"Crime doesn’t pay" is a nice moral message but not a very practical one. Most criminals, especially those who commit petty crime, get to enjoy their ill-gotten gains. While every once in a while some white-collar criminal is convicted, most will never be detected – provided they do not become too greedy. A little unreported income here, a little exaggeration at customs and one should be home free. The reason the underground economy is so big is because those who participate know their chances of being caught are small indeed. While sinful it is understandable why someone would want to cut legal corners to make a few extra dollars. Besides basic human nature and the almost insatiable appetite for money, common justifications include "everyone else does it", "the laws are not really fair", "the government is corrupt", "is wasteful", and on and on it goes. While deep down many understand these are weak justifications, we tend not to dig too deep.
Yet tell someone that even if they avoid detection they will not be able to enjoy their gains and their moral sense will be rekindled. Why sin if there is no benefit? The presumption that ein adam choteh vlo lo, “a person does not sin if the benefit does not go to him” (Bava Metzia 5b) is a feature of human nature and hence a legal principle.
“There was a shepherd who every day lent his flock out in the presence of witnesses.” (Bava Metzia 5a) The use of witnesses is a highly recommended Talmudic precautionary measure whenever humans enter into a business transaction[1]. While ignoring this piece of advice may have no ill effects 99% of the time, it is the 1% that our Sages wished to avoid.
“One day he lent him without witnesses and in the end he [the borrower] said this never happened.” Fortunately for the lender “two witnesses came forward to say he ate two of them.” That the borrower must pay for these two flocks is not in dispute. What is unclear is what to do regarding the other flock, which the borrower has denied borrowing and for which there are no witnesses.
Under normal circumstances when a party denies part of a claim that party would have to take an oath to substantiate the denial. If they refuse to do so they would have to pay the disputed amount. However in our case the borrower has been shown to be a liar and thus we do not allow him to take an oath as he just might lie under oath.
In a rather startling generalization the Gemara questions the need for evidence that the borrowing shepherd is a liar. After all a “typical shepherd is invalidated” from giving testimony or even swearing an oath. As we have often noted it is not by chance that Abraham, Moshe and David were all chosen by G-d after demonstrating impeccable honesty as shepherds, not allowing their sheep to graze in the field of others. The assumption that shepherds are not careful about this form of theft is so strong and widespread that our Sages were forced to make a blanket rule not to accept their testimony.
To stigmatize a whole community or to assume any particular shepherd is a crook would normally be a violation of the laws of lashon hara. However in a court of law we must speak the truth and nothing but the truth, irrespective of the laws of lashon hara.
And while one must give people the benefit of the doubt only a fool would ignore the reputation of any given profession and refuse to act accordingly[2]. Our Sages had little choice but to invalidate all shepherds from testifying in a court of law.
Yet the above is only true regarding a self-employed shepherd who stands to save money by allowing his sheep to graze in the fields of others. An employee who shepherds for others can be trusted not to let the sheep graze in the fields of others as “a person does not sin if there is no benefit to him.”
It is only because of this principle that one can actually let others graze one’s sheep. If all shepherds let the flock graze in the fields of others then one who gave his sheep to others would be an accessory to the inevitable theft that would occur and would be in violation of "placing a stumbling block before the blind." Only because employees have little incentive to cheat can we entrust them with our sheep.
[1] This says nothing about the trustworthiness of this particular shepherd. By insisting all do so we avoid the uncomfortable and insensitive situation of why we insist on witnesses for me but not for him. Moreover rabbinic enactments are effective only if done across the board. This is why our Talmudic Sages forbade one to marry without a pre-nuptial agreement, known in the rabbinic literature as the ketuva. It detailed the monetary payments to be paid upon divorce and while one expected such would not be necessary in any particular case all had to have one so that it would be available for those who would need it.
Today the halachic pre-nuptial agreement sadly serves a different purpose, that of preventing one from being held hostage by a recalcitrant spouse and being unable to remarry. While a ketuva is still signed today it pales in importance to the modern day pre-nuptial agreement. I am happy to note that the Rabbinical Council of America, of which I am a member, last week passed a resolution forbidding its members from participating in a wedding ceremony in which a modern-day pre-nuptial agreement is not signed.
[2] I write these words on Tzom Gedaliah where we must fast because Gedaliah, the last of the Jewish Governors under Babylonian rule refused to heed warnings of an impending assassination attempt dismissing it as lashon hara. We should not always believe what we hear but we dismiss it at our own peril.
