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Monday, February 12, 2007

Mishpatim, Shemos 23:1. Lo sisa sheima shov - Ex Parte Communications and First Impressions.

Rashi here brings that this pasuk is the source of the the issur for a dayan to hear from a litigant when the other party is not present. Ralbag– the result of this communication, unchallenged by the opposite party, will be to create in the dayan’s mind the impression that his version is true, and the other side will have the burden of proof. Lawyers are familiar with this as the prohibition of “ex parte communication.” In fact, several lawyers I know have gotten into trouble for precisely this behavior.

The Dayan knows that everyone is lying, or hiding the truth, or, at best, is biased, and there are two sides, but the first version he hears makes an impression.  Once the impression is made, the other side will have the burden of overcoming the first impression. The same is true with everything we hear or learn, it makes an impression, and it’s hard to change- kivan d'al, al. As the Alter of Kelm said, the only "negius" that is impossible to eliminate completely is that of "muskol rishon" - first impression. This is because it is protected by both atzlus and gaivah, mental laziness and pride - two obstacles, each of which is formidable in its own right. (Last sentence not quoted from the Alter.)

The words are similar to those at Har Sinai– Lo sisa es sheim Hashem Elokecha lashav and Lo sisa sheima shav. Sisa and Shov both mean to carry in vain. Here, the vanity is that it becomes a barrier to other information.  The Torah is telling us “don’t let what you know be an impediment for what you still need to learn.”

As an introduction, I would like to tell a few stories about how hard it is to admit error, or to change your mind after a first impression.

There was once an apikorus who lay dying. Suddenly, he called out that they should summon the Rov, because he wanted to do tshuva. His students, gathered around his bed, were shocked. Professor, you have been an apikores your whole life, you made your reputation as an apikores– you’re a kofer b’ikker! What do you mean you want to do tshuva! He answered, “Adderabba! The Gemora says resho’im afilu ahl pischo shel gehenom einom chozrim bitesuva– Dos iz eich falsh.” (On the contrary! The Gemora says that the wicked refuse to repent even when they stand at the gates of Hell, and I say that this, too, is false.)

Chanania ben Azor, claimed to be a prophet and contradicted Yirmiahu’s dire prophecies by saying everything would be fine, and then Yirmiahu told him he would die before the end of the year for his false nevu’ah. As he lay dying before Rosh Hashonnoh he told his family to delay his burial till after the new year began so his death wouldn’t show he was wrong.

In arguments between Beis Shammai and Beis Hillel, we almost always pasken like Beis Hillel, because Beis Hillel considered the opinion of Beis Shammai before making a final halachic decision, while Beis Shammai ignored the opinions of Beis Hillel. In fact, the Mishneh in Eidios says that Hillel and Shammai themselves only argued without coming to an agreement in 3 places; in all of those three cases, who do we pasken like? We pasken neither like Beis Hillel nor like Beis Shammai. This is because the fact that they couldn’t ultimately agree indicated that neither was right, because they always did consider the other side’s opinion. If either had been right, the other side would have seen that, and would have retracted their view. The lesson of Shammai and Hillel, which was given over to the students of Hillel but not to those of Shammai, is that Conviction does not have to create mental paralysis.

This is true for everyone, not only true among jurists and intellectuals: People who daven for Amud, you will notice that they often pronounce the first three brochos differently than the rest. This is because they changed schools or got a different sort of rebbi. Think about how strange that is! They pronounce the first three brochos differently than other parts of davenning, because of the specific style of the teacher they had in first grade! That’s how they were taught, that’s the way it is. They are stuck forever, like a bug in amber.

In hashkofo also; most people have what they were taught when they were in grade school. This might be good pedagogically for ten year olds, but this is not so nice for adults. Most people only open their minds when they are traumatized. There is a joke in my family about a relative of ours– he has a mind like a steel trap. Once an idea wanders into his head, it snaps shut and you need a crowbar to open it.

I respect Dr. Anthony Flew. An atheist since age 15, professor of philosophy at Oxford, at age 81 decided that the big bang and the extreme complexity of self-reproducing life indicates intelligent design. (Or, as he later watered it down, “would be confirmatory to a faith in a creator.”)

I saw a reference to a paper published in 2005 by a man named Lewandowsky in Psychological Science. He says that “People build mental models. By the time they receive a retraction, the original misinformation has already become an integral part of that mental model, or world view, and disregarding it would leave the world view a shambles. People continue to rely on misinformation even if they demonstrably remember and understand subsequent retraction.” (Quoted in Wall Street Journal of February 4 2005 in a column by Sharon Begley.)

An excellent example of a very similar concept is the story involving Rebbitzen Sheila Feinstein. She asked someone to get her husband, HoRav Reuven Feinstein, from the dais at some event, and the person said that he knew that R’ Reuven and his brother R’ Dovid were on the dais, but how will he know which is which? The Rebitzen said that R’ Reuven has the black beard and R’ Dovid has the brown beard. The man came back a few minutes later and said, sorry, Rebbitzen, they both have grey beards! The Shviger simply didn’t realize it. She still thought of them as they were years ago, and her mental image trumped the reality.


The lesson is, we need to keep an open mind. Don’t suffer from arrested spiritual development. Ask questions, don’t stop until you find an answer that satisfies you. But even when you are satisfied, don’t be self-satisfied or smug, because the Torah warns us to keep an open mind, lo siso sheima shov. Take that Koheles off the shelf and see if Shlomo Hamelech has anything to say to you.


(See on this topic R Chaim Shmuelevitz page 198. I later found out that Malcolm Gladwell wrote a book, “Blink,” on exactly this topic. I don't think he brings down the Rashi or R' Chaim Shmuelevitz.)

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