Film Review: Conclave (2024)

There is a remarkable moment in Edward Berger’s film Conclave in which Cardinal Thomas Lawrence, the Dean of the Conclave of Cardinals assembled to elect a new Pope, sits on the dead pope’s bed, having broken the seal into the holy man’s private chamber to search for evidence of financial malfeasance in the church. On the nightstand of this recently departed man, the most powerful figure in the Catholic church, is an open bible, and on it is a pair of modest reading glasses, mended with tape at the bridge. Lawrence picks up the glasses, holds them close, and his eyes fill with tears. After days of political machination, subterfuge, strategy, plot twists, the simple personal effect cuts to the core of human emotion: Lawrence feels orphaned. His mentor, his father figure, the man he prized and idolized, is gone, and Lawrence, inconsolable, breaks into sobs.

Does this moment of pure, unadulterated grief shake Lawrence into horror at what the papal election has become? At how every player in this complicated, well constructed political drama – the good guys, the bad guys, and everyone in between – has betrayed his principles? At how the vacuum, the power grab, has made all of them into “small, petty men” as one of the other Cardinals says later in the film? After his sobs subside and he finds his emotional bearings, he continues with the search, finding the incriminatory document.

I watched Conclave with great interest. Not just because it is a phenomenal film–not a false note in the script, not a less-than-masterful performance in sight, breathtaking acting, scenery, and costumes–but because I’ve been there. I’ve been at faculty meetings in which Deans were elected, in which new faculty members were appointed, in which colleagues were voted tenure. So I have some <ahem> lived experience </ahem> in the area of putting a group of homo sapiens in a scenario where ambition plays a role, where social advantage is conveyed, and where different values and considerations play a part in sectarian divisions. There is nothing unique about the Conclave: yes, there is ridiculous ceremony and arcane trappings, but aren’t there always ritualized elements in every human encounter? We are interested in these scenarios of group dynamics behind closed doors–jury deliberation is another one–because we have a sense of the major issues that animate these scenarios.

Here are some of the issues that play out, in sophisticated ways, in Conclave. Does the election to an eminent post take into account the personal virtue, the worthiness, of the individual, or is it more important to prioritize a more general policy, or set of values, and then pragmatically select the person who can realistically win office and hold it? How deep (and how low) should we go when inquiring into a person’s past conduct, and how long a memory should we have when assessing, wholesale, a person’s lifetime of goodness? When malfeasance comes to light, who should do the exposing, and how much room must we leave for personal dignity? Is it fair to say that anyone who aspires to high office should be automatically disqualified because aspiration, itself, is a negative trait? At what point does the election start serving the administrative, ritual machine, rather than the ethereal values that the machine is supposed to serve?

Each of the central characters in the film faces these difficult questions and ends up with a different resolution–and almost everybody comes up short. Some are cruder, easier cases. Tedesco, the reactionary Archbishop of Venice, makes every situation into a cudgel to beat his credo into everyone around him. Tremblay, a Canadian liberal cardinal, sees the election as a purely self-motivated power grab and does not shy from lying, stealing, and bribing. Adeyemi, a Nigerian cardinal with conservative views, is nonetheless happy to ride on the wings of diversity until a secret from his past comes to light and then he is seized with fear and begs for secrecy. Bellini, an Italian-American liberal, cares more about steering the church into a more tolerant 21st century than about his own candidacy, and is willing to overlook a lot of moral inadequacies to advance the goal. Even the main protagonist, Lawrence–a fundamentally decent man but no one’s patsy–who exhibits remarkable courage and astuteness as he navigates this complex political landscape–gets tempted, for a brief moment, by the dark side. Having not wanted the papacy at all, he is hell-bent on rooting out corruption and sin, until a window of opportunity briefly opens for him. Earlier in the film, Bellini tells Lawrence that every Cardinal has already secretly picked the name by which he would like to be known as Pope, and Lawrence replies: “I haven’t.” But when the Conclave machinations suddenly thrust Lawrence into a situation where he has a realistic shot at the papacy, he quietly admits to Bellini: “John. . . I would choose John.”

What happens at the end sheds a lot of darkness and light on the proceedings, and I won’t spoil it here. It is a masterpiece that can teach us all about the heaven and hell that we can put each other through when egos get in the way, raising the complicated questions whether full divestment from ego is ever possible.

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.

Other People’s Families: b.Sanhedrin 58

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.

Noah’s Well-Behaved Sons: b.Sanhedrin 57

In the previous page, the sages started discussing whether death sentences for various transgressions apply to non-Jews as well, leading them to reexamine and carefully delineate the scope of the Seven Noahide Obligations (שבע מצוות בני נח) from Genesis 9 1-7:

וַיְבָ֣רֶךְ אֱלֹהִ֔ים אֶת־נֹ֖חַ וְאֶת־בָּנָ֑יו וַיֹּ֧אמֶר לָהֶ֛ם פְּר֥וּ וּרְב֖וּ וּמִלְא֥וּ אֶת־הָאָֽרֶץ׃
וּמוֹרַאֲכֶ֤ם וְחִתְּכֶם֙ יִֽהְיֶ֔ה עַ֚ל כׇּל־חַיַּ֣ת הָאָ֔רֶץ וְעַ֖ל כׇּל־ע֣וֹף הַשָּׁמָ֑יִם בְּכֹל֩ אֲשֶׁ֨ר תִּרְמֹ֧שׂ הָֽאֲדָמָ֛ה וּֽבְכׇל־דְּגֵ֥י הַיָּ֖ם בְּיֶדְכֶ֥ם נִתָּֽנוּ׃
כׇּל־רֶ֙מֶשׂ֙ אֲשֶׁ֣ר הוּא־חַ֔י לָכֶ֥ם יִהְיֶ֖ה לְאׇכְלָ֑ה כְּיֶ֣רֶק עֵ֔שֶׂב נָתַ֥תִּי לָכֶ֖ם אֶת־כֹּֽל׃
אַךְ־בָּשָׂ֕ר בְּנַפְשׁ֥וֹ דָמ֖וֹ לֹ֥א תֹאכֵֽלוּ׃
וְאַ֨ךְ אֶת־דִּמְכֶ֤ם לְנַפְשֹֽׁתֵיכֶם֙ אֶדְרֹ֔שׁ מִיַּ֥ד כׇּל־חַיָּ֖ה אֶדְרְשֶׁ֑נּוּ וּמִיַּ֣ד הָֽאָדָ֗ם מִיַּד֙ אִ֣ישׁ אָחִ֔יו אֶדְרֹ֖שׁ אֶת־נֶ֥פֶשׁ הָֽאָדָֽם׃
שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּ֚י בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם׃
וְאַתֶּ֖ם פְּר֣וּ וּרְב֑וּ שִׁרְצ֥וּ בָאָ֖רֶץ וּרְבוּ־בָֽהּ׃ {ס}     

Some language in our page goes as far as Adam, saying that when God spoke to him and Eve in the garden of Eden and “ordered” him things, it was these Noahide obligations that were being issued. I hope the audacity of this exegetical adventure is clear. If we are following the biblical narrative, these commandments, or requirements, are issued to the first human inhabitants of the planet, at a point at which there are no distinctions between Israelites and non-Israelites, Jews and non-Jews. Thousands of years (presumably) later, after Israelite and Judahite kingdoms rose and fell, we have sages in exile not only proclaiming that the prohibited behaviors still apply to their neighbors (in Babylonia!), but also that the biblical punishment for their violation is execution. This is a truly wild expansion of biblical jurisdiction, and it’s especially cheeky considering that the list was expanded from its biblical version (don’t eat blood from a live animal and don’t kill people) to a list of seven. The list changes depending on which school of sages you prefer, but it includes seven (or more) of the following: The seven, then, are: establishing courts, refraining from blasphemy, refraining from worshipping idols, refraining from incest, refraining from killing, refraining from stealing, and refraining from eating the limbs of a live animal. The extensions proposed by certain sages are the prohibition against drinking blood from a live animal (no vampires, d’ya hear?), castrations, witchcraft, and mixing textile and seeds.

The sages ascribe the origin of these obligations to one verse in Genesis 2–the first divine instructions issued to the first humans in the Garden of Eden (and thus applicable to all humans). The original verse is וַיְצַו֙ יְהֹוָ֣ה אֱלֹהִ֔ים עַל־הָֽאָדָ֖ם לֵאמֹ֑ר מִכֹּ֥ל עֵֽץ־הַגָּ֖ן אָכֹ֥ל תֹּאכֵֽל׃. From וַיְצַו֙ (“ordered”) they deduce the court establishment obligation; from יְהֹוָ֣ה (God’s explicit name), the prohibition on blasphemy; from אֱלֹהִים (God), the prohibition on idolatry; from עַל־הָֽאָדָ֖ם (“on Man”) the prohibition on murder; from לֵאמֹר (“as follows”) the prohibition on incest; and from אָכֹל תֹּאכֵל, the invitation to eat fruit, the prohibition of eating limbs and blood from living animals.

This raises some interesting questions about the extent to which Jews are held to higher standards than non-Jews. For example, does a gentile who makes an idol, but does not actually worship it, deserve death? Apparently, Jews in this situation do not, so, a fortiori, gentiles do not either. Another verse suggests that, in addition to the basic Noahide cable package, the Jews receive the platinum package, which includes the obligations of judgment, keeping Shabbat, and honoring one’s parents.

Amidst the support for various Noahide obligations, the sages quote Genesis 9:3, where God offers Man the following buffet: כְּיֶרֶק עֵשֶׂב נָתַתִּי לָכֶם אֶת כֹּל, “like the green herbs I have given you all.” This one I find especially interesting because of the writings for and against vegetarianism and veganism in Jewish law. The sages, who obviously want to eat meat and have no problem with gentiles eating it, too, say that the verse uses the term “like” to compare things available for eating to natural weeds. The fact that cultivated vegetables aren’t mentioned implies that eating meat is fine. Only tearing limbs from animals is not allowed, and even this has an exception: crawling animals (שְׁרָצִים).

Here things turn, as Gen Zers might say, “extra”: the sages start conversing over which Noahide obligations merit an execution. Then, there are relaxed criminal proceedings tilted toward the prosecution in cases of Noahides: only one judge is required, and only one witness must be heard. Let’s set aside the question which Jewish court would presumably enforce these obligations, because at this point Jewish courts were non-existent and didn’t enforce anything against Jews either. Thing is, it turns out that several modern rabbis believe that these things still apply and should be preached to non-Jews, and that there are some non-Jewish groups that identify as Noahide and follow these obligations.

Another interesting twist to all this is the idea that incest operates differently for Jews and for non-Jews–it’s a choice-of-laws problem, if you will. A couple of pages ago, the sages were arguing, with gusto, over which family relationships were forbidden; now we are told that the rules for gentiles are according to their own terms (and who would enforce this?).

The talmudic discussion of these issues is an interesting precursor to an extended enforcement of basic universal norms to the ultimate Noahide Obligations violator: the jurisdictional challenge that Adolf Eichmann, architect of the Nazis’ “final solution” to the “Jewish problem”, raised at the beginning of his 1961 trial in Jerusalem. Back when he had committed the alleged crimes, he argued, he could not have even imagine that, one day, the State of Israel would exist and exercise jurisdiction over him. Moreover, jurisdiction was exercised extraterritorially: Eichmann was kidnapped from Buenos Aires and brought to Israel to face trial. As Leora Bilsky explains in an interesting article, the jurisdictional claim in the Eichmann trial lay in the liminal boundary between domestic and international criminal law. Eichmann was tried domestically, under an Israeli law that applied only to Nazis and their collaborators, but the jurisdictional determination considered the whole world as the political community interested in justice being done.

What Fresh Heaven Is This?

We’re already on Page 56 and I realized that I haven’t provided a sufficient introduction to what I’m doing with this project, so here’s a belated introduction.

One of the most studied texts in the Jewish canon, and arguably the bread-and-butter of religious education in Jewish yeshivot, is the Babylonian Talmud (Talmud Bavli), a compendium of legal arguments, intertextual tapestries, storytelling, and much more, produced and redacted by Jewish scholars who lived throughout the Babylonian Empire, likely between the Third and Sixth Centuries, while the territory that we would today identify as Iraq was under Roman and then Sassanian governance. After the destruction of the Second Temple by the Romans in 70 CE, this became the prominent center of Jewish culture, which now had to pivot from Temple-centered worship to text and Torah interpretation.

The Hebrew Bible, as we know it today, is not one book, but many books, whose compilation, editing, and reduction took centuries. It consists of works of many genres and, save for a few notable examples, the dates of composition do not correspond to the dates depicted in the narrative. During the Second Temple days and beyond, Jewish sages known as the Tana’im interpreted the legal framework of some biblical books, producing rules and regulations (halakha) and also some stories (aggaddah). The resulting collection, the mishna, and some accompanying texts from the same era, the baraita and the tosefta, are widely believed to have coalesced around 200 AD (this is traditionally regarded as the life project of Rabbi Yehuda Ha-Nasi). Later sages, notably Rav Ashi and Ravina but probably many others as well, compiled a work that includes the mishnaic content and the gemara, which consists of plenty of commentary, legal argument, further storytelling, and further intertextual creativity. The gemara reflects the work of several generation of sages: the Amoraim (4th, 5th century) and the Savoraim (6th century). The latter group are thought to have completed the final redaction of the text.

If you open a Talmud page today, you will typically find the original content in the middle: the mishna quote, in rabbinic Hebrew, followed by an account of logical, legal, and theological arguments, jokes, tragedies, and pretty much everything else, in rabbinic Aramaic. In the wide margins of the page you’ll find commentary from various Medieval, Renaissance, and sometimes modern exegetes and commentators, with the most prominent and famous commentary coming from Rashi and written in special script.

In the early 1920s, a new custom emerged: beyond the traditional study of this central text in religious yeshivot, there would be a worldwide schedule for studying the Talmud, assigning everyone interested, all around the world, a daf yomi (a page a day). Many religious institutions offer a lesson (shi’ur) on the daf of the day, and there is a proliferation of resources, including a plethora of podcasts and videos, dedicated to daf studies. Many of these promise to get you through the daf in 15 minutes a day and go over each and every logical twist, including some of the exegesis in the margins. If you follow through, you can expect to get through the full SHAS (an acronym for Shisha Sdarim, the six books of the Bavli) in approximately seven years.

My approach to this enterprise is a little bit different. I was raised in a secular Israeli home, with classical liberal values, and while there is a lot of perennial wisdom in the Talmud, there are plenty of things there that I don’t see much point in dragging, kicking and screaming, into the 21st century. Also, some pages are full of interesting content worth getting into in depth, while others are, from my perspective, duds. I also don’t believe in reading the daf just for the sake of getting through it, unless we get something out of it.

Here are some of the things that I look for: I think the Talmud is a phenomenal tool for developing logical, critical thinking. By following the different strands of argument and taking a steel-man approach to each, one can learn how to apply various forms of logic to any area of policymaking or opinion formation. One also learns how to fortify one’s argument through intertextual references, and different approaches for how texts can or should be read. I also think that the Talmud shows us that many of the questions we face today troubled our ancestors as well, and we can learn something from the constructs they used to approach these problems. It’s also a great education in how to support macro-level logic—rules with universal application—with anecdote, story, or metaphor. And, it’s a phenomenal education in viewpoint diversity, as very often the question is never settled and you’re left with respect for the various opinions expressed.

Anyway, those are the goals I have when I engage in daily Talmud study. Some days are longer and some are shorter; some are funny and some are sad or irate; sometimes I go to traditional sources and sometimes to literature, current events, musical works, or popular culture. Because what we find in the text mirrors what we look for, those of you who are regular readers can probably guess what tends to grab my interest: I’m a law professor who is also a second-career rabbinical student, and I’m especially interested in courtrooms, prisons, punishment theory, social movements, public debates, the value of art and artistry, and bits that are comical or quirky.

To make this more widely available and useful, I’m cross-posting these daf posts to a new Substack – I hope I’ll have the fortitude to get on with it, because after all, this is a very niche undertaking. For now, and probably forever, the subscriptions to that newsletter will be free, so you can follow along here or there.

I hope you find this useful and educational. So, buckle up, friends, it’s going to be a long and interesting ride.

Blasphemy and Courtroom Decorum: b.Sanhedrin 56

There’s a terrific moment in the To Kill a Mockingbird trial in which Judge Taylor says:

There has been a request that this courtroom be cleared of spectators, or at least of women and children, a request that will be denied for the time being. People generally see what they look for, and hear what they listen for, and they have the right to subject their children to it, but I can assure you of one thing: You will receive what you see and hear in silence, or you will leave this courtroom, but you won’t leave it until the whole boiling lot of you come before me on contempt charges. Mr. Ewell, you will keep your testimony within the confines of Christian English usage, if that is possible.

The protective idea that some things are not fit for women and children to hear, that some things are unutterable in court, is not new. It’s interesting to wonder what it is that the court would have been concerned about. For one thing, there’s the potential that inflammatory stuff can skew and bias public opinions in ways that can undermine a fair trial, but that usually applies to pretrial stuff, when a jury hasn’t been impaneled yet; recently, following the Kohberger trial, I listened to a litany of complaints from media personalities who resent the fact that big chunks of the pretrial transcript and motions have been sealed. In that case, it was done to prevent fanning the flames of public opinion and polluting the jury pool. But what about content from the trial itself?

This is the topic of Sanhedrin 56, which blissfully interrupts the crass talk of yesterday’s daf to discuss procedure. We receive a lot of instruction about the use of euphemisms in open court. The mishna says:

בְּכׇל יוֹם דָּנִין אֶת הָעֵדִים בְּכִינּוּי, ״יַכֶּה יוֹסִי אֶת יוֹסִי״. נִגְמַר הַדִּין, לֹא [הָיוּ] הוֹרְגִין בְּכִינּוּי, אֶלָּא מוֹצִיאִין כׇּל אָדָם לַחוּץ. שׁוֹאֲלִין אֶת הַגָּדוֹל שֶׁבֵּינֵיהֶן וְאוֹמֵר לוֹ: ״אֱמוֹר מַה שֶׁשָּׁמַעְתָּ בְּפֵירוּשׁ״. וְהוּא אוֹמֵר, וְהַדַּיָּינִין עוֹמְדִין עַל רַגְלֵיהֶן וְקוֹרְעִין, וְלֹא מְאַחִין. וְהַשֵּׁנִי אוֹמֵר: ״אַף אֲנִי כָּמוֹהוּ״, וְהַשְּׁלִישִׁי אוֹמֵר: ״אַף אֲנִי כָּמוֹהוּ״.

In other words, at a blasphemy trial, when describing what they heard, the witnesses are supposed to use the euphemism Yosei for God, because YOSE and YHVH both have four letters. The court is then emptied, only one witness repeats the explicit stuff, and the others say, “me too,” as not to compound the offense. The judges tear their garments in mourning, to make it performatively clear that the court (and the witness) are not complicit with the blasphemy.

They now turn to discuss the elements of blasphemy: is it merely uttering the name or cursing it. A long intertextual journey proceeds, which riffs off the root נקב, which can mean to punch a hole or to spell out something explicitly. The reliance on the double meaning of the root is pretty ingenious, because the argument then goes like this: you can only punch a hole once–just like you can only utter one version of the explicit divine name–whereas you can curse many times (meaning, the use of נקב is the equivalent of uttering the name). But then, another sage says, but you could use two different sacred names – it’s like repeated punching. Another principle of interpretive logic is that the biblical text says, “oust the curser” (הוֹצֵא אֶת הַמְקַלֵּל), rather than “oust the utterer and the curser” (הוֹצֵא אֶת הַנֹּקֵב וְהַמְקַלֵּל), implying that in this context נקב and קלל mean the same thing.

Then, they address something I would have never thought would be an issue: whether non-Jews can also be criminally prosecuted for blasphemy. My two cents: this makes no sense! It’s not their god! But the sages are preoccupied with the fact that many biblical sources use the term אִישׁ (man) in a universal sense, to apply to any person of any religion or ethnicity. Rabbi Miyasha deduces this principle from the use of the term כַּגֵּר כָּאֶזְרָח (the rule for the foreigner is the same as the rule for the citizen). Rabbi Meir, however, says that this equation only applies to converts, not to foreigners. Interestingly, even those who think that the blasphemy prohibition applies to foreigners, distinguish in terms of the sentence.

Which is a good segue for the rabbis to move on to discuss other obligations that bind people universally, not all Jews – mainly issues stemming from the Seven Mitzvot of the Sons of Noah. The rabbis expound upon, and expand, the reach of these requirements, drawing some boundaries between Jewish specific issues (e.g., the right to wear objects from two types of textile) and universal issues (such as kicking one’s wife out of the house). The distinctions ring a lot like the modern distinctions between mala in se and mala prohibita, except for a universal prohibition on witchcraft, particularly seances and child sacrifice. The argument goes back to Adam, who was under the sole prohibition of refraining from idol worship.

To end on a jovial note, the recently late Yehonatan Geffen has a fantastic novel called Milk Teeth, in which he describes his childhood in the Nahalal village. The opening scene sees the protagonist, a school boy, use the word “Jehovah” in school and being called into the principal’s office, or the teacher’s lounge, where the teachers excitedly discuss his transgression to his face, incessantly repeating, “he said Jehovah! He said Jehovah!” The only secular equivalent I can think of is the person who “replies all” to an email, saying, “please do not reply all.”

A Rare Moment of Good Taste: b.Sanhedrin 55

Yesterday’s daf, and the one that preceded it, saw the sages hard at work getting into the nitty gritty details of various behaviors they saw as sexual perversions meriting stoning. Today’s page continues in this vein, and honestly, I’m going to spare you all the details of the first few insights on the topic, which I read so that you don’t have to. Suffice to say, there’s some conversation comparing the sentences for attempted sexual assault to completed sexual assault, and the distinctions they make are everything you would expect from a group of old men debating this in a particularly crass locker room circa 400 CE. But then there’s a rare moment of redemptive good taste:

בְּעָא מִינֵּיהּ רַב אַחָדְבוּי בַּר אַמֵּי מֵרַב שֵׁשֶׁת: הַמְעָרֶה בְּעַצְמוֹ, מַהוּ? אֲמַר לֵיהּ: קְבַסְתַּן!

In other words, Rav Aḥadevoi bar Ami asked Rav Sheshet about the appropriate sentence for someone who attempts to engage in sexual activity with himself, and Rav Sheshet exclaims: Ewwwww! You’re gross! You make me barf! Not to worry, this refined sentiment fades fast, and they get straight to it (namely, whether it is possible, and how, etc.) Amazingly, the scenario that grossed Rav Sheshet out is pretty tame compared to all the other scenarios floated about and expounded upon in this daf, but I was encouraged to see a brief respite from the locker room talk.

One thing that did catch my eye about this daf, without too much elaboration, is that abusing animals here is not seen through the lens of צער בעלי חיים – the care for the animal’s pain and suffering – but through the lens of defilement, where the poor animal is being portrayed as complicit. The question arises whether, when a person is stoned to death for abusing an animal, the animal itself must also be killed–and not as euthanasia to prevent further suffering, but:

שֶׁלֹּא תְּהֵא בְּהֵמָה עוֹבֶרֶת בַּשּׁוּק וְיֹאמְרוּ: ״זוֹ הִיא שֶׁנִּסְקַל פְּלוֹנִי עַל יָדָהּ״.

You see, they don’t want the poor animal to pass through the market and to have people say, “this is the animal due to which so-and-so was stoned.”

You’ll forgive me, but I think I’m pretty done with Sanhedrin 55. We’ll continue with this tomorrow.

And Here Are Those to be Stoned: b.Sanhedrin 53-54

I’m a couple of weeks into this project (estimated completion date: late 2031), and it’s only now dawned on me that there is a daf yomi on Shabbat as well. It turns out that Orthodox folks do study their daf on Shabbat, in the afternoon, at the yeshiva, before coming home for the havdala meal that ends the Sabbath and starts the meal. Since my Saturdays are packed with the holy study of children’s soccer and age-group swimming, I think I’ll try and pack two pages on Fri or on Sun (as we’re going to do today) to stay with the universal schedule.

Also, I realize that a daf yomi for folks who are into criminal justice, cynical asides, and presentist commentary, is a really niche endeavor (if you are among the three people who might want this to be a podcast, please pipe up! but I’m not holding my breath). So, for readers who are not into Talmud at all and want to read more about the criminal process, prisons, etc., I’m going to continue blogging on all those topics of course–you can just select the categories and tags you want, or simply click on posts that are relevant to you. 🙂

Anyway, having to bunch up pages 53 and 54 is not necessarily a bad thing, as the content itself is so crass and distasteful that I am going to opt out of most of the offensive, nitty-gritty details. Generally speaking, we’ve now turned to the fourth method of execution–stoning–and the sages are examining the long list of crimes that merit this horrific punishment and discussing the minutiae. The enthusiasm for intimate details of incest is quite the turn-off, as is the oft-maligned, and with good reason, discussion on prohibited same-sex sexual activity and the offensive analogies to bestiality. The Leviticus verses about this stuff are such a hurdle for many people who would otherwise find a lot of beauty and wisdom in scripture that there is much gnashing of teeth and creative interpretive efforts, etc., not to mention folks who turn their backs on their Judaism entirely. Here in the Bay Area there is abundant creative energy devoted to make sure that queer folks feel comfortable and at home in their religious community–at my home congregation, Sha’ar Zahav, our rabbi has articulated a vision according to which “there are other places to be LGBTQI and Jewish, but only one place where those identities are normative, celebrated, and guide the community.  Near the new tapestries at the front entrance featuring stories of community members is a bright display of t-shirts, rainbow Judaica including mezuzottallitot and kippot, queer ketubot and books written by members LGBTQI and straight, and others featuring LGBTQI Jewish themes, demonstrating that this is the Jewish, queer normative space in the Bay Area where a diverse rainbow of people join together to create one, vibrant community.” Svara, a queer beit midrash, invites queer and trans people to “fall in love with your tradition” and invite their creativity to make a home for themselves in the text. It’s hard to ignore, though, the struggles and suffering brought about by these archaic verses and tractates in mainstream Orthodox communities; gay friends who left Orthodox homes have truly scarring experiences to share.

My approach to this talmudic content is not very creative or sophisticated or ornately conciliatory, but I think it does the job: the folks who said, wrote, and redacted this stuff were men of their time, with opinions of their time, which they considered pious but which I, as a person living in the 20th and 21st centuries, find loathsome, and therefore we should feel no need to excuse, creatively explain, or discuss. One of my liturgical heroes, Marcia Falk, introduced a wealth of human-centered, gender-transcending metaphors for divinity, and innovated blessings that put the focus on people doing the right thing in the real world, and had this to say about Orthodox critics:

And when, as inevitably will also happen, critics question our authenticity, deny our right to call our creativity and our creations Jewish, we-the members of the feminist-Jewish communities that help comprise klal yisrael, “the community of Israel”-need to remind them that Jewish prayer, like all of Jewish practice and belief, all of Jewish life, has never been finally “fixed”; rather, it has evolved, adapted, and changed throughout Jewish history. It is only recently, in fact, that the Hebrew liturgical tradition has ossified; it is not too late, we hope, to revive it. As we compose new prayers today to affirm diversity within unity, to express our visions of a true monotheism and our dedication to tikkun olam, repair of a fragmented world-as we compose and say such prayers, we place ourselves firmly in the tradition-a tradition that is still, always, in the process of becoming. We need to remind our critics, and ourselves, that tradition is not just what we inherit from the past; it is also what we create and pass on to the future.

One of our first assignments in rabbinical school involved creating a spiritual biography of sorts for ourselves, and what stood out for me, among other things, is how at every junction in which I wanted to take ownership of Jewish law, talmud, or other Jewish scholarly endeavors that I enjoy and have an aptitude for, all I encountered was orthodox, kippah-wearing men as the keepers of knowledge. This is not to say anyone necessarily stood in my way, but there’s a literacy that comes with growing up an Orthodox boy in a yeshiva that is very, very hard to acquire later in life, especially if one is trying to balance rigorous education with values that are not shitty. I’m working hard to acquire this literacy, and am very grateful that the program is rigorous, but that doesn’t mean that I have to apply this rigor to bits of scripture that are best left on the dung heap of irrelevant material in the Year of Our Lord 5875.

I will say this, though: the talmud didn’t corner the market on unpleasant discussions of sexual behavior. Modern, secular legal systems do this every day when defining sex crimes and when outlining the consequences of deviant sexual behavior. Heaps upon heaps of legal scholarship are devoted to the question of elements of rape and their applications to particular scenarios. Every legal system has to make complicated decisions about what it recognizes as sexual taboos; as late as the 19th century, incestuous marriage norms among royals in Hawaii, for example, clashed against missionary ideas of proper behavior, and the tragic story of princess Nahi’ena’ena is a case in point. There still is considerable regional and national variation regarding the laws of cousin marriage, a prohibition that does not, as it turn out, stem from genetic concerns. Jane Austen’s Mansfield Park ends in a marriage between first cousins. We are still constantly tracing and blurring the lines of what conduct should and should not lead to sex offender registration, and we’re still living down the disgrace of coming up with laws and enforcement strategies that target strangers while ignoring the much more common–and tragically underreported–occurrence of sexual abuse within the family or a circle of friends.

Anyway, here goes. The mishna lists the people who face stoning:

הַבָּא עַל הָאֵם, וְעַל אֵשֶׁת הָאָב, וְעַל הַכַּלָּה, וְעַל הַזְּכוּר, וְעַל הַבְּהֵמָה, וְהָאִשָּׁה הַמְּבִיאָה אֶת הַבְּהֵמָה. וְהַמְגַדֵּף, וְהָעוֹבֵד עֲבוֹדָה זָרָה, וְהַנּוֹתֵן מִזַּרְעוֹ לַמּוֹלֶךְ, וּבַעַל אוֹב וְיִדְּעוֹנִי, וְהַמְחַלֵּל אֶת הַשַּׁבָּת, וְהַמְקַלֵּל אָבִיו וְאִמּוֹ, וְהַבָּא עַל נַעֲרָה הַמְאוֹרָסָה, וְהַמֵּסִית, וְהַמֵּדִיחַ, וְהַמְכַשֵּׁף, וּבֵן סוֹרֵר וּמוֹרֶה.

The gemara’s mission on pages 53-54 is to fully examine the particular circumstances of each of these scenarios, trying on for size different arguments for what, precisely, is severe or taboo about the particular behavior. For example, does the recoil from a person who sleeps with his mother come from the fact that she’s his mother, or from the fact that she’s his father’s wife? Abaye says the former:

אָמַר אַבָּיֵי: דְּאָמַר קְרָא ״אִמְּךָ הִיא״. מִשּׁוּם אִמּוֹ אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אֵשֶׁת אָב. אֶלָּא מֵעַתָּה, ״עֶרְוַת אֵשֶׁת אָבִיךָ לֹא תְגַלֵּה עֶרְוַת אָבִיךָ הִיא״, מִשּׁוּם אֵשֶׁת אָב אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אִמּוֹ? אֶלָּא אִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו, קָאֵי הָכָא וּמְמַעֵט לַהּ, קָאֵי הָכָא וּמְמַעֵט לַהּ. הַשְׁתָּא, אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו – מִיחַיַּיב, אֵשֶׁת אָבִיו שֶׁאֵינָהּ אִמּוֹ – מִיחַיַּיב, אִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו – לָא מִיחַיַּיב כְּלָל?

but this requires addressing Rav Ika’s question whether sleeping with one’s daughter-in-law is taboo because she’s a daughter analog or because she is the wife of one’s son:

אֶלָּא אָמַר רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא: אָמַר קְרָא ״עֶרְוָתָהּ״, מִשּׁוּם עֶרְוָה אַחַת אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם שְׁתֵּי עֲרָיוֹת. אֶלָּא מֵעַתָּה: ״עֶרְוַת כַּלָּתְךָ לֹא תְגַלֵּה אֵשֶׁת בִּנְךָ הִיא לֹא תְגַלֶּה עֶרְוָתָהּ״ – הָכִי נָמֵי מִשּׁוּם עֶרְוָה אַחַת אַתָּה מְחַיְּיבוֹ וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם שְׁתֵּי עֲרָיוֹת?

Because the current explanation for these taboos–genetic defect potential–was not, obviously, available two thousand years ago, one possible avenue to understand this logic is through the Freudian explanation of incest taboos, which ascribes the honoring of ancestors as an extension of honoring the clan’s totem. Freud thinks that limitations on marriage within the clan stem from concerns that people will be tempted to personify the totem, kill their ancestors, and take their wives for themselves. Some of the terminology in this tractate, which uses the term עֶרְוַת אֵשֶׁת אָבִיךָ as an extension of עֶרְוַת אָבִיךָ, seems to suggest this sort of Freudian consideration. Eventually, though, the logical argument wins: the prohibition on sleeping with your mother comes from the fact that she’s your mother, whereas the prohibition on sleeping with your father’s wife is in place for scenarios involving a father’s wife who is not your mother:

מָה בְּאַזְהָרָה עָשָׂה הַכָּתוּב אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו כְּאִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו, אַף בְּעוֹנֶשׁ עָשָׂה הַכָּתוּב אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו כְּאִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו. ״אִמְּךָ הִיא״ – מִשּׁוּם אִמּוֹ אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אֵשֶׁת אָב.

One of the interesting things about this stuff is the sages’ variance of opinions about the need to find a rationale for a sexual transgression. Some seem to believe that each incest prohibition has to have one, or at least one dominant, reason; others consider the fact that people can ransom themselves from death with a money offering, and therefore *can* be liable for the same transgression twice. Here’s an example:


וְרַבָּנַן, ״עֶרְוַת אָבִיךָ״ – מַמָּשׁ. הַאי מִ״וְּאֶת זָכָר״ נָפְקָא? לְחַיֵּיב עָלָיו שְׁתַּיִם. וְכִדְרַב יְהוּדָה, דְּאָמַר רַב יְהוּדָה: נׇכְרִי הַבָּא עַל אָבִיו – חַיָּיב שְׁתַּיִם, הַבָּא עַל אֲחִי אָבִיו – חַיָּיב שְׁתַּיִם.

These folks, as mentioned above, considered same-sex intercourse a sexual offense. A man who sleeps with his father is thus liable twice: for the incest and for the same-sex intercourse.

This line of thinking reminds me of an oldie-but-goodie case from the double jeopardy canon: Blockburger v. United States (1932). At the time, drug prohibition was in its infancy, and done through the Harrison Act, which placed taxes and controls over the distribution of drugs. Purchasing or using drugs was not a crime per se; rather, purchasing or using them not through the delineated process was (not unlike our Prop 64, come to think of it. There is nothing new under the sun).

Anyway, Blockburger bought some drugs on the street, which meant he violated two different provisions of the Harrison act: the prohibition on sale except in or from the original stamped package, and the prohibition of sale not in pursuance of a written order of the person to whom the drug is sold. Note that both offenses sprung from the same criminal incident. Blockburger therefore argued that prosecuting him for both was double jeopardy. The court, however, disagreed, explaining that while the incident was one and the same, the offenses were not:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

To commit the first offense, Blockburger should’ve bought drugs outside of a stamped package, but not without a written order; to commit the second, Blockburger should’ve bought drugs without a written order, but not outside the stamped package.

The principle in our daf is very similar: the idea that there should be some limitation on the piling up of wrongdoing for the same incident. But this only matters if there are consequences stemming from each conviction separately that can be aggregated. Fines can be aggregated and prison times can be served consecutively. But you can only be stoned once.

Tune in for more taboos tomorrow.

Plotting the Tube of Blood: b.Sanhedrin 52

There’s a 60-year-old apocryphal story about Haim Hanani, then-President of the Technion (one of Israel’s most prominent STEM educational institutions and home to Nobel prize winners), according to which he once asked candidates for the entering engineering class, how to plan a 200-mile-long tube to transport blood. The students all asked questions about the technical specs, and not a single student asked, “why would you want to transport blood, and where would the blood come from?” According to the story, Hanani used this experiment to advocate for the introduction of humanities’ studies at the Technion. 

This story is a good introduction to several upcoming talmud pages, in which the sages discuss the nitty-gritty details of executions they never ordered or performed–for the sake of the intellectual exercise. To see what such information looks like when it’s actually drafted to be put to use, I looked up current execution protocols in all U.S. states. One interesting detail about this table is the prevalence of secrecy provisions. Nebraska law, for example, states: “(2) The iden­ti­ty of all mem­bers of the exe­cu­tion team, and any infor­ma­tion rea­son­ably cal­cu­lat­ed to lead to the iden­ti­ty of such mem­bers, shall be con­fi­den­tial and exempt from dis­clo­sure pur­suant to sec­tions 84 – 712 to 84 – 712.09 and shall not be sub­ject to dis­cov­ery or intro­duc­tion as evi­dence in any civ­il pro­ceed­ing unless extra­or­di­nary good cause is shown and a pro­tec­tive order is issued by a dis­trict court lim­it­ing dis­sem­i­na­tion of such information.” Ohio law states: “(B) If, at any time pri­or to the day that is twen­ty-four months after the effec­tive date of this sec­tion, a per­son man­u­fac­tures, com­pounds, imports, trans­ports, dis­trib­utes, sup­plies, pre­scribes, pre­pares, admin­is­ters, uses, or tests any of the com­pound­ing equip­ment or com­po­nents, the active phar­ma­ceu­ti­cal ingre­di­ents, the drugs or com­bi­na­tion of drugs, the med­ical sup­plies, or the med­ical equip­ment used in the appli­ca­tion of a lethal injec­tion of a drug or com­bi­na­tion of drugs in the admin­is­tra­tion of a death sen­tence by lethal injec­tion as pro­vid­ed for in divi­sion (A) of sec­tion 2949.22 of the Revised Code, notwith­stand­ing any pro­vi­sion of law to the con­trary, all of the fol­low­ing apply regard­ing any infor­ma­tion or record in the pos­ses­sion of any pub­lic office that iden­ti­fies or rea­son­ably leads to the iden­ti­fi­ca­tion of the per­son and the per­son­’s par­tic­i­pa­tion in any activ­i­ty described in this divi­sion: (1) The infor­ma­tion or record shall be clas­si­fied as con­fi­den­tial, is priv­i­leged under law, and is not sub­ject to dis­clo­sure by any per­son, state agency, gov­ern­men­tal enti­ty, board, or com­mis­sion or any polit­i­cal sub­di­vi­sion as a pub­lic record under sec­tion 149.43 of the Revised Code or otherwise.” Which raises the question: if what is happening here is not cruel or unusual–maybe even kind and usual–then why the secrecy?

I think the talmudic lack of shame about this, and many other crass subjects, stems from the fact that they are not in the business of prescribing or proscribing rules, but rather elucidating and interpreting biblical verses according to logical structures. Still, it’s jarring to see them dig for verses to support the minutiae of different forms of execution. Today we’re looking at three execution protocols: burning, decapitation, and strangulation.

Burning

The mishna provides a truly absurd mix of pain and pain alleviation. The condemned must be sunk in dung to his knees and his neck must be wrapped in a hard scarf wrapped in a soft scarf (after all, we want to burn you to death, not scratch your neck). Two people grab the ends of the scarf and pull until the condemned opens his mouth; then, they light up the wick and throw it into his mouth, where it descends into his intestines and burns them. An episode in which a priest’s daughter was placed amidst piles of sticks to which the executioners set fire is explained away as inexperience (one sage even says, “I remember being little on my father’s shoulder and seeing that,” and others replying, “you were little and you’re probably misremembering,” קָטָן הָיִיתָ, וְאֵין מְבִיאִין רְאָיָה מִן הַקָּטָן).

That’s a pretty specific description of a sentence the sages had never seen, so to support the description they rely on two biblical stories: the burning of Korah and his clan and the death of the sons of Aaron. From the language in the biblical description, the sages deduce that those were internal, rather than external burnings (“burning the soul but the body exists”, שְׂרֵיפַת נְשָׁמָה וְגוּף קַיָּים). The wildest of proofs comes from Aba Yosi ben Dostai, who describes the sons’ deaths as if two strings of fire coming out of the temple, splitting into four, with each string entering the nostril of one of the brothers (שְׁנֵי חוּטִין שֶׁל אֵשׁ יָצְאוּ מִבֵּית קוֹדֶשׁ הַקֳּדָשִׁים וְנֶחְלְקוּ לְאַרְבַּע, וְנִכְנְסוּ שְׁנַיִם בְּחוֹטְמוֹ שֶׁל זֶה וּשְׁנַיִם בְּחוֹטְמוֹ שֶׁל זֶה וּשְׂרָפוּם). The amazing thing is that there’s an effort to sanitize the execution through the idea that loving the other as yourself means choosing “a beautiful death” for them – אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״, בְּרוֹר לוֹ מִיתָה יָפָה – which is so much like the constant efforts to sanitize, medicalize, and silo killing, from executions to euthanasia.

Decapitation

I’m sure you’re all eager to find out about decapitation now. What’s notable is that the talmudic description struggles with the fact that foreign nations use the same sentence. The mishna says that the Israelite sentence was performed with a sword “as the king does” (כְּדֶרֶךְ שֶׁהַמַּלְכוּת עוֹשָׂה). Rabbi Yehuda points out the degradation involved and says that the condemned head must be placed on a block and chopped with a cleaver. In the gemara, there’s an expansion of this debate. Rabbi Yehuda says, “I know it’s a rough death, but what can I do (אֲבָל מָה אֶעֱשֶׂה)? We’ve been ordered not to follow the gentiles, so we have do do it a different way.” The other rabbis reply that execution by sword is actually prescribed in the Torah, which uses the term “by the sword” (לְפִי חָרֶב) and the saying, “I shall bring the sword of revenge of the covenant upon you” (הֵבֵאתִי עֲלֵיכֶם חֶרֶב נֹקֶמֶת נְקַם בְּרִית). The precise nature of the use of the sword is also deduced from the terminology: the rabbis deduce that the term לְפִי חָרֶב implies the edge of the sword, rather than the point, and thus we have decapitation rather than stabbing. And as to the issue that someone actually brings up–what if the executioner just decides to cut the person by half–the rabbis say, remember to love the other as your own and pick a beautiful death for him.

Strangulation

The mishnaic description of strangulation is very much like the beginning of burning: the condemned is sunk in dung to his knees, wrapped in a hard scarf padded by a soft scarf (for comfort) and two people pull the edges away to cut air support. The gemara sees this sentence as the most humane, least painful, of the lot (see here) and use the rule of lenity to argue that any unspecified death must be the most lenient one (כָּל מָקוֹם שֶׁנֶּאֱמַר מִיתָה בְּתוֹרָה סְתָם, אֵין אַתָּה רַשַּׁאי לְמוֹשְׁכָהּ לְהַחְמִיר עָלֶיהָ, אֶלָּא לְהָקֵל עָלֶיהָ). This discussion, however, is still marred by the original debate over which execution method truly is the least severe (with some still arguing that decapitation should be the most lenient default option).

Tune in tomorrow for the fourth execution method: stoning.

The Scarlet Letter: b. Sanhedrin 51

Today’s entire page is devoted to the rules regarding the punishment of an adulteress, which the rabbis seem to discuss with great gusto. Even though, as I explained in previous pages, this crass conversation is academic for them and pursued for the exercise of logic, rather than for the actual fashioning of rules, it is still deeply jarring to be engaging in this. The rules this daf is concerned with can be found in Deuteronomy 22, which is everything you can expect from biblical punishment of women. To briefly summarize the biblical law:

  • A man who falsely accuses his new wife of not being a virgin is to be flogged, fined, and forced to remain married to the woman;
  • If the wife is truthfully accused of not being a virgin, she is to be stoned;
  • If a man is found having sex with a married woman, both are to be executed (the method is unspecified);
  • Same, but the woman is betrothed, not married, and the sexual encounter took place in the city: both are to be stoned (the logic: she did not cry out for help);
  • Same, but in the field: only the man is to be put to death (the assumption is that the woman cried for help but was not heard);
  • if two single people are found sleeping with each other, the man is to pay the woman’s father fifty pieces of silver and marry the woman.

I should clarify right at the onset, this entire conversation, from Deuteronomy through the Baraita through the Bavli, revolting as it is, did not corner the market on the double standard of treating adultery as a crime. When Malcolm Feeley and I were looking at women and crime in Early Modern Europe, we did find plenty of evidence that adulterous couples were not treated the same; adultery tended to be one of the “typically feminine offenses”, like infanticide, abortion, witchcraft, nightwalking, and others, which were heavily enforced against women. Importantly, these offenses did not significantly skew the pattern of criminalizing women in the period and places we studied: the disappearance of women from criminal courts throughout the long 19th century reflects wider changes in criminal opportunities and in the public appetite for criminalizing women beyond these offenses. But that doesn’t change the fact that, as Nathaniel Hawthorne showed in his wonderful classic The Scarlet Letter, moralizing women and keeping them in line can explain a lot of what we see in adultery prosecution.

Incidentally, in case not everyone knows this, there still are U.S. states in which cheating on your spouse is a criminal offense. This map from Newsweek shows the places in which adultery is a misdemeanor in turquoise, and the places in which it is, astonishingly, a felony, in yellow.

All of which is to say: there is plenty to dislike in this daf, but the problem does not begin and end with the talmud.

Anyway, let’s get to it. There are two key distinctions that this page starts with: between a married woman and a betrothed woman, and between the daughter of a priest (בַּת כֹּהֵן) and a woman of ordinary birth (בַת יִשְׂרָאֵל). There are also some distinctions about the facts (who the other man was). The debate is whether a betrothed priest’s daughter should be stoned or burned, and whether a woman of any birth who slept with her father should be stoned or burned (hence the importance of the earlier debate on which death is the more severe punishment).

The gemara explains these differences of opinion thus: the rabbis, who believe stoning is the more severe punishment ascribe it to the more serious cases; Rabbi Shimon, who believes burning is the more severe one, does the opposite. This matters because you can’t kill someone twice: if two different death sentences are pronounced, only the more severe one must be carried out, so we need to know which one is the more severe one. And it also matters because within each category – married and bethrothed – there is the more serious case of the priest’s daughter and the less serious one of the ordinary woman. By contrast, perjured witnesses who blemish the reputation of a woman are killed in the same way (for a married woman, strangulation; for a betrothed woman, stoning) regardless of the woman’s status.

The next verses all play with different aspects of the offense and the offender’s identity, as mentioned in verses in Leviticus and Deuteronomy, to try and deduce which punishment applies. For example, whether the term כִּי תֵחֵל (who profanes) could apply to any priest’s daughter who violates Shabbat rules, or only to those who do so through promiscuity; whether this punishable promiscuity applies when the woman is single, or only when she is married; whether the term נַעֲרָה in some of these offenses refers specifically to an adolescent, a young woman, or to a priest’s daughter of any age; whether marrying outside of the priest caste rules a woman out of the “priest’s daughter” category (or perhaps marrying a non-priest is already an act of profanity); whether it makes sense to burn a woman for a transgression but use a different punishment for her accomplice. Lest this seem like silly gamesmanship, modern law revolves around the question of these loopholes just as well.

Consider, for example, the aftermath of Atkins v. Virginia (2002). In Atkins, the Supreme Court announced the substantive rule that people with “mental retardation” could not be candidates for the death penalty under the Eighth Amendment, but ​“le[ft] to the State[s] the task of devel­op­ing appro­pri­ate ways to enforce the con­sti­tu­tion­al restric­tion.” Different states adopted different strategies, such as particular IQ cutoff points, or as functional tests of the person’s understanding of the criminal process, the sentence, and their culpability. Confusion continuously ensues, because there have now been numerous iterations of IQ testing, and the same individual could have different scores, or even test differently on the same test, and because psychological functional tests also morph over time. Generation after generation of legal interpreters–the legislature, the judiciary–have to wonder how to make the Atkins rule work in a variety of minute scenarios that were left unsaid in the original decision.

Or, for a closer example to the adultery case, consider the state of Wisconsin where, believe it or not, adultery is a Class I felony. The law states:

944.16Adultery. Whoever does either of the following is guilty of a Class I felony:

(1)A married person who has sexual intercourse with a person not the married person’s spouse; or

(2)A person who has sexual intercourse with a person who is married to another.

The practical implications of this law are as slim as those of the biblical adultery rule: it is rarely enforced, and since Wisconsin is a no-fault divorce state, no one needs to call the police on their spouse for divorce proceedings. But you can imagine the theoretical discussion whether situations in which both parties are married should be treated differently, from a legal standpoint, than situations in which only one party is; or whether common-law marriage, which Wisconsin recognizes since 1917, can be the basis for adultery just like marriage in a wedding ceremony.

Still, there is something very discomfiting about thinking of guys who study currently at a yeshiva looking at this page today (as everyone who does a daf yomi in the Jewish world does), taking the discussion seriously, and then heading home to their mothers, sisters, girlfriends, and wives. Does even the theoretical discussion of this (mis)shape consciousness? And that’s before we’ve even come close to looking at Tractate sotah, which is full of stuff like this.