Ketubot 45

Consistently inconsistent.

According to the Bible, when a young woman who is betrothed is found guilty of adultery, she is taken to the entrance of her father’s house and stoned to death. Yesterday, we studied a mishnah that indicated that although the Torah specifically states that the woman’s execution should take place at the entrance to her father’s house, if the woman has no father or if her father does not own a house, she is still stoned to death.

On today’s daf, we find a beraita (early teaching) that explains how the procedure is modified in such a case:

If she does not have an entrance to her father’s house, one stones her at the entrance gate of that city. And in a city that is mostly gentiles, one stones her at the entrance to the court.

The Talmud does not make the execution of the woman dependent on the ability to carry out all of the details of her punishment listed in the Torah. Had they done so, the life of an adulterous woman that does not have a living father, or who has a father who does not own a home, could have been spared

In their commentary on the mishnah, the Tosafot point to a related case from Tractate Sanhedrin where one sage does exactly the opposite:

Shmuel says: If the witnesses’ hands were severed, (the transgressor) is exempt. What is the reason? Because I need to fulfill (what is stated in the verse): “The hand of the witnesses shall be first upon him to put him to death” (Deuteronomy 17:7), and here this is not possible.

The Torah requires that the witnesses upon whose word a person has been sentenced to death play a role in the execution. Shmuel understands this mandate literally — the witnesses must actually put their hands on the transgressor. But if they have no hands, the biblical mandate cannot be fulfilled in its entirety and the transgressor is exempt from punishment. The inability to fulfill the words of the Torah in full means that there is no stoning.

Shmuel’s interpretation takes an individual off of death row. This is consistent with the broader impulse of the ancient rabbis to narrow the situations in which the death penalty is applied and likely reflects their general discomfort with capital punishment. In the case of the adulterous betrothed woman, a similar path appears to have been available. The rabbis could have said that since this particular woman has no father, or her father has no house, the entirety of the biblical punishment cannot be carried out and therefore she is not executed. 

But they didn’t. So why not?

Having asked the question, I wish that I could answer it. It would be great if there were an overarching explanation for why in some capital cases the rabbis demand that we do exactly what it says to do in the Torah and in others they say it’s OK to do the best that we can.

What we can say is that, just as we saw yesterday, the talmudic tradition allows for the use of different approaches in different situations. It’s great to ask why the Talmud took one approach here and another there, and on occasion scholars come up with great answers to explain those differences. But there are also times when we just don’t know, and today might just be one of those times.

Read all of Ketubot 45 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 20th, 2022. If you are interested in receiving the newsletter, sign up here.

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