Rock in the Kasvah and Torture in the Kippah: b.Sanhedrin 81-84

The last few pages on the matter of death by fire start off sensibly enough, dealing with questions of dual punishment, and then things get a bit of the rails in an interesting way. I’m going to take it all up as one bloc, and resume with the second half of page 84 on Tuesday.

Things start off with the following mishna:

מַתְנִי׳ מִי שֶׁנִּתְחַיֵּיב בִּשְׁתֵּי מִיתוֹת בֵּית דִּין – נִידּוֹן בַּחֲמוּרָה. עָבַר עֲבֵירָה שֶׁנִּתְחַיֵּיב שְׁתֵּי מִיתוֹת – נִידּוֹן בַּחֲמוּרָה. רַבִּי יוֹסֵי אוֹמֵר: נִידּוֹן בַּזִּיקָּה הָרִאשׁוֹנָה שֶׁבָּאָה עָלָיו.

It’s a simple enough principle: if someone has been sentenced to two different types of death (whether for two offenses or for the same offense), you execute him with the more severe of the two (Rabbi Yosei dissents for issues involving same offense, where he thinks the execution method has to deal with the primacy of the offenses. We’ll get to this view later.) The principle is not dissimilar to the idea of concurrent sentencing today: a person sentenced for two offenses–say, 4 years for offense A and 6 years for offense B – might serve the sentences concurrently (i.e., 6 years – practically, the longer of the two sentences) or consecutively (6+4=10 years). In many jurisdictions, the default is consecutive sentences, and it is a judicial choice (per Oregon v. Ice). But you can’t really fault the Mishnaic logic here: ya can’t kill the same person twice. That seems pretty straightforward (“פְּשִׁיטָא!”). So how is the gemara going to complicate things?

Rava argues that the mishna deals with a habitual offender scenario: not someone who is jointly tried for two offenses, but rather someone who has already been tried and sentenced to death for the first strike (hee, literally) and, before the sentence was carried out, committed a second offense, punishable by a worse death. Rabba bar Natan cites a verse in support. It’s Ezekiel 18:10: “And he begets a violent son, a shedder of blood, who does to a brother any of these. And he had not done any of these, for he has eaten upon the mountains and defiled his neighbor’s wife, has wronged the poor and needy, has taken by robbery, does not return collateral, and has lifted his eyes toward the idols, has committed abomination.” Then, he lists the offenses: (1) begat, (2) defiled (3) lifted eyes toward idols, all of which are punishable by death, and the worst of the lot is the idolatry (stoning). But Rav Nahman Bar Yitzhak believes that all three are punishable by stoning anyway, and therefore the verse is a metaphor for righteousness.

There’s a side episode where we’re told that Raban Gamliel always cries when he gets to the aforementioned Ezekiel verse, because he thinks it’s a tall order to not fail any of the righteousness commands; Rabbi Akiva consoles him by saying that it’s enough to be righteous in one of those ways to escape death.

Let’s get back to Rabbi Yosei’s minority opinion. He apparently discusses a situation in which the same criminal act constitutes two offenses, e.g., if you sleep with your (1) mother in law who also happens to be (2) a married woman. If she was your mother in law before she was a married woman, the penalty for (1) applies. If she was a married woman before she became your mother in law, the penalty for (2) applies. But the problem is, of course, that one cannot be killed twice.

When we discussed page 80, we were introduced to the concept of the kippah, the domed torture chamber; here it makes a second horrifying appearance. Rav Yehuda explains that the kippah, at its highest, is at the person’s height, making it impossible for them to move around. Ugh. The mishna says:

מַתְנִי׳ מִי שֶׁלָּקָה וְשָׁנָה, בֵּית דִּין מַכְנִיסִין אוֹתוֹ לַכִּיפָּה, וּמַאֲכִילִין אוֹתוֹ שְׂעוֹרִין עַד שֶׁכְּרֵיסוֹ מִתְבַּקַּעַת.

Habitual offenders are to be taken to the kippah and fed barley until their stomach explodes. The problem is what counts as a “habitual offender”: does it have to be a particular offense that carries a heavenly punishment in the next world? Or do we need to offer third and fourth chances as well? The sages offer a variety of opinions:

  • Rabban Shimon ben Gamliel: lashes the first two times, kippah for the first.
  • Abba Shaul: Lashes for the first three times, kippah for the fourth.
  • Others: whether he gets extra warnings depends on how he takes the warning for the first and second times.

The kippah torture description gets even more gruesome in the next mishna. A man who kills someone and there’s some problem with the testimony (he hasn’t been properly forewarned, or the witnesses had different vantage point, or they differ on minutiae–the point is that the particularities of evidence law are not 100% in place, but we do know enough to hold the man culpable) is to be taken to the kippah. Rav Sheshet says: first you feed the person very little, to shrink their digestive capacity, and then you stuff them with barley. Ugh!

At this point, we get the weird mishna that’ll keep us busy until the end of the sugiyah:

מַתְנִי׳ הַגּוֹנֵב אֶת הַקַּסְוָה, וְהַמְקַלֵּל בְּקוֹסֵם, וְהַבּוֹעֵל אֲרַמִּית – קַנָּאִין פּוֹגְעִין בּוֹ. כֹּהֵן שֶׁשִּׁמֵּשׁ בְּטוּמְאָה – אֵין אֶחָיו הַכֹּהֲנִים מְבִיאִין אוֹתוֹ לְבֵית דִּין, אֶלָּא פִּרְחֵי כְהוּנָּה מוֹצִיאִין אוֹתוֹ חוּץ לָעֲזָרָה וּמְפַצְיעִין אֶת מוֹחוֹ בִּגְזִירִין. זָר שֶׁשִּׁמֵּשׁ בַּמִּקְדָּשׁ – רַבִּי עֲקִיבָא אוֹמֵר: בְּחֶנֶק, וַחֲכָמִים אוֹמְרִים: בִּידֵי שָׁמַיִם.

MISHNA: With regard to one who steals a kasvah, and one who curses with a sorcerer, and one who engages in intercourse with an Aramean woman, zealots strike him and kill him. Although the Torah does not say that one who performs one of these actions is liable to be executed, it is permitted for anyone who zealously takes the vengeance of the Lord to do so. In the case of a priest who performed the Temple service in a state of ritual impurity, his priestly brethren do not bring him to court for judgment; rather, the young men of the priesthood remove him from the Temple courtyard and pierce his skull with pieces of wood. In the case of a non-priest who performed the service in the Temple, Rabbi Akiva says: His execution is by strangulation, and the Rabbis say: He is not executed with a court-imposed death penalty; rather, he is liable to receive death at the hand of Heaven.

First order of business is to figure out what a kasvah is. Rav Yehuda thinks it’s some sort of ritual implement from the temple. He who curses with a sorcerer, Rav Yosef explains, is someone who does a dueling sorcery match. The mishna goes on to say that, if one sleeps with an Aramean woman, zealots may hurt him. The business of sleeping with an Aramean woman is, apparently, a metaphor for idolatry. Rabbi Hiyya opines that marrying a foreign woman is like marrying idolatry.

This leads to a story that riffs off the Pinhas/Zimri affair from Numbers 25: 1-9. Recap: Zimri had a Midianite woman, and to stop a plague that ravaged through the people, Pinhas, grandson of Aaron, stabbed Zimri and his wife to death. The gemara expands on the story:

״וַיֹּאמֶר מֹשֶׁה אֶל שֹׁפְטֵי יִשְׂרָאֵל וְגוֹ׳״. הָלַךְ שִׁבְטוֹ שֶׁל שִׁמְעוֹן אֵצֶל זִמְרִי בֶּן סָלוּא, אָמְרוּ לוֹ: הֵן דָּנִין דִּינֵי נְפָשׁוֹת וְאַתָּה יוֹשֵׁב וְשׁוֹתֵק?! מָה עָשָׂה? עָמַד וְקִיבֵּץ עֶשְׂרִים וְאַרְבָּעָה אֶלֶף מִיִּשְׂרָאֵל וְהָלַךְ אֵצֶל כׇּזְבִּי. אֲמַר לַהּ: הִשָּׁמֵיעִי לִי. אָמְרָה לוֹ: בַּת מֶלֶךְ אֲנִי, וְכֵן צִוָּה לִי אָבִי: לֹא תִּשָּׁמְעִי אֶלָּא לַגָּדוֹל שֶׁבָּהֶם. אֲמַר לַהּ: אַף הוּא נְשִׂיא שֵׁבֶט הוּא, וְלָא עוֹד אֶלָּא שֶׁהוּא גָּדוֹל מִמֶּנּוּ, שֶׁהוּא שֵׁנִי לַבֶּטֶן וְהוּא שְׁלִישִׁי לַבֶּטֶן. תְּפָשָׂהּ בִּבְלוֹרִיתָהּ וֶהֱבִיאָהּ אֵצֶל מֹשֶׁה. אָמַר לוֹ: בֶּן עַמְרָם, זוֹ אֲסוּרָה אוֹ מוּתֶּרֶת? וְאִם תֹּאמַר אֲסוּרָה, בַּת יִתְרוֹ מִי הִתִּירָה לָךְ? נִתְעַלְּמָה מִמֶּנּוּ הֲלָכָה. גָּעוּ כּוּלָּם בִּבְכִיָּה, וְהַיְינוּ דִּכְתִיב: ״וְהֵמָּה בֹכִים פֶּתַח אֹהֶל מוֹעֵד״.

Zimri persuaded the Midianite woman to marry him by bragging about his pedigree. He brought her to Moses, saying that Moses cannot deny him the woman, as he himself is married to a Midianite (Zippora, daughter of Jethro). Everyone started crying.

וּכְתִיב: ״וַיַּרְא פִּנְחָס בֶּן אֶלְעָזָר״. מָה רָאָה? אָמַר רַב: רָאָה מַעֲשֶׂה וְנִזְכַּר הֲלָכָה. אָמַר לוֹ: אֲחִי אֲבִי אַבָּא, לֹא כָּךְ לִימַּדְתַּנִי בְּרִדְתְּךָ מֵהַר סִינַי: הַבּוֹעֵל אֲרָמִית קַנָּאִין פּוֹגְעִין בּוֹ? אָמַר לוֹ: קַרְיָינָא דְּאִיגַּרְתָּא אִיהוּ לֶיהֱוֵי פַּרְוָונְקָא. וּשְׁמוּאֵל אָמַר: רָאָה שֶׁאֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳. כׇּל מָקוֹם שֶׁיֵּשׁ חִילּוּל הַשֵּׁם, אֵין חוֹלְקִין כָּבוֹד לָרַב. רַבִּי יִצְחָק אָמַר רַבִּי אֱלִיעֶזֶר: רָאָה שֶׁבָּא מַלְאָךְ וְהִשְׁחִית בָּעָם. ״וַיָּקׇם מִתּוֹךְ הָעֵדָה וַיִּקַּח רֹמַח בְּיָדוֹ״. מִיכָּן, שֶׁאֵין נִכְנָסִין בִּכְלֵי זַיִין לְבֵית הַמִּדְרָשׁ. שָׁלַף שְׁנָנָהּ וְהִנִּיחָהּ בְּאוּנְקָלוֹ, וְהָיָה נִשְׁעָן וְהוֹלֵךְ עַל מַקְלוֹ, וְכֵיוָן שֶׁהִגִּיעַ אֵצֶל שִׁבְטוֹ שֶׁל שִׁמְעוֹן אָמַר: הֵיכָן מָצִינוּ שֶׁשִּׁבְטוֹ שֶׁל לֵוִי גָּדוֹל מִשֶּׁל שִׁמְעוֹן? אָמְרוּ: הַנִּיחוּ לוֹ, אַף הוּא לַעֲשׂוֹת צְרָכָיו נִכְנַס.

Pinhas saw what happened and remembered the halakhah according to which intermarriage should lead to being killed. He saw that an angel was spreading the disease due to Zimri’s sin, so he decided to take this on. He stepped into the tribe territory, claiming that he should be able to sleep with the woman as well, and they allowed him–at which point he took advantage of being inside and killed Zimri and the woman. The killing is said to have been aided by divinity.

From here, the rabbis move on to discussing purities and impurities, particularly sexual ones. I should mention something important here, because it’s going to come up often in our learning together.

Daniel Boyarin has a fantastic book called Carnal Israel, which has to do with the way in which rabbinic texts engage with sex, which as you’ve already noticed, they do–often. Boyarin contrasts this with the tendency in other religious texts–especially Christian texts–to renounce the body, separate the sexes, avoid the topic.

Having now read Robert Harris’ Conclave, the basis for the fantastic thriller that won Best Adapted Screenplay at the Oscars, I understand what Boyarin is referring to. Lomeli, the hero, stays away from commenting on a fellow Cardinal’s possible imbroglio with a nun by taking to heart a passage in Pope John XXIII’s Journal of a Soul:

As for women, and everything to do with them, never a word, never; it was as if there were no women in the world. This absolute silence, even between close friends, about everything to do with women was one of the most profound and lasting lessons of my early years in the priesthood.

Contrast this silence with the incessant chatter of the rabbis on this topic. Boyarin argues that the rabbis welcomed and relished coupling and found it important. Not that addressing sexuality lacks domination and patriarchal ideology–there’s plenty of that to be had–but it’s a different sort of domination, one that directly engages with sex rather than circumventing the topic.

Since Boyarin, and others, have written plenty about this, I don’t feel like I have to. So we shall forego the rest of the impurities discussion and consider this sugiyah done. You all get a sticker, and we begin a new one on Tuesday!

Transferred Intent and Hiding in a Crowd: b.Sanhedrin 79-80

Today and tomorrow’s pages address two issues on which there is plenty of writing in modern criminal law. The first is the issue of transferred intent. Usually, we look for a match between the physical elements (actus reus) of a criminal offense and the mental state (mens rea) required for committing it: we can’t find someone guilty unless we prove *both* beyond reasonable doubt. Murder offenses, then, require proof that A caused B’s death as well as proof that A intended to cause B’s death. The problem ensues when A intends to kill B but kills C, and the usual rule is that the intent transfers: since the law does not prefer B’s life to C’s, it’s the same to the law who A intended to kill, as long as they killed a person. But the mishna for today deals with scenarios in which the mismatch between intent and action is more profound: A intends either a lesser or a greater offense than the one he actually commits. In all these cases, the mishna says, A is not liable for the serious crime:

  1. A intended to kill someone for whom they would face a lesser punishment (e.g., intended to kill an animal and killed a person);
  2. A intended a non-lethal strike (say, at B’s hips) but made a lethal hit (say, at B’s heart);
  3. A intended a lethal strike, ended up making a non-lethal hit, but B died anyway (eggshell skull? a fluke?)
  4. A intended a non-lethal strike at B, an adult, but the blow landed on C, a minor (and thus more vulnerable), and killed him.
  5. A intended to lethally strike the minor, C, but mistakenly struck the adult, B, with a blow usually not hard enough to kill an adult, but B died anyway (eggshell skull? a fluke?)

So far so good. But the mishna implies that Rabbi Shimon disagrees, and the gemara elaborates:

רַבִּי שִׁמְעוֹן אַהֵיָיא? אִילֵּימָא אַסֵּיפָא, ״רַבִּי שִׁמְעוֹן פּוֹטֵר״ מִיבְּעֵי לֵיהּ! אֶלָּא אַרֵישָׁא: נִתְכַּוֵּון לַהֲרוֹג אֶת הַבְּהֵמָה וְהָרַג אֶת הָאָדָם, לַנׇּכְרִי וְהָרַג אֶת יִשְׂרָאֵל, לַנְּפָלִים וְהָרַג אֶת בֶּן קַיָּימָא – פָּטוּר. הָא נִתְכַּוֵּון לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – חַיָּיב. רַבִּי שִׁמְעוֹן אוֹמֵר: אֲפִילּוּ נִתְכַּוֵּין לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – פָּטוּר. פְּשִׁיטָא! קָאֵי רְאוּבֵן וְשִׁמְעוֹן, וְאָמַר: ״אֲנָא לִרְאוּבֵן קָא מִיכַּוַּונָא, לְשִׁמְעוֹן לָא קָא מִיכַּוַּונָא״ – הַיְינוּ פְּלוּגְתַּיְיהוּ. אָמַר: ״לְחַד מִינַּיְיהוּ״ – מַאי? אִי נָמֵי, כְּסָבוּר רְאוּבֵן וְנִמְצָא שִׁמְעוֹן – מַאי? תָּא שְׁמַע, דְּתַנְיָא: רַבִּי שִׁמְעוֹן אוֹמֵר, עַד שֶׁיֹּאמַר ״לִפְלוֹנִי אֲנִי מִתְכַּוֵּון״. מַאי טַעְמָא דְּרַבִּי שִׁמְעוֹן? אָמַר קְרָא: ״וְאָרַב לוֹ וְקָם עָלָיו״, עַד שֶׁיִּתְכַּוֵּון לוֹ.

Essentially, and by contrast to the modern criminal law view on this, Rabbi Shimon (and, as is later explained, Rabbi Hizkiyah) would exempt *everyone* who committed a homicide with transferred intent; he finds a biblical anchoring from this position in Deuteronomy 19:11, which addresses a murderer lying in wait–presumably for a specific person. That the biblical text intends to hold the ambushing murderer liable implies that in cases where things went awry there is no liability.

The rabbis disagree. Instead, Rabbi Yannai’s school limits the interpretation of the Deuteronomy verse to situations in which A was ambushing a particular individual as opposed to throwing a stone into a crowd. But even here, there are variations: in the bible, the killing of a gentile is a less serious offense than the killing of an Israelite (lovely), and thus to some rabbis the percentage of Israelites and gentiles in the crowd matters (even lovelier). But if there is one gentile in the crowd of Israelites, he is “fixed”, and thus the treatment is as if there were half and half. In any case, the rule of lenity prevails: the doubt works in favor of the would-be murderer (all’s well that ends well, I suppose. Ugh.)

All these exemptions make it tough to explain away Exodus 21:22, which deals with a situation in which brawling people who hurt a pregnant woman and kill the fetus are liable; the rabbis explain that the liability in such a case is expressed through money damages, not through execution. But the school of Rabbi Hizkiyah disagrees: they believe that the verse refers not to situations of accidental killings, but to situations of transferred intent, and therefore agree with Rabbi Shimon that there is no liability here at all.

***

This discussion of the rule of lenity connects us to the second issue that comes up in these pages: a mishna involving a murderer who hid himself in a crowd, the sinister version of Where’s Waldo. Since the killer cannot be identified, all must be acquitted (reasonable doubt). Except, Rabbi Yehuda believes that all of these people, including the unidentified guilty party must be taken to a place called a כִּיפָּה (a room with a dome?), and at least according to one translation, they will all die in that room (this is intractable logic and will be discussed in detail in a little bit). Similarly, people sentenced to a variety of deaths who mix together, making it impossible to match a person to their execution method, must all be killed in the most lenient form–except, as you’ll recall from our earlier pages, there is a debate over which is the more lenient form. The previous discussion did not quell this debate, which now reignites, but we won’t go there. Instead, we go on to try and understand the logic of the Where’s Waldo mishna–particularly Rabbi Yehuda’s bizarre suggestion that the whole crowd is to die in the domed room–with the help of three perspectives:

  • Rabbi Abahu cites Shmuel, who explains away the confusion by relating the mishna to a situation in which a murder defendant whose case has not yet concluded in a decision mixes up with a crowd of convicted murderers. While the majority opinion is that the person cannot be judged in absentia, and thus cannot be executed along with the convicts, Rabbi Yehuda presumably feels uncofmortable because the rest of the crowd is guilty.
  • Resh Lakish thinks that everyone, including Rabbi Yehuda, would agree that no one should be executed in the Where’s Waldo scenario; however, Rabbi Yehuda’s ruling applies to a goring ox whose verdict has not yet been given and who is hiding amidst a whole herd of convicted goring oxen.
  • Rava points out the difficulty of reconciling this position with the possibility that one of the sages’ fathers might be in the crowd. Rather, he says, the mishna refers to a scenario in which two people stand next to each other, and an arrow emerges from the two of them and kills a person; neither is liable, as we do not know who shot the arrow (the causation analysis in this situation would be a lot more complicated in modern law).

From here, the sages draw an analogy to goring cows who give birth to calves, which I personally do not find all that helpful or savory. So instead let’s take a look at one final little pearl. In the argument about which execution method is more severe, we’re told that Rav Yehezkel and his son, Rabbi Yehuda, disagree. The son says to the father (presumably in public): אַבָּא, לָא תַּיתְנְיֵיהּ הָכִי (“Dad, don’t teach it this way.”) This rudeness draws a rebuke from Shmuel:

אֲמַר לֵיהּ שְׁמוּאֵל לְרַב יְהוּדָה: שִׁינָּנָא, לָא תֵּימָא לֵיהּ לַאֲבוּךְ הָכִי, דְּתַנְיָא: הֲרֵי שֶׁהָיָה אָבִיו עוֹבֵר עַל דִּבְרֵי תוֹרָה, לֹא יֹאמַר לוֹ: ״אַבָּא, עָבַרְתָּ עַל דִּבְרֵי תוֹרָה״, אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, כָּךְ כְּתִיב בַּתּוֹרָה״. סוֹף סוֹף הַיְינוּ הָךְ! אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, מִקְרָא כָּתוּב בַּתּוֹרָה כָּךְ הוּא״.

Shmuel says, “Oi, long-toothed one, don’t talk to your dad that way. A baraita says that, if a son sees his dad violate the Torah, he must not say, ‘Dad, you violated the Torah,’ but rather indirectly point out, ‘Dad, the Torah says x.'” Other sages disagree with Shmuel – both formulations are rude, and instead it’s best to say to your dad something even more oblique, like, “Dad, this verse says x.’

We resume on Saturday with page 81.

The Eggshell Skull and Other Causation Challenges: b.Sanhedrin 78

Today’s page features two recognized problems in criminal causation of homicide: the issue of multiple contributing factors and the problem of a preexisting condition that hastened death.[1] Today, issues of medical causality often open the door to expert testimony about the cause of death, but the forensics are not the only or even dominant factor; criminal law theories factor in criminal energy, deterrence, and contribution as well.

Let’s start with the case of multiple assailants. Many jurisdictions hold multiple defendants charged for the same homicide liable, even if the blow that caused the death was proximately caused by a specific perpetrator–and even if the other defendants did not actually participate in the beating. In British law, this is governed by the Joint Enterprise doctrine (critiqued in this Guardian article); U.S. federal law recognizes the contributions of multiple accomplices in various capacities because “society fears the crimes of
several more than the crimes of one.”

The Talmud doesn’t seem to adopt similar ideas of broad responsibility. Consider a scenario in which ten people beat up a man to death with sticks:

תָּנוּ רַבָּנַן: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת וָמֵת, בֵּין בְּבַת אַחַת, בֵּין בְּזֶה אַחַר זֶה – פְּטוּרִין. רַבִּי יְהוּדָה בֶּן בְּתִירָא אוֹמֵר: בְּזֶה אַחַר זֶה, הָאַחֲרוֹן חַיָּיב, מִפְּנֵי שֶׁקֵּירַב אֶת מִיתָתוֹ.

The rabbis think no one can be held responsible for the death, which cannot be causally tied to any particular strike. Rabbi Yehuda ben Betira believes the last to hit is responsible, as he hastened the death. Rabbi Yohanan believes that both perspectives refer to possible interpretations of Leviticus 24:17: וְאִ֕ישׁ כִּ֥י יַכֶּ֖ה כׇּל־נֶ֣פֶשׁ אָדָ֑ם מ֖וֹת יוּמָֽת׃ (a man who kills “a human soul” shall be put to death). The verse is interpreted as referring to an entire human soul (as opposed to someone whose life is already in peril). Because of this, two sister rules reach opposite conclusions: there’s a rule about killing a man who has a wound that will kill him anyway within a year (הוֹרֵג אֶת הַטְּרֵיפָה), in which the killer is not liable (as the wound is visible and not attributed to the killer). And there’s a rule about killing a man who is dying from an illness caused by the heaven (גוֹסֵס בִּידֵי שָׁמַיִם), in which the killer is liable for hastening the death (as the cause of death is not visible). The rabbis think that our multiple assailants case is akin to the former, and Rabbi Yehuda thinks it is akin to the latter. Rabbi Yehuda’s logic also bolsters a scenario discussed by Rav Sheshet: הַמַּכֶּה אֶת חֲבֵירוֹ וְאֵין בּוֹ כְּדֵי לְהָמִית, וּבָא אַחֵר וֶהֱמִיתוֹ – a person who inflicts a non-lethal blow followed by a person who inflicts a lethal blow. Following Rabbi Yehuda’s logic requires holding the second striker liable.

It looks like the absolution of the man who killed the person with the lethal wound is not the function of a moral principle, but rather of lack of evidence: Rava believes that, if the killing occurs in view of the court (and thus there is unimpeachable testimony – עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ), even this killer should be held liable. But what if the killing occurred in the presence of witnesses who have been impeached? Here, Rav Ashi suggests that the impeached witnesses should not be killed, as the victim would have already died.

I’m skipping a few twists and turns (which deal with the innocence or guilt of animals who kill) to get to the next proximate cause issue:

מַתְנִי׳ הַמַּכֶּה אֶת חֲבֵירוֹ, בֵּין בְּאֶבֶן בֵּין בְּאֶגְרוֹף, וַאֲמָדוּהוּ לְמִיתָה, וְהֵיקֵל מִמַּה שֶּׁהָיָה, וּלְאַחַר מִכָּאן הִכְבִּיד וָמֵת – חַיָּיב. רַבִּי נְחֶמְיָה אוֹמֵר: פָּטוּר, שֶׁרַגְלַיִם לַדָּבָר.

Here, the rabbis address a mishna that deals with an issue known in criminal causation as the Thin Skull doctrine. The idea is that assailants should be responsible for killing people whose preexisting conditions made them more vulnerable to the blow (even if this fact is unknown to the assailant), but not when the sensitivity is very extreme. But Talmudic sages had no access to anything resembling modern forensics, and so, their parsing out of the mishna requires speculating about the victim’s condition only from what can be seen externally.

The basis for Rabbi Nehemiah’s absolution of the killer here is Exodus 1:19, a case in which someone suffers a beating and is later seen walkinr around in the market. In the biblical case, the striker is absolved. Rabbi Nehemiah things this case should be dealt with the same: the person seemed to be getting better, and thus presumably *was* getting better, and if he ended up dying, causality is undermined. There are rabbis who disagree with Rabbi Nehemiah, and require that the killer be arrested (מְלַמֵּד שֶׁחוֹבְשִׁין אוֹתוֹ) until the victim’s fate can be ascertained. This, by the way, is not their innovation: there are some biblical verses in which pretrial detention in cases of uncertainty is required, such as a Shabbat-violating wood gatherer and a blasphemer (these analogies, though, are imperfect: the wood gatherer was to be killed – they just could not decide on how to do it – and the detention of the blasphemer seems to have been an emergency measure).

The following discussion examines a few twists and turns in the victim’s fate, based on two variables: the initial prognosis and what ended up happening. Here’s the rest of it:

בִּשְׁלָמָא לְרַבִּי נְחֶמְיָה, הַיְינוּ דִּכְתִיבִי תְּרֵי אוּמְדָּנֵי: חַד – אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד – אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה. אֶלָּא לְרַבָּנַן, תְּרֵי אוּמְדָּנֵי לְמָה לִי? חַד אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד אֲמָדוּהוּ לְחַיִּים וָמֵת. וְרַבִּי נְחֶמְיָה, אֲמָדוּהוּ לְחַיִּים וָמֵת – לָא צְרִיךְ קְרָא, שֶׁהֲרֵי יָצָא מִבֵּית דִּין זַכַּאי. תָּנוּ רַבָּנַן: הַמַּכֶּה אֶת חֲבֵירוֹ, וַאֲמָדוּהוּ לְמִיתָה, וְחָיָה – פּוֹטְרִין אוֹתוֹ. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן. וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – הַלֵּךְ אַחַר אוֹמֶד הָאֶמְצָעִי, דִּבְרֵי רַבִּי נְחֶמְיָה. וַחֲכָמִים אוֹמְרִים: אֵין אוֹמֶד אַחַר אוֹמֶד. תַּנְיָא אִידַּךְ: אֲמָדוּהוּ לְמִיתָה – אוֹמְדִין אוֹתוֹ לְחַיִּים. לְחַיִּים – אֵין אוֹמְדִין אוֹתוֹ לְמִיתָה. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן, וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – מְשַׁלֵּם נֶזֶק וָצַעַר לַיּוֹרְשִׁים. מֵאֵימָתַי מְשַׁלֵּם? מִשָּׁעָה שֶׁהִכָּהוּ. וּסְתָמָא כְּרַבִּי נְחֶמְיָה.

If the victim was expected to die but recovered, the assailant is exempted; if the recovery is partial, the assailant pays damages. But if, after the court’s determination, the victim suddenly got worse and died, there’s a dispute: Rabbi Nehemiah believes that the assailant gets off because of the trial is over (double jeopardy!). Other rabbis believe that you reopen the case, as the intermediate assessment was erroneous and the earlier assumption that the victim was to die was correct. A different baraita requires a reassessment of the victim as his condition changes; if the assailant paid the victim damages after a partial recovery and then the victims died, the assailant pays damages to the victim’s family. The damages cover for the pain and suffering since the assault, rather than dating back to incurring the preexisting condition.

[1] The multiple assailants issue is the last one I studied with my father when he was hospitalized. May any merit derived from our learning today exalt the memory of my dad’s wisdom and goodness.

A Ray of Sunshine

Sagi Dekel-Hen, who has returned from 500 days in captivity, sings a beautiful song about a ray of sunshine with his family and friends.

That’s it. That’s everything.

Peculiar Murders: b.Sanhedrin 77

PROFESSOR CALLAHAN:Ms. Woods, would you rather have a client who committed a crime malum in se or malum prohibitum?
ELLE: Neither.
CALLAHAN: And why is that?
ELLE: I would rather have a client who’s innocent.
CALLAHAN: Dare to dream, Ms. Woods. Ms. Kensington, which would you prefer?
VIVIAN: Malum prohibitum. Because then the client would have committed a regulatory infraction as opposed to a dangerous crime.
CALLAHAN: Well done, Ms. Kensington. You’ve obviously done your homework. Now let us look at malum prohibitum a little more closely. It has been said…
He sees Elle’s raised hand.
CALLAHAN: Yes, Ms. Woods?
ELLE: I changed my mind. I’d pick the dangerous one ’cause I’m not afraid of a challenge. –Legally Blonde

One of the mainstay features of the first year of law school is an assortment of bizarre hypotheticals about unusual murders. The reason law professors make up these strange scenarios is to train students in understanding principles of action, omission, and especially indirect causality–an unsavory but effective way to develop lawyerly thinking. Much as I understood the pedagogical value of this stuff, I kind of recoiled from inculcating people with outlandish scenarios when the bread-and-butter cases they would encounter in practice called for more attention; this is partly why I taught substantive criminal law very differently in 2005-2006 and much later, in 2012. But Talmudic sages live for this stuff, because they feel an obligation to build a towering shrine of logic for every word in the Torah and in the Mishna, and the latter source holds that a murderer is to be decapitated. So, here come mountains of expounding on who counts as a murderer and who does not.

At common law and most U.S. jurisdictions, a person is culpable of homicide by act or omission (the omission must come with a duty to act; there is no inherent duty to save every person on the planet, only those whose dangerous situation you created or to whom you owe special care by contract, statute, or relationship). For one’s act or omission (A) to cause another’s death (B), A has to happen before B, and it must also be established that: had A not occurred, B would not have occurred, and there is some proximity in time and circumstances between the two.

As you’ll see from the following examples, the Talmudic causality logic is pretty straightforward, and very similar to the common law rule. A person is culpable of murder if he strikes the victim with a stone or with iron (any size is lethal, says Shmuel), or holds a victim underwater or in a fire (unless the victim can extricate himself but for some reason does not). Siccing a dog on a victim is murder, but according to some, doing the same with a snake is not (as the snake has a mind of its own). If A pushes B under water, but C holds B down, C is responsible for the murder. It even might be possible that A is not responsible, if his contribution ws not the lethal one.

What if A exposes B to the elements, and B dies of natural consequences (e.g., confined to a hot place and dies of heat, or tied up and dies of starvation)? The causation here is indirect, as the immediate cause of death will appear to be “natural”, but of course there is criminal accountability here, as it is the action of the murderer that creates the conditions for the natural cause of death. It is, however, crucial to figure out whether exposing B to the dangerous situation guaranteed the lethal outcome. According to Rava, for example, tying a person in front of a lion is not murder (the lion might not be hungry), but in front of mosquitoes is (they will inevitably bite). According to Rav Ashi, even the mosquitoes have a choice.

A dispute between Rava and Rav Zeira involves a situation in which A overturns a vat on B, and the latter dies of suffocation. The redaction is unclear about who thought what. Some believe Rava would acquit, because he would also exempt A from tying up B who dies of starvation. Others believe Zeira would acquit, because he woudl exempt A from putting B in a sealed marble house unless he lit a lamp emitting poisonous fumes in it (an issue of proximate cause).

A few more scenarios follow, which are trying to get at problems of indirect causality (what today’s criminal law scholars would call “lack of proximate cause” but, at least to me, the logic does not track well, and is certainly less persuasive than the previous round:

  • A pushes B into a pit with a ladder. Later, C removes the ladder (or even A removes the ladder himself). The sages acquit A, because at least initially, B could have used the ladder to escape.
  • A shoots an arrow at B, who holds a shield. If, after the arrow was shot but before it reaches its target, C removes the shield (or even A somehow traverses the time/space continuum and removes the shield), A is to be acquitted, as when he shot the arrow B was still shielded.
  • A shoots an arrow at B, who holds medicinal herbs that can heal the wound. If C snatches the herbs from B (or even if A snatches them) before he can heal, A is exempt, as when he shot the arrow B could have saved himself.
  • The latter scenario, says Rav Ashi, holds true even if B didn’t hold the herbs, but they were available at the market.

The page ends with some examples that have to do with dangerous items that rebound:

  • A throws a stone to kill B. The stone rebounds off a wall and kills C; A is accountable (this is known in modern criminal law as “transferred intent.”
  • Same story if A, B, and C play ball, which rebounds and hits D. If they intended to hit D, they are culpable (as a silly aside, if they did not intend to, they can go to exile, for which the term is “golin”, and the association with a goal is, at least for me, inevitable).
  • If A throws a ball that hits B within four cubits (אַמּוֹת) of A’s location, A is not culpable, as it was not his intent to throw the ball such a short distance–though other dispute this and say that intent governs the outcome, regardless of distance.
  • The outcome of rebounding and diverting objects has to do with the expected physical outcome of the action. If A diverts water from its course and the flow kills B, A is liable if he exercised enough force, or diverted the water, with sufficient pressure to kill. Similarly, if one throws an object up, the object is bound to come down, but if it takes some unexpected turn to the side and kills someone, the thrower is not liable.

This concludes page 77, which carries both me and you through the end of Tuesday, by which time my busy solo parenting will come to an end and we can resume on Wednesday with page 78 right on schedule with the rest of the Jewish world. More basic homicide law to come, so stay tuned. Happy rosh hodesh (beginning of the Jewish month) and Shabbat Shalom!

The Limits of Propriety: b.Sanhedrin 75-76

Our new sugiyah, וְאֵלּוּ הֵן הַנִּשְׂרָפִין (“and these are to be burned”), is a compendium of substantive criminal law rulings debating the definition of offenses punishable by burning and by beheading. The first page and a half, to which we turn here, addresses people committing various forms of incest and thus liable to be burned.

We’re not going to go into all the details, but we’ll discuss two principles of statutory interpretation employed by the sages to figure out which familial relationships pass the test of propriety and which do not.

Logical Inferences from Other Contexts: Dun Mina – דּוּן מִינַּהּ

This Talmudic rule has to do with situations in which the appropriate rule for a situation that appears in Context A of the Talmud is derived via analogy from a situation that appears in Context B. Oftentimes, this has to do with a similar turn of phrase. For example, in our issue, the appearance of the term ״זִמָּה״ (lewdness) in different rules leads the sages to infer that if one sexual liaison is forbidden, so is the other. Thing is, these sorts of prohibitions are very common in the biblical and mishnaic text, and they appear in a variety of contexts.

Let’s assume that we need to figure out what the rule is in case 1, which appears in the Talmud in context A. Case 1 shares some unique linguistic feature with case 2, which appears in context B–and we know what the rule in case 2 is. Because of the similarities, we assume that the same rule applies to case 2. But it turns out that there are all kinds of details and adjacent issues in context A that relate to case 1. Should these be resolved according to context A, in which our case is embedded, or in context B, from which we learned the rule? There are two approaches:

  1. Dun Minah u-Minah (״דּוּן מִינַּהּ וּמִינַּהּ״) is a situation where not only the rule in case 1, but all the relevant details, should be derived from context B, because that’s where we learned the rule (by analogy from case 2).
  2. Dun Minah ve-Okay be-Atrah (״דּוּן מִינַּהּ וְאוֹקֵי בְאַתְרַהּ״) is a situation where we learn the rule in case 1 from case 2, but the extant details are deduced from context A.

As above, so below

The page deals with lots of relatives from earlier generations and from later generations. In several of these scenarios, we are told that the rule going upward in the family tree must mirror the rule going downward; e.g., the prohibition on getting involved with, say, one’s great-granddaughter implies a prohibition on getting involved with, say, one’s great-grandmother.

***

As an aside, the page also admonishes people who sabotage their daughters’ lives by marrying them off inappropriately. A baraita says, ״אַל תְּחַלֵּל אֶת בִּתְּךָ לְהַזְנוֹתָהּ״ (do not prostitute your daughter), and the sages think that an inappropriate marriage can set the stage for this lamentable situation. Rabbi Eliezer thinks that a man who marries his daughter to an old man is profaning her; Rabbi Akiva thinks that it is also inadvisable to delay the marriage of a grown daughter. Rav Yehuda adds the scenario of marrying a young woman to a young boy. They all agree that the righteous way to prevent unhappiness and tragedy is to marry daughters to appropriately-aged men, and at the appropriate time.

Lots more going on here, but much of it is pedantic, lewd, or both, and I’m eager to move along to the interesting matter of causality in murder, which awaits us on page 77.

Standing Up to Villains: b.Sanhedrin 73-75

We’re still running a few days ahead of the universal schedule given that I have a few days of solo parenting and soccer league chaperoning ahead of me, and I don’t want any of you to fall behind. I have to say, reading and fully understanding all the twists and turns in each and every talmud page is a lot of work, and it’s amply clear to me what keeps all those Ultra-Orthodox yeshiva bochers busy all day long. I also have newfound appreciation for Orthodox podcasters who deliver fifteen-minute daf commentaries. Listening to the podcasts is like watching paint dry–nay, like listening to paint dry–but the person pre-digests the page for you so you don’t have to and there is real intellectual labor that goes into the product. Our project, though, is different–we’re following the things that are interesting, educational, and relevant to fostering a culture of logic and debate, and setting aside things that are better off tucked away in the Sixth century where they belong. There’s a little bit of both in today’s portion, but on the upside, we’re finishing the Rebellious Son sugiyah today–our second full, completed sugiyah! I even have a sticker for you, but you’ll have to follow along till the end of the post.

In keeping with the Minority Report, karmic-preserving preemptive killing theme from yesterday, the mishna that the sages are commenting on specifies that there are a few criminals for whom we “do the favor” of killing them before they complete their crime, so that they die as (still) righteous people:

מַתְנִי׳ וְאֵלּוּ הֵן שֶׁמַּצִּילִין אוֹתָן בְּנַפְשָׁן: הָרוֹדֵף אַחַר חֲבֵירוֹ לְהׇרְגוֹ, וְאַחַר הַזָּכָר, וְאַחַר הַנַּעֲרָה הַמְאוֹרָסָה. אֲבָל הָרוֹדֵף אַחַר בְּהֵמָה, וְהַמְחַלֵּל אֶת הַשַּׁבָּת, וְעוֹבֵד עֲבוֹדָה זָרָה – אֵין מַצִּילִין אוֹתָן בְּנַפְשָׁן

You may kills those who pursue others to murder or rape them, but not for those who chase animals, violate the Sabbath, or worship idols. But why? I’m not entirely clear whether the gemara is invested in the “defense of others” affirmative defense, which allows you to kill A to save B from death or from rape, or whether this is another iteration of the preemptive karma-saving principle from b.Sanhedrin 72, where you kill A preemptively to save his soul from dying a killer or a rapist. Either way, the example the sages give is what you would do for a friend who is drowning, dragged by an animal, or mugged by criminals; there’s an obligation to rescue in such situations; this is the precursor to the Good Samaritan story, if you will, and to many Good Samaritan laws in modern jurisdictions.

If we buy the straightforward idea that the permission to kill is in order to save the victim, that explains why the gemara requires the rescuer to even hire help to do the rescuing. But that doesn’t explain why, in the next verse, someone proposes that the permission to kill is not given when rescuing, say, a widow from a High Priest (which is not a mortal sin but a mere prohibition). Is it because the latter scenario is not a threat to the widow? Or is it because the High Priest’s soul doesn’t need karmic saving by killing? In any case, you’ll be relieved to know that the sages specify that you must rescue from rape not only men, but also women (lest you think, they helpfully explain, that raping women is “the natural way” and thus not a dire victimization scenario. Ugh.) You’d think that, given that the rescue obligation exists with regard to both male and female victims, the misnah would not need to specify both cases; however, given that the intent is to prohibit killing people who, say, merely worship idols to preemptively save their karma, they do need to specify the cases in which they do grant permission.

I also find it notable that Rabbi Yehuda requires using force to save the girl even if she says, “leave [my attacker] be,” because she’s likely saying that שֶׁלֹּא יַהַרְגֶנָּה, so that he doesn’t kill her–they recognize various scenarios that victims might experience: trying to fight back, or fearing for one’s life so much that you don’t dare fight back. And it’s even more notable that, at least in the case of this page, all of these sentiments seem legitimate to the sages. Still, we’ll leave some of their less enlightened commentary behind, and move on.

Another issue has to do with the proportionality of force. Abaye presents the possibility that the victim can be saved through merely injuring, rather than killing the victim. And Rabbi Yonatan ben Shaul even pushes things further: if such a rescue is possible, and the rescuer nonetheless uses excessive force and kills the attacker, the rescuer is liable for murder. This idea is captured in modern criminal law theory as imperfect self defense.

Another interesting idea is the question of a serious charge subsuming a less serious one. If the pursuer, who is punishable by death, also breaks some dishes in his pursuit, they don’t require him to pay the fine, because the murder or rape far eclipse the monetary value. You’ll be happy to know that, if the pursued party breaks some dishes of the pursuer in fleeing for their life, they are not liable–though if they break dishes of a third party they do need to pay, which seems a bit petty under the circumstances, n’est ces pas?

The last idea I want to discuss has to do with the term יֵהָרֵג וְאַל יַעֲבוֹר (“he shall be killed and not transgress”), which is applied here to some biblical prohibitions but not to others. In modern colloquial Hebrew, this turn of phrase is used to specify laws that prohibit very serious crimes, and the intent is similar here, though there’s a semantic twist that seems important: the idea is that the transgressor himself, on some karmic level, would prefer to be killed than to suffer the disgrace of the transgression (of committing a murder or a rape). This ties some loose ends to the notion of preemptive punishment.

The imagined world of transgressors in this section is interesting to me. It reminds me of the tragic, tortured origin stories that Marvel Comics villains have so often; many of these tropes imply that the villainy stems from some sort of tortured death wish or a desire to get caught–there’s almost relief when they get shipped to the Arkham Institute for the Criminally Insane or somesuch. Is this a deep recognition that “hurt people hurt people”? Or that, ultimately, even those who experience the might of a punitive system desire it in some way?

Well done, folks! We’ve just finished the sugiyah of the rebellious son. We learned how laws that cannot be abolished can be interpreted to within an inch of their existence to practically sabotage their enforceability, and also how various theories of punishment, assumptions about compassion and relationships, and obligations to save others play into rabbinic legal logic.

Whenever my son’s soccer or gymnastics class is over, he gets a sticker, which I think is a nice way to celebrate accomplishments, so from now on, whenever we finish a sugiyah, you all get a sticker!

Punishing Future Crimes: b.Sanhedrin 72

The concept of the movie Minority Report (2002) involves a futuristic police force that can predict future crimes and intervene, as well as preemptively punish the to-be-offenders. One of my favorite lines, which you’ll hear in this trailer, is “I’m placing you under arrest for the future murder of Sarah Marks.”

I bring this up because Thursday’s daf (still trying to stay ahead of the game because of the busy weekend ahead) deals with the deeper philosophical questions undergirding such a harsh punishment for teenagers. The mishna says:

מַתְנִי׳ בֵּן סוֹרֵר וּמוֹרֶה נִידּוֹן עַל שֵׁם סוֹפוֹ. יָמוּת זַכַּאי וְאַל יָמוּת חַיָּיב, שֶׁמִּיתָתָן שֶׁל רְשָׁעִים – הֲנָאָה לָהֶן וַהֲנָאָה לָעוֹלָם.

The idea is that the son’s behavior predicts future wrongdoing, and it’s a karmic benefit, of sorts, for the son to die before the more serious crimes are bound to occur. Rabbi Yosei predicts:

הִגִּיעָה תּוֹרָה לְסוֹף דַּעְתּוֹ שֶׁל בֵּן סוֹרֵר וּמוֹרֶה, שֶׁסּוֹף מְגַמֵּר נִכְסֵי אָבִיו וּמְבַקֵּשׁ לִמּוּדוֹ וְאֵינוֹ מוֹצֵא, וְיוֹצֵא לְפָרָשַׁת דְּרָכִים וּמְלַסְטֵם אֶת הַבְּרִיּוֹת.

We already know, he explains, that this kid is a wrong ‘un, and will eventually eat up his father’s assets, forsake his schooling, and end up a highway bandit.

In the context of teens, the incapacitative punishment rationale might seem extreme. Indeed, the last two decades have seen advances in neuroimaging and developmental psychology that suggest that the prefrontal cortex, which is responsible for restraint, self control, perspective taking, and other salutary aspects of cognitive and emotional maturity, continues developing well into a person’s mid-20s. These findings have contributed, in the United States, to a more enlightened view on juvenile punishment, such as the abolition of the death penalty and narrowing the framework of life without parole–with the understanding that juveniles have the capacity to change. Still, the idea of incapacitation and that “people don’t change” has a lot of popular and policymaking purchase, and the sages are no different.

The issue of preemptive punishment of rebellious sons serves as a gateway for the rest of the daf, which addresses other predictive punishments, especially that of burglars. At issue is the Talmudic self-defense regime. Generally speaking, common law recognizes three aspects of self-defense: (1) stand your ground (permitting any person facing a violent attack to defend themselves), (2) castle doctrine (limiting the immunity from prosecution to people in their own home), and (3) duty to retreat (requiring the person to leave the situation unless there is no other choice). Most of the burglar discussion that follows engages with something akin to the castle doctrine.

According to the Mishna, burglars, like rebellious sons, are preemptively punished–namely for the possibility that the homeowner will kill them to defend his property. The gemara predicts the encounter will play out in this way: the burglar, predicting that the homeowner will resist the burglary, will decide to preemptively kill the homeowner. But if the burglar gets out safely with vessels, there’s some controversy over whether he is liable for the theft: according to Rav, presumably the deterrent effect is unnecessary, since the person was willing to risk death when he came in, and the vessels are still legally owned by the homeowner.

An intervening factor is the question whether, in killing the burglar, the homeowner would be justified or not (such as if it is a father killing a son). If not, says Rav, then even if the burglar breaks something in the house, he is not liable for it; but Rava and the the other sages disagree and would charge the burglar for the destruction. You’d think the majority opinion here is obvious–you break it, you pay for it–but what they want to highlight is that the burglar is liable even if the damage was unintentional.

The next issue has to do with the proper punishment when two transgressions occur: a theft and a Shabbat violation. Since, for the latter, one is to die by stoning, what happens if one steals a purse during Shabbat? According to Rav Bivai, picking up the purse happened before the Shabbat violation (as only carrying the purse into the public domain would be a violation of Shabbat) and thus the person must pay for the theft (presumably before being stoned). But if the person dragged the purse without picking it up, then the violation and the Shabbat violation occur simultaneously, and then the person must only be stoned. Still, the gemara says, the burglar must return the purse, and if he destroys it, he must compensate for it.

There’s a weird anecdote about the controversy between Rava and Rav: once, Rava’s rams were stolen by burglars. When they came back to return them (nice burglars!), Rava said, “keep them–according to Rav you have acquired them by stealing them.” I’m assuming that Rava is being cynical here and trying to use this scenario to show the absurdity of Rav’s position, but I also worry that the irony will be lost on the burglars and they’ll just keep the rams.

The rabbis now turn to figure out when the homeowner may kill the burglar. The baraita says: ״אֵין לוֹ דָּמִים. אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו״ (“if the sun shone on him, no blood shall be shed on his account.” The sages think that this intends to elucidate that, [only] if it’s as clear as sunlight that the burglar intends to kill you, you may kill him first. Unfortunately, there’s also a contradictory baraita: ״אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו דָּמִים לוֹ״ (“if the sun shone on him, blood shall be shed on his account”), and the rabbis resolve this by saying that if it is clear that the burglar comes in peace, the homeowner must refrain from killing him. But this leaves a contradiction: what happens if the homeowner is unsure of the burglar’s intentions? The rabbis resolve this by assuming that the first case involves a father burglarizing his son’s residence: the father has compassion for the son, and thus the son might safely assume that his father would not kill him, and should therefore refrain from killing the father. The second case involves a son burglarizing the father’s residence, where the father has no guarantee of the son’s nonviolence and thus more likely to kill him.

This sounds nuts, because paradoxically this bit gives the father more leeway for self-defense than the son. So, perhaps to alleviate the tension, Rav interjects and says that he would kill anyone who broke into his house except for Rav Hanina, because it’s well known that Hanina is a righteous man and would mean him no harm. The others raise their eyebrows: if Hanina is such a righteous man, why would he break into Rav’s house? Rav explains: even if he did, he would have mercy on me like a father has on his son.

What about a burglar caught on Shabbat? That depends on which of the contradicting baraitas you prefer. If you prioritize the self-defense of the homeowner, it can be exercised on a weekday as well as on Shabbat. If you prioritize the burglar’s safety, Rav Sheshet explains that the burglar must be saved if he is critically injured during the crime.

As to who has standing to kill in self-defense, the rabbis interpret the baraita to apply only to the homeowner himself (whose property is at risk from the burglar), not to third parties. But if the burglar is likened to a רוֹדֵף (pursuer), whom anyone can kill to save the pursued party, why limit the right to self-defense? Incidentally, modern criminal law typically includes defense of others as well as self-defense, but this is more complicated, from a philosophical standpoint, than it appears. Anyway, the bible’s use of passive voice in the context of a murderer, מוֹת יוּמַת (“he shall be put to death”) is implied to apply here too, in terms of a universal permission and a universal mode of execution. But other sages worry that the law of murderers does not apply here, as it appears in proximity to the law of vendettas, and as we’ve seen in a prior verse, having two cases together implies that they are not aiming to elucidate a general principle but rather to specify the law as to those two cases.

When describing the burglary scenario, the biblical text uses the term מַחְתֶּרֶת (actually entering the property). While the sages believe that burglars are liable regardless of whether they are found in the property or on the roof, in the backyard, etc., the idea is that an act of breaking in obviates the homeowner’s need to forewarn the burglar: מַחְתַּרְתּוֹ זוֹ הִיא הַתְרָאָתוֹ, the break-in itself constitutes the warning.

We end with a few final insights about pursuers and self-defense against them:

If the pursuer is a minor, it might be possible to rescue the pursued party without killing him; nevertheless, Rav Huna believes the killing is permitted, because he disputes the aforementioned need for forewarning.

If a pregnant woman’s life is threatened by her fetus (the pursuer, in this case), it is okay to save her by killing the fetus, unless the head is already out–even though the baby is considered a live person, what is really pursuing the woman is misfortune from the heavens, rather than the newborn (I can think of many discomfiting permutations of this logic).

A third party who sees hot pursuit may try to dissuade the pursuer from killing the pursued, but it is not necessary (because forewarning is not required–or, at least, not required when it appears that the person is acting with intent). The only time the forewarning is required is when the third party cannot rescue the pursued party because he is standing on the other side of a river.

Fleeing Justice: b.Sanhedrin 71

In keeping with the general theme of this sugiyah, today’s page features four Gemaraic takes on Mishnaic rules designed to narrow the unpalatable rebellious son rule as much as possible. The trend remains the same: the Mishna narrows the rule in the Torah, and the Gemarah narrows it further.

The first rule has to do with a son who steals:

מַתְנִי׳ גָּנַב מִשֶּׁל אָבִיו וְאָכַל בִּרְשׁוּת אָבִיו, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אֲחֵרִים, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אָבִיו – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וְיֹאכַל בִּרְשׁוּת אֲחֵרִים. רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וּמִשֶּׁל אִמּוֹ.

The gemara explains the two relevant factors: the difficult of going through with the theft and the extent to which fearing apprehension will deter the son from further crime. This, by the way, is straight out of the playbook espoused today by situational crime prevention experts. In their work on routine activity theory, Cohen and Felson say that the likelihood that crime will be committed is a function of the convergence in time and place of three factors: likely offenders, suitable targets, and the absence of capable guardians against crime. Assuming that our kid is a bad ‘un, what remains is to make the target less accessible and the guardian more potent. Accordingly, stealing from your father is easy, but eating on your father’s property puts you in fear of your dad catching you and will thus discourage you from reoffending. Stealing from others is difficult, but if you eat it on your father’s property, you still could be frightened into going straight. Stealing from others is hard to do, and thus daunting. So, it is only the son who steals from his father and eats it elsewhere who counts are rebellious.

A further limitation requires stealing from both parents. Presumably, whatever the mother has belongs to the father (ugh), so the rebellious son gets dinged for stealing from a meal prepared to both of them (to purchase himself the aforementioned cheap meat and wine), or from stealing from property designated as belonging to the mother only.

The second rule requires both parents to be on board with declaring their son a rebellious one:

מַתְנִי׳ הָיָה אָבִיו רוֹצֶה וְאִמּוֹ אֵינָהּ רוֹצֶה, אָבִיו אֵינוֹ רוֹצֶה וְאִמּוֹ רוֹצָה – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיְּהוּ שְׁנֵיהֶם רוֹצִין. רַבִּי יְהוּדָה אוֹמֵר: אִם לֹא הָיְתָה אִמּוֹ רְאוּיָה לְאָבִיו, אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה.

The gemara goes further than that: they start off by trying, for size, the idea that if the parents aren’t a good match from a halakhic perspective then they can’t be on board with each other. Then again, one might have parents who are not married to each other and nevertheless both on board with declaring him rebellious. So, the gemara argues that the parents have to be on par with each other, so that their uniform declaration ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ (“he doesn’t listen to us”) sounds homogenous. So, they have to have a similar voice, visage, and height מִדְּקוֹל בָּעֵינַן שָׁוִין, מַרְאֶה וְקוֹמָה נָמֵי בָּעֵינַן שָׁוִין.

If you think, “this is ridiculous! They’re just finding any excuse to ensure that no one gets labeled rebellious,” you’re absolutely right, and they are aware of it and say so explicitly: בֵּן סוֹרֵר וּמוֹרֶה לֹא הָיָה וְלֹא עָתִיד לִהְיוֹת – a rebellious son has never existed and will never exist. This rule, they say, exists just for the sake of learning it–same as the Draconian rule about destroying idolatrous cities. The funny thing is that one rabbi, Rabbi Yonatan, is not on board with the rest, and says, “I saw a rebellious son’s grave once.” Then, when they all exclaim that an idolatrous city also cannot exist, he pipes up again saying, “I saw one once.” Rabbi Yonatan reminds me of the sole “non-individual” in this immortal Life of Brian scene:

The third rule creatively interprets the biblical text to exclude sons of people with various disabilities:

מַתְנִי׳ הָיָה אֶחָד מֵהֶם גִּידֵּם, אוֹ חִיגֵּר, אוֹ אִלֵּם, אוֹ סוֹמֵא, אוֹ חֵרֵשׁ – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה, שֶׁנֶּאֱמַר: ״וְתָפְשׂוּ בוֹ אָבִיו וְאִמּוֹ״ – וְלֹא גִּדְמִין, ״וְהוֹצִיאוּ אֹתוֹ״ – וְלֹא חִגְּרִין, ״וְאָמְרוּ״ – וְלֹא אִלְּמִין, ״בְּנֵנוּ זֶה״ – וְלֹא סוֹמִין, ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ – וְלֹא חֵרְשִׁין. .

Let’s recap: since the biblical rule requires the parents to (1) catch the son, (2) take him out, (3) speak up and say (4) “this is our son… (5) he doesn’t listen to us” they must have all their limbs in good functioning order, they must be able to speak, see, and hear. If this strikes you as silly, remember the end goal: to make sure the rule is unenforceable.

In the extremely unlikely event that some unlucky rebellious kid does face the court, the mishna specifies the procedure to follow:

מַתְרִין בּוֹ בִּפְנֵי שְׁלֹשָׁה, וּמַלְקִין אוֹתוֹ. חָזַר וְקִלְקֵל – נִדּוֹן בְּעֶשְׂרִים וּשְׁלֹשָׁה, וְאֵינוֹ נִסְקָל עַד שֶׁיְּהוּ שָׁם שְׁלֹשָׁה הָרִאשׁוֹנִים, שֶׁנֶּאֱמַר: ״בְּנֵנוּ זֶה״ – זֶהוּ שֶׁלָּקָה בִּפְנֵיכֶם.

The kid gets warned before two people, then flogged before three (which is a legal court). The sages deduce this flogging process–akin to the 1980s practice of administering a “short sharp shock” or what today’s probarion officers call “flash incarceration” to scare people straight–from a similar procedure prescribed in the bible for defamers. If the kid recidivates, he is to face justice before 23 judges, including the former three, and identified again by the parents.

The fourth rule has to do with a kid who flees his trial for rebelliousness before reaching puberty :

מַתְנִי׳ בָּרַח עַד שֶׁלֹּא נִגְמַר דִּינוֹ, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – פָּטוּר. וְאִם מִשֶּׁנִּגְמַר דִּינוֹ בָּרַח, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – חַיָּיב.

In the two prior pages, you’ll recall, the sages tried to limit the application of the rebellious son doctrine to teenagers within a rather narrow timeline of their maturation process. The situation covered here is of a kid who was still within that range but not yet found guilty and managed to run away. If that kid is found afterwards, when they are beyond the allowed age range, he will have successfully escaped the law. However, if there’s a verdict already and then the kid runs, he will face justice after he is apprehended. The analogy proposed by Rabbi Hanina is of a gentile who curses God and later converts to Judaism. הוֹאִיל וְנִשְׁתַּנָּה דִּינוֹ, נִשְׁתַּנֵּית מִיתָתוֹ (as his legal situation has changed, his fate changes as well). The analogy is not perfect, but the idea is that once the verdict is pronounced, the rebellious son is already a dead man and thus cannot escape his fate.

This principle reminds me a lot of the distinctions made between substantive and procedural new law for the purpose of retroactivity. If, for example, a new law exempts a category of people from punishment (e.g., no more death penalty for juveniles), it acts retroactively. If the change is merely procedural (e.g., new wrinkle to jury selection), it only operates prospectively. And if the case is final, generally speaking, new rules will not apply nor will they be announced.

On Stuffing Your Face: b.Sanhedrin 70

Today the sages continue with their project of defining the rebellious son as narrowly as possible. Part of the biblical definition of a rebellious son includes the description זוֹלֵל וְסֹבֵא, which means excessively stuffing one’s face with food. The goal of today’s page is to provide the most outlandishly extreme benchmarks for eating, which made me think of a book I read last week: Jason Fagone’s excellent (and marvelously titled) Horsemen of the Esophagus.

Jason, currently an investigative reporter with the San Francisco Chronicle, is someone I like, admire, and respect a lot from back in the days that we were both at the front lines of the COVID-19-in-prison crisis. He was part of the team that broke the story about the San Quentin outbreak and was reporting heartwrenching stories that shocked and surprised even those of us who were on the phone every day with the people inside and their families. I therefore value not only his turn of phrase, but also his vast empathy and curiosity. And both of those qualities are in full display even in this earlier work. There would be nothing easier than to present competitive eaters as freakish and grotesque, or as dupes of crass marketing ploys, but Jason takes them and their project seriously, on their own terms; they are aware of the financial side of the enterprise and the health risks, but they treat what they do seriously, consider themselves athletes, and have a considerable part of their identities wrapped up in these competitions.

Some of the descriptions of food in this daf reminded me of Jason’s book, as will become immediately apparent. The starting point is the Mishna, which says:

מֵאֵימָתַי חַיָּיב? מִשֶּׁיֹּאכַל תַּרְטֵימָר בָּשָׂר, וְיִשְׁתֶּה חֲצִי לוֹג יַיִן הָאִיטַלְקִי. רַבִּי יוֹסֵי אוֹמֵר: מָנֶה בָּשָׂר, וְלוֹג יַיִן. אָכַל בַּחֲבוּרַת מִצְוָה, אָכַל בְּעִיבּוּר הַחֹדֶשׁ, אָכַל מַעֲשֵׂר שֵׁנִי בִּירוּשָׁלַיִם, אָכַל נְבֵילוֹת וּטְרֵיפוֹת שְׁקָצִים וּרְמָשִׂים (אָכַל טֶבֶל וּמַעֲשֵׂר רִאשׁוֹן שֶׁלֹּא נִטְּלָה תְּרוּמָתוֹ וּמַעֲשֵׂר שֵׁנִי וְהֶקְדֵּשׁ שֶׁלֹּא נִפְדּוּ). אָכַל דָּבָר שֶׁהוּא מִצְוָה, וְדָבָר שֶׁהוּא עֲבֵירָה, אָכַל כׇּל מַאֲכָל וְלֹא אָכַל בָּשָׂר, שָׁתָה כׇּל מַשְׁקֶה וְלֹא שָׁתָה יַיִן – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיֹּאכַל בָּשָׂר וְיִשְׁתֶּה יַיִן, שֶׁנֶּאֱמַר: ״זוֹלֵל וְסֹבֵא״. וְאַף עַל פִּי שֶׁאֵין רְאָיָה לַדָּבָר, זֵכֶר לַדָּבָר שֶׁנֶּאֱמַר: ״אַל תְּהִי בְסֹבְאֵי יָיִן בְּזֹלְלֵי בָשָׂר לָמוֹ״.

So according to the Mishna, to be a rebellious son you have to be a glutton in all the following ways: (1) eat both meat and wine, to the tune of (2) a tharteimar (?) of meat and (3) half a log of Italian (!) wine, (4) eat non-kosher things, (5) not eat in a group and (5) not eat something that is a mitzvah to eat. That doesn’t leave you with a lot of transgressive meals, so to rise to the level of a rebellious son it has to be a truly outrageous, over-the-top meal indeed. Can the Gemara sages top that?

How much meat and wine? Rabbi Zeira doesn’t know what a “tharteimar” is, but believes that since the wine amount is double what you expect someone to consume, it’s the same re the meat portion, and so a “tharteimar” is “half a maneh”.

What cost of meat and wine? According to Rav Huna, inexpensive stuff (paraphrasing Woody Allen–the food was so bad and the portions so big).

How should the meat and wine be prepared? Rav Hanan cites Rav Huna: raw meat and “live” (unstrained? undiluted?) wine. Others disagree and think eating these things is actually fine. Ravina proposes a compromise: medium-rare meat and improperly diluted wine. Rabba & Rav Yosef: eating salted meat is fine, as is drinking wine straight from the press (essentially grape juice). This last comment leads to a long segue about the kosher qualities of salted meat, how long is should be salted for, and how long the wine should ferment for (three days, says a baraita, which I think should surprise some friends in Napa and Sonoma).

The concern with the rawness of the meat and wine has to do with what can and cannot be eaten on Tish’a be-Av, the memorial day for the destruction of the temple. But that discussion is a good springboard for a general round of commentary about the virtues of drinking in moderation. The various rabbis provide some zingers, with which you can charm everyone at your next pub crawl, champagne tasting, or AA meeting:

אָמַר רַב חָנָן: לֹא נִבְרָא יַיִן בָּעוֹלָם אֶלָּא לְנַחֵם אֲבֵלִים, וּלְשַׁלֵּם שָׂכָר לָרְשָׁעִים, שֶׁנֶּאֱמַר: ״תְּנוּ שֵׁכָר לְאוֹבֵד וְיַיִן לְמָרֵי נָפֶשׁ״.

Wine is for comforting mourners and paying the wicked (so that they rejoice in this world but not the next).

אָמַר רַבִּי יִצְחָק: מַאי דִּכְתִיב ״אַל תֵּרֶא יַיִן כִּי יִתְאַדָּם״? אַל תֵּרֶא יַיִן שֶׁמַּאֲדִים פְּנֵיהֶם שֶׁל רְשָׁעִים בָּעוֹלָם הַזֶּה, וּמַלְבִּין פְּנֵיהֶם לָעוֹלָם הַבָּא. רָבָא אָמַר: ״אַל תֵּרֶא יַיִן כִּי יִתְאַדָּם״ – אַל תֵּרֶא יַיִן שֶׁאַחֲרִיתוֹ דָּם.

Wine reddens the faces of the wicked and whitens it (with shame) for the next world.

רַב כָּהֲנָא רָמֵי: כְּתִיב ״תִּירָשׁ״ וְקָרֵינַן ״תִּירוֹשׁ״. זָכָה – נַעֲשֶׂה רֹאשׁ, לֹא זָכָה – נַעֲשֶׂה רָשׁ.

The term for sweet juice, tirosh, is a play on rosh (head) and rash (poor).

רָבָא רָמֵי: כְּתִיב ״יְשַׁמַּח״ וְקָרֵינַן ״יְשַׂמַּח״. זָכָה – מְשַׂמְּחוֹ, לֹא זָכָה – מְשַׁמְּמֵהוּ. וְהַיְינוּ דְּאָמַר רָבָא: חַמְרָא וְרֵיחָנֵי פַּקַּחִין.

The term “yesamah” (will gladden) can go either way: either you do become glad (mesamho), or you become desolate (meshamemehu)

אָמַר רַב עַמְרָם בְּרֵיהּ דְּרַבִּי שִׁמְעוֹן בַּר אַבָּא, אָמַר רַבִּי חֲנִינָא: מַאי דִּכְתִיב ״לְמִי אוֹי לְמִי אֲבוֹי לְמִי מְדָנִים לְמִי שִׂיחַ לְמִי פְּצָעִים חִנָּם לְמִי חַכְלִלוּת עֵינָיִם (וְגוֹ׳) לַמְאַחֲרִים עַל הַיָּיִן לַבָּאִים לַחְקֹר מִמְסָךְ״? כִּי אֲתָא רַב דִּימִי אֲמַר: אָמְרִי בְּמַעְרְבָא, הַאי קְרָא מַאן דְּדָרֵישׁ לֵיהּ מֵרֵישֵׁיהּ לְסֵיפֵיהּ – מִדְּרִישׁ, וּמִסֵּיפֵיהּ לְרֵישֵׁיהּ – מִדְּרִישׁ.

Wine is associated with fighting and injuries and red eyes.

דָּרֵישׁ עוֹבֵר גָּלִילָאָה: שְׁלֹשׁ עֶשְׂרֵה וָוִין נֶאֱמַר בַּיַּיִן: ״וַיָּחֶל נֹחַ אִישׁ הָאֲדָמָה, וַיִּטַּע כָּרֶם, וַיֵּשְׁתְּ מִן הַיַּיִן, וַיִּשְׁכָּר, וַיִּתְגַּל בְּתוֹךְ אׇהֳלוֹ, וַיַּרְא חָם אֲבִי כְנַעַן אֵת עֶרְוַת אָבִיו, וַיַּגֵּד לִשְׁנֵי אֶחָיו בַּחוּץ, וַיִּקַּח שֵׁם וָיֶפֶת אֶת הַשִּׂמְלָה, וַיָּשִׂימוּ עַל שְׁכֶם שְׁנֵיהֶם, וַיֵּלְכוּ אֲחֹרַנִּית, וַיְכַסּוּ אֵת עֶרְוַת אֲבִיהֶם וּפְנֵיהֶם וְגוֹ׳״, ״וַיִּיקֶץ נֹחַ מִיֵּינוֹ, וַיֵּדַע אֵת אֲשֶׁר עָשָׂה לוֹ בְּנוֹ הַקָּטָן״.

One example of the harms of drinking too much is Noah, whose nakedness was witnessed by his youngest child after he blacked out in his tent. This, by the way, leads to a side discussion about what, precisely, the youngest child did, which we’ll leave out of this. But at least Rabbi Zakai–and possibly also Rabbi Meir connects Noah’s misfortune to the banishment of Adam from Heaven, which he blames on wine (a dispute erupts on whether the infamous tree in Eden was a vine).

שֶׁאֵין לְךָ דָּבָר שֶׁמֵּבִיא יְלָלָה לְאָדָם אֶלָּא יַיִן.

Wine brings about wailing.

In what company? Rebellious sons eat in the company of empty nothings (סְרִיקִין). According to the sages, even if there are some worthy companions, if they are gathered for idle purposes, the rebellious son is still liable.

What’s the timing of the meal? During the full moon, there’s a celebratory meal (to which you’re supposed to arrive at daybreak) with only grains and legumes. But if the rebellious son eats meat and wine there, he’s at least participating in the ritual, so it doesn’t count. Similarly, if the meal is a second tithe in Jerusalem, it’s fine.

What sort of meat? Chicken is fine, according to Rava; insects and creepers are not. But Rava speaks of diet generally, rather than on the excessive addition of bad foods. Transgressive food in itself does not render one a rebellious son, because the essence of the offense is disobeying one’s parents, rather than God.

Meat- and wine-analogues? The rabbis argue that it has to be actual meat and actual wine. Drinking other intoxicating things, like honey and milk, doesn’t count. Also, eating other filling things, like dried figs, does not count.

So, you see, these are very specific, peculiar ways to binge and overindulge; your regular bingeing and overindulgence do not land you in biblical trouble. We will continue to see these narrow interpretations in the next few days.