Ketubot 35

Which one?

Today’s daf opens with Rabbi Yohanan and Reish Lakish trying to determine if someone who has been sentenced to death is also required to pay financial damages for their crime. To explore this question, Reish Lakish references a passage from Exodus:

When parties fight, and one of them pushes a pregnant woman and a miscarriage results, but if no (other) harm ensues, heshall be fined according as the woman’s husband may exact, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life. (Exodus 21:22–25)

According to this passage from Exodus, if a brawler accidentally causes a woman to miscarry, he must pay financial damages. But if he causes the woman’s death, then his own life is forfeit. 

On today’s daf, Reish Lakish argues that if the brawler kills the woman, he is already subject to the death penalty and does not also have to pay damages for the death of the fetus. The more serious offense overrides the more minor one. Rabbi Yohanan pushes back:

“But if no (other) harm follows, he shall be punished” — is this not referring to a sentence of harm?

As we learned yesterday, in order to be convicted of a capital crime, the criminal needs to have been warned in advance of committing the crime. Rabbi Yohanan argues that in order to be exempt from paying damages for the fetus, it’s not enough that the brawler has killed the woman and her fetus — the brawler has to have been found guilty of killing the woman and sentenced to death. Given that death sentences were extremely rare in Jewish courts, in effect Rabbi Yohanan’s position severely limits the number of people likely to become exempt from paying damages for killing a fetus — even in a case in which the woman died.

Let’s go back to the biblical text that this discussion is based on. This biblical passage is often invoked in religious debates about miscarriage and abortion. It is used to explore the question of whether the death of a fetus is treated equally to the death of a pregnant person, or any person at all. Talmudic texts like today’s daf are a key part of discussions of how Judaism approaches these questions. To understand its meaning, let’s talk about the text itself. 

The biblical passage just quoted is adapted from the JPS translation of the Masoretic text, the official Hebrew text of the Bible codified in the medieval period by an esteemed group of scholars and used by Jews ever since.

But there is actually another traditional Jewish Bible called the Septuagint, which is a Greek translation of the original Hebrew, produced by the Jews of Alexandria at some point in the 3rd century BCE. The Septuagint has some key differences from the Masoretic text and scholars debate whether the Septuagint was based on a different Hebrew text, or simply tweaked the Hebrew text.

One of those famous differences is found in Exodus 21:22-25. Here is a relatively recent English translation of the Septuagint’s version: 

“Now if two men fight and strike a pregnant woman and her child comes forth not fully formed, he shall be punished with a fine. According as the husband of the woman might impose, he shall pay with judicial assessment. But if it is fully formed, he shall pay life for life…”

This version of Exodus appears to distinguish between different developmental stages of the fetus, and indeed, imposes the death penalty if a brawler causes the miscarriage of a fully developed fetus. As you can imagine, this text can lead to very different readings of the question of fetal personhood. 

Some Jews in the ancient world, and later many Christian communities, gave ultimate authority to the version found in the Septuagint. But Jews since the medieval period have given ultimate authority to the Masoretic Text. And today’s daf makes clear that the Masoretic version has important implications not only for fetal personhood, but also for all other kinds of legal discussions about liability, the death penalty, and financial damages. 

As this example reminds us and today’s daf really drives home, when someone — either in the ancient world or in interfaith dialogue today — argues that “the Bible says” something, it’s always important to ask: Which one? 

Read all of Ketubot 35 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 10th, 2022. If you are interested in receiving the newsletter, sign up here.

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