Punishing Future Crimes: b.Sanhedrin 72

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Stuffing Your Face: b.Sanhedrin 70

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wine is associated with fighting and injuries and red eyes.

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

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

שֶׁאֵין לְךָ דָּבָר שֶׁמֵּבִיא יְלָלָה לְאָדָם אֶלָּא יַיִן.

Wine brings about wailing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zucchini Magic: b.Sanhedrin 67-68

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

הֲדַרַן עֲלָךְ אַרְבַּע מִיתוֹת

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

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

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

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

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

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

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