Makkot 13b — the Talmud in English

are included in the category of forty lashes, the words of Rabbi Yishmael.

Rabbi Akiva says:

Only

those liable for karet [

when they were warned for lashes]

are included in the category of forty lashes,

because they can be exempted from the punishment of karet,

for

behold,

if they repent—

the heavenly court forgives them

the punishment of karet.

For they can be exempted from the punishment of karet if they repent; therefore it is possible to impose lashes upon them, because it is not certain that they will receive the punishment of karet, and here there is not the exemption of "because of one wickedness you impose liability upon him, and you do not impose liability upon him because of two wickednesses."

But

those liable for executions by the court,

even if they were warned for lashes,

are not included in the category of forty lashes, for

even behold,

if they repent—

the earthly court does not forgive them,

but executes them!

And since the court is obligated to execute them even when they have repented, it follows that if we administer lashes to them and afterward execute them, they will become liable for two punishments; and the Torah imposes for one act only one punishment, and not two punishments.

Whereas

Rabbi Yitzchak says:

All

those liable for karet

for forbidden relations

were included

in one

category,

as it is stated concerning all of them together at the end of the portion of forbidden relations [Leviticus 18]: "For anyone who shall do any of all these abominations, and they shall be cut off."

And why did karet concerning his sister emerge?

Why did Scripture remove the punishment of karet for the nakedness of one's sister from the category of all the forbidden relations, to write her punishment of karet separately, in the portion of Kedoshim?

In order to teach concerning the entire general rule of those liable for karet:

To judge him,

the person who transgresses a prohibition involving karet, only

with

a punishment of

karet, and not with

a punishment of

lashes—

to say that even if those liable for karet were warned for lashes, lashes are not administered to them; rather, they are liable only for the punishment of karet.

Thus far is the language of the beraita.

And it follows that our Mishna is according to Rabbi Akiva, who holds that only those liable for karet receive lashes, and not those liable for executions by the court.

And now the Gemara explains the reasoning of the three tannaim who disagree in the beraita:

What is the reason of Rabbi Yishmael,

who holds that both those liable for karet and those liable for executions by the court receive lashes?

Because

it is written

in the curses in the portion of Ki Tavo [Deuteronomy 28]: "

If you do not observe to perform all the words of this Torah."

And it is written

near this verse: "

And the Lord will make your blows extraordinary"! "

The making extraordinary"

this

that is in the words of Scripture, "And the Lord will make extraordinary"—

I do not know,

from the meaning of this verse,

what it is.

When

the verse

says

in the portion of Shoftim: "

And the judge shall cause him to lie down, and he shall strike him before him"—

you must say: "

The making extraordinary"

this—

is lashes!

And it is written

concerning this making extraordinary: "

If you do not observe to perform all

the words of this Torah"!

And from here we must learn that all those liable for executions, both karet and execution by the court, are also obligated in lashes.

And the Gemara raises an objection:

If so,

that the "making extraordinary" stated in the verse "If you do not observe" means lashes for everyone who transgresses one of the words of the Torah—

those liable for a positive commandment also

should receive lashes! For positive commandments too are included in "all the words of the Torah."

And the Gemara answers: "

If you do not observe is written"

in this verse, and its meaning is a negative-commandment prohibition,

and in accordance with Rabbi Avin said Rabbi Ila'i: For Rabbi Avin said Rabbi Ila'i: Everywhere

in the Torah

where it is stated

that a prohibition is expressed in the language of

"Take heed," "

lest,"

and "

do not"—

it is only a negative commandment!

But it is still possible to object:

If so,

that the verse says that lashes are administered for all the words of the Torah prohibited by a negative commandment—

a negative commandment that does not involve an act—

also,

lashes should be administered for it [such as the negative commandment of "there shall not be seen and there shall not be found" concerning leaven]!

And we answer: "If you do not observe

to perform"

is written,

whose meaning is: a negative commandment that involves an act.

But the Gemara still asks:

a negative commandment remedied by a positive commandment [

for which the Torah established a remedy through fulfillment of a positive commandment, such as the commandment of returning a stolen object, which remedies the negative commandment of robbery]—

also,

lashes should be administered for it; and why do we say in several places that lashes are not administered for a negative commandment remedied by a positive commandment?!

And the Gemara answers: Since the Torah juxtaposed the portion of lashes to the prohibition of "You shall not muzzle an ox while it is threshing," the Torah thereby revealed that lashes are administered only for a negative commandment that is

similar to the negative commandment of muzzling,

resembling the prohibition "You shall not muzzle an ox while it is threshing," which is not remedied by a positive commandment.

And the Gemara continues and says:

Now that you have arrived at this,

now, when we have reached the conclusion that lashes should be imposed only for a negative-commandment prohibition resembling the prohibition of muzzling an ox while it is threshing—

all of them also,

both those liable for positive commandments and those liable for a negative commandment that does not involve an act, concerning which we asked above that lashes should be administered for them from the verse "And the Lord will make your blows extraordinary," can also be answered according to this rule: since they are not

similar to the negative commandment of muzzling,

since they do not resemble it, for they are not a negative commandment involving an act like the prohibition of muzzling, lashes are not administered for them.

And since according to Rabbi Yishmael it is to be learned from "And the Lord will make your blows extraordinary" that those liable for executions also receive lashes, the Gemara returns to the words of Rabbi Akiva:

And Rabbi Akiva —

what is the reason?

why does he hold that only those liable for karet receive lashes, whereas those liable for death by the court do not receive lashes? And why should those liable for death by the court not be punished both with death and with lashes

? ]]And the Gemara explains: because it is written in the passage concerning lashes in the section of Judges, “And the judge shall strike him

according to his wickedness.”

The verse excluded by stating “according to his wickedness,” to say: only

for one wickedness

punishment

do you make him liable

for one act,

but you do not make him liable for two wickednesses,

two punishments for one act!

And therefore those liable for death by the court are not given lashes, because one punishes with only one punishment for one act.

And we raise an objection:

but Rabbi Ishmael,

how does he hold that those liable for death receive lashes and die, and does not take account of the accepted exposition of “according to his wickedness,” that one does not impose two punishments for one act

? And we explain:

these words

that they are considered “two wickednesses”—when they are two punishments of

death and money,

or lashes and money.

But death and lashes

are considered “one wickedness,” since the lashes that weaken a person’s body join the punishment of death—and it

is an extended death

.

And we raise an objection:

and according to Rabbi Akiva,

whose reason is that death and lashes are considered two wickednesses, and one does not impose “two wickednesses” for one act, because the verse says “according to his wickedness”—

if so,

since you learn this from “according to his wickedness,”

those liable for karet also

should not receive lashes, since karet and lashes are two wickednesses.

For according to Rabbi Akiva’s method, one does not punish with two punishments, and therefore those liable for death do not receive lashes according to his view.

And if so, those liable for karet should likewise not be punished with two punishments and should not receive lashes, for even if they receive lashes, they will still receive the punishment of karet from Heaven.

What can you say

perhaps you will say to distinguish, just as Rabbi Akiva gave a reason to distinguish between karet and death,

that if they repent,

since those liable for karet can exempt themselves from the punishment of karet by repenting, there is no “two wickednesses” in giving them lashes—

It is still difficult: for

now, in any event,

nevertheless, now, at the time when they receive lashes, they are still

not having done

repentance, and it follows that they receive the punishment of lashes at a time when an additional liability of karet rests upon them, and giving them lashes at this time constitutes punishment with “two wickednesses”! And we answer:

Rabbi Abbahu said: The Torah explicitly included those liable for karet for lashes!

For he concluded

that the verse taught by means of a gzera shava

“before the eyes”

—

from “before your eyes,”

from those liable for lashes to those liable for karet, that those liable for karet also receive lashes.

That is, concerning those liable for karet it is written [Deuteronomy 25]: “And they shall be cut off

before the eyes

of their people.”

And concerning those liable for lashes it is written [there]: “And your brother shall be degraded

before your eyes.”

The verse teaches that those liable for karet receive lashes together with the karet.

Rabbi Abba bar Memel challenged

this answer of Rabbi Abbahu,

Rabbi Abba bar Memel:

if so,

according to you, that those liable for karet receive lashes because it is written concerning them, “and they shall be cut off before the eyes of their people,” and we learn by a gzera shava “before the eyes” from “before your eyes,” concerning those liable for lashes, that those liable for karet also receive lashes—

those liable for death by the court also, let us conclude them,

let us learn by a similar gzera shava from those liable for lashes that those liable for death by the court also be punished with lashes.

For concerning those who worship idolatry, who are liable for death by the court, it is also stated [Numbers 15], “If it is hidden from the eyes of the congregation.”

And if so, let us learn by a gzera shava,

“from the eyes”

which is stated concerning idolatry, where they are liable for death by the court,

from

those liable for lashes, concerning whom it is stated, “and your brother shall be degraded

before your eyes,”

and those liable for death by the court should also receive lashes!

And the Gemara answers:

we derive by a gzera shava

by a gzera shava only those liable for karet, concerning whom it is stated, “and they shall be cut off

before the eyes

of their people,”

from

those liable for lashes, concerning whom it is stated, “and your brother shall be degraded

before your eyes.”

For the gzera shava is “before the eyes—from before the eyes,” and the addition of the final letter kaf in the word “before your eyes” is not significant enough to interfere with learning the gzera shava “before the eyes—from before the eyes.”

But

however,

we do not derive by a gzera shava

those liable for death by the court, concerning whom it is stated,

“from the eyes”

of the congregation,

from

those liable for lashes, concerning whom it is stated, “and your brother shall be degraded

before your eyes.”

For there is a significant difference in meaning between “before the eyes” and “from the eyes.”

And therefore we learn a liability for lashes only for those liable for karet, concerning whom “before the eyes” is written, and not for those liable for death by the court, concerning whom “from the eyes” is written.

But the Gemara rejects this distinction:

And what difference does it make

for the learning of a gzera shava whether “from the eyes” or “before the eyes” is written?

But

there is no need to compare the words on the two sides of a gzera shava; it is sufficient to compare the matter on the two sides.

And we find that a gzera shava is learned even when the words are not similar, but only the matter is equivalent, for:

the school of Rabbi Ishmael taught:

It is stated concerning afflictions of houses [Leviticus 14] that if a leprous affliction appears in a house, the koen confines the house for seven days.

And after the first seven days of confinement, the Torah said:

“And the koen shall return”

on the seventh day.

And if he observes, when he returns to the house after the first week has passed, that the affliction has spread [expanded] in the house—the afflicted stones are removed from the wall, the house is scraped, it is plastered anew, and it is confined again for seven additional days. And if the affliction again returns and breaks out in the house, then the entire house is demolished.

But if the affliction did not spread [did not expand] during the first week, the stones are not removed; rather, the house is confined for an additional week.

And at the end of the second week of confinement, the Torah said

“And the koen shall come”!

But the Torah did not explicitly explain what to do if, at the end of the second week, the affliction spreads in the house—

whether the entire house is demolished, as is the law concerning a house in which the affliction spread in the first week and the second week; or perhaps, since in the first week the affliction did not spread in the house but only in the second week, one should treat it as one treats the case in which the affliction spread in the first week: only the afflicted stones are removed, but the entire house is not destroyed; rather, the house is confined again for seven days [the third among the weeks].

And the Sages learned by a gzera shava the law of an affliction that spreads at the end of the second week, concerning which “and the koen shall come” is stated, from the law of an affliction that spreads during the first week, concerning which “and the koen shall return” is stated.

And therefore, the entire house is not demolished if the affliction spread during the second week; rather, only the afflicted stones are removed from it.

And even though the words “and the koen shall return” are not identical to the words “and the koen shall come,” it is possible to learn by a gzera shava, since the matter of the koen’s returning and the koen’s coming is equivalent, for

this is

“returning”

and this is

“coming.”

And therefore, we learn by a gzera shava “coming” from “returning,” that even upon the coming at the end of the second week, one removes, scrapes, and plasters, and does not demolish the house, as with the returning at the end of the first week.

And since we find a gzera shava even when the words are not identical, so too let us learn a gzera shava, “from the eyes” from “before your eyes,” despite there not being complete correspondence between the two words!

And furthermore

we raise a further objection: it is possible

to conclude “from the eyes”

which is written concerning those liable for death

from “before the eyes”

which is similar to it and is written concerning those liable for karet, and those liable for death should receive lashes like those liable for karet.

For you have concluded “before the eyes” from “before your eyes,”

that those liable for karet receive lashes. If so, it is again possible to learn from them concerning those liable for death, and here there is already no great distance between the words, and certainly a gzera shava can be made from them.

Rabbi Shmuel bar Yitzchak accepted from him

this argument of Rabbi Abba bar Memel: that if Rabbi Akiva’s reason is as Rabbi Abbahu said, because of a gzera shava, it should be learned that even those liable for death receive lashes. Therefore, he explained another reason for Rabbi Akiva.

However, Rabbi Akiva’s primary reason is from the principle

“according to his wickedness: for one wickedness you make him liable, but you do not make him liable for two

wickednesses.”

But this principle

speaks only of a wickedness entrusted to the court,

that the court should not make him liable for two wickednesses, namely death and lashes, or death and money, or lashes and money.

But karet is not imposed through the court; rather, it is only a punishment from Heaven. Therefore, the court can make him liable for lashes, since they impose only one wickedness.

And the Gemara brings another view in explaining the dispute between Rabbi Akiva and Rabbi Ishmael:

Rava said:

In truth, Rabbi Ishmael also agrees that a person does not receive lashes and die for one transgression. Therefore, if

they warned him for execution,

death by the court,

everyone agrees that he does not receive lashes and die.

And Rabbi Ishmael agrees that “according to his wickedness” exempts even in the case of death and lashes, and they are considered two wickednesses.

When do they disagree? When they warned him

only

for lashes

and did not warn him for death—

Rabbi Ishmael holds: a prohibition that was given as a warning for

a prohibition for which one is liable for

death by the court,

if it happened that they warned him not for death but only for lashes,

one receives lashes for it.

That is, those liable for death by the court receive lashes, and there are not two wickednesses here.

And Rabbi Akiva holds: a prohibition that was given as a warning for death by the court, one does not receive lashes for it

at all, even when they warned him only for lashes, since the purpose of the prohibition is to warn of the punishment of death, and a warning for lashes is not included in it.

And concerning this he said that those liable for death by the court do not receive lashes, in every case.

And we raise an objection:

and Rabbi Akiva, if so, those liable for karet also

why do they receive lashes? For their warning is

a prohibition given as a warning for karet,

and not for lashes

? And we answer:

Rav Mordekhai said to Rav Ashi: Thus Avimi of Hagronya said in the name of Rava:

Those liable for karet do not require a warning.

The principle that the verse does not punish unless it warns was not stated concerning them.

for with regard to Passover and circumcision, Scripture imposed punishment

for their neglect by karet,

even though it did not issue a warning

about them, for no prohibition was stated concerning them.

And if so, the warning of the prohibition stated alongside karet is free for issuing lashes for their prohibition.

And we challenge this:

But perhaps

the

warning

in prohibitions carrying karet

is needed for a sacrifice,

so that if one performs it unintentionally, he brings a sacrifice for it.

And it is reasonable that the obligation of a sacrifice requires a warning,

for indeed Passover and circumcision

which are the only cases liable to karet

for which there is no warning

of a prohibition, but they are positive commandments,

and

nevertheless for their unintentional violation,

one does not bring a sacrifice.

And it follows that this is the reason that the other cases liable to karet do entail a sacrifice for their unintentional violation: because they were warned about them by a prohibition. And if so, it turns out that the prohibition is not free for lashes.

And we answer:

There

in the case of Passover and circumcision,

this is not the reason

that one does not bring a sacrifice—that they were not warned about them.

For in truth, even for the obligation of a sacrifice, a warning is not required.

Rather,

the reason that one does not bring a sacrifice for neglecting the commandment of Passover or circumcision

is because

the obligation of a sacrifice for a transgression in

the entire Torah is compared to idolatry

[and the comparison is explained in Keritot 3a].

And we learn from the comparison:

Just as with idolatry

it is stated concerning it

“refraining from action,”

and the obligation of karet is for the fact that he refrained and acted,

so too every

case of karet for whose unintentional violation one is liable to bring a sacrifice applies only to a prohibition of

refraining from action.

To exclude these

Passover and circumcision,

for

their commandments are

through affirmative action,

and therefore there is no sacrifice for their unintentional violation. And if so, the prohibition is not needed as a warning for a sacrifice, and therefore one is lashed for it among those liable to karet.

Ravina said:

In truth,

the reason for Rabbi Akiva—