Peculiar Murders: b.Sanhedrin 77

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

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

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

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

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

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

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

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

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

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

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

The Limits of Propriety: b.Sanhedrin 75-76

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

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

Logical Inferences from Other Contexts: Dun Mina – דּוּן מִינַּהּ

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

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

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

As above, so below

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

***

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

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

Standing Up to Villains: b.Sanhedrin 73-75

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

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

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

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

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

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

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

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

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

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

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

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

Punishing Future Crimes: b.Sanhedrin 72

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fleeing Justice: b.Sanhedrin 71

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Stuffing Your Face: b.Sanhedrin 70

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wine is associated with fighting and injuries and red eyes.

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

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

שֶׁאֵין לְךָ דָּבָר שֶׁמֵּבִיא יְלָלָה לְאָדָם אֶלָּא יַיִן.

Wine brings about wailing.

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

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

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

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

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

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.

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.

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.