Talmudology on the Parsha, Vayeshev: The Strange Story of Theriac

בראשית 37:25

Having thrown their brother Joseph into a pit, his brothers sit down to eat and consider their next move:

וַיֵּשְׁבוּ֮ לֶֽאֱכל־לֶ֒חֶם֒ וַיִּשְׂא֤וּ עֵֽינֵיהֶם֙ וַיִּרְא֔וּ וְהִנֵּה֙ אֹרְחַ֣ת יִשְׁמְעֵאלִ֔ים בָּאָ֖ה מִגִּלְעָ֑ד וּגְמַלֵּיהֶ֣ם נֹֽשְׂאִ֗ים נְכֹאת֙ וּצְרִ֣י וָלֹ֔ט הוֹלְכִ֖ים לְהוֹרִ֥יד מִצְרָֽיְמָה׃

And they sat down to eat bread: and they lifted up their eyes and looked, and, behold, a company of Yishme᾽elim came from Gil῾ad with their camels bearing gum balm and ladanum, going to carry it down to Miżrayim.

Here is the translation of this verse written by Saadia Gaon, (882–942 C.E) known as the Tafsir, which was written in Judeo-Arabaic:

ת̇ם ג̇לסו ואכלו טעאמא פרפעו עיונהם פנט̇רו פאד̇א בקאפלה אעראב ג̇איה מן אלג̇רש וג̇מאלהם מחמלה כ̇רנובא ותריאקא ושאהבלוט מארין ליחדרו ד̇לך אלי מצר

So according to Saadiah Gaon, one of the spices carried by the Yishmaeli camel caravan was theriac (תריאקא). It is an odd word choice, and might not mean to us today. But in the past, theriac certainly meant a great deal. So let’s jump into the history of theriac.

Theriac pot, 1782, from here.

Theriac in the Classical Jewish Sources

Theriac is mentioned in the Talmud, during a discussion of the benefits of a fever.

נדרים מא, ב

אָמַר רָבָא: הַאי אִישָּׁתָא, אִי לָאו דְּפַרְווֹנְקָא דְּמַלְאֲכָא דְמוֹתָא, מְעַלֵּי כְּחִיזְרָא לְדִיקְלֵי, חַד לִתְלָתִין יוֹמִין, וְכִי תִּירְיָיקִי לְגוּפָאי

Rava said: With regard to fever [ishta]…it is advantageous if its incidence is once in thirty days, and it is like an antidote [tiraiki] for poison in the body…

What might this “antidote” be? In his famous dictionary, Marcus Jastrow, explains תִּירְיָיקִי in this way:

Theriac is mentioned by the Rambam, (הל׳ חמץ ומצה 4:10) and in the Shulchan Aruch, the Code of Jewish Law. There we learn that should any chametz (leavened food) fall into your theriac on Passover, the mixture may be kept and used, despite the usual prohibition of mixtures of this sort. Good to know.

שולחן ערוך אורך חיים, 441

והתריאק"ה שנתן לתוכן חמץ מותר לקיימן בפסח שהרי נפסד צורת החמץ

In his commentary on our passage of Talmud, Rabbi Asher ben Jehiel (1250–1328), known as the Rosh, noted that theriac is made from all manner of spices. He would surely know this, because during the time in which he lived, theriac flourished. But theriac predated the Rosh by more than one thousand year. In fact the second century Greek physician Galen is thought to have authored an entire work De Theriaca ad Pisonem on the healing properties of theriac, and its use as an antidote to poison.

כי הטריאקה איננה סם אחד, אבל היא מרקחת רבת ההרכבה, יכנס בה שאור ודבש ובשר שקצים ורמשים, כי יכנסו בה אבק העקרבים ובשר האפעה, כי לכך נקראת כן, כי הארס בלשון יון תריאק. וכן בלשון תלמוד טרקיה חויא (שבת קט:), וכן הוזכרה המרקחת בלשונם כי טוריאקה לכוליה גופא (נדרים מא:), וחלילה שיכנס בקטורת בשר שקצים ורמשים ושאור

Theriac [called “triga” by Rashi] is not one ingredient but is a compound of many ingredients, containing leaven and honey, the flesh of forbidden animals and reptiles, for the powder of dried scorpions and the flesh of the viper go into it, this being the reason why it is so called [theriac], for “poison” in Greek is called theriac.

So also in the language of the Talmud:“Torkai (stung by) a serpent.” Similarly this compound is mentioned in the language [of the Rabbis]: “as theriac is good for the whole body.”’
— Ramban, Commentary to Ex. 30:34

Where did theriac come from?

The word theriac comes from the Greek term θηριακή (thēriakē), meaning "pertaining to animals,” from another word θηρίον (thērion), meaning a wild animal. It is from this word that word “treacle” is derived. Theriac may have originated in the second century BCE., where legend has it that it was developed as an antidote against poisoning by Mithridates VI, King of Pontus. Actually, the king seems to have had an unusual interest in this antidote; he is thought to have tested it on prisoners condemned to death, and hence theriac was once known as mithridatium. The original recipe (and there are many) contained as many as forty ingredients, and over the centuries theriac was variously concocted using all manner of things, although the most frequently listed were viper flesh, opium, wine, honey and cinnamon. Theriac was used for perhaps some two millenia (!) until it declined in popularity in the 18th century. Here, for example, is the Latin theriac recipe of Paul Guldenius, printed in Thorn in 1630. (It is one of only two surviving copies, held by the Gdansk Library of the Polish Academy of Sciences.)

The printed Paul Guldenius Theriac recipe (Gdansk Library of the Polish Academy of Sciences). From Raj. et al. The real Theriac – panacea, poisonous drug or quackery? Journal of Ethnopharmacology 2021: 11

And here is the translated list of the Guldenius recipe:

Also from Raj. et al.

Jews, Theriac and the Black Death

During the terrible outbreak of bubonic plague in the middle of the fourteenth century, and the many that followed, theriac was recommended for its preventive and curative properties. For example, it was discussed by the Italian Jew Abraham ben Hananiah Yagel (1553– c.1624). He was by any definition a polymath. His works include not one but two lengthy encyclopedias, a manual of belief “audaciously adapted from a Catholic manual” and a work in praise of women. But Yagel was first and foremost a physician, and it was in this role that in 1587 he published his first work, a short tract on plagues called Moshia Hosim [The Savior of Those Who Seek Refuge]. “Do not fear the warmth brought on by theriac,” he wrote, “for in small diluted doses it cannot harm anyone.” Those who were sick should dress in clean, comfortable clothes “for they stimulate the sense of touch” and should be surrounded with sheets soaked in a mixture of vinegar and theriac, as well as fresh flowers and sweet-smelling roses “for they uplift the sprits of the sick.”

What should you take if theriac was not available? Good question. Yagel recommended urine:

…those who are learned about nature have taught that it is useful and good to take the urine of a young, handsome, and healthy boy, and to drink it each morning. It will filter out the bad air [that causes the plague].

Hold off your criticism. Yagel here was indeed reflecting the best of contemporary medical thinking. The German medical historian Karl Sudhoff (1853– 1938), who made a career studying almost 300 plague texts from the early Middle Ages, noted that in one Latin treatise on health written in 1405, “older patients who were sometimes counseled to drink a boy’s fresh urine might (understandably enough) feel some nausea.” And the Italian physician named Dionysus Secundus Colle who recovered from the plague around 1348 had this to say: 

I have seen women gathering snails and capturing lizards and newts, which they asserted that, once they had all been burnt down to a powder . . . they administered two drachmas of it in a boy’s urine, and they cured and persevered many, and afterward I was compelled to investigate [this cure myself] and afterwards I cured many.

Theriac was also thought to prevent infection. Jacob Zahalon (1630– 1693), the author of Otzar Hahayyim [A Treasury of Life] described his work as both a physician and a rabbi during an outbreak of bubonic plague in Rome in 1656. The plague arrived from Spain and swept over southern Italy, killing over one million people; in the Jewish Ghetto in Rome, according to Zahalon, it lasted some nine months.

When the physician visited the sick, he would hold in his hand a large tar torch, burning it night and day to purify the air for his protection, and in his mouth he had theriac . . .

Poison antidotes figured prominently as wonder drugs, owing to their powers to cure poison alongside a wider variety of ailments. The ubiquitous theriac and its forerunner mithridatium were prime examples.
— Alisha Rankin, The Poison Trials: Wonder Drugs, Experiment and the Battle for Authenticity in Renaissance Science. The University of Chicago Press 2021. p150.

In a recent paper on the healing properties of theriac from a group of Polish researchers, the authors explain the theory behind the use of theriac:

The humoral doctrine, based on the views attributed as far back as to Hippocrates (5th/4th c. BC), assumed the existence in body of four basic substances called the humors. Disturbance of their balance or having them spoiled would cause disease. 

The[se] humoral physicians supposed that both for epidemic and intoxication the real cause was a “venom”, entering into body and corrupting its liquids. Hence, drugs believed to neutralize poisons, such as Theriac, were used when a “venom” was diagnosed. Therefore early modern medics recommended the treacle to be used in case of epidemics (when the toxin was considered e.g. airborne) as well as after poisoning, a snake or a rabid dog bite etc.

Contemporaries actually believed that Theriac is a potent anti-epidemic drug. After all, it was used not only during the outbreaks of bubonic plague, the early modern epidemic disease par excellence. For instance, in 1551, during the sudor anglicus outbreak, numerous English physicians regarded the treacle as a staple in prophylaxis, cure and treatment of that mysterious and contagious disease. In the 17th c., London physicians assumed that Theriac might resist measles outbreaks among children and young adolescents. Whereas in German-speaking territories in the 18th c. the treacle was used as a medicine against numerous types of “typhoid fevers” and typhus, smallpox, and other contagious diseases, including the cattle plague. In Muslim world, in turn, it was widely recommended during the outbreaks of cholera.

Fake Snake oil and Genuine Snake Oil

Over the centuries, theriac was concocted with all manner of different exotic ingredients. But how could the consumer be sure they were getting the real-deal theriac, and not some useless knock-off? Through a poison trial, obviously.

In her fascinating recent book The Poison Trials: Wonder Drugs, Experiment and the Battle for Authenticity in Renaissance Science, Alisha Rankin, a professor of history at Tufts University in Boston describes how theriac and other wonder drugs were tested. Often, a pair of criminals condemned to death would be used. They were given a poison like aconite (which comes from a genus of flowering plants which includes monkshood) and then one of them received the theriac. One such Poison Trial took place in 1524 and was overseen by the physician to Pope Clement VII. Here is Rankin:

Led by the pope’s personal physician Paolo Giovio, the doctors gave both prisoners a good quantity of a deadly aconite called napellus, enough to kill “not merely two men, but one hundred.” As the poison took effect, the prisoners started to gesticulate wildly and cry out from the pain in their hearts. Immediately, Caravitia [a surgeon who had created the antidote and offered it to the pope] anointed one of them with some of the oil, and the man’s heart and pulse quickly returned to normal. The other prisoner, who was given no antidote, died in great agony…

Less than two weeks later, a four-page pamphlet appeared in print, described as a “Testimony of the most true and admirable virtues of a composite oil against plague and all poison, with which an experiment was conducted by distinguished men, at the command of the Supreme Pontiff Pope Clement VII, in the Roman Capitoline edifice.”

Still, these trials did not convince everyone. Galen had written that “there is much trickery practiced about the drug by tricksters.” During the Renaissance period, there was concern that the theriac was inferior or outright fraudulent. The same concerns were raised about another cure-all: unicorn horn, and apothecaries had to go to great lengths to prove to the satisfaction of their customers that the horn came from a genuine unicorn.

But did it work?

It probably goes without saying, but I will say it anyway. There is nothing that we today would count as scientific evidence to suggest that theriac, in any of its recipes, actually worked. The same group of Polish researchers we cited above carefully reconstructed theriac from that the recipe of Paul Guldenius (and you can read their fascinating paper here). They concluded that “only two species included in Theriac can be harmful in humans: poppy and sea squill, but in both cases the calculated quantity of morphine and cardiac glycosides, respectively, were below toxic level.” Well at least that. And here are some more of their observations:

Summing up the results, due to the extreme complexity of the Theriac recipe after theoretical analysis it is easier to say what pharmacological effect the medicine did not have than what it actually had. Historical and phytochemical investigations have consistently shown that – at least in the Early Modern period – the assumptions regarding narcotic or toxic effects of Theriac are not supported by the results. On the other hand, taking into account the compounds one can expect positive results in antioxidant tests or antimicrobial and anti-inflammatory activity. Still, at the moment there is no indication that the famous panacea’s efficacy in the main indications was based on anything more than just a placebo effect.

This too, seems to have been understood by at least one talmudic rabbi. In reply to Rava’s statement that having a fever once every month was “as good as theriac,” his contemporary Rav Nahman bar Yitzchak had this brief retort:

לָא הִיא וְלָא תִּירְיָיקָה

- Give me neither a fever nor theriac!

אַחֵינוּ כָּל בֵּית יִשְׂרָאֵל

הַנְּתוּנִים בַּצָּרָה וּבַשִּׁבְיָה

הָעוֹמְדִים בֵּין בַּיָּם וּבֵין בַּיַּבָּשָׁה

הַמָּקוֹם יְרַחֵם עֲלֵיהֶם

וְיוֹצִיאֵם מִצָּרָה לִרְוָחָה

וּמֵאֲפֵלָה לְאוֹרָה

וּמִשִּׁעְבּוּד לִגְאֻלָּה

הָשָׁתָא בַּעֲגָלָא וּבִזְמַן קָרִיב

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Bava Kamma 32a ~ Liability for Intimate Injuries

בבא קמא לב,א

בעא מיניה רבה בר נתן מרב הונא המזיק את אשתו בתשמיש המטה מהו כיון דברשות קעביד פטור או דלמא איבעי ליה לעיוני

Rabbah bar Nassan asked Rav Huna this question: If a man injured his wife during sexual intercourse, what is the law regarding his liability? Do we say that since he is acting with permission of his wife, he is not liable? Or perhaps we say that he should have been more careful to avoid injuring his wife, and therefore he is liable to pay her damages? (Bava Kama 32a)

In the daf we will learn tomorrow, the Talmud records a series of legal precedents to help decide this perplexing question, and concludes that a wife does not have any legal culpability in causing her injury, however active or passive she may have been. Therefore, the husband is legally deemed responsible for damages and must compensate his wife, which is codified in the authoritative Code of Jewish Law (שולחן ערוך אבן העזר סימן פג ,ב).

Intimate Injures in the Medical Literature

The Talmud’s case discussion is not simply theoretical. Injuries during consensual sexual intercourse are not uncommon, and over the years I’ve treated several in the emergency department. Because of sexual taboos however, the amount of scientific knowledge in this area has been very limited, particularly regarding the female. In one (very small) study, about 5% of women reported an injury after consensual intercourse, compared with 41% of the woman who were forced to have non-consensual intercourse.

A more recent study from the University of Manchester in England evaluated genital injuries in a cohort of 68 women who had recently had consensual penile-vaginal intercourse, and compared them with a group of 500 women who had been victims of non-consensual penile-vaginal intercourse. Of the 68 women, one (1%) had a single injury, and three (4%) had more than one injury.  One woman had a laceration, another had an abrasion, and a third had bruising.  The posterior fourchette was the most commonly injured area both in women who had consensual intercourse and those in whom intercourse was not consensual. 

Another study, from emergency medicine researchers, looked at the rates of genital injury in adolescents (aged 13-17) who had either consensual (51 women) or non-consensual (204 women) sexual intercourse. They found rates far higher than the Manchester study: anogenital trauma was documented in 73% of adolescent females after consensual sexual intercourse (versus 85% of victims of sexual assault). The researchers helpfully add that several predisposing factors have been suggested: “first coitus, rough or hurried coitus, intoxication, variant coital positions, anatomical disproportion, mental factors (fear of discovery), postmenstrual state, and clumsiness.” (Really. Clumsiness.)

Men Too

Rabbah bar Nassan’s legal question concerned only the husband causing damage to his wife, and does not address another kind of coital injury: that caused of husband.  One of these injuries is a penile fracture, and over the last six decades about 1,330 cases have been reported in 183 medical publications. I’ve treated these too. But don’t worry: they are a lot worse than they already sound. Sexual intercourse is the most common cause, and inexplicably, “more than half of the [reported] cases are from Mediterranean countries including Turkey.” Here, for example, is a case in the Asian Journal of Urology published last June:

A 54-year-old male presented to the emergency department with penile injury. The trauma occurred when the patient was having sexual intercourse with his wife at around 2 o’clock in the early morning. His wife kneeled forward and he penetrated from behind. The patient then accidentally collided his penis into his wife’s buttocks. He felt a popping sensation and reported rapid detumescence followed by severe penile pain and hematoma formation.

And here are the causes and complications of a fracture of the penis in 32 unhappy men treated in the Department of Urology in Tehran.

Asgari, MA. Hosseini, SY. Safarinejad, MR. et al. Penile  Fractures: Evaluation, therapeutic approaches and long-term results. The Journal of Urology 1995: 155; 148-149. 

Asgari, MA. Hosseini, SY. Safarinejad, MR. et al. Penile  Fractures: Evaluation, therapeutic approaches and long-term results. The Journal of Urology 1995: 155; 148-149. 

Rabbah bar Nassan asked only about the rights of a wife to claim compensation for intimate injuries from her husband. But he might well have asked the question about compensation for the husband. In this age of equality, it seems only fair.

שולחן ערוך אבן העזר הלכות כתובות סימן פג סעיף ב 

המזיק את אשתו בתשמיש המטה, חייב בנזקיה 

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Talmudology on the Parsha, Vayishlach: Maternal Mortality

35:18 בראשית

In this week’s Torah there is a moving account of the postpartum death of Rachel.

וַיְהִ֥י בְהַקְשֹׁתָ֖הּ בְּלִדְתָּ֑הּ וַתֹּ֨אמֶר לָ֤הּ הַמְיַלֶּ֙דֶת֙ אַל־תִּ֣ירְאִ֔י כִּֽי־גַם־זֶ֥ה לָ֖ךְ בֵּֽן׃ וַיְהִ֞י בְּצֵ֤את נַפְשָׁהּ֙ כִּ֣י מֵ֔תָה וַתִּקְרָ֥א שְׁמ֖וֹ בֶּן־אוֹנִ֑י וְאָבִ֖יו קָֽרָא־ל֥וֹ בִנְיָמִֽין׃ וַתָּ֖מת רָחֵ֑ל וַתִּקָּבֵר֙ בְּדֶ֣רֶךְ אֶפְרָ֔תָה הִ֖וא בֵּ֥ית לָֽחֶם׃ וַיַּצֵּ֧ב יַעֲקֹ֛ב מַצֵּבָ֖ה עַל־קְבֻרָתָ֑הּ הִ֛וא מַצֶּ֥בֶת קְבֻֽרַת־רָחֵ֖ל עַד־הַיּֽוֹם׃

And it came to pass, when she was in hard labour, that the midwife said to her, Fear not; thou shalt have this son also.And as her soul was departing (for she died), she called his name Ben-oni: but his father called him Binyamin. And Rachel died, and was buried in the way to Efrat, which is Bethlehem.

Rachel died shortly after giving birth. In this, she was unique among the Four Mothers of the Jewish people. But even relatively recently, her death would certainly not have been unusual or unexpected.

MATERNAL DEATH RATES

Maternal deaths are defined as by the World Health Organization as the death of a woman whilst pregnant or within 42 days of delivery or termination of pregnancy, from any cause related to, or aggravated by pregnancy or its management, but excluding deaths from incidental or accidental causes. Worldwide, there are at least 287,000 such deaths each year. A recent study of maternal deaths in 115 countries noted that there are three main causes: Bleeding, high blood pressure (leading to complications like eclampsia) and infection.  Here in the US, maternal deaths are among the highest in the developed world. Each year, 700-900 women die from pregnancy or childbirth-related causes, or about 14 per 100,000 live births. By comparison, the rate in Israel is 5 deaths per 100,000 live births.

Semmelweiss and Dirty Hands

Tragic as each of these deaths are, it was once a lot worse, and in the nineteenth century doctors played a major role in causing maternal deaths.  In Vienna, Dr. Ignaz Semmelweiss (d. 1865) noted that the death rates in one maternity ward were three or four times higher than in a second ward. He suggested, after much sleuthing, that the cause was the dirty hands of medical students. These students came straight from performing autopsies to examining their pregnant and post-partum patients, with no hand washing in between. In an era before the germ theory of disease, his suggestion that something was carried on the hands of the medical students was widely ignored, but he instituted compulsory hand-washing anyway. And within a year the death rate dropped to zero.

From here.

Over the past century the maternal death rate in the US has declined by over 99%,That is the good news. But the US maternal death rate has actually been increasing over the last few years. In 2018 it was 17.4/100,000 births. In 2020 it had climbed to an astonishing 23.8/100,000 births, and is over twice that in Black mothers.

Maternal Mortality in High Income Countries. Deaths per 100,000 live births

The maternal mortality ratio is defined by the World Health Organization as the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes. 2015 data for FRA; 2017 data for UK; 2018 data for NZ; 2019 data for SWIZ; 2020 data for AUS, CAN, GER, JAP, KOR, NETH, NOR, SWE, and US.

Data for all countries except US from OECD Health Statistics 2022. Data for US from Donna L. Hoyert, Maternal Mortality Rates in the United States, 2020 (National Center for Health Statistics, Feb. 2022).

Source: Munira Z. Gunja, Evan D. Gumas, and Reginald D. Williams II, “The U.S. Maternal Mortality Crisis Continues to Worsen: An International Comparison,” To the Point (blog), Commonwealth Fund, Dec. 1, 2022. https://doi.org/10.26099/8vem-fc65.

The racial disparities are startling.

From Fleszar LG, Bryant AS, Johnson CO, et al. Trends in State-Level Maternal Mortality by Racial and Ethnic Group in the United States. JAMA. 2023;330(1):52–61. doi:10.1001/jama.2023.9043

This week’s parsha is a reminder of the risks that are associated with childbirth, and how fortunate we are to have reduced them substantially. But there is still much more work to do.

אַחֵינוּ כָּל בֵּית יִשְׂרָאֵל

הַנְּתוּנִים בַּצָּרָה וּבַשִּׁבְיָה

הָעוֹמְדִים בֵּין בַּיָּם וּבֵין בַּיַּבָּשָׁה

הַמָּקוֹם יְרַחֵם עֲלֵיהֶם

וְיוֹצִיאֵם מִצָּרָה לִרְוָחָה

וּמֵאֲפֵלָה לְאוֹרָה

וּמִשִּׁעְבּוּד לִגְאֻלָּה

הָשָׁתָא בַּעֲגָלָא וּבִזְמַן קָרִיב

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Bava Kamma 27 ~ Bizarre Talmudic Scenarios

On this page of Talmud we read of a very bizarre case:

בבא קמא כז, א

 אָמַר רַבָּה: נָפַל מִן הַגָּג וְנִתְקַע — חַיָּיב בְּאַרְבָּעָה דְּבָרִים, וּבִיבִמְתּוֹ לֹא קָנָה. בְּנֵזֶק, בְּצַעַר, בְּשֶׁבֶת, בְּרִפּוּי. אֲבָל בּוֹשֶׁת לָא מִיחַיַּיב, דְּאָמַר מָר: אֵין חַיָּיב עַל הַבּוֹשֶׁת עַד שֶׁיִּתְכַּוֵּון

Rabba said: One who fell from a roof and was inserted into a woman due to the force of his fall is liable to pay four of the five types of indemnity that must be paid by one who damaged another, and if she is his yevama he has not acquired her in this manner. He is liable to pay for injury, pain, loss of livelihood, and medical costs. However, he is not liable to pay for the shame he caused her, as the Master said: One is not liable to pay for shame unless he intends to humiliate his victim…

As weird Talmudic cases go, this is among the weirdest. It is entirely impossible, and not least because this would happen. Did the rabbis of the Talmud really believe that such a case could occur? To answer this, let’s consider come other rather implausible cases from across the Babylonian Talmud.

 The AMAZING Shechita Knife

We begin with a fanciful question that is somewhat analogous to falling intercourse case. What happens if a person throws a knife across the room, but in doing so the flying knife somehow manages to cut the neck of an animal in just the correct fashion to perform a kosher shechita (ritual slaughter). Is the meat of this slaughtered animal kosher?

חולין לא, א

דתני אושעיא זעירא דמן חבריא זרק סכין לנועצה בכותל והלכה ושחטה כדרכה ר' נתן מכשיר וחכמים פוסלים הוא תני לה והוא אמר לה הלכה כר' נתן

Oshaya, the youngest of the company of Sages, taught a baraita: If one threw a knife to embed it in the wall and in the course of its flight the knife went and slaughtered an animal in its proper manner, Rabbi Natan deems the slaughter valid and the Rabbis deem the slaughter not valid. Oshaya teaches the baraita and he says about it: The halakha is in accordance with the opinion of Rabbi Natan that there is no need for intent to perform a valid act of slaughter.

 The Fish That Pulled a Plough

The Bible (Deuteronomy 22:10) forbids a farmer to plough his land using an ox and a donkey together. While no reason for this law is given, we might suppose it has something to do with the concern that doing so might cause unnecessary pain to the smaller (or perhaps the larger?) animal. Regardless of the reason, later in our tractate the Talmud explains that this law applies to any kind of work and any two different species of animal. Then comes this fantastic question: “What is the law if someone pulls his wagon using a goat and a fish?” 

בבא קמא נה, א

בעי רחבה המנהיג בעיזא ושיבוטא מהו מי אמרינן כיון דעיזא לא נחית בים ושיבוטא לא סליק ליבשה לא כלום עביד או דלמא השתא מיהת קא מנהיג

The Sage Rachava raised a dilemma: With regard to one who drives a wagon on the seashore with a goat and a shibbuta, a certain species of fish, together, pulled by the goat on land and the fish at sea, what is the halakha? Has he violated the prohibition against performing labor with diverse kinds, in the same way that one does when plowing with an ox and a donkey together, or not?

This turned out to be such a hard question that the Talmud could not answer it. The Rosh concludes though that just to be sure, best not to hitch up your wagon to a fish, if you also intend for it to be pulled by a goat (ולא איפשיטא ואזלינן לחומרא). Don’t say you weren’t warned.

The Bird that built her nest on a person’s head

The Bible also demands that the mother bird must be shooed away before collecting the eggs upon which she is brooding. But what happens if a bird makes her nest in a person’s hair? Must this mother be driven away before her eggs are collected? (Chullin 139b)

חולין קלט, ב

אמרי ליה פפונאי לרב מתנה מצא קן בראשו של אדם מהו? אמר (שמואל ב טו, לב) ואדמה על ראשו

The residents of Pappunya said to Rav Mattana: If one found a nest on the head of a person, what is the halakha with regard to the mitzva of sending away the mother? Is the nest considered to be on the ground, such that one is obligated in the mitzva? Rav Mattana said to them that one is obligated in the mitzva in such a case because the verse states: “And earth upon his head” (II Samuel 15:32), rather than: Dirt upon his head, indicating that one’s head is considered like the ground. 

(And just to be clear - the Talmud is not discussing a case like this one, in which a woman allowed an abandoned fledgling to nest in her long har for 84 days, though it is, I will admit, a very touching story.)

One hypothetical too many

Sometimes, even bizarre questions can go too far. If a baby pigeon is found within 50 cubits of a coop, it is presumed to belong to the owner of that coop. If it is found further away than 50 cubits, it belongs to the finder. Ever keen to push the limits of rabbinic law, Rabbi Yirmiyah asked “if one foot of the pigeon is within the fifty cubits and one foot is outside, to whom does it belong?” This apparently was one question too many. The rabbis (rather unfairly in my opinion) expelled Rabbi Yirmiyah from the Yeshivah for asking it.

בבא בתרא כג, ב

בָּעֵי רַבִּי יִרְמְיָה רַגְלוֹ אַחַת בְּתוֹךְ חֲמִשִּׁים אַמָּה וְרַגְלוֹ אַחַת חוּץ מֵחֲמִשִּׁים אַמָּה מַהוּ וְעַל דָּא אַפְּקוּהוּ לְרַבִּי יִרְמְיָה מִבֵּי מִדְרְשָׁא

Rabbi Yirmeya raises a dilemma: If one leg of the chick was within fifty cubits of the dovecote, and one legwas beyond fifty cubits, what is the halakha? The Gemara comments: And it was for his question about this far-fetched scenario that they removed Rabbi Yirmeya from the study hall, as he was apparently wasting the Sages’ time. 

The Role of Bizarre cases

In a 2004 paper published in Thalia: Studies in Literary Humor, Hershey Friedman, a Professor of Business at Brooklyn College, suggested that “whether a situation is possible or not is immaterial when the Talmud is trying to establish legal principles.”  

Purely theoretical (at least in their days) cases are discussed because the sages felt that principles derived from these discussions would clarify the law and thus provide a more thorough understanding of it. Discussions of theoretical cases in the Talmud have allowed scholars of today to use the Talmudic logic and principles to solve current legal questions 

The theoretical questions make a legal point, and it is that legal point that is the real object of the discussion. Whether or not the case could actually happen is immaterial. Friedman also suggests that these unusual cases serve to keep the material interesting, and also act as brain teasers, which don’t necessarily make a legal point but serve to sharpen the minds of both the students and the teachers who ask them.

There was a time, not many years ago, when a lawyer could feel reasonably confident as he approached oral argument in the United States
Supreme Court if he had thoroughly absorbed the record in his case and
had obtained a working knowledge of all relevant cases. No longer. Today, an advocate must, more than ever before, prepare himself for a
stream of hypothetical questions touching not only on his own case but on
a variety of unrelated facts and situations.
— E. Barrett Prettyman Jr., The Supreme Court's Use of Hypothetical Questions at Oral Argument, 33 Cath. U. L. Rev. 555 (1984). 555.

 Hypothetical Cases in the US Legal System

It may help to understand the role that these weird cases have in the Talmud by understanding that hypothetical cases have an important role to play in many legal systems, including that of the United States. Consider this series of questions that were asked in the famous 1984 case of California vs Carney. Police officers entered a motor home without a search warrant, and found marijuana. The question before the court was whether this motor home was a more like a car, which should not require a search warrant, or more like a home, which would. There were various appeals, and the case ended up being heard in front of the US Supreme Court, which is where the following hypothetical questions were raised:

Q: Well, what if the vehicle is in one of these mobile home parks and hooked up to water and electricity but still has its wheels on?

Q: Suppose somebody drives a great big stretch Cadillac down and puts it in a parking lot, and pulls all the curtains around it, including the one over the windshield and around all the rest of them. Would that be a home?

Or how about this exchange back in 1982, (and the subject of which is once again a hot topic of debate in the US). In Board of Education v.Pico, the question before the Court was whether a public school board could remove books which it found to be objectionable from the shelves of junior and senior high school libraries, in order to promote the community's "moral, social, and political values." 

Q: Suppose they [the Board] barred the St. James version of the New Testament, and the Constitution of the United States, and the Declaration of Independence?

Q: Suppose some of these books were assigned as outside reading, and the children were told, you can get it in the public library?

Q. Suppose you had a book, counsel, that had been the subject of criminal proceedings, and conviction of someone in connection with that book had been sustained, a criminal conviction. Would you say that the book comes under this broad authority you suggest? 

(By the way, the Court, in a 5-to-4 decision, held that as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the School Board could not restrict the availability of books in its libraries simply because its members disagreed with their content. That might be useful to remember.)

There are many, many similar examples. Here is one of my favorites. It comes from United States v. Ross, in which the defendant’s lawyer argued that a small brown paper bag should not have been searched for narcotics because it was protected under the Fourth Ammendment, the right against unlawful search. Here is one of the hypotheticals:

Q: Suppose what they were hunting for was, say, a waffle iron, a stolen waffle iron, or something else that couldn't go in the paper bag. You might have probable cause to search the car for the waffle iron, but if you got to the paper bag, you wouldn't be searching it, would you?

Commenting on this case, the late American lawyer Elijah Barrett Prettyman Jr. (d. 2016) wrote that “one cannot help but be impressed with how far removed some hypotheticals are from the facts before the Court. In Ross, the brown paper bag case, one Justice had the police hunting for a waffle iron.”

Why we need Hypotheticals

Hypothetical cases are really important when the Supreme Court is trying to figure out the difficult cases that come before it. And they are all difficult cases, because if they were easy, the Supreme Court wouldn’t be considering them. The rabbis of the Talmud needed to do the same, which is why they often consider outlandish, implausible or downright fanciful cases to ponder.

The best way to think about these cases is to add in the following missing words: “Hypothetically, what would happen if…” Then, as if by magic, they cease to be silly and start to be really important.

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