Talmudology on the Parsha ~ Devarim: Giants, and Giant Beds

דברים 3:11

כִּי רַק־עוֹג מֶלֶךְ הַבָּשָׁן נִשְׁאַר מִיֶּתֶר הָרְפָאִים הִנֵּה עַרְשׂוֹ עֶרֶשׂ בַּרְזֶל הֲלֹה הִוא בְּרַבַּת בְּנֵי עַמּוֹן תֵּשַׁע אַמּוֹת ארְכָּהּ וְאַרְבַּע אַמּוֹת רחְבָּהּ בְּאַמַּת־אִישׁ׃

Only King Og of Bashan was left of the remaining Rephaim. His bedstead, an iron bedstead, is now in Rabbah of the Ammonites; it is nine cubits long and four cubits wide, by the standard cubit!

We first met King Og in Bamidbar (Numbers) 21, where he was the Amorite king of Bashan, and where the Israelites quickly defeated him in battle.

במדבר 21: 32–34

וַיִּפְנוּ וַיַּעֲלוּ דֶּרֶךְ הַבָּשָׁן וַיֵּצֵא עוֹג מֶלֶךְ־הַבָּשָׁן לִקְרָאתָם הוּא וְכל־עַמּוֹ לַמִּלְחָמָה אֶדְרֶעִי׃ וַיֹּאמֶר יְהֹוָה אֶל־מֹשֶׁה אַל־תִּירָא אֹתוֹ כִּי בְיָדְךָ נָתַתִּי אֹתוֹ וְאֶת־כל־עַמּוֹ וְאֶת־אַרְצוֹ וְעָשִׂיתָ לּוֹ כַּאֲשֶׁר עָשִׂיתָ לְסִיחֹן מֶלֶךְ הָאֱמֹרִי אֲשֶׁר יוֹשֵׁב בְּחֶשְׁבּוֹן׃ וַיַּכּוּ אֹתוֹ וְאֶת־בָּנָיו וְאֶת־כל־עַמּוֹ עַד־בִּלְתִּי הִשְׁאִיר־לוֹ שָׂרִיד וַיִּירְשׁוּ אֶת־אַרְצוֹ׃

They marched on and went up the road to Bashan, and King Og of Bashan, with all his people, came out to Edrei to engage them in battle.But the Lord said to Moses, “Do not fear him, for I give him and all his people and his land into your hand. You shall do to him as you did to Sihon king of the Amorites who dwelt in Heshbon.” They defeated him and his sons and all his people, until no remnant was left him; and they took possession of his country.

The Torah does not directly tell us Og’s height. Instead it mentions the dimensions of his apparently famous iron bed: “it is nine cubits long and four cubits wide, (by the standard cubit).” A cubit is somewhere around 18 inches (45cm), which would mean that his bed was six feet wide and over 13 feet wide. Why mention this detail? Today on Talmudology we will study two answers to this question. The first comes from the famous Portuguese exegete Isaac Abarbanel (1437-1508), and the second from a professor of Hebrew and Ancient Semitic Languages who sadly passed away barely two months ago.

The Abarbanel

Let’s start with the Abarbanel. Og seems to have been one of the last remaining descendents of the mysterious Nephilim, but why mention him at all? After all, he had been soundly defeated back in Bamidbar 21. Abarbanel provides a few answers:

אברבנאל על תורה, דברים ג׳:י״א

ונתן ראיה שנית על גבורתו והוא אמרו הנה ערשו ערש ברזל. רוצה לומר שהערש הוא שוכב עליו לא היה מעץ כי לא יוכל העץ לסבול כבדותו בעת השינה אבל היה מברזל. והנה העד בזה הוא החוש שעוד היום הזה לאות ולמופת ברבת בני עמון. וכן אמרו באלה הדברי' רבה רבי אבהו בשם רשב"י אמר לא ראה עוג מימיו לא כסא של עץ ולא ישב על עץ מימיו שלא היה נשבר ממשאו אלא כל תשמישיו מברזל היו

The Torah emphasises his large stature by describing his iron bed. It teaches that the bed was not wooden, because it would not have been able to support Og’s enormous weight as he slept. For this reason, the bed was made of iron. That is why the Torah also mentions that the bed can be seen to this very day, “in Rabbah of the Ammonites”….

The detail about the iron bed is there to remind the reader that although Og had been defeated, he was a giant of a person. Literally. That is why it had been necessary to tell the Israelites “not to fear” (אַל־תִּירָא אֹתוֹ) him. Because he was fearsome. Then the Abarbanel continues:

והביא ראיה שלישית על גבורתו מגודל גופו. ויבאר זה מן גודל הערש שהיה ט' אמות ארכה וד' אמות רחבה. ובאלה הדברי' רבה אמרו משמיה דרשב"ל שעוג מנוול היה שהי' רחבו קרוב לחצי ארכו ואין בריות בני אדם אלא רחבם שליש ארכם וגלית הפלשתי היה נערך באבריו ולזה נקרא איש הביני'. רוצה לומר הנבנה כראוי באבריו. והרב המורה כתב בפרק מ"ז חלק ב' מספרו שלא אמרה התורה זה כמפליג כי אם על צד ההגבלה והדקדוק כי זכרה קומתו בערש שהיא המטה. ואין מטות כל אדם כשיעורו אבל המטה היא תהיה לעולם יותר גדולה מהאיש השוכב עליה. והנהוג שהיא יותר גדול' ממנו. כשליש ארכו. ואם כן שהיתה מטת עוג ט' אמות ארכה תהיה מדת עוג ו' אמות. ואמרו באמת איש איננו באמת עוג כמו שכתוב רש"י ז"ל. כ"א באמת כל איש ממנו והיה עוג אם כן כפל איש אחר. וזה בלי ספק מזרות אישי המין ואינו מן הנמנעות. הנה א"כ היה זה שיעור גדול יוצא מהמנהג הטבעי וכפי שעור הנושא יהיה הכח אשר בו וכל זה ממה שיורה על גודל התשועה האלהית אשר עשה במלחמה זאת

There is a third piece of evidence that Og was a giant. It comes from the size of his bed, which was 9 amot long and 4 amot wide. And in the Midrash Rabba it was said in the name of Rabbi Shimon ben Levi that Og was physically deformed, in so far as his arm span was almost half of his height. Uusually, the arm span is about a third of the height…Maimonides in his Guide for the Perplexed wrote that in fact the Torah gives these unusual details [about the size of his bed] to indicate a physical weakness. It did so by describing his height in relation to his bed. Most beds are not the same size as a person; usually they are slightly larger, and about a third as wide as they are high...Og was about twice the height of most people. And this is most certainly a deformity, and not something of beauty. His height was far greater than is usually found, and he was proportionally far stronger. All of these details emphasize God’s salvation in this war…

So for the Abarbanel, the details of the iron bed are provided to draw attention to Og’s unusual physical appearance and large stature. Fair enough, though why not just write “he was a really big king"?” After all, when we read the story of another giant, one named Goliath, there is no mention of how big a bed he slept in. The Bible just tells us his height:

שמואל א, 17:4

וַיֵּצֵא אִישׁ־הַבֵּנַיִם מִמַּחֲנוֹת פְּלִשְׁתִּים גלְיָת שְׁמוֹ מִגַּת גבְהוֹ שֵׁשׁ אַמּוֹת וָזָרֶת׃

A champion of the Philistine forces stepped forward; his name was Goliath of Gath, and he was six cubits and a span tall.

For another stab at the question of why Torah mentions that iron bed, let’s turn to a more recent academic explanation.

About that Big Iron Bed

Abarbanel believed that the bed was made of iron because only that metal could support Og’s enormous weight. But Professor Allan R. Millard, who sadly died two months ago, had a different approach. Lillard was a British orientalist, Rankin Professor of Hebrew and Ancient Semitic languages, and Honorary Senior Fellow at the School of Archaeology, Classics and Egyptology. Here is why he thought the Bible would include this detail:

First, we should not think of Og’s bedstead as being of solid iron. Most likely, it was decorated with iron. The situation with ivory is an obvious analogy. The Hebrew Bible contains references to “a throne of ivory” (kisse sen, 1 Kings 10:18; 2 Chronicles 9:17), to “beds of ivory” (mittot sen, Amos 6:4) and even “a house” and “palaces of ivory” (bet hassen, 1 Kings 22:39; hekle sen, Psalm 45:8). Cuneiform texts also mention ivory furniture, best known being Sennacherib’s list of tribute paid by Hezekiah, king of Judah, which included “beds of ivory.” Archaeological discoveries at Samaria and in Assyrian towns have demonstrated that this furniture was not made of ivory, any more than Ahab’s house was; rather, the ivory served as decoration, plating, veneer and paneling. The same could be true of Og’s bed of iron.

Assyrian texts even record “a bed of silver” and other furniture of precious metal. Here, too, the object was not solid metal. The reference is to a method of enhancing wooden pieces, so that, in some cases, the woodwork might be completely covered. A chair and a bed of wood overlaid with ivory in this way were recovered from a tomb at Salamis in Cyprus, dated to about 800 B.C.

An “iron bed” in an ancient Near Eastern context, therefore, is surely to be understood as a bed adorned with iron.

Ok. Big deal. So it had some kind of iron overlay. But why does the Torah tell us that it could still be seen at Rabbah? Was that a place to take the kids when it was raining and they were bored? The good professor thought that the answer was simple:

At that time iron was a kind of precious metal! And Og’s bed was especially large.

The Late Bronze Age ended and the Iron Age began, according to the standard archaeological chronology, about 1200 B.C. That does not mean that before that particular time iron was unknown and after that time it was common. In the Late Bronze Age, although bronze was the common metal for tools and weapons, iron was also known. Because it was difficult to work and obtain, however, it was highly prized. Indeed, it was used in jewelry.

In a famous cuneiform letter, a Hittite king named Hattusilis III (c. 1289–1265 B.C.) replied to a request for iron from someone who may have been the king of Assyria. The Hittite king replied by saying that the iron was not available at present in the amount required, but that it would be produced later. In the meantime, he was sending one dagger-blade of iron as a gesture of good intent. That such a small amount would be adequate to establish good royal intentions indicates how highly valued iron was.

There are several important archeological examples of utensils and jewelry that contained iron as a sign of their value.

At Ugarit, on the Syrian coast, excavators found an axe from the 14th century B.C. with a bronze socket, inlaid with gold; the axe blade is of iron, a worthy complement to the precious socket. In the tomb of Tutankhamun in Egypt, who died about 1327 B.C., was a dagger with a magnificent gold hilt and sheath. Its iron blade has not rusted. A few less elaborate weapons and pieces of iron jewelry also survive from this period, and texts refer to more. Lists of treasure drawn up at various cities of the Levant include jewelry of iron and iron daggers, richly mounted like Tutankhamun’s. Even in the Middle Bronze Age (c. 1950–1550 B.C.), cuneiform tablets from Mari in Mesopotamia tell us of iron used in rings and bracelets. In southern Turkey an ivory box was unearthed from a level of the 18th century B.C. decorated with studs of gold, lapis lazuli and iron!

At a time when iron was hard to obtain, the product of a difficult technique, a bed or a throne decorated with it could be a treasure in a king’s palace, something for visitors to admire.
— Millard, Alan R. “Kings Og’s Iron Bed,” Bible Review 6.2 (1990): 16–17, 19–21

So King Og’s enormous Bed of Iron was something like the crown jewels of his kingdom. Iron was not used because of its strength. It was used because of its rarity and value.

Millard explained that this detail actually points to an early authorship of the text - long before the Iron Age. Because if the Torah only dated from the Iron Age (which began around 1,200 BCE) or later - which many Biblical scholars believe to be the case, the detail about the iron is no longer relevant. By then, everyone had iron.

Yet it would make no sense to insert this reference after iron was in common use. On the contrary, its appearance in the text can now be shown by archaeological evidence to be consistent with an early date and inconsistent with a later date.

Indeed, we can now also show from cuneiform texts that such parenthetic remarks are not uncommon and are often an integral part of an original composition. Recording apparently parenthetical details incidental to their story was a way of writing the Israelites shared with other ancient authors—and with modern ones for that matter. Then as now, pieces of local color and unnecessary knowledge can stimulate the interest of readers or hearers; it is unlikely that any greater significance should be attached to their appearance. Simply because they appear to be parenthetical is no basis for concluding that they were inserted by a later editor.

And so, from this smallest of details, Og’s Iron Bed teaches us a great deal. Not only about Og’s size, but perhaps even about the age of the Torah itself.


Want more Talmudology on giants? Click here to read about Goliath, polydactyly and hereditary gigantism.

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Talmudology on the Parsha, Massai: The Not So Dead Sea

במדבר 34:12

וְיָרַד הַגְּבוּל הַיַּרְדֵּנָה וְהָיוּ תוֹצְאֹתָיו יָם הַמֶּלַח זֹאת תִּהְיֶה לָכֶם הָאָרֶץ לִגְבֻלֹתֶיהָ סָבִיב׃

The boundary shall then descend along the Jordan and terminate at the Dead Sea.
That shall be your land as defined by its boundaries on all sides.

The Dead Sea is mentioned in the Torah several times. It first appears in Bereshit (14:3) when five kings joined together in a battle “at the Valley of Siddim, now the Dead Sea.”

כל־אֵלֶּה חָבְרוּ אֶל־עֵמֶק הַשִּׂדִּים הוּא יָם הַמֶּלַח

Later in the Bible the Dead Sea is called יָם הָעֲרָבָה and הַיָּם הַקַּדְמֹנִי, while in the Talmud it is called יַמָּא דִסְדוֹם.

The Desolate Dead Sea

In masechet Nazir, the Dead Sea is described as an ultimate place of no return. There the Talmud asks about the fate of various offerings (or money set aside to buy these offerings) that were designated to be brought to the Temple in Jerusalem, but which for one reason or another, could not in the end be donated.  Consider for example a father who declared that his son would be a nazarite, and set aside money to bring the associated Temple offerings. However, the son decided he did not want the ascetic life thank you very much, and declined to become a nazarite. What then should become of the money set aside? If the father had set aside the money specifically for the purchase of a chatas - חטאת - a sin offering - he is rather out of luck.  The Mishnah states that the money must be cast into the Dead Sea - that is, it cannot be used for any purpose. (This is because the הטאת can never be offered as a voluntary sacrifice, and since the son will not become a nazir, the money cannot be used for a voluntary sacrifice- or any other purpose.)

משנה נזיר כח, ב

היו לו מעות סתומין יפלו לנדבה מעות מפורשים דמי חטאת ילכו לים המלח

If he had set aside unspecified funds [for his son to bring as a nazir, and the son declined to follow through], they may be used for voluntary offerings. If he had set aside specified money [for a chatas sacrifice], the money is thrown into the Dead Sea...   

The Formation of the Dead Sea

The Dead Sea lies on a boundary between the Arabian tectonic plate and the Sinai sub-plate, which is part of the larger African tectonic plate. In 1996 Garfunkel and Ben-Avraham published a paper on The Structure of the Dead Sea basin. They note that the Dead Sea rift was formed when the two tectonic plates moved apart from each other, creating a hole in the middle.  The Dead Sea is one of the most saline lakes in the world, containing more than 30% of dissolved salts, mostly sodium, calcium and magnesium, potassium and bromine; it is almost ten times more saline than the oceans. The lake lies about 400m below sea level, and in  some places the lake is as deep as 300m (for those of you in the US, that is almost 1,000 feet). It is these salts that make the lake so seemingly inhospitable to life, and explain why the rabbis chose the Dead Sea as an example (perhaps the example) of the place to throw the money set aside for a sacrifice that could not be brought. Once the coins were thrown into the murky depths of the lake, they would sink into the silt, rust, and never be found. The Dead Sea is a metaphor for a place without life, which is probably why the Mishnah also rules that into it should be thrown any vessel on which there is an idolatrous images. They will simply never be found again. 

 עבודה זרה מב, ב 

המוצא כלים ועליהם צורת חמה, צורת לבנה, צורת דרקון - יוליכם לים המלח

If one finds vessels on which is the likeness of the sun, the moon or a dragon [all of which were used for idolatry], the vessels should be thrown into the Dead Sea...

The name “Dead Sea” is of relatively recent vintage. It was first introduced by Greek and Latin writers such as Pausanias (160-180 AD.) Galen (2nd century AD) and Trogus Pompeius 2nd century AD.)
— Arie Nissenbaum. Life in a Dead Sea: Fables, Allegories, and Scientific Search. BioScience 1979: 29 (3). p153.

Life in the Dead Sea

It is fascinating to note that while we refer to the lake as the Dead Sea, as we have seen, it is not called this in the Hebrew Bible or the Talmud. Rather, it is the Salt Sea - ים המלח - with no reference to anything about it being dead.  This choice turns out to have been a good one, for although the lake seems to be devoid of any life, there is life within it.  

The increased salinity and the elevated concentration of divalent ions make the Dead Sea an extreme environment that is not tolerated by most organisms. This is reflected in a generally low diversity and very low abundance of microorganisms.
— Ionescu D, Siebert C, Polerecky L, Munwes YY, Lott C, et al. (2012) Microbial and Chemical Characterization of Underwater Fresh Water Springs in the Dead Sea. PLoS ONE 7(6): e38319.

Microorganisms were first discovered in the Dead Sea in the 1930s, and since then bacteria have been isolated in both the sediment and the water, albeit at low concentrations.  However a series of dives in June 2010 revealed a complex system of freshwater springs that feed the lake, and surrounding these springs are bacterial communities with much higher densities, and much greater cell diversity, than was previously known. (You can watch a two-minute video of divers at the bottom of the Dead Sea here. It is amazing to realize that they are the first humans to see the depths of the Dead Sea).  An international team of researchers described the findings from these dives in a paper titled Microbial and Chemical Characterization of Underwater Freshwater Springs in the Dead Sea, that was published in 2012.  The colonies of cells that surround the freshwater springs are up to 100 times more dense than those found in the ambient water of the Dead Sea, and include bacteria that consume sulfides, and those that metabolize iron and nitrates. The authors conclude that the underwater system of springs that feed the Dead Sea are an "unknown source of diversity and metabolic potential."  

Graphical representation of the sequence frequency in the studied Dead Sea samples, showing major detected phyla and families of different functional groups of Bacteria. From Ionescu D, Siebert C, Polerecky L, Munwes YY, Lott C, et al. (2012) Microb…

Graphical representation of the sequence frequency in the studied Dead Sea samples, showing major detected phyla and families of different functional groups of Bacteria. From Ionescu D, Siebert C, Polerecky L, Munwes YY, Lott C, et al. (2012) Microbial and Chemical Characterization of Underwater Fresh Water Springs in the Dead Sea. PLoS ONE 7(6): e38319.

Despite these findings of life, the Dead Sea is still in trouble. Its level is dropping at the rate of about three feet per year, and its surface area is now only 600 Km2, down from over 1,000 Km2 in the 1930s.  The prophecy of Ezekiel (47:8-9) that the water of the Dead Sea would be replaced with fresh water in which great numbers of fish will live is still a long, long way off.  

יחזקאל פרק מז, ח-ט 

ויאמר אלי המים האלה יוצאים אל הגלילה הקדמונה וירדו על הערבה ובאו הימה אל הימה המוצאים ונרפאו ונרפו המים:  והיה כל נפש חיה אשר ישרץ אל כל אשר יבוא שם נחלים יחיה והיה הדגה רבה מאד כי באו שמה המים האלה וירפאו וחי כל אשר יבוא שמה הנחל

He said to me, "This water flows toward the eastern region and goes down into the Arabah, where it enters the [Dead] Sea. When it empties into the sea, the salty water there becomes fresh.Swarms of living creatures will live wherever the river flows. There will be large numbers of fish, because this water flows there and makes the salt water fresh; so where the river flows everything will live...(Ez. 47:8-9)

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Talmudology on the Parsha, Mattot: Books Named for Women

במדבר 32:41

וְיָאִיר בֶּן־מְנַשֶּׁה הָלַךְ וַיִּלְכֹּד אֶת־חַותֵיהֶם וַיִּקְרָא אֶתְהֶן חַות יָאִיר׃

Jair son of Manasseh went and captured their villages, which he renamed Chavot Yair.

A Book Named for Bubbe

Yair Chaim Bachrach (?1639-1702) was an important rabbinic figure who lived for most of his life in Worms and Mainz. He had married Eva, the granddaughter of the Maharal of Prague, but he was also deeply influenced by his own grandparents, especially his paternal grandmother Chava. In fact, Chava had such an influence over Rabbi Yair that he named his book after her.

Chavot Yair, introduction.

Aside from this, there is another reason that I chose to call this [book Chavot Yair]. It is in memory of my pious grandmother Chava, the mother of my late father Shimon, and this is most fitting…For my grandmother was the granddaughter of the Gaon Rabbi Leib Prague…She was very learned and unique among her peers in her knowledge of Torah, she learned Midrash Rabbah which had no commentaries using her own approach and insights. And in many places she improved on the commentary [to the Midrash Rabbah called] Matnat Kehuna [by Yissachar Katz], and her own commentary was such that anyone who read it would understand that hers was superior. In many places I have quoted her insights in her name, for example in my commentary on the Machzor and on selichot and on Rashi’s commentary on the Bible…in many places the leading figures of our generation could not provide an explanation, until she came along and provided a solution.

She had outstanding penmanship and used beautiful language. She was also widely recognized for her piety, and it is simply not possible to describe all of her qualities. She was widowed at the age of only thirty…in 1650 she moved with my father to Worms when he became rabbi there, and stayed with him for about a year. Then she tried to travel to Israel, but she died in Sophia and the respect that was given to her there after her death was remarkable, for she was well known there and had an impeccable reputation…it is also impossible to overstate the respect that her two brothers showed to their sister.

As Zeev Zuckerman notes in his impressive five volume Otzar Piloas Hatorah (best described as a sort of Ripley’s Believe It or Not on the Torah,) there are other examples of rabbinic works named for women. Rabbi Yechezkel Landau (1713-1793) who served as chief rabbi of Prague, wrote a commentary on Pesachim called צל׳ח – ציון לנפש חיה. It was named for his mother, Chaya, as he described in his introduction.

Seven years ago, I was worthy to call my work נודע ביהודה (Nodah B’yehudah, lit. Known in Judah), named for my father…and now I am able to fulfil my vow for “my mother in wisdom,” my modest and righteous mother. I am calling this new book [ציון לנפש חיה “A sign for the soul of Chaya”], to remember her pure soul.

A Book named for Mom

Megilat Esther - the biblical book - is of course named for a woman. But there is another Megilat Esther named for another Esther. It was written by Yizhak DeLion (c.1495-c.1545) and is a commentary on Maimonides’ Sefer Hamitzvot. DeLion gave two reasons for the book’s name. First, it was a defence of Maimonides from criticisms of his work made by Nachmanides. The author had uncovered hidden reasoning in Maimonides, and to emphasise this, the name of the book is a play on the root ס–ת–ר meaning hidden.

The second reason was somewhat more personal.

It is to allow me to remember each and every day of my life the sadness of having lost my wise and saintly mother, Esther, may her sould be in Eden. For while I was busy writing this and another book, she was taken from me and called before the King of Kings, the Holy One, Bleesed be He. So I decided to call this book Megillat Esther for these two reasons.

הקדמא מגילת אסתר על ספר המצוות

וקראתי שם זה הספר מגלת אסתר. וזה לשתי סבות. האחת כי בו יגלו ויתפרסמו הסתר סברות הרב בי"ד שרשיו אשר יסד בבואו למנות המצות. והשנית לזכר לי כל ימי עולם עניי ויגוני מפטירת הצדקת המשכלת הורתי מרת אסתר נפשה עדן, כי בהיותי טרוד בעיון שני ספרים אלה לוקחה מעמי ונקראה לבא אל המלך מלך מלכי המלכים הקב"ה, לכן אמרתי לקרות לחבורי זה מגלת אסתר לשתי אלה הכונות אשר בזה השם נכללות

The introduction to many early Hebrew books are gems that should be more widely read. They introduce us to the author’s methods and goals, and often tell us about people who would have otherwise been forgotten. And so we say to Chava, grandmother of Yair Chaim Bachrach, Chaya, mother of Yechezkel Landau of Prague and Esther, mother of Yizhak DeLion, you are not forgotten, and your memory lives on through the scholarship of your children.

יהי זכרן ברוך

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Bava Basra 34 ~ Might Makes Right

Bava Basra is full of the laws relating to property and rights of ownership. On this page, the Talmud addresses a case in which two people claim ownership of a property, but neither has evidence nor presumptive ownership. What should be done? Rav Nachman offers an answer, which is not really an answer at all.

בבא בתרא לד, ב

זֶה אוֹמֵר: ״שֶׁל אֲבוֹתַי״, וְזֶה אוֹמֵר: ״שֶׁל אֲבוֹתַי״ – אָמַר רַב נַחְמָן: כֹּל דְּאַלִּים גָּבַר

There was an incident where two people dispute the ownership of property. This one says: It belonged to my ancestors and I inherited it from them, and that one says: It belonged to my ancestors and I inherited it from them. Rav Nachman said: Whoever is stronger prevails.

Last week, on the way into shul, I asked a friend how he translated כֹּל דְּאַלִּים גָּבַר. His answer: “The law of the Jungle.” As we shall see, that’s a pretty good translation, but this is of course entirely unsatisfactory from a legal perspective. Didn’t we learn in kindergarten that might does not make right?? How might we understand Rav Nachman’s rather unfair ruling?

For some help, let’s turn to Joseph David’s 2006 paper The One Who Is More Violent Prevails- Law and Violence from a Talmudic Legal Perspective, published in the Canadian Journal of Law and Jurisprudence.

The Duel and the Ordeal

He begins by pointing out that in many societies, the duel was recognized as a legal procedure. It probably began with “Germanic tribes, the Celts and the Francs in the early medieval period, from which point it was extended to the entire continent during mid and late medieval period.” Why would a duel be seen as a fair way to settle a legal dispute? Becuase, argues David, the outcome of the duel was seen as divinely adjudicated. It was judicium De, “for the deity's power was understood not only as a metaphysical feature, but rather as expressed through interventions applying law and justice in earthly life.” It was this belief that led to the trial by ordeal (think Parshat Sotah).

The similarity of the duel and the ordeal is not coincidental, and their justification mechanism makes them similar legal procedures. The duel as well as the ordeal placed the accused before a real danger whose outcome signified innocence or guilt, and in both procedures, the results were considered the deity's verdict. Therefore victory in duel, and survival of an ordeal, were interpreted as indication of heavenly adjudication and not as an arbitrary result.

From a judicial standpoint, the mechanism legitimizing the duel as a legal procedure in effect expresses a way of dealing with the phenomenon of legal uncertainty, and a perspective that views its existence as a moment in which the case exceeds the bounds of the law and is transferred for adjudication via an alternative procedure.
— Joseph David. The One Who Is More Violent Prevails- Law and Violence from a Talmudic Legal Perspective. 19 Can. J. Law & Jurisprudence 2006: 385.

So when ordinary law has reached an impasse, heavenly law takes over. And there are many cases in the Talmud when a person is exempt from human judgment but liable to heavenly judgment - “ פָּטוּר מִדִּינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם.”

בּוֹר שֶׁהוּא קָרוֹב לָאַמָּה וְכוּ׳: אִיתְּמַר: בְּנֵי נַהֲרָא; רַב אָמַר: תַּתָּאֵי שָׁתוּ מַיָּא בְּרֵישָׁא, וּשְׁמוּאֵל אֲמַר: עִילָּאֵי שָׁתוּ מַיָּא בְּרֵישָׁא
The mishna teaches that the Sages enacted that the pit that is nearest to the irrigation channel that supplies water to several pits or fields is filled first on account of the ways of peace. It was stated that the amora’im disagree about the following issue: When people own fields along a river and they irrigate their fields with water that is redirected from it, who among them enjoys first rights to irrigate his field? Rav said: The owners of the lowermost fields drink the water, i.e., irrigate their fields, first. And Shmuel said: The owners of the uppermost fields drink the water first

אָמַר רַב הוּנָא בַּר תַּחְלִיפָא: הַשְׁתָּא דְּלָא אִיתְּמַר הִלְכְתָא לָא כְּמָר וְלָא כְּמָר, כֹּל דְּאַלִּים גָּבַר

Rav Huna bar Taḥalifa said: Now that the halakha was stated neither in accordance with the opinion of this Sage, Rav, nor in accordance with the opinion of that Sage, Shmuel, whoever is stronger prevails...
— T. Bavli Gittin 60b

The MEdieval Commentaries

Although the legal verdict of כל דאלים גבר appears rarely in the Talmud, it is more fully explained in the later commentators. “Rabbenu Chananel (d. c. 1056, cited in חדושי הרמבן על ש׳ס, בבא מציעא 2א ) distinguished between two distinct situations of conflicting claims of full ownership in which court is helpless-a situation where the conflicting sides both occupy the subject and thus leaving it in their hands means encouraging the violent and aggressive struggle between the two, and a situation where they do not have any possession and so their conflict bears a more competitive character….R. Hananel is limited only to struggles classified as fair competition and not for a state-of-affairs where the point of departure-'they are both occupying it'-invites aggression.”

Rabbenu Asher ben Yechiel (c.1250-1327) known as the Rosh took the opposite approach. He believes that is means the status quo is kept. Whoever is in possession at the time of the dispute keeps the property - his claim is “stronger.” כל דאלים גבר is “a quasi- temporal means of determining possession until relevant proofs are brought to court and the case is solved according to ordinary evidential procedures.” His position is a reflection of the commentaries on the Talmud that “seek to rationalize כל דאלים גבר as a norm that is not an alternative to the law, threatening its power and authority, but rather ultimately, one that contributes to the preservation of its status and to the strengthening of its authority.” In the end, it prevents the court from making a potentially erroneous judgement, and endangering its reputation when it would have to reverse its ruling should later evidence be discovered.

ראש, בבא בתרא לד, ב

זה אומר של אבותי וזה אומר של אבותי אמר רב נחמן כל דאלים גבר. האי כל דאלים גבר דינא הוא דכל מי שגבר ידו בפעם ראשונה הוא שלו עד שיביא חבירו ראיה וכל זמן שלא יביא ראיה

In contrast, Maimonides rules that it is a question of physical strength;

משנה תורה, הלכות טוען ונטען ט״ו:ד׳

שְׁנַיִם שֶׁהָיוּ עוֹרְרִין עַל הַשָּׂדֶה זֶה אוֹמֵר שֶׁלִּי וְזֶה אוֹמֵר שֶׁלִּי וְאֵין לְאֶחָד מֵהֶן רְאָיָה. אוֹ שֶׁהֵבִיא כָּל אֶחָד מֵהֶם עֵדִים שֶׁהִיא שֶׁלּוֹ אוֹ שֶׁל אֲבוֹתָיו אוֹ שֶׁהֵבִיא כָּל אֶחָד מִשְּׁנֵיהֶם עֵדִים שֶׁאֲכָלָהּ שְׁנֵי חֲזָקָה וְהַשָּׁנִים שֶׁהֵעִידוּ בָּהֶן אֵלּוּ הֵן הַשָּׁנִים עַצְמָן שֶׁהֵעִידוּ בָּהֶן אֵלּוּ. מַנִּיחִין אוֹתָהּ בִּידֵיהֶן וְכָל הַמִּתְגַּבֵּר יֵרֵד בָּהּ וְיִהְיֶה הָאַחֵר מוֹצִיא מִיָּדוֹ וְעָלָיו הָרְאָיָה. וְאִם בָּא שְׁלִישִׁי וְתָקַף עֲלֵיהֶן וְיָרַד לְתוֹכָהּ מְסַלְּקִין אוֹתוֹ מִמֶּנָּה

The following laws apply when two people are disputing the ownership of a field, each claiming it to be his own, but neither has proof of his claim. These same laws apply when both claimants bring witnesses who testify that the field belongs to them or to their parents, or when each of them brings witnesses who testify that the claimants benefited from the field for the time necessary to establish a claim of ownership, and both pairs of witnesses testify about exactly the same time period. We leave the field in their hands, and whoever overcomes the other one assumes possession…

And the Shulchan Aruch takes a similar approach:

שולחן ערוך, חושן משפט קמ״ו:כ״ב

ב' שהיו עוררים על שדה זה אומר שלי וזה אומר שלי ואין לאחד מהם ראיה או שהביא כל אחד מהם עדים שהוא שלו או של אבותיו או שהביא כל א' משניהם עדים שאכלה שני חזקה והשנים שהעידו בהם אלו הם השנים עצמם שהעידו בהם אלו אם היה א' מחזיק בה מקודם תשאר בידו ואם לא היה אחד מחזיק בה מניחין אותה בידיהם על המתגבר וכל המתגבר ירד בה ויהיה האחד מוציא מידו ועליו הראיה ואם בא שלישי ותקף עליהם וירד לתוכה מסלקין אותו ממנה:

The late Rabbi Adin Steinzaltz agrees. whoever has the muscle to take (and keep) the property becomes the legal owner:

כל דאלים גבר [החזק יגבר] ויקח, שאין בית הדין מתערב בענין זה

Saving the Court from Error

In the sixteenth century commentaries collected by Bezalel Ashkenazi (c. 1520–1591) known as the Shittah Mekubetzet, we find an new idea: כל דאלים גבר is a means of protecting the reputation of the court:

שהטעם שאמר כל דאלים גבר מפני שאין בית דין זקוקים ליזקק לדינם כיון דליכא דררא דממונא לתרווייהו וליכא למיקם עלה דמילתא וכיון שכן נוח להניחם לעשות כרצונם ולא נעשה אנו דין שיכול לבוא לידי טעות הילכך כל מי שמתגבר ידו בכל פעם הרי היא ברשותו עד שתגבר יד האחד או בזרוע או בראיה

The reason for the ruling כל דאלים גבר is that the court is not required to address their case for there is no loss of money for both of them and no urge to reach a decision. Accordingly it is comfortable to leave them to do what they wish and we should not give an erroneous verdict. Therefore the one who is more violent each time owns it, until the other one will overpower him, either by arm or by evidence.

There is much subtlety to David’s discussion, and much more to be said on the topic. His observation as כל דאלים גבר as a means of preserving the reputation of the court is fascinating. But it raises many further questions - why is this need manifest in so few cases? As usual, צריך עיון גדול.

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