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.
Makkot 7a-b: Jewish courts very rarely imposed capital punishment
In Masechet Sanhedrin and Masechet Makkot we have been learning about the various punishments meted out by the bet din. In point of fact, how often was capital punishment carried out by the Jewish court system?
According to the Mishnah on today’s daf if the Sanhedrin killed a single individual in the course of seven years, it was considered to be a violent bet din. Rabbi Elazar ben Azariah says that this is true if the court killed someone every 70 years. Rabbi Tarfon and Rabbi Akiva claimed that had they been on the Sanhedrin (during the last 40 years of the Second Temple period the Sanhedrin no longer ruled on capital cases, so neither of them ever served as judges on the high court) no one would have ever been killed. In response Rabbi Shimon ben Gamliel said that such behavior would have led to a proliferation of murderers.
The statement made by Rabbi Tarfon and Rabbi Akiva is based on the fact that Jewish law does not accept circumstantial evidence, and only the testimony of reliable witnesses will be accepted as fact. These Sages would have questioned the witnesses about details of their testimony until the witnesses would be unable to respond with definitive information. Examples given by the Gemara are:
Regarding a murder case, Rav Ashi suggests that they would have asked the witnesses whether they were certain that the victim was not a terefah – perhaps he had a disease or injury that would have led to his death. Killing such a person would not lead to a death sentence.
Regarding sexual crimes that call for a death penalty, Abayye and Rava suggest that they ask whether the witnesses could testify that they saw ke-mikhhol be-shefoferet – did they see penetration the way a brush is placed in a tube.
Mikhhol be-shefoferet refers to a commonly applied cosmetic made of lead-antimony that was also used for medicinal purposes. The material that was applied was kept in a thin tube – or in two connected tubes, and it was removed and applied by means of a thin brush.
Makkot 8a-b: Focusing on internal exile for accidental killings
The second perek of Masechet Makkot focuses on the punishment of galut – exile – for a person who killed his fellow accidentally (see Bamidbar 35:24-29 and Devarim 19:2-7). According to the Mishnah on today’s daf, any Jewish person may be sent into exile for accidentally killing his fellow; similarly, any Jewish person who is accidentally killed will cause the killer to be sent into exile.
Who might the Mishnah be including when it uses the term “any Jewish person”?
The Gemara explains that this broad statement comes to include an eved – a slave – and a Kuti – a Samaritan. These are two categories of people who were part of the Jewish community, even though their status was not considered to be fully Jewish.
The eved under discussion is an eved kena’ani – a Canaanite (or non-Jewish) slave – who is circumcised. Such an eved is not obligated in all commandments; generally speaking his obligation in mitzvot parallels that of women, who are, for example, free of the obligation to perform positive, time-bound commandments.
The term Kutim refers to those people who were brought to Israel in a population exchange during first Temple times, when the kings of Assyria exiled the Northern kingdom and replaced them with other nations – not all of whom were truly Kutim. They settled in the area around the city of Shomron (Samaria), which is why they are also called Shomronim or Samaritans.
In II Melakhim, or Kings (chapter 17) the navi describes how these nations accepted upon themselves some of the Jewish laws and customs out of fear after they were attacked and killed by lions – which is why they are often called gerei arayot – converts because of lions. At the same time they did not renounce their own gods and religious traditions.
At the beginning of the second Temple period, when Jews of the Diaspora began returning to the land of Israel, the relations between the Jews and the Shomronim became tense, with the Shomronim trying to bring down the efforts to rebuild the wall surrounding the city of Jerusalem and the bet ha-mikdash. At the same time, there were Jewish families – including families of kohanim – who intermarried with the Shomronim and assimilated with them.
During some periods, the relations between the two groups reached levels of overt warfare; Yochanan Hyrcanus even attacked and destroyed their temple on Mount Gerizim. During other periods, however, there was cooperation between the groups – during the Bar Kochba rebellion, for example.
Makkot 9a-b: Establishing Cities of Refuge to protect accidental killers
As we have learned, the Torah requires that someone who kills accidentally must exile himself to an ir miklat – a City of Refuge. What was the procedure for being accepted into an ir miklat? Where were these cities?
As the Rambam explains the Mishnah on today’s daf, everyone who killed would run to one of these cities in order to protect himself from revenge at the hands of the go’el ha-dam – the relative who serves as a “blood avenger.” The perpetrator would be taken to trial and would either be found guilty and put to death, would be found innocent and set free, or declared an accidental killer and returned to the ir miklat in the company of two guards who would be charged with protecting him from the go’el ha-dam.
According to the Mishnah, the biblical commandment to establish six cities of refuge (see Bamidbar 35:13-14) requiring three on each side of the Jordan River, was first fulfilled by Moshe (see Devarim 4:41) on the eastern side of the river. Nevertheless, the system does not begin to operate until the Children of Israel cross the Jordan and establish cities on the western side of the river, as well. There were three pairs of cities on either side of the Jordan – one set in the south (Hebron and Betzer), one in the middle of the country (Shechem and Ramot) and one in the north (Kadesh and Golan).
Abayye explains that although the eastern side of the Jordan was much smaller than the western side, there was still a need for three cities of refuge since in Gilad there were many murderers. The obvious question is that the Cities of Refuge are only meant to serve accidental killers and not murderers – why would the number of murderers affect the need for arei miklat?
The Ramban explains that since all killers would run to the Cities of Refuge in order to await trial, even murderers would go there in the hope of escaping the go’el ha-dam, and the cities had to be able to accommodate murderers as well as accidental killers.
Tosafot suggest that according to the continuation of the Gemara, an accidental killing is likely a heavenly arrangement to punish someone who deserved a death penalty. Thus, a place that had a large number of murderers would also have a large number of accidental killings.
The Meiri offers a different approach, suggesting that the fact that there were many murderers in Gilad offered the possibility of people who the go’el ha-dam might hire to avenge the accidental killing. In order to help the accidental killer escape these people, more Cities of Refuge were needed.
Makkot 10a-b: Can there be life without Torah study?
When describing the escape of an accidental killer to a City of Refuge, the Torah says that he will run to one of the cities and live (see Devarim 4:42). The Gemara on today’s daf understands that the idea that he will “live” implies an active life and not just avoidance of death at the hands of the “blood avenger.” Thus, we learn that when a student is exiled to an ir miklat, his teacher must accompany him there. Similarly, Rabbi Yochanan teaches that when a teacher is exiled to an ir miklat, his students must go into exile with him, as well.
The Iyun Yaakov suggests that although at first appearance we might think that a teacher brings his students with him because without the interaction of study his life would become bleak and void of meaning, this cannot be the case, since we do not find that the Torah requires other friends to join the accidental killer in exile. He suggests that this must be a punishment of sorts for the students who chose to study with a teacher whose morals must be lacking inasmuch as he became involved in this killing, albeit accidental.
Rabbenu Yehonatan argues that these rules relate specifically to Torah teaching, since the Torah is compared to – and essentially considered to be – “life” (see Devarim 30:20).
The Gemara asks how Rabbi Yochanan could possibly require a teacher to go into exile with his students, given that we have another teaching in the name of Rabbi Yochanan where he suggests that Torah study itself could serve the purpose of exile/refuge, given the juxtaposition of the laws of the Cities of Refuge (Devarim 4:41-43) to the passage “And this is the law which Moses set before the children of Israel” (Devarim 4:44). (Clearly, as the Ritva notes, the Gemara at first assumes that this statement of Rabbi Yochanan is to be understood literally.)
Two answers are offered by the Gemara:
- The protection of Torah study would only suffice during the actually learning, but not when they stopped learning.
- Rabbi Yochanan’s statement did not mean to assert that Torah study offered the protection of an ir miklat, rather that it offered protection from the Angel of Death who cannot take a person’s soul while they are occupied in learning Torah.
Makkot 11a-b: Religious leadership needs to take responsibility for communal events
Until when will an accidental killer be required to remain in exile in the City of Refuge?
The Torah is clear on this point. As taught in Sefer Bamidbar (35:25, 28), the killer must remain in the ir miklat until the death of the kohen gadol – the High Priest. The Mishnah on today’s daf notes that this leads to an interesting custom – the mothers of the kohanim would supply food and clothing to those exiled killers so that they would not pray that the kohen would die – or, according to some versions, to encourage them to pray that the kohen would have a long life.
The Gemara asks why there would be any reason for the kohen’s mother to be concerned that the accidental killers would pray that her son would die when Sefer Mishlei, or Proverbs (26:2) clearly teaches that a worthless curse will have no effect. In response the Gemara quotes an elderly gentleman who reported that when attending Rava’s lectures he learned that the prayers and curses of the killers confined to the Cities of Refuge may not be in vain, since the kohen gadol should have been responsible to pray on behalf of the community and perhaps his prayers could have kept these incidents from taking place. Given that the omission of the kohen gadol’s prayers may have played a role in the killers’ exile, their prayers may, in fact, be effective.
The Maharsha explains that these laws are connected with the High Priest because he is responsible to pray on behalf of the entire Jewish people when he enters the Holy of Holies on Yom Kippur. Among his prayers should be a request that no mishap or misfortune take place. The Maharal explains that as the leader – the heart and head – of the Jewish people, the kohen gadol is effectively responsible for all that takes place.
Makkot 12a-b: Does the Torah encourage settling of scores?
We have been discussing the laws of an accidental killer who is exiled to an ir miklat – a City of Refuge – which serves both as a punishment and as a haven of protection from the go’el ha-dam, the “blood avenger” who would otherwise kill him. What status does the go’el ha-dam have? Is the Torah sanctioning the murder of an accidental killer for reasons of revenge?
Three opinions are offered regarding this question by the Gemara on today’s daf.
Basing himself on Bamidbar (35:27) Rabbi Yossi HaGalili rules that it is a mitzvah for the go’el ha-dam to avenge his relative’s death and slay his killer if he finds him outside of the ir miklat. At the same time, in the event that the go’el ha-dam does not do so, it would be appropriate – albeit not a mitzvah – for anyone else to kill him. Rabbi Akiva disagrees, ruling that the go’el ha-dam is permitted to take revenge and kill the person who killed his relative by accident, but he is not obligated to do so. This dispensation applies only to the go’el ha-dam; no one else would be allowed to carry out this killing. A radically different view of this law is offered by Rabbi Eliezer who interprets the passage (Bamidbar 35:12) to mean that the go’el ha-dam has no right to do anything to the killer until he is tried in court.
Rabbi Eliezer’s position is somewhat unclear. Some understand that he forbids the go’el ha-dam from ever taking revenge on an accidental killer. It is only if the killer is put on trial and found guilty of murder that the bet din will invite the go’el ha-dam to fulfill the death penalty and kill the murderer. Rabbeinu Chananel, however, offers an alternative approach. According to him, Rabbi Eliezer would forbid the go’el ha-dam from taking revenge prior to trial. After he is found to be an accidental killer who is required to be exiled, he would agree with Rabbi Akiva or Rabbi Yossi HaGalili should the killer leave the ir miklat.
Makkot 13a-b: Who is the “evildoer” who gets punished by the Jewish court system?
The third perek of Masechet Makkot begins on today’s daf and as its name – Elu hen ha-lokin (“These are the ones who receive lashes”) indicates – we are now embarking on the central theme of the tractate by examining the most basic punishment meted out by Jewish courts.
The Torah makes clear (see Devarim 25:1-4) that there are times that the Jewish court will punish a rasha – an “evildoer” – with a punishment of malkot – lashes. What is left unclear is who might be considered to be a rasha. Is anyone who transgresses biblical commandments deserving of lashes, or perhaps only some transgressions will require such punishment?
The first Mishnah in the perek lists those individuals who are liable to receive the punishment of lashes, ranging from people who engage in sexual transgressions to those who eat forbidden foods. All of the commentaries note that this is not a full, all-encompassing list of cases whose punishment would be lashes – the Meiri counts a total of more than two hundred forbidden actions for which this punishment would be given – rather they are a collection of cases that we would not have known otherwise or are brought because they are connected with one or another of those cases. Even though Mishnayot that open with the word eilu usually give a full list of cases to be included in the topic under discussion, in this case the Mishna was interested in clarifying three general types of negative commandments for which lashes are given. These are:
- negative commandments that will be punished by karet – literally “to be cut off” from the community, a Heavenly punishment
- negative commandments that will be punished with mitah be-yedei shamayim – a Heavenly death sentence
- ordinary negative commandments.
In each of these cases, irrespective of the punishments that are in the hands of God, the bet din will carry out malkot – lashes.
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.