Komentarz do Sanhedryn 8:9

בן סורר ומורה. משיביא שתי שערות – when he brings forth two [pubic] hairs, and he is thirteen years of age and one day old, for before this, the hairs are not a sign, but rather an estimation.

Introduction Chapter eight deals almost exclusively with the wayward and rebellious son mentioned in Deut. 21:18-21. According to this famous passage in the Torah, if parents have a son who does not obey their words they may take him to the elders of the city, pronounce him to be wayward and rebellious and the child will be punished through stoning. Much can be said about this passage and indeed it sounds quite harsh to our modern ears. The Rabbis too seemed to be troubled by the passage and dealt with it in three different ways: 1) there is one strain of thought in Rabbinic sources which says that this law was never fulfilled. In other words, there never was a rebellious and wayward son who was stoned. 2) Although we may not understand the passage it is God’s word and we have no right to question it. 3) The rebellious son is not punished because of his prior actions but rather to prevent him from becoming a worse menace to society.

עד שיקיף זקן התחתון – this “beard” that the Rabbis speak about, the lower one they spoke about that the hair surrounds the membrum virile.

This mishnah deals with the age that a boy must be in order for him to be stoned as a wayward and rebellious son. Section a states that he must have already have reached the beginning stages of puberty but not have reached adulthood. Through a midrash on the opening verse, “If a man has a son” the Rabbis conclude that the passage in Deuteronomy relates to a son and not a daughter, to someone who still acts as the son of his father but not to an adult who is already beyond the strict authority of his parents.

ולא העליון – the beard itself.

Section b states that the minor is exempt, since he is not obligated for commandments. Taken in its totality the mishnah severely limits the age at which a child can be punished as a wayward and rebellious son. We are probably talking about a time period of about six months.

שנאמר בן ולא איש – where the lower “beard” surrounds it, it is a man, and even though from his youth he is called a son, we do not find him to be liable before he brings for two [pubic] hairs for a minor is exempt [from being a stubborn and rebellious son], for he has not come in to the general [category] of the commandments; therefore, they obligate him after this. And this is what the Bible (Deuteronomy 21:18) states: “When a man has a [wayward and stubborn] son…,” a son who is close to his might as an adult male, at the beginning of his manhood, the Bible makes liable, and when his lower “beard” surrounds [it], he is a complete [adult] man.

טרטימר – one-half a Maneh (according to Sanhedrin 70a), and that is meat that is cooked and not cooked (-semi-cooked), in the manner that the robbers eat.

Introduction Mishnah two defines the actions that a son must take in order to be defined as “wayward and rebellious”.

מן היין האיטלקי – which is praiseworthy and prolongs [the meal] after it, and it is one that a person drinks mixed [with water] and not mixed [with water] (-semi-moxed).

This mishnah deals with what actions are required to make a child punishable as a wayward and rebellious son.

רבי יוסי אומר כו' – But the Halakha is not according to Rabbi Yosi.

When does he become liable [to be stoned]? Once he has eaten a tartemar of meat and drunk half a log of wine. Rabbi Yose said: “A maneh of meat and a log of wine. The child must eat a minimum amount of meat and drink a minimum amount of wine. This is proven at the end of the mishnah in sections 2g and 2gi. The verse from Deuteronomy states that the parents must accuse their child of being a glutton or a drunkard. The verses from Deuteronomy do not explain what these two terms mean. In the book of Proverbs it is stated that a glutton refers to one who eats too much meat and a drunkard is one who drinks too much wine. From here the mishnah concludes that the child must have drunk wine and eaten meat in order for him to be wayward and rebellious. The Rabbis disagree with regards to how much wine and meat he drank.

אבל בחבורת מצוה – in a meal [celebrating the performance] of a Mitzvah.

If he ate it in a company [celebrating] a religious act; or at a gathering for the purpose of intercalating the month; if he ate the second tithe in Jerusalem; if he ate the carrion or terefoth (meat that was not slaughtered in a kosher, abominable and creeping things, or untithed produce, or the first tithe from which terumah had not been separated, or unredeemed second tithe, or unredeemed sacred food; if his eating involved a religious act or a transgression; if he ate any food but did not eat meat or drank any drink but did not drink wine, he does not become a ‘stubborn and rebellious son, unless he eats meat and drinks wine, for it is written, “This our son is stubborn and rebellious, he will not obey our voice;] he is a glutton and a drunkard” (Deut. 21:20). Although there is no clear proof for this, there is at least a hint, as it is says, “Do not be among wine drinkers, among gluttonous meat eaters of flesh (Proverbs 23:20). This section lists all sorts of circumstances of eating and drinking that would not cause him to be a wayward and rebellious son. These circumstances can be divided into two types: 1) religious celebrations; 2) consumption of forbidden food. If he ate at a religious celebration he cannot be punished since it is praiseworthy to eat much wine and meat at such affairs. These types of affairs are listed in the first three clauses of the section. Second tithe, mentioned in section b, is consumed only in Jerusalem, and therefore by eating it there he is fulfilling a religious duty. Clauses c and d list several foods that are forbidden to be consumed, whether they are agricultural products who have not had the agricultural offerings separated from them (untithed produce, etc.), meat that was not slaughtered properly (carrion or terefoth) or animals that are forbidden to eat (abominable and creeping things). The Talmud explains that eating or drinking these things do not make one a wayward and rebellious son because the parents state, “He does not listen to our voice”, whereas one who eats these things doesn’t listen even to God’s voice. A wayward and rebellious son is only defiant to his parents but not to his entire religious obligation. Finally the mishnah reminds us that he must have eaten meat and drunk wine in order to become a wayward and rebellious son. Eating other food gluttonously and getting drunk off other beverages will not make a child liable to be punished as a wayward and rebellious son.

אבל עיבור החדש – even though we do not serve for that meal other than bread and pulse/beans/peas, and he offers meat and wine, since he is involved in performing a Mitzvah, he doesn’t continue.

Questions for Further Thought:
• Can you detect a common denominator in the Rabbis understanding of the passage of the wayward and rebellious son? Of the strategies (listed in the introduction to yesterday’s mishnah) that the Rabbis used to deal with this difficult portion of the Torah, which one is employed in this mishnah and in the previous mishnah?

אבל מעשר שני בירושלים – since it is the manner of the Mitzvah, as it is written regarding the Second Tithe (Deuteronomy 14:26): “[And spend the money on anything you want] – cattle, sheep, wine or other intoxicant – [or anything you may desire….],” and he doesn’t continue.

נבילות וטריפות שקצים ורמשים – as it is written (Deuteronomy 21:20): “[This son of ours is disloyal and defiant;] he does not heed us…,” and it is not this, for even does not listen to the voice of God.

דבר שהוא מצוה – of the Rabbis, which includes comforting the bereaved, for if it were from the beginning of the Mishnah, I would think that an association formed for a religious duty, that is, Kohanim who eat their sacred portions or the consumption of the Passover offering.

ודבר שהוא עבירה – to include a community fast, whose prohibition is from the words of the Scribes.

גנב משל אביו ואכל ברשות אביו – even though it is frequent for him to steal from his father, since and he ate in his father’s domain, he is afraid of and agitated by his father, lest he see him and not continue.

Introduction Mishnah three contains further restrictions with regards to the “wayward and rebellious son”.

גנב משל אחרים – it is not frequent for him that he would be able at any time to steal from others, and he doesn’t continue.

If he stole from his father and ate it on his father’s property, or of strangers and ate it on the property of the strangers, or of strangers and ate on his father’s property, he does not become a “wayward and rebellious son,” until he steals from his father and eats on other’s property. Rabbi Yose bar Yehudah said: “Until he steals from his father and mother.” According to our mishnah in order for a son to become a “wayward and rebellious son” he must steal from his father and consume the stolen food on other people’s property. This is because stealing from his father is easy due to his easy access to his father’s property. Eating the stolen food on other people’s property is also easy, since other people will not know that that which he is eating was stolen. Any other combination of stealing and eating will not make him a “wayward and rebellious son”, since one element will not be so easy. In other words, in order to be a “wayward and rebellious son” he must violate the norms of society in a way that will be easy and therefore encourage him to continuously do so. A riskier action is less likely to be repeated and is therefore more lightly punished. According to Rabbi Judah he must steal from both his father and mother. This “egalitarian” approach is probably based on the fact that the verses in Deuteronomy say that both parents bring the child to his punishment, as we will learn in greater depth in the next mishnah. If both parents bring the child to be punished, the crimes must have been directed at both parents as well.

עד שיגנוב משל אביו – since it is frequent for him to steal at all times.

Questions for Further Thought:
• Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which are employed in this mishnah?

ויאכל ברשות אחרים – for he is not agitated there from his father, in a such a manner, and with a certainty, he continues.

ומשל אמו – from the possessions that she has that his father has no control over them, such as if another person gave her possessions as a gift on the condition that her husband has no control over them. But the Halakha is not according to Rabbi Yosi B’Rabbi Yehuda.

ראויה לאביו – equivalent and similar to his father in voice, in appearance and in stature, as it is written (Deuteronomy 21:20): “…he does not heed us,” since it is not written [in the Torah]: “in our voices.” We learn from this, one voice for both. And from the voice, we require that it be equivalent. Appearance and stature also we require equivalence. But the Halakha is not according to Rabbi Yehuda.

Introduction Mishnah four contains further restrictions with regards to the “wayward and rebellious son”.

גידם – his hand is lopped off.

If his father wants [to have him punished], but not his mother; or his father does not want [to have him punished] but his mother does, he is not treated as a ‘wayward a rebellious son’, unless they both desire it. Rabbi Judah said: “If his mother is not fit for his father, he does not become a ‘wayward and rebellious son”. Deut. 21:19 states, “His father and mother shall take hold of him”. On this one verse the Rabbis made a number of restrictions on the applicability of the case of the wayward and rebellious son. First of all, a most basic understanding of this verse states that both the father and mother must agree to the punishment. This is to prevent one parent from punishing the child without the consent of the other parent. Rabbi Judah learns something slightly more complicated from this verse. He states that if the woman was not “fit” for her husband, the child cannot be punished. One explanation for the word “fit” is that the marriage was a forbidden marriage (for instance a Kohen and a divorcee). A different explanation is that the she was not equal to him in height and appearance. This requirement would then make it almost impossible for a child to become a wayward and rebellious son. After all, how many parents look exactly alike.

בננו זה – implying that we cause to see him.

If one of them [his father or his mother] had a hand cut off, or was lame, mute, blind or deaf, he cannot become a “wayward and rebellious son”, because it says “his father and mother shall take hold of him” (Deut. 21:19) not those with a hand cut off; “and bring him out”, not lame parents; “and they shall say”, and not mute parents; “this our son”, and not blind parents; “he will not obey our voice” (Deut. 21:20), and not deaf parents. This section contains a midrash which excludes children of certain types of parents from being able to be punished as wayward and rebellious. The aforementioned verse states that the parents shall “take hold of him”: this means that a parent who has only one hand cannot fulfill the procedure and therefore his/her child cannot be punished as a wayward and rebellious son. The verse states that the parents must “take him out”: therefore parents with physical disabilities (probably unable to walk) cannot fulfill the procedure. They must make a statement: therefore the parents cannot be mute. They must point him out when they say, “This son of ours”: therefore they cannot be blind. Finally, they must both hear each other’s voice so that they know that he disobeys both of them: therefore they cannot be deaf.

חרשים – if he said to them: “I don’t accept [this] from you and they do not hear him. And even though they see afterwards, that he does not fulfill their commands. Nevertheless, the Torah stated (Deuteronomy 21:20): “...he does not heed us,” which implies at the time of voice when they speak, that he doesn’t listen, since they heard him say, “I do not accept [this] from you.

He is warned in the presence of three and beaten. If he transgresses again after this, he is tried by a court of twenty three. He cannot be sentenced to stoning unless the first three are present, because it says, “this our son” (Deut. 21:20), [implying], this one who was whipped in your presence. The Torah states that the wayward and rebellious son had already been disciplined before he is brought to the elders to be stoned. Our mishnah understands this to be a formal beating administered by the court. The idea is to pressure the child to change before it is too late. While disciplining the son by beating him only requires a court of three, executing him requires a court of twenty three, as do all executions. The three in front of whom he was beaten must be present at the subsequent trial and execution. This is learned from the parents’ statement, “This is our son”. The word “this” implies that this same son was already beaten in front of the same judges.

ומתרין בו בפני שלשה– This is how this should be understood: And they warn him before two [witnesses] that he should not become accustomed, and if he did not listen, they would flog him with a Jewish court of three, as is taught [in the Mishnah] of the first chapter [of Sanhedrin] (Mishnah 2): “Flogging – through a court of three. That (Deuteronomy 21:18): “even after they discipline him,” which is stated in the case of the wayward and defiant son [refers to] flogging. It is written here (Deuteronomy 21:18): “A wayward and defiant son” and it is written there (Deuteronomy 25:2): “If the guilty one is to be flogged…”

If he [the rebellious son] fled before his trial was completed, and then his pubic hair grew in fully, he is free. But if he fled after his trial was completed, and then his pubic hair grew in fully, he remains liable. We learned in the first mishnah of the chapter that a child cannot be punished as a wayward and rebellious son has reached full puberty. Our mishnah teaches that if the accused child runs away before the trial is over, and by the time he returns he has reached full puberty, he can no longer be punished. However, if the trial is already over and the son was convicted, he can be punished even if he runs away and then achieves full puberty before being brought back. Since the trial is already over and we are only waiting for the punishment to be meted out, it does not matter that he is now too old to be tried as a wayward and rebellious son.

זה הוא שלקה בפניכם – and even though this is required for excluding blind person, if there is for this thing alone that he comes, for this one that he is flogged in their presence, [the Bible] should have written, “he is our son.” What is “this son of ours” (Deuteronomy 21:20)? You learn two things from it:

Questions for Further Thought:
• Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which is employed in this mishnah?

ןאח"כ הקיף זקן התחתון פטור – since that he had ac ted now, he is not guilty of a capital crime.

ואם משנגמר דינו ברכח – he is like a man who is to be put to death, and is guilty, even after a few years.

נדון על שם סופו – at the end when he uses up the money of his father and requests what he is accustomed to and he cannot find and sits at the intersections and robs people. The Torah stated that he should die innocent and should not die guilty.

Introduction Mishnah five discusses an important Rabbinic conception of the punishment of the wayward and rebellious son, namely that he is not punished on account of the sins that he has already committed but on account of the sins that he will commit in the future.

הנאה להן – that they do not add to sin.

A “wayward and rebellious son” is judged on account of his outcome: let him die innocent and let him not die guilty. One of the difficulties in comprehending the severe punishment meted out to the wayward and rebellious son is that it does not seem to fit the crime. The Talmud itself asks, just because he ate too much meat and drank too much wine should this child be stoned. Our mishnah provides one potential answer: the son is not punished for that which he has already done but for that which he will do in the future. The punishment prevents a minor criminal from becoming an even worse criminal. The mishnah teaches that executing the potential criminal is not only good for society, but is a benefit to the criminal as well, for he will die innocent and not guilty. Behind this idea lies a concept of reward and punishment in the world to come. Since the wayward and rebellious son is punished before he can be guilty of a serious crime, he will not receive further punishment in the world to come.

והנאה לעולם – the whole world became quiet.

For the death of the wicked benefits themselves and the world; [and the death] of the righteous, injures themselves and the world d. Wine and sleep of the wicked benefit themselves and the world; of the righteous, injure themselves and the world The scattering of the wicked benefits themselves and the world; of the righteous, injures themselves and the world. The assembling of the wicked injures themselves and the world; of the righteous, benefits themselves and the world. The tranquillity of the wicked injures themselves and the world; of the righteous, benefits themselves and the world. The mishnah then continues with a discussion of things that are good for the wicked and for the whole world, and bad for the righteous and for the world. Death is good for the wicked, for they will die before they commit more crimes, and for obvious reasons it is good for the world. Death of the righteous prevents them from performing more good deeds and, again for obvious reasons, it is bad for the world. Wine and sleep will prevent the wicked from committing more sins and is therefore good for them and for the world, but bad for the righteous for it prevents them from performing good deeds. The scattering of the wicked prevents them collaboration in sinning whereas the scattering of the righteous prevents their collaboration in good deeds. The ingathering of the wicked allows them to commit more and greater sins, whereas the ingathering of the righteous allows them to perform more good deeds. Finally, tranquility affords the wicked the freedom to commit more crime, whereas it provides the righteous the freedom to do more good.

רע להן – that they would add merits.

ורע לעולם – that they would defend their generation and reprove the generation

יין ושינה לרשעים – all that time that they drink and sleep, they don’t sin and they don’t do evil things to other people.

לצדיקים רע להן – that they do not engage in Torah [study].

ורע לעולם – when they are idle, retribution comes to the world.

פיזור – when they are separated one from the other and they are unable to advise and help one another.

הבא במחתרת – The Torah stated (Exodus 22:1, Sanhedrin 72a) that he should be killed (i.e., beaten to death).

Introduction Mishnah six discusses the permission that one has to kill a thief who has tunneled into one’s home.

נדון על שם סופו – that his end is to kill the house owner if he should against him to save what is his.,

[The thief] who burrows his way in [to someone’s home] is judged on account of his outcome. Exodus 22:1-2 teaches that if a householder kills a thief who has burrowed his way into his house, the householder is not guilty of murder. Although execution is not the usual punishment for a thief, since the householder was taken by surprise and did not know the intention of the illegal intruder, he is not held liable for having killed him. Our mishnah understands that this preemptive killing of the intruder is to prevent him from committing more sins, specifically the murder of the householder.

אם יש לו דמים חייב – such as when the father comes in the breach over his son, and it is known that the father has compassion on his son. Therefore, the son is not permitted to kill him, and if the father broke the barrel, he is obligated to pay.

If he burrowed his way in and broke a jug, should there be blood-guiltiness for him, he must pay [for the jug], but if there is no blood-guiltiness for him, he is not liable. The Torah also teaches that if the thief burrowed in during the day the householder is not allowed to kill him (unless it is in self-defense). If the householder does kill him he will be accounted guilty. Our mishnah teaches that if the thief broke a jug while burrowing he is liable for damages only in a case where the householder was not allowed to kill him. If, however, the householder was allowed to kill him, i.e. at night, since the thief can be executed he is not liable for monetary damages. This is based on a common principle in Jewish law that if on account of one act one becomes liable for two punishments, he is punished by the greater of the two punishments, in this case death (see Bava Kamma 3:10).

אין לו דמים פטור – and all other peole who go into the breach, if the house owner did not kill him, he has no bloodguilt.. And if he broker the barrel, he is exempt from payment, since he was liable for his life, he is exempt from payment, for a person does not both die and make payment. (Note: the punishment that is made is the more severe: (קם ליה מדרבה מיניה).

Questions for Further Thought:
• Why do the Rabbis understand the killing of the “tunneling thief” as preventing him from committing worse crimes, as opposed to self-defense?

ואלו שמצילין אותן בנפשן – that we save them from [committing] sin. בנפשן – for permission is granted to every person to kill them to save them from [committing] sin.

The following can be saved [from sinning] even at the cost of their lives: he who pursues after his neighbor to slay him, [or] after a male [to rape him], [or] after a betrothed maiden [to rape her].
But he who pursues after an animal [to have relations with it], or one who would violate the Sabbath, or commit idolatry, must not be saved [from sinning] at the cost of his life.
The final mishnah of chapter eight continues to discuss this concept of “preventive punishment” and its limited applicability in Jewish law.
The principle of preventive punishment is a dangerous principle for even a court cannot tell with certainty if someone will surely commit a crime in the future. The Rabbis recognized the danger of this principle and therefore limited its applicability. Section one teaches that one may be killed preemptively only if he was about to commit a capital crime that would violate another person. Section two lists cases in which a person may be killed preemptively, even though he is about to commit a capital crime. Since none of these sins are crimes against other people, the only way the criminal can be executed for having committed one of them is by a proper trial done in front of a court of twenty three.

הרודף אחר חבירו להרגו – as it is written regarding the engaged maiden (Deuteronomy 22:26): “[But you shall do nothing to the girl. The girl did not incur the death penalty,] for this case is like that of a man attacking another and murdering him.” An analogy is made [between] the killer and the betrothed maiden. Just as the betrothed maiden is given/intended to have her purity saved by killing the rapists, so too in the case of a killer the persecuted person is given to be saved by killing the killers. And the betrothed maiden is derived from Scripture as it is written (Deuteronomy 22:27): “[He came upon her in the open;] though the engaged girl cried for help, there was no one to save her,” behold there is someone to save her, one is obligated to save her in any manner that one can save her.

ואחד הזכור – we derive it as it says in Scripture (Deuteronomy 22:26): “But you shall do nothing to the girl.” The word "נער" /”girl” is written missing a [letter] "ה"/”hei.” This is the male, and the same law applies for all though liable for extirpation and death by the Jewish court for forbidden sexual relations that we save them, as it is written (Deuteronomy 22:26): “[The girl did not] incur the death penalty…” [The word] "חטא"/”sin”/penalty – these are the ones liable for extirpation; [the word] "מות"/”death,” – these are ones liable to death by the Jewish court.

אבל הרודף אחר הבהמה – even though it is similar to incest/consanguinity.

והמחלל שבת והעובד עבודה זרה – even though that both of them deny the essence [of God].

אין מצילין אותם בנפשן – And all the more so, the rest of those who are liable to extirpation and death at the hands of the Jewish court which are not incest/consanguinity, which we do not save them (from sin) by killing them, and it is not permitted to kill them at all until they transgress a sin with witnesses [testifying] and would be liable to death by the Jewish court.