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

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

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

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

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

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

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

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

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

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

What Fresh Heaven Is This?

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

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

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

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

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

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

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

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

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

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

Blasphemy and Courtroom Decorum: b.Sanhedrin 56

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

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

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

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

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

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

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

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

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

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

Plotting the Tube of Blood: b.Sanhedrin 52

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

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

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

Burning

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

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

Decapitation

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

Strangulation

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

Tune in tomorrow for the fourth execution method: stoning.

The Scarlet Letter: b. Sanhedrin 51

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Order of Things: b.Sanhedrin 49

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

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

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

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

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

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

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

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

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

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

The Shroud Industrial Complex: b.Sanhedrin 48

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

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

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

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

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

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

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

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

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

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

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

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

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

Mourning and Deservedness: b.Sanhedrin 47

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And we’re given two examples:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gender Differences in Punishment: b.Sanhedrin 45

Today’s daf starts with things that are quite difficult to talk about: stoning procedures. I’m not going to flinch away from this, though, because to this day, about half of U.S. states have elaborate execution protocols that might masquerade as being more humane, but actually hide a multitude of botched executions. We have to openly discuss state-sanctioned death, no matter how much we now medicalize executions and tuck them behind closed doors, they are part and parcel of our legal system at present. While the talmudic discussion feels cold and crass, it’s important to remember that it was theoretical: not only did they have no power to execute people, and they were reminiscing, but it is also highly unlikely that executions were very common during the Sanhedrin time. So much of this is speculation about execution proceedings that might harken to biblical times.

Anyway, the amoraic discussion starts with a quote from a mishna, according to which the proceedings for preparing condemned men and women for stoning differ: either the woman is a bit more covered up than the man or the man is completely naked and the woman is not. From here on, the sages matter-of-factly turn to examining the differences in procedure. Their point of departure is Leviticus 24:14, the provenance of the whole stoning debacle, where the text refers to a male transgressor and does not, seemingly, allow for the stoning of a female transgressor. This, however, contrasts with the text in Deuteronomy 17:5, which refers to both genders as candidates for stoning: “And you shall bring forth that man or that woman… and stone them with stones until they die.” And if this wasn’t distressing enough, here’s where things take an even uglier turn.

לְמֵימְרָא דְּרַבָּנַן חָיְישִׁי לְהִרְהוּרָא, וְרַבִּי יְהוּדָה לָא חָיֵישׁ לְהִרְהוּרָא? וְהָא אִיפְּכָא שְׁמַעְנָא לְהוּ, דִּתְנַן: הַכֹּהֵן אוֹחֵז בִּבְגָדֶיהָ – אִם נִקְרְעוּ נִקְרְעוּ, וְאִם נִפְרְמוּ נִפְרְמוּ, עַד שֶׁמְּגַלֶּה אֶת לִבָּהּ וְסוֹתֵר אֶת שְׂעָרָהּ. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה לִבָּהּ נָאֶה לֹא הָיָה מְגַלֵּהוּ, וְאִם הָיָה שְׂעָרָהּ נָאֶה לֹא הָיָה סוֹתְרוֹ.

The Gemara asks: Is this to say that the Rabbis are concerned that the sight of a naked woman will arouse sexual thoughts among the onlookers, and Rabbi Yehuda is not concerned about such sexual thoughts? But didn’t we hear them say just the opposite, as we learned in a mishna (Sota 7a) with regard to a sota, a woman suspected of adultery by her husband, and who was made to undergo the ordeal of the bitter waters: And the priest grabs hold of her clothing and pulls it, without concern about what happens to it. If the clothes are torn, they are torn; if the stitches come apart, they come apart. And he pulls her clothing until he reveals her heart, i.e., her chest. And then he unbraids her hair. Rabbi Yehuda says: If her heart was attractive he would not reveal it, and if her hair was attractive he would not unbraid it. This seems to indicate that it is Rabbi Yehuda who is concerned about the sexual thoughts of the onlookers.

The concern, you see, is that onlookers might find the spectacle of a naked woman, even as she is on the verge of execution, sexually arousing. And the gemara seems to think this was Rabbi Yehuda’s concern in finding that women should be stoned fully clothed: analogizing from another biblical punishment, the forcing of bitter waters on an adulterous woman, they seem to think that the humiliation is part of the spectacle and want to prevent it becoming a sideshow. But wait, there’s more:

אָמַר רַבָּה: הָתָם הַיְינוּ טַעְמָא, שֶׁמָּא תֵּצֵא מִבֵּית דִּין זַכָּאָה וְיִתְגָּרוּ בָּהּ פִּירְחֵי כְּהוּנָּה. הָכָא הָא מִקַּטְלָא. וְכִי תֵּימָא: אָתֵי לְאִיתְגָּרוֹיֵי בְּאַחְרָנְיָיתָא? אָמַר רַבָּה: גְּמִירִי, אֵין יֵצֶר הָרָע שׁוֹלֵט אֶלָּא בְּמִי שֶׁעֵינָיו רוֹאוֹת.

Rabba said: There, in the case of a sota, this is the reason that Rabbi Yehuda says that the priest does not reveal the woman’s chest or unbraid her hair: Perhaps the sotawill leave the court having been proven innocent, and the young priests in the Temple who saw her partially naked will become provoked by the sight of her. Here, in the case of a woman who is stoned, she is killed by being stoned, and there is no concern about the onlookers’ becoming provoked after her death. The Gemara comments: And if you would say that the fact that she is killed is irrelevant to their having sexual thoughts because the onlookers will be provoked with regard to other women, this is not a concern, as Rabba says: It is learned as a tradition that the evil inclination controls only that which one’s eyes see.

Rabba is distinguishing between the bitter waters issue and the stoning issue, arguing that the latter spectacle is unlikely to sexually provoke men after death in the same way that the bitter waters spectacle for adulteresses is. Indeed, in trying to resolve the contradiction, Rava explains that in the case of the adulteress, part of the sentence includes chastening and disgrace, whereas for a stoned woman, the stoning in itself is the disgrace:

דְּרַבָּנַן אַדְּרַבָּנַן נָמֵי לָא קַשְׁיָא. אָמַר קְרָא: ״וְנִוַּסְּרוּ כׇּל הַנָּשִׁים וְלֹא תַעֲשֶׂינָה כְּזִמַּתְכֶנָה״. הָכָא, אֵין לְךָ יִיסּוּר גָּדוֹל מִזֶּה.

Rava continues: The contradiction between one ruling of the Rabbis and the other ruling of the Rabbis is not difficult either. With regard to a sota, the verse states that other women should be warned: “Thus will I cause lewdness to cease out of the land, that all women may be chastened not to do like your lewdness” (Ezekiel 23:48). In order to serve as an example and warning to other women, a woman suspected of adultery must undergo public disgrace, and therefore the concern about the sexual thoughts that her partially naked body might arouse is disregarded. Here, with regard to stoning, you have no chastening greater than seeing this stoning itself.

Lest you might think that these concerns about the public spectacle of executing women is unique to the gemara, the issue of gender in corporal punishment is present in all cultures. When Malcolm Feeley and I worked on our social history project, we were investigating a phenomenon that Malcolm, along with Deborah Little, uncovered when they studied sentencing in the Old Bailey: the gradual disappearance of the female offender. They discovered that, over the course of the long Nineteenth century, the numbers women, who used to be about half (sometimes more) of the convicts in court, begin to considerably dwindle. This cannot be explained away solely through the disappearance of offenses typically enforced against women (witchcraft, infanticide, adultery, etc.), by the return of men from war, or by the presence of more dominant male accomplices. When I joined the project, we expanded the historical inquiry to cover other countries: France, the Netherlands, Belgium, Germany. We found the same things, even as different regions differed in terms of local wars (that would remove the men from the list of potential offenders/defendants).

We came to the conclusion that the disappearance of female offenders was probably a combination of two shifts. The first was a decline in women’s opportunities to commit crime due to a change in patriarchal style, from public to private. While patriarchal regimes are present since antiquity (as today’s daf proves), women were very much part of the life of the market, the public square, etc. We have Medieval and Renaissance and Early Modern accounts of women as business proprietors, mixed in with the underworld. But the industrial revolution ushers a domestication of middle-class women and a gender segregation of working-class woman into gendered factories and into domestic service in households, which would reduce their opportunities for mixing up in scenarios that involve property crime, etc. The second factor in the decline, we hypothesized, was a decline in public willingness to drag women into the limelight of the criminal process, except in some sensationalized cases. Our colleague Lucia Zedner believes that some of this reflects a “bad-to-mad” shift, where women’s transgressions are medicalized and pathologized rather than medicalized. And our colleague Nicola Lacey documents the increasingly disempowered description of women offenders in period literature. There seems to be an idea that echoes the talmudic sages’ concerns – a notion that it is somehow unchivalrous to publicly criminalize and punish women, which is echoed by criminological theories from the 1950s and 1960s.. But then, Rav Nachman quotes Rabba bar Avuh as stating that minimizing the suffering of condemned women is more of a universal principle, stemming from our care for one another:

וְכִי תֵּימָא: לֶיעְבֵּיד בַּהּ תַּרְתֵּי? אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״ – בְּרוֹר לוֹ מִיתָה יָפָה.

And if you would say that two forms of chastening, both stoning and humiliation, should be done to her, Rav Naḥman says that Rabba bar Avuh says: The verse states: “You shall love your neighbor as yourself” (Leviticus 19:18), teaching that even with regard to a condemned prisoner, select a good, i.e., a compassionate, death for him. Therefore, when putting a woman to death by stoning, she should not be humiliated in the process.

But what counts as “a beautiful death” is malleable, and might encompass some gender differences–particularly about the question whether the priority is to minimize public humiliation (e.g., a dignified death) or corporal sufering (e.g., a painless death). And isn’t this exactly the sort of thing that animates our endless litigation and public debate about what can strip death of its “cruel and unusual” features, supposedly making it “kind and usual”?

לֵימָא: דְּרַב נַחְמָן תַּנָּאֵי הִיא? לָא, דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב נַחְמָן, וְהָכָא בְּהָא קָמִיפַּלְגִי: מָר סָבַר בִּזְיוֹנֵי דְאִינִישׁ עֲדִיף לֵיהּ טְפֵי מִנְּיָחָא דְגוּפֵיהּ, וּמָר סָבַר נְיָחָא דְגוּפֵיהּ עֲדִיף מִבִּזְיוֹנֵיהּ.

The Gemara suggests: Let us say that whether one rules in accordance with the statement of Rav Naḥman is a dispute between tanna’im, and according to Rabbi Yehuda there is no mitzva to select a compassionate death. The Gemara refutes this: No, it may be that everyone agrees with the opinion of Rav Naḥman, and here they disagree about this: One Sage, i.e., the Rabbis, holds: Minimizing one’s degradation is better for him than seeing to his physical comfort, i.e., than minimizing his physical pain. Therefore, the Rabbis view the more compassionate death as one without degradation, even if wearing clothes will increase the pain of the one being executed, as the clothes will absorb the blow and prolong his death. And one Sage, Rabbi Yehuda, holds that one’s physical comfort is better for him than minimizing his degradation, and therefore the one being executed prefers to be stoned unclothed, without any chance of the clothing prolonging his death, even though this increases his degradation.

The gemara then proceeds to discuss stoning procedures designed to minimize suffering and raise accountability, e.g., requiring the incriminating witnesses to cast the first stone and thus take responsibility for the outcome of their actions. But the notion that humanizing death is a consequence of loving another as one own can be difficult to swallow. And yet, ever since capital punishment litigation eroded to a point of having protracted, sanitized discussions of whether to use one injection or three, this or that chemical, aren’t we essentially engaging in the same exercise to this day? The fact that the death penalty is on its last legs in the U.S. (I still think so, even with the current administration) makes its last bites especially vicious.