Today’s page continues the peculiar conversation about the legal obligations that the Torah places on people who presumably have nothing to do with the Torah: gentiles, who according to the previous page must obey the Noahide Obligations. The sages are still hard at work delineating the limitations of these obligations, and elucidating the connections between the moral standards that apply to Jews and non-Jews–and in today’s page, this requires them to step their toes into a hefty question that provokes heated debate today, too: who is a Jew?
The porous connections between Jews and Gentiles are present in various literary precursors to the Talmud: apocryphal books, Qumran scrolls, especially the sectarian writings, and the book of Acts in the New Testament. As Moshe Lavie explains in a 2013 article, the initial elucidation of obligations for non-Jews wasn’t perceived in apocryphal texts as separate from the covenant with Jews, but rather as part of the continuing negotiation and commitment between God and humans in general, part of the historical progression of rights and duties toward the Abrahamic and Sinaitic covenants. In Qumran sectarian texts, there is a separation between the sect members’ obligations and those who apply to everyone else–Jews and other Noahides alike. It is only in the talmud that the distinction ossifies into a Jews-vs.-Gentiles framework of obligations.
But even in Talmudic times, the separation was far from settled. In a 1979 article, Jewish law scholar Ze’ev Falk writes about the extent to which the mishna, tosefta, and talmud are concerned not only with mixed families, but also with the application of Jewish family law to foreign families. He starts off with the important reminder that, contrary to what might appear from the text, intermarriages were extremely common (which is why the decree to end them, and divorce non-Jewish women and children, during the Ezra and Nehemia times was perceived as such a dramatic and traumatic rift.) Later, in exile, Falk explains that assimilation led some Jews to adopt various foreign customs, including, in one case involving Alexandrian assimilationists, kidnapping women in the market as an informal way of ending their previous marriage and starting a new one. This method of family formation was prohibited to Jews, but was a not-uncommon Roman custom. To ensure that these folks were not getting caught in halakhic violations, Hillel would write them quick divorce decrees and “kosherize” what they had done via custom.
Intermarried people were not the only liminal characters in the Jews-vs.-Gentiles analysis. In a 2017 article, Yedidah Koren explains the Tannaitic creation of an in-between category, “Israel uncircumcised” (ישראל ערל), who is on some sort of probationary period.
Perhaps the existence of these liminal categories–intermarried people, assimilationists, “Israel uncircumcised,” etc., somewhat ameliorate the absurdity of a stricken people in exile creating this megalomanic set of rules that apply to the people around them who probably couldn’t care less. And perhaps this is precisely why they did it–to form a counternarrative of power, absurd as it may seem, to lift up the spirits of those around them, serving the same function that the wacky Sefer Toledot Yeshu will serve in Medieval times. Indeed, in her terrific dissertation on Jewish/Gentile relations in the Talmud, Sigalit Ur examines 220 rabbinic stories, all of which share the fantastical, farfetched narrative feature of Jews dramatically triumphing over gentiles and having their comeuppance.
Anyway, let’s get to it. Most of today’s conversation is concerned with the question raised by Rabbi Meir: Should gentiles be liable for incestuous behavior that is forbidden to Jews? The liminal case they are concerned with has to do with a convert who was conceived when his parents were gentiles, but born after his mother had already converted. Here’s how the initial opinions shake out:
שֶׁהָיְתָה הוֹרָתוֹ שֶׁלֹּא בִּקְדוּשָּׁה, וְלֵידָתוֹ בִּקְדוּשָּׁה – יֵשׁ לוֹ שְׁאֵר הָאֵם, וְאֵין לוֹ שְׁאֵר הָאָב. הָא כֵּיצַד? נָשָׂא אֲחוֹתוֹ מִן הָאֵם – יוֹצִיא, מִן הָאָב – יְקַיֵּים. אֲחוֹת הָאָב מִן הָאֵם – יוֹצִיא, מִן הָאָב – יְקַיֵּים. אֲחוֹת הָאֵם מִן הָאֵם – יוֹצִיא. אֲחוֹת הָאֵם מִן הָאָב, רַבִּי מֵאִיר אוֹמֵר: יוֹצִיא, וַחֲכָמִים אוֹמְרִים: יְקַיֵּים. שֶׁהָיָה רַבִּי מֵאִיר אוֹמֵר: כׇּל עֶרְוָה שֶׁהִיא מִשּׁוּם שְׁאֵר אֵם – יוֹצִיא, מִשּׁוּם שְׁאֵר הָאָב – יְקַיֵּים.
The “birthright” jurisdiction of the convert follows the matrilineal line: marrying your stepsister on your dad’s side is valid, but marrying your stepsister on your mom’s side (the “Jewish side”, if you will) is wrong. Rabbi Meir extends this rule to any female relatives on the patrilineal and matrilineal sides, respectively. Note that the complicated Jewish rituals for marrying one’s brother-in-law after losing one’s husband (יבמה) or getting out of it through a ceremony (חליצה) do not apply to non-Jews: וּמוּתָּר בְּאֵשֶׁת אָחִיו, וּבְאֵשֶׁת אֲחִי אָבִיו, וּשְׁאָר כׇּל עֲרָיוֹת מוּתָּרוֹת לוֹ.
Now we start dealing with the sort of scenario that the cat dragged out of the soap opera channel. What of a non-Jew who married a mother *and* her daughter? כּוֹנֵס אַחַת וּמוֹצִיא אַחַת (he chooses one and divorces the other). But if one of them dies, is he allowed to remain married to the other? Opinions vary, and the sages build their argument relying on the Genesis 2:24: עַל־כֵּן֙ יַֽעֲזׇב־אִ֔ישׁ אֶת־אָבִ֖יו וְאֶת־אִמּ֑וֹ וְדָבַ֣ק בְּאִשְׁתּ֔וֹ וְהָי֖וּ לְבָשָׂ֥ר אֶחָֽד׃ (the verse talking of a man leaving his home to be of “one flesh” with his wife). The sages try to parse the terms אָבִ֖יו (his father) and אִמּ֑וֹ (his mother) to figure out who needs to be left. Rabbi Eliezer wants to read these simply: they do mean “father and mother”. Rabbi Akiva reads into the word “father” the term “also father’s wife” to imply a prohibition on paternal relatives as well.
But as it turns out, the Torah stories are rife with stories involving people marrying their relatives, which now have to be explained away in creative ways. For example, in Exodus 6:20, Amram, Moses’ father, marries his aunt Yokheved; the sages reason that she was his paternal aunt. When Abraham and Sarah pull their “she’s my sister” stunt on Abimelekh (wild story, Genesis 20:12), Abraham stresses that Sarah is his paternal sister (אֲחֹתִי בַת אָבִי הִיא אַךְ לֹא בַת אִמִּי) and therefore the marriage is fine. The gemara concludes that nieces are akin to sisters, and the same rules apply.
Along the way, the text reminds us of some moral prohibitions encompasses in the words וְדָבַק (and he clung) and אִשְׁתּוֹ (his wife). These, as I never tire to explain, are men of their time and place, and they have rather limiting opinions on who can count as a spouse and on what forms of clinging are and are not within the approved norm.
Toward the end of the page we let go of the incest conversation, for now, and discuss some garden variety violence.
אָמַר רַבִּי חֲנִינָא: גּוֹי שֶׁהִכָּה אֶת יִשְׂרָאֵל חַיָּיב מִיתָה, שֶׁנֶּאֱמַר: ״וַיִּפֶן כֹּה וָכֹה וַיַּרְא כִּי אֵין אִישׁ [וַיַּךְ אֶת הַמִּצְרִי] וְגוֹ׳״. וְאָמַר רַבִּי חֲנִינָא: הַסּוֹטֵר לוֹעוֹ שֶׁל יִשְׂרָאֵל כְּאִילּוּ סוֹטֵר לוֹעוֹ שֶׁל שְׁכִינָה, שֶׁנֶּאֱמַר: ״מוֹקֵשׁ אָדָם יָלַע קֹדֶשׁ״. מַגְבִּיהַּ, עַבְדּוֹ, שָׁבַת – סִימָן. אָמַר רֵישׁ לָקִישׁ: הַמַּגְבִּיהַּ יָדוֹ עַל חֲבֵירוֹ, אַף עַל פִּי שֶׁלֹּא הִכָּהוּ, נִקְרָא רָשָׁע, שֶׁנֶּאֱמַר: ״וַיֹּאמֶר לָרָשָׁע לָמָּה תַכֶּה רֵעֶךָ״. ״לָמָּה הִכִּיתָ״ לֹא נֶאֱמַר, אֶלָּא ״לָמָּה תַכֶּה״ – אַף עַל פִּי שֶׁלֹּא הִכָּהוּ נִקְרָא רָשָׁע. אָמַר זְעֵירִי אָמַר רַבִּי חֲנִינָא: נִקְרָא חוֹטֵא, שֶׁנֶּאֱמַר: ״וְאִם לֹא לָקַחְתִּי בְחׇזְקָה״, וּכְתִיב: ״וַתְּהִי חַטַּאת הַנְּעָרִים גְּדוֹלָה מְאֹד״.
Even though this conversation is set specifically in the context of a gentile striking a Jew, it does bring up more universal ideas on what counts as an offense. Resh Lakish, who according to agaddah knew something about organized crime from personal experience, says that anyone who even lifts his arm to strike, before completing the offense, is already labeled רָשָׁע, evil. Z’eri cites Rabbi Hanina as relaxing the penalty some and merely labeling him as חוֹטֵא, a sinner. Lovers of substantive criminal law can parse this stuff in several different ways. One is the proposed distinction between an attempt and a completed offense, where the different labels represent different degrees of sentence severity. The other might mirror the common law definitions of assault and battery; assault does not involve an actual offensive touch, but is nevertheless a completed offense consisting of putting the victim in a state of realistic apprehension regarding the potential for violence. A third take could be that the terms רָשָׁע and חוֹטֵא refer merely to sentencing. And indeed, the next move involves the appropriate punishment. Rav Huna goes for a poetic punishment – he who lifts his arm will have his arm chopped off – and he gets there in a very creative way: Job 22:8 says, וְאִ֣ישׁ זְ֭רוֹעַ ל֣וֹ הָאָ֑רֶץ וּנְשׂ֥וּא פָ֝נִ֗ים יֵ֣שֶׁב בָּֽהּ׃ (“the land belongs to the strong.”) But Rav Huna reads it in a different way: the strong-armed person belongs in the earth. Rabbi El’azar seems to think that Rav Huna’s creativity is overrated, and that the verse should be understood literally as referring to the conquering of land, not to actually being buried in it.
We continue with the ambitious project of enforcing theoretical law on nonplussed foreigners in tomorrow’s page.
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