[MUSIC] One of the most satisfying but challenging facets of studying the Talmud involves the Talmud's deep engagement with legal concepts. This video will explain different stages of the development of conceptualization in the Talmud. You will initially see how the Mishnah introduces legal rules through scenarios. And requires the reader to actively read into the cases to produce any kind of categorical, conceptual understanding. After considering the Mishnah, we will transition from the case based articulation of the Mishnah and early rabbis. To the concept based articulation of later Amoraim and ultimately, the full abstraction of the Talmud's anonymous redacters. You will learn that one of the differences of traditional and critical ways of studying the Talmud relates to this transition. Unlike traditional learners who accept the interpretations offered by later rabbis of early rabbinic materials in the text. Critical readers have a heightened awareness of the way changes in conceptual thinking effect the way one reads earlier materials. The Mishnah considers whether false witnesses should receive one or two punishments in two similar cases. One involving a tour in which monetary compensation is the punishment. And one involving a religious crime in which the punishment would be 40 lashes. Unlike Mishnah texts that only provide the reader with a legal rulings. This example is particularly helpful to understanding the conceptual thinking that underlies the legal ruling. Because in both scenario A and scenario B, rationales are provided for each position. We testify about so-and-so that he owes his fellow 200 zuz. If the witnesses are found to be lying, they are lashed and make financial compensation. In the first scenario which we'll call scenario A, two witnesses testify that John Doe owes a friend some money. Let's use our own currency and say $200. These witnesses are then determined to be liars. Two views of Tannaim, early rabbis, are cited. First Rabbi Meir asserts that the witnesses received lashes and pay $200 to their intended victim. The rational Rabbi Meir offers is that the name that brings him to corporal punishment is not the one that brings him to compensation. This is not typical Rabbinic rhetoric. The now name is particularly hard to decipher. From context one can suggest two possible readings. A, that the designation of the crime that causes the witnesses to pay $200 is not the same designation as the one which forces their lashing. And B, the verse from which we learn the $200 punishment is not the same as the verse whence their lashes are derived. If we allow ourselves to reflect more abstractly on what Rabbi Meir could mean. It may be that the $200 quid pro quo payment is restorative for John Doe. The putative victim who they were slandering with their testimony. And the lashes are restorative for society or God for having committed the crime or sin of falsely testifying. The Sages say that anyone who pays is not lashed. The Sages, an anonymous collective rabbinic viewpoint say that the witnesses pay $200 but are not lashed. The rhetoric the Mishnah employs for the Sages in scenario A is also problematic. While Rabbi Meir's position had been articulated as legal ruling plus rationale. The Sages position is expressed through a universal statement. Whoever pays is not lashed. This statement does the work of a ruling by asserting that the witnesses would pay $200 and not get lashed. Does it provide a rationale though? To answer the question, one needs to reflect on the need for a rationale. When you have a debate between two sides, it often falls to one side to justify itself through a rationale. Because the other side represents the status quo or default expectation. Part of the problem of determining whether the universal statement, whoever pays is not lashed is a rationale or not. Is that the reader is unsure that the sages even need a rationale. After all, if Rabbi Meir's position asserting two punishments is itself in need of a justifying rationale. The Sages position could simply reflect the status quo before Rabbi Meir's intervention. There is a further complication with the universal statement through which the Sages assert their position. If the witnesses were obligated in two possible punishments, how would one decide which one to administer? It certainly would make sense that they would receive the more severe punishment. Otherwise, one would be rewarded for compounding one's violations. As between $200 in lashes then. Wouldn't one expect the witnesses to be lashed? It turns out then that the universal statement in scenario A of the Mishnah. Might have been intended to justify not giving two punishments as Rabbi Meir requires. Or it might be functioning as a rationale to explain why the witnesses receive what appears to be the lesser of the two punishments. Or alternatively it might be serving simply as a fancy way of recording the legal ruling of the Sages. We have seen that the rationales recorded in scenario A are somewhat ambiguous and a bit confusing. The rationales found in the nearly identical scenario B are clearer. In order for clarification for those in scenario A, at least for Rabbi Meir's position. We testify that so-and-so is liable to receive 40 lashes. If the witnesses are found to be lying, they receive 80 lashes. In this case two witnesses testified that John Doe has done something that will result in his receiving 40 lashes. Rabbi Meir says the lying witnesses receive 80 lashes, a double punishment. This is because of do not testify falsely against your fellow and because of you shall do to them as they schemed to do, says Rabbi Meir. And the Sages say they only receive 40 lashes. The view of the Sages is articulated without a rationale in the simple language of a ruling. This does not clarify the confusion about the universal statement employed in Scenario A. However, Rabbi Meir's position in Scenario A is clarified in Scenario B. Instead of his statement about the name that brings, Rabbi Meir in Scenario B says that the witnesses received one set of 40 lashes for having violated the prohibition in the Ten Commandments. Against testifying falsely and a second set of 40 lashes in fulfillment of the quid pro quo punishment laid out explicitly at Deuteronomy 19. While the new rationale nicely interprets the vaguer rationale found in scenario A. A critical scholar would be skeptical of this easy clarification and might suggest that the second clause was produced by a later rabbi. Who was himself struggling to determine the meaning of the name that brings. This is one way in which critical scholarship introduces a factor of historical time into its mode of reading. After the Mishnah was orally published around the year 200 CE, it became the central study text for rabbinic students. Rabbis began to study the Mishnah very closely, much as they had long studied the Bible quite closely. Comments about the Mishna circulated orally in rabbinic culture. Often they contributed to the construction of Talmud style conversations around that Mishnah. But sometimes they were simply remembered. And they'd pop up somewhat surprisingly in other tract dates and other chapters. Some of the important early rabbinic dialogue about this Mishna in tractate Makkot is found within a different passage tractate to both. A tractate about marriage contracts found within the order devoted to family law. The third chapter of Mishnah to vote considers the scenario of the rape of an unmarried girl. The opening Mishnah lists a group of girls who are sexually forbidden on account of incest. They are closely related to the rapist. And asserts that despite the sexual prohibition, the rapist would nevertheless be obligated to pay the fine for raping an unmarried girl. The problem with this legal position is that the identical scenario and list appear in the third chapter of Mishnah Makkot. Which asserts that such a rapist would receive lashes and not a fine for the rape. The Talmud Ketubot 31b Jack's deposes the two Mishnah's passages as a contradiction in need of resolution. The assumption behind the contradiction is that the rapist could not receive two punishments, both lashes and a fine. Three different Rabbis from the early third century shortly after the Mishnah are cited as providing solutions. For our purposes, the important one is Resh Laqish, a prominent Palestinian amora whom we've already encountered in an earlier Talmudic passage. Resh Laqish says that the contradiction can be resolved according to the view that the rapist receives both lashes and a monetary fine. And that this view fits with the universal position of Rabbi Meir that one can and does receive two punishments. The move Resh Laqish makes is to turn Rabbi Meir from a particular view found in a specific scenario to a universal conceptual category. It would be possible to read Rabbi Meir's rationale in the case of false testimony. As specifically justified by the existence of two different crimes or verses. But not necessarily a view that could be extrapolated to other cases. Instead Resh Laqish understands Rabbi Meir's to be an important universal intervention against the generally held view that one cannot receive two punishments. If one is attentive to the different generational designations of the Rabbis. One can track the evolution of Resh Laqish's move throughout the later Rabbis. By the time of the Talmud's anonymous redactors, this notion that one cannot receive two punishments had become a universal one. One anonymous passage at Makkot 16a refers to the entire category through a conceptual designation. Establish for him the more stringent of them. This conceptual designation became the official name for this categorical situation. Any case in which one might be eligible to receive multiple punishments within and among post-Talmudic commentaries. Most traditional readers of the Mishna approach the Mishna with the prior knowledge of the evolved universal conceptual category. Establish for him that presumes that one can never get two punishments. If one reads the Mishnah in this way, then Rabbi Meir's is the novel position and must justify itself against the defaults. And the Sages need not justify their position at all. The problem is that there are many early rabbinic legal cases found in the Mishnah or other rabbinic works. In which there is no assumption that one cannot receive two punishments. And the assumption makes it seem as though Rabbi Meir's legal rule is draconian. In fact though, one could argue that Rabbi Meir's position is the sensible response to the scenario. Deuteronomy 19 requires a quid pro quo punishment, that is why even the Sages up for $200 overlashes as the preferred punishment. But this unfairly rewards the false witnesses by exempting them from the harsher punishment of lashes. Which they have earned by violating the Ten Commandments. Rabbi Meir's approach ensures that the witnesses get both the quid pro quo and the harsher of the two punishments. Elsewhere in the Talmud, the anonymous redactors carve out a variety of exceptions to the universal rule of two punishments. For example, they limit the universal to a case in which both punishments are simultaneously generated by two violations committed in the course of a single act. This allows them to create micro divisions of time that separate a single action into two actions that each generate a punishment. A critical scholar would recognize these cases as situations in which a later accepted universal is used as an assumption to read an earlier case which doesn't reflect its position. By keeping track of the historical generations of a Talmudic conversation. Differentiating between a second generation and a fourth generation amora. Or between a fourth generation amora and the anonymously voice of the Talmud. Critical scholars open up a lens for reading the earlier materials against the grain of their later interpretations. [MUSIC]
