yannai's branches, but rather at the lack of symmetry between the litigant and R. Yannai. This difference highlights the action taken by R. Yannai, which takes the litigant's claim into consideration even before it is put forward.

• C and C¹ strengthen the chiastic structure through the identical formulation that is found in both sections: "he came before him" and "he said to him: 'Go.'"

• D stands at the center of the structure, and its location emphasizes its importance. R. Yannai's action, cutting down his own tree, is a pivotal moment in the story. The same is true in the linear division of the story that we made above: section D constitutes a separate section. Its time designation, "during the night," separates it from the story’s other sections that take place on different days (the day before the night and the day following the night).

R. Yannai's action reflects that he is unwilling to allow asymmetry between him and the litigant. As we have demonstrated, symmetry is well expressed in the story, both through content and through structure. The reason for maintaining the symmetry stems not only from considerations of the laws of overhanging trees, but also from moral sensitivity. As a judge, R. Yannai rises above all suspicion and does not obligate the litigant to cut down his tree while R.Yannai’s own similar tree remains standing.

Beyond the personal rectitude of the judge, R. Yannai demonstrates concern for the standing of the legal system in the eyes of those judged by it. Even if there is no purely legal justification for cutting down R. Yannai's tree, cutting it down establishes that the justice system does not discriminate, or even appear to discriminate, between the judge and the judged.

Finally, it is possible that R. Yannai is also sensitive to the feelings of the litigant who loses in court, and perhaps even identifies with him, as is emphasized by the symmetry that is created by the story's literary design. It would be quite natural for someone who is forced to cut down his tree to leave the court with a heavy heart and bitterness toward the judicial system. Seeing R. Yannai's tree standing tall would only exacerbate that frustration and bitterness. R. Yannai wishes to prevent such feelings, even if they lack moral or legal justification.

The talmudic passage continues by explaining that R. Yannai had originally thought that his tree did not disturb the public, but rather was beneficial. From the complaint brought against the litigant, he now understands that trees are indeed disturbing, and cuts down his own tree. According to this understanding, cutting down his own tree is not a gesture going beyond the letter of the law, but rather required by the law. This interpretation of the Talmud, which is not part of the story itself (as we shall soon see from the parallel story in the Jerusalem Talmud), slightly blunts the significance of R. Yannai's action. Nevertheless, the story and its literary design still convey that R. Yannai was also guided by the extra-legal considerations mentioned above.

The Aggada concerning R. Yannai has a parallel in the Jerusalem Talmud, Bava Batra (2:14, 13c):

R. Yonatan judged in a good manner. And there was a certain Roman there who was his neighbor in his field and in his house. And R. Yonatan had a tree that overhung the field of that Roman. A case like this came before [R.Yonatan]. [R. Yonatan] said to them: "Go, and come in the morning." That Roman said: "Because of me the case was not decided. Tomorrow I will cancel my workday and see how the case is decided. If he judges all the people, but fails to judge himself, he is not a person." That night R. Yonatan sent his worker, and said: "Go, cut down that which overhangs the Roman's field." In the morning, his litigant came to him early. [R. Yonatan] said to him: "Go, cut down what overhangs his field." The Roman said to him: "And what about yours?" [R.Yonatan] said to [the Roman]: "Go out and see. Like mine do to yours." [The Roman] went out, saw, and said: "Blessed be the God of the Jews."

In the Jerusalem Talmud, the story (which is told there about R. Yonatan, a Palestinian Amora of the generation of R. Yannai) is part of a collection of three stories, which begin with the sentence: "R. Yonatan judged in a good manner." Indeed, at least the first two stories in the collection testify to R. Yonatan's exemplary conduct as a judge, to the fact that he was particularly sensitive to the moral rectitude required of a judge, and to the absolute clean image of his judicial system, similar to the message in the Babylonian Talmud.

III. The Broader context in the Talmudic Passage and in the Tractate

The story in the Babylonian Talmud relates to the last mishna in the third chapter of Bava Batra (3:5), in particular the statement: "Spars of beams must not be allowed to project [from the wall of a house] over the public way." On the face of it, a tree that overhangs the public domain seems sufficiently similar to a spar that projects over the public way, were it not for the mishnayot in the second chapter that deal specifically with the law governing a tree that overhangs property not belonging to the owner of the tree. The existence of these mishnayot, and especially mishna 14, which deals with a tree that overhangs the public domain, raises the question: why is the aggada concerning R. Yannai not located at the end of the second chapter? Indeed, the parallel story in the Jerusalem Talmud, concerning R. Yonatan, is brought in connection with a mishna from chapter two concerning trees. Why, then, did the Babylonian Talmud choose to bring the story concerning R. Yannai and the overhanging trees in the third chapter, in connection with the mishna concerning spars, when there seems to be a more appropriate place for it?

The answer to this question lies in the wider context of the story concerning R. Yannai. As stated earlier, prior to the story relating to R. Yannai, the Gemara cites an incident involving R. Ammi:

R. Ammi had a spar projecting over an alleyway, and another man had a spar projecting over a public way. Some passers-by objected. [The other man] came before R. Ammi, [who] said to him: "Go and cut it down." [The other man] said to him: "But sir also has a projecting spar?" [R. Ammi replied:] "Mine projects over an alleyway of which the residents have given me their consent. Yours projects over a public way. Who is there to surrender the [public's] rights?"

In the present case, R. Ammi, who himself has a spar projecting over an alleyway, judges a case involving a spar projecting over a public way, against which the passers-by object. R. Ammi rules that the owner of the spar must cut it down. In response to the litigant's question, R. Ammi distinguishes between his own spar, which projects over an alleyway, and the litigant’s spar, which projects over a public way. While an alleyway's residents can consent to a spar’s existence, nobody can surrender the public's rights to a public way.

Without entering into a discussion about the nature of this distinction, it is clear that R. Ammi's distinction is based on a halakhic-legal consideration. The distinction ultimately allows him to permit his own spar, while forcing the litigant to cut down his spar. This ruling is likely to arouse complaints against R. Ammi on the part of the litigant, even if from a strictly legal perspective there is no room for grievances.

At this stage, the Gemara cites the aggada concerning R. Yannai, which is very similar to the case of R. Ammi, structurally and linguistically, as is evident from the following table:

R. Ammi had a spar projecting over an alleyway,	R. Yannai had a tree which overhung the public domain,
and another man had a spar projecting over a public way.	and another man also had a tree which overhung the public domain.
Some passers-by objected	Some passers-by objected
and he came before R. Ammi,	and he came before R. Yannai.
	He said to him: “Go away now and come again tomorrow.” During the night he sent and had his own tree cut down. On the next day the man came back before him
[who] said to him: “go and cut it down.”	and he said to him: “Go and cut the tree down.”
He said to him: “But sir also has a projecting spar?”	He said: “But you, sir, also have one?”
[He replied:] “Mine projects over an alleyway, the residents of which have given me their consent. Yours projects over a public way. Who is there to surrender the [public's] rights?”	He replied: “Go and see. If mine is cut down, cut yours down, and if mine is not cut down you need not cut yours down.”

The striking similarity between the two accounts highlights the differences between them, especially regarding two points.

1. In the aggada concerning R. Yannai there is a section in the middle, in which R. Yannai sends the litigant away until the next day, with the intention of cutting down his own tree in the interim. There is no parallel section in the incident involving R. Ammi.

2. The concluding sentences of the two stories are conspicuous in the differences between them. R. Yannai bases the execution of his ruling on the fact that he already carried out the same ruling, and thus creates symmetry between himself and the litigant. R. Ammi, on the other hand, distinguishes between himself and the litigant, and effectively leaves the situation asymmetrical.

In view of the symmetry between the two accounts and the message emerging from the aggada concerning R. Yannai, there is room to surmise why the aggada concerning R. Yannai was placed in the third chapter, rather than its more natural setting in the second chapter. The aggada concerning R. Yannai does parallel the aggada concerning R. Ammi, but it proposes an alternative model to R. Ammi's mode of operation. In contrast to R. Ammi's decision to act in accordance with strict legal considerations and to distinguish between his spar and the spar belonging to the litigant, R. Yannai decides to act out of selfless moral considerations.[2] The presentation of R. Yannai’s story suggests that there are various considerations that confront the judge beyond strictly legal considerations. Alternatively, the Gemara might simply present two different models of judging adopted by two different judges, as indicated by reading the two stories in succession.

IV. COMPARISON TO THE JERUSALEM TALMUD’S STORY

This interpretation, which arises from an examination of the passage in the Babylonian Talmud, is reinforced when we compare the aggada concerning R. Yannai in the Babylonian Talmud to its parallel in the Jerusalem Talmud, cited above:

Jerusalem Talmud, Bava Batra 2:14, 13c	Babylonian Talmud 59b
R. Yonatan judged in a good manner. And there was a certain Roman there who was his neighbor in his field and in his house.
And R. Yonatan had a tree that overhang the field of that Roman.	R. Yannai had a tree which overhung the public domain,
	and another man also had a tree which overhung the public domain. Some passers-by objected
A case like this came before him.	and he came before R. Yannai.
[R. Yonatan] said to them: "Go, and come in the morning." That Roman said: "Because of me the case was not decided. Tomorrow I will cancel my workday and see how the case is decided. If he judges all the people, but fails to judge himself, he is not a person."	He said to him: "Go away now and come again tomorrow."
That night R. Yonatan sent his worker, and said: "Go, cut down that which overhangs the Roman's field."	During the night he sent and had his own tree cut down.
In the morning, his litigant came to him early.	On the next day the man came back before him
[R. Yonatan] said to him: "Go, cut down what overhangs his field."	and he said to him: "Go and cut the tree down."
The Roman said to him: "And what about yours?"	He said: "But you, sir, also have one?"
He said to him: "Go out and see. Like mine do to yours." [The Roman] went out, saw, and said: "Blessed be the God of the Jews."	He replied: "Go and see. If mine is cut down, cut yours down, and if mine is not cut down you need not cut yours down."

First, it should be mentioned, as noted earlier, that the aggada in the Jerusalem Talmud is integrated into the second chapter, in connection with the mishna concerning trees. This is its most natural place. Second, there are certain striking differences between the two stories, despite the great similarities between them. The story in the Jerusalem Talmud deals with a tree that overhangs another person's field, whereas in the Babylonian Talmud the trees overhang the public domain. This difference strengthens the connection between the story concerning R. Yannai and the case of R. Ammi, which also deals with an object projecting over the public domain. The story in the Jerusalem Talmud includes a Roman neighbor, an element that does not exist in the Babylonian Talmud’s story. While Jewish-gentile relations stand at the heart of the story in the Jerusalem Talmud, the primary message in the Babylonian Talmud’s story is the contrast to R. Ammi’s method of judging.[3]

There are significant verbal similarities between the aggada concerning R. Yannai in the Babylonian Talmud and the case involving R. Ammi. These verbal similarities differ significantly from the language of the parallel story in the Jerusalem Talmud. For example, the question: "But you, sir, also have one?" in the story relating to R. Yannai (line 8) parallels the words: "But sir also has a projecting spar?" in the story relating to R. Ammi, but differs from the question: "And what about yours?" in the Jerusalem Talmud. The words: "and he came before R. Yannai" (line 4) parallel the words: "and he came before R. Ammi," but differ slightly from the formulation in the Jerusalem Talmud: "a case like this came before him." The brief phrase, "Go, and cut down," appearing in the aggada concerning R. Yannai (line 9) parallels the phrase used in the case of R. Ammi, but is very different from the wordy phrase: "Go, cut down that which overhangs the Roman's field" in the Jerusalem Talmud.[4]

Apparently, the Babylonian Talmud used the earlier story in the Jerusalem Talmud, or a similar one, but modified it to suit its goals in the third chapter: By reworking the stories style and leaving out certain parts that, in the Babylonian context were less significant, the Babylonian Talmud created a parallel to the case of R. Ammi. The story of R. Yannai in the Babylonian Talmud is thus similar enough to R. Ammi's case to create a comparison between them, which highlights the different approaches that are reflected in the conduct of the two rabbis.

V. CONCLUSION

In summary, a broad view of the R. Yannai story, and the comparison to the parallel story in the Jerusalem Talmud, show that the passage in the Babylonian Talmud presents the reader with two models of judicial conduct: R. Ammi clings to legal considerations, and firmly presents the truth before the litigant before him. In his eyes, a judge represents the law and the truth. They alone must guide him, and the litigant must accept this. A judge like R. Ammi also maintains a certain distance from the litigant. R. Yannai, in contrast, prefers to pay a personal price and create symmetry between himself and the litigant, even when according to strict law he may not be obligated to do so.[5] By doing so, even the party who loses feels that justice was done, without any appearance of injustice. The differences in approach are highlighted by and by the literary design of the story, which commences and concludes with symmetry between R. Yannai and the litigant. This symmetry is strikingly absent between R. Ammi and the litigant who appears before him.[6] The comparison that the Babylonian Talmud means to draw between the two diverse approaches is highlighted by the differences in content and design between the story of R. Yannai in the Babylonian Talmud and the earlier parallel in the Jerusalem Talmud.

 

, full_html, This article analyzes a story about R. Yannai, and demonstrates how analysis of its literary structure and comparison to parallel sources highlight R. Yannai’s nuanced judicial sensitivity.