Prologue: It is one of the most dramatic scenes in the book of Berashis.
Standing in front of the brothers, the Egyptian viceroy Tzafnas Paneiach reveals that he is none other than their long lost and oft thought dead brother Yosef. In one of the most interesting comments, Yosef asks them “HaOd Avi Chai – Is my father still alive”? Having heard from them about how his actions might kill the old man, why did he again ask as to whether Yaakov was alive? To the brother’s knowledge nothing had changed in the moments since Yehuda’s plea?
The late great Lubliner Rav, Rav Meir Shapiro ztl. (founder of the Daf Yomi movement) offered a profound insight. He noted that Yosef heard his brothers words and the impactful phrase “Avdeicha Avi” (Your servant our father) from them multiple times. He was troubled that these words did not crush him. He feared that his love and admiration for Yaakov had been squelched through the hardening of Egyptian life and it bothered him. It was to this that Yosef asked “HaOd Avi Chai” – that is to say – is my father still alive within me. Yosef was noting that he could forgive everything else that had befallen him as a result of the brothers’ action but he could not allow the extinguishing of the father-son bond from his heart through the silence during his father’s embarrassment.
They say silence is golden. Sometimes it is a great thing. Other times, we need to speak out. This week’s chaburah examines the topic of silence, it is entitled:
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The Right to Remain Silent
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(Based upon Oros Hamishpat p. 209)
The Miranda rights occupy a special place in American law. The right to remain silent is one of the most important rules that free citizens are afforded in a democracy. But is it always a “right” right?
Sticks and Stones
The Mishna in Kesubos (14b) notes a difference among Tannaim about one who is silent during a disagreement. There, the Tannaim discuss one whose lineage is challenged during a fight. The Tanna Kama feels that one whose lineage is challenged and does not respond must be agreeing. As a result, we too, must be concerned when the person insulted wants to marry. Though, it should be noted that there are other Tannaim who argue.
The Rambam (Hil. Issurei Biah 19:22) is concerned about the position of the Tanna Kamma and therefore does not allow one who is silent in the face of slanderous attacks to marry unless his lineage is checked. The Raavad disagrees. He argues that silence as an indicator of acceptance of truth was only applicable in the olden days when people who slandered others would be punished severely. Today, he notes, one who is silent about a fight is praiseworthy as he is avoiding conflict and is not indicating any Psul in his lineage. Rema (Even HaEzer 2:4) cites this position of the Raavad as Halachically applicable. Similarly, Ramban and Rashba (Kesubos 14b) note that a family that has no assertions against it shall not have assertions against it simply because someone did not respond to name calling. Actually, the silence is indicative of a higher pedigree and one worthy of praise.
In Court
Silence in Beis Din is a different matter entirely. The Talmud (Kesubos 94a) notes that there is a Halacha of Shiska K”Hodaah (silence is like an admission). There, the Gemara discusses a case wherein a partner who was in the city when his partner lost a case cannot complain that he had more proof to bring on behalf of the partnership because his presence in the city and silence on the court matter is like an admission of guilt.
Rema (Choshen Mishpat 81:2) cites a case wherein a tutoring deal was struck in the presence of a student’s father. The father’s silence, argues the Rema, is akin to the acceptance of the tutoring arrangement requiring him to pay for it. Though it should be noted that Ketzos HaChoshen (81:6) limits this blanket issue of Shisika K’hodaah in a major way.
The Rosh (Shut Harosh 107:6) discusses the “right to remain silent’ in the face of Dayanim who ask questions for the sake of clarity. There, the ‘right to remain silent’ could prove detrimental as it casts suspicion (in the opinion of the Rosh) on the one refusing to be examined by the judges.
On the other hand, the Shulchan Aruch (Choshen Mishpat 17:9) notes that a Dayan may assist one who, due to the pressure of the case, might be missing an important angle to his case due to tongue-tied silence, based on the principle of “Psach Peecha L”Ileim” though one must be careful how to do so and not be a “lawyer.” Still, we see that silence is certainly not an admission in that case.
In Shomayim
The one place where it is abundantly clear that silence is not a good route to choose, is in the heavenly court. For all is revealed there anyhow. The Rambam (Hil. Teshuva 1:2) clearly notes that he who speaks out more vidui is praiseworthy. Indeed, the Ran (Vidui D’Rabbeinu Nissim) notes that there is a strong contrast between regular court and the heavenly one. For in regular court, the denier is correct but in Hashem’s court, woe to he who denies but to the one who admits his transgressions, Hashem shows his mercy.
Silence may be a right, but knowing when and where it is best applied is the best policy.
