Makkot 13b (יג:) — the Talmud in English

Are included among those liable for forty lashes; this is the statement of Rabbi Yishmael.

Rabbi Akiva says:

Only

those liable for karet [

when warned concerning lashes]

are included among those liable for forty lashes,

because they can be exempted from the punishment of karet,

for

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, and therefore they may be liable for lashes, since it is not certain that they will receive the punishment of karet. Thus, the exemption of “because of one wickedness you hold him liable, but you do not hold him liable because of two wickednesses” does not apply here.

But

those liable for execution by a court,

even if they were warned concerning lashes,

are not included among those liable for forty lashes, for

even

if they repent—

the earthly court does not forgive them;

rather, it executes them!

Since the court is obligated to execute them even when they have repented, it follows that if we were to give them lashes and then execute them, they would become liable for two punishments, whereas the Torah imposes only one punishment for a single act, and not two punishments.

Whereas

Rabbi Yitzḥak says:

All

those liable for karet

for forbidden sexual relations

were included

under one

category,

as it is stated concerning all of them together at the end of the passage of forbidden sexual relations [Leviticus 18]: “For anyone who shall perform any of these abominations, the souls that perform them shall be cut off.”

And why was karet for his sister singled out?

Why did Scripture remove the punishment of karet for intercourse with one’s sister from the general category of forbidden sexual relations, writing her punishment of karet separately, in the portion of Kedoshim?

To teach a general principle concerning all those liable for karet:

To judge him,

a person who violates a prohibition carrying karet, only with

a

punishment of

karet, and not with

a punishment of

lashes—

That is, to say that even if those liable for karet were warned concerning lashes, they are not given lashes; rather, they are liable only for the punishment of karet.

This concludes the wording of the beraita.

It follows that our Mishna is in accordance with Rabbi Akiva, who maintains that only those liable for karet receive lashes, but not those liable for execution by a court.

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

What is the reason of Rabbi Yishmael,

who maintains that both those liable for karet and those liable for execution by a court receive lashes?

It is 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

immediately after this verse: “

The Lord will make your plagues extraordinary”! The term “

extraordinary”

that appears in the verse “The Lord will make your plagues extraordinary”—

in the verse “the Lord will inflict extraordinary plagues upon you”—

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 cast him down and strike him before him”—

you must say: “

Extraordinary”

that—

refers to lashes!

And it is written

concerning this extraordinary punishment: “

If you do not observe to perform all

the words of this Torah”!

And from here we learn that all those liable for execution, whether by karet or by execution by a court, are also liable for lashes.

The Gemara asks:

If so,

that the “extraordinary” stated in the verse “If you do not observe” refers to lashes for anyone who violates any matter of the Torah—

those liable for failing to fulfill a positive commandment also

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

The Gemara answers:

“If you do not observe” is written

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

and in accordance with what Rabbi Avin said in the name of Rabbi Ilai: Rabbi Avin said in the name of Rabbi Ilai: Everywhere

in the Torah

where it is stated

that there is a prohibition in the language of

“take heed,”

“lest,”

or

“do not,”

it is only a negative commandment!

The Gemara nevertheless raises another difficulty:

If so,

that this verse says that lashes are administered for every matter of the Torah prohibited by a negative commandment—

a negative commandment that does not involve an action—

also,

should one receive lashes for it [such as the prohibition against having leavened bread seen or found in one’s possession]?

And we answer: “If you do not observe

to perform,”

is written,

indicating a negative commandment that involves an action.

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 mitzva of returning stolen property, which rectifies the prohibition against robbery]—

also,

should one receive lashes for it? Why, then, do we say in several places that lashes are not administered for a negative commandment remedied by a positive commandment?

The Gemara answers: Since the Torah juxtaposed the passage concerning lashes with the prohibition “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

analogous to the prohibition against muzzling,

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

The Gemara continues and says:

Now that you have arrived at this,

now that we have reached the conclusion that lashes are imposed only for a negative-commandment prohibition resembling the prohibition against muzzling an ox while it is threshing—

all of them also,

both those liable for failing to fulfill a positive commandment and those liable for a negative commandment that does not involve an action, concerning which we asked above that they should receive lashes based on the verse “The Lord will make your plagues extraordinary,” can likewise be answered according to this principle: Since they are not

analogous to the prohibition against muzzling,

since they are not negative commandments involving an action like the prohibition against muzzling, lashes are not administered for them.

And since according to Rabbi Yishmael we learn from “The Lord will make your plagues extraordinary” that even those liable for execution 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 to karet are lashed, whereas those liable to court-imposed death are not lashed? And why should those liable to court-imposed death not be punished both by death and by lashes?

And the Gemara explains: Because it is written in the passage concerning lashes in Parashat Shoftim, “And he shall strike him [the judge

according to his wickedness].”

The verse excludes the words “according to his wickedness,” to teach that only

for one wickedness [

punishment]

may you make him liable

for one act,

but you may not make him liable for two wickednesses,

two punishments for one act!

Therefore, those liable to court-imposed death are not lashed, because only one punishment is administered for a single act.

And we challenge this:

But Rabbi Yishmael,

how does he hold that those liable to death are both lashed and put to death, without taking account of the agreed-upon exposition of “according to his wickedness,” that two punishments are not imposed for a single act?

And we explain:

That statement applies

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

death and monetary payment,

or lashes and monetary payment.

But death and lashes

are considered “one wickedness,” because lashes, which weaken a person’s body, join with the punishment of death—and

it is an extended death

.

And we challenge this:

But according to Rabbi Akiva,

whose reason is that death and lashes are considered two wickednesses, and a person is not made liable for “two wickednesses” for a single act, as the verse says, “according to his wickedness”—

If so,

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

those liable to karet likewise

should not be lashed, since karet and lashes are two wickednesses.

For according to Rabbi Akiva, two punishments are not administered; therefore, according to his view, those liable to court-imposed death are not lashed.

If so, those liable to karet should likewise not be punished with two punishments and should not be lashed, since even if they are lashed, they will still receive the punishment of karet from Heaven.

What will you say—perhaps you will distinguish between them, just as Rabbi Akiva gave a reason for distinguishing between karet and death:

“

If they repent,”

since those liable to karet can free themselves from the punishment of karet by repenting, their being lashed does not constitute “two wickednesses”—

The difficulty nevertheless remains:

Now, in any event,

at this present time, when they are being lashed, they still

have not done so,

they have not repented. Thus, they receive the punishment of lashes at a time when an additional liability for the punishment of karet rests upon them, and lashing them at this time constitutes the administration of “two wickednesses”! And we answer:

Rabbi Abahu said: The Torah explicitly included those liable to karet among those liable to lashes!

For it is derived

that the verse teaches through a gezerah shavah

“before the eyes” -

—

from “before your eyes,”

from those liable to lashes to those liable to karet, that those liable to karet are also lashed.

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

before the eyes

of their people.”

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

before your eyes.”]

The verse teaches that those liable to karet are lashed along with the karet.

Rabbi Abba bar Memel challenged

this answer of Rabbi Abahu:

Rabbi Abba bar Memel:

If so,

according to you, since those liable to karet are lashed because it is written concerning them, “and they shall be cut off before the eyes of their people,” and a gezerah shavah derives “before the eyes” from “before your eyes” concerning those liable to lashes, so that those liable to karet are also lashed—

those liable to court-imposed death should likewise be derived,

that those liable to court-imposed death should also be punished by lashes.

For it is also stated concerning idol worshippers, who are liable to court-imposed death [Numbers 15], “If it is hidden from the eyes of the congregation.”

If so, we should derive by a gezerah shavah

“from the eyes”

stated concerning idol worshippers, who are liable to court-imposed death,

from

those liable to lashes, concerning whom it is stated, “And your brother shall be degraded

before your eyes,”

and those liable to court-imposed death should also be lashed!

The Gemara answers:

We derive

by a gezerah shavah only the case of those liable to karet, concerning whom it is stated, “And they shall be cut off

before the eyes

of their people,”

from

those liable to lashes, concerning whom it is stated, “And your brother shall be degraded

before your eyes.”

For the gezerah shavah is “before the eyes—from before the eyes,” and the addition of the final kaf in the word “before your eyes” is not significant enough to prevent deriving the gezerah shavah “before the eyes—from before the eyes.”

But

nevertheless,

we do not derive

by a gezerah shavah the case of those liable to court-imposed death, concerning whom it is stated,

“from the eyes”

of the congregation,

from

those liable to 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.”

Therefore, the liability for lashes is derived only for those liable to karet, concerning whom “before the eyes” is written, and not for those liable to court-imposed death, concerning whom “from the eyes” is written.

But the Gemara rejects this distinction:

And what difference does it make

for the gezerah shavah whether “from the eyes” or “before the eyes” is written?

For

there is no need for the words on both sides of a gezerah shavah to be identical; it is sufficient that the subject on both sides be equivalent.

And we find that a gezerah shavah is derived even when the words are not similar and only the subject is equivalent, as:

The tanna of the school of Rabbi Yishmael taught:

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

At the conclusion of the first seven days of quarantine, the Torah states:

“And the koen shall return”

on the seventh day.

If, upon returning to the house at the end of the first week, he sees that the affliction has spread [expanded] in the house, the stones affected by the affliction are removed from the wall, the house is scraped, replastered, and quarantined again for an additional seven days. If the affliction again returns and spreads in the house, 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 quarantined for an additional week.

At the end of the second week of quarantine, the Torah states:

“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 for a house in which the affliction spread during both the first and second weeks; or perhaps, since the affliction did not spread in the house during the first week and spread only during the second week, it should be treated as in the case where the affliction spread during the first week: only the affected stones are removed, but the entire house is not demolished; rather, the house is quarantined again for seven days [the third week].

The Sages derived by a gezerah shavah the law of an affliction that spreads at the end of the second week, concerning which it is stated, “And the koen shall come,” from the law of an affliction that spreads during the first week, concerning which it is stated, “And the koen shall return.”

Therefore, the entire house is not demolished if the affliction spreads during the second week; only the affected stones are removed from it.

And although the words “And the koen shall return” are not identical to the words “And the koen shall come,” it is possible to derive a gezerah shavah, since the subject of the koen’s returning and the koen’s coming is equivalent, for

this is

“returning,”

and this is

“coming.”

Therefore, we derive “coming” from “returning”: even when he comes at the end of the second week, the affected stones are removed, the house is scraped and replastered, and it is not demolished, as in the case of his returning at the end of the first week.

And since we find that a gezerah shavah is derived even when the words are not identical, here too we should derive “from the eyes” from “before your eyes,” despite the lack of complete correspondence between the two words!

Furthermore,

we challenge: it is possible

to derive “from the eyes”

which is written concerning those liable to court-imposed death

from “before the eyes”

which is similarly written concerning those liable to karet, and those liable to court-imposed death should be lashed like those liable to karet.

For “before the eyes” is already derived from “before your eyes,”

so that those liable to karet are lashed. If so, it is again possible to derive from them the law applying to those liable to court-imposed death; here the distance between the words is no longer great, and certainly a gezerah shavah can be derived from them.

Rabbi Shmuel bar Yitzḥak accepted

this argument of Rabbi Abba bar Memel: if Rabbi Akiva’s reason is, as Rabbi Abahu said, because of a gezerah shavah, it should follow that those liable to court-imposed death are also lashed. Therefore, he explained a different reason for Rabbi Akiva.

In fact, the primary reason for Rabbi Akiva is 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 applies only to

a wickedness entrusted to the court, which is what the verse is discussing: the court may not make him liable for two wickednesses—that is, death and lashes, death and monetary payment, or lashes and monetary payment.

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 by the court; it is only a punishment from Heaven. Therefore, the court can make him liable to lashes, since it is imposing only one wickedness.

The Gemara presents another explanation of the dispute between Rabbi Akiva and Rabbi Yishmael:

Rava said:

In fact, Rabbi Yishmael also agrees that a person is not both lashed and put to death for a single transgression. Therefore, if

they warned him that he would be put to death,

by court-imposed death,

everyone agrees that he is not both lashed and put to death.

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

The dispute is when they warned him

only

for lashes

and did not warn him that he would be put to death—

Rabbi Yishmael holds: A prohibition that was given as a warning

of an offense for which one is liable to

court-imposed death,

if it happened that he was warned only about lashes and not about death,

he is lashed for it.

That is, those liable to court-imposed death are lashed, and there are not two wickednesses here.

And Rabbi Akiva holds: One is not lashed at all for a prohibition that was given as a warning of court-imposed death,

even when he was warned only about lashes, since the purpose of the prohibition is to warn of the punishment of death, and it does not include a warning concerning lashes.

And regarding this he said that those liable to court-imposed death are not lashed under any circumstances.

And we challenge:

But Rabbi Akiva—if so, those liable to karet likewise

why are they lashed? Their warning is

a prohibition given as a warning of karet,

and not as a warning of lashes!

And we answer:

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

Those liable to karet do not require a warning.

The principle that the Torah does not punish unless it first warns does not apply to them.

for with regard to Pesaḥ and circumcision, the verse imposed karet

for neglecting them,

even though it did not issue a warning

concerning them, as no prohibition was stated with regard to them.

If so, the warning of the prohibition stated in connection with a karet liability is available to establish lashes for violating the prohibition.

And we raise an objection:

Perhaps

the

warning

for prohibitions carrying karet

is necessary for a sacrifice,

so that if one performs the transgression inadvertently, he brings a sacrifice for it.

It stands to reason that the obligation to bring a sacrifice requires a warning,

for Pesaḥ and circumcision

are the only cases carrying a liability of karet

in which there is no warning

of a prohibition, as they are positive mitzvot,

and

nevertheless, for their inadvertent neglect,

one does not bring a sacrifice.

It follows that this is the reason that the other cases carrying a liability of karet do entail an obligation to bring a sacrifice for their inadvertent violation: they were warned against them by means of a prohibition. If so, the prohibition is not available for lashes.

And we answer:

There,

with regard to Pesaḥ and circumcision,

that is not the reason

that one does not bring a sacrifice: namely, that no warning was issued concerning them.

For in truth, even the obligation to bring a sacrifice does not require a warning.

Rather,

the reason that one does not bring a sacrifice for neglecting the mitzva of Pesaḥ or circumcision

is because

the obligation to bring a sacrifice for a transgression in

the entire Torah is juxtaposed to idolatry

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

And we derive from this juxtaposition:

Just as with idolatry,

it is stated

that one must remain passive rather than act,

and the liability of karet is for having refrained from acting,

so too, every

case of karet for which one is liable to bring a sacrifice for its inadvertent violation applies only to a prohibition of

remaining passive rather than acting.

To exclude these,

Pesaḥ and circumcision,

as

their mitzva is

to act rather than remain passive,

and therefore there is no sacrifice for their inadvertent neglect. If so, the prohibition is not needed as a warning for a sacrifice, and consequently one receives lashes for it in cases carrying a liability of karet.

Ravina said:

In truth,

the reasoning of Rabbi Akiva—