Yevamot 2 ~ Levirate Marriage Across Cultures

Over the next one hundred and twenty-one pages, we will be studying Yevamot. The tractate discusses levirate marriage, in which a man marries his deceased brother’s wife. Levirate marriage (from the Latin, levir, meaning a husband's brother) is only practiced when there had been no children from the union of the first brother and his wife. The Torah is very clear about the reason for the law:

וְהָיָ֗ה הַבְּכוֹר֙ אֲשֶׁ֣ר תֵּלֵ֔ד יָק֕וּם עַל־שֵׁ֥ם אָחִ֖יו הַמֵּ֑ת וְלֹֽא־יִמָּחֶ֥ה שְׁמ֖וֹ מִיִּשְׂרָאֵֽל׃

The first child that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel

Marc Chagall, Ruth at the Feet of Boaz, 1960. Lithograph, Musée Biblique Marc Chagall, France.

Levirate Marriage - it’s not just for the Jews

The custom of levirate marriage is hardly unique to Judaism, and forms of it are (or were) practiced in many other cultures. Here are just a few:

• In the Code of Hammurabi

According to the late scholar of Judaism Father Roland Guérin de Vaux (1903-1971), lots of cultures that predated or were contemporary with early Israelite culture also had a form of levirate marriage. Here is an excerpt from his book Ancient Israel:

• In Mongol Culture and in Yuan China

As Bettine Birge explained in her fascinating paper, in Mongol culture the rights to a woman’s person were were transferred to a groom's family in return for a payment. In addition, brides could also be obtained by capture, or by inheritance from an older male relative. She goes on to explain that this was the Mongol form of levirate marriage:

This background in important in understanding what happened in China, where the practice of levirate marriage was originally abhorred. Indeed, sexual relations between a widow and any of her husband's relatives was considered to be incest. However, during the Yuan dynasty of the thirteenth century, previous Chinese codes were abolished, and the ruler Kublai Khan decreed that any man had the right to take his father's wife or an older sister-in-law in levirate marriage.As Birge pointed out, Kubilai's decree was a sharp break with the policies of his government up to that time, and was inconsistent with his usual tolerance of indigenous customs. The whole thing was very confusing. “Over the next few years,” she wrote, “there was disagreement between different courts over the application of levirate law. Some lower courts continued to reject levirate marriage on the basis of Chinese laws, while official of the central long-standing government harshly enforced the 1271 edict.” In 1294 Kublai Khan died and was succeeded by his grandson Temur, who moved away from some of the policies of his zaide. As a result, new restrictions were placed on the rules of levirate marriage, and by 1330 all forms of the practice were outlawed for the Chinese, although by then there was already a trend moving in this direction.

“Among those for whom it is not their original custom, it is an offense for a man to take his elder sister-in-law or a son to take his father’s secondary wives in a levirate union.”

— 1330 Declaration of the Chinese Emperor Wen-tsung. Yuan-shih 33 p746.

• In Yoruba Culture

The Yoruba are a west African ethnic group, with members in Nigeria, Benin and Togo. According to Samson and Olesugun Olanisebe of the Department of Religious Studies at Obafemi Awolowo University in Nigeria, the Yoruba practice a form of levirate marriage. It goes like this:

After the death of her husband, the widow goes through the mourning period to sever the bond between her and her dead husband. The period of mourning is about 3 months during which the widows must stay indoors to observe the mourning rites. They are not allowed to do anything that will take them out, but they have to keep themselves occupied with domestic work…. widowhood practices amongst the Yoruba is performed for various reasons such as the protection of the woman from being harmed by the spirit of her dead husband, to prove the innocence of the woman as regards the death of the husband and for the family to ascertain if the woman has been pregnant before the death of her husband so that they may claim responsibility for the pregnancy.

After the mourning, the widow who is qualified for re-marriage within the family would be allowed to choose one of the younger brothers of her deceased husband. There are some criteria that the widow must meet before being allowed to re-marry. These include the fact that she must be young and active for procreation, she must not have been found active in any amoral acts and she should not have been having illicit affairs before the death of her husband. The brother that is to marry the widow must also meet certain criteria such as the fact that he must be of the same family of the dead person, he must be younger than the dead husband, the relationship with the dead husband must have been cordial whilst the latter was alive, there must not have been any reported case of an illicit affair with the widow before her husband’s death and he must not have been found to have any connection with the death of his brother…

The issue of widow’s inheritance or remarriage is a decision which, in Yorubaland, belongs solely to the woman. The woman may decide to accept or reject the position of taking another husband.

• In Zulu and in Dinka Culture

Levirate marriage is practiced by other ethnicities in Africa. In Zulu culture, “whenever a woman fails to give birth or is infertile, the husband’s family would find another woman who can produce children for the family, either through marriage or by using the infertile woman’s sister as surrogate.” And if a husband died before fathering a child “the levirate custom can be used to remedy the situation. Since it is culturally unacceptable for a man to die childless, if a man dies without a wife, the family would arrange a wife for one of his brothers on his behalf to perpetuate his name. The children born from such a union then belong to the deceased brother…in some Zambian communities, a levirate marriage is regarded as a form of sexual act of ritual cleansing for the widow who is to be inherited or wedded. ”

And among the Dinka, the largest ethnic group in Southern Sudan, levirate marriage is still practiced, “largely because the acquisition of many wives is important for the Dinka socioeconomic life style.” Here is how Stephanie Beswick described the custom:

In Dinka society a prospective husband pays bridewealth in cattle,often via a bidding system controlled by the prospective father-in- law. The highest bidder usually acquires the woman, and the bridewealth is made in a series of payments over an extended period of time.Under the system of levirate marriage, if a man dies before having paid all the bridewealth one of his brothers acquires the widow and continues making payments to the woman's family. Thus, a woman's procreative capabilities are never"wasted," and she is never without a husband to care for her and her children.

“Many wives shall bring forth many daughters, who shall be married in return for great numbers of cattle”

— Dinka saying, cited in Stephanie Beswick, "We Are Bought Like Clothes": The War over Polygyny and Levirate Marriage in South Sudan. Northeast African Studies, New Series, Vol. 8, No. 2 (2001), 37.

Posthumous Reproduction and Yibum in Modern Israel

As we have seen, levirate marriage crosses many different cultures and has been practiced for centuries. The levirate marriage Boaz performed with Ruth took place somewhere between 1,300 BCE and 1,100 BCE, which makes it at least three thousand years old. But there are very modern questions that surround this ancient custom. Here’s one: what happens if a married man died without children, but left frozen sperm that can impregnate his wife. If she conceives a child, is she still subject to the laws of yibum?

This case of posthumous reproduction was discussed in a paper by Avishalom Westreich published in the Journal of Law and the Biosciences in 2019. The paper (which won the prize for outstanding papers presented at the World Congress on Medical Law and Bioethics in 2018!) discusses how new technology affects religious laws and describes the Israeli debate over the posthumous sperm retrieval of fallen soldiers and their equivalents in the Jewish discussion of the early ‘forefather’ of this technology: levirate marriage. Westreich cited a responsum of the late Rabbi Zalman Nechemia Goldberg, who first framed his approach to the halakhic decision making process:

We note that according to Jewish law we need a reason to forbid, and without such a reason the natural situation is to permit. In this regard, relevant also is the fact that the Torah afforded great importance to the human desire to leave a name and remembrance in the world, as we can learn from the laws of levirate marriage.

Consequently, Rabbi Goldberg ruled that posthumous sperm retrieval should not be prohibited. Indeed it should be encouraged, because of “the natural desire for procreation, ‘to leave a name and remembrance’, which was the basis for the laws of levirate marriage.” In December 2016, the Israeli Supreme Court issued a decision which acknowledged that the right to procreate also applies to posthumous fertilization.

The question of whether the ensuing child would legally count as belonging to the deceased is the topic of halakhic debate. Rabbi Moshe Sternbuch thought it did not. “Where the fetus was conceived from sperm after the sperm-owner’s death, the sperm-owner cannot become his father, because it is impossible for a dead person to become a father.” Others, like the late Rabbi Shlomo Zalman Auerbach disagreed, and ruled that posthumous reproduction should be viewed as but a variant of the normal parent–child relationship. As such, it was subject to all the normal laws of inheritance, and should be viewed as complying with the religious commandment of ‘Be fruitful and multiply.’

Yevamot - a Sneak Preview

The tractate Yevamot, which we begin today, is full of fascinating material. Here on Talmudology will be discussing, among other things, the dangers of breastfeeding while pregnant, how Rava was the first person to report a scientific association between obesity and delayed puberty, how the Talmud thought that twins are formed, how to treat snake bites, and whether marriage can make you happier. And we will kick off with the debate in Victorian England about marrying a dead wife’s sister. So grab a Talmud and strap in. We are in for some treats.

Chagigah 27a ~ The Fireproof Salamander

A salamander unharmed in the fire. From Koninklijke Bibliotheek, KB, KA 16, Folio 126r, c 1350. From here.

Today marks an important event in the Daf Yomi calendar. We finish studying the second order of the oral law, known as Mo’ed, which focussed on the laws of the festivals, though it covered a lot else besides. And on this very last page of Chagigah, which is also the very last page of Mo’ed, we read the following:

חגיגה לז, א

אָמַר רַבִּי אֲבָהוּ אָמַר רַבִּי אֶלְעָזָר: תַּלְמִידֵי חֲכָמִים אֵין אוּר שֶׁל גֵּיהִנָּם שׁוֹלֶטֶת בָּהֶן, קַל וָחוֹמֶר מִסָּלָמַנְדְּרָא: וּמָה סָלָמַנְדְּרָא שֶׁתּוֹלֶדֶת אֵשׁ הִיא — הַסָּךְ מִדָּמָהּ אֵין אוּר שׁוֹלֶטֶת בּוֹ, תַּלְמִידֵי חֲכָמִים שֶׁכל גּוּפָן אֵשׁ, דִּכְתִיב: ״הֲלוֹא כֹה דְבָרִי כָּאֵשׁ נְאֻם ה׳״ — עַל אַחַת כַּמָּה וְכַמָּה

Rabbi Abbahu said that Rabbi Elazar said: The fire of hell has no power over Torah scholars. This can be derived by an a fortiori inference from the salamander [a creature created out of fire and immune to its effects, and whose blood is fireproof]: If a salamander, which is merely a product of fire, and nevertheless when one anoints his body with its blood, fire has no power over him, all the more so should fire not have any power over Torah scholars, whose entire bodies are fire, as it is written: “Surely My words are as fire, says the Lord” (Jeremiah 23:29), and the words of Torah become part of the Torah scholars’ very bodies.

So according to Rav Elazar, if you rub yourself with the blood of the salamander, you will not be burned by contact with fire. That’s some claim. Before we consider where it came from, here are another couple of references to the magical ability of the salamander to resist fire.

other references to The Salamander

סנהדרין סג, ב 

אף חזקיה מלך יהודה ביקש אביו לעשות לו כן אלא שסכתו אמו סלמנדרא 

In another tractate, Sanhedrin, there is a discussion of idol worship, and the Talmud notes that some cult practices demanded that parents sacrifice their children by burning them alive. “Even the father of Hezekiah the king of Judea wanted to sacrifice him in this way, but his mother saved him by covering him with the blood of the salamander.” Rashi gives this explanation:

The salamander is a small creature that emerges from a furnace which has been burning for seven consecutive years. Fire cannot burn someone who has smeared himself with the blood of the salamander.

From where did Rashi get the idea that the salamander emerges from a fire that has been burning for seven years?  Perhaps from the Midrash Tanchumah, where it burns not seven years but seven days.

מדרש תנחומא (ורשא) פרשת וישב סימן ג

 בריות הגדלות באור ואין גדלות באויר ואיזו זו סלמנדרא כיצד הזגגין העושין את הזכוכית כשהן מסיקין את הכבשן שבעה ימים ושבעה לילות רצופין מכובד האור יוצא משם בריה הדומה לעכביש (ס"א לעכבר) והבריות קורין אותה סלמנדרא אדם סך ידו מדמה או אחד

  למה? על שתחילת בריאתה מן האור מאיבריו אין האור שולטת באותו מקום 

There are creatures that thrive in fire and not in air, like the salamander. How is it created? When glassmakers leave a furnace continuously alight for seven days and seven nights, out of the fire there emerges a creature that resembles a spider (or a mouse). That creature is called the salamander. If you cover your arm or any limb with its blood, it that place will become impervious to fire. Why is does the salamander have this ability? Because it was created from fire.

This is all rather strange. Where does this legend come from, and does science have anything to say about fireproof salamander? Read on.

“[The salamander] has no digestive organs, and gets no food but from the fire, in which it constantly renews its scaly skin. ”

— Leonardo da Vinci, Book XX: Humorous Writings, The Notebooks of Leonardo da Vinci, edited by Jean Paul Richter, 1880

Identifying the Talmudic Salamander

There is in fact a European species of salamander called the Fire Salamander (Salamandra salamandra) which has bright markings that serve to warn predators that it is poisonous (and that they should therefore leave it alone).  But this cannot be the salamander referred to in the Talmud, because it is found in central and southern Europe, and not in the Middle East where the Talmud was written. The talmudic salamander is the Near Eastern Fire Salamander, found in Israel, Iran, Iraq, Syria and Lebanon. Here is a picture of one, taken on Mt. Carmel near Haifa. 

The Near Eastern Fire Salamander, (Salamandra infraimmaculata)

The salamander is an amphibian that can grow up to thirteen inches in length and feeds on insects and larva. According to Dr. Michael Warburg from the Technion, they can live for up to twenty years. He knows this because he visited the same pond on the top of Mt. Carmel for twenty-five years (!) and published a paper titled "Longevity in Salamandra infraimmaculata from Israel with a partial review of life expectancy in urodeles." And what was the name of the journal in which it was published I hear you ask. Good question.  It was Salamandra. Of course it was.

Salamanders live near ponds and streams, though they spend most of their adult lives out of the water.  They can exude a toxin when threatened, which can cause skin irritation but not much more. Since they do not have lungs they breath through their skin, which must be kept moist. And Dr. Warburg, the Technion salamander specialist, informs us that they lay their eggs in water. Not in furnaces. So from where did the rabbis of the Talmud get the ideas that they were fireproof creatures, born from within flames? They got it from the surrounding cultures which had similar stories about the origins of the salamander.

The FIREPROOF Salamander in other cultures

According to the explorer Marco Polo (d.1324) the name of the creature comes from the Persian words Sam meaning "fire," and Andar and meaning "within."  The Roman historian Pliny the Elder (23-79 CE)  wrote that the salamander was "so intensely cold as to extinguish fire by its contact, in the same way as ice does" which demonstrates that the fireproof salamander story goes back to long before the talmudic period. The legend is also found in the writings of Saint Isidore of Seville (560-636 AD) who lived around the time that the Talmud was redacted.

“The Salamander is so called because it is strong against fire....It fights against fires and alone among living things, extinguishes them. For it lives in the midst of flames without pain and without being consumed and not only is not burned, but it puts the fire out.”

— An Encyclopedist of the Dark Ages; Isidore of Seville, by Ernest Brehaut, Columbia University 1912, p228

The legend is also found some unusual contemporary places. In Ray Bradbury's dystopian novel Fahrenheit 451, books are banned and firemen don't have the job of putting out fires. Instead, they are tasked with burning any books that are found. Do you recall the name of their firetrucks? That's right - they were called Salamanders. The firemen also had an official symbol, which was a salamander.

We know an idea has deeply embedded itself in popular culture when it appears in The Simpsons. And in an episode called See Homer Run, Homer takes a job as The Safety Salamander, teaching schoolchildren about fire safety. And what does Homer need to wear for the job?  A salamander suit. Of course.  

From See Homer Run, in The Simpsons Season 17 Episode 6.

But that's fiction. Take a look at the logo of the International Association of Heat and Frost Workers below. It is a salamander over a fire, and insulating some pipes. And that is a fact.

Logo of the International Association of Heat and Frost Insulators and Allied Workers. It's a salamander over a fire, and insulating some pipes.

Evidence to the contrary

So the talmudic legend of the fire-proof salamander is a Jewish version of a legend found in contemporary Roman and Christian lore - a legend that still reverberates today. But although the Roman Pliny recounted the myth, he was also skeptical of it. There are numerous references on the internet which tell of Pliny throwing a salamander onto a fire, to see what would happen.  The salamander died.  But I cannot find a primary source for this story (please let me know if you find one), so let's go with Pliny's observations from his work Natural History:

As to what the magicians say, that it is proof against fire, being, as they tell us, the only animal that has the property of extinguishing fire, if it had been true, it would have been made trial of at Rome long before this. Sextius says that the salamander, preserved in honey and taken with the food, after removing the intestines, head, and feet, acts as an aphrodisiac: he denies also that it has the property of extinguishing fire.

We will leave the aphrodisiac properties of the salamander for another time, and focus instead on Pliny's observation that a simple test will confirm or falsify the legend. All you need are a couple of salamanders and a fire...which is also not an experiment too many of us would have the heart to do. But the Christian scholar, Pierius (d ~309) did.  In his work, cited by the British polymath Sir Thomas Browne Pierius wrote 

Whereas it is commonly said that a Salamander extinguisheth the fire, we have found by experience, that it is so far from quenching hot coals, that it dieth immediately therein.

And that should settle the matter. Rabbi Dr. Natan Slifkin did not throw a salamander into a fire, but he did accidentally leave one rather too close to a heat lamp, which is, I suppose, the next best thing. "I myself once found a fire salamander which I kept in a vivarium" he wrote in his fascinating book Sacred Monsters, "and when I accidentally left a heater too close to its cage, the salamander did not so much escape unscathed, as shrivel up into a withered corpse!"

A Fireproof Newt? SORTA

Rabbi Dr. Slifkin also references a report from a 1997 edition of Herpetological Review (All Amphibians, all of the time!) from a Mark Stromberg at the Hastings Natural History Reservation in California (part of UC Berkeley). He reported seeing the California Newt (Taricha Torosa) moving over the unburned litter in front of a controlled fire that had been burning for at least three hours. Then comes this:

Each newt walked directly into the flame front and did not pause while walking through the burning leaves. The slime covering their bodies foamed up, resembling an egg meringue. Within 20-30 s they were through the flames and on the cool, black ashes of the litter. Upon close examination, the now crusty white coating easily wiped off their wet bodies. I did not observe any skin blisters and the skin color looked normal. The newts were returned to the forest litter and they continued to walk downhill. They did not stop or curl up but walked normally, proceeding at near-record newt speed. As they walked through patches of un- burned grass, the leaves and litter removed almost all of the thin, white crust. They walked under a rotting log in dense litter and I did not follow them further. Fires are frequent in central, coastal California where T. torosa is common. Foaming of the skin secretions would dissipate heat and may be a mechanism used by this species to escape wildland fires.

(I tracked down the original. You can read it here, p82-84.)

This report is fascinating, but hardly proves that salamanders are fireproof.  At best, newts may have the ability to delay the brief harmful effects of a forest fire (which would certainly make evolutionary sense).  

An Explanation

Dr Warburg, the salamander guy from the Technion, noted in his paper that the salamander only spends about 1.25% of its adult life-time in ponds. The rest of the time it lives in rotting logs and leaf litters. This might explain the origin of the legend. When our ancestors, be they Jewish, Roman, or Christian would gather logs and kindling to light a fire, they might inadvertently sweep up a salamander or two with them. When these leaves and logs were set alight, the salamanders would scuttle out of the fire as quickly as they could, and ta-da, it looks like they were born from the flames. Perhaps that is how this whole salamander fire thing started.

The legend of the fireproof salamander is almost 2,000 years old, and certainly predates the Mishnah and Talmud.  It's a great story to tell around a campfire at night. Just don't be surprised if you see a salamander emerging, unscathed, from the ashes.

Congratulations to all who completed Chagigah and the Second Order of the Oral Law (מועד)

חזק חזק ונתחזק

Chagigah 16b ~ Wrongful Executions

On today’s page of Talmud we read about Rabbi Yehuda ben Tabbai, who, was rather pleased with himself. In order to make a point of law against the Sadducees, he had sentenced a conspiring false witness to death. Except that he was mistaken. Shimon ben Shetach pointed out that a single conspiring witness cannot be executed. That punishment is reserved when there are two conspiring witnesses.

חגיגה טז, ב

אֵין עֵדִים זוֹמְמִין נֶהֱרָגִין עַד שֶׁיִּזּוֹמּוּ שְׁנֵיהֶם, וְאֵין לוֹקִין עַד שֶׁיִּזּוֹמּוּ שְׁנֵיהֶם, וְאֵין מְשַׁלְּמִין מָמוֹן עַד שֶׁיִּזּוֹמּוּ שְׁנֵיהֶם

Conspiring witnesses are not executed unless they are both found to be conspirators; if only one is found to be a conspirator, he is not executed. And they are not flogged if they are liable to such a penalty, unless they are both found to be conspirators. And if they testified falsely that someone owed money, they do not pay money unless they are both found to be conspirators.

Rabbi Yehuda stood corrected and from then on he would only rule on a matter of law when he was in the presence of Shimon ben Shetach. But what of the innocent person he had executed?

כל יָמָיו שֶׁל יְהוּדָה בֶּן טָבַאי הָיָה מִשְׁתַּטֵּחַ עַל קִבְרוֹ שֶׁל אוֹתוֹ הָרוּג, וְהָיָה קוֹלוֹ נִשְׁמָע. כִּסְבוּרִין הָעָם לוֹמַר שֶׁקּוֹלוֹ שֶׁל הָרוּג הוּא. אָמַר לָהֶם: קוֹלִי הוּא. תֵּדְעוּ, שֶׁלְּמָחָר הוּא מֵת, וְאֵין קוֹלוֹ נִשְׁמָע

All of Yehuda ben Tabbai’s days, he would prostrate himself on the grave of that executed individual, to request forgiveness, and his voice was heard weeping. The people thought that it was the voice of that executed person, rising from his grave. Yehuda ben Tabbai said to them: It is my voice, and you shall know that it is so, for tomorrow, [i.e., sometime in the future,] I will die, and my voice will no longer be heard.

Today, capital punishment is still legal in 55 countries, including Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United States. And so today on Talmudology we will look at the terrible phenomenon of wrongful executions.

Edouard Manet. The Execution of Emperor Maximilian (1868–69).

The earliest wrongful executions

Shimon ben Shetach lived around 150 BCE, which is the era in which Rabbi Yehuda’s miscarriage of justice would have taken place. About three hundred years earlier there was another wrongful execution. Or nine, to be more precise. Around the year 440 BCE, nine Hellenotamiai were tried and executed. The Hellenotamiai were a board of ten treasures of the Athenian empire who oversaw the funds and taxes that were paid by members of the empire as tributes. Apparently they miscalculated, and were accused of embezzlement, making them perhaps the earliest white collar criminals in history. Except that they were innocent, as Antiphon recorded.

. . . οἱ Ἑλληνοταμίαι οἱ ὑμέτεροι, ἐκεῖνοι μὲν ἅπαντες ἀπέθανον ὀργῆι μᾶλλον ἢ γνώμηι, πλὴν ἑνός, τὸ δὲ πρᾶγμα ὕστερον καταφανὲς ἐγένετο. τοῦ δ’ ἑνὸς τούτου—Σωσίαν ὄνομά φασιν αὐτῶι εἶναι—κατέγνωστο μὲν ἤδη θάνατος, ἐτεθνήκει δὲ οὔπω· καὶ ἐν τούτωι ἐδηλώθη τῶι τρόπωι ἀπωλώλει τὰ χρήματα, καὶ ὁ ἀνὴρ ἀπήχθη ὑπὸ τοῦ δήμου τοῦ ὑμετέρου παραδεδομένος ἤδη τοῖς ἕνδεκα, οἱ δ’ ἄλλοι ἐτέθνασαν οὐδὲν αἴτιοι ὄντες.

. . . your own Hellênotamiai, they all perished out of anger rather than sound judgment, except one, because the facts of the matter became clear too late. This one—his name, they report, was Sosias—had already been condemned to be executed, but had not yet died. And just in time it was revealed how the money had been lost and the man, even though he had already been delivered to the Eleven, was forcibly rescued by the people, but the others had already died although quite innocent.

Wrongful executions in the early modern era

In 1661 two brothers and their mother were hanged and their bodies placed in iron cages near Campden in England. They had been convicted of the murder of a seventy year old man named William Harrison. But a few years later Harrison showed up, claiming he had been attacked on the night of his disappearance and pressed to serve on a sailing ship. The wrongful execution changed the minds of no-one, and it was later claimed that the mother had been a witch and had orchestrated the events, which were taken to be “signs of Satan's evil designs and of God's overwhelming mercy."

But over the next couple of centuries British judges tried to do better by tightening the requirements for corroboration, especially for the testimony of those who had turned “state’s evidence.” In the 1790s, wrote Bruce Smith, a historian of the law, “British judges increasingly instructed jurors concerning what came to be known as the "beyond-reasonable-doubt" standard of proof-initially, it appears, by instructing jurors to acquit if they had "any rational doubt" as to a defendant's guilt.”

Wrongful executions in TWENTIETH century america

Wrongful executions were also ignored in the United States, as events that could never happen. In 1912 the American Prison Congress published a report claiming to have found not a single case of wrongful execution in American history, though their methodology hardly inspired confidence. They simply asked prison wardens if they had “personal knowledge of the execution of any person on conviction of murder whom you believe, from subsequent developments, to have been innocent?” And there was at least one warden, R. W. McClaughry, of the government prison at Fort Leavenworth, who said: "I know of one or two who may, in my opinion, have been executed wrongfully.”

A couple of decades later, writing in The New Yorker in March 1935, the crime writer Edmund Pearson (1880–1937) was certain that there had been no wrongful executions, at least in the US. Here it is, in the original:

And that’s how things remained until the 1980s, when a philosopher and a sociologist published a paper in the Stanford Law Review in which they identified 350 people who had been wrongfully convicted of capital crimes from 1905 to 1974. Here is a table of their findings:

And here are the executions that were carried out on people that were, according to the authors, innocent of their crimes:

“
Eighteen people have been proven innocent and exonerated by DNA testing in the United States after serving time on death row. They were convicted in 11 states and served a combined 229 years in prison – including 202 years on death row – for crimes they didn’t commit.”

— The Innocence Project

Exonerations after a death sentence today

According to the Death Penalty Information Center, there are now 185 people who have been exonerated after being wrongfully convicted and sentenced to death. And an analysis of theses cases reveals “disturbing patterns of official misconduct and racial bias:”

Nearly 70% of the exonerations involved misconduct by police, prosecutors, or other government officials. 80% of wrongful capital convictions involved some combination of misconduct or perjury/false accusation and more than half involved both. Cases that involved misconduct took longer, on average, to reach exoneration. Misconduct was implicated in all 8 of the exonerations that took more than 30 years and 88% of exonerations that took 21-30 years. Misconduct occurred more often in cases involving Black exonerees (78.8%) than white exonerees (58.2%). Black exonerees spent an average of 4.3 more years waiting for exoneration than white exonerees.

The death penalty inflicted by Rabbi Yehuda ben Tabbai is typical of the errors that involve the death penalty today, in that it involved what we might call “official misconduct.” How hard, really, was it for Rabbi Yehuda to have checked with his colleagues before passing sentence? And it’s not as if Shimon ben Shetach was a bleeding heart liberal. According to the Talmud Yerushalmi, he executed eighty witches in a single day, even though it is forbidden to carry out more than one judicial execution per day. His reasoning was simple: “the times called for it” (אָֽמְרוּ. שְׁמוֹנִם נָשִׁים תָּלָה. וְאֵין דָּנִין שְׁנַיִם בְּיוֹם אֶחָד. אֶלָּא שֶׁהָֽיְתָה הַשָּׁעָה צְרִיכָה לְכָךְ).

Perhaps, fearing such miscarriages of justice, Rabbis Akiva and Tarfon made it clear that they would never vote to convict a person for a capital crime.

משנה מכות 1:10

סַנְהֶדְרִין הַהוֹרֶגֶת אֶחָד בְּשָׁבוּעַ נִקְרֵאת חָבְלָנִית. רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה אוֹמֵר, אֶחָד לְשִׁבְעִים שָׁנָה. רַבִּי טַרְפוֹן וְרַבִּי עֲקִיבָא אוֹמְרִים, אִלּוּ הָיִינוּ בַסַּנְהֶדְרִין לֹא נֶהֱרַג אָדָם מֵעוֹלָם. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, אַף הֵן מַרְבִּין שׁוֹפְכֵי דָמִים בְּיִשְׂרָאֵל

A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed…

“No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some.”

— Thurgood Marshall. Furman v. Georgia, 408 U.S. 238, 367-68 (1972) (Marshall, J., concurring)

Chagigah 13a ~ On the Origins of the Modern Hebrew Word "Chashmal"

Today’s page of Talmud continues a discussion of who may be taught about Ezekiel’s vision of the Chariots, known in Hebrew as Ma’aseh Merkavah. The vision is found in the first chapter of the Book of Ezekiel and describes a four-wheeled chariot driven by four hayyot ("living creatures"), each of which has four wings and four faces; one of a human, one of a lion, one of an ox, and one of an eagle (or possibly a vulture).

The Mishnah (11b) has ruled that this section may never be taught to another person; instead it can only be studied by one “ who is wise and understands most matters on his own” (הָיָה חָכָם וּמֵבִין מִדַּעְתּוֹ)

One of the verses included in Ma’aseh Merkavah is this one, from Ezekiel 1:4:

וָאֵרֶא וְהִנֵּה רוּחַ סְעָרָה בָּאָה מִן־הַצָּפוֹן עָנָן גָּדוֹל וְאֵשׁ מִתְלַקַּחַת וְנֹגַהּ לוֹ סָבִיב וּמִתּוֹכָהּ כְּעֵין הַחַשְׁמַל מִתּוֹךְ הָאֵשׁ׃

I looked, and lo, a stormy wind came sweeping out of the north—a huge cloud and flashing fire, surrounded by a radiance; and in the center of it, something like chasmal, from the fire.

Rashi explains that the word chashmal refers to an angel:

כעין החשמל. חשמל מלאך ששמו כך וכעין גוון שלו ראה מתוך האש

it was like the color of the chashmal “Chashmal” is an angel bearing that name, and he [Ezekiel] saw something like the appearance of its color in the midst of the fire.

This strange word chashmal appears one other time in this chapter, in verse 27:

וָאֵרֶא כְּעֵין חַשְׁמַל כְּמַרְאֵה־אֵשׁ בֵּית־לָהּ סָבִיב מִמַּרְאֵה מׇתְנָיו וּלְמָעְלָה וּמִמַּרְאֵה מׇתְנָיו וּלְמַטָּה רָאִיתִי כְּמַרְאֵה־אֵשׁ וְנֹגַהּ לוֹ סָבִיב׃

From what appeared as his loins up, I saw a gleam chashmal, what looked like a fire encased in a frame; and from what appeared as his loins down, I saw what looked like fire. There was a radiance all about him.

On today’s page of Talmud we read this:

חגיגה יג, א–ב

מַאי חַשְׁמַל? אָמַר רַב יְהוּדָה: חַיּוֹת אֵשׁ מְמַלְּלוֹת

What is chashmal? Rav Yehuda said: It refers to speaking animals of fire. Chashmal [chashmal] is an acrostic of this phrase [chayyot esh memallelot].

While the meaning of this strange word chashmal in Ezekiel’s vision is unclear, today, the word has a very clear meaning. It is the modern Hebrew word for electricity. On today’s Talmudology, we will explore how this modern word was derived from Ezekiel’s mystical vision.

Chasmal and - The “Electrum”

The ArtScroll English translation of the Talmud translates the word chashmal as, well, chashmal, which is fair enough, since we don’t know what it means. But the Koren Talmud does translate the word. It translates it as “electrum.” This is an interesting choice, because in his original Hebrew commentary, the late Rabbi Adin Steinzaltz, on whom the Koren edition is based, did not explain the meaning of chashmal. Did the Koren translators work backwards from the modern Hebrew meaning chashmal as electricity? If so, that would not be a very reasonable choice. But this seems unlikely.

Marcus Jastrow, in his classic dictionary, translated the word as amber, which is also the translation used by the Jewish Publication Society’s 1985 english translation of the Bible.

Time for A Greek Lesson

Perhaps the Koren based its translation on another ancient text known as the Septuagint, a Greek version of the Hebrew Bible that was written anonymously some time between the third and second centuries BCE.

In the Septuagint, the word chashmal is translated as the second declension count ηλεκτρου - elektron, which does not have the modern connotation of electricity. Instead, it means amber, and hence Jastrow’s translation. The word is connected to another Greek word ηλεκτωρ - elektor, meaning "beaming Sun." In Latin, the word is translated as electrum, which is likely where the Koren translation picked it up. (If you are one of the Koren translators, please write to Talmudology with the full story. We will share it with our readers.)

In any event, amber is not only a color; it is the name of a gemstone made from fossilized tree resin. According to Greek myth, when Phaeton, the son of Helios the sun god was killed (it’s a long story), his mourning sisters became poplar trees, and their tears became elektron, giving us amber. Over the centuries it was noted that this amber could attract things like leaves and feathers to its surface. Today, we recognize the cause of this as static electricity, but back then objects, like amber, that had this property were said to be electric. Apparently, the first time the word appears in English was when it was used by by English physicist William Gilbert (1540-1603) in his treatise "De Magnete" (1600). We soon had the word electrical, meaning "giving off electricity when rubbed.”

ChaSMAL as Electricity in the Writings of Yehudah Leib Gordon

As this new word spread into Europe, it also entered the Yiddish lexicon, where electricity was called, unsurprisingly electric, (עלקטעריק). And so things remained until “the most important Hebrew poet of the nineteenth century,” Yehudah Leib Gordon (1831–1892), decided that the Jewish people could do better. In a very (very, very) long poem called Two Yosef ben Shimon (which is itself a play on the words of the Talmud from Gittin 24b) Gordon wrote this beautiful verse

וּכְמוֹ הַהֲלָכָה בְּמַעֲשֶׂה־בְּרֵאשִׁית נִשְׁלָבָה
כֵּן נוֹסְדָה הַקַּבָּלָה עַל מַעֲשֵׂי־מֶרְכָּבָה
מָה הַסְּפִירוֹת אִם לֹא גַּלְגִּלֵּי שָׁמָיִם
הָאוֹר, הַחֹם, הַקִּיטֹר, הַחַשְׁמַלָּה
כָּל כֹּחוֹת הַטֶּבַע הֵם מַלאֲכֵי מַעְלָה
יֵדָעוּם הַחוֹקְרִים גְּלוּיֵי־הָעֵינָיִם

…What are the mystical sephirot, if not the layers of heaven

Light, heat, the streaming [?] and electricity [hachashmala]

On June 28, 1974, the Hebrew newspaper Davar published an article on the origin of the word chashmal. It claimed that in a footnote to his poem, Gordon wrote

כוונתי להכוח הטבעי הנקרא עלעקטריציטעט, שכן התרגום היווני של חשמל הוא עלעקטרא

I am referring to the natural phenomenon called electricity, for the Greek translation of the word “chashmal” is “electra.”

And so a new word was born in modern Hebrew. Electricity would now be known as chashmal.

(By the way, it is worth noting that another early Hebrew poet, Yehuda Leib Katzenelson (1846-1917), who wrote under the pen-name Buki Ben Yogli, also used the word chashmal, only his meaning did not catch on. In a short story titled The Olive and the Chasmal, he used it to mean the light that is reflected from olive oil.)

The Palestine Electric Company

Pinchas Rotenberg (1879-1942) founded the Palestine Electric Company in March 1923, and called it Chevrat Hachashmal Palestina (חברת החשמל פלשתינה). It was recognized by the British Mandate Authority, had its headquarters in London, and was traded on the London Stock Exchange. It later became the Israel Electric Company. With this, the word entered the modern Hebrew lexicon.

summary

1. The word Chashmal is used in Ezekiel’s vision but its meaning is not certain. Perhaps refers to an angel (per Rashi) or to a color (also per Rashi).

2. In the Greek Septuagint, the word chashmal is translated as elektron, meaning an amber color. This is also how Jastrow translated the word.

3. In the seventeenth century, the word electra was introduced by William Gilbert. It came to mean “giving off [static] electricity when rubbed.”

4. In a sort of back translation from the Greek, the nineteenth century Hebrew language poet Yehudah Leib Gordon used the word chashmal mean electric in the modern sense that we use it today.

5. In 1923 the Chevrat Hachashmal Palestina was founded by Pinchas Rotenberg, and the word chashmal entered modern Hebrew.

The resurrection of the dry bones

Ezekiel had another famous vision. It was the resurrection of the dry bones that appears in chapter 37, and describes how God re-animated the dead.

יחזקאל 37:14

וְנָתַתִּי רוּחִי בָכֶם וִחְיִיתֶם וְהִנַּחְתִּי אֶתְכֶם עַל־אַדְמַתְכֶם וִידַעְתֶּם כִּי־אֲנִי יְהֹוָה דִּבַּרְתִּי וְעָשִׂיתִי נְאֻם־יְהֹוָה׃

I will put My breath into you and you shall live again, and I will set you upon your own soil. Then you shall know that I the Lord have spoken and have acted”—declares the Lord.

A vision of the Jewish people once again “set you upon your own soil.” And on that soil they used a word from another of Ezekeiel’s prophecies to describe electricity as chashmal. Ezekiel would have been very proud.