Talmud - Makkot 13b מכות י״ג ב׳

are included in the category of those liable to receive forty lashes for violating a Torah prohibition. This is the statement of Rabbi Yishmael.

Rabbi Akiva says: Those liable to receive karet are included in the category of those liable to receive forty lashes, because if they repented, the heavenly court absolves them of the punishment of karet. Therefore, karet does not absolve them of the punishment of lashes. Those liable to be executed with court-imposed death penalties are not included in the category of those liable to receive forty lashes, as even if they repented, the earthly court does not absolve them of execution; and one is not punished by the court twice for performing the same transgression.

Rabbi Yitzḥak says that like those liable to be executed, those liable to receive karet are not flogged. Those liable to receive karet for incest were included in the generalization: “For anyone who performs any of these abominations, the souls who do so shall be excised [venikhretu] from among their people” (Leviticus 18:29). Included in that category is one who engages in intercourse with his sister. And why then did the halakha of karet with regard to intercourse with one’s sister emerge from the generalization and receive specific mention: “And a man who takes his sister…and they shall be excised before the eyes of the children of their people” (Leviticus 20:17)? It is in order to sentence one who engages in intercourse with his sister with karet, and not with lashes. This is the source for the opinion that those liable to receive karet are not flogged.

The Gemara elaborates: What is the reason for the opinion of Rabbi Yishmael, who holds that even those liable to be executed are liable to receive lashes? It is as it is written: “If you will not observe to perform all the matters of this Torah” (Deuteronomy 28:58), and it is written immediately thereafter, with regard to the punishment of one who violates that verse: “And God will make your plagues wondrous [vehifla]” (Deuteronomy 28:59). The Sages interpreted that verse: This term, hafla’a, I do not know what its meaning is. When the verse states concerning those liable to receive lashes: “And the judge shall cause him to lie down [vehippilo] and to be beaten before him” (Deuteronomy 25:2), you must say that this hafla’a is a term referring to lashes, and it is written that this hafla’a is administered in any case where one does not fulfill the verse “if you will not observe to perform all the matters of this Torah,” including those prohibitions punishable by death.

The Gemara objects: If so, and Rabbi Yishmael interprets the verses in that manner, those liable for failing to perform positive mitzvot should also be flogged, as those mitzvot too are included in “all the matters of this Torah.” The Gemara answers: Positive mitzvot are not included in this phrase, because “if you will not observe” is written, and this is in accordance with the principle that Rabbi Avin says that Rabbi Elai says, as Rabbi Avin says that Rabbi Elai says: Wherever it is stated in the Torah the terms: Observe, lest, or do not, it is nothing other than a prohibition. Since in this verse “if you will not observe” is written, only those who violate prohibitions are liable to receive lashes.

The Gemara objects: If so, one should also be flogged for violating a prohibition that does not involve an action, but the halakha is that one is not flogged in that case. The Gemara rejects that contention: “If you will not observe to perform” is written, and in violating a prohibition that does not involve an action, one performed no action.

The Gemara objects: One should also be flogged for violating a prohibition that entails fulfillment of a positive mitzva, where the Torah provides the means to rectify the transgression through performance of a positive mitzva, as it does involve an action. Yet the halakha is that one is not flogged for violating that type of prohibition. The Gemara rejects that contention: One is not flogged in that case because lashes are administered only for violation of prohibitions similar to the prohibition of muzzling an ox while it is threshing grain (see Deuteronomy 25:4). The Torah juxtaposed that prohibition to the halakhot of lashes in the same passage, from which it is derived that lashes are administered only for violations similar to muzzling, i.e., a prohibition that does not entail fulfillment of a positive mitzva.

The Gemara comments: Now that you have arrived at this understanding, all the previous objections can also be resolved in the same manner: No lashes are administered for failure to fulfill a positive mitzva or for violation of a prohibition that does not entail an action, because one is flogged for violation only of prohibitions similar to the prohibition of muzzling, which is a prohibition and involves an action.

The Gemara continues its analysis of the opinions cited in the baraita: And with regard to Rabbi Akiva, what is the reason he maintains that those liable to be executed are not flogged? It is written: “And the judge shall cause him to lie down and to be beaten before him, according to the measure of his wickedness” (Deuteronomy 25:2), from which it is derived with regard to one who commits one transgression: For one evildoing you can render him liable, but you cannot render him liable for two evildoings, i.e., one cannot receive two punishments for the same act. Therefore, execution suffices and he is not flogged.

And Rabbi Yishmael holds that this matter applies only with regard to one transgression punishable by both death and monetary restitution, or punishable by both lashes and monetary restitution. But death and lashes are not considered two separate punishments, rather both forms of physical punishment are together considered an extended death, with the lashes followed by the execution.

The Gemara asks: And according to Rabbi Akiva, if that is so, that one does not receive two punishments for one transgression, those liable to receive karet too should not be flogged. What did you say in response, that if they repented they are exempt from karet, and therefore they are flogged instead? Now, in any event, at the point when they are flogged they have not yet done so, i.e., repented.

Rabbi Abbahu says: The Torah explicitly included with regard to lashes those liable to receive karet, as is derived by means of a verbal analogy: “And they shall be excised [venikhretu] before the eyes of [le’einei] the children of their people” (Leviticus 20:17), from: “Forty he shall flog him…and your brother shall be dishonored before your eyes [le’einekha]” (Deuteronomy 25:3). Rabbi Abba bar Memel objects to this: If so, the inclusion of those liable to be executed with court-imposed death penalties should also be learned by means of a verbal analogy: “If from the eyes of [me’einei] the assembly it was performed unwittingly” (Numbers 15:24) stated with regard to idol worship, for which one is liable to be executed, from: “Before your eyes,” stated with regard to lashes. On that basis, one should derive that those liable to be executed with a court-imposed death penalty should also be flogged.

The Gemara rejects that objection: One derives by means of a verbal analogy le’einei from le’einekha, due to the similar prefix, but one does not derive me’einei from le’einekha.

The Gemara asks: And what significant difference is there between them that prevents derivation by means of a verbal analogy? But didn’t the school of Rabbi Yishmael teach a verbal analogy with regard to leprosy of houses? The verse states: “And the priest shall return [veshav] on the seventh day” (Leviticus 14:39), and another verse with regard to the priest’s visit seven days later states: “And the priest shall come [uva] and look” (Leviticus 14:44). This returning and this coming have the same meaning, and one can therefore derive by verbal analogy that the halakha that applies if the leprosy had spread at the conclusion of the first week applies if it had spread again by the end of the following week. Obviously, the less pronounced difference between me’einei and le’einekha should not prevent the teaching of a verbal analogy.

And furthermore, why not derive by means of a verbal analogy me’einei written with regard to court-imposed death penalties from le’einei written with regard to karet, since those two terms are more similar, just as a verbal analogy of le’einei from le’einekha was derived.

The Gemara answers: Rabbi Shmuel bar Rav Yitzḥak received a tradition from Rabbi Abbahu that the reason those liable to receive karet are flogged and it is not considered two punishments for one transgression is that when the verse states: “According to the measure of his wickedness” (Deuteronomy 25:2), from which it is derived: For one evildoing you can render him liable, but you cannot render him liable for two evildoings, the verse is speaking with regard to an evildoing that is given to the jurisdiction of the court, not to an act of wickedness punishable at the hand of Heaven.

§ Rava says with regard to the dispute between Rabbi Yishmael and Rabbi Akiva: If the witnesses or other onlookers forewarned him that if he performs the transgression he will be sentenced to death, everyone, even Rabbi Yishmael, agrees that he is not both flogged and executed. When they disagree, it is in a case where they forewarned him that he will be sentenced to lashes. Rabbi Yishmael maintains that with regard to a prohibition in the Torah that potentially serves as a mandate for court-imposed capital punishment, one is flogged for its violation in a case where there is no actual death penalty, and Rabbi Akiva maintains that with regard to a prohibition in the Torah that potentially serves as a mandate for court-imposed capital punishment, one is not flogged for its violation even if no death penalty is imposed, as that prohibition is punishable only by death.

The Gemara asks: And according to Rabbi Akiva, if so, with regard to those liable to receive karet as well, they violated a prohibition in the Torah that serves as a mandate for karet and not for lashes. Rav Mordekhai said to Rav Ashi: This is what Avimi from Hagronya said in the name of Rava: Those liable to receive karet do not require forewarning, as in the case of one who fails to fulfill the positive mitzvot of the Paschal offering and circumcision the Torah punished them with karet even though it did not warn that it is prohibited to fail to fulfill the mitzva. Therefore, the prohibitions written in cases punishable with karet are written to teach that one can receive lashes for their violation, not to mandate the punishment of karet.

The Gemara asks: But perhaps the prohibition is written concerning those liable to receive karet with regard to liability to bring an offering for unwitting violation of the prohibition, not to teach that the transgressor will receive lashes, as for failure to fulfill the positive mitzvot of the Paschal offering and circumcision, for which there is no biblical prohibition, one does not bring an offering.

The Gemara rejects that suggestion: There, with regard to the Paschal offering and circumcision, that is not the reason that one does not bring an offering. Rather, it is due to the fact that all the mitzvot in the entire Torah whose unwitting violation requires the transgressor to bring a sin-offering are juxtaposed to and likened to idol worship. Just as idol worship is a prohibition about which the Torah commands: Sit and do not perform the transgression, and one who unwittingly performs the transgression is liable to bring a sin-offering, so too, with regard to any prohibition about which the Torah commands: Sit and do not perform the transgression, one who unwittingly performs the transgression is liable to bring a sin-offering. This serves to exclude these mitzvot of the Paschal offering and circumcision, concerning which the Torah commands: Arise and perform the mitzva, and one violates the mitzva by refraining from action. In those cases, one who unwittingly fails to perform these mitzvot is not liable to bring a sin-offering.

Ravina says: Actually, the reason Rabbi Akiva rules that those liable to receive karet are flogged is

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Makot 13b explores whether those liable for karet or court-imposed death are also subject to lashes, debating Rabbi Yishmael, Rabbi Akiva, and Rabbi Yitzchak's views.