The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
The Mishnah (76b) taught that one of the people who is liable to receive a death penalty and would be killed by sword is a murderer. The Mishnah gives examples of who would be considered a murderer and who would not. If someone held someone else under water or in a fire, he would be considered a murderer, but if the second person could easily get away, then he would not be considered a murderer. Similarly, if someone encouraged a dog or a snake to attack he would not be considered a murderer, although if he actually held the snake and caused it to bite then Rabbi Yehuda would consider that to be a direct attack, and he would be considered a murderer.
The Gemara brings a number of cases where it tests whether a person’s actions are considered to be a direct cause of death, which would make him a murderer in the eyes of Jewish law, or if what he does is only considered an indirect cause and he will not be liable to receive a death penalty. For example, when someone throws a rock against a wall and it bounces back and kills a person, Rava rules that it is considered to be a direct cause and the person who threw the rock will be liable.
A similar halacha was taught by a tanna regarding someone who threw a ball that bounced off the wall and killed someone. Given the fact that people who play ball are knowledgeable in how it will ricochet, such a throw will be considered the direct responsibility of the one who threw it.
During the time of the Talmud there were a variety of different games that were played with balls. From the description in the Gemara it appears that we are talking about a game where a very heavy ball was thrown against a wall, and the ball had to bounce back at a certain angle and distance.
Rava teaches that if someone kills a treifah – someone with a physical defect that is so severe that we know he will die within a relatively short time – he will not be considered a murderer, since the dead man was essentially considered to be dead already.
The concept of a treifah appears in the Torah in the context of an animal that has been attacked and killed (see Shemot 22:30) that cannot be eaten. In the Talmud – and in common language today – the concept has been broadened beyond an animal that is attacked by a predator to include any animal that has a physical defect severe enough to hasten its death. The term should be understood similarly when used in reference to a human being – a person who has a serious physical condition that we know will lead to his death within a specific time frame – a year or less. In the case discussed in our Gemara it appears that we are talking about a situation where the condition that makes the man a treifah is obvious and apparent, since we do not assume that any given person has a condition that would make him a treifah.
Although Rava states that no one disagrees with his ruling on this matter, Rav Yaakov Emden points out that we find a story in Tanach where it appears that someone is killed for murdering a dying man. In the first chapter of I Shmuel we find that King David executes a na’ar Amaleki when he discovers that he killed King Shaul. From the descriptions in the navi it seems clear that King Shaul’s physical condition was such that he would have been considered a treifah. It may be, however, that King David did not execute him as a murderer, rather because of King Shaul’s high standing, the na’ar Amaleki deserved death for killing the king.
What is more significant – a person’s intent or a person’s actions?
This question comes to the fore in the Mishnah on today’s daf where many cases are presented where a person’s specific intention is not fulfilled, but a very similar thing does take place. For example, if a person meant to hit a child severely enough so that the child would die, but instead his blow hit an adult, and there was not enough force in the blow to actually kill an adult. In such a case, if the adult died nonetheless, the attacker will not be held liable, since his blow was not strong enough to kill an adult. If, however, he meant to kill the adult with a blow that was sufficient to kill an adult or a child, if he actually hit an adult, he would be held liable as a murderer. The Mishnah concludes with Rabbi Shimon‘s opinion, that someone who intended to kill one person and ended up killing another will not be held liable for murder.
The first opinion in the Mishnah apparently believes that we look at just one element of the person’s intent – did he mean to kill? If he meant to kill and his action was sufficient to kill, he will be held liable, even if his actions killed someone other than the person he intended to murder.
Rabbi Shimon, on the other hand, insists that all elements of intent must be in place for a person to be held responsible for his actions, and that he will only be liable if his actions matched his intention. This position, which places much significance to a person’s intentions, is true according to Rabbi Shimon not only in these laws, but in other areas of halacha, as well. There are some places where all agree that we must take into account the person’s intent – e.g. the laws of Shabbat – but Rabbi Shimon applies this idea across the board.
Aside from direct testimony, in order for a Jewish court to carry out a death sentence the witnesses must first warn the perpetrator that the act that he is about to do is forbidden and that the penalty he will receive for doing it is death.
Must the person who is committing the crime know which of the death sentences he may be liable to receive? Rabbi Yirmiyah in our Gemara quotes a baraita that suggests that this question is disputed by the tanna’im. According to the Tanna Kamma the prerequisites necessary for carrying out a death sentence are eidah (a court of 23 judges), eidim (witnesses), and hatra’ah (warning) that includes informing him that he may be liable to receive a death sentence. Rabbi Yehuda requires the witnesses to specify to him which death penalty he would get.
The source for the opinion of the Tanna Kamma is a clear case in the Torah. The mekoshesh etzim – the individual who was found gathering (or, perhaps cutting) wood on Shabbat – was brought before Moshe for trial. According to the Torah, Moshe needed divine direction to determine what to do (see Bamidbar 15:32-36). Clearly the implication is that the punishment was not clear, yet what the witnesses warned him about was sufficient for him to be punished. Rabbi Yehuda argues that the story of the mekoshesh etzim cannot be brought as a proof since it was a hora’at sha’ah – it was a unique ruling appropriate for that time only.
The Ramah explains this hora’at sha’ah as follows. It was clear that the mekoshesh etzim deserved a death sentence for desecration of the Shabbat. What was unclear was the particular type of death sentence, so at that time the witnesses could not have been so specific in their warning, and the warning that they gave was sufficient. The argument is whether we can learn from that situation and apply it to later cases, as well, or, perhaps, now that the punishments are established a general warning will not suffice.
The common punishments meted out by the Jewish court are malkot (lashes) and occasionally mitat bet din (capital punishment) for severe crimes. Incarceration in prison, the most common form of punishment today, was unknown to the Sages. Nevertheless, there was a type of prison known as a kippah that the Mishnayot on today’s daf discuss.
The Mishnah teaches that if someone murdered his fellow and there were no witnesses (as the Gemara explains, there were witnesses but their testimony was rejected for technical reasons), the court will place the accused in a kipah and feed him bread and water. Similarly, the Mishnah teaches, someone who repeatedly commits crimes and is punished is also placed in a kippah where he is fed barley until his stomach bursts. The Gemara explains that we are talking about someone who repeatedly committed crimes for which the punishment is karet – a death sentence left to God. As Rabbi Yirmiyah explains in the name of Reish Lakish, since his activities show that he has given up on his life, the court assists him in bringing his life to an end. The Gemara further explains that in both of these cases he is first fed bread and water and then he is fed barley, a diet that will hasten his death.
Rav Yehuda explains that a kippah is a small and narrow prison. According to Reish Lakish, the source for this punishment is found in Tehillim (34:22) where we find that the end of an evildoer is an unpleasant death.
The discussion among the rishonim is whether the institution of kippah is an oral tradition from Moshe and works on a biblical level or if it is a rabbinic regulation that was established in order to give the Jewish courts a method of dealing with anti-social behaviors that cannot be prosecuted under the strict laws of the Torah. Such an approach is particularly appropriate in cases of setting a murderer free, where the concerns for society may obligate the courts to act.
The Mishnah (81b) offers examples of situations where the Jewish court cannot act, but kana’im pogim bo – it would be acceptable for an individual who is offended by the situation to step forward and take the law into his own hands.
The prime example of this behavior is the case of Pinchas (see Bamidbar chapter 25) who stepped forward and killed Zimri ben Salu, a prince from the tribe of Shimon who was engaged in idolatrous harlotry with Cozbi bat Tzur, a Midianite woman. The Gemara on today’s daf (=page) offers a detailed midrashic explanation of the interaction that took place.
According to the Gemara, the tribe of Shimon, whose members were being judged and killed by Moshe for their activities with the daughters of Mo’av and its gods, approached Zimri and demanded that he act to defend them. Zimri then took a group of 24,000 of his men and approached Moshe while bringing with him Cozbi bat Tzur. His argument to Moshe was that if she was forbidden, how could Moshe’s wife, Tzipporah the daughter of Yitro, the Midianite priest be permitted? Stung by this argument, Moshe had no response, and they stood crying until Pinchas stepped forward.
According to Rav Chisda, the law of kana’im pogim bo is unique in that someone who asks for a halakhic ruling whether they can take the law into their own hands will not be given permission to do so – the law applies only if the person does it on his own initiative. The Talmud Yerushalmi goes so far as to say that doing so goes against the wishes of the Sages and that had God not supported the actions of Pinchas he would have been censured by the leadership. Furthermore, as Rabbah bar bar Hannah points out in the name of Rabbi Yochanan, had Zimri defended himself and killed Pinchas he would not have been considered a murderer, since he had every right to defend himself.
One of the rules upon which Talmudic discussion is based is that the words of the amoraim – the Sages of the Gemara – must always be in agreement with the teachings of the tanna’im – the Sages of the Mishnah – who were seen as having reliable oral traditions. Thus, one of the most common questions found in the Gemara is “meitivei” – which brings a tanna’itic source like a Mishnah, baraita or Tosefta that seems to contradict the words of the amora. In his defense, the amora will have to explain how the statement of the tanna can be understood as being in agreement with his own, or else show that there is another tanna with whom the amora agrees. If the amora cannot reconcile his statement with the teaching of the tanna’im, the Gemara will conclude “teyuvta” – the statement is disproved.
Can an amora ever argue with the tanna’im?
Our Gemara brings a baraita where we find that among the list of transgressions for which a person is liable to receive a death penalty is someone who is not a kohen who eats terumah – the tithe set aside for the kohanim. In this case, the discussion is not about capital punishment but about mitah bi-yedei Shamayim – a Heavenly death sentence.
Rav rules that in such a case the penalty is malkot – lashes.
When the Gemara asks “meitivei” that the baraita contradicts Rav’s ruling, the Gemara responds that a baraita cannot be brought to contradict Rav, since “Rav – tanna hu u’palig” – Rav, who is a first generation amora, has the status of a tanna and can argue with the baraita’s teaching.
According to the Geonim, there are three times in the Talmud where we find Rav’s opinion included in the baraita itself. In each of these places he is referred to by his actual name, Rabbi Abba. The Ge’onim point out that as one of the Sages of the baraita, Rav can argue with baraitot, although he could not argue with statements of the Mishnah. In any case, this answer is given only if no other explanation can be found.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.