The Ancient, Rabbinic Remedy for Dealing with Trickle-Truthers

Yonah Lavery-Yisraeli

Kapores-Schlagen | Hermann Junker (c. 1925)

Trickle-truthing is a term for when someone responds to an allegation with a partial admission, and slowly increases the amount of truth in his or her response over time. It seems strange that what is surely a venerable behavior has only recently been named in English. Its Hebrew term, modeh bemiqtsat, is ancient, as is the Rabbinic remedy for dealing with it. The remedy, turning on an insight that the trickle-truther is covertly pursuing reconciliation (though fleeing the unmanageable-seeming aspects of the conflict), is to compel him or her to take a dramatic public oath that the partial statement is completely true: “True by our standards, not by your own rationalizations,” the judges caution. Suddenly, the defendant is no longer choosing between confrontation and delay, but between two equally stressful confrontations. Under these changed circumstances, the easiest method of retreat is precisely what advances the case toward a useful solution: to back out of the oath process, admit the full truth, and disclose whatever difficulties made taking responsibility initially seem impossible.

A tidy solution to a human mess is rare, all the more so when it flows with our irritable instinct to crack down on avoidance. Perhaps the rabbinic remedy was too good: its cut was so clean that Jewish law tried it on an increasing number of situations, eager to see what else it would work on. Will it chop through a situation where the defendant denies everything, but witnesses testify to part of the claim? They found that it did. What about when both parties verbally deny each other’s claims, but their behavior strongly indicates qualified concession? Chop!

Now we enter trickier territory. What if the partial admission is to a sum of money that was grabbed straight from the other party’s hands, and comes with a fierce assertion of “It was mine, anyway”? Where does that register on the avoidance-chutzpah spectrum? What if the defendant denies everything, but part of the sum owing has been awarded by the court as part of a settlement for damages incurred by physical assault? Will forcing the defendant to choose between two stressful options still progress the case toward resolution? If pondering these questions causes a rising desire to flee the entire conversation, note that like the defendant, we too are cornered. Conflict comes to us unbidden, and our desire to take the easiest way out often only leads to an even more baffling mess. It is worth thinking carefully about which sort of situation responds well to pressure and which to backing off, before the stress of a real dispute clouds our judgment with adrenaline.

I would like to introduce you to two voices on the subject. The first is R. Shabbetai HaKohen, a 17th-century commentator on the Shulhan Arukh (hereafter known by his rabbinic nickname, the Sha”kh). If he were a Medieval knight, his banner would depict a young man: that is, himself. He has an indomitable sense of initiative and confidence. Lore has it he had a magic quill which wrote by itself, which is easy to believe as we read his answer to a question, then turn the page to continue, then with growing apprehension keep turning pages. “There is no need at all to answer at length,” he writes in Toqfo Kohen, his analysis of a famous section of the Babylonian Talmud. “But I will.”

The second is R. Aryeh Leib Heller, a commentator arriving some century-plus later to the field of the Shulhan Arukh (hereafter known by his rabbinic nickname, Qetsot). I cannot imagine for you his banner, for he simply would not be a Medieval knight. He would be a tracker, carefully examining every overturned pebble by its indentation in the earth. He pieces together his observations into a story that brings to life the rabbinic battles of the past, and excavates them again to discover what they mean. His process of turning observation into vision is no less exhilarating for being meticulous.

On the question of whether we should apply or release pressure in messy situations, perhaps the reader can already intuit what positions will be taken by Sha”kh and Qetsot. I can tell you that you are right: Sha”kh leans in, Qetsot leans out. But it is fascinating to see that they agree on what is at stake in this conversation: does getting closer to an experience get us closer to making a wise decision? Or are truth and justice elements which do not necessarily align, and perhaps even compete?

Imagine, for a minute, that you have been asked to help two friends in crisis. Party A says she lent $100 to Party B for 30 days. The deadline’s up and now she needs it back. Party B says she only owes $50. Just as you begin sliding her into the “potential trickletruther” category, Party B throws in a twist: part of the money has already been paid back, using illegal funds (say, from backalley loansharking). She reports this in an impossibly matter-of-fact manner, but you cannot imagine she is completely unaware of the illegitimacy of her actions – is she? What levers exist to pull her into an honest, helpful agreement with Party A?

Fortunately, you have Sha”kh and Qetsot sitting on your judicial panel, ready to advise you.  They are in agreement that the current case is similar to that of the money-snatcher and the brawler-borrower mentioned above, in that some kind of boundary broach has occurred between you and the parties. In all three examples, something about one of the party’s behaviour has brought him or her more directly under the scrutiny of the judge. Although previously the judge was responding to both parties, in cases involving “trickle-truther with a twist,” judicial attention by necessity has become concentrated on one person. In the case before you now, Party B’s claims require redoubled assessment; perhaps she is even daring you to accept the unacceptable in the name of smoothing over her relationship with Party A. However, Sha”kh and Qetsot disagree about whether this troubled boundary constitutes a problem or an opportunity.

Sha”kh would say that rather than losing distance, you have gained closeness. “How could anyone think that [direct] processing by the court could be worse than its [inherently proximate] processing of witness testimony?” he wonders. Here he touches on something everyone has felt when listening to competing stories: if only we had been there, instead of having to rely on second-hand accounts! Direct observation has the power to sidestep questions of trustworthiness and to evaporate doubt. True, it is impossible to travel back in time. But sometimes we catch enough directness when one of the parties of the conflict stops merely relating what happened, and starts displaying some of the dysfunction that played a role in the situation. Although it can be alarming when professional demeanor slips, it can also be immensely clarifying. For example, it might seem unclear what really happened behind closed doors until one party violently rages in a manner we can easily identify as part of a known pattern of abuse. Though we might still lack forensic certainty as to who was responsible, we might suddenly feel empowered to bring pressure down on the enraged party to see what will result. Sha”kh is thinking along similar lines when he argues that in situations where the court engages directly with part of the problem, rather than with reports of the problem, the court has the power to bear down on the defendant and compel him or her to take an oath. The key, for Sha”kh, is determining whether the court’s observation causes “knowing with clarity.” For him, it is knowing which empowers action, and action which resolves conflict.

What is beautiful about Sha”kh’s approach is how his formal argumentation mirrors the rising tide of initiative in anyone who listens to an argument. A passive, evaluative stage may be experienced as nothing more than hesitation. The sudden uncovering of one party’s inconsistency or questionable behavior produces an inner power surge, a sense of “aha!” which turns the evaluator-hesitator into an actor who may compel response. Further, Sha”kh is oddly congruent with the current cultural moment. Ours is a society which prizes authenticity: the eyewitness account, or even better, the lived experience. Perhaps such priorities flow naturally from increasingly cynical views of others’ motivations and our hyperawareness of human fallibility.

Before we pounce, however, Qetsot’s advice is tapping on our shoulder. And it is precisely because Qetsot seeks to pull back on the momentum of our cultural impulses that his voice is especially important for us to hear. Tracking Sha”kh’s argument, Qetsot has questions. What, exactly, do we “know with clarity”? He is right that to be flooded with an inner sense of pattern-recognition is not the same as possessing decisive new information. Further, to what end do we exercise power? Although it can be exhilarating to swoop down on wrongdoers, Qetsot notes that in our source texts in the Talmud, trickle-truthers have not in fact been found guilty, and the oath is not our way of punishing them by ordeal. Rather, the oath is a way to clarify a situation which has become difficult to read.

To illustrate, he describes a case that might particularly be hard on our patience: where the plaintiff claims a certain amount, and the defendant responds, “Half of that I know I don’t owe, and about the other half, I don’t know.” Surely “I don’t know” is the opening play made by every cringing thief. But Qetsot points out that we do not ask this defendant to swear about the entirety of the claim—only about the portion he or she claims not to owe. In lieu of proof to the contrary, the court accepts the defendant’s flat denial of the remaining portion. This, he notes, is as much a finding for the defendant as it is for the plaintiff. The effectiveness of the rabbinic trickle-truth solution is not that weaponizes our triggered suspicions in one direction, but that it harnesses them toward a balanced resolution.

In other words, what we are doing as observers is not “knowing with clarity,” and is not akin to witness testimony—let alone better than witness testimony, as Sha”kh alleges. Rather, the court is clarifying (בירור). So as we lunge at Party B, Qetsot is pulling us back, advising that though we have a responsibility to push both parties to explain themselves, there is a limit to how meaningful games of “gotcha” can be without corresponding proof. If a sudden wild insight flares up, we should make good use of it and seek additional evidence. Meaning, he would add, the insight does not in and of itself constitute evidence. Perhaps Qetsotic caution can serve as a brake on the current proclivity for leaping on certain turns of phrase and fragments of behavior, considering them clear give-aways that a person fits a suspicious pattern, and even worse, considering ourselves relieved of any further responsibility to investigate with caution.

Let us grant a situation in which no new evidence emerges. What, then, would Qetsot have us do, when a complicated familiarity has lead to uncertainty? He defends a solution advocated centuries prior by Ramba”m: to dismiss the parties, with the slim guardrail of having the defendant formally affirm his or her nonliability. In terms of actual outcome, this solution is actually all Qetsot’s own, as in the days of Ramba”m, a dismissal from the rabbinic court meant that parties were returned to local, less formal systems of arbitration – a neighborhood elder, perhaps. In Qetsot’s time and place, when judicial folkways were attenuated, dismissal amounts to an intriguing act of wu wei. What will happen to our conflict in the wake of our involvement? Is this a refreshing reminder that people are often capable of figuring out problems on their own, and that it is better for authorities to refrain from meddling? Or have we already seen warning signs from Party B that destructive tendencies are likely to persist, perhaps even escalate?

These questions point to why it would be a disservice to the conversation between Sha”kh and Qetsot to portray it as a battle between momentum and wisdom. Yes, it is true that we are too credulous of direct or lived experience, too blinkered in our pursuit of authentic perception. Qetsot prompts us to consider that distance does not rob us, but teaches us. We are freer to pick up on nuance and to refine the questions we have about a given situation and our potential role in it. But it is also possible to overbalance toward hesitation. And a graver danger exists: to be so frightened of the abuse of power that we fail to exercise it when needed. Emphasizing humility and sophistication, we may hide from the fact that we interrogate our knowledge and abilities in order to avoid wielding them in service. Because avoidance keeps our hands clean, we may never receive the direct feedback we would need to hold us accountable. We may become, indeed, like trickle-truthers ourselves.

The delight of learning Jewish law is that the process does not simplistically ask us who is right and who is wrong. A Jew does not have to open one book to read Sha”kh, and another to read Qetsot. Both sit on the same page of the Shulhan Arukh, heads together in deep discussion. To take a pair of scissors to the book would be an unforgivable amputation. At the same time, to force the two into reflexive synthesis would be like defanging the guard dogs of our minds.

Another option exists. We can open ourselves to the full, difficult truth of what both are expressing, and accept that there is no path forward which does not carry a cost—not even recusal. Traditionally, a Rabbinic court consists of three sitting judges. Call them Sha”kh, Qetsot, and you yourself. When you find yourself in a situation of blurry alarm, when you are beginning to piece together patterns of behavior but feel a disturbing lack of evidence, you can let these voices offer their perspectives in full depth. And as we learn from their positions, we can learn, too, from their approaches. If we brace ourselves for mental contact with every aspect of a problem, we incorporate the wild, knightly energy of Sha”kh. And when we simultaneously allow the traces of nuance in that problem to show themselves and tell their own story, without imposing on them a narrative of our own invention, we incorporate the keen ranger’s eye of Qetsot. The key is to allow complication to flow in full chaotic force, without fearfully reaching for the tap.

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Rabbi Yonah Lavery-Yisraeli learns and teaches at Yeshivat HaHakshava. Currently living in Queens, NYC, Lavery-Yisraeli is a writer, a Senior Editor at Marginalia, and an internationally exhibited visual artist. She can be reached at yonah.lavery@gmail.com.