Makkot 4b (ד:) — the Talmud in English

Gemara:

And we raised this question:

Granted, according to the Rabbis,

who stated in the first clause that the witnesses do not receive both lashes and monetary payment, they have a source for this. Since

“according to the measure of his wickedness”

is written,

and we learn from here that only

because of one transgression may you hold him liable, but you may not hold him liable because of two transgressions.

Therefore, the witnesses are not punished with two punishments.

But Rabbi Meir,

who stated that he receives lashes and pays—

what is his reason?

For although monetary liability and liability for lashes are derived from two verses, we should nevertheless exempt him from one of the punishments, because “according to the measure of his wickedness” is written!

And we answer:

Ulla said: He derived,

Rabbi Meir learned that one is liable for both punishments—lashes and payment—at the same time,

from the case of one who defames his wife.

For if the husband of a virgin said to her father, after marrying her: “I did not find signs of virginity in your daughter, and she committed adultery with another man while she was betrothed to me,” and it was discovered that he had falsely slandered her, it is stated concerning him: “They shall discipline him,” which refers to lashes, and also: “They shall fine him one hundred silver coins,” which he must give to her father.

Thus, Scripture punished him with both punishments together, lashes and payment, and from this we learn:

Just as,

just as the

one who defames his wife receives lashes and pays

so too every

person liable for two punishments—monetary payment and lashes—

receives lashes and pays!

The exemption of “according to the measure of his wickedness” was stated concerning only these two punishments—capital punishment and lashes—not payment and lashes; one does not receive lashes and die at the same time.

And if you would say that it is impossible to derive the rule from one who defames his wife for other cases, because—

What is true of one who defames his wife,

which contains a novel element,

namely that

it is

a fine,

for the Torah fined him, requiring him to pay money to the father of the young woman even though he caused him no monetary loss.

Since this payment was introduced as a novel element here, therefore even where he becomes liable for lashes along with it, he receives lashes and pays. But it is impossible to derive from this novel law concerning monetary payment that in other monetary cases as well one receives lashes and pays. Once again, we have no source for Rabbi Meir’s reason that “according to the measure of his wickedness” does not exempt a person from both monetary payment and lashes.

It may be said that

he held

Rabbi Meir

like Rabbi Akiva, who said: Conspiring witnesses

who pay money by virtue of the verse “as he schemed”—

it is a fine,

not payment for monetary damage, since they have not yet actually caused him monetary loss through their testimony; they merely schemed to cause him loss.

Since the payment of conspiring witnesses is a fine, it can be derived from the fine imposed on one who defames his wife, who pays and receives lashes. For the case of one who defames his wife contains no greater novelty than that of conspiring witnesses, since both pay a fine rather than ordinary monetary compensation.

There are those who teach Ulla’s statement

that Ulla’s statement is cited as a derivation concerning another matter,

as follows—

As it was taught:

Concerning the law of eating the Paschal offering, it is stated [Exodus 12]:

“You shall not leave any of it until morning

and what remains of it until morning you shall burn in fire”—

The verse comes to establish a positive mitzva

to burn what remains

after a prohibition,

the prohibition against leaving any of the sacrificial meat—

to say that one does not receive lashes for it!

That is, the prohibition against leaving sacrificial meat is a prohibition followed by a positive mitzva: the Torah commands that the meat remaining in the morning be burned, and by doing so one repairs the violation of the prohibition and obtains atonement for it.

These are the words of Rabbi Yehuda,

who holds that one does not receive lashes for a prohibition that is rectified by a positive mitzva.

Rabbi Yaakov says: This is not the reason!

The exemption from lashes of one who leaves sacrificial meat is not derived from this verse. It is not because Scripture transformed the prohibition against leaving the meat into a positive mitzva of burning it that one does not receive lashes.

Rather,

the exemption of one who leaves the meat from lashes is for another reason:

Because it is

the prohibition against leaving sacrificial meat

a prohibition whose violation involves no action,

since the transgression is committed by failing to eat the sacrificial meat; he does not actively leave the meat.

And every prohibition whose violation involves no action—

one does not receive lashes for it!

The Gemara analyzes the words of the beraita:

By inference,

from these words of Rabbi Yaakov you learn

that Rabbi Yehuda,

who exempted one who leaves the meat from lashes only because the prohibition is followed by a positive mitzva,

holds that one receives lashes for a prohibition whose violation involves no action.

Therefore, he did not exempt him for Rabbi Yaakov’s reason—that leaving the meat involves a prohibition whose violation entails no action.

And concerning this we ask:

From where does he derive

that Rabbi Yehuda holds that one receives lashes for a prohibition whose violation involves no action?

Ulla said: He derived,

Rabbi Yehuda learned this

from one who defames his wife—

Just as one who defames his wife,

who violates a prohibition whose violation involves no action—he does not perform an act with his hands, but violates the prohibition against defamation through speech alone, and speech is not considered an action—nevertheless

receives lashes for it—

so too, for every prohibition whose violation involves no action, one receives lashes!

And we refute Ulla:

What is true of one who defames his wife, namely that

it contains a stringency: he

receives lashes and pays,

unlike other prohibitions, for which one does not receive lashes and pay. The Torah introduced this rule only here.

Since one who defames his wife is more stringent, we cannot derive from him regarding other, less stringent prohibitions, even concerning the rule that one receives lashes for a prohibition whose violation involves no action.

Therefore, the Gemara brings another source:

Rather, Reish Lakish said:

Rabbi Yehuda, who stated that one receives lashes for a prohibition whose violation involves no action,

derived,

he learned this

from conspiring witnesses—

Just as conspiring witnesses,

whose liability is for violating

a prohibition whose violation involves no action,

for when they testify that a person is the son of a divorced woman or the son of a woman who underwent ḥalitza, they are liable only because of the prohibition “You shall not bear false witness against your fellow,” for their speech, which is not considered an action performed by hand, and nevertheless

they receive lashes for it.

So too, for every prohibition whose violation involves no action, one receives lashes.

If you would say:

What is true of conspiring witnesses is that they do not require a warning

[the reason is explained in tractate Ketubot 33a].

Therefore, it is impossible to derive from them concerning other prohibitions that one receives lashes for a prohibition whose violation involves no action, since conspiring witnesses are unlike the other people punished by the Torah, who are not punished without a warning preceding their transgression.

Your answer is:

One who defames his wife proves it,

for he receives lashes for a prohibition whose violation involves no action, even though he does require a warning.

Therefore, we derive the rule from both of them together, by means of the principle of

“and the conclusion returns”.

The aspect of this case,

the stringency of one who defames his wife, who receives lashes and pays,

is not like the aspect of that case,

the case of conspiring witnesses. One who defames his wife requires a warning, and nevertheless receives lashes even though his transgression involves no action.

The aspect of that case,

conspiring witnesses, is not as stringent

as the aspect of this case,

one who defames his wife. For conspiring witnesses do not receive lashes and pay, and nevertheless they receive lashes without performing an action.

Necessarily, these stringencies are not what cause lashes to be imposed; rather, we must identify a common element present in both cases that causes lashes to be imposed.

The common aspect between them

is that both involve

a prohibition whose violation involves no action, for which one receives lashes.

So too, for every prohibition whose violation involves no action—

one receives lashes for it!

If you would say:

What is true of the common aspect between them is that

their payments are

a fine,

and they are therefore more stringent than all other cases. Consequently, even from the liability for lashes in these cases it is impossible to derive the rule for other, less stringent prohibitions—

Your answer is:

That is not difficult.

For

Rabbi Yehuda—

does not hold like Rabbi Akiva

with regard to conspiring witnesses, who says that their payments are a fine; rather, he holds that their payments have the status of ordinary monetary compensation.

Therefore, it is possible to derive from the common aspect of conspiring witnesses and one who defames his wife that lashes are imposed for every prohibition whose violation involves no action.

Rather,

if there is room to raise a difficulty, this is what you should ask:

What is true of the common aspect between them is that they each contain a particular stringency,

for each contains a special stringency absent from the other cases liable for lashes. For we do not find that a person is punished without a warning, as we find with conspiring witnesses, nor do we find that one receives lashes in a case where he pays, as we find with one who defames his wife.

If so, how can we derive from them that lashes are imposed in other prohibitions whose violation involves no action!?

[Indeed, on the basis of this refutation, Rabbi Yaakov and the other Sages hold that one does not receive lashes for a prohibition whose violation involves no action.]

The answer to this question is:

And Rabbi Yehuda,

who derives the rule from both cases together, to impose lashes for every prohibition whose violation involves no action, does not accept this refutation, since, according to Rabbi Yehuda,

“a particular stringency”—

is not a valid refutation!

For Rabbi Yehuda holds that since their stringencies are not the same, it is evident that their stringencies are not what cause lashes to be imposed despite the absence of an action. Each case lacks the stringency present in the other, and nevertheless lashes are imposed.

The Gemara now returns to explain the latter clause of our Mishna, the view of the Rabbis, who disagree with Rabbi Meir, who holds that conspiring witnesses receive two sets of lashes—because of “You shall not bear false witness” and because of “as he schemed”:

And the Rabbis,

who stated in the latter clause that witnesses who schemed to have a person receive lashes receive only forty lashes because of “as he schemed,” and do not receive lashes for “You shall not bear false witness”—

This

verse of

“You shall not bear false witness against your fellow”—

what do they expound from it?

Why do they not impose lashes also by virtue of the prohibition against false testimony?

And we answer: According to their view,

that

verse

is needed

because it is necessary

as a warning for

all

conspiring witnesses.

For without this warning they would not be liable even by virtue of “as he schemed,” since there is no punishment without a warning.

Their warning is derived from the prohibition “You shall not bear false witness.” That prohibition itself was not given so that one would receive lashes for it, but to warn the conspirators about their punishment, “as he schemed.” Therefore, they cannot be held liable for an additional punishment of lashes beyond the punishment of “as he schemed.”

But

if

the other one,

Rabbi Meir, who holds that conspiring witnesses receive lashes separately for the prohibition “You shall not bear false witness,”

the warning for conspiring witnesses

who are liable by virtue of “as he schemed”—

from where does he derive it?

The prohibition “You shall not bear false witness” is needed as a warning for the lashes they receive for that prohibition; from where, then, does he derive a warning for the punishment of “as he schemed”?

Rabbi Yirmeya said: He derives it

Rabbi Meir derives the warning for “as he schemed”

from

the continuation of the verse: “You shall do to him as he schemed”—as it is stated:

“And those who remain shall hear and fear, and shall not continue to commit such an act.”

And we ask: If so,

according to the Rabbis,

why do they derive the warning for the punishment of “as he schemed” from “You shall not bear false witness against your fellow”? The warning “that they shall not continue to commit such an act” is stated in the very passage concerning conspiring witnesses!

And we answer:

That

verse

is needed, according to the Rabbis—