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.

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.