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 mezuzot, tallitot 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:

944.16 Adultery. 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.

Who by Fire: b. Sanhedrin 50

Today’s page reminds me a lot of the litigation and debate surrounding execution protocols in the United States: three injections, one injection, this chemical, that chemical, the wildcard of bringing back the firing squad, etc. Following yesterday’s daf‘s concerns with the order of things, the sages are hard at work trying to figure out the order of four biblical execution methods: stoning, burning, killing by decapitation, and strangulation. Again, it is important to say that this is a purely academic exercise; at the time these debates took place (if they ever did in an organized fashion), there was no Sanhedrin, and even to the extent that there ever was one, it was not nearly as punitive as the biblical stories the disputes cited. Because the issue is so disturbing and jarring, the conversation comes off as very crass.

The talmudic debate addresses the severity of execution methods as a function of the seriousness of the offense; the underlying logic is that the harsher execution methods must correspond to the more heinous crimes and vice versa. Assorted arguments made in this vein:

  • Stoning is more severe than burning, because it is the sentence for a blasphemer, who פּוֹשֵׁט יָדוֹ בָּעִיקָּר (undermines the most basic principle of peoplehood).
  • Burning is more severe than stoning, because it is the sentence of a priest’s daughter who committed adultery, whose transgression מְחַלֶּלֶת אֶת אָבִיהָ, profanes her father as well as herself.
  • Stoning is more severe, as it is the sentence of an engaged (אֲרוּסָה) adulteress, which is more serious than being a married (נְשׂוּאָה) adulteress.
  • Stoning is more severe than decapitation, as it is the sentence of cursers and idol worshippers (who undermine the basic principle of peoplehood).
  • Decapitation is more severe than stoning, as it is the sentence for inhabitants of an idolatrous city, whose property is destroyed as well as their lives.
  • Counterargument: the instigator of idolatry (הַמַּדִּיחַ) is stoned, while those who are persuaded (הַנִּידָּח) are decapitated, and the former is a more severe transgression.
  • Stoning is worse than strangulation, as it is the sentence of cursers and idol worshippers.
  • Counteargument: strangulation is worse, as it is the sentence for those who hit their father and mother, whose honor is an analogy to divine honor (הוּקַּשׁ כְּבוֹדָן לִכְבוֹד הַמָּקוֹם).

These arguments raise a few issues. The first is that the punishment logic is circular. It’s fair to argue that the principle of proportionality, as articulated by Cesare Beccaria and considered a fundamental aspect of the fairness edifice of modern law, requires that more heinous behavior be punished more severely. According to this logic, we can debate apriori which the harshest punishment is (by the infliction of pain? by duration? by disgrace?) and then ascribe that to the most serious transgression. But the directional logic here operates in the opposite direction. There doesn’t seem to be the assumption that stoning is worse than, say, burning because stoning is more painful, lasts longer, shames the condemned, etc., but because stoning is prescribed for the more heinous offenders–and if, therefore, stoning is more serious, then it should be prescribed to more heinous offenders. The only way out of this circularity is to remember that the sages are not in the business of making prescriptive law – they are merely interpreting biblical law. So a better way to understand these arguments is this: stoning must have been regarded by the divine, the biblical lawmakers, etc., as the more severe of the punishments, because it was attached to the most heinous behaviors.

The other interesting issue is that the gemara leaves us with no consensus about which offenses are more serious than others. It looks from the language that each expressed viewpoint assumes there’s no other way to see things: because of course idol worshipping is worse than parent hitting, or because of course parent hitting is worse than idol worshipping. But does this really work in real life?

As early as the 1970s, criminologists and legal scholars attempted to figure out how people, communities, nations, calibrate the relative severity of different offenses. As Maynard Erickson and Jack Gibbs explained, the exercise is worthwhile even for those who don’t believe in punishment, and later studies have confirmed that severity scales are useful even for calibrating community corrections and treatment options. It turns out that, to a large degree, people throughout many countries and societies tend to agree that offenses against the person are more serious than offenses against property, and that offenses that endanger the basis of society (betraying king and country) are especially severe. Even within the category of homicide, people seem to share the idea that more malicious/sinister intent makes the crime more severe even if the outcome is the same. There is, however, considerable disagreement about the minutiae. Is it worse, for example, to kill a police officer than to kill another citizen? Some of these questions are left unanswered even if the law has provisions that settle them, and I’m not surprised the Talmud hosts disagreements on that count.

Toward the end, the daf turns to some deeply misogynistic inquiries into the particular execution methods of adulteresses, which we will discuss, and if need be, eviscerate tomorrow.

Oh, My Goodness, Look at This Mess

Many years ago, when I was in the army, I had a client who had been convicted of murdering a fellow soldier over a minor dispute. I met him years after his conviction, when he was already well into his sentence in a civilian facility, and handled some outstanding issues for him, and was very surprised to find him delightful. Over the years I would meet lots of convicted murderers, many of whom committed the crime years before and matured to be thoughtful, kind, calm individuals, but back then I didn’t quite know what to expect so I was somewhat surprised by the wit, warmth, and kindness. The charges were pretty brutal, so when my client and I got to know each other, I asked him why he did it – what on earth was he thinking?

“Honestly, I don’t know,” he said. “I think about this all the time, of course, and I’m so horrified by what I’ve done that sometimes it’s hard to believe I did it. But I did, of course. I don’t think I thought about it a lot in the heat of the moment. I was just so angry with him that I wished he didn’t exist anymore.”

When I heard yesterday’s press conference, that conversation with my client floated back into my mind, because the idea of wishing another person into nonexistence, wishing a problem someone else poses into nothing, is not really a solution. It’s the sort of thing three-year-olds confuse with problem-solving: “I wish he didn’t exist anymore.” Which is why it’s so on-brand for the current American administration.

The Trump proposal–I can’t think it’s serious, I suspect it was put forth publicly to bolster Netanyahu’s coalition–is absurd on its face (Netanyahu won’t need a plane to come home, he’ll be flying on the wings of his own ego). How does he plan to persuade so many people to move out of the home they know and love and have been willing to fight, and die, and kill for? Is the U.S. government going to offer a buy-out to every single Palestinian family? Does he understand that no other country–Jordan, Egypt–wants to absorb these people? Does he understand why? Is the proposition of American military boots on the soil putting people on trucks at gunpoint really a winner with the American public, of any political stripes? Even in the unlikely event that some people take him up on it, does he not realize it will be the political moderates with the better prospects, leaving behind the more radical ones firmly dug into ideological and literal tunnels? The delusional dimensions of this parallel the “river to the sea” chanters around me. Leave it to Trump to punch a hole in the wall and expand the Overton window in ways that beggar belief.

The crux of the matter is that there are two peoples on a smallish piece of land. Each one wants the other gone, wishes the other did not exist. It’s not a perfect symmetry, and no one can sell me on the idea that it is after what I’ve seen in the last year and a half (and certainly in the last few weeks), but from each perspective there are claims to the whole land, not to a percentage of it. On each side this is backed up by massive amounts of mythology, history, culture, politics. It is impossible–impossible!–for everyone to get what they want. And here we are, looking at a mess that no one wants to clean up. Cleaning up after ourselves is a job for grownups, and in this case everyone would have to alter their bargaining stances so fundamentally that I wouldn’t know where to start. But perhaps the best place to start is to understand that just wishing the other person did not exist is not a solution.

The Order of Things: b.Sanhedrin 49

My grad school journey was saturated with Foucault, who found his way to my dissertation as well. Criminologists tend to read Discipline and Punish, a book that identifies prison with modernity and with a shift in punishment from body to soul and from a central display of regal power to diffuse loci of power, and ultimately to having people exercise power upon themselves (which is why it is an important part of the setup for my book manuscript Behind Ancient Bars). Other books I got to pick up from the shelf quite often were Madness and Civilization, and History of Sexuality. Thing is, if I could help it, I tried to avoid The Order of Things as much as I could. Which is lamentable, because in many ways The Order of Things uncovers the mechanism that makes many of Foucault’s other works tick. He examines how different sciences and disciplines view things; in other words, the book is preoccupied with the creation of knowledge, which is a central factor in Foucault’s knowledge/power spiral.

The reason I bring up The Order of Things is that Sanhedrin 49b is very preoccupied with the production of lists and mnemonics. It is, in other words, a list of lists; a talmudic order of things, if you will. The excuse for this meta conversation is the issue of execution methods. The mishna lists four methods, but Rabbi Shim’on disputes the order:

מַתְנִי׳ אַרְבַּע מִיתוֹת נִמְסְרוּ לְבֵית דִּין: סְקִילָה, שְׂרֵיפָה, הֶרֶג, וָחֶנֶק. רַבִּי שִׁמְעוֹן אוֹמֵר: שְׂרֵיפָה, סְקִילָה, חֶנֶק, וָהֶרֶג. זוֹ מִצְוַת הַנִּסְקָלִין.

MISHNA:Four types of the death penalty were given over to the court, with which those who committed certain transgressions are executed. They are, in descending order of severity: Stoning, burning, killing by decapitation, and strangulation. Rabbi Shimon says: They are, in descending order of severity: Burning, stoning, strangulation, and killing. This execution, described in the previous chapter, is referring to the mitzva of those who are stoned, i.e., to the process of execution by stoning.

Which raises an interpretive question: When the halakha provides a list, does the order of the things on the list matter? Rava quotes Rav S’hora, who quotes Rav Huna as saying that, usually, the order is not important, but there are a few exceptions, where the order is crucial:

  1. The investigatory list of substances to be applied to a stain found on a woman’s clothing, to investigate whether it is menstrual blood (and thus impure) is a sequence (think: chemistry test);
  2. The aforementioned list of execution methods (deduced from the fact that there was a dispute, meaning that the parties to the dispute thought the order mattered);
  3. The items on the order of service for Yom Kippur;
  4. The order of the daily offering at the temple;
  5. The sequence of events necessary for releasing a woman from the obligation to marry her late husband’s brother;
  6. The order in which the temple priests put on their ritual garments.

Here, the sages return to the question of the order of executions, which will be discussed in the next page. But for now, let’s focus on the issue of putting things in order. One possibility with lists is that sometimes the order matters; one must put on their undergarments before their clothes and their outerwear. Another, as in the case of the tested stain, is that there is scientific logic in moving from step to step. And another is ritualistic: a ritual has flow, and there are usually good reasons for why certain prayers, songs, and actions were strung together into a religious service. But the statements that, other than these exceptional matters, things do not usually follow an order, make sense when one considers how often they are strung together into a mnemonic–not because the order matters, but because it is an easier way to memorize.

This reminded me of Foucault’s oft-quoted opening to The Order of Things, in which he quotes Borges, who seeks to show the arbitrariness of listmaking and categorization:

This book first arose out of a passage in Borges, out of the laughter that shattered, as I read the passage, all the familiar landmarks of my thought — our thought, the thought that bears the stamp of our age and our geography — breaking up all the ordered surfaces and all the planes with which we are accustomed to tame the wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-old distinction between the Same and the Other. This passage quotes a “certain Chinese encyclopedia” in which it is written that “animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher, (n) that from a long way off” look like flies”. In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of the fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that.

As we’ll find out tomorrow, the sages are in a rush to show that there is much more method than that to their madness; we’ll embark on a series of classifications that could evoke in us modern readers “the stark impossibility of thinking that“, and yet they are hell-bent on coming up with a rationale for the classification of execution methods.

The Shroud Industrial Complex: b.Sanhedrin 48

One of the ugliest sides of capital punishment litigation in the United States is the extent to which economic considerations drive the arguments that can be made in court. As Ryan Newby and I explained in 2013, Eighth Amendment litigation has devolved from lofty issues of human rights into technical issues regarding methods of execution. The reason for this is chillingly prosaic: other countries do not export us the lethal drugs because they know what we use them for. Therefore, U.S.-based companies have to develop domestic alternatives: drugs crafted not to heal and save, but to kill–without a solid protocol for testing them. After the Supreme Court, faced with the inability to import drugs needed for a three-drug execution protocol, approved the use of a single injection of sodium thiopental in Baze v. Rees (2008), disconcerted pharmaceutical companies began refusing to supply states with the drug. Oklahoma replaced the general anesthetic with an untested off-label use of midazolam, keeping the drug’s origin secret, a procedure that was approved in Glossip v. Gross (2015).

The question raised in b.Sanhedrin 48 is, therefore, a perennial one: can the manufacturer of funerary items–in the Talmudic case, a weaver of shrouds[1]–benefit from them? In other words, if someone works for a shroud factory and produces cloth–even if the cloth ends up not being used as a shroud–can it be sold for profit? Abaye says no; Rava says yes. The rest of the page elucidates their reasons. After attempting analogies to the case of animal sacrifice, they focus their dispute on five issues, for which they create a mnemonic: כִּפָּה, נַפְשֵׁיהּ, דַּחֲצִיבָא, בְּקִבְרֵיהּ דְּיַתִּיר מֵאֲבֻהּ, בְּכִיסָא דְּאוּמָּנָא. (scarf, monument, excavation, money left over from dead ancestors, the craftsman’s pouch.)

Scarf. Can a scarf prepared for the wrapping of ritual objects (a Torah scroll or tefillin) be used for wrapping everyday objects, e.g., coins? The dispute is over whether the mere designation of the object for a sacred purpose–absent any actual ritual use–rules out any profane purposes. Abaye believes the designation is enough; Rav Hisda, who agrees with Rava’s perspective, believes that actual wrapping rules out profane use.

Monument. Can a monument erected as a memorial be used for ordinary purposes, e.g., housing the living? According to Abaye’s view, even if the monument was originally created to house the living, and later additions were there to honor the dead, it consecrates the whole monument and it cannot be used for nonsacred purposes – and this is true even if the dead body is later removed. In other words, it is the designation of the monument that matters. By contrast, Rafram bar Pappa, speaking for Rav Hisda, believes that removing the part of the monument that was designated a memorial for the dead person suffices for clearing the building for nonsacred purposes.

Excavation: A excavates a grave for his father, but ends up burying him in a different grave. Can the dug grave be used for A’s own burial? The gemara says no – מִשּׁוּם כְּבוֹד אָבִיו (due to honor owed to the father.) Raban Shim’on ben Gamliel adds that this is true even if A hadn’t completed the digging of the grave–even אַף הַחוֹצֵב אֲבָנִים לְאָבִיו, he who merely excavates some stones for the burial, cannot have those very stones used for his own burial. Rava would say that the mere designation of the dig for A’s father’s grave does not rule it out for A’s grave (and, respectively, the mere designation of yarn for shrouds does not rule it out for making cloth that can be sold for profit)–and might therefore claim that using the grave for the burial of a nonviable embryo and then for the burial of a person is fine. Abaye, by contrast, would argue that even a nonviable newborn counts as a dead body, whose burial is deserving of respect and treated as consecrating the grave (this is an interesting commentary about the connection, or disconnection, between viability and respect).

Money left over from dead ancestors: Rava attemps to allow the shroud to be used for profit by drawing an analogy to the use of money. According to mishna Shekalim 2:5, money left over from a deceased person passes on to the heirs. But this proof is deemed unpersuasive, as the purpose and timing of collection make a difference: money collected during the deceased’s lifetime is legitimate secular inheritance. By contrast, money left over from a burial collection must be spent on other burials.

This explanation, too, provokes a debate: according to Rava’s school of thought, money raised for burying unspecified people must be used for that purpose alone. Money raised for burying a particular person, however, is given to the heirs (think about a GoFundMe, or other charity fundraising, for a particular person’s funeral expenses; it is logical to pass the surplus on to the family.) But according to Abaye’s school of thought, the latter fund must either be used for improving the particular grave of the deceased or left alone (“until Elijah comes”, which is the safest way to use it according to Rabbi Meir). There are more twists and turns to this, pertaining to the degree to which an item that is used in conjunction with a burial (non-shroud cloth that falls into a grave) becomes consecrated to the dead – but let’s move on to the fifth analogy:

The craftsman’s pouch. Can one use a dedicated pouch for tefillin (phylacteries, which are used in prayer) to keep one’s money? Once the pouch has been used for the tefillin, it is no longer good for money. But if one orders a tefillin pouch from a craftsman, indicating that one intends to use it for a ritual purpose, and then ends up never using it for that purpose, one is allowed to use it instead for carrying money.

This last analogy might be seen as inappropriate in the context of the shroud. If mere designation is not enough, but rather use, when will we ever see shrouds designated for the dead but not already used for them? It turns out, as Rava explains, that in a place called Harpania the people are so poor that they cannot prepare the shrouds for themselves ahead of time, and thus the shrouds are made after the person is already deceased. The conclusion of the issue is that the law follows Rava’s logic: mere designation for the dead is not enough – actual use consecrates the shrouds, and until it occurs, the cloth can be used for mundane purposes.

The discussion now turns to the inheritance of the condemned. This, too, hits close to home for me; I have horrific memories of people wrangling with CDCR over the personal effects left by their incarcerated relatives who died of COVID-19. According to a baraita, הֲרוּגֵי מַלְכוּת – נִכְסֵיהֶן לַמֶּלֶךְ, הֲרוּגֵי בֵּית דִּין – נִכְסֵיהֶן לַיּוֹרְשִׁין – meaning that those executed by the king leave their property to the king, whereas those executed by the court leave their property to their heirs. This issue evokes the story of King Ahab inherinting Naboth’s vineyard. Ahab’s wife, wicked queen Jezebel, wanted to help her husband inherit the vineyard and thus lodged a false complaint according to which Naboth “cursed God and King.” After he was executed, Ahab took possession of the vineyard, for which he was admonished. The sages dig into the story: Rabbi Yehuda argue that Ahab was Naboth’s relative, and thus might have inherited the vineyard as a relative rather than as a king. Others argue that Naboth’s sons were to inherit, But Rabbi Yehuda retorts that Ahab had the sons killed as well so that he would inherit (the rabbis reply that those were potential sons, not actual sons).

This leads the sages to another problem: accusing Naboth of cursing God would have been enough for execution. Why, then, did Jezebel procure false testimony that he cursed the king as well? The reply is – לְאַפּוֹשֵׁי רִיתְחָא, to infuriate the judges against Naboth and ensure the sentence.

The supporters of the idea that the condemned’s property goes to the king rely on another biblical story as well, that of Joab’s flight from David when accused of supporting David’s son Adoniyah. Joab, the biblical story tells, held on to the horns of the altar, refusing to come out – was that, the sages ask, because he didn’t want his property to go to the king? Not necessarily, argue the supporters of Rabbi Yehuda’s perspective: he might have just wanted חַיֵּי שָׁעָה, to spare his own life for a while. Rabbi Yehuda then explains that, when Joab was ordered to leave the sanctuary, he said that the curses that David cursed him would boomerang back onto his executioners–and offers proof from biblical phrases that, indeed, each king of Solomon’s dynasty suffered from these curses. The talmud offers us this wisdom, therefore: תְּהֵא לוּטָא, וְלָא תְּהֵא לָאטָא – be the object of a curse rather than the curser, as the curse eventually returns to its provenance. What goes around comes around.

[1] Traditional Jewish burial does not involve coffins; the deceased body is wrapped in shrouds and taken to the grave on a stretcher.

Mourning and Deservedness: b.Sanhedrin 47

We are still on the topic of burial for people who were executed, which hits close to home in these months of grief and mourning–for people who have a grave to weep on, and for those who are waiting to see if their loved ones return home alive or dead. On Saturday, we saw Yarden Bibas return home from almost 500 days in Hamas captivity; his wife Shiri and two kids Ariel (5) and Kfir (1) are still in captivity and there are grave fears for their lives. While in captivity, Yarden was told by his captors that his family members were dead, but there has been so much deceit about these matters that we do not know for sure. But we fear and tremble. Throughout the last couple of weeks, parents and siblings and spouses of people who are feared to be dead, or confirmed dead, have talked about how meaningful it would be to have a grave. And I can say that, as our mourning for my dad continues, his grave, in the beautiful secular cemetery Menuha Nekhona in Kiriat Tivon is a focal point for many family members.

The casualties of the massacre and war, and the hostages, are deeply mourned; so was my father, whose funeral was attended by hundreds of people. But yesterday’s daf, which made me think of the opera Dead Man Walking, raised a lot of questions about the propriety and spiritual meaning of public mourning for people who perhaps didn’t earn love and grief because of horrific crimes they committed. The way this is formulated by the sages in Sanhedrin 47 is this: What, and who, do we observer burial rituals and eulogies for? Is it to prevent a desecration of the dead (which has meaning for family members and friends), or to absolve their wrongdoing (which is an individual morality issue)?

The sages proceed to examine this question through a series of biblical quotes, most of which support the idea that funerary rites are for the living, rather than for the dead. One notable example is this one:

תָּא שְׁמַע: הֱלִינוֹ לִכְבוֹדוֹ, לְשַׁמֵּעַ עָלָיו עֲיָירוֹת, לְהָבִיא לוֹ מְקוֹנְנוֹת, לְהָבִיא לוֹ אָרוֹן וְתַכְרִיכִין – אֵינוֹ עוֹבֵר עָלָיו, שֶׁכׇּל הָעוֹשֶׂה אֵינוֹ אֶלָּא לִכְבוֹדוֹ שֶׁל מֵת. הָכִי קָאָמַר: כׇּל הָעוֹשֶׂה לִכְבוֹדוֹ שֶׁל חַי, אֵין בּוֹ בִּזָּיוֹן לַמֵּת.

The Gemara suggests: Come and hear a proof from a baraita: If one left his deceased relative unburied overnight for the sake of his honor, for example, in order to assemble the people from the neighboring towns for the funeral, or to bring him professional lamenters, or to bring him a coffin or shrouds, he does not transgress the prohibition of “his body shall not remain all night,” as anyone who acts in such a manner does so only for the sake of honoring the dead. This indicates that the eulogy and other funeral rites are performed to honor the deceased. The Gemara rejects this argument: This is what the baraitais saying: Anyone who acts in such a manner for the sake of honoring the living does not transgress the prohibition, as there is no degradation of the dead.

This scenario involves a relative of a dead man who leaves him unburied overnight in order to organize a respectable funeral that requires out-of-town guests, lamenters, or supplies. To the extent that the funeral organizer is doing so in order to provide the proper funerary experience for the people left behind, the delay in burial is permissible.

The Talmud then goes into a somewhat creepy ghost story. The issue is: should people be buried according to their righteousness?

לֹא הָיוּ קוֹבְרִין כּוּ׳. וְכׇל כָּךְ לָמָּה? לְפִי שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק, דְּאָמַר רַבִּי אַחָא בַּר חֲנִינָא: מִנַּיִן שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק? שֶׁנֶּאֱמַר: ״וַיְהִי הֵם קֹבְרִים אִישׁ וְהִנֵּה רָאוּ אֶת הַגְּדוּד וַיַּשְׁלִיכוּ אֶת הָאִישׁ בְּקֶבֶר אֱלִישָׁע וַיִּגַּע הָאִישׁ בְּעַצְמוֹת אֱלִישָׁע וַיְחִי וַיָּקׇם עַל רַגְלָיו״.

§ The mishna teaches that they would not bury the executed transgressor in his ancestral burial plot, but rather in one of two special graveyards set aside for those executed by the court. The Gemara explains: And why is all this necessary? It is necessary because a wicked man is not buried next to a righteous man. As Rav Aḥa bar Ḥanina says: From where is it derived that a wicked man is not buried next to a righteous man? As it is stated: “And it came to pass, as they were burying a man, that behold, they spied a raiding party; and they cast the man into the tomb of Elisha; and as the man came there, he touched the bones of Elisha, and he revived and stood up on his feet” (II Kings 13:21). The man, who was not righteous, was miraculously resurrected so that he would not remain buried alongside Elisha.

אֲמַר לֵיהּ רַב פָּפָּא: וְדִילְמָא לְאִיקְּיוֹמֵי ״וִיהִי נָא פִּי שְׁנַיִם בְּרוּחֲךָ אֵלָי״? אֲמַר לֵיהּ: אִי הָכִי, הַיְינוּ דְּתַנְיָא: עַל רַגְלָיו עָמַד, וּלְבֵיתוֹ לֹא הָלַךְ.

Rav Pappa said to Rav Aḥa bar Ḥanina: What proof is there from here? Perhaps the man was resurrected in order to fulfill Elisha’s request of Elijah: “I pray you, let a double portion of your spirit be upon me” (II Kings 2:9), as now Elisha resurrected two people, the son of the Shunammite woman and this man, as opposed to Elijah, who had resurrected only one person? Rav Aḥa bar Ḥanina said to Rav Pappa: If so, there is a difficulty, as is this a reasonable explanation in light of what is taught in a baraita: The words “and stood up on his feet” indicate that he arose, but he did not go to his home. The man did not in fact live again but for a moment, indicating that he was resurrected not in order to fulfill Elisha’s request for a double portion of Elijah’s spirit, but in order to prevent the disgrace of having a wicked man buried next to Elisha.

אֶלָּא ״וִיהִי נָא פִּי שְׁנַיִם״, הֵיכִי מַשְׁכַּחַתְּ לַהּ דְּאַחֲיֵיא? אֲמַר לֵיהּ רַבִּי יוֹחָנָן: שֶׁרִיפֵּא צָרַעַת נַעֲמָן, שֶׁהִיא שְׁקוּלָה כְּמֵת, דִּכְתִיב ״אַל נָא תְהִי כַּמֵּת״.

The Gemara asks: But if so, with regard to the verse: “I pray you, let a double portion of your spirit be upon me,” where do you find that Elisha resurrected a second person? Rabbi Yoḥanan said to him: That request was fulfilled when he cured Naaman’s leprosy (see II Kings, chapter 5), an affliction that is considered to be equivalent to death, as it is written with regard to Miriam’s leprosy: “Let her not be as one dead” (Numbers 12:12).

וּכְשֵׁם שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק, כָּךְ אֵין קוֹבְרִין רָשָׁע חָמוּר אֵצֶל רָשָׁע קַל. וְלִיתְקוֹן אַרְבַּע קְבָרוֹת! שְׁנֵי קְבָרוֹת גְּמָרָא גְּמִירִי לַהּ.

The mishna teaches that two graveyards were established for the burial of those executed by the court, one for those who were killed by decapitation or strangulation, and one for those who were stoned or burned. The Gemara explains: Just as a wicked man is not buried next to a righteous man, so too an extremely wicked man, i.e., one who committed a grave offense is not buried next to a less wicked man, i.e., one who committed a less severe offense. The Gemara challenges: If so, let them establish four different graveyards, one for each of the different modes of judicial execution. The Gemara answers. It is learned as a tradition that there are two graveyards for those executed by the court, and no more.

This is pretty wild: it is suggested here that burying wicked people alongside righteous people may result in the unintended consequence of those wicked people being resurrected. Moreover, wicked people should not be mixed up with less wicked people in death (as in life). And all this raises another question: does a person who was killed for wrongdoing receive atonement in death? Abaye says no: the dead person did not repent.

אֲמַר לֵיהּ אַבָּיֵי: מִי סָבְרַתְּ מֵת מִתּוֹךְ רִשְׁעוֹ הָוְיָא לֵיהּ כַּפָּרָה? מֵת מִתּוֹךְ רִשְׁעוֹ לָא הָוְיָא לֵיהּ כַּפָּרָה, דְּתָנֵי רַב שְׁמַעְיָה: יָכוֹל אֲפִילּוּ פֵּירְשׁוּ אֲבוֹתָיו מִדַּרְכֵי צִיבּוּר יִטַּמֵּא? תַּלְמוּד לוֹמַר ״בְּעַמָּיו״ – בְּעוֹשֶׂה מַעֲשֵׂה עַמָּיו.

Abaye said to Rav Yosef: Do you maintain that one who dies in his state of wickedness without repenting achieves atonement? This is not the case, as one who dies in his state of wickedness without repenting does not achieve atonement, as Rav Shemaya taught in a baraita: The verse states with regard to the priests: “There shall none be defiled for the dead among his people, but for his kin that is near to him, for his mother, and for his father” (Leviticus 21:1–2). One might have thought that even if his father had become an apostate and separated himself from the ways of the community, his son the priest shall become ritually impure in order to bury him. Therefore, the verse states: “Among his people,” which teaches that a priest may become ritually impure only for one who performs the actions of his people, that is, one who conducts himself as a Jew. This indicates that one who dies in his wickedness without repenting does not achieve atonement.

Rava, by contrast, thinks that those who were executed, and thus did not die a natural death, did not have an opportunity to repent independently of the sentence, and thus do receive atonement.

אֲמַר לֵיהּ רָבָא: מִי קָא מְדַמֵּית נֶהֱרָג מִתּוֹךְ רִשְׁעוֹ לְמֵת מִתּוֹךְ רִשְׁעוֹ? מֵת מִתּוֹךְ רִשְׁעוֹ, כֵּיוָן דְּכִי אוֹרְחֵיהּ קָמָיֵית – לָא הָוְיָא לֵיהּ כַּפָּרָה. נֶהֱרָג מִתּוֹךְ רִשְׁעוֹ, כֵּיוָן דְּלָאו כִּי אוֹרְחֵיהּ מָיֵית – הָוְיָא לֵיהּ כַּפָּרָה.

Rava said to Abaye: Are you comparing one who was killed in his state of wickedness to one who died in his state of wickedness? An unrepentant sinner who died in his state of wickedness does not achieve atonement, since he died a natural death and there was nothing to bring about his atonement. But a transgressor who was killed in his state of wickedness achieves atonement, even without repentance, since he did not die a natural death, but rather he was executed.

And if so, let’s return to the insights from the previous page: we allowed for the possibility that relatives might experience private grief after an execution, regardless of public rituals; but if, indeed, the wicked who are executed receive atonement after death, that paves the way to public mourning as well.

The conversation then turns to the question of honoring the dead and buried: when, and under which circumstances, can a dug grave be reused after the body in it is moved for some reason. These are the sorts of questions that we have to address today when dealing with antiquities. The Israel Antiquities Authority gets called in every time a relic is found close to a highway, as they must guarantee respect for possible human remains. The taboo around disrespecting burial sites is at the heart of Stephen King’s terrifying Pet Sematary, reinforcing the perennial disturbing nature of the situations in which the boundary between the dead and the living becomes too thin for comfort.

When the Going Gets Rough, the Punishment Gets Rough: b.Sanhedrin 46

Today’s daf continues to address stoning issues, opening with a series of exercises in talmudic logic, which are jarring because of the crass material they are applied to. The mishna posits that people who are stoned to death are hung later, and we are offered two different treatments of this rule. Rabbi Eliezer’s logic: a verse calls for hanging those who curse God (Deuteronomy 21:23) and, since the punishment for blasphemy is stoning, it follows that those who are stoned are later hung. Other rabbis’ logic: The blasphemer denies the principle of belief, and as such is hung, but people who have not denied the principle of belief are not hung after their execution.

This disagreement is an opportunity for understanding logical principles: The rabbis used a principle called כְּלָלֵי וּפְרָטֵי, generalization and distinction, whereas Rabbi Eliezer relied on the principle of רִיבּוּיֵי וּמִיעוּטֵי, amplifications and restrictions. For the rabbis, the issue of denying the principle is a detail that requires limiting the rule to that specific transgression; for Rabbi Eliezer, however, the distance between the generalization and the detail means that the detail does not apply and therefore all those who are stoned should be hung.

This is followed by other demonstrations of similar interpretive principles on the same issue. For example, the words ״וְתָלִיתָ אֹתוֹ״ (and you shall hang him) is taken by sages to mean that hanging is only for men (him, not her), and by Rabbi Eliezer to mean that the man is to be hung naked (just him, without his clothes). The rabbis agree with Rabbi Eliezer, but derive the idea that women should not be hung from the verse ״וְכִי יִהְיֶה בְאִישׁ חֵטְא״ (and if a man, as opposed to a woman has committed a sin). This leads the sages to debate whether the hanging-after-stoning procedure befits the scenario of a rebellious child (בֵּן סוֹרֵר וּמוֹרֶה).

It’s worth pausing briefly to explain that the issue of the rebellious child, and the atrocious capital punishment the bible has in store for him, is something that bothered generations of biblical exegetes, to the point that it’s been interpreted in absurdly restrictive ways to ensure that no one walks away from reading biblical verse thinking that children should be put to death. So the sages’ conversation about this is purely theoretical, an exercise in logic, even though the raw material they use is beyond disturbing (one has to wonder whether these conversations actually took place, and if so, if they troubled any of the speakers and listeners).

Anyway, back to the rebellious child’s hanging-after-stoning. According to Reish Lakish, that the verse uses the term אִישׁ (man) means that children are to be excluded. But Rabbi Eliezer thinks that the mention of the word חֵטְא (sin) implies that the rebellious child was to be included in the hanged-after-stoning category.

At this point, the page moves on to the question whether a court may pronounce two death sentences on the same day. The sages discuss a supposed historical precedent in which Shimon ben Shatah ordered the hanging of eighty women on the same day, and Rav Hisda explains it away hypertechnically: all the women were executed in the same manner, and thus it was one death sentence (but for multiple people). A more precise restatement of Rav Hisda’s principle is that the announcement of multiple executions is permissible only when the transgression, as well as the mode of execution, are the same (but, remember, for multiple people). This principle, they explain, applies even to people mixed up in the same transgression: adulterers, violators of purity laws, transgressors and perjured witnesses who testified for them.

To the extent that there’s anything to this beyond logic games, I can think of two ideas. The first that announcing capital punishment is something that should be seriously considered, and that the court must focus on each case individually–which means that, even in the context of the same scheme, people’s situation should be individually addressed. The second has to do with the interplay between different people mixed up in the same scheme, whose culpability might not be equal. It is only in cases that seem identical in terms of transgression and punishment that the sages may consider them on the same day (this reminds me a lot of David Sudnow’s “Normal Crimes,” and how quick we are to dispose of cases that appear to be the same and do not present any unusual features).

In any case, here the case shifts to something else: the fact that courts might issue harsh sentences beyond those prescribed in the Torah:

תַּנְיָא, רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: שָׁמַעְתִּי שֶׁבֵּית דִּין מַכִּין וְעוֹנְשִׁין שֶׁלֹּא מִן הַתּוֹרָה, וְלֹא לַעֲבוֹר עַל דִּבְרֵי תוֹרָה, אֶלָּא כְּדֵי לַעֲשׂוֹת סְיָיג לַתּוֹרָה.

It is taught in a baraita: Rabbi Eliezer ben Ya’akov says: I heard that the court may administer lashes and capital punishment, even when not required by Torah law. And they may not administer these punishments with the intention of violating the statement of the Torah, i.e., to disregard the punishment stated in the Torah and administer another punishment; rather, they may administer these punishments to erect a fence around the Torah, so that people will fear sinning.

And we’re given two examples:

וּמַעֲשֶׂה בְּאֶחָד שֶׁרָכַב עַל סוּס בְּשַׁבָּת בִּימֵי יְוָנִים, וֶהֱבִיאוּהוּ לְבֵית דִּין וּסְקָלוּהוּ, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ.

And an incident occurred involving one who rode a horse on Shabbat during the days of the Greeks, and they brought him to court and stoned him, not because he deserved that punishment, as riding a horse on Shabbat is forbidden only by rabbinic decree, but because the hour required it, as people had become lax in their observance of Shabbat and therefore it became necessary to impose the severe punishment for a relatively minor offense.

Riding a horse on Shabbat became a serious business because it occurred “in the days of the Greeks,” meaning, during the Hellenistic culture wars, which were characterized by religious oppression and ferocious inner strife between adherents and assimilationists.

The other example involves a man who slept with his wife under a fig tree and was flogged, again, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ: presumably, modesty has become lax and people needed a reminder. The minor transgression reminds me of Durkheim’s “society of saints” example in The Division of Labor in Society:

Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, [commonly] so called, will there be unknown; but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness. If then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such.

Durkheim and the talmudic sages are aware of the power of enforcement in awakening the collective conscience: any society will have a certain amount of punishment and deviation, because it serves an important social role. When norms become lax, or when there’s an important reason to issue a stern reminder, relatively minor transgressors will be made into examples.

But maybe, following Durkheim, there’s another important role that our Shabbat horseback rider plays–one that the sages did not intend. Durkheim uses the example of the execution of Socrates:

According to Athenian law, Socrates was a criminal and his condemnation was just. However, his crime – his independence of thought – was useful not only for humanity but for his country. It served to prepare a way for a new morality and a new faith, which the Athenians then needed because the traditions by which they had hitherto lived no longer corresponded to the conditions of their existence. Socrates’ case is not an isolated one, for it recurs periodically in history. (1895/1982: 102)

Could it be that our horseback rider is reminding his astonished community that, in Hellenistic times, it is perhaps less important to insist on dogged pursuit of the rules and more important to survive? And could it be that the couple making love under the fig tree are reminding their community that outdoor lovemaking can be great fun and is not a big deal? These are possibilities that the talmudic sages are, understandably, not too interested in pursuing.

The remainder of today’s page deals with the question of burying those who were executed. If, and how, to mourn the condemned is a matter discussed in detail, with the logical effort directed at distinguishing undue honors from keeping propriety and dignity after death. The most poignant part of this discussion is:

וְלֹא הָיוּ מִתְאַבְּלִין, אֲבָל אוֹנְנִין, שֶׁאֵין אֲנִינוּת אֶלָּא בַּלֵּב.

And the relatives of the executed man would not mourn him with the observance of the usual mourning rites, so that his unmourned death would atone for his transgression; but they would grieve over his passing, since grief is felt only in the heart.

This reminded me of the beautiful aria sung by the mother of the condemned in Jake Heggie’s beautiful aria Dead Man Walking:

Tomorrow’s page continues the question of mourning the condemned.