Narratives of Enlightenment 107

In the rhetorical understanding of law,“proof” and“correctness” are not standards of evaluation that police the argument from the outside. They are rather internal to the legal conversation, fixed and determined by the argument itself, by the community of argument and interpretation within which the argument proceeds. In any particular case, a narrative construction of legal meaning succeeds— is seen as“correct”— not because it meets some externally imposed standard of validity but to the extent that it mobilizes a community of assent, persuading a substantial part of its intended audience to adopt its narrative as the story of their law.

STORY TELLING IN THE RESPONSA: THE NARRATIVE OF THE CAPTIVE INFANT.

Given that narrative is an inescapable element of law, let us consider this particular narrative motif, that of the“captive infant,”

which Katz writes off as a legal fiction. Our study will show that, fiction or not, the concept possesses substance; it has long served to shape Jewish legal thought and conversation.

We first encounter“the infant held captive by Gentiles”(tinok shenishbah levein hanokhrim) in the Talmud, ” where it appears as part of a hypothetical discussion concerning the shogeg, one who unknowingly violates a commandment. The rule is that one who inadvertently commits an act that, if done intentionally, would be punishable by karet must atone for that act by bringing a sin offering to the Temple.*“Inadvertence,” of course, can be understood in several ways. In its more usual sense, the concept applies to the case where one unintentionally performs an act that one knows is forbidden. Then there is the individual who intentionally performs a forbidden act but does not know that the Torah prohibits it. It may be that this person knew at one time that the action was forbidden but has since forgotten that fact; in such a case, there is no question that he or she is a shogeg and must bring a sin offering. The Talmud ,