Divine Justice and Mercy, Pedagogy and Shammai and Hillel Kiddushin Daf 43-46

Repentance: The Ball is in your Court

In previous dappim, we learned that except in unusual circumstances, “אין שליח לדבר עבירה” (there is no agency when it comes to sin). That is to say, the one who carries out the act is fully liable since, as the Gemara says, “Whom does one obey, the master or the student?” In other words, God’s law takes precedence, and there can never be an assignment of agency that contradicts God’s command.

Our Gemara on Amud Aleph discusses a fascinating dispute between Shammai the Elder and the Rabbis. Should a man direct another person to commit murder on his behalf, the Sages hold that the agent, i.e., “the hitman,” incurs liability, and not the sender. However, Shammai the Elder holds that the one who gave the kill order is obligated. After some discussion, one opinion of the Gemara concludes that Shammai the Elder is not referring to liability in earthly court, but rather in the Heavenly Court. Even the Sages do not dispute that there is some liability for being an instigator, but it is not the liability of heavenly punishment for inflicting death but rather for a lesser (but, of course, still a serious sin). After all, there has to be something sinful about encouraging or soliciting sinful behavior. The only point of dispute is whether the liability is as if the sin was committed, albeit punishment is carried out by the Heavenly Court and not the Earthly Court, or if he is not held liable as if he committed the actual sin, but some other infraction for soliciting sin.

One of the proofs that Shammai the Elder brings is from Chaggai the Prophet’s rebuke of King David, accusing him of having murdered Uriah by the sword of Amon (Shmuel II:12:9), when he didn’t actually do it himself.

On some level, though, both Shammai the Elder and the Sages agree that the sender has a degree of liability in the Heavenly Court and judgment. Similarly, there is a matter of discussion in Shulkhan Arukh (CM 32:2) regarding the liability of one who solicits false witnesses to extract payment:

“One who hires false witnesses in order to transfer a maneh from Reuven to Shimon is exempt under human law but liable under heavenly law.

Based on the opinion of Tosafos, Rama makes a distinction between hiring false witnesses and encouraging and egging them on. In the former case, he is liable for heavenly punishment as if he committed the sin himself, while in the latter, he is not. The Shach (ibid) brings a proof to this distinction of liabilities between hiring versus mere verbal goading from the Gemara (Sanhedrin 29a), which notes that the Primordial Snake could have argued his innocence because, after all, he did not eat from the Tree of Knowledge, and Adam and Chavah did not have to do his bidding because there is no appointment of an agent in regard to sin:

Rabbi Shmuel bar Naḥman says that Rabbi Yonatan says: From where is it derived that the judges do not advance a claim on behalf of a Mesis (an inciter of others to sin)? It is derived from the incident of the Primordial Snake who tempted Eve; he was the first inciter. As Rabbi Simlai says: The Snake could have advanced many claims on its own behalf, but it did not claim them. And for what reason did the Holy One, Blessed be He, not advance these claims for it, deeming the snake exempt from punishment? Because the snake did not advance these claims itself.

The Gemara asks: What could he have said? The Gemara answers: The Snake could have said that he is not to blame, as when there is a contradiction between the statement of the teacher and the statement of the student, whose statement should one listen to? One should listen to the statement of the teacher! Since God instructed Adam and Eve not to eat from the fruit of the Tree of Knowledge, Adam and Eve should have heeded God’s words and not those of the snake.

The Shach asks, how could the Snake have maintained his innocence? Did we not learn there is still liability in the Heavenly Court for the one who sends the agent to sin? Shach says, it must be that Rama and Tosafos are correct, and mere verbal goading does not incur even heavenly liability for the actual sin.

Arvei Nachal (Shabbos Hagodol 2) offers a different answer to the Shach’s question with fascinating theological implications, and also constructs a series of legal arguments to explain how King David was forgiven for his sin with Bat Sheva and for the death of Uriah. Arvei Nachal asserts that though one is liable in the Heavenly Court, that is literally the Heavenly Court, but God Himself can be merciful and follow Earthly Court rules. Thus, the Snake might have indeed argued his innocence before God, but NOT before the Heavenly Court, which held him liable. This is why Midrash (Lekach Tov 3:14 and 22) notes that Hashem’s name is mentioned 71 times from the beginning of the Torah until this verse (3:14), indicating the 71 judges of Sanhedrin. Thus God convened a Heavenly Court specifically to hold the Snake liable

Even more surprisingly, Arvei Nachal asserts that God Himself is free to do either: Judge as a Heavenly Court or as an Earthly Court, which worked uniquely and paradoxically in King David’s favor. King David was accountable for two misdeeds regarding Bat Sheva: 1. She was a married woman 2. He caused Uriah’s death by sending him to the front. Regarding the first sin, since it was decreed in heaven that Bat Sheva and King David were destined to marry, technically speaking in some cosmic sense, it was no sin. Yet, if King David wanted to rely on Heavenly judgment, though this might exempt him from the sin with Bat Sheva, it would incur even more liability for causing Uriah’s death, as we saw in our Gemara. But since God can follow either Heavenly or Earthly Justice, God was able to forgive King David with contradictory justifications.

This is what is meant by the verse in Psalms (17:2):

“My judgment will come from You; Your eyes will behold correct ways.”

The plural form, “correct ways,” alludes to the point that King David was asking God to vindicate him based on two different contradictory approaches, Heavenly liability and Earthly liability.

The upshot from this extensive derash and pilpul is that while it is true that we are even more liable for our sins in the Heavenly Court compared to the Earthly Court, God’s mercy has no bounds. Thus, we can pray and ask for divine forgiveness no matter how poor our legal merits. Like a good father, God will look to grant mercy beyond the legalities.

Not So Respectful Discourse

Our Gemara on Amud Aleph relates a scene that occurred in the Beis Midrash where Reish Lakish was screaming like a “cruchia” bird, and no one paid attention to his halakhic argument.

What was this “cruchia” bird? Some translate it as a crane, which apparently makes a very loud cawing sound. However, Rashi here identifies it as an Agur. Elsewhere, an Agur bird is identified with a parrot (see Radak Yirmiyahu 8:7. Radak himself learns that “cruchia” is a different bird enumerated in the verse, but Rashi might have understood the verse is repetitive, referring to two similar birds). The idea that it was a parrot fits well because it gives some context to Reish Lakish’s colleagues’ rejection of his argument. Just as a parrot may seem like it’s talking but not making sense, so too Reish Lakish’s peers really did not accept his argument. This might explain Rashi going out of his way to explain it as an Agur bird, when the Targum seems to imply crane.

It is sometimes difficult to hear the rabbis referring to each other with disrespect during their passionate argumentation, and yet this is a known feature of Talmudic discourse. Sefer Chofetz Chaim quotes a famous responsum of the Chavos Yair (152) who offers different explanations for this behavior. Sometimes they were rebukes because they held each other to high standards, and other times it was good-natured joking that was not taken as an offense. These answers may not satisfy, but if we imagine the following, it might be easier to accept. If two diamond merchants are discussing the various flaws and benefits of two gems, they might get into a heated argument. Their egos are not at stake because relative to the dazzling beauty of the gems under discussion, nothing else matters. It is different from two people arguing politics or sports where they invest their esteem in the team or party with which they identify. In regard to the gems, it is not a consciously thought-out humility but rather a self-evident sense of awe and passion in relation to the subject matter. So too, this may be the mentality of these sages, and their extravagant put downs were really in reaction to the pricelessness of the Torah.

Compliance is not the Same as Agreement

Our Gemara on Amud Beis discusses a scenario where a daughter who is a minor accepts marriage in front of her father but without his explicit consent. The Gemara discusses what to make of his silence: is it assent or seething anger?

This highlights an important aspect of human nature – a person can feel so trapped in a situation that he will externally comply while internally boiling with anger.

As parents and educators, when we find ourselves in situations where we need to enforce compliance, we must ask ourselves: Is compliance the same as willful agreement? Do such tactics actually lead to internalizing the values and morals driving the rules? Will we produce good citizens of the world or good Jews? Common sense tells us that children sometimes need to be disciplined and contained, even intimidated if necessary, to habituate observance of basic rules and moral precepts. The verses in Mishley (22:6 and 14:24) suggest the importance of early guidance and discipline:

“Train a lad in the way he ought to go; he will not swerve from it even in old age.”

“He who spares the rod hates his son, but he who loves him disciplines him early.”

However, common sense and experience also tell us that an angry, resentful person is not likely to engage in higher-order thinking, and mere obedience when it comes to moral and spiritual matters is greatly insufficient. This is why many educators and mechanchim advocate for focusing on praise and positive reinforcement.

While this approach has merit, I believe there is a deeper issue at play. There is a natural drive toward competency and mastery. This drive is what motivates even the youngest children to learn how to walk and talk, despite the overwhelming effort it requires. Therefore, while discipline and enforcement are essential in any system, whether it is a family, a school, or a country, the internalization of the rules and values will occur only if it confers a sense of competency, belonging, and security. Such feelings are partially subjective, and individuals may seek them through different means, whether through obedience or rebellion.

If an adult conveys tension or projects a personal investment in compliance, it can turn into a power struggle. Children can sense whether you are speaking in their interest or seeking power. Even if you become intense and upset, it is understood as coming from care and concern if that is how you really feel.

Positive reinforcement and staying calm are valuable approaches, but at their core, it is more about the feelings you project. If it becomes a fight to win, it invites a struggle because of the natural wish to control and feel powerful. It’s important to make sure your child feels that you want them to succeed and believe in their abilities. When you trust them and involve them in the decision-making process, it fosters a sense of responsibility and confidence.

We will delve further into parenting approaches related to religion in a later discussion in Psychology of the Daf, Kiddushin 50.

A Historical Footnote on the Disputes of Shammai and Hillel

Our Gemara on Amud Aleph discusses the rule that a woman cannot be betrothed by allowing her to keep money she had previously borrowed. This is because the marriage bond needs to be effectuated via a transfer of a tangible object. The loan is not tangible, and even if the money was not spent and thus still tangible, the transfer of money to her domain occurred as a loan, and not an exchange for marriage. A second rule discussed is that if a woman is betrothed with her loan plus an additional peruta, we say she understands and intends to effectuate the marriage via the sole exchange of the peruta, and not the loan.

The Gemara in Sanhedrin (19a) Midrashically explains that King Shaul and David engaged in this very same debate in regard to whether his betrothal to Michal was valid. Michal’s marriage was in exchange for David bringing 100 Philistine foreskins to King Shaul as a kind of dowry, plus King Shaul still owed David the bounty for having slain Goliath. Therefore, King Shaul argued that the marriage was not valid since this was a mixture of a loan and an object of value (the foreskins). But David argued that when a betrothal has a loan and a peruta, it is understood that the intention is to effectuate the marriage via the object of value, and not the loan.

(As an aside, this is an interesting genre of Midrash that projects lomdus back into biblical characters. We discussed this in more detail in Psychology of the Daf Yevamos 96 – was Pharaoh a Lamdan? https://nefesh.org/SimchaFeuerman/was-pharaoh-a-lamdan-yevamos–psychology-of-the-daf-yomi-/read. )

However, there is a problem with this aggadah’s presumption that this halakhic dispute existed during those times. The Yerushalmi (Chagigah 2:2) holds that the first-ever halakhic dispute was in regard to the permissibility of placing hands on a sacrificial animal on Yom Tov, between Shammai and Hillel. The Yerushalmi says that in total, Shammai and Hillel had four halakhic disputes, and only later did the students of Shammai and Hillel develop many more halakhic disputes. This was due to not having fully understood their masters’ fundamental principles, leading to divergent interpretations and applications of the law, which the Elders Shammai and Hillel did not have (Sanhedrin 88b).

If the first dispute occurred during the time of Shammai and Hillel, how could David and King Saul argue about kiddushin with a loan and a peruta? Tosafos (Chagigah 16a, “Yose”) raises this question and answers it by saying it really was not a dispute of legal ramifications since King Saul’s Sanhedrin adjudicated the halakha. According to Tosafos, we can then understand that the idea that there were no disputes prior to Shammai and Hillel does not mean there wasn’t deliberation and discussion. Instead, it meant that various disagreements were expeditiously voted on and resolved by the Sanhedrin. This makes sense, after all, how could an oral Torah be so extensive and precise that every possible contingency was anticipated and legally coded? There had to be questions about application and interpretation from the very moment the word left Moshe’s lips. However, prior to Shammai and Hillel, the Sanhedrin was able to vote on the law and come to a conclusive decision. The Korban HaEdah (Yerushalmi ibid) says this even more explicitly than Tosafos.

This still leaves us with another question. If Sanhedrin had the authority to adjudicate, how is it that in the times of Shammai and Hillel this did not work? I believe we must conclude that though technically the rabbis could vote their opinion, many of them felt indecisive enough that they were reluctant to finalize and close the dispute. I have some evidence in favor of that, as we know that the students of Hillel were generally humble and careful to study the teachings of Shammai as well (Eiruvin 13b). We also know that Shammai’s students were more brash (see Beitzah 20a), and one day, when the students of Shammai were the majority, they “pushed through legislation” and voted on a number of halachos their way (see Mishna Shabbos 1:4). While all of this is supposition, I think we may have a good case for this interpretation of events. Otherwise, why didn’t the students of Hillel overrule the students of Shammai on other sittings of the Sanhedrin? It seems to me that the students of Hillel were more reluctant to convene a vote and rule in their favor, even if they technically could have.

This is an interesting lesson. The students of Hillel much of the time had the power to establish halakha their way, and by definition, the authority of the Sanhedrin would make it so. One could even argue this would have been a good thing to counteract the problem of having Two Torahs, which the Gemara (Sanhedrin 88b) laments. Yet, the humility of the students of Hillel led them to avoid seizing power and forcing their rulings on the students of Shammai, a favor not returned by the students of Shammai.