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Babylonian Talmud: Tractate Sanhedrin
Now, R. Jonathan's view raises no difficulty, its reason being explained by Rabbi. But on R. Josiah's view, how do we know that there is death by strangulation at all; perhaps the sword is meant?1 — Raba replied: It is a tradition that there are four deaths. Why does R. Jonathan say, 'not because strangulation is the most lenient death'? — Because his dispute with R. Josiah is on the same lines as that of R. Simeon and the Rabbis.2
R. Zera asked of Abaye; Those who are stoned, but in whose case Scripture does not explicitly decree stoning,3 so that we derive the penalty by analogy of a necromancer, or a wizard,4 from which phrase do we deduce it: from 'they shall surely be put to death', or from 'their blood shall be upon them'?5 — He replied: It is deduced from the phrase 'their blood shall be upon them', for if it is inferred from the passage 'they shall surely be put to death', what need is there of the words 'their blood shall be upon them'? But do you say that it is deduced from 'their blood shall be upon them'; what need is there then of the phrase 'they shall surely be put to death'? — Even as it has been taught: He that smote him shall surely be put to death; for he is a murderer.6 I only know that he may be executed with the death that is decreed for him: Whence do I know that if you cannot execute him with that death, you may execute him with any other death? — From the verse: He that smote him shall surely be put to death, implying in any manner possible.7
R. Aha of Difti questioned Rabina: Now, had the deduction been from the phrase, they shall surely be put to death — what would be R. Zera's difficulty?8 Shall we say that his difficulty would be in respect of [adultery with] a married woman,9 namely, that we ought to learn the manner of death from the law of a necromancer or a wizard; just as there it is stoning, so here too?10 But since the Divine Law ordained stoning for an arusah,11 it follows that a nesu'ah is not stoned!12 If, again, the difficulty would arise in respect of one who smites his father or mother;13 namely, that we ought to learn [by analogy of a necromancer or a wizard [that he is stoned]?14 But instead of deducing it from the necromancer, etc., deduce it rather from adultery with a married woman [who is strangled], since you may not make a deduction in favour of a stringent penalty in preference to a lenient one.15 — He replied: His difficulty would be in respect of all others who are stoned, for if it [the punishment of them by stoning] is deduced from the phrase, they shall surely be put to death, why deduce it from a necromancer and a wizard; deduce it rather from the adultery of a married woman?16
MISHNAH. THE FOLLOWING ARE STONED: HE WHO COMMITS INCEST WITH HIS MOTHER, HIS FATHER'S WIFE, OR HIS DAUGHTER-IN-LAW; HE WHO SEXUALLY ABUSES A MALE OR BEAST; A WOMAN WHO COMMITS BESTIALITY WITH A BEAST; A BLASPHEMER; AN IDOLATER; HE WHO GIVES OF HIS SEED TO MOLECH; A NECROMANCER OR A WIZARD; ONE WHO DESECRATES THE SABBATH; HE WHO CURSES HIS FATHER OR MOTHER; HE WHO COMMITS ADULTERY WITH A BETROTHED MAIDEN; HE WHO INCITES [INDIVIDUALS TO IDOLATRY]; HE WHO SEDUCES [A WHOLE TOWN TO IDOLATRY];17 A SORCERER; AND A WAYWARD AND REBELLIOUS SON.
ONE WHO [UNWITTINGLY] COMMITS INCEST WITH HIS MOTHER INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS MOTHER AND AS HIS FATHER'S WIFE.18 R. JUDAH SAID: HE IS LIABLE IN RESPECT OF HER AS HIS MOTHER ONLY. ONE WHO COMMITS INCEST WITH HIS FATHER'S WIFE INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS FATHER'S WIFE, AND AS A MARRIED WOMAN. [HE IS GUILTY IN RESPECT OF THE FORMER] BOTH DURING HIS FATHER'S LIFETIME AND AFTER HIS DEATH, WHETHER SHE WAS WIDOWED FROM ERUSIN19 OR FROM NESU'IN.18 HE WHO COMMITS INCEST WITH HIS DAUGHTER-IN-LAW INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS DAUGHTER-IN-LAW AND AS A MARRIED WOMAN. [HE IS GUILTY IN RESPECT OF THE FORMER] BOTH DURING HIS SON'S LIFETIME AND AFTER HIS DEATH, WHETHER SHE WAS WIDOWED FROM ERUSIN OR FROM NESU'IN.
GEMARA. It has been taught: R. Judah said: If his mother was unfit for his father, he is guilty only in respect of her maternal relationship to him. What is meant by unfit for him? Shall we say, forbidden to him on pain of extermination20 or death inflicted by the Beth din? This would prove that the Rabbis21 hold that even for such he incurs a twofold penalty. But how so, seeing that his father cannot be legally married to her at all?22 — Hence it must refer to a woman who is forbidden to him in virtue of a negative precept,23 R. Judah agreeing with R. Akiba, who holds that Kiddushin is not valid between those who are interdicted to each other by a negative command.
R. Oshaia objected: [We have learnt:] A woman who is forbidden [to her deceased husband's brother] by a positive precept, or on the score of sanctity, must perform the halizah ceremony,24 but may not marry her brother-in-law.
1 imposed by the Soferim,2 and why is it thus designated? Because it is a 'positive precept' to obey the Sages. 'Forbidden on the score of sanctity' refers to the prohibition of a widow to [marry] a High Priest, and of a divorcee or a haluzah3 to marry an ordinary priest; and why is it so called? Because it is written, they [sc. the priests] shall be holy unto their God.4 And it has been taught thereon: R. Judah reversed the definition. Now, though reversing the definition, he agreed on the fundamental law, that these required halizah [before being free to marry others]. But if you maintain that R. Judah agreed with R. Akiba [on the invalidity of kiddushin between those who are forbidden by a negative command], then consider: R. Akiba places those who are forbidden by a negative command in the same category as those who are forbidden on pain of extermination; but are not the latter exempt from both halizah and Levirate marriage?5 — R. Judah reverses the definition according to the ruling of the first Tanna, with which, however, he disagrees.6
When R. Isaac came,7 he taught as we have learnt [in our Mishnah]: R. Judah said, he incurs guilt only on account of her maternal relationship to him.8 Now why is this? — Abaye said: Scripture saith, The nakedness of thy father, or the nakedness of thy mother, shalt thou not uncover, she is thy mother.9 [This teaches:] You must punish him for maternal incest, but not for incest with his father's wife. If so, what of the verse, The nakedness of thy father's wife shalt thou not uncover: It is thy father's nakedness?10 Does it not imply, you may penalise him for incest with his father's wife, but not for maternal incest? In that case, if she is both his mother and his father's wife, one verse implies the exclusion of maternal incest [as the incriminating offence] — and the other excludes incest with his father's wife [as punishable].11 Now if he is punished for incest with his mother, even when not his father's wife, and with his father's wife, though not his mother-shall we say that when she is both his mother and his father's wife, he incurs no penalty at all? A further difficulty is this: Do not the Rabbis admit the existence of this verse, 'she is thy mother'?12 But they interpret it as teaching the law deduced by R. Shisha, the son of R. Iddi;13 in that case, R. Judah must also utilise it for the same purpose.14 But R. Aha the son of Ika said thus: The Writ sayeth: [she is thy mother: thou shalt not uncover] her nakedness.15 This teaches: You may penalise him for one degree of 'nakedness', but not for two degrees,16 If so, what of the verse: Thou shalt not uncover the nakedness of thy daughter-in-law: She is thy son's wife: thou shalt not uncover her nakedness?17 Does this too teach: You may penalise him for one degree of 'nakedness', but not for two? But we have learnt: HE WHO COMMITS INCEST WITH HIS DAUGHTER-IN-LAW INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS DAUGHTER-IN-LAW AND AS A MARRIED WOMAN. (HE IS GUILTY IN RESPECT OF HER BOTH DURING HIS SON'S LIFETIME AND AFTER HIS DEATH); and R. Judah does not dispute this! But since she is but one person, though forbidden in a double capacity, the Writ saith, 'her nakedness' [singular]: here too then, [in the case of one's mother who is also the father's wife] since she is one person, even if she were doubly forbidden, the Writ saith: 'her nakedness'.18 — But Raba answered thus: R. Judah maintains that the nakedness of thy father [thou shalt not uncover], means thy father's wife, deducing this by a gezerah shawah,19 and it applies to her whether she is his mother or not; whence do we know then that one's mother who is not his father's wife is likewise forbidden? — From the verse, the nakedness of thy mother shalt thou not uncover. [Hence the phrase,] 'she is thy mother' teaches that he is guilty only on account of her maternal relationship, but not because she is his father's wife.20
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