I was taught to only attempt answering one of R. Akiva Eiger's questions indirectly. This famously brilliant scholar wrote a series of glosses on the entire Talmud, published as Gilyon Ha-Shas, often containing cryptic references to apparently contradictory texts. The challenges R. Eiger posed are substantial. Given his sharp mind, I was taught, he had certainly considered any direct answer and rejected it. Therefore, any obvious answer cannot be correct. You instead have to approach the problem indirectly and challenge assumptions. R. Chaim Dov Chavel published a book explaining R. Eiger's questions, summarizing answers that have been proposed and occasionally offering his own answers. However, he only covered a few tractates (the book was originally a series of articles in Ha-Darom, the rabbinic journal R. Chavel edited). What follows is my attempt to answer one of R. Eiger's questions that R. Chavel did not reach, proposed tentatively for your consideration.

Dead Man Walking

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I. The Great Rabbi Akiva Eiger

I was taught to only attempt answering one of R. Akiva Eiger’s questions indirectly. This famously brilliant scholar wrote a series of glosses on the entire Talmud, published as Gilyon Ha-Shas, often containing cryptic references to apparently contradictory texts. The challenges R. Eiger posed are substantial. Given his sharp mind, I was taught, he had certainly considered any direct answer and rejected it. Therefore, any obvious answer cannot be correct. You instead have to approach the problem indirectly and challenge assumptions.

R. Chaim Dov Chavel published a book explaining R. Eiger’s questions, summarizing answers that have been proposed and occasionally offering his own answers. However, he only covered a few tractates (the book was originally a series of articles in Ha-Darom, the rabbinic journal R. Chavel edited). What follows is my attempt to answer one of R. Eiger’s questions that R. Chavel did not reach, proposed tentatively for your consideration. I am fairly out of my depth in this, so I appreciate informed critiques.

II. A Terminal Murderer

The Gemara (Bava Kamma 84a), as part of a lengthy discussion why punishments cannot be the same as the crime, compares the cases of a blind man blinding someone and a terminally ill man who murders. In the first case, the criminal cannot be punished in exactly the same way that he injured his victim because the perpetrator is already blind. And in the latter case, the criminal cannot be punished with his crime because, as Rashi explains, his terminal illness renders any witnesses invalid. Since the criminal is already condemned (gavra keteila), the witnesses are trying to execute someone who will die anyway. Rebuttal witnesses (eidim zomemim) would not be able to inflict on the original witnesses exactly what they are trying to inflict on the perpetrator. This inability to be rebutted invalidates the original witnesses (eidus she-i attah yakhol le-hazimah). Therefore, the criminal cannot be punished.

R. Akiva Eiger (Gilyon Ha-Shas, ad loc.) challenges Rashi’s interpretation. According to it, the two cases of the Gemara are very different. In the first case, the court convicts the criminal but cannot punish him. In the second, the court cannot even be sure he is guilty because they lack testimony about his crime. Instead, R. Eiger (Chiddushim, ad loc.) suggests the Gemara is discussing when a terminally ill man murders in front of the court, in which case testimony is unnecessary.

III. Time of Punishment

In responding to R. Eiger’s challenge, I suggest that he is basing himself on an assumption he makes elsewhere, one which Rashi would not accept. R. Eiger assumes that a criminal is not subject to punishment until a court imposes it. However, according to Rashi, a criminal is immediately subject punishment on committing the crime but no one may impose that punishment until a court has tried and sentenced him. This can be seen in the following case:

If witnesses testify that a condemned man (gavra keteila) murdered someone else, and then they were rebutted, they are not executed because the man about whom they testified was already condemned. However, the Gemara (Makos 5a) states that if the murderer was not a condemned man but the rebuttal witnesses testify that the original witnesses lied and the murderer committed his crime the day before, the false witnesses do not receive the same exemption. In the first case, the man about whom they testified was already convicted and sentenced for execution (he was a gavra keteila), so the false witnesses are exempt. In the second case, the rebuttal witnesses testified that the criminal murdered before the original witnesses testified, but he had not yet been convicted and sentenced (he was not a gavra keteila). Therefore, the exemption does not apply.

Why doesn’t the exemption apply? Rashi (ad loc., sv. ke-she-ba’u) explains that when the original witnesses testified, the later testimony had not yet been introduced and the criminal could have, in theory, admitted the crime and avoided punishment. Since he could have avoided punishment, we do not consider him a condemned man (a gavra keteila). Tosafos (ad loc., sv. de-be-idna) disagree that a murderer who confesses is free from punishment. Rather, they explain, since witnesses about the prior crime have not yet arrived, and all are forbidden to kill him before a trial, he cannot be considered a condemned man.

IV. Self-Punishment

R. Akiva Eiger (Gilyon Ha-Shas, ad loc.) is puzzled by the debate between Rashi and Tosafos. Someone who steals must repay his theft even without a trial. But a criminal is not subject to punishment, as opposed to remuneration, until a court imposes it. There is no punishment without a trial. Therefore, there is no need to say that the criminal may admit his crime or that people are fobidden to kill him. Before the trial, he is not considered condemned (gavra keteila) because the punishment has not yet been decreed.

The dispute between Rashi and Tosafos on the one hand and R. Akiva Eiger on other is whether a criminal is automatically subject to punishment when he commits a crime. According to Rashi and Tosafos, the trial is only to determine whether he actually commited the crime. According to R. Akiva Eiger, it is also to impose a punishment. The practical difference between the two views is whether a criminal should ideally punish himself. R. Akiva Eiger explicitly says he should not. According to Rashi and Tosafos, presumably he should. R. Ya’akov Emden (She’eilas Ya’avetz, vol. 1 no. 43) rules explicitly that someone who committed a capital offense should execute himself.

V. Parallel Cases

Returning to our cases in Bava Kamma, according to R. Akiva Eiger, the terminally ill man is exempt from murder because he cannot be tried for the crime. No testimony can be accepted due to a technicality. This is not parallel to the case of a blind man who blinds another, who can be convicted but cannot be punished in the same way he committed his crime.

However, according to Rashi and Tosafos as explained above, the terminally ill murderer is automatically condemned to be punished for his crime. The court merely cannot impose that punishment, due to uncertainty of guilt and/or lack of valid testimony. However, the criminal really is liable for that punishment and only exempt due to the court’s impotence in this case. It is, therefore, parallel to the case of the blind man who blinds in which case, also, the court is unable impose the deserved punishment. In both cases the court’s impotence prevents it from imposing on the perpetrator the punishment for which he is liable.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

17 comments

  1. nice to see a “normal” talmudic point on this site.

  2. is this the book you refer to in the second paragraph?
    משנתו של הגאון רבי עקיבא איגר ב”גליון הש”ס” / עם מבוא, ביאורים והערות מאת חיים דוב שעוועל.
    ירושלים ; ניו-יורק : מוסד הרב קוק, תשי”ט- , 1959-

    I think not, because I’ve seen copies of Hadarom from the 1970s where he is answering the questions of the Gilyonei Hashas

  3. I must be missing something. What’s the question and whats the answer? When I read this, I felt like the answer was the question. You still have a contradiction between R Eiger and Rashi/Tosofot. Should you be trying to find how they don’t contradict?

  4. Last line should read; Shouldn’t you be trying to figure out how they don’t contradict?

  5. R. Akiva Eiger asks a question on Rashi and Tosafos. Obviously, they can’t agree.

  6. Very nice post! What is the name of the Chavel Sefer to which you refer?

  7. I’m curious, from a historical persepctive, how the legend of RA Eger arose. Specifically, why only with him do we hear this idea that if you answer his question, it means you didnt understand the question. Tosafos – rishonim! – ask scores and scores of unresolved questions on Rashi or the Gemara, and no one has any qualms about answering them. If one sets aside the legend, there is nothing about his questions that jump out at the reader more than any other achron on shas. So why the hullablaoo?

    I think its because of a publishing quirk. There are relatively few notes of R.A. Eger on the side of the page. [I think , but am not sure, this is because the printer was just using RAE’s marginalia that he happened to have access to.] Consequently, the impression arose that these were the only notes RAE had on the gemara. Yes, people must have been aware of other volumes, but subliminally they were set aside, as many things are set aside in the jewish mind when they conflcit with a romantic notion. If he had so few comments on the shas, accordingly, any single question he did feel necessary to record must have been an absolute bombshell, incapable of an answer.

    Two things also I think contributed to the creation of the legend with RAE over other achronim: a) he was better known, being the father in law of the Chasam Sofer and father of a well-known family in both litvishe and chassidishe circles; and b) his propensity to add little notes like “may God enlighten my eyes” at the end of his questions gave them something of a cachet.

    All rank speculation on my part. Would like to hear from someone who actually knows something.

  8. I think it’s from experience studying his works and seeing the depth. I believe Rav Soloveitchik identified R. Akiva Eiger as the precursor to the Brisker method.

  9. But I would suggest the legend (ie, the sayings) you heard as a young teenager colored your impressions of the depth. [Like Chabad hears all sorts of legends about the Baal Hatanya, and consequently they are able to “see” depths to the Tanya that nobody else can.] Objectively, are his chiddushim any more or less profound than, eg, the Pnei Yeshua?

    To my suggestions above as to the cause of the legend, I would also add writing style. Often the less clear a writer is, the more profundity one attributes to the work.

  10. Rabbi Joshua Maroof

    I think what makes RAE’s questions stand out is that he identifies seemingly insoluble contradictions in a clear and direct, non-pilpulistic manner that immediately grabs you.

  11. shaul shapira

    Shkoyach for the lomdishe vort! Kama He’aros (lulay demistefina).
    1)Even according to Rashi/Tosafos, a treifa is still totally different and mufka from any kind of eidus. 1a)I still wonder why he wouldn’t want to learn like RAE pshat.
    2)Totally aside from this vort, I had a real hard time with rashi. Since when is there a modeh b’knas by misa?
    3)If we’re being yeshivish anyway, why not call him Reb Akiva Eiger? Have you ever heard someone say over a shtikkel from Rabbi Eiger?! (:

  12. Fotheringay-Phipps

    ISTM that you’ve misunderstood RAE’s question.

    RAE doesn’t just say “these two cases are different”. His question is specifically about the context of the similarity (which you’ve omitted here).

    The Gemara attempts to prove that Ayin Tachas Ayin cannot be literal, because if this were so, then sometimes it would not be possible to carry out, in the case of a blind person who blinds someone. The Gemara refutes this by establishing that there are punishments which are sometimes impossible to carry out. The example for this is a treifah who murders. Since in the case of a treifa who murders the death sentence can’t be carried out – and yet all agree that the death sentence is a legitimate punishment – then it is established that not all punishments can be carried out in all circumstances, and so too this could theoretically be the case with ATA.

    RAE’s problem is with Rashi. Rashi says that the reason the punishment (for a treifa) can’t be carried out is because of problems with the testimony. If this is the case – asks RAE – then the reason why the punishment is not being carried is because we don’t have actual legitimate evidence that the treifa killed anyone. If that’s the case, then you can’t establish from this situation that some punishments are sometimes impossible to carry out. Because NO punishments are carried out in circumstances where there’s no evidence of guilt. The fact that you don’t carry out a punishment without evidence of guilt cannot be used to establish a principle that you (sometimes) don’t carry out punishments even with proof of guilt. As such, this would not suffice as a refutation of the proof that ATA cannot be literal.

    None of what you’ve written has any relevance to this.

  13. “Fotheringay-Phipps, Thank you for that comment. NOW the post makes sense to me.

  14. FP: That is precisely what this post addresses. Is punishment something that inherently devolves on the perpetrator or does the beis din impose it? If it’s the former, then issues of evidence and other judicial procedure are irrelevant to what the punishment is. The punishment is chal at the time of the criminal act and whether a beis din can actually carry it out is entirely separate. Since a chiyuv misah is not chal on a tereifah she-harag but is otherwise chal on the same criminal act, we see that sometimes the same act can receive different punishment depending on the perpetrator.

    If punishment is imposed by the beis din, as assumed by RAE, then issues of testimony and procedure are precisely the matter of discussion and the refutation from tereifah she-harag does not work.

  15. Lawrence Kaplan

    Gil: I do think your answer, contra FP, does serve to answer the question of RAE, but I have to say that FP explained RAE’s question more clearly than you.

  16. Fotheringay-Phipps

    Hirhurim: “Is punishment something that inherently devolves on the perpetrator or does the beis din impose it? If it’s the former, then issues of evidence and other judicial procedure are irrelevant to what the punishment is. The punishment is chal at the time of the criminal act and whether a beis din can actually carry it out is entirely separate. Since a chiyuv misah is not chal on a tereifah she-harag but is otherwise chal on the same criminal act, we see that sometimes the same act can receive different punishment depending on the perpetrator.”

    Consider this. What’s the Gemara adding from the (relatively uncommon) case of treifa? Let’s suppose the case of treifa did not exist. I’ll prove that sometimes punishments can’t be carried out. Sometimes a guy kills someone and there are no witnesses. The guy is a murderer and yet he gets no punishment. This proves that sometimes punishments can’t be imposed, so that you can’t prove that ATA can’t be literal.

    I think no one would consider this a valid refutation. There’s no reason to assume that any sin has to always be done in the presense of witnesses, and no specified punishment can be expected to preclude situations where there are no witnesses.

    I would assume you would agree with that. Considering that, RAE’s question is simply that disqualified witnesses are the same as no witnesses at all, and the case of treifa reduces to the above case.

    The above is all true even if one were to hold that the punishment inherently devolves on the perpetrator.

    [FWIW, I am also skeptical as to whether your interpretation of Rashi & Tosafos is correct. But I’ve not looked into this recently, and I don’t think it’s at all relevant, as above.]

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