משנה: People who violate these laws will get מכות in a בית דין:
1. Sleeps with his sister (he would get כרת too)
2. Sleeps with his aunt (his father's or mother's sister)
3. Sleeps with his sister-in-law (his brother's wife or his wife's sister)
4. Sleeps with his uncle's (father's brother) wife
5. Sleeps with someone in נידה
6. A כהן גדול who marries a widow
7. Any כהן who marries a divorcee
8. Anyone who marries a ממזר or ממזרת
9. Anyone who eats קרבנות when they are טמאה
10. Anyone who enters the בית המקדש when they are טמאה
11. Anyone who eats forbidden fats, blood, leftovers of קרבנות you're not allowed to eat, leftovers of קרבנות that have "expired' they're time limit, a טמאה קרבן, a קרבן outside of Jerusalem.
12. Anyone who eats חמץ during פסח
13. One who does not fast on יום כיפור or works on יום כיפור.
14. One who mixes oils to be used in the בית המקדש- it's not pure olive oil, it's a mixture of oils he uses, which is forbidden. Same with mixing ingredients for incense/spices.
15. One who eats non-kosher- How much non-kosher do you need to eat to be punished with מכות?
Rav Simeon says "the merest morsel." The חכמים say a כזית. Rav Simeon challenges the חכמים: would you deny that someone who ate a tiny ant would get lashes? The חכמים say: it is different because there you are eating the entire creature! Rav Simeon says back: even so, a grain of wheat would also be considered a separate entity! The חכמים say: you can't assign the importance of a living creature to a plant.
גמרא: The משנה only lists cases where you can get כרת as cases where you can also get lashes- whose opinion is the משנה citing? This is the opinion of רבי עקיבא, who says only those liable to כרת can also get lashes, while רבי ישמאעל says both those liable to the death penalty and liable to כרת can get lashes from a court. The reasoning behind רבי עקיבא's opinion is that those responsible for כרת-level offenses can repent and the punishment that would be given in שמים can be repealed if replaced by earthly punishment (such as מכות)- they won't get כרת if they repent. Those who are liable for the death penalty do not get מכות because the extra punishment would not relieve them of their punishment בשמים- lashes would not be enough to "wipe" them of their sins.
רב יצחק asks: Since we already know all the relations listed above are offenses that achieve כרת, why do we only repeat that one would get כרת for sleeping with his sister? To show that they will receive כרת, not lashes. רב יצחק is disagreeing with רב עקיבא and רב ישמאעל by saying that the written law does not allow מכות to be given instead of כרת- the prescribed punishment will be given to each case as specified in the תורה.
What is the reasoning behind רבי ישמאעל's opinion? The תורה says, "If thou wilt not observe to do ALL the words of this law... then the Lord will make thy strokes pronounced." What is this "pronouncement?" The תורה says, "If the wicked man deserves to be beaten the judge shall cause him to lie down and to be beaten before his face according to the measure of his misdeed by number... forty stripes." Therefore, [רב ישמאעל learns] that the law is anyone who is deserving of lashes shall get lashes (which extends to those who also deserve the death penalty). If this is the case, then why not give מכות to those who neglect to do מצוות עשה as well? The פסוק says, "if thou wilt not OBSERVE to do" and according to Rav Abin in the name of Rav Elai whenever one sees the expression observe, lest, or do in the תורה, It is referring to a מצוה לא תעשה. Then why do we not give מכות to someone who violates a passive לא תעשה? The פסוק says, "If thou wilt not observe to DO (there has to be action)." Then why not give מכות to someone who violated a מצוה that could've been remedied by a simple, subsequent action? An act that requires מכות as punishment must be an active prohibition (a prohibition that someone actively violates) that cannot be remedied by a simple action afterwards. Why does רבי עקיבא say one who gets the death penalty does not get additional מכות? Becausethe פסוק says, "according to his misdeed," meaning that you can only punish him for one misdeed- you can not hold him liable for two. Why does רבי ישמאעל say you can give someone liable for the death penalty מכות as well? Because רבי ישמאעל holds מכות as a "protracted death (so it's not really two separate punishments)." But if this is the case, why does רבי עקיבא say those liable to כרת should get מכות as well- doesn't that contradict his previous statement (about why we don't give מכות to those deserving of the death penalty)? And if you want to say it is because they might repent after מכות and they will not get כרת from G-d (they will be forgiven in שמים), how are we to assess that the guilty has repented (perhaps after the whipping he has not repented and we have held upon him two punishments!)? Rav Abbahu says: Because we derive a גזרה שוה between the two פסוקים describing כרת and מכות for It says (with כרת), "before the eyes' and with מכות "before thine eyes." רבי אבא בן ממל responded to Rav Abbahu, saying: if this is the case, why not include the death penalty in this גזרה שוה by deriving "from the eyes (describing murder)" from "before thine eyes?" It is admissible to interpret before the eyes from before thine eyes, but it is not to derive from the eyes from before thine eyes (because the phrasing varies too much). Why does this matter? Did רב ישמאעל not teach a גזרה שוה between "and the priest shall come again" and "and he shall go in and see?" Rabbi Samuel son of Rabbi Isaac says that the פסוק רבי עקיבא interprets only applies to punishments that can be inflicted by Beit Din- since בית דין cannot inflict כרת on a man, they can give him lashes but if בית דין kills him, they cannot also give him lashes because that would be two punishments inflicted by בית דין for one misdeed.
רבא rejects the whole argument, saying of course you would not give lashes to a man who is receiving the death penalty because the greater punishment would override the lesser! The difference occurs in a case where the prohibition given is to serve as a forewarning to a capital sentence- in such a case, רבי ישמאעל would hold that lashes are to be given while רבי עקיבא would hold lashes are not to be given in such cases. But if this is the case, shouldn't Rabbi Akiva include in his prohibition against flogging cases of כרת as well, for the תורה says that the prohibition is supposed to keep people from going into כרת- the prohibition serves as a forewarning for כרת! Rabbi Mordechai said to רב אשי Abimi of Agrunia said in the name of רבא that כרת does not require a warning for you do not need to warn someone when they do not give the קרבן פסח or do not give their son a ברית מילה they might get כרת- that law in cases of כרת is the warning is designed to serve as a warning for lashes. Maybe there is no warning because violating these מצוות do not warrant the giving of a קרבן to atone? This is not the case because the reason you do not need to give a קרבן when you violate these מצוות is because they are מצוות עשה- not giving a warning has nothing to do with the reason you don't need to give a קרבן to atone for these sins.
What would be a passive לא תעשה? Why would the תורה design the הלכה in a way that for כרת deserving sins, you only get a warning against מכות? Wouldn't כרת seem a lot scarier to people than a few lashes and work as a better deterrent against crime? Sorry I posted so late!
It's a really good question. Maybe the answer lies in the fundamental difference between karet and punishments administered by Beit Din: karet is strictly between you and HKB"H. When someone warns you not to do a crime, they are warning you that Beit Din will be aware of what you have done, so they will punish you. But karet is not administered by the humans of Beit Din, it's administered by HaShem. Therefore, the warning should not come from humans, as they are not a part of the process; it should come from HaShem-- and it does, in the form of the Torah.
ReplyDeleteI don't find that answer thoroughly satisfactory though, and I look forward to seeing what other people have to say.
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ReplyDeleteI think that it is a really good question. Maybe it's, kindav like what Chana said, based on the differences between the two type of punishments. Karet is a punishment given to you by Hashem, and you don't necessarily feel the consequence/ punishment for what you have done, and is therefore less threatening for some people. Nothing is physically being done to you by another person, that you can prove that this punishment has been done to you, and therefore people may not taken as seriously. I don't really like this answer though because I feel as though I am undermining people, as I would like to think that most people would still take Karet seriously, and that they will understand that they will be punished, by Hashem, even if it is not a directly seen as Makkot.
ReplyDeleteAlong the lines of Chana and Leah, I think that because Karet is from Hashem and not a physical punishment, we need to somehow punish people with something physical so they understand that what they did was wring. Therefore, we use lashes, which is a physical punishment, to punish the person so we convey to them that what they did was wrong and they deserve to be punished for their actions.
ReplyDeleteI havent read through the comments yet so this probably has already been said but perhaps the reason that there is a warning for makkot but not for karet is becasue makkot is a punishment that humans enact on others. With karet, Hashem is the only one that decided whether someone is deserving of it so therefore, no human can threaten someone else with it.
ReplyDeleteI agree with what everyone has said already, that Karet is different than Malkot because it is from HaShem, while Malkot are from the human Beit Din. I also think that the punishment of malkot might be a stronger deterrent than karet because if people see the punishment one receives for committing a sin (as opposed to believing that HaShem punished them with Karet), they are more likely not to sin because they see that they really will be punished. With Karet, we believe that HaShem enforces it, but there is no way to really know.
ReplyDeleteHowever, one can argue the opposite way that some people fear Karet more because it is permanent, while the punishment of Malkot is only in the moment. So I guess these people are deterred by the initial punishment of just Karet, and the others types of people (that need to see the punishment to be afraid) are deterred by the Malkot punishment also.
Building off of what everyone else said but maybe taking it in a different direction. There are 59 lashes when one recieves the punishment of malkot, including some that would make you receive karet as well. Perhaps by warning about the lashes, a more physical punishment, the gemara seeks to include karet as well since they are caused by the same sin and people will actually listen since its not only between you and Hashem.
ReplyDeleteexample of passive לא מעשה: לא תעמד על דם רעך.
ReplyDeleteI agree with what has been said already about karet vs. makot. Intellectually, we all know that karet is worse than lashes, but in the moment, lashes may seem worse to the criminal because they are an extremely and physically painful punishment, while karet is a spiritual punishment and is not as imminent.
I agree with everyones opinion, but to look at it from the opposite point of view\a different angle maybe, Karet does not get a warning and makot does because- Karet is worse than lashes, and therefore, it might not have a warning because it such a bad punishment that we should not even need a warning to be deterred from doing something that would warrent karet. However, that is a bit idealistic, and hence, we need a warning for makot because although we know that karet is harsher, many criminals dont see it at that way, as Nina pointed out, and therefore need another deterrent from doing the sin. Ideally, however, maybe one would not need a warning at all because it is such a preposterous sin that no one would violate it.
ReplyDeleteAnother answer could be because karet, according to Rashi is dying young and having no progeny. (http://www.torahmusings.com/2010/04/what-is-kares/). To some people, this future suffering, or having no children is not important to them, but physical pain is harmful to them, and therefore,they only need a warning for makot.
I agree with everything people are saying. I think for a regular human being, although it is hard to admit, physical punishments are scarier than an eventuality that is hard to understand.
ReplyDeleteAccording to R' Akiva's shita, both karet and malkot are necessary in the case that you can do teshuva for the karet and be atoned for in the b"d shel maaleh, and so you will still be punished through malkot in the b"d shel maatah. Through this example I think it's more clear that although karet seems pretty bad to us, Malkot is the more permanent punishment that comes with certainty, and cannot be removed through teshuva.
ReplyDeleteI think the fact that we do not know exactly what kareit is, we cannot assume people would think it is scarier than lashes.
ReplyDeleteI happen to think karet is a scary punishment, but malkot is a scary possibility, and in the short moments that a warning is issued, a person may be more likely to react to the prospect of malkot than karet.
ReplyDelete