Alfred Adler and the Genesis Family Book: b.Sanhedrin 69

As we explained yesterday, our current sugiyah (issue, unit) is all about making the horrific biblical edict of stoning rebellious son as unenforceable as possible. After all, if we were to be Deuteronomical about boys who are rude to their parents and eat them out of house and home, there would be bloodshed in pretty much every household I know, including, occasionally, ours (what did happen to that huge yogurt container we just got a couple of days ago?). To further this aim, on today’s daf, the rabbis are trying an interpretive maneuver by which they narrow the range of ages for fathering a child who might grow up to be rebellious. After all, the biblical law says that the rebellious son is born to a man–אִישׁ–rather than to a child. So what counts as a “man” for this purpose?

This leads to a rather crass conversation about puberty, in the context of the minimal age at which someone could potentially father a son. The sages launch into a discussion of viable sperm that would surprise and amuse any urologist, and as is our custom in this enterprise, we’re going to pass on that to get to the more savory and interesting stuff. But at some point, they mention that Rabbi Yishmael’s school observed that the biblical rule applies to “sons” rather than “fathers”:

וְהָא תָּנָא דְּבֵי רַבִּי יִשְׁמָעֵאל: ״בֵּן״ – וְלֹא אָב?

They deduce that someone who is a stubborn and rebellious son cannot be a father himself. And we have already pointed out that the rebellious son must be a teenager but cannot be an adult. This allows the sages to narrow down the people to whom the law applies: they must be teenagers, but under no circumstances can they be teenagers who can father children. Which leads to a second round of reproductive science from at least a millennium and a half ago, some of it, of course, leaning into unsavory and misogynistic scenarios that I will spare you, gentle readers. Suffice to say, there is immense curiosity about the growth of pubic hair. They conclude that the minimal age for fathering a son, rebellious or not, is nine. Onward.

Where things get interesting is when the sages start mining biblical stories to figure out how old various biblical characters were when their children were born, which turns out to be a pretty wacky enterprise, given that the timelines in the stories do not really make sense. The conflict is between the schools of Shammai and Hillel: Beit Shammai maintains that we learn from earlier generations, in which the stories sometimes tell of people who could father sons at a rather tender age, whereas Beit Hillel maintains that we must not deduce anything from these stories. To draw a comparison to our contemporary legal philosophies, Beit Shammai is advancing an originalist perspective (what the foundation text says is relevant today) whereas Beit Hillel is advancing a more pragmatic, spirit-of-the-law perspective.

Let’s be originalists for a moment and follow the calculus. Exhibit A is the story of Batsheba, King Solomon’s roof-bathing mother who was the daughter of Eliam, son of Ahitophel. Grandpa Ahitophel, you’ll recall, had offered advice to Absalom, and when Absalom did not follow Ahitophel’s advice and decided to rebel against his father, the latter committed suicide (incidentally, the Hebrew colloquialism “Ahitophel’s advice” for bad advice is mistaken; the advice to reconcile was good, and Absalom’s course of action, the rebellion, yielded tragic consequences. But we digress). At this time, Solomon would have already been about seven years old, and Ahitophel, true to a baraita based on a psalm, was thirty-three at his death. Give that Ahitophel is Solomon’s great grandpa, and with the deduction of a couple of years for the three pregnancies, you end up with a family dynasty in which each man fathered a child at the age of eight. If you don’t like the math, perhaps you’ll agree with the dissenters, who argue that Bathsheba might’ve conceived at an even more tender age–say, six–whereas Eliam and Ahitophel became fathers at the ripe age of nine. Ugh.

Exhibit B has to do with Terah’s three sons from Genesis 11: Abraham (age x), Nahor (age x-1), and Haran (age x-2). Abram and Nahor both married their nieces, Milka and Iscah, who were the daughters of Haran. Rabbi Yitzhak says that Iscah was actually Sarah, and therefore the math works out as follows: Abraham was ten years older than Sarah (age x-10). Ergo, Haran was eight when he fathered Sarah.

All this, of course, assumes that the three sons of Terah were indeed listed by birth order (cue Alfred Adler and sibling psychology), which the sages think is not always the case in the bible. Naturally, if Abraham was younger than Haran, the latter might have fathered Sarah at an older age. Which is interesting, because I’ve noticed that, when I ask people with multiple children about their kids’ ages, they usually list them starting with the youngest (e.g., “Persephone is three, Shamus is five, and Buttercup is eight.”) If you have multiple children, how do you list them, and why? The sages suggest that biblical sources sometimes list kids in order of wisdom–do you think Alfred Adler might report you to CPS if you did that with your kids?

There’s also an Exhibit C, involving the family of Caleb, father of Hur, father of Uri, father of the legendary artist Bezal’el (Exodus 38 and I Chronicles 2), where they piece together the age in which Bezal’el must have made the tabernacle and calculate backwards they also find some pretty young fathers. But I think you get the point.

The last thing on the agenda for today is that the penalty for rebelliousness, according to Rabbi Shimon, applies only to sons, not to daughters (בֵּן, וְלֹא בַּת). Rabbi Shimon concedes that daughters might well behave in rebellious ways, but states that the scripture only applies to sons (אֶלָּא גְּזֵירַת הַכָּתוּב הִיא: ״בֵּן״, וְלֹא בַּת). He knows this doesn’t make any sense, and says that explicitly but, as we’ve already seen, the name of the game is to narrow the application of this horrendous law as much as possible.

Zucchini Magic: b.Sanhedrin 67-68

Today I’m posting two dapim, because the entire unit on capital punishment is completed halfway through page 68, when a new conversation starts. The last outstanding issues on the subject of the four methods of executions have to do with criminal procedure in cases of incitement and with some wild, magical tales of sorcery. We’ll start with the former.

As opposed to other criminal trials, in which the Sanhedrin plays it straight, with inciters the mishna sets up special rules, which include undercover agents, entrapment, and eavesdropping (מַכְמִינִין). Because ordinarily a conviction requires two witnesses, the court faces a problem if the defendant only incited one person. In such a case, the person–an undercover agent–is supposed to say to the inciter, ״יֵשׁ לִי חֲבֵירִים רוֹצִים בְּכָךְ״ (“I have friends who might be into idolatry as well”), thus manufacturing more witnesses. But if the inciter is cumming (עָרוּם) and doesn’t fall for it, the witness takes him outside, while witnesses hide behind the fence, and tells the inciter: ״הֵיאַךְ נַנִּיחַ אֶת אֱלֹהֵינוּ שֶׁבַּשָּׁמַיִם וְנֵלֵךְ וְנַעֲבוֹד עֵצִים וַאֲבָנִים?״ (“how shall we leave our God in heaven and go worship trees and stones?”). If the inciter recants, הֲרֵי זֶה מוּטָב – that’s better – and if not, we now have evidence against him.

The gemara sets up different execution methods for different inciters: stoning for the ordinary person and strangulation for the prophet; while stoning is the punishment for inciting an individual, it is debated whether inciting a multitude is punishable by stoning or strangulation. Rav Pappa provides a variation on the mishnaic entrapment scheme for inciters: in his version, the entrapper sits with the inciter in a candlelit interior room, asking him to repeat his incitement, while the eavesdropping witnesses position themselves in an outer room so they can see and hear, but not be seen. Which leads the sages to a moment of reminiscing:

וְכֵן עָשׂוּ לְבֶן סָטָדָא בְּלוֹד, וּתְלָאוּהוּ בְּעֶרֶב הַפֶּסַח.בֶּן סָטָדָא? בֶּן פַּנְדִּירָא הוּא! אָמַר רַב חִסְדָּא: בַּעַל סָטָדָא, בּוֹעֵל פַּנְדִּירָא. בַּעַל? פַּפּוּס בֶּן יְהוּדָה הוּא! אֶלָּא, אִמּוֹ סָטָדָא. אִמּוֹ? מִרְיָם מְגַדְּלָא נְשַׁיָּא הֲוַאי! כִּדְאָמְרִי בְּפוּמְבְּדִיתָא: ״סְטָת דָּא מִבַּעְלַהּ״.

“You know,” says Rav Pappa, “the inner room entrapment thing, that’s what they did to Ben Setada in Lod, and they hanged him on Passover Eve.” “Ben Setada? You mean Ben Pandira!” Rav Hisda chimes in: “Nah, the mom’s husband was called Setada, but her lover’s name was Pandira.” “Husband?” someone else pipes up. “Her husband was Pappus ben Yehuda! It’s just the mom whose name was Setada.” “Nah,” someone hollers from the back pews, “the mom’s real name was Miriam Megadla, but because she cheated on her husband (סְטָת דָּא), they called her Setada (סָטָדָא).”

After this gossippy interlude, the sages shift gears by analogizing the inciter to another deceiver of crowds: a sorcerer who deceives the eyes. This round of law and story distinguishes between illusion magic–akin to stage magic–which is harmless entertainment, and actually making things happen in the real world. For example, standing in a field of zucchini (קִשּׁוּאִין) and performing a deceptive act as if one gathers them through sorcery is fine; actually using sorcery to gather the zucchini is prohibited.

We’ll get back to the zucchini magic in a little while. Meanwhile, we get a little sprinkle of misogyny: the biblical prohibition against sorcery encompasses both men and women, but uses the female form מְכַשֵּׁפָה. The reason? מִפְּנֵי שֶׁרוֹב נָשִׁים מְצוּיוֹת בִּכְשָׁפִים – because most women (!) have familiarity with witchcraft. The punishment for witchcraft, says Rabbi Yosei, is beheading by sword. His evidence is a similarity to a different verse containing the words לֹא תְחַיֶּה (you shall not suffer to live) which does involve execution by sword; Rabbi Akiva disagrees, saying that the witches must be stoned, and relying on a verse involving stoning that uses the words לֹא יִחְיֶה (none shall live). Then, they argue about the strength of the evidence. Rabbi Yosei says that the linguistic proximity he relies on is stronger. Rabbi Akiva retorts that the verse he relies on listed a series of deaths for Israelites (and singled out stoning for the offense with the similar wording), whereas Rabbi Yosei’s verse involved a verse regarding one form of deaths for gentiles.

Another argument about punishing sorcerers elucidates more legallogic. Ben Azzai sees two verses in proximity: one about witches and another about bestiality. Because the latter is to be stoned, he deduces the former is, too. But Rabbi Yehuda says that the proximity of the verses should not imply a similar idea–rather, witches (מְכַשְּׁפִים) should be treated like other offenders of the same category: necromancers (אוֹב) and sorcerers (יִדְּעוֹנִי). Because these last two are mentioned together, there is a debate (left unsolved) on whether they can be analogized to other cases or treated as a separate category.

Now we get some witchcraft nomenclature peppered with cool stories. Rabbi Hanina learned from Deuteronomy that a righteous person is immune to witchcraft. And, indeed, a woman was trying to collect dust from under Rabbi Hanina’s feet to put some hex on him, and he told her, “you shall not prevail.” While people in general should be wary of witchcraft, Rabbi Hanina is so righteous that he cannot be harmed.

There are some magic that is permitted–stuff that’s merely trickery. For example, on Shabbat, Rav Hanina and Rav Oshaya would study creation, and a third-born calf would appear, and they would eat it. This is apparently okay, as is the parlor trick that Karna’s dad used to do, in which he would blow his nose and create the illusion of rolls of silk streaming from his nostrils. But can witches and sorcerers actually create animals? Rabbi Eliezer thinks they cannot make tiny ones (and thus, the Egyptian sorcerers could not reproduce the plague of lice); Rav Pappa thinks they cannot create even camels, though they can move existing animals from place to place. Rav once saw a man kill a camel and then raise him from the dead with a drum, but Rabbi Hiyya, apparently less credulous, thinks it was an illusion because there was no blood or excrement at the site.

But wait! There’s more animal magic! Ze’eiri went to Alexandria and bought a donkey. But the minute the donkey’s lips touched the water Ze’eiri gave it to drink, he (the donkey, not Ze’eiri) turned into the plank of a bridge. Ze’eiri went complaining and asked for a refund, and the donkey dealership had the temerity to say, “if you weren’t such a fancy rabbi, we wouldn’t refund you. Who buys an animal these days without having it drink water first?” Caveat emptor, you guys.

Yannai also has a donkey story. He stayed at an inn and asked for a drink. When the innkeeper woman was serving him, Yannai noticed her lips were moving, so he said, “hey, I’m drinking from your glass; you drink from mine,” and performed sorcery on his own drink. The innkeeper took a sip and turned into a donkey, so Yannai mounted her and rode to the marketplace. On the way, the innkeeper’s friend came and released her from the spell, and so people saw Yannai riding to the marketplace on a woman.

Which is where we get to the zucchini business. The whole thing starts with a discussion of the plague of frogs. Since the original (Exodus 8:2) refers to “frog”, in singular, Rabbi El’azar says there was just one frog, who then spawned and filled the land with frogs. When Akiva presented this view, Rabi El’azar ben Azarya told him to stay out of aggadah, as it was not his field of expertise, and instead suggested that the one frog whistled to her friends, and that’s when they came and populated the land. Rabbi Akiva disputed this idea, repeating the aforementioned zucchini story from Rabbi Yehoshua (standing in a field of zucchini and performing a deceptive act as if one gathers them through sorcery is fine; actually using sorcery to gather the zucchini is prohibited).

This is a segue to Rabbi Akiva’s learning from Rabbi El’azar. Here’s the full story:

כְּשֶׁחָלָה רַבִּי אֱלִיעֶזֶר, נִכְנְסוּ רַבִּי עֲקִיבָא וַחֲבֵירָיו לְבַקְּרוֹ. הוּא יוֹשֵׁב בְּקִינוֹף שֶׁלּוֹ, וְהֵן יוֹשְׁבִין בִּטְרַקְלִין שֶׁלּוֹ. וְאוֹתוֹ הַיּוֹם עֶרֶב שַׁבָּת הָיָה, וְנִכְנַס הוּרְקָנוֹס בְּנוֹ לַחְלוֹץ תְּפִלָּיו. גָּעַר בּוֹ וְיָצָא בִּנְזִיפָה. אָמַר לָהֶן לַחֲבֵירָיו: כִּמְדוּמֶּה אֲנִי שֶׁדַּעְתּוֹ שֶׁל אַבָּא נִטְרְפָה. אָמַר לָהֶן: דַּעְתּוֹ וְדַעַת אִמּוֹ נִטְרְפָה! הֵיאַךְ מַנִּיחִין אִיסּוּר סְקִילָה וְעוֹסְקִין בְּאִיסּוּר שְׁבוּת? כֵּיוָן שֶׁרָאוּ חֲכָמִים שֶׁדַּעְתּוֹ מְיוּשֶּׁבֶת עָלָיו, נִכְנְסוּ וְיָשְׁבוּ לְפָנָיו מֵרָחוֹק אַרְבַּע אַמּוֹת. אָמַר לָהֶם: לָמָּה בָּאתֶם? אָמְרוּ לוֹ: לִלְמוֹד תּוֹרָה בָּאנוּ. אָמַר לָהֶם: וְעַד עַכְשָׁיו לָמָּה לֹא בָּאתֶם? אָמְרוּ לוֹ: לֹא הָיָה לָנוּ פְּנַאי. אָמַר לָהֶן: תָּמֵיהַּ אֲנִי אִם יָמוּתוּ מִיתַת עַצְמָן. אָמַר לוֹ רַבִּי עֲקִיבָא: שֶׁלִּי מַהוּ? אָמַר לוֹ: שֶׁלְּךָ קָשָׁה מִשֶּׁלָּהֶן. נָטַל שְׁתֵּי זְרוֹעוֹתָיו וְהִנִּיחָן עַל לִבּוֹ, אָמַר: אוֹי לָכֶם שְׁתֵּי זְרוֹעוֹתַיי, שֶׁהֵן כִּשְׁתֵּי סִפְרֵי תוֹרָה שֶׁנִּגְלָלִין! הַרְבֵּה תּוֹרָה לָמַדְתִּי, וְהַרְבֵּה תּוֹרָה לִימַּדְתִּי. הַרְבֵּה תּוֹרָה לָמַדְתִּי, וְלֹא חִסַּרְתִּי מֵרַבּוֹתַי אֲפִילּוּ כַּכֶּלֶב הַמְּלַקֵּק מִן הַיָּם. הַרְבֵּה תּוֹרָה לִימַּדְתִּי, וְלֹא חִסְּרוּנִי תַּלְמִידַי אֶלָּא כְּמִכְחוֹל בִּשְׁפוֹפֶרֶת. וְלֹא עוֹד, אֶלָּא שֶׁאֲנִי שׁוֹנֶה שְׁלֹשׁ מֵאוֹת הֲלָכוֹת בְּבַהֶרֶת עַזָּה, וְלֹא הָיָה אָדָם שׁוֹאֲלֵנִי בָּהֶן דָּבָר מֵעוֹלָם. וְלֹא עוֹד, אֶלָּא שֶׁאֲנִי שׁוֹנֶה שְׁלֹשׁ מֵאוֹת הֲלָכוֹת, וְאָמְרִי לַהּ: שְׁלֹשֶׁת אֲלָפִים הֲלָכוֹת, בִּנְטִיעַת קִשּׁוּאִין, וְלֹא הָיָה אָדָם שׁוֹאֲלֵנִי בָּהֶן דָּבָר מֵעוֹלָם, חוּץ מֵעֲקִיבָא בֶּן יוֹסֵף. פַּעַם אַחַת אֲנִי וָהוּא מְהַלְּכִין הָיִינוּ בַּדֶּרֶךְ, אָמַר לִי: רַבִּי, לַמְּדֵנִי בִּנְטִיעַת קִשּׁוּאִין. אָמַרְתִּי דָּבָר אֶחָד, נִתְמַלְּאָה כׇּל הַשָּׂדֶה קִשּׁוּאִין. אֲמַר לִי: רַבִּי, לִמַּדְתַּנִי נְטִיעָתָן, לַמְּדֵנִי עֲקִירָתָן. אָמַרְתִּי דָּבָר אֶחָד, נִתְקַבְּצוּ כּוּלָּן לְמָקוֹם אֶחָד. אָמְרוּ לוֹ: הַכַּדּוּר וְהָאִמּוּם וְהַקָּמֵיעַ וּצְרוֹר הַמַּרְגָּלִיּוֹת וּמִשְׁקוֹלֶת קְטַנָּה, מַהוּ? אָמַר לָהֶן: הֵן טְמֵאִין, וְטַהֲרָתָן בְּמָה שֶׁהֵן. מִנְעָל שֶׁעַל גַּבֵּי הָאִמּוּם, מַהוּ? אָמַר לָהֶן: הוּא טָהוֹר, וְיָצְאָה נִשְׁמָתוֹ בְּטׇהֳרָה. עָמַד רַבִּי יְהוֹשֻׁעַ עַל רַגְלָיו וְאָמַר: הוּתַּר הַנֶּדֶר, הוּתַּר הַנֶּדֶר! לְמוֹצָאֵי שַׁבָּת פָּגַע בּוֹ רַבִּי עֲקִיבָא בֵּין קֵסָרִי לְלוֹד. הָיָה מַכֶּה בִּבְשָׂרוֹ עַד שֶׁדָּמוֹ שׁוֹתֵת לָאָרֶץ. פָּתַח עָלָיו בְּשׁוּרָה וְאָמַר: אָבִי אָבִי רֶכֶב יִשְׂרָאֵל וּפָרָשָׁיו. הַרְבֵּה מָעוֹת יֵשׁ לִי וְאֵין לִי שׁוּלְחָנִי לְהַרְצוֹתָן.

Akiva and others came to see Rabbi Eliezer, who was sick, at home. The backstory to this tale is the famous story of tannuro shel achnai, in which the entire rabbi community stood against Rabbi Eliezer, even though he was right in pronouncing the law, and ostracized him (I’ll talk more about this story some other time). In any case, it appears that this visit was the first rapprochement after the ostracism. Rabbi Eliezer, obviously in a foul mood, first rebuked his son for wearing tefilin on Shabbat (a fairly minor offense), and then scolded his visitors for not having come to study first. He threatened them all with death, especially Akiva, and then berated them for not taking advantage of his Torah expertise – especially in matters of zucchini growing. The one exception, he says, was Akiva: “Once, Akiva and I were walking along the way and he asked to learn about planting zucchini. I said something, and the whole field filled with zucchini. He then asked to learn about uprooting them. I said something, and all the zucchini gathered in one place.” Eliezer then gave them one last purity law and died–and Rabbi Yehoshua proclaimed that the curse of his ostracism had been removed. At his funeral procession, Rabbi Akiva mourned him by striking his own flesh: “I have many coins and no money changer to give them to” (I have many questions, but my rabbi is gone and I have none who can answer them.” The anticlimactic coda to this heartbreaking story is that Eliezer was allowed to do zucchini magic because he just wanted to understand how the sorcerers do it, so he could teach it to others.

You guys, this marks the first complete sugiyah (issue, thematic unit) that we studied together beginning to end, and it was a tough one. Four Deaths deals with some difficult and even unpalatable issues, but we got some rules of criminal law and evidence out of it, some understanding of talmudic logic, and some disputes about severity scales.

הֲדַרַן עֲלָךְ אַרְבַּע מִיתוֹת

The second half of page 68 starts with a new issue: the complicated case of the rebellious son, which will keep us busy for a week or so. By way of introduction, let me explain the main concern of this sugiyah. The biblical anchoring for the entire conversation is Deuteronomy 21:18-21, which reads as follows:

כִּֽי־יִהְיֶ֣ה לְאִ֗ישׁ בֵּ֚ן סוֹרֵ֣ר וּמוֹרֶ֔ה אֵינֶ֣נּוּ שֹׁמֵ֔עַ בְּק֥וֹל אָבִ֖יו וּבְק֣וֹל אִמּ֑וֹ וְיִסְּר֣וּ אֹת֔וֹ וְלֹ֥א יִשְׁמַ֖ע אֲלֵיהֶֽם׃

וְתָ֥פְשׂוּ ב֖וֹ אָבִ֣יו וְאִמּ֑וֹ וְהוֹצִ֧יאוּ אֹת֛וֹ אֶל־זִקְנֵ֥י עִיר֖וֹ וְאֶל־שַׁ֥עַר מְקֹמֽוֹ׃

וְאָמְר֞וּ אֶל־זִקְנֵ֣י עִיר֗וֹ בְּנֵ֤נוּ זֶה֙ סוֹרֵ֣ר וּמֹרֶ֔ה אֵינֶ֥נּוּ שֹׁמֵ֖עַ בְּקֹלֵ֑נוּ זוֹלֵ֖ל וְסֹבֵֽא׃

וּ֠רְגָמֻ֠הוּ כׇּל־אַנְשֵׁ֨י עִיר֤וֹ בָֽאֲבָנִים֙ וָמֵ֔ת וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּ֑ךָ וְכׇל־יִשְׂרָאֵ֖ל יִשְׁמְע֥וּ וְיִרָֽאוּ׃ {ס}        

This is a pretty unpalatable rule: a rebellious son, who does not listen to his parents even though they punish him, shall be taken by his parents out to the city gates. The parents shall complain to the elders that the son is disobedient and eats too much, and the whole city will proeed to stone the son to death in public. The rabbinical project, thus, is an effort to minimize the effect of this rule, define it as narrowly as possible, to the point that it is not enforceable.

This effort begins with the age of the son: they define it as someone who has just reached puberty (there’s a whole discussion of pubic hair) but not adulthood yet (defined by growing a beard): בֵּן הַסָּמוּךְ לִגְבוּרָתוֹ שֶׁל אִישׁ – a youth whose strength is close to that of an adult. Then, they argue that there are limitations on the father’s age: a minor cannot father a rebellious son, because the biblical text says ״כִּי יִהְיֶה בֵּן לְאִישׁ״ (a man, as opposed to a youth, shall have a son). We will see more exegetical effort to minimize the applications of the harsh biblical rule in the days to come.

Harry Potter and the Cursed Parents: b.Sanhedrin 66

I’m still very shaken by the news and find it difficult to engage with crass and violent materials, so today I’ll focus on the first portion of the daf, which deals with cursing offenses, rather than the second one, which analyzes sex offenses.

We start off with a reminder that Shabbat violations are punishable only when intentional, and move straight on to cursing. It’s an interesting transition: the end of page 65 was devoted to assorted witches, mages, soothsayers, etc., and shifting gears to cursing feels like the continuation of a grimoire.

Anyway, the mishna says that, to be liable for cursing one’s father and mother, one has to actually use a name; using a nickname incurs a liability according to Rabbi Meir, but is not an offense according to others. This is the point of departure for the gemara, which now breaks down the elements of the offense. First, they conclude that this is not just an offense for sons, but also for daughters or for any gender-fluid child (really, this is in the original). Then they wonder whether, to commit the offense, one must curse both parents. Rabbi Yoshiah thinks so, but Rabbi Yonatan thinks that either one is enough, because the text does not specify ״יַחְדָּו״ (together).

Here the gemara looks at several cursing offenses, which differ from each other in the target of the curse: God, a president, a judge, a parent. Here’s the debate:

״ תַּלְמוּד לוֹמַר: ״אֱלֹהִים לֹא תְקַלֵּל וְגוֹ׳״. אִם הָיָה אָבִיו דַּיָּין – הֲרֵי הוּא בִּכְלַל ״אֱלֹהִים לֹא תְקַלֵּל״, וְאִם הָיָה אָבִיו נָשִׂיא – הֲרֵי הוּא בִּכְלַל ״וְנָשִׂיא בְעַמְּךָ לֹא תָאֹר״. אֵינוֹ לֹא דַּיָּין וְלֹא נָשִׂיא, מִנַּיִין? אָמְרַתְּ: הֲרֵי אַתָּה דָּן בִּנְיַן אָב מִשְּׁנֵיהֶן. לֹא רְאִי נְשִׂיא כִּרְאִי דַּיָּין, וְלֹא רְאִי דַּיָּין כִּרְאִי נָשִׂיא. לֹא רְאִי דַּיָּין כִּרְאִי נָשִׂיא, שֶׁהֲרֵי דַּיָּין – אַתָּה מְצוֶּּוה עַל הוֹרָאָתוֹ, כִּרְאִי נָשִׂיא – שֶׁאִי אַתָּה מְצֻוֶּוה עַל הוֹרָאָתוֹ. וְלֹא רְאִי נָשִׂיא כִּרְאִי דַּיָּין, שֶׁהַנָּשִׂיא – אַתָּה מְצוֶּּוה עַל הַמְרָאָתוֹ, כִּרְאִי דַּיָּין – שֶׁאִי אַתָּה מְצוֶּּוה עַל הַמְרָאָתוֹ. הַצַּד הַשָּׁוֶה שֶׁבָּהֶם שֶׁהֵן בְּעַמְּךָ, וְאַתָּה מוּזְהָר עַל קִלְלָתָן. אַף אֲנִי אָבִיא אָבִיךָ, שֶׁבְּעַמְּךָ, וְאַתָּה מוּזְהָר עַל קִלְלָתוֹ. ״.

The issue is that there are separate prohibitions against cursing judges or presidents, and if one has a judge or a president for a father, one technically commits two offenses and, obviously, cannot be stoned twice.

Remember Blockburger? The case that involved someone prosecuted twice for drug sales even though they were similar offenses and the buyer was the same guy? There was a second problem in Blockburger that raised legal issue, and it was this: The Harrison act prohibited buying drugs unless they came from a stamped package (which meant that taxes were paid for them; think buying recreational weed at a dispensary without a medical card), and it also prohibited buying drugs not from a doctor. Could the exact same purchase—if it was made from a non-doctor and not from a stamped package—furnish two counts or just one?

The disposition in Blockburger, which would later become the leading case on double jeopardy issues, was that it is okay to charge a defendant with two counts for the same action if each of the offenses had an element that the other did not:

The sages accept that the same principle applies in our case:

The sages then bring up another issue: the question of the social values promoted by these offenses. Technically, this is a classic Blockburger scenario: each offense has an element—an attribute of the victim—which the others do not. But these elements stem from the different nuances of respect you owe each of these three figures. And yet, they are all of your people, and respect is required for all of them. But in all these cases, one is expected to respect the victims’ authorities because of their greatness, which raises a fourth issue:

מָה לְהַצַּד הַשָּׁוֶה שֶׁבָּהֶן, שֶׁכֵּן גְּדוּלָּתָן גָּרְמָה לָהֶן? תַּלְמוּד לוֹמַר: ״לֹא תְקַלֵּל חֵרֵשׁ״. בְּאוּמְלָלִים שֶׁבְּעַמְּךָ הַכָּתוּב מְדַבֵּר. מָה לְחֵרֵשׁ, שֶׁכֵּן חֲרִישָׁתוֹ גָּרְמָה לוֹ? נָשִׂיא וְדַיָּין יוֹכִיחוּ, מָה לְנָשִׂיא וְדַיָּין שֶׁכֵּן גְּדוּלָּתָן גָּרְמָה לָהֶן? חֵרֵשׁ יוֹכִיחַ. וְחָזַר הַדִּין. לֹא רְאִי זֶה כִרְאִי זֶה, וְלֹא רְאִי זֶה כִּרְאִי זֶה. הַצַּד הַשָּׁוֶה שֶׁבָּהֶן: שֶׁהֵן בְּעַמְּךָ, וְאַתָּה מוּזְהָר עַל קִלְלָתָן. אַף אֲנִי אָבִיא אָבִיךָ, שֶׁבְּעַמְּךָ וְאַתָּה מוּזְהָר עַל קִלְלָתוֹ. מָה לְצַד הַשָּׁוֶה שֶׁבָּהֶן, שֶׁכֵּן מְשׁוּנִּין? אֶלָּא, אִם כֵּן נִכְתּוֹב קְרָא: ״אוֹ אֱלֹהִים וְחֵרֵשׁ, אוֹ נָשִׂיא וְחֵרֵשׁ

The prohibition to curse a deaf person seems to have a different rationale: it is precisely because of the deaf person’s vulnerability—they cannot hear you, and therefore cannot protect themselves or respond to you—that cursing them is especially vicious. In that sense, it’s a prohibition of a different ilk than the previous ones. But the sages say: what all these people have in common is that they are מְשׁוּנִּין, they are unusual, there is something out of the ordinary about them that calls for special care or respect for them.

Blood of a Salamander: b.Sanhedrin 63-65

Today’s limmud is dedicated to the precious memories of Kfir, Ariel, and Shiri Bibas, and Oded Lifshitz. עַל־אֵ֣לֶּה ׀ אֲנִ֣י בוֹכִיָּ֗ה עֵינִ֤י ׀ עֵינִי֙ יֹ֣רְדָה מַּ֔יִם כִּֽי־רָחַ֥ק מִמֶּ֛נִּי מְנַחֵ֖ם מֵשִׁ֣יב נַפְשִׁ֑י הָי֤וּ בָנַי֙ שֽׁוֹמֵמִ֔ים כִּ֥י גָבַ֖ר אוֹיֵֽב׃ {ס} (Lamentations 1:16).

***

“My Father in the Heavens, how far I’ve gone,” says the hero of Shai Agnon’s story The Lady and the Peddler. And so have we, my fellow Talmud travelers – a busy week of grading and preparing for a conference and sitting with the vast grief of the news set us back a few pages, so we’re catching up today.

Reading a bigger portion is not necessarily a bad thing. It reminded me that the Talmud is a little bit like Forrest Gump’s mom’s bag of chocolates—you never quite know what you’re going to get. Personally, I don’t feel obligated to find beauty in all of it; the misogynistic locker talk doesn’t tickle my fancy at all, which raises some worrisome questions about what will happen with this Substack the day we hit Tractate Sotah. But, as Aragorn says in Return of the King, “it is not this day”: today’s portion is peppered with peculiar curiosities, which is my jam!

It all starts as a continuation of yesterday’s discussion of how to count violations—the unit of prosecution issue—with the sages finding biblical anchoring for their legal opinions. For example, there are three biblical mentions of the prohibition to bow to idols, and since nothing in the Torah is deemed superfluous, the sages opine that the first is for worship that follows the protocol, the second for unconventional worship, and the third to call attention to the distinction: אַחַת לִכְדַרְכָּהּ, וְאַחַת שֶׁלֹּא כְּדַרְכָּהּ, וְאַחַת לְחַלֵּק.

A further issue pertains to the difference between speech and action–whether saying to an idol, “you are my god” differs, in terms of punishment, from actually performing ritual worship. The general view is that actual worship is a capital offense, and mere speech can be addressed through a guilt offering. Interestingly, they fold into this another issue: that of recognizing the right and wrong gods in the same speech.

The key biblical source for this is the worship of the golden calf, to which the worshippers said, “These are your gods, Israel, which brought you up out of the land of Egypt” (Exodus 32:8). Rabi Yohana says it was lucky that they said “gods” and “they” (implying a partnership between the right god and the wrong one, but at least mentioning the former), rather than attributing the exodus *only* to the golden calf. But Rabbi Shimon ben Yohai believes that even this formulation is to be condemned: not only does it repudiate monotheism, but it might also imply *more* wrong gods beyond the golden calf.

The sages try to parse out the differences between the various types of idolatry using the speech-vs.-act distinction, but then they come up with another distinction: between the principal actor (the person who does the actual idolatry) and the inciter. While the latter is, technically, speech, it can also be seen as acting through others–causing idolatry to happen: וְלֹא יִגְרוֹם לַאֲחֵרִים שִׁידְּרוּ בִּשְׁמוֹ וְשֶׁיְּקַיְּימוּ בִּשְׁמוֹ. The concern about indirect idolatry extends to doing business with foreigners that might require taking an idolatrous oath alongside them, and also to situations such as this one:

כִּי אֲתָא עוּלָּא, בָּת בְּקַלְנְבוֹ. אֲמַר לֵיהּ רָבָא: וְהֵיכָא בָּת מָר? אֲמַר לֵיהּ: בְּקַלְנְבוֹ. אֲמַר לֵיהּ: וְהָכְתִיב ״וְשֵׁם אֱלֹהִים אֲחֵרִים לֹא תַזְכִּירוּ״? אֲמַר לֵיהּ, הָכִי אָמַר רַבִּי יוֹחָנָן: כׇּל עֲבוֹדָה זָרָה הַכְּתוּבָה בַּתּוֹרָה – מוּתָּר לְהַזְכִּיר שְׁמָהּ. וְהָא הֵיכָא כְּתִיבָא? דִּכְתִיב: ״כָּרַע בֵּל קֹרֵס נְבוֹ״

Ulla stayed in a place called Kalnevo, which also happens to be the name of an idol. So when asked, “where did you stay?” he said, “in Kalnevo.” When he was chided for blasphemy, Ulla explained that saying idol names that are mentioned in the Torah is allowed, and it says, in Isaiah 46:1, “כָּרַע בֵּל קֹרֵס נְבוֹ” (crouching Bel, hidden Nevo, if you will). While general clowning is disallowed, mockery of idolatry is allowed, and “כָּרַע בֵּל קֹרֵס נְבוֹ” is said to be a mockery of the idols, as if they crouched or knelt to defecate.

From here on, in pages 63 and 64, we get a lot of anthropology: the sages describe different forms of idolatry. These include: having a little pocket idol one can take out and kiss once in a while; placing pictures of rich people near the troughs of hungry cattle, so that the calves paw them; worshipping images of chickens, roosters, a bald goat, a dog and a donkey; sacrificing their children to images of a mule and a horse. Then, we get a side remark: turns out that even the father of Hezekiah, the king who fortified the walls of Jerusalem, wanted to burn him as sacrifice–אֶלָּא שֶׁסָּכַתּוּ אִמּוֹ סָלָמַנְדְּרָא–but his mom smeared salamander blood on him, which rendered him fireproof. The storytelling continues; some of the stories are distasteful, especially on a difficult day like today, so I’m going to leave them be and move on.

The sages observe, though, that biblical and mishnaic sources tend to treat the worship of the Molekh–the idol to whom people would sacrifice their children–as more severe than the worship of other idols. Perhaps, as some sages argue, this is about any idol said to be king (מולך means “reigning”), and perhaps there should be distinctions between worshipping temporary molekhs and permanent ones.

Page 65 turns to witchcraft, trying to distinguish the different kinds of divination based on biblical verses, including necromancers and tellers of omens. I think we’ll leave it at that for today and continue tomorrow.

More Transgressions for the Same Amazing Price: b.Sanhedrin 62

Today’s page continues on the theme of idol worship, still reflecting a continuing curiosity about the motives. The previous page considered the idea of cult suasion. Today’s page opens with a dispute between Abaye and Rava:

אִיתְּמַר: הָעוֹבֵד עֲבוֹדָה זָרָה מֵאַהֲבָה וּמִיִּרְאָה, אַבָּיֵי אָמַר: חַיָּיב, רָבָא אָמַר: פָּטוּר. אַבָּיֵי אֲמַר: חַיָּיב, דְּהָא פַּלְחַהּ. רָבָא אָמַר: פָּטוּר, אִי קַבְּלַיהּ עֲלֵיהּ בֶּאֱלוֹהַּ – אִין, אִי לָא – לָא.

The issue is whether a person who worships an idol not out of true reverence for the idol, but rather to please someone they love or fear is liable (as Abaye says) or not (as Rava says).

In modern criminal law, as any first-year law professor will tell her students, motive usually does not matter. some offenses require a specific type of intent (for example, to commit a theft one has to have an intent to permanently deprive the owner of the stolen thing), but *why* the theft happens doesn’t make a difference. Is it greed? jealousy? need, as in Jean Valjean‘s case? Doesn’t matter. If you took and carried the item without permission, intending to permanently deprive, you’ve stolen it in the eyes of the law. Nevertheless, there are some scenarios in which the motive might matter. Proving a strong motive in court could strengthen the jury’s certainty that the defendant committed the offense. Arguing for a virtuous motive to commit a crime can play a role in sentencing, and sometimes might even dissuade prosecutors from pressing charges.

In this case, says Abaye, the motive does not matter, and his proof is threefold:

  1. The original mishna repeats the words “one who worships” twice – one of those is meant to imply our worshipper-with-an-unusual-motive. Rava’s counterargument is that the repetition is about the form of worship, not about the motive.
  2. The original mishna forbids not only bowing to idols, but rather any form of worship; bowing to another person out of love or fear is permitted, as a sign of respect and subservience, but here we have actual worship. Rava’s counterargument: It is possible to bow out of respect or to bow as a form of worship of the person (e.g., the aforementioned cult leader).
  3. There’s a baraita that teaches that, if an anointed high priest unintentionally worships an idol, he must offer sacrifice as his penance. But if the scenario reflects a truly honest mistake (bowing to the statue of a king to honor the king rather than to worship), then the guilt offering is unnecessary; this situation differs from others, where there is a motive to worship. The other sages seem to at least agree that, for the high priest to do such a thing must be a very serious lapse of judgment that does require a guilt offering.

Which brings us to another interesting criminal law principle. Fear not, all will be explained soon enough:

תָּנֵי רַבִּי זַכַּאי קַמֵּיהּ דְּרַבִּי יוֹחָנָן: זִיבַּח, וְקִיטֵּר, וְנִיסֵּךְ, וְהִשְׁתַּחֲוָה בְּהֶעְלֵם אֶחָד – אֵינוֹ חַיָּיב אֶלָּא אַחַת. אֲמַר לֵיהּ: פּוֹק תְּנִי לְבָרָא. אָמַר רַבִּי אַבָּא: הָא דְּאָמַר רַבִּי זַכַּאי מַחְלוֹקֶת רַבִּי יוֹסֵי וְרַבִּי נָתָן, דְּתַנְיָא: הַבְעָרָה לְלָאו יָצָאת, דִּבְרֵי רַבִּי יוֹסֵי. וְרַבִּי נָתָן אוֹמֵר: לְחַלֵּק יָצָאת. לְמַאן דְּאָמַר הַבְעָרָה לְלָאו יָצָאת, הִשְׁתַּחֲוָאָה נָמֵי לְלָאו יָצָאת. לְמַאן דְּאָמַר הַבְעָרָה לְחַלֵּק יָצָאת, הִשְׁתַּחֲוָאָה נָמֵי לְחַלֵּק יָצָאת. מַתְקֵיף לַהּ רַב יוֹסֵף: דִּילְמָא עַד כָּאן לָא קָאָמַר רַבִּי יוֹסֵי הָתָם הַבְעָרָה לְלָאו יָצָאת, דְּנָפְקָא לֵיהּ חִילּוּק מְלָאכוֹת מֵ״אַחַת מֵהֵנָּה״? דְּתַנְיָא: רַבִּי יוֹסֵי אוֹמֵר, ״וְעָשָׂה מֵאַחַת מֵהֵנָּה״ – פְּעָמִים שֶׁחַיָּיב אַחַת עַל כּוּלָּן, פְּעָמִים שֶׁחַיָּיב עַל כׇּל אַחַת וְאַחַת. וְאָמַר רַבִּי יוֹנָתָן: מַאי טַעְמָא דְּרַבִּי יוֹסֵי? דִּכְתִיב ״וְעָשָׂה מֵאַחַת מֵהֵנָּה״. אַחַת, מֵאַחַת. הֵנָּה, מֵהֵנָּה. ״אַחַת״ שֶׁהִיא ״הֵנָּה״, וְ״הֵנָּה״ שֶׁהִיא ״אַחַת״. אַחַת – ״שִׁמְעוֹן״, מֵאַחַת – ״שֵׁם״ מִ״שִּׁמְעוֹן״. ״הֵנָּה״ – אָבוֹת, ״מֵהֵנָּה״ – תּוֹלָדוֹת. ״אַחַת״ שֶׁהִיא ״הֵנָּה״: זְדוֹן שַׁבָּת וְשִׁגְגַת מְלָאכוֹת. ״הֵנָּה״ שֶׁהִיא ״אַחַת״: שִׁגְגַת שַׁבָּת וּזְדוֹן מְלָאכוֹת. אֲבָל הָכָא, דְּלָא נָפְקָא לֵיהּ חִילּוּק מְלָאכוֹת מִדּוּכְתָּא אַחֲרִיתִי, דְּכוּלֵּי עָלְמָא הִשְׁתַּחֲוָאָה לְחַלֵּק יָצָאת. חִילּוּק מְלָאכוֹת דַּעֲבוֹדָה זָרָה נָמֵי תִּיפּוֹק לֵיהּ מֵ״אַחַת מֵהֵנָּה״? ״אַחַת״ – זְבִיחָה, ״מֵאַחַת״ – סִימָן אֶחָד. ״הֵנָּה״ – אָבוֹת: זִיבּוּחַ, קִיטּוּר, נִיסּוּךְ, וְהִשְׁתַּחֲוָאָה. ״מֵהֵנָּה״ – תּוֹלָדוֹת: שָׁבַר מַקֵּל לְפָנֶיהָ. ״אַחַת״ שֶׁהִיא ״הֵנָּה״: זְדוֹן עֲבוֹדָה זָרָה וְשִׁגְגַת עֲבוֹדוֹת. ״הֵנָּה״ שֶׁהִיא ״אַחַת״: שִׁגְגַת עֲבוֹדָה זָרָה וּזְדוֹן עֲבוֹדוֹת.

The issue here is what I call, when I teach double jeopardy, unit of prosecution. Idol worship could include an entire sequence of actions: killing the animal, smoking it, dripping its blood, bowing to the idol. Is each of these a separate offense, or are they all part of a single idol-worship transgression? The different sages try to count the offenses in different ways, finding anchoring for their logic in various biblical verses. They relate it to a similar issue: violating the Shabbat and lighting a fire on Shabbat–with the latter treated so severely that it is counted as a separate offense. Setting aside the biblical juggling, I can see good arguments for a variety of reasonable approaches to this problem–and indeed, Rabbi Yose says that these scenarios should be figured out on a case-by-case basis (פְּעָמִים שֶׁחַיָּיב אַחַת עַל כּוּלָּן, פְּעָמִים שֶׁחַיָּיב עַל כׇּל אַחַת וְאַחַת). Here, for example, is U.S. federal law trying to sort out the very same problem. On one hand, overcharging is petty and creates what could be an unfair lever toward plea bargaining. On the other, undercharging could incentivize people to commit more crimes, knowing that the charges will not become more serious.

This brings the sages back to the questions of motive and intent, and they opine that the misguided idol worshipper, regardless of what he did, is liable only for one guilt offering – and they proceed to dismiss the idea of separating the offense into difference charges, with the rare closing וְתוּ לָא מִידֵּי (“there’s nothing more to discuss.”) Really? Have they decided to dismiss the whole unit of prosecution issue?

NOPE!

They’re back to it. Rav Shmuel arrives in Babylonia from Eretz Israel and discusses a baraita according to which each Shabbat violation is counted separately. And as it happens, I have a case in point in which common law concluded the opposite! I’m not making this up! In Crepps v. Durden (1777), “the plaintiff was convicted of selling small hot loaves of bread, the same not being any work of charity, on the same day (being Sunday) by four separate convictions.” The court concluded, as Lewis Hoccheimer explains in this law review article from 1900 (ah, the days in which these things were merely six pages long!) that the sales of the loaves (albeit to different customers) all constitute one offense. The contradiction is illusionary: as the sages explain, if one lights a fire AND mows one’s field, those are two transgressions; but two instances of mowing (like two instances of selling bread) count as only one transgression.

Now, the sages try to reconcile the two issues, which appear to involve different logical principles: repeated violations on the Sabbath and unintentional idol worship. They combine both into one: an unintentional idolator who engages in a series of worship actions owes only one guilt offering.

Cuddling with Idols: b.Sanhedrin 60-61

Today we’re going over two pages (the Shabbat page and today’s). I might make this a habit, as our family Saturdays are packed with the holy religion of children’s sports. We’ll see how it goes. Anyway, the bulk of both pages is a continuous discussion of the offense of idolatry.

The beginning of p. 60, though, continues the rabbinical discussion from pp. 57-59 about the universal application of various obligations. Rabbi Shimon, you might remember, thought the prohibition on witchcraft applies to Jews and gentiles alike. The reasoning is that the prohibition uses universal language: ״מְכַשֵּׁפָה לֹא תְחַיֶּה״ (“thou shalt not suffer a witch to live”), which includes various commandments, including the prohibition against bestiality, that do have universal application. A similar maneuver is used by Rabbi Elazar to universalize the prohibition on mixing different types of seed and textile. This issue relates directly to the question of the two covenants, which came up in the previous pages: the Noahide one, which applies to all humans, and the Sinaitic one, which applies to Israelites/Jews. The rabbis carefully parse the obligation language: the phrase ״וּשְׁמַרְתֶּם אֶת חֻקֹּתַי״ (and you shall keep my statutes) refers to statutes handed now, whereas the phrase ״אֶת חֻקֹּתַי תִּשְׁמֹרוּ״ (my statutes you shall keep) refers to statutes generally, in principle (including the ones already in place.) Which, to me at least, sounds like the vast difference between the People’s Front of Judea and the Judean People’s Front.

The page now returns to an issue we had discarded halfway through: the criminal trials of blasphemers, specifically the prohibition on witnesses to utter the blasphemy even when reporting the out-of-court statement. Remember that the witnesses have to use the euphemism YOSE in lieu of the actual name? They carve out the elements of the offense: to be liable, one must use at least the Tetragrammaton (the four-letter name of God); the two-leter YH is not enough for committing the offense.

Thing is, if the witnesses and judges were all talking around the issue, how can we be sure what the defendant said? The mishna teaches that when the judgment is over, one witness (the eldest) says the actual name that was uttered, and then the judges rise and tear their garment. The gemara finds biblical anchoring for this custom. In Judges 3:20, when Ehud comes to give news to Eglon the Moabite, he says, “I have a message from God to you”, and Eglon rises => the judges must rise (and if a gentile rose, Israelites surely must!). And in II Kings 18:37, after Rabshakeh gives his Mouth-of-Sauron speech, the Judean officials tear their garments => so must the judges. The judges must not mend their clothes, which they get from the emphasis and repetition in the description of Elisha tearing his garments (וַיִּקְרָעֵם לִשְׁנַיִם קְרָעִים, and he tore them into two pieces). The witnesses do not need to do so, as they would presumably have already done so when they heard the blasphemy in the first place. And the best zinger of the lot is this:

וּפְלִיגִי דְּרַבִּי חִיָּיא בְּתַרְוַיְיהוּ, דְּאָמַר רַבִּי חִיָּיא: הַשּׁוֹמֵעַ אַזְכָּרָה בִּזְמַן הַזֶּה אֵינוֹ חַיָּיב לִקְרוֹעַ, שֶׁאִם אִי אַתָּה אוֹמֵר כֵּן – נִתְמַלֵּא כׇּל הַבֶּגֶד קְרָעִים.

Meaning, there’s a controversy over whether, nowadays there’s a need to tear one’s cloth when hearing blasphemy; Rabbi Hiya says one doesn’t have to, otherwise the entire garment will be torn to pieces, which is such a poetic way to convey desensitization; others dispute this, doubting we’ve become so bad-spoken and suggesting that one still needs to tear their clothes when hearing blasphemy by a Jew.

The last issue the sages flag here is the deviation from the usual procedure, in which witnesses do not testify in each other’s presence to prevent them from hearing each other’s testimony (and thus tailoring their testimony to harmonize with that of other witnesses.) In modern U.S. evidence law, this is addressed in Rule 615, which was recently amended to clarify that, in addition to excluding witnesses from the courtroom, the court may also prohibit the excluded witness from learning about, obtaining, or being provided with trial testimony. The blasphemy business, though, requires an exception from this rule, because how will witness #2 be able to say “I heard that also”? Apparently, the concern about repeating the blasphemy outweighs the concern of witness collusion–both in two witnesses and in three.

Which brings us to a new issue: the definition of idolatry, an offense punishable by death. The mishna lists the forms of punshable idolatry, distinguishing them other forms of dealing with idols, such as cuddling and bathing them, which are not punishable:

מַתְנִי׳ הָעוֹבֵד עֲבוֹדָה זָרָה: אֶחָד הָעוֹבֵד, וְאֶחָד הַמְזַבֵּחַ, וְאֶחָד הַמְקַטֵּר, וְאֶחָד הַמְנַסֵּךְ, וְאֶחָד הַמִּשְׁתַּחֲוֶה, וְאֶחָד הַמְקַבְּלוֹ עָלָיו לֶאֱלוֹהַּ, וְהָאוֹמֵר לוֹ ״אֵלִי אַתָּה״.

אֲבָל הַמְגַפֵּף, וְהַמְנַשֵּׁק, וְהַמְכַבֵּד, וְהַמְרַבֵּץ, וְהַמְרַחֵץ, וְהַסָּךְ, וְהַמַּלְבִּישׁ, וְהַמַּנְעִיל – עוֹבֵר בְּלֹא תַעֲשֶׂה. הַנּוֹדֵר בִּשְׁמוֹ, וְהַמְקַיֵּים בִּשְׁמוֹ – עוֹבֵר בְּלֹא תַעֲשֶׂה.

הַפּוֹעֵר עַצְמוֹ לְבַעַל פְּעוֹר – זוֹ הִיא עֲבוֹדָתָהּ. הַזּוֹרֵק אֶבֶן לְמַרְקוּלִיס – זוֹ הִיא עֲבוֹדָתָהּ.

One of the most interesting bits about the gemara on this is the interest the sages have in foreign forms of worship. Rabbi Yirmeyah says that bowing to an idol, even if it’s not the usual manner of worshiping that particular idol, is prohibited (there are verses about idol worship that specifically mention bowing, from which they deduce that bowing is especially offensive). The sages pay special attention to the punishable worship of idols in the same way that the Jewish God is worshipped, to prevent a situation where they accidentally prohibit the proper form and target of worship. Some sages believe that cuddling with idols, which is not mentioned, is not forbidden; others believe that the term “bowing” is a general term meant to imply all forms of idol worship–or at least to any worshipful behavior that would be honorable re the Jewish God but is dishonorable re idols.

The rabbis then elicit a principle of “transferred intention”: if one performs an idolatrous labor thinking of another idolatrous labor, the offense is still punishable, as the intent shifts from labor to labor (דִּמְחַשְּׁבִין מֵעֲבוֹדָה לַעֲבוֹדָה). This reminds me a bit of the transferred intent doctrine in modern criminal law: if you wanted to kill A but killed B, your intent to commit murder carries and you are culpable either way. But the sages raise another problem with transferred intention in the context of idolatry: Slaughtering animals, they say, is allowed for mundane purposes. But what if the intent (to use the blood for idol worship) does not come to fruition? There’s a conflict of opinion, and some debate over whether the issue is the person’s liability or the dead animal’s suitability for mundane labors.

So, there’s a lot more of this here, but I want to turn to a little side issue. Often, when relaying a debate, there’s a little tidbit about when and where the conversation happened. Somewhere on page 61, we learn the following:

רַב הַמְנוּנָא אִירְכַסוּ לֵיהּ תּוֹרֵי. פְּגַע בֵּיהּ רַבָּה, רְמָא לֵיהּ מַתְנְיָתִין אַהֲדָדֵי: תְּנַן ״הָעוֹבֵד עֲבוֹדָה זָרָה״ – עוֹבֵד אִין, אוֹמֵר לָא. וְהָאֲנַן תְּנַן: ״הָאוֹמֵר ׳אֶעֱבוֹד׳, ׳אֵלֵךְ וְאֶעֱבוֹד׳, ׳נֵלֵךְ וְנַעֲבוֹד׳״?

Rav Hamnuna lost his oxen and, presumably when searching for them, ran into Rabba, who joined him, and along the way they chatted about a contradiction between two mishnayot, which reach opposite conclusions about the liability of someone who declares he’s going to worship an idol but doesn’t actually do it. I love that whoever redacted this stuff wanted to provide us the mental image of these two guys, walking around, looking for oxen, and hashing out the mishnaic contradictions. But the linguistic issue they raise is interesting, because modern law, too, struggles with the point at which declaring an intent becomes an act. Is declaring “I’m going to go worship idols” merely speech, or is it speech-act, which might spur toward idol worship, or which is somehow performative on its own?

One difficult case involves a person who posits themselves as a god and asks others to worship them. The way the sages address this scenario is pretty cool. Some worry that this incitement is worrisome, because folks might be persuaded (שָׁמְעִי לֵיהּ) and some think that it’s harmless, because people will likely say, “how is he different than us?” mock the guy, and then no harm is done. The sages consider that inciting an individual can work, but trying to sway a whole group of people will likely not work, as there will probably be more inertia in a group and less deviant energy.

וּמַתְנְיָתִין: כָּאן בְּיָחִיד הַנִּיסָּת, כָּאן בְּרַבִּים הַנִּיסָּתִים. יָחִיד – לָא מִימְּלַךְ, וְטָעֵי בָּתְרֵיהּ; רַבִּים – מִימַּלְכִי, וְלָא טָעוּ בָּתְרֵיהּ.

And the contradiction between the mishnayot can be resolved as follows: There, where the mishna states that one is liable for speech alone, the reference is to an individual who was incited; here, where the mishna indicates that one is not liable for speech alone, it is referring to a case of an incited multitude of people. The Gemara explains: An individual who was incited does not typically change his mind, and he goes astray after idol worship. Therefore, once he agrees to the suggestion to worship an idol, he has fully accepted the idol upon himself as a god and is liable. By contrast, a multitude of people are apt to change their minds, and consequently they do not go astray after idol worship.

This makes me think of the many studies on cults I read when working on Yesterday’s Monsters, and on the acquisition of followers one by one. The sages don’t seem to consider a scenario in which the cult leader accrues a critical mass of worshippers, which would make it easier to tip the scales for the as-of-yet unconvinced. To the extent that the matter of who is swayed, how many, and by whom, has some implications as to the punishment–and the sages debate whether it makes a difference re stoning-vs.-beheading–the arguments that are being made are more about anchoring the punishments in verse than about the psychology of cult suasion.

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.