Talmudic pages

Bava Kamma 88


On today’s daf, the rabbis interrogate the legal implications of the Torah’s statement that “Parents shall not be put to death for children, nor children be put to death for parents: they shall each be put to death only for their own crime.” (Deuteronomy 24:16) Mar the son of Ravina reads this verse as insisting that:

People shall not be put to death based on the testimony of fathers who do not have lineage with children. 

Fatherhood is not synonymous with biological relationship, as both adoption and step-parenting remind us. That’s not really what’s going on here, however. The rabbis of the Talmud take the distinction between biology and fatherhood a step further and argue that there are some kinds of biological relationships that are not actually recognized as “fatherhood” in the legal sense; some men who cannot have “lineage” with their offspring.

But what kinds of biological fathers are not able to be legally recognized as fathers? Within the Talmud’s legal framework, the answer was enslaved men, as we read back in Yevamot 62a:

Everyone agrees that an enslaved man has no legally recognized descent.

I want to recognize that this is a horrifying kind of legal (and sometimes physical) violence to enact on an enslaved family. I also want to note that this is neither unique to the rabbis nor a rabbinic innovation; the legal severing of a relationship between enslaved parents, particularly fathers, and their children was a common legal practice across the Roman world. 

Within the discussion on today’s daf, the implication is that enslaved men cannot testify in capital cases. As Mar the son of Ravina reads the lack of a possessive pronoun in the biblical verse:

For if it enters your mind, as we say: “Fathers shall not be put to death for children,” by the testimony of children, then let the Merciful One write: Fathers shall not be put to death for their children. Why only “children”? Learn from this that one shall not be put to death based on fathers who do not have lineage with children.

The Gemara next interrogates the second half of the verse: “nor children be put to death for parents.” If the lack of a pronoun in the first half of the verse means that those who are not legally considered fathers are excluded, does the lack of a pronoun in the second half of the verse legally exclude those who cannot be considered sons?

Moreover, since rabbinic conversion to Judaism was understood to sever all previous relationships, do the rabbis read this verse as excluding the testimony of converts too? Ultimately, the Gemara rejects this possibility: 

A convert, since he has lineage below, is fit to bear witness.

Since a convert has the potential to have lineage, meaning legally recognized children after he converts, he is not excluded from the biblical discussion of witnesses for capital crimes.

So what are we to do with this discussion? I leave today’s daf with two thoughts. First, the question of what makes a family has always been debated, and the legal answers that win out in some times and places turn out to be the wrong ones. And second, the rabbinic project here is to interpret laws based on the biblical verse in conversation with their world, yes, but not to offer us an accurate record of the lived experiences of enslaved people and their families. Indeed, we have numerous records from the Roman world of enslaved men being recognized and engaged fathers to their children, being listed as fathers on epitaphs and contributing emotionally and financially to their children’s lives. Sometimes, at least, love finds a way.

Read all of Bava Kamma 88 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 29th, 2024. If you are interested in receiving the newsletter, sign up here.

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