MISHNAH: These relatives are disqualified: a brother, father’s brother, mother’s brother, sister’s husband, paternal or maternal aunt’s husband, stepfather, father-in-law, and brother-in-law—all these as well as their sons and sons-in-law. And his stepson alone [but not the stepson’s son or son-in-law]. R. Yose said: This is the Mishnah of R. Akiba, but an earlier Mishnah [said]: His uncle, his uncle’s son, and all who are eligible to inherit from him.
GEMARA: Whence this? The Sages taught [in a baraita]: Parents shall not be put to death because of [their] children… (Deuteronomy 24:16). What does [this verse of] Torah teach? If it teaches that parents shall not be put to death because of the sins of their children, nor children because of their parents, isn’t it already said, a person shall be put to death only for his own crime (Deuteronomy 24:16)? Rather, “parents shall not be put to death because of [their] children” concerns the testimony of the children, and “children shall not be put to death because of [their] parents” concerns the testimony of the parents.
INTRODUCTION
If someone is accused of a capital crime (execution is the punishment if the defendant is found guilt), may close relatives testify against him? In a seemingly unrelated question, does God punish children for the sins of their parents and take revenge on parents for the crimes of their children? This second question is intertwined with a discussion in tractate Sanhedrin concerning who may give testimony in a capital case. The passage I would like to share with you is too long and complex for one edition of TMT, so I have broken it into several parts. The two points I want to make in this introduction will lay a foundation not only for the section of the passage above, but also for what is to come.
(1) THE CONTEXT CREATED BY MISHNAH: It goes without saying that in any court case—and especially in a capital case when someone’s life is on the line—we want honest witnesses and judges who can muster the maximum amount of objectivity. Are there people who, without considering their individual character, should de facto be excluded as witnesses and judges? Our mishnah stipulates the automatic disqualification of close relatives from testifying against, or serving as judges in, capital cases. At the same time, it alludes to “R. Akiba’s Mishnah,” suggesting that R. Akiba wrote his own Mishnah, separate from that of R. Yehudah ha-Nasi. In fact, many scholars believe that R. Meir wrote his own Mishnah, as well, but neither survived as extent texts; most likely they became incorporated into the surviving Mishnah of R. Yehudah ha-Nasi that undergirds Talmud. According to R. Akiba, one’s brother, uncle, brother-in-law, stepfather, and father-in-law, as well as their sons and sons-in-law are all disqualified; also one’s stepson (but not the stepson’s son or son-in-law) is disqualified.
(2) BEHIND-THE-SCENES CONVERSATION ABOUT “VICARIOUS INTERGENERATIONAL PUNISHMENT”: In addition to the context of the mishnah that generates this Gemara, it is important to understand the biblical verses that will enter the Gemara’s conversation because they have a storied and problematic history of their own. Both versions of the Ten Commandments (Exodus 20:5 and Deuteronomy 5:9) tell us that God is an impassioned God, “visiting the guilt of the parents upon the children, upon the third and upon the fourth generations of those who reject Me…” Exodus 34:7 concurs. The claim that God engages in intergenerational punishment is deeply troubling, and not only to us. Deuteronomy 24:16 avers the opposite: “Parents shall not be put to death for children, nor children be put to death for parents: a person shall be put to death only for his own crime.” (Please note this entire verse. It will figure prominently in the next edition of TMT.) Ezekiel 18:20 explicitly says, “The person who sins, alone, shall die. A child shall not share the burden of a parent’s guilt, nor shall a parent share the burden of a child’s guilt.” Clearly, those with a hand in writing Deuteronomy and Ezekiel were uncomfortable with the notion of intergenerational punishment! So was Onkelos. In his Aramaic translation of Exodus 20:5, he expands the verse (I’ve bolded his additions) to address its inherent ethical problem: “…avenging the sins of the parents upon the rebellious children, upon the third generation and upon the fourth generation of those who reject Me, when the children follow their parents in sinning.” The notion of a God who punishes children for the sins of their parents seems abhorrent to us in the 21st Century, but this is not a modern moral innovation: it struck many who lived 2,500 years ago the very same way.
COMMENTARY
The Gemara asks: How does the mishnah know that all these relatives are excluded? A baraita (mishnaic-era rabbinic teaching not included in the Mishnah) supplies an answer, quoting Deuteronomy 24:16, which is taken to refer to testimony presented at trial:
(a) Parents shall not be put to death for children, nor children be put to death for parents: (b) a person shall be put to death only for his own crime.
This verse appears to be redundant: (a) and (b) seem to teach the same thing, but for the Sages, that cannot be. The baraita explains that (b) precludes parents and children from being tried for each other’s crimes; (a) concerns giving evidence at trial: parents cannot be convicted on the testimony of their children, nor children convicted on the testimony of their parents.
QUESTIONS TO CONSIDER AND DISCUSS
- If children should not be punished for the sins of their parents in a human court of law (Deuteronomy 24:18), is it hypocritical for God to do so (Exodus 20:5)? Is there another way to interpret Exodus 20:5?
- Torah includes numerous contradictory ideas, large and small. One approach is to attempt to harmonize the contradictions. Another approach is to acknowledge Torah as a multi-vocal text. which approach do you prefer, and why?
- Who (if anyone) do you think should be automatically disqualified from serving as witnesses in a capital case, and why?
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