The Talmud is one of the richest and most complicated works of literature the world has ever known. Since being composed around 1500 years ago it has inspired not only religious reverence but significant intellectual engagement. In this course learners will be introduced to the unique characteristics of this text and the challenges that inhere in studying it while studying a chapter of the Talmud. Students of the course can expect to develop an appreciation for how the Talmud works and why it continues to inspire religious and intellectual devotion. They will be challenged to employ critical reading skills and to analyze legal and historical concepts.
Video 15 Conceptual Evolution of “Multiple Punishments”
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From the course by Northwestern University
The Talmud: A Methodological Introduction
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From the lesson
The Stam as Reader and Writer
The historical range of the different centuries of rabbinic literature makes it possible to take note of changes in the ways the different rabbis thought about the Bible and law. This module will demonstrate how later rabbis have a more abstract way of thinking about law while simultaneously having a more restrictive way of reading the Bible.
Meet the Instructors
Barry Scott WimpfheimerAssociate Professor
Religious Studies
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One of the most satisfying but challenging facets of studying the Talmud involves
the Talmud's deep engagement with legal concepts.
This video will explain different stages of the development of conceptualization
in the Talmud.
You will initially see how the Mishnah introduces legal rules through scenarios.
And requires the reader to actively read into the cases
to produce any kind of categorical, conceptual understanding.
After considering the Mishnah, we will transition from the case based
articulation of the Mishnah and early rabbis.
To the concept based articulation of later Amoraim and
ultimately, the full abstraction of the Talmud's anonymous redacters.
You will learn that one of the differences of traditional and
critical ways of studying the Talmud relates to this transition.
Unlike traditional learners who accept the interpretations offered by later rabbis of
early rabbinic materials in the text.
Critical readers have a heightened awareness of the way changes in conceptual
thinking effect the way one reads earlier materials.
The Mishnah considers whether false witnesses should receive one or
two punishments in two similar cases.
One involving a tour in which monetary compensation is the punishment.
And one involving a religious crime in which the punishment would be 40 lashes.
Unlike Mishnah texts that only provide the reader with a legal rulings.
This example is particularly helpful to understanding the conceptual thinking
that underlies the legal ruling.
Because in both scenario A and scenario B, rationales are provided for each position.
We testify about so-and-so that he owes his fellow 200 zuz.
If the witnesses are found to be lying, they are lashed and
make financial compensation.
In the first scenario which we'll call scenario A,
two witnesses testify that John Doe owes a friend some money.
Let's use our own currency and say $200.
These witnesses are then determined to be liars.
Two views of Tannaim, early rabbis, are cited.
First Rabbi Meir asserts that the witnesses received lashes and
pay $200 to their intended victim.
The rational Rabbi Meir offers is that the name that
brings him to corporal punishment is not the one that brings him to compensation.
This is not typical Rabbinic rhetoric.
The now name is particularly hard to decipher.
From context one can suggest two possible readings.
A, that the designation of the crime that causes the witnesses
to pay $200 is not the same designation as the one which forces their lashing.
And B, the verse from which we learn the $200
punishment is not the same as the verse whence their lashes are derived.
If we allow ourselves to reflect more abstractly on what Rabbi Meir could mean.
It may be that the $200 quid pro quo payment is restorative for John Doe.
The putative victim who they were slandering with their testimony.
And the lashes are restorative for society or God for having committed the crime or
sin of falsely testifying.
The Sages say that anyone who pays is not lashed.
The Sages, an anonymous collective rabbinic viewpoint
say that the witnesses pay $200 but are not lashed.
The rhetoric the Mishnah employs for the Sages in scenario A is also problematic.
While Rabbi Meir's position had been articulated as legal ruling plus
rationale.
The Sages position is expressed through a universal statement.
Whoever pays is not lashed.
This statement does the work of a ruling by asserting that the witnesses would pay
$200 and not get lashed.
Does it provide a rationale though?
To answer the question, one needs to reflect on the need for a rationale.
When you have a debate between two sides,
it often falls to one side to justify itself through a rationale.
Because the other side represents the status quo or default expectation.
Part of the problem of determining whether the universal statement,
whoever pays is not lashed is a rationale or not.
Is that the reader is unsure that the sages even need a rationale.
After all, if Rabbi Meir's position asserting two punishments
is itself in need of a justifying rationale.
The Sages position could simply reflect the status quo before
Rabbi Meir's intervention.
There is a further complication with the universal statement through which
the Sages assert their position.
If the witnesses were obligated in two possible punishments,
how would one decide which one to administer?
It certainly would make sense that they would receive the more severe punishment.
Otherwise, one would be rewarded for compounding one's violations.
As between $200 in lashes then.
Wouldn't one expect the witnesses to be lashed?
It turns out then that the universal statement in scenario A of the Mishnah.
Might have been intended to justify not giving two punishments
as Rabbi Meir requires.
Or it might be functioning as a rationale to explain why the witnesses receive what
appears to be the lesser of the two punishments.
Or alternatively it might be serving simply as a fancy way of recording
the legal ruling of the Sages.
We have seen that the rationales recorded in scenario A are somewhat ambiguous and
a bit confusing.
The rationales found in the nearly identical scenario B are clearer.
In order for clarification for those in scenario A, at least for
Rabbi Meir's position.
We testify that so-and-so is liable to receive 40 lashes.
If the witnesses are found to be lying, they receive 80 lashes.
In this case two witnesses testified that John Doe has
done something that will result in his receiving 40 lashes.
Rabbi Meir says the lying witnesses receive 80 lashes, a double punishment.
This is because of do not testify falsely against your fellow and
because of you shall do to them as they schemed to do, says Rabbi Meir.
And the Sages say they only receive 40 lashes.
The view of the Sages is articulated without a rationale in the simple language
of a ruling.
This does not clarify the confusion about the universal statement employed
in Scenario A.
However, Rabbi Meir's position in Scenario A is clarified in Scenario B.
Instead of his statement about the name that brings, Rabbi Meir in Scenario B
says that the witnesses received one set of 40 lashes for
having violated the prohibition in the Ten Commandments.
Against testifying falsely and a second set of 40 lashes in fulfillment
of the quid pro quo punishment laid out explicitly at Deuteronomy 19.
While the new rationale nicely interprets the vaguer rationale found in scenario A.
A critical scholar would be skeptical of this easy clarification and
might suggest that the second clause was produced by a later rabbi.
Who was himself struggling to determine the meaning of the name that brings.
This is one way in which critical scholarship introduces a factor of
historical time into its mode of reading.
After the Mishnah was orally published around the year 200 CE,
it became the central study text for rabbinic students.
Rabbis began to study the Mishnah very closely,
much as they had long studied the Bible quite closely.
Comments about the Mishna circulated orally in rabbinic culture.
Often they contributed to the construction of Talmud style conversations
around that Mishnah.
But sometimes they were simply remembered.
And they'd pop up somewhat surprisingly in other tract dates and other chapters.
Some of the important early rabbinic dialogue about this Mishna
in tractate Makkot is found within a different passage tractate to both.
A tractate about marriage contracts found within the order devoted to family law.
The third chapter of Mishnah to vote considers the scenario of the rape
of an unmarried girl.
The opening Mishnah lists a group of girls who are sexually forbidden
on account of incest.
They are closely related to the rapist.
And asserts that despite the sexual prohibition, the rapist would
nevertheless be obligated to pay the fine for raping an unmarried girl.
The problem with this legal position is that the identical scenario and
list appear in the third chapter of Mishnah Makkot.
Which asserts that such a rapist would receive lashes and
not a fine for the rape.
The Talmud Ketubot 31b Jack's deposes the two Mishnah's passages
as a contradiction in need of resolution.
The assumption behind the contradiction is that the rapist could not receive two
punishments, both lashes and a fine.
Three different Rabbis from the early third century shortly after the Mishnah
are cited as providing solutions.
For our purposes, the important one is Resh Laqish, a prominent Palestinian amora
whom we've already encountered in an earlier Talmudic passage.
Resh Laqish says that the contradiction can be resolved according to the view
that the rapist receives both lashes and a monetary fine.
And that this view fits with the universal position of Rabbi Meir that one can and
does receive two punishments.
The move Resh Laqish makes is to turn Rabbi Meir from a particular view
found in a specific scenario to a universal conceptual category.
It would be possible to read Rabbi Meir's rationale in the case of false testimony.
As specifically justified by the existence of two different crimes or verses.
But not necessarily a view that could be extrapolated to other cases.
Instead Resh Laqish understands Rabbi Meir's
to be an important universal intervention against the generally held view
that one cannot receive two punishments.
If one is attentive to the different generational designations of the Rabbis.
One can track the evolution of Resh Laqish's move throughout the later Rabbis.
By the time of the Talmud's anonymous redactors,
this notion that one cannot receive two punishments had become a universal one.
One anonymous passage at Makkot 16a
refers to the entire category through a conceptual designation.
Establish for him the more stringent of them.
This conceptual designation became the official name for
this categorical situation.
Any case in which one might be eligible to receive multiple punishments within and
among post-Talmudic commentaries.
Most traditional readers of the Mishna approach the Mishna with the prior
knowledge of the evolved universal conceptual category.
Establish for him that presumes that one can never get two punishments.
If one reads the Mishnah in this way, then Rabbi Meir's is the novel position and
must justify itself against the defaults.
And the Sages need not justify their position at all.
The problem is that there are many early rabbinic legal cases found in the Mishnah
or other rabbinic works.
In which there is no assumption that one cannot receive two punishments.
And the assumption makes it seem as though Rabbi Meir's legal rule is draconian.
In fact though,
one could argue that Rabbi Meir's position is the sensible response to the scenario.
Deuteronomy 19 requires a quid pro quo punishment,
that is why even the Sages up for $200 overlashes as the preferred punishment.
But this unfairly rewards the false witnesses by exempting them from
the harsher punishment of lashes.
Which they have earned by violating the Ten Commandments.
Rabbi Meir's approach ensures that the witnesses get both the quid pro quo and
the harsher of the two punishments.
Elsewhere in the Talmud, the anonymous redactors carve out
a variety of exceptions to the universal rule of two punishments.
For example,
they limit the universal to a case in which both punishments are simultaneously
generated by two violations committed in the course of a single act.
This allows them to create micro divisions of time
that separate a single action into two actions that each generate a punishment.
A critical scholar would recognize these cases as situations in which a later
accepted universal is used as an assumption to read an earlier case which
doesn't reflect its position.
By keeping track of the historical generations of a Talmudic conversation.
Differentiating between a second generation and a fourth generation amora.
Or between a fourth generation amora and the anonymously voice of the Talmud.
Critical scholars open up a lens for
reading the earlier materials against the grain of their later interpretations.
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