The Mishnah of Makkot 8b states the following:

מתני האב גולה על ידי הבן והבן גולה ע"י האב הכל גולין על ידי ישראל וישראל גולין על ידיהן חוץ מגר תושב וגר תושב אינו גולה אלא על ידי גר תושב:

“The father goes into banishment for [the death of his son and the son goes into banishment for [that of ] his father. All go into banishment for [the death of] an Israelite and Israelites go into banishment on their account, save for a sojourning stanger. And a sojourning stranger goes into banishment for [another] sojourning stranger.”

The Banishment of a Father

The Gemara begins by addressing the circumstances under which a father and son are subject to the laws of exile applicable in cases of manslaughter.[1] The Gemara explains that one scenario leading to the death of a son by his father is that of a father disciplining his son. The context involves a father teaching his son an additional craft or trade for the purpose of gaining a livelihood after he has already mastered one. According to Rabbi Rosenberg, the Gemara seemingly implies that a father is permitted to correct his son “by striking him” during the process of teaching him Torah, a trade, or to correct his moral behavior.[2] Once the son has mastered a trade, however, a father’s mitzvah to teach his son a trade has been fulfilled. If a father is teaching his son an additional trade, and corrects him by striking him so he dies, he is now subject to the laws of exile. The Gemara alludes to another statement in another Gemara noting that a father does not go into banishment for inadvertently killing his son. The scenario above is an exception to the aforementioned statement.

The Banishment of a Son

The Gemara now continues by discussing the scenario of a son accidentally killing his father. The discussion immediately turns to a Scriptural text contradicting the Mishnah. The basis for the contradiction is found in Numbers 35:11 which relates the appointment and designation of the cities of refuge. The assertion is that the phrase “…that killeth a person…” excludes the case of one who kills his father or mother. The Sifre[3] offers the following rational for this position by noting that a person that kills is excluded from the protection afforded by the cities of refuge since even a wound that does not cause death renders the offender liable to death by strangulation.

To this Rabbi Kahana[4] offers a resolution. Rabbi Kahana suggests that the former position reflects the view of Rabbi Simeon[5] while the Mishnah reflects that of the Rabbis. In the view of Rabbi Simeon, a death penalty by strangulation reflects a severer punishment than a death penalty by the sword. Rabbi Simeon apparently appealed to Sanhedrin 81a to support this view.[6] That being the case, Rabbi Simeon argues that manslaughter merits a penalty of death by the sword and this punishment is commuted to banishment to the cities of refuge. Killing a parent however does not have a similar commutation of sentence. To this view, the Rabbis respond that to the contrary death by the sword is a severer punishment that strangulation. Hence the death penalty is commuted to banishment. Raba[7] injects his own perspective by explaining the Baraita commenting on the verse “That killeth a person [through error may flee there].” Raba rules that such person which kills their parent(s) is excluded from the laws of banishment. Raba bases his decision on his interpretation of the duality of the meaning of the Hebrew word maceh. Maceh Nefesh refers to the “smiting or killing of a soul.” Maceh means beating or wounding in addition to killing.

Who Goes into Banishment?

The statement “that all go into banishment” is now discussed. This section of the Gemara begins by asking if slaves (non-Israelite) or Cutheans (i.e. Samaritans) are subject to the laws of banishment. The Gemara begins by stating that slaves and Cutheans go into exile or receive a flogging on account of an Israelite and that in turn an Israelite goes into exile or receives a flogging on account of the former. According to this statement is seems that both Cutheans and slaves are subject to the laws of exile and are thus protected by the cities of refuge.

The Gemara continues however by asking the justification by which an Israelite receives a flogging. The Gemara states that there is a “clear case for the Israelite going into banishment, namely if he kills a slave or Cuthean [inadvertently].” The basis for an Israelite receiving a flogging now becomes the focus of attention for the Gemara. The Gemara theorizes that perhaps the Israelite had cursed the Cuthean or slave. The Gemara however negates this possibility by noting that the Biblical prohibition on cursing found in Exodus 22:27 is limited to not cursing G-d or a ruler. Rabbi Ahab Ben Jacob[8] suggests that the Cuthean or slave may have testified against an Israelite for which the Israelite would have been flogged. If the Cuthean or slave were found to be “zomem” (i.e. false) witnesses, the former would be liable for the same punishment intended for the latter. The validity of a slave bearing witness at all is brought into question by R. Aha ben Rabbi Ika[9] who offers a different scenario under which an Israelite might be flogged. The scenario related by Rabi Ammi[10] from R. Yohanan[11] involves an Israelite striking a Cuthean or slave. If the blow inflicted harm but the equivalent monetary value for the injury was below a perutah[12], the assailant would receive a flogging.

The Exclusion of a Sojourning Stranger

The Gemara now turns to the exclusion of the cities of refuge and the protection afforded by them to a sojourning stranger in a case in which an Israelite is killed. The Gemara states that in this case, the sojourning stranger is treated as a pagan with regards to the law of refuge. To this seeming inconsistency, Rabbi Kahana suggests that there is a resolution by understanding that if a sojourning stranger inadvertently kills another sojourning stranger, he is subject to the laws of exile and refuge. Two passages of Scripture are now presented offering seemingly conflicting statements. Numbers 35:15 states: “For the children of Israel and for the stranger and for the sojourner among them, shall these six cities be for refuge...” Numbers 35:12 however states: “[Speak unto the Children of Israel…] and the cities shall be unto you [for refuge from the avenger]. Rabbi Kahana argues that “unto you” is directed towards the children of Israel and excludes strangers. He argues that the resolution to this lies in understanding that the passage in 35:12 refers to a sojourning stranger killing an Israelite and 35:15 refers to a sojourning stranger killing a sojourning stranger.Contradicting Rabbi Kahana’s assertion, the Gemara points to the citation of the following statement: “Therefore, stranger, and heathen who killed [a person] are killed.” The point of this statement is to demonstrate that a stranger and a heathen could be considered as belonging to the same category. The Gemara offers the following elaboration of this statement by noting that it makes no difference whether someone kills a person of his own status or someone outside of his status. In either case, he would be killed. Therefore, in the case of a stranger it does not make a difference whether he kills someone of this own status, he is killed.

The Transformation of Israelite Religion to Rabbinic Judaism

Rabbi Hisda[13] offers a resolution to these contradicting texts by explicating that they provide instruction for differing occurrences of manslaughter. One refers to the case of manslaughter caused by a downward motion while the other provides for the case of manslaughter caused by an upward motion.[14] In the case of manslaughter caused by downward motion, Rabbi Hisda surmises that like an Israelite, a stranger would be allowed to go into banishment. However in the case of man slaughter resulting from an upward motion in which an Israelite is acquitted, a stranger would suffer the death penalty. Raba[15] argues against Rabbi Hisda’s proposal. He argues[16] that if in the case of downward motion in which an Israelite would go in to banishment and in which a stranger receives the same punishment, why then should the death penalty should be levied on the stranger when an Israelite goes free in the case of manslaughter caused by upward motion. Raba himself notes that the severity of the death penalty is justified when the stranger thought he had the right to kill. Rabbi Abaye[17] interjects by stating that if the stranger had the right to kill him [i.e. the stranger] is a victim of an accident. Raba responds to Abaye’s comments, by stating that he considers such an individual as next to a deliberate perpetrator. The Gemara now provides elaboration on the subject of intent and mishap. The Gemara draws on the case of death inflicted on a human being, when the perpetrator thought it to be an animal; or that of a heathen and it was instead a “sojourning stranger.” According to Raba, the individual is liable because the attack was intentional thus requiring the perpetrator to be more careful; while Rabbi Hisda does not hold the individual liable because he considers the perpetrator as simply the victim of mishap. Raba rebuts Rabbi Hisda’s position by noting the Genesis 20:43 in which G-d condemns Abimelech to death because he took Sarah as his wife, despite not knowing that she was Abraham’s wife. The Gemara now continues with what appears to be R. Hisda’s response which notes that Abimelech was subject to G-d’s displeasure but was not liable in an earthly court, since the verse 4 notes that G-d kept Abimelech from sinning against Him.

The feasibility between the differentiation between sinning against G-d and man is now discussed. The example provided is that of the episode of Joseph and Potiphar’s wife in which Joseph states: “How then can I do this great wickedness and sin against G-d?” Joseph’s statement raises the question as to whether the sin in question would only have transgressed against G-d. The Gemara states that this means that his trial alone would be in the sphere of human authority. Abaye returns to the case of Abimelech and responds to Raba by quoting the passage “L-rd will Thou slay even a righteous nation?” [18] The Gemara continues by noting Abimelech’s response that Sarah should be restored to Abraham because he was a prophet. The question is now raised as to why Abimelech includes the mention of Abraham as a prophet as to imply that if he were not a prophet, she would not be restored. My understanding of the Gemara reference to Rabbi Samuel B. Nahmani’s[19] position which cites Rabbi Jonathan,[20] is that G-d ordered Abimelech to restore Sarah no matter what Abraham’s position and that the answers given by Sarah and Abraham were responses based on the abnormal nature of the questions asked. In short, the responsibility for ascertaining all the facts regarding the relationship of Abraham and Sarah is left to Abimelech. The Gemara concludes by noting that a “son of Noah” suffers the death penalty regardless of any mishaps or misunderstanding. The responsibility for determining all facts lies with the perpetrator.

Bibliography

Gershom Bader, The Encyclopedia of Talmudic Sage, (Northvale: Aaronson, 1989).

H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996).

Rabbi Avrohom Yoseif Rosenberg, Seder Nezekin Volume II: Tractate Makkos, (Brooklyn: Mesorah, 1987).

Shmuel Safrai, The Literature of the Sages, (Minneapolis: Fortress Press, 1987).

Anatoly Geyfman, www.Jewish Gates.com



[1] See Numbers 35 for the subject of Manslaughter and concept of cities of refuge.

[2] Rabbi Avrohom Yoseif Rosenberg, Seder Nezekin Volume II: Tractate Makkos, (Brooklyn: Mesorah, 1987), 44.

[3] Halakhic Midrash on the books of Number and Deuteronomy.

[4] Like many names in the Talmud, a number of Rabbis bear the name Kahana. In fact a total of six Amoraim bear this name. The most prominent of these however was a student of Rav. He was from Babylon and migrated to “Palestine” where he was associated with R. Yochanan and Simeon Ben Laquish. As Strack and Stemberger point out, with several rabbis having the same name, and the name of the father often omitted, context becomes critical in determining who the rabbi in question, though even this is not a fool proof method. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 58, 87.

[5] While there a several Rabbis named Simeon, the rabbi here is without question, Simeon Ben Yohai, the legendary author of the Zohar, who appears more than 300 times in the Talmud as simply Rabbi Simeon. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 76. A disciple of Rabbi Akiba for thirteen years, he was a contemporary of Rabbi Chanina who studied with him under Rabbi Akiba in Bnei Brak. His antagonistic stance towards the Romans in light of the Roman persecution that ensued during the emperor Hadrian’s reign following the ill-fated Bar Cochba revolt led to his status as a fugitive. Gershom Bader, The Encyclopedia of Talmudic Sages, (Northvale: Aaronson, 1989), 271, 292, 356.

[6] Sanhedrin 81a notes that in cases in which two penalties are issues, the severer of the two is inflicted.

[7] Amora from Babylon. While there are more than one Raba, this Raba appears to be Raba Bar Joseph Hama. He studied under Rab Nahman Bar Jacob and Rab Joseph. He was a contemporary of Abaye and he taught at Mahoza on the Tigris River. .L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 95.

[8] R. Aha bar Jacob was from Pafunya in Babylon from the district of Pumbeditha and was a fourth generation Amora. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 95. Sanhedrin 46B records one of R. Aha Bar Jacob’s responses to the inability of Rav Chama to rule on the acceptability of burning the dead in accordance with Persian custom. To this he responded, “ The world has been handed over into the hands of fools who do not know that burial of the dead is a commandment of the Bible and when they are asked, they forget the verse which says expressly, ‘for thou shalt bury him on that day.’”

[9]Biographical references to Rabbi Aha ben Ika are difficult to find. He does however appear in a number of Talmudic discussion ranging from the accepability of sexual relations outside of marriage to laws of kashrut as found in San 4b.

[10] Rabbi Ammi Ben Nathan, or in the Jerusalem Talmud, Rabbi Immi was a third generation Amora from the land of Israel. He was a student of Rabbi Yohanan and Hoshayah and was also a contemporary of Rabbi Yehuda N’siah II. Though Yehuda N’siah was head of the Sanhedrin, Rabbi Ammi was a preeminent religious authority as well. He is credited with saving the life of Rabbi Avahu. He taught in the Tiberias and is associated with Assi and Hiyya II. Incidentally, Hoshayah was not ordained but was known as a “habrehon de Rabbanan”, or one of the “companions of the scholars” and traveled from Babylon to Tiberias where he became a student of Rabbi Yohanan. The reign of the Roman Emperor Diocletian was contemporary with them. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 90. Gershom Bader, The Encyclopedia of Talmudic Sage, (Northvale: Aaronson, 1989), 457, 567.

[11] A second generation Amora from the Land of Israel. His full name was R. Yohanan Bar Nappaha, “the blacksmith.” Yannay, Hoshayah, and Hanina Ben Hama were among his teachers. Simeon ben Laqish was his contemporary. He taught at Sepphoris (his birth place) and also at Tiberias. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 86.

[12] The exact measure equivalent to a perutah is detable, since it appears that the measure or value of coins and monetary units had changed or were no longer in existence when the Amoraim of Babylon wrote. According to Kiddushin 2a, a perutah is equivalent to an eigth of an issar. In Kiddush 1a1-12a however we read that “…when Rabin came, he said: R. Dosethai, R. Yannai and R. Oshiah estimated: how much is a perutah? A sixth of an Italian issar.” Anatoly Geyfman, www. Jewish Gates.com, Weights and Money.

[13] Rabbi Hisda was part of the third generation of Amoraim from Babylon. He was a student and associate of Rav Huna. He served as a teacher in Sura and served as its greatest teacher after the death of Rav Yehudah. He is best known from his Aggadah. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 92. Rabbi Hisda is also portrayed as a rival of Rabbi Yochanan, the compiler of the Jerusalem Talmud. Rabbana Ukba and Rabbana Nehemiah, his grandsons, were among his students. Gershom Bader, The Encyclopedia of Talmudic Sage, (Northvale: Aaronson, 1989), 486, 628.

[14] The Mishnah (7a) of chapter two of Makkot provides a distinction between manslaughter in cases of upward or downward motion. The Mishnah provides three examples of manslaughter leading to exile and their complementary actions which do not. The first three action involved scenarios of death caused by downward motion, while deaths caused inadvertently do not.

[15] Raba was a fourth generation Amora from Babylon who taught at Mahoza on the TigrisRiver. His full name was Raba Bar Joseph Hama. He studied under Rav Nahman bar Jacob and Rav Joseph. He was a contemporary of Abaye and the Babylonian Talmud provides great detail regarding their debates. Abaye was the son of Kailil who in turn was a brother of Rabbah Bar Nahmani. He was likely the head of the academy at Pumbeditha for several years. According to Strack and Stemberger, Talmudic dialectics reached their height under Raba and Abaye. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 95.

[16] Kol Vahomer.

[17] See Note 7.

[18] Genesis 24:4

[19] Born in the land of Israel, Rabbi Samuel Bar Nahman or Nahmani was a third generation Amoraim. He was a student of Jonathan Ben Eleazar. His major renown was due to his Aggadah and he taught in Tiberias. He visited Babylon only twice in his life. In his later visit, he went on an official mission regarding the intercalation of the calendar in Babylon. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 89.

[20] First generation Amora originally from Babylon, but moved to Sepphoris in the land of Israel. His complete name is Rabbi Jonathan Ben Eleazar, but is typically referred to as simply Rabbi Jonathan and his best known for his Aggadic statements. He was a disciple of Rabbi Chiya and also studied under Simeon Ben Jose Be Laqonya. He was the head of an academy and the teacher of Rabbi Samuel Bar Nahman. H.L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, (Minneapolis: Fortress Press, 1996), 83. Gershom Bader, The Encyclopedia of Talmudic Sage, (Northvale: Aaronson, 1989), 519-520.


Posted by Rabbi Dr. Juan Marcos Bejarano Gutierrez the director of Yeshivat Meor Enaim. He is the author of The Creation of Jewish Identity: From the Biblical Era to the Second Temple Period and 19 additional books on various Jewish topics. If you purchase through our link, Yeshivat Meor Enaim gets a commission to help continue our mission.