Fish At Work: b.Sanhedrin 59

If you like nerding out on legal interpretation principles, today’s your day and b.Sanhedrin 59 is your page! In a nice, self-contained argument, the sages debate two important legal principles.

The first issue has to do with the criminal energy required for an act and for an omission. Generally speaking, as Graham Hughes explains in this 1957 article, the law in general is preoccupied not only with the things we should not do, but also with the things we ought to do. But to make it a crime to refrain from doing something–essentially to demand action–is to ask a lot from people, and therefore any criminal omission must come equipped with some justification for setting the duty to act: a special job or relationship or set of circumstances. Expecting strangers, for example, to actively intervene to save lives they do not have a special connection to, is setting the bar very high, which is why the new slew of Good Samaritan 911 laws regarding drug overdoses merely excuse any 911 callers reporting an overdose from any criminal action for drugs, to incentivize them to call, rather than place an obligation on people to call and a sanction for not doing so.

The discussion of this principle in the context of the Noahide obligations starts in a peculiar manner. Resh Lakish says it is an offense for a non-Jew to observe the Sabbath. Ravina expounds: descendants of Noah are not supposed to take a religious day of rest at all–even, say, on a Monday (this, I’m sure, is news to every Christian and Muslim person in the world!). Anyway, yes, this is a bit ridiculous, but check this out:

וְלִיחְשְׁבַהּ גַּבֵּי שֶׁבַע מִצְוֹת? כִּי קָא חָשֵׁיב – שֵׁב וְאַל תַּעֲשֶׂה, קוּם עֲשֵׂה לָא קָא חָשֵׁיב.

The sages think that this Sabbath prohibition business is overreach. When issuing commandments beyond our own religious jurisdiction, we cannot overextend too much: the Noahide obligations must only apply to שֵׁב וְאַל תַּעֲשֶׂה (“sit and don’t do”) – in other words, they must only forbid acts. By contrast, penalizing omissions – קוּם עֲשֵׂה (“arise and do”) – goes too far.

So now, of course, we have to look at the Noahide obligations and ensure that they all criminalize acts, not omissions, and there’s an immediate problem: וְהָא דִּינִין קוּם עֲשֵׂה הוּא, וְקָא חָשֵׁיב? The obligation to establish courts requires gentiles to take considerable action! How can it be included in the Noahide obligations list, then? The response is that it encompasses both an act and an omission: קוּם עֲשֵׂה וְשֵׁב אַל תַּעֲשֶׂה נִינְהוּ. The omission is failing to establish courts; the act is committing injustice.

This is not quite how modern criminal law would look at this. If an implicit act is folded into every omission by way of an undesired result (e.g., letting someone drown is an “act” as well as an omission, the failure to save them), then there are no real omissions, are there?

But the fact that we’ve just engaged with the issue of gentiles obeying a commandment that seems to single Jews out (Shabbat) leads the sages to discuss other such cases, such as studying Torah. According to Rabbi Yohanan, gentiles are forbidden from studying Torah; ״תּוֹרָה צִוָּה לָנוּ מֹשֶׁה מוֹרָשָׁה״, לָנוּ מוֹרָשָׁה וְלֹא לָהֶם (the Torah is for us, not for them). Doing so is akin to stealing the Torah from those who are entitled to it (מִיגְזָל קָא גָזֵיל לַהּ). Rabbi Meir disagrees: from the use of the word אָדָם (person) in the mandate to study, rather than a more exclusive term, he learns that gentiles are permitted to study Torah and if they do so, they are like the High Priest. On first sight, this can be pretty amusing; not that you need me to tell you this, but any gentiles who are following along are very much welcome to study as much Torah as they like! I like reading other religions’ texts, too! You’re not stealing anything; there’s plenty of text to go along. But on second thought, I imagine that if there’s something animating this conversation, and it could be a scenario in which neighbors of these stricken and exiled Jews take a look at Jewish texts to find reasons to berate Jews and incite against them, and this might be a way of lashing out by putting on a show of power.

Which is where the page shifts gears to another interesting legal question. The pretext for that is the Noahide prohibition to consume limbs or blood torn from a living animal (factory farms, please take notice). This prohibition appears twice in the text: once in application to the sons of Noah and once at Sinai. Rabbi Hanina ben Gamliel asks–why the repetition?

The underlying assumption is that the law–the Torah–does not repeat things merely for emphasis; any repetition has a justification. All the more so when the repetition is addressed to different crowds. Which suggests the following principle according to Rabbi Hanina: כׇּל מִצְוָה שֶׁנֶּאֶמְרָה לִבְנֵי נֹחַ וְנִשְׁנֵית בְּסִינַי – לָזֶה וְלָזֶה נֶאֶמְרָה – the repetition indicates that the obligation applies to both Jews and non-Jews. But there is another way to look at it: repeating a Noahide commandment at Sinai might be interpreted as an intent to shift that obligation away from the Noahides and toward the Israelites: מִדְּנִשְׁנֵית בְּסִינַי – לְיִשְׂרָאֵל נֶאֶמְרָה וְלֹא לִבְנֵי נֹחַ. The first approach seems to govern: idol worship, for example, was repeated in both places, and they learn that gentlies were liable for it as well as Jews.

But what about Noahide commandments that were not repeated at Sinai? Some sages think that the obligation is then transferred to the Israelites; others (the position I find more logical) is that the obligation only applies to the folks who were commanded it, i.e., the gentiles, not the Israelites.

Several examples follow in which behaviors that appear to be permitted to Jews are forbidden to gentiles, and excused by the different contexts of the behavior (circumcision? reproduction?) And there are numerous wrinkles to the interpretive principle. Perhaps repeating them at Sinai is by way of explication that, from now on, they only apply to the recipients of the covenant? Or perhaps not repeating them at Sinai should be interpreted as keeping their original application–to Jews and gentiles alike–intact?

This brings us to an interesting conversation about eating meat. Rabbi Yehuda says that Adam was not allowed to eat meat, as the vegetables were permitted to both humans and animals, but the animals were not explicitly permitted to humans. What, then, do we do with fish, given the biblical permission וּרְדוּ בִּדְגַת הַיָּם (and have dominion over the fish of the sea)? The sages say: the dominion is for the sake of using animals for labor, rather than for eating. In case you’re now cracking up, like me, imagining a construction sign that reads FISH AT WORK, you’re not alone. The gemara itself asks: דָגִים בְּנֵי מְלָאכָה נִינְהוּ? and then, וְעוֹפוֹת בְּנֵי מְלָאכָה נִינְהוּ? meaning – does it make sense to expect fish and birds to work? What kind of labor dominion might you have over fish and birds? After trying to figure out what sort of labor one can possibly do with geese and chickens, Rabbi Shimon ben Menasia provides the following awesome ode to a snake:

דְּתַנְיָא, רַבִּי שִׁמְעוֹן בֶּן מְנַסְיָא אוֹמֵר: חֲבָל עַל שַׁמָּשׁ גָּדוֹל שֶׁאָבַד מִן הָעוֹלָם, שֶׁאִלְמָלֵא לֹא נִתְקַלֵּל נָחָשׁ, כׇּל אֶחָד וְאֶחָד מִיִּשְׂרָאֵל הָיוּ מִזְדַּמְּנִין לוֹ שְׁנֵי נְחָשִׁים טוֹבִים – אֶחָד מְשַׁגְּרוֹ לַצָּפוֹן וְאֶחָד מְשַׁגְּרוֹ לַדָּרוֹם, לְהָבִיא לוֹ סַנְדַּלְבּוֹנִים טוֹבִים וַאֲבָנִים טוֹבוֹת וּמַרְגָּלִיּוֹת. וְלֹא עוֹד, אֶלָּא שֶׁמַּפְשִׁילִין רְצוּעָה תַּחַת זְנָבוֹ וּמוֹצִיא בָּהּ עָפָר לְגִנָּתוֹ וּלְחוּרְבָּתוֹ.

As it is taught in a baraita that Rabbi Shimon ben Menasya says: Woe over a great attendant that has been lost to the world; as had the snake not been cursed that it should go on its belly, there would have been two fine snakes at the disposal of each and every one of the Jewish people. One he would send to the north, and the other one he would send to the south, to bring him precious sandalbonim, a type of precious stone, and other precious stones and pearls. Moreover, he would attach a strap under his snake’s tail like a harness to an animal, and use it to take dirt out to his garden and to rebuild his ruin, as he does with other animals. This demonstrates that the snake was capable of performing labor.

But our relationship with the snake has been irrevocably spoiled, as anyone who has read Genesis knows, and Rabbi Yehuda ben Teima has a theory of what went wrong:

אָדָם הָרִאשׁוֹן מֵיסֵב בְּגַן עֵדֶן הָיָה, וְהָיוּ מַלְאֲכֵי הַשָּׁרֵת צוֹלִין לוֹ בָּשָׂר וּמְסַנְּנִין לוֹ יַיִן. הֵצִיץ בּוֹ נָחָשׁ וְרָאָה בִּכְבוֹדוֹ, וְנִתְקַנֵּא בּוֹ. הָתָם בְּבָשָׂר הַיּוֹרֵד מִן הַשָּׁמַיִם.

Adam, the first man, would dine in the Garden of Eden, and the ministering angels would roast meat for him and strain wine for him. The snake glanced at him and saw his glory, and was jealous of him, and for that reason the snake incited him to sin and caused his banishment from the Garden. According to this, evidently Adam would eat meat. The Gemara answers: There the reference is to meat that descended from heaven, which was created by a miracle and was not the meat of animals at all.

That’s the end of our daf today, and I’m off to prepare a vegan breakfast that even snakes will covet.