Topics in Tractate Makkot, Chapter 3 – Lesson 1

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[Rabbi Michael Abraham] Okay, so that’s Rabbi Akiva’s view. Now, that basically means that according to Rabbi Akiva, if they repented then they are not liable to karet, right? The karet is forgiven. But the lashes—if they repented, then why are they flogged? You could say, fine, they were flogged first and only afterward repented. So what, we flogged them by mistake? Because we just didn’t know they would repent later? That’s clearly not the case. Rather, repentance does not help exempt a person from lashes, only from karet. Why? Because the heavenly court forgives them, but the earthly court does not forgive them. Repentance does not help in an earthly court. They also don’t even know what repentance is. How would the lower court know that he repented? He’ll tell them? Only Above knows. We—we’ll talk about this more; I don’t agree. There are those who want to explain it that way, I don’t agree, if only because we see places where repentance does help even in an earthly court. So clearly an earthly court can determine that someone is a penitent. For example, regarding restoring eligibility for testimony. A wicked person is disqualified from testimony, but if he repents he returns and becomes fit again. How do we know he repented? The court determines that he repented. And if the court has the tools to determine whether someone repented or not, then if so, it has the tools to determine that he repented regarding punishment as well. So why not waive the lashes or the death penalty? Because a punishment imposed by an earthly court is not erased by repentance, for some reason that we’ll still have to understand. We’ll discuss that; we’ll have separate classes on it. It’s one of the first topics we’ll deal with. But, but what we see here first of all from the Talmud itself—and the Talmud here is the source. The Talmud here is the source for this matter. We know—ask anyone and he’ll tell you—that repentance helps in the heavenly court. You can’t repent and thereby avoid being flogged or avoid being executed. It doesn’t help in the earthly court. The source is this Talmudic passage. Meaning, Rabbi Akiva basically says that the difference between karet and court-imposed death is that karet is a punishment at the hands of Heaven, and for a heavenly punishment repentance helps erase it, and therefore there aren’t two liabilities here, so you can flog him. But lashes or death—even if you repent, an earthly court does not forgive you. You will be flogged or killed even if you repented. On the contrary, when they take you out to be executed or flogged they even require you to repent as well, so that your sin will be atoned for, because the punishment by itself, without repentance, does not atone for the sin. So therefore, on the contrary, usually we even require you to repent, and that does not contradict the fact that we also punish you. The big question is why. After all, if repentance really helps erase the sin, then why doesn’t that help in the sense that I should also be exempt from punishment? Good question, but we’ll discuss that in a separate class. Right now all I want to point out is that from the Talmud here it emerges that repentance does not help exempt a person from punishments of the earthly court. Neither from death nor from lashes. Okay? Only from punishments of the heavenly court, meaning things like karet or perhaps death at the hands of Heaven as well.

This issue actually came up—I’ll say one sentence and we’ll talk about it more—this issue came up, you know the dispute that took place in Safed in the 16th century over renewing ordination? The source on that is in the treatise on ordination at the end of Maharalbach’s responsa. The final section is the treatise on ordination. There was a dispute between the sages of Jerusalem and the sages of Safed. The sages of Safed decided to ordain Rabbi Yaakov Beirav based on Maimonides, who says that with the agreement of all the sages of the Land of Israel one can renew ordination. Normally it has to be one ordained person ordaining another, but now we don’t have ordained sages. How can ordination be renewed? Maimonides says: if there is agreement of all the sages of the Land of Israel, it can be renewed. And his proof is that… otherwise, how in the future will ordination be renewed? After all, it requires one ordained person from another. There has to be some mechanism that can renew ordination out of nothing. And he says that mechanism is the agreement of all the sages of the Land of Israel. So the sages of Safed agreed to renew ordination through Rabbi Yaakov Beirav, and they ordained him, and he ordained five of his students—incidentally including Rabbi Yosef Karo. Rabbi Yosef Karo was ordained. In Jerusalem, where Maharalbach was more or less the head of the camp there, they did not agree to the renewal of ordination, and there was a very, very large controversy over this matter. There are all sorts of interesting things there. For example, there was the claim—Maharalbach argued, and we know everything from Maharalbach’s treatise, including their arguments, because we have no other documentation—Maharalbach argued, for example: even according to your own position, there is no agreement of all the sages of the Land of Israel, because we too are sages of the Land of Israel. If we do not agree, then even if you think ordination can be renewed, there is a condition that it be with the agreement of all the sages of the Land of Israel. Since we, the sages of Jerusalem, do not agree, the condition is not met, and you cannot renew ordination even if you are right. So yes, there are all kinds of interesting logical loops there.

In any case, practically speaking, in the end the ordination initiative collapsed; it was not accepted. And even Rabbi Yosef Karo writes in Beit Yosef: nowadays we have no ordained sages. He himself had been ordained. He says: nowadays we have no ordained sages. Meaning, he does not mention the issue of ordination in the Shulchan Arukh, and in Beit Yosef he says there are no ordained sages; so the sages of Safed apparently accepted the ruling. By the way, that took quite a few years. Meaning, there were years in which they regarded themselves as ordained sages. But in the end it apparently died out and was not accepted.

Why did they even want to renew ordination in the first place? They wanted to renew ordination because of the forced converts. The expulsion from Spain had happened a bit earlier, at the end of the 15th century, and people who had changed their religion so as not to be expelled needed atonement in order to exempt them from karet. And in order to exempt them from karet, the sages of Safed wanted to establish a court of ordained judges. A court of ordained judges can decree lashes on you, and if you are flogged then you are exempt from karet. Meaning, they wanted to flog—but they wanted to flog in order to be lenient, not to be strict; that is, in order to exempt people from liabilities of karet. The assumption is that without a court of ordained judges sentencing you to lashes and flogging you, you cannot be exempted from karet.

Now this is interesting, because it basically means that the sages of Safed understood that repentance does not exempt one from karet. Because otherwise why do you need lashes? Let someone liable to karet repent and be exempt from karet—what’s the problem? According to their view, without lashes you are not exempt from karet. Now in our Talmudic passage, seemingly, it says otherwise. In our passage it says that repentance helps exempt one from karet. And that is in fact what Maharalbach argues. He also says: and what did all the generations do before you renewed ordination? What, did all those liable to karet have no way out? They were cut off, and that’s it? That can’t be. Obviously repentance helps exempt one from karet. Therefore there is no need to renew ordination and flog the offender in order to exempt him from karet; repentance itself helps. The sages of Safed apparently understood it a bit like what Yaakov said earlier—namely, what? That repentance exempts from karet if he was flogged. Meaning, repentance exempts from karet if you were flogged, but if you were not flogged… Now that’s a bit hard to fit into our Talmudic passage. Because in our passage Rabbi Akiva is discussing whether to flog those liable to karet, and he says: why flog them? Because in principle lashes are required. But in cases of death we do not flog them, because you are not liable for two liabilities. In cases of karet you do flog them because there are not two liabilities here: if they repent they will be exempt from karet, and therefore there are not two liabilities; there are only lashes. The simple understanding is that repentance alone exempts from karet, whether he was flogged or not; repentance exempts from karet, and therefore there is no obstacle to flogging because it is not two liabilities. So the plain meaning in the Talmud here is like Maharalbach. But the sages of Safed apparently understood it somewhat like what Yaakov said earlier—namely, that repentance exempts from karet if he was flogged. Meaning, you can flog because there aren’t two liabilities, but why are you interested in flogging? Because you want the person to be able to be exempt from karet. And in order to be exempt from karet he needs both repentance and lashes. Meaning, what is written here in the Talmud—that repentance exempts from karet—according to the sages of Safed means repentance plus lashes, not repentance alone. According to Maharalbach it means repentance alone.

In any case, though, punishments of the court—repentance certainly does not exempt from them. Right? If repentance plus lashes exempts from karet, then from lashes alone repentance certainly cannot exempt, right? If repentance exempted you from lashes, it would also exempt you from karet. Because after all, in order to be exempt from karet you need repentance and lashes. Meaning, repentance cannot exempt either from lashes or from court-imposed death, because that is a punishment of the earthly court. That is the simple understanding in the Talmud here. Regarding exemption from karet, that is the dispute among the later authorities that I mentioned: whether repentance alone exempts from karet, or repentance plus lashes exempts from karet, as the sages of Safed thought. So that’s just a note; we’ll come back to this issue, but that is what basically emerges from the Talmud here.

Now, on what point does Rabbi Ishmael disagree with Rabbi Akiva? Rabbi Ishmael basically says that lashes apply even for death at the hands of Heaven, also for court-imposed death, and also for karet. Rabbi Akiva says only for karet. Now Rabbi Akiva says: what do you mean, two liabilities. In karet it is not two liabilities, and therefore he is flogged. But court-imposed death—if you were to flog him, that would be two liabilities, and Rabbi Ishmael does not accept that where there are two liabilities one does not flog. So one could go in several directions here. At first I thought—and the Talmud later comments on this, so that’s why I say I first thought—that if one is really liable to both death and lashes for this offense, then that is not called two liabilities. What are “two liabilities”? Two liabilities means a case where, say, you are liable to death—say, someone plucks a fig, a thief who takes a fig and plucks it on the Sabbath from the tree. So he becomes liable for theft, right? And he becomes liable for desecrating the Sabbath, for reaping. So we have the rule of “the greater liability applies,” since he is liable to death for the Sabbath violation, for reaping, he is exempt from the monetary liability of the theft. That is the rule of “the greater liability applies”; that’s in tractate Bava Kamma on page 70. Now what does that basically mean? That because for the same act he carries both a death penalty and a monetary penalty, he is punished only by death and exempted from the monetary penalty—that is “the greater liability applies.” But in our case that is not the situation. There, why is he liable to both punishments? Because he committed two offenses. They are two different offenses: Sabbath desecration and theft. Two different offenses. Here, the liability to death and lashes is for the very same offense. Both death and lashes, because the Torah itself decreed death and lashes for the very same offense. In such a case—that’s what I thought to say—in such a case Rabbi Ishmael does not see this as two liabilities. Why aren’t forty lashes two liabilities? They’re twice twenty lashes; they’re forty liabilities, forty lashes. How can it be that there are so many punishments for one offense? Obviously that’s not how it works. Why not? Because the Torah said that the punishment here is forty lashes; that is one punishment. It is not forty punishments, one with each strike. It is one punishment of forty lashes. Now if the Torah says that one is liable to lashes and death for something, then it is one punishment made up of lashes and death. It is not two liabilities. Two liabilities is a case where you committed two offenses, and for this one you are liable to lashes and for that one to death, or for this one to money and for that one to death. Here they are not punishing you because there are two different liabilities within the same act; you are not being punished for two prohibitions. But if for this act, and for this one prohibition, the Torah established a compound punishment of lashes and death, that is one punishment, not two punishments. That is what the Torah established as the punishment for this offense. Just as it can establish forty lashes, it can establish forty-five lashes, it can establish forty lashes and death. It is one punishment—that is the punishment: forty lashes and then death. So that is not two liabilities. And perhaps Rabbi Ishmael disagrees with Rabbi Akiva on precisely that point. Rabbi Ishmael basically wants to argue that when you are liable to lashes and death for the same offense, Rabbi Akiva says that cannot be, it is two liabilities, and Rabbi Ishmael says no—such a case is not two liabilities.

Now I found that the Maharam in Bava Kamma says exactly this—not on our passage, but he says this principle. Here in Rabbi Shmuel’s lectures on Makkot, section 215, meaning on page 4, not on our passage, he says as follows: “With regard to ‘according to his wickedness’ in a case of one generating liability”—which is exactly our issue. “And the main derivation that we derive from the case of motzi shem ra, where he is flogged and pays.” In the case of motzi shem ra, he is both flogged and pays. So from here we learn that lashes and payment can both be imposed—it is not two liabilities. That’s a tannaitic dispute there, not important right now. “The later authorities raised a difficulty according to the words of the Maharam mentioned above, who explained in Tosafot in Bava Kamma page 4, that if a person had been liable to kofer for his homicide, it would not make sense to exempt him under the rule of ‘the greater liability applies,’ since the whole thing is one law because of the life of the one killed, and exemption under ‘there shall be no disaster’ applies only to money alongside death, such as where he tore silk garments.” Yes—someone liable to death who tore silk garments, he tore silk garments on the Sabbath, so he is liable to death for desecrating the Sabbath and also liable monetarily for the garments. “But not in monetary liability that arises from that very same sin itself. And that is because, since kofer is atonement, the whole thing is over the sin of homicide, and it is one wickedness.” See there.

Meaning, the Maharam basically says the principle I said earlier. The Maharam basically says that if a person had been liable to kofer for murder, in addition to the death penalty he would also have been liable to kofer—Tosafot says there would not be “the greater liability applies.” Why not? It’s also money and death. The answer is: because the monetary payment and the death penalty are incurred for the very same offense itself, the offense of murder. It is simply a compound punishment. It is not two punishments. It is one punishment composed of money and death, just like forty lashes. Therefore it is not called two liabilities—that is what the Maharam claims. According to this, one can definitely explain Rabbi Ishmael’s view in our case. Because Rabbi Ishmael basically says that even in a case of death at human hands, meaning court-imposed death, lashes are imposed. Rabbi Akiva says: how can that be? Isn’t that two liabilities? Fine, with karet, where you can be exempt through repentance. But court-imposed death—you cannot be exempt through repentance, so you remain liable to court-imposed death. So how can you also be liable to lashes? Isn’t that two liabilities? Rabbi Ishmael will say: no, it is not two liabilities. The Torah imposed a compound punishment for this offense. One who murders a person is liable to both lashes and death. That is the punishment for murder. And if there were kofer, then kofer too—kofer and lashes and death, everything. And it is one punishment. Not two liabilities or three liabilities. That is the claim.

Except that Rabbi Shmuel there, when he brings the Maharam—wait—raises an objection. First of all he objects: “And the later authorities, Rabbi Shimon Shkop and the Chazon Ish and others, were puzzled, because here in motzi shem ra too it is the same generating liability, for for motzi shem ra he is punished with lashes and money. If so, how can the rule of ‘according to his wickedness,’ that one is not flogged and made to pay, apply here?” What is he saying? After all, from where do we learn that one is not flogged and made to pay? From motzi shem ra. In motzi shem ra, he is flogged and pays. Now motzi shem ra is flogged and pays for the same offense, motzi shem ra. And that is the source for the rule that one is not punished with two liabilities. So how can the Maharam say that if the two liabilities or two punishments are given for one offense, that is not called two liabilities? The entire source for two liabilities is from a case exactly like that, where the punishment is for the same offense.

So Rabbi Shmuel says: “It can be said that the money and the lashes in motzi shem ra do not come for one and the same thing. The money is for the actual slander he spread about her, whereas the lashes are because he transgressed the statement of the Merciful One, and he is flogged for violating the prohibition. Therefore the rule of ‘according to his wickedness’ properly applies here.” What is he saying? When you spread slander, you are really doing two things. First of all, you harmed that woman—you slandered her. Second, you committed an offense by violating… the statement of the Merciful One, that the Torah said one may not spread slander; you violated a prohibition. The lashes are for the prohibition, and the monetary payment is compensation for the slander—or a fine, doesn’t matter—but it is a fine for the slander. And therefore it is not a compound punishment on one generating factor, because each of the two punishments is given for a different generating factor.

Now, one has to pay close attention here; it’s a bit delicate. For example, Maimonides writes that in the count of the commandments we do not count duplicate commandments. Say the Torah says twelve times to keep the Sabbath—we do not count twelve positive commandments to keep the Sabbath, we count one commandment, and so on regarding prohibitions. That is Maimonides’ ninth root principle. If it is a prohibition and a positive commandment, then yes, they are counted separately, because that is not duplication, but that is another discussion. Maybe we’ll get to it later, but that is another discussion.

Now, there is room to discuss this regarding interest. At the beginning of the chapter “What is Neshekh,” the Talmud says: what is neshekh and what is tarbit? There is neshekh and tarbit. So the Talmud says: neshekh is tarbit; tarbit is neshekh. It is the same thing. Whenever you lend with interest, you have violated the prohibition of neshekh and the prohibition of ribbit. So the Talmud says: they were written in order that one transgress two prohibitions. Why were neshekh and tarbit both written? So that one would transgress two prohibitions. Meaning, there are really two prohibitions here. And in fact, if you look in Maimonides’ laws of lending, when he lists at the beginning the commandments and prohibitions, he counts two: the prohibition of neshekh and the prohibition of tarbit. But in the count of the commandments Maimonides counts only one prohibition, the prohibition of interest.

Now, when the Mishnah explains what neshekh and tarbit are, Rashi basically explains—Rashi on the Mishnah there—what are neshekh and tarbit? Rashi says as follows: neshekh is when I lend to you with interest and take interest from you; I am biting into you, biting away your money. That is the harm to you. Tarbit is that I am increasing my own money unlawfully. The Talmud there at the beginning even says that this is like theft. It wonders why we even need a warning against theft; maybe we could derive it from interest. That is very strange, but never mind. That is the aspect of tarbit. Tarbit means that my money increased unlawfully, money that is not coming to me. Neshekh is what I inflicted on you.

Now, in Maimonides there emerges something very interesting, because the Talmud says that neshekh and tarbit were written so that one transgresses both—there is no practical difference between them. Whenever you transgress neshekh, you also transgress tarbit, and vice versa. There is no case where you transgress only neshekh or only tarbit, because whenever you take interest, you are both biting him and increasing your own wealth, so they always come together. So on the one hand, Maimonides says this is a duplicated prohibition. He counts only one prohibition and not two prohibitions in the count of the commandments. But in the Mishneh Torah Maimonides writes that this is so that one transgresses two prohibitions. He transgresses two prohibitions. Why? Because in practice, whenever you take interest, you are transgressing both things. In that sense there is duplication here. But it is not that the matter of neshekh and the matter of tarbit are the same thing. That is not true. They are two distinct prohibitions. When you take interest, there are really two problematic aspects to this prohibition: the aspect of harming the borrower, from whom you take the interest, and the aspect of increasing the lender’s money unlawfully. Those are two different aspects. For this there is the prohibition of neshekh, and for that there is the prohibition of tarbit. And if you transgressed it, you transgressed two prohibitions. In the count of the commandments it will not be counted that way, because in the count of the commandments, from the standpoint of the act you perform, it is one act. But it is one act that has two problematic aspects, and therefore two prohibitions are transgressed.

And that is very interesting, because it is extremely similar to what we saw here in Rabbi Shmuel. Because what is he saying, basically? After all, motzi shem ra has only one prohibition. There are not two prohibitions for motzi shem ra, and there he is flogged and pays. Right? Meaning, he should have been exempt from payment, and yet we tell you this is “the greater liability applies.” Now according to the Maharam, that cannot be “the greater liability applies,” because after all it is money and lashes for one offense. Money and lashes for one offense is a compound punishment, not two punishments—it is one compound punishment. That is one wickedness. So why does the Talmud learn from there that one is not flogged and made to pay? Right—that is what they asked on the Maharam. Rabbi Shmuel says: no. It is true that it is one prohibition, but within that prohibition there are two problematic aspects, and each punishment is for a different problematic aspect. The lashes are for the aspect of the offense itself, as against Heaven, and the fine is as against one’s fellow human being—for having spread slander. Even though it is the same prohibition, in the count of the commandments you will not find two prohibitions for motzi shem ra. It is the same prohibition. But within this prohibition there are two problematic aspects, and perhaps the Talmud understands, according to the Maharam, that two problematic aspects are like two prohibitions. Therefore it still belongs to the category of two liabilities.

By contrast, in our case, for example, in Rabbi Ishmael, where he is flogged and dies—you are flogged and die for the very same offense itself, and there is one problematic aspect, not two, for which you are both flogged and punished. About this Rabbi Ishmael says there is no rule here of “one is not flogged and made to pay”—because this is one wickedness and not two… sorry, that there is no such exclusion here, because this is one wickedness and not two. So he is flogged and dies. He is both flogged and dies, because it is a compound punishment for one offense. And the proof of this is from interest. The second proof he brings is from interest. Because with interest we see that Maimonides does not count it as two prohibitions, but still he does—he also agrees that there are two problematic aspects here, neshekh and tarbit. Those are two prohibitions even though in the count of the commandments only one prohibition appears. The claim is that perhaps in the context of, say, someone liable to court-imposed death, someone who desecrated the Sabbath, then he is flogged and dies. Why? Because in Sabbath desecration there are not two problematic aspects; it is one aspect, and for that aspect you are liable to both lashes and death. Here you have the Maharam’s principle, that this is not called two liabilities; it is one compound punishment. Is what I’m saying clear?

Rabbi Shmuel himself asks on the Maharam… “They further noted against the Maharam’s words from the passage later on, 13b”—our passage—“where it says there according to Rabbi Akiva that those liable to court-imposed death do not receive forty lashes for the prohibition involved, as the verse says ‘according to his wickedness,’ for one wickedness you make him liable and not for two liabilities. But there the whole matter is one offense, and nevertheless the rule of ‘according to his wickedness’ applies. There is no need to elaborate further here.” Yes, the difficulty from our passage, he says, is harder than from motzi shem ra. In motzi shem ra there are two problematic aspects, so maybe the Maharam will say that really does count as two liabilities and not one. But in our case, in our Talmudic passage, it is truly one wickedness. You are flogged and punished for the very same offense itself; it has no two aspects. You desecrated the Sabbath; you are both flogged and die for the very same offense. Okay? And yet here Rabbi Akiva tells us that there is the rule of “the greater liability applies,” that you are only executed and not flogged. So from here, seemingly, there is a difficulty against the Maharam.

Of course, the other side of the coin is that this itself could be the explanation of Rabbi Ishmael. Rabbi Ishmael, who says yes—meaning that in offenses punishable by court-imposed death one is flogged, unlike Rabbi Akiva who says that would be two liabilities—why does he say one is flogged? What, isn’t that two liabilities? He will say what the Maharam says: here, since there are not two problematic aspects but one aspect, then it is not two liabilities, it is one wickedness, a compound punishment for one offense. It is made up of death and money and lashes—sorry. That is what Rabbi Ishmael will say. It’s just that with respect to practical Jewish law, we rule like Rabbi Akiva and not like Rabbi Ishmael, so that does create some difficulty. But as an explanation of Rabbi Ishmael, it can certainly be correct. It may even be the natural reading.

When you look further in the Talmud, the Talmud itself asks this. Let’s take a look for a moment. I just want to go over this in broad strokes, because in the coming classes I want this to be in the background. We’ll go into each of these topics on its own, but I want this passage to be in the background for us, so today I’m really just going through it. We won’t be doing this in the next classes. So let’s see the continuation of the passage. “What is Rabbi Ishmael’s reason? As it is written: ‘If you do not observe to do all the words of this Torah,’ and it is written, ‘Then the Lord will make your plagues extraordinary.’ I do not know what this extraordinariness is; when it says, ‘then the judge shall cause him to lie down and strike him before him,’ you must say that this extraordinariness is lashes. And it is written, ‘If you do not observe to do all…’” What does that mean? We see that one is flogged for all offenses, including those liable to court-imposed death. Therefore he says that even those liable to court-imposed death are flogged.

The Talmud says: if so, then those liable for failure to fulfill positive commandments as well? So why are those not flogged? “‘If you do not observe’ is written,” says the Talmud. What does that mean? “If you do not observe” refers to a prohibition, not a positive commandment. And as Rabbi Avin said in the name of Rabbi Ilai, every place where it says “beware,” “lest,” or “do not,” it refers only to a prohibition. Yes, in the Torah when we identify a verse containing the words beware, lest, or do not—and also “do not,” which is trivial so they didn’t mention it—that is a prohibition. So therefore when it says here “If you do not observe to do all the words of this Torah,” “observe” is like “beware.” To beware is a prohibition. Right? “Observe” and “remember” were said in one utterance. “Observe” is a prohibition; to beware is a prohibition. So therefore only prohibitions are included in “Then the Lord will make your plagues extraordinary,” not positive commandments.

If so, says the Talmud, what about a prohibition that involves no action? You are telling me all prohibitions, right? Positive commandments we excluded, but all prohibitions—so even a prohibition without an action? The Talmud says: “‘to do’ is written.” Right? It says, “If you do not observe to do”; “to do” means only things that involve an act, not a prohibition without action. The Talmud asks: what about a prohibition repaired by a positive commandment? A prohibition repaired by a positive commandment is a prohibition that does involve action—like, say, theft, which is repaired by “and he shall return the stolen item,” but it is a prohibition repaired by a positive commandment involving action. So the Talmud says: this is by analogy to the prohibition of muzzling. What does that mean? A prohibition repaired by a positive commandment is not similar to the prohibition of muzzling and therefore one is not flogged for it, as we discussed above. The Talmud says: now that you have come to that, all of them too are by analogy to the prohibition of muzzling. Once we have already reached the conclusion that the prohibition of muzzling, by its juxtaposition, serves as the comparison to the laws of lashes and we learn from it for what we do and do not administer lashes, then now we no longer need separate sources for a prohibition without action and all those things; all of them are because they are not similar to the prohibition of muzzling.

The Talmud then asks: and Rabbi Akiva, what is his reason? “According to his wickedness.” For one wickedness you make him liable, and you do not make him liable for two liabilities. A little strange, because Rabbi Ishmael brought a verse. Rabbi Ishmael brought a verse, right? It says, “If you do not observe to do all the words of this Torah,” “all the words of this Torah,” “Then the Lord will make your plagues extraordinary.” That means that for all offenses one should also receive lashes, not only death. Aside from those excluded because of the prohibition of muzzling and aside from positive commandments. Now when they ask Rabbi Akiva what his reason is, he says: because “the greater liability applies.” Well, what do you mean “the greater liability applies”? Here the Torah itself says that you are flogged, and that you are flogged for all offenses. So what does “the greater liability applies” mean? There is the inclusive term “all.” Do you see the question? Rabbi Ishmael brought a verse. Right? Rabbi Akiva says: yes, but here there is death and lashes. Right? There is death and lashes—that is two liabilities. We do not impose punishment for two liabilities. But now the verse itself says to impose punishment for two liabilities, so how can you tell me we do not impose punishment for two liabilities? Do you see that this is very reminiscent of the Maharam and Rabbi Ishmael? Then it is not two liabilities—it is one compound punishment that the Torah imposed on that offense, a compound punishment of lashes plus death. So what do you mean to tell me it is two liabilities—what kind of answer is that?

I return to what I said at the beginning. Even when we expound a verse, there has to be reasoning behind it. When we say that one is flogged for all that one does, that “all” comes to include all offenses; Rabbi Akiva says yes, but not offenses that already carry the punishment of death, because that is two liabilities. So what is that “all”? That “all” means all prohibitions. Because we already saw that the punishment of lashes is exceptional compared to all other punishments. In what way is it exceptional? That the Torah does not need to write lashes for a prohibition, right? If there is a prohibition, one is flogged. In contrast, death, fines, karet—all those need the Torah to state them explicitly in order for those punishments to apply. Lashes are the default. Right? And death and karet are the exceptions. Right? Rabbi Ishmael says no: karet and death are not exceptions. Karet and death are in addition. Why? Because he understands that “all” comes to include everything. And if there is karet and death, that doesn’t come to exclude—it comes to add. But Rabbi Akiva understands that it comes to exclude. Why? Because according to Rabbi Akiva, “all” comes to say that everyone is liable to lashes. Right? That is what “all” basically means. Except for penalties of death and karet and fines, which were excluded. Okay? Why were they excluded? Because of the principle of “the greater liability applies,” of two liabilities. Where were they excluded? “Two liabilities” teaches you that a death penalty is an exclusion and not an addition. Rabbi Akiva also learns from “all.” “All” comes to say that all prohibitions are liable to lashes. And unlike death, every prohibition by default does not need to be written—every prohibition incurs lashes. From where do we know that? From the word “all.” That is where we learn it. But death and karet are not included in “all.” Why not? They must be exclusions. Why? Maybe, as Rabbi Ishmael says, they are additions? No, because of two liabilities; therefore they are exclusions. “Two liabilities” teaches you that death—the death penalty—comes to exclude that offense, so that it is not liable to lashes but only to death. And therefore the word “all” remains in place; it is expounded also according to Rabbi Akiva. From the word “all” we learn the uniqueness of the punishment of lashes, that every offense carries lashes and does not need a separate inclusion. But yes, if there is some exclusion, then it will be excluded. Then there will be no punishment of lashes there. But wherever there is a prohibition, the punishment of lashes applies and needs no inclusion. Where do we know this from? From the word “all.” Therefore the Talmud is not bothered by what Rabbi Akiva will do with Rabbi Ishmael’s word “all.” That is obvious. Because the punishment of lashes is exceptional. Therefore Rabbi Akiva learns from the word “all” that all offenses carry lashes, except for those excluded because of “one wickedness and not two liabilities.”

But then something very interesting comes out. It comes out exactly the opposite of the Maharam. A dispute from one end to the other. If Rabbi Ishmael goes with the Maharam, then according to Rabbi Akiva it is completely the opposite of the Maharam. Why? Because Rabbi Akiva basically says: what is “one wickedness and not two liabilities”? It comes to teach you specifically in a place where the Torah imposed a compound punishment. Not also in such a place—specifically in such a place. Right? Because what is he really saying? “Two liabilities” teaches you that when the Torah imposed a death penalty, the punishment of lashes does not apply there. But the generating liability for death and lashes in those places is one generating factor. After all, that is the reason Rabbi Ishmael does not apply “the greater liability applies” there, right? Because he sees it as one compound punishment of lashes plus death. Rabbi Akiva says: exactly that. “One wickedness and not two liabilities” comes to teach you that when a compound punishment is imposed for one offense, you do not impose the compound punishment; you remove the lashes and impose only the death. Meaning, it is a conceptual interpretive rule. It does not mean that if you are liable to two punishments, only one is imposed. It is an interpretive rule that teaches you what the Torah means. When the Torah says a death penalty, it means that it is only death and not lashes. In a case where you violated—say, you cut a fig on the Sabbath or tore silk garments on the Sabbath and became liable to both money and death, or to both lashes and death, from two different generating factors—there this does not belong to “one wickedness and not two liabilities.” But there is “the greater liability applies.” That is another rule. “The greater liability applies” says that if you are liable to two punishments for the same act from two different sources, then an interpretive rule will not help here, because the interpretive rule does not say that the Torah was not speaking about it; the Torah is speaking about Sabbath law and tort law—what is this? These are two different sections. The interpretive rule is not relevant here. An interpretive rule is relevant only where the Torah does this in the same place. Then it says: if the Torah does this in the same place, it intended only death and not lashes. But if, in the same act, you simply also violated Sabbath law and also violated tort law, so what? You pay money for the damages and incur death liability for the Sabbath violation. That has nothing to do with the interpretive rule at all. Here we need a legal rule saying that we do not impose two punishments for two offenses committed in one act. And that is the principle of “the greater liability applies.” It is not an interpretive rule; it is a legal rule.

So in the end Rabbi Akiva exempts even in those cases, but he exempts for a different reason—not because of two liabilities, but because of “the greater liability applies,” or because one is not flogged and made to pay, or whatever—there are various formulations in the Talmud that seemingly overlap, but I am suggesting here that according to Rabbi Akiva perhaps they do not overlap; they are different principles.

Now look at the continuation: “And Rabbi Akiva, what is his reason? ‘According to his wickedness’: for one wickedness you make him liable, and you do not make him liable for two liabilities. And Rabbi Ishmael?” So what does Rabbi Ishmael say to this? Again, strange—what is the problem with what Rabbi Ishmael says to this? There is a verse. Right, there is a verse. So what is the issue? The Talmud apparently understands that Rabbi Akiva overcomes the verse because “according to his wickedness” is an interpretive rule. So how does Rabbi Ishmael answer that? “That applies to death and money, or lashes and money, but death and lashes are one extended death.” What is that? “Two liabilities” is where there is death and money, or lashes and money, but death and lashes are not two liabilities—they are one liability. Basically, lashes too are taking out his soul. That is basically saying something somewhat similar to the Maharam but from the opposite direction. The Maharam says that if these are two punishments for one act, then it is simply a compound punishment, not two liabilities. Rabbi Ishmael here says something a little different. Same idea, but flipped. He says: even if these are two different liabilities, if the punishments are of the same kind, then it is one continuous punishment, not two punishments. Just as forty lashes are not forty punishments but one. Why? Because it is the same kind, just a quantitative difference, not a qualitative one. Forty lashes rather than one strike, not one strike. Death and lashes are also a quantitative difference, not a qualitative one. The Talmud itself says: “What difference does it make whether he is entirely killed or half killed?” Lashes are half a death. And there are those who do not receive all forty if the doctor says he cannot withstand them. Yes, exactly. The lashes—incidentally, if someone were liable to lashes and death, I assume they would not estimate for the lashes how much he could survive, because in any event he has to die. But conceptually that’s correct. Okay? Therefore I say that here Rabbi Ishmael says something similar to what I suggested according to the Maharam, but on the face of it from the opposite angle of the same reasoning. He says if the two punishments are of the same type, then again it is not two liabilities. I, according to the Maharam, suggested that if the two punishments are given for the same offense, then it is simply a compound punishment. It is not two liabilities because it is a compound punishment. He claims: no, it is not because it is a compound punishment, but because these are two punishments of the same kind, like forty lashes. So lashes and death are the same thing; it is like a hundred lashes instead of forty lashes. Just a lot of lashes, that’s all. They give him a lot of lashes until he dies, which is basically the death penalty. Therefore it is not two liabilities. Meaning, the idea is similar to the Maharam, but from the angle of what the punishment looks like, not what generates the punishment. Okay?

Moving on. The Talmud continues briefly, just so that we’ll have the background; we’ll do it quickly now. “And according to Rabbi Akiva, if so, then those liable to karet as well”—then also in those liable to karet say that this is two liabilities, karet and lashes. What do you say—that if they repented? That if they repented then there is no karet, so it is not two liabilities? But at this moment they have not repented. Right now he has not yet repented, and now he is liable to lashes. Rabbi Abbahu said: the Torah explicitly included those liable to karet in lashes, deriving ‘before his eyes’ from ‘before your eyes,’ and then a whole discussion starts from verses—not important right now—that for karet there is a special derivation that they are also liable to lashes. Fine? That’s a little strange, because Rabbi Akiva himself explained it differently. Rabbi Abbahu offers an explanation of Rabbi Akiva that does not fit with what Rabbi Akiva himself says. Because Rabbi Akiva himself explained above that it is because through repentance we exempt you from karet. “Whose view is this? Rabbi Akiva, as it was taught: Rabbi Akiva says that those liable to karet are included in the category of forty lashes, because if they repented the heavenly court forgives them; but where earthly court warnings are involved, if they repented the earthly court does not forgive them.” So Rabbi Akiva himself says this. Therefore Rabbi Abbahu explains Rabbi Akiva not in line with Rabbi Akiva—that is strange. Maybe he disagrees with that baraita, maybe he understood Rabbi Akiva differently, I don’t know. But it is very odd. Never mind.

Now there begins a whole discussion about “from his eyes” and so on. “Rabbi Shmuel bar Abba asked Rabbi Abba: ‘According to his wickedness’—for one wickedness you make him liable and not for two liabilities. The verse speaks of wickedness given over to the court.” “Two liabilities” is said only about wickedness entrusted to the court, but with wickedness in the hands of Heaven that rule is not said. Why not? Again, this does not fit what Rabbi Akiva himself said. Because Rabbi Akiva himself did not say that it is because “according to his wickedness” does not apply in heavenly matters, but because karet is removed through repentance and so there simply is no additional liability—not because the additional liability is in the hands of Heaven. Here perhaps with some pressure one could fit it into Rabbi Akiva’s words and say that Rabbi Akiva probably meant this—that the verse speaks of wickedness entrusted to the court. Why? Because if it is entrusted to Heaven, repentance exempts from it. But it’s strange; Rabbi Akiva simply does not mean that.

Now comes Rava, what I already mentioned earlier. Rava said: What, with people liable to execution does everyone really disagree that one is not flogged and executed? Rabbi Ishmael too agrees that those liable to court-imposed death are not flogged if they were warned for death. Where do they disagree? In a case where he was warned for lashes. I didn’t say earlier that at first they assumed our Mishnah was speaking of a case where he had been warned for death, and still Rabbi Ishmael held that he incurred both lashes and death. Rava says: not so. The Mishnah is not talking about that. If he was warned for death, then obviously he is liable only to death and not to lashes. Rabbi Ishmael too agrees that the death penalty comes to exclude, and if he was warned for death he is liable to death but not to lashes. Rather, in the Mishnah Rabbi Akiva and Rabbi Ishmael disagree in a case where he was warned for lashes, not for death. So what then? You cannot execute him, because he was not warned for death. The question is whether you flog him. Rabbi Ishmael holds: a prohibition given as the warning for court-imposed death is flogged. So Rabbi Ishmael says if he was warned for lashes, then he will indeed be flogged. Why? Because why not? It is a prohibition, and one flogs for it. But that prohibition was given as the warning for court-imposed death—what does that mean? It means that this prohibition, fundamentally, belongs to an offense punishable by death. And Rabbi Akiva holds—yes—a prohibition given as the warning for court-imposed death is not flogged. Fine? Meaning, he says that when a prohibition is given as the warning for court-imposed death, meaning a prohibition that in principle carries a death penalty, then even if you are not imposing the death penalty, one is not flogged for it. It is a rule, like a prohibition without action, like a prohibition repaired by a positive commandment; a prohibition given as the warning for court-imposed death also does not receive lashes. Even though that option exists. Yes, exactly. So even if you cannot execute, you do not flog. That is Rabbi Akiva. And Rabbi Ishmael holds: no, you do flog.

Now if so, then of course our Mishnah can also go according to Rabbi Ishmael. At first we said that our Mishnah follows Rabbi Akiva, because Rabbi Akiva says that for karet one is flogged and for court-imposed death one is not flogged. And Rabbi Ishmael, after all, says that for both one is flogged. Now we see: no, Rabbi Ishmael too agrees that for court-imposed death one is not flogged. He only claims that if you warned him for lashes concerning an offense normally punishable by death, then he is flogged. But if you warned him for death—warned him for execution—then he is executed and not flogged. So the Mishnah can also follow Rabbi Ishmael. You might ask: so why didn’t they bring the offenses punishable by court-imposed death in the case where he was warned for lashes, for which according to Rabbi Ishmael he is also flogged? So why didn’t they bring that? Fine, that isn’t a difficulty. They didn’t bring it because that is not the normal punishment. Something odd happened there: he committed a capital offense, and by chance they warned him for lashes; the witnesses made a mistake. Fine. We are not dealing here with mistakes; we are dealing with the normal punishment given for offenses. So that is not difficult. Thus, in principle, the Mishnah can also go according to Rabbi Ishmael, according to Rava—not according to the final conclusion, but according to Rava. It’s a dispute. Fine?

Up to this point, that is roughly the background I need from the passage. The rest—if you happen to go over it, great; if not, we’ll see it in the classes where it becomes relevant. From the next class onward we’ll move into broader topics. I’ll expand the points that came up in today’s class. We’ll talk a bit about punishment in general, we’ll discuss the question why repentance does not help for punishments of the earthly court, I’ll talk about “the greater liability applies,” warnings, all kinds of things like that. So, later. Okay. Questions or comments? Well done. Thank you very much. To the Moodle I’ll also upload a summary of the class and a recording of the class; in Talmud classes I also upload summaries. Excellent, thank you very much, thank you very much.