ט״ז באדר ה׳תשע״ה (March 7, 2015)

Ketubot 33a-b: A Punishment More Severe than Death

Which is the more severe punishment: mitah (a death penalty) or malkot (lashes)?

Over the past few dapim, when discussing kim lei be-derabah minei, the rule that allows a person to receive only one punishment – the more severe one – when he commits an act for which he is liable to receive two separate punishments, we have worked with the assumption that the death penalty is more severe than malkot. Rav seems to suggest otherwise, and is quoted by Rav Ashi in questioning the assumption. In discussing the story of Hananiah, Mishael and Azariah, who were Daniel’s companions who refused to bow to Nebuchadnezzar’s idol (see Daniel chapter 3) and as punishment were thrown into the fiery furnace, Rav suggests that had they been whipped, they would have relented and bowed to the idol. Thus it appears that malkot was deemed a more severe punishment than mittah. In response, the Gemara brings Rav Samma who distinguishes between the whipping that the three martyrs would have received as punishment that would have effectively been torture, and the lashes meted out by the Jewish courts, which were carefully controlled. He explains that the former may well have been considered a punishment worse than death, while the latter certainly are not.

Rav’s teaching was the subject of much discussion among the rishonim, who point out that the passage in keriyat shema that commands us to love God with all of our souls (see 6:5) would seem to obligate a person to offer himself up to torture rather than commit idolatry. Why then should we assume that Hananiah, Mishael and Azariah would have succumbed?

The Rashba quotes Rashi (which does not appear in our editions of Rashi) that reads Rav’s teaching as a rhetorical question – even if they had tortured Hananiah, Mishael and Azariah, (i.e. they had given them a more severe punishment) would they have succumbed!? Most of the commentaries follow the lead of Tosafot and argue that Nebuchadnezzar’s idol was not truly a case of avoda zara that is forbidden. Hananiah, Mishael and Azariah were not really obligated to risk their lives, but they chose to do so in this case. Had they been tortured, however, they may have chosen to accept the letter of the law with regard to this halakha.