Happy Birthday Tomorrow, Galileo

Galileo Galilei in a 1636 portrait by Justus Sustermans.

Tomorrow, February 15th, is a special day. It is the birthday of Galileo Galilei, who was born in Pisa on that day in 1564. Among his many achievements were his careful observations of the Earth’s moon, the identification of four of Jupiter’s moons, and the discovery that Venus, when observed through a telescope, has phases, just like that of our own moon. The only reasonable explanation of this was that Venus orbited the Sun, and not the Earth. And just like that, the geocentric model of the universe in which everything revolved around the Earth, came to a grinding halt.

Galileo’s Jewish Connection

Galileo taught astronomy to anyone who would listen, including Jews, and his most important Jewish student was Joseph Solomon Delmedigo who was born in Candia on the Island of Crete in 1591. At the age of fifteen Delmedigo left for Italy, where he enrolled in the University of Padua. For seven years there he studied astronomy, mathematics, natural science and medicine, and was taught by none other than Galileo Galilei, who was soon to become famous for both his observations of the planets and his clash with the Church.

When Delmedigo graduated he traveled to Lublin, Vilna, and Livona, where he spent much of his time working as a physician. He ultimately settled in Amsterdam where he published his Sefer Elim, a long book (it runs over four hundred pages) that deals with philosophy, science, mathematics, and astronomy.

“Galileo my Teacher” from Delmedigo, Sefer Elim, Amsterdam 1629. 148.

In this book Delmedigo outlined the reasons he accepted the Copernican model of the universe. In addition to explaining all of the theoretical support for the heliocentric model, he cited experimental evidence. If the planets revolved about the Sun and were illuminated by it, the amount of light that they reflect would depend on their location and distance from the Earth. And this is precisely what Delmedigo and his famous teacher had observed through the telescope. 

My teacher Galileo observed Mars when it lay close to the Earth. At this time its light was much brighter than that of Jupiter, even though Mars is much smaller. Indeed it appeared too bright to view through the telescope. I requested to look through the telescope, and Mars appeared to me to be elongated rather than round. (This is a result of its clarity and the movement of its rays of light.) In contrast, I found Jupiter to be round and Saturn to be egg-shaped.

This glorious passage reminds us that religiously observant Jews were sometimes at the very cutting edge of the new astronomy. How many could claim to have been instructed by the great Galileo himself?

But don’t get carried away

The historian Andre Neher (d. 1988) viewed Joseph Delmedigo as a fearless trailblazer whose goal was not only to influence his own community, but also the Catholic Church itself. In a paper published in 1977 he wrote:

When Delmedigo published Elim in 1629, he used the term “Rabbi” in speaking of his teacher Galileo. Rabbi Galileo! Was this not something of a challenge directed to the inquisitors in Rome who were then preoccupied with Galileo and who were not to let him go until his death in 1642? Free Galileo, Delmedigo seems to be saying, or release him to us; in the midst of our Jewish community, he will not be subjected to any trial, we shall not require him to make any retraction, we shall welcome him and honor him like a Rabbi in Israel!

Well, not quite. As I have written elsewhere, this account is linguistically, historically, and conjecturally incorrect. In the first place, although the term used by Delmedigo to describe Galileo was indeed the word rebbi, in this context, it means “my teacher,” and not “my rabbi.” By translating it in this way Neher was able to support his claim that the Jews were open, receptive, and respectful to new ideas emerging in astronomy; but the linguistic reality (and much else besides) does not bear this out.

Secondly, in the years prior to the publication of Sefer Elim in 1629, Galileo had not become the “preoccupation” of the Inquisition. The work that led to the trial by the Inquisition, Dialogue Concerning the Two Chief Systems of the World, was not published until 1632. And so Neher’s claim that Delmedigo was writing a message to release Galileo is chronologically incorrect. Finally, the notion that the Jewish community would not punish one of their own for expressing antinomian views is inaccurate. It was, after all, in Amsterdam itself, the city in which Delmedigo’s books were published, that the Jewish community excommunicated Spinoza in 1656 on account of “the horrible heresies which he practiced and taught.” Although Neher’s assessment of Delmedigo as challenging the Inquisition on behalf of Galileo was not accurate, it he was certainly correct in noting the important role that Galileo must surely have played in the education of the young Jew Joseph Delmedigo from Crete, who grew up and became the first Jewish Copernican.

A selection from the Talmudology Library Galileo Collection

Want more Galileo-related Talmudology posts? Try Jews and their Telescopes, available here.

[A repost, obviously, because it was also his birthday last year.]

Talmudology on the Parsha, Mishpatim: The Rambam, The Ramban, and the Modern Murder of Witches.

שמות 22:17

מכשֵּׁפָ֖ה לֹ֥א תְחַיֶּֽה׃

Do not allow a witch to live.

 The Torah takes the crime of witchcraft very seriously. It is mentioned first in this week’s parsha and again in Devarim (Deut 18:10):

 לֹֽא־יִמָּצֵ֣א בְךָ֔ מַעֲבִ֥יר בְּנֽוֹ־וּבִתּ֖וֹ בָּאֵ֑שׁ קֹסֵ֣ם קְסָמִ֔ים מְעוֹנֵ֥ן וּמְנַחֵ֖שׁ וּמְכַשֵּֽׁף׃

There must not be found among you anyone that makes his son or his daughter to pass through the fire, or that uses divination, a soothsayer, or an enchanter, or a witch.

 Is it Real or Is it Silly?

Maimonides thought that witchcraft was nonsense, that it was not in any way real.

רמב׳ם הל עבודה זרה 11:15

 וּדְבָרִים הָאֵלּוּ כֻּלָּן דִּבְרֵי שֶׁקֶר וְכָזָב הֵן וְהֵם שֶׁהִטְעוּ בָּהֶן עוֹבְדֵי כּוֹכָבִים הַקַּדְמוֹנִים לְגוֹיֵי הָאֲרָצוֹת כְּדֵי שֶׁיִּנְהֲגוּ אַחֲרֵיהֶן. וְאֵין רָאוּי לְיִשְׂרָאֵל שֶׁהֵם חֲכָמִים מְחֻכָּמִים לְהִמָּשֵׁךְ בַּהֲבָלִים אֵלּוּ וְלֹא לְהַעֲלוֹת עַל לֵב שֶׁיֵּשׁ תּוֹעֶלֶת בָּהֶן. שֶׁנֶּאֱמַר (במדבר כג כג) "כִּי לֹא נַחַשׁ בְּיַעֲקֹב וְלֹא קֶסֶם בְּיִשְׂרָאֵל". וְנֶאֱמַר (דברים יח יד) "כִּי הַגּוֹיִם הָאֵלֶּה אֲשֶׁר אַתָּה יוֹרֵשׁ אוֹתָם אֶל מְעֹנְנִים וְאֶל קֹסְמִים יִשְׁמָעוּ וְאַתָּה לֹא כֵן" וְגוֹ'. כָּל הַמַּאֲמִין בִּדְבָרִים הָאֵלּוּ וְכַיּוֹצֵא בָּהֶן וּמְחַשֵּׁב בְּלִבּוֹ שֶׁהֵן אֱמֶת וּדְבַר חָכְמָה אֲבָל הַתּוֹרָה אֲסָרָתַן אֵינָן אֶלָּא מִן הַסְּכָלִים וּמְחֻסְּרֵי הַדַּעַת וּבִכְלַל הַנָּשִׁים וְהַקְּטַנִּים שֶׁאֵין דַּעְתָּן שְׁלֵמָה. אֲבָל בַּעֲלֵי הַחָכְמָה וּתְמִימֵי הַדַּעַת יֵדְעוּ בִּרְאָיוֹת בְּרוּרוֹת שֶׁכָּל אֵלּוּ הַדְּבָרִים שֶׁאָסְרָה תּוֹרָה אֵינָם דִּבְרֵי חָכְמָה אֶלָּא תֹּהוּ וְהֶבֶל שֶׁנִּמְשְׁכוּ בָּהֶן חַסְרֵי הַדַּעַת וְנָטְשׁוּ כָּל דַּרְכֵי הָאֱמֶת בִּגְלָלָן. וּמִפְּנֵי זֶה אָמְרָה תּוֹרָה כְּשֶׁהִזְהִירָה עַל כָּל אֵלּוּ הַהֲבָלִים (דברים יח יג) "תָּמִים תִּהְיֶה עִם ה' אֱלֹהֶיךָ"

All the above matters are falsehood and lies with which the original idolaters deceived the gentile nations in order to lead them after them. It is not fitting for the Jews who are wise sages to be drawn into such emptiness, nor to consider that they have any value as [implied by Numbers 23:23]: "No black magic can be found among Jacob, or occult arts within Israel." Similarly, [Deuteronomy 18:14] states: "These nations which you are driving out listen to astrologers and diviners. This is not [what God... has granted] you."
Whoever believes in [occult arts] of this nature and, in his heart, thinks that they are true and words of wisdom, but are forbidden by the Torah, is foolish and feebleminded. He is considered like women and children who have underdeveloped intellects.

The masters of wisdom and those of perfect knowledge know with clear proof that all these crafts which the Torah forbade are not reflections of wisdom, but rather, emptiness and vanity which attracted the feeble minded and caused them to abandon all the paths of truth. For these reasons, when the Torah warned against all these empty matters, it advised [Deuteronomy 18:13]: "Be of perfect faith with God, your Lord."

 In a similar vein Ibn Ezra also considered witchcraft to be, well, silly. Here is his commentary (to Leviticus 19:31): 

והידענים. מגזרת דעת שיבקשו לדעת העתידות וריקי מוח אמרו לולי שהאובות אמת גם כן דרך הכשוף לא אסרם הכתוב ואני אומר הפך דבריהם כי הכתוב לא אסר האמת רק השקר

Yidonim (familiar spirits) is related to the word da’at (knowledge). Those who turn to yidonim seek to know the future. The empty heads say if there were no truth in the ovot (ghosts) and in various magical practices, then Scripture would not have prohibited them. However, I say the reverse. Scripture would not have permitted that which was true. It only prohibited that which is false.  

Over the centuries, many disagreed with the position of Maimonides and Ibn Ezra, and claimed that yes, witchcraft was real.  You really could cast spells on people, and who knows, fly around on a broomstick. Nachmanides was famous for believing in witchcraft, a position he outlined in his commentary to Deut 18:9:

 לא תלמד לעשות כתועבת הגוים ההם …ועתה דע והבן בעניני הכשפים כי הבורא יתברך כאשר ברא הכל מאין עשה העליונים מנהיגי התחתונים אשר למטה מהן ונתן כח הארץ וכל אשר עליה בכוכבים ובמזלות לפי הנהגתם ומבטם בהם כאשר הוא מנוסה בחכמת האיצטגנינות ועשה עוד על הכוכבים והמזלות מנהיגים מלאכים ושרים שהם נפש להם והנה הנהגתם מעת היותם עד לעולם ועד גזירת עליונים אשר שם להם אבל היה מנפלאותיו העצומות ששם בכח המנהיגים העליונים דרכי תמורות וכחות להמיר הנהגת אשר למטה מהם שאם יהיה מבט הכוכבים (בפניו) בפנים אשר כנגד הארץ טובה או רעה לארץ או לעם או לאיש ימירו אותם הפנים העליונים עליו להפך במבט עצמו כענין שאמרו תמורת ענג נגע ועשה כן להיות הוא יתברך שמו מהשנא עדניא וזמניא קורא למי הים לעשות בהם כרצונו והופך לבקר צלמות מבלי שינוי טבעו של עולם ושיעשו הכוכבים והמזלות מהלכם כסדרן ועל כן אמר בעל ספר הלבנה החכם בנגרמונסי"א כשהלבנה והיא נקראת גלגל העולם בראש טלה על דרך משל ויהיה פניו מול פלוני תעשה תמונה לדבר פלוני ויוחק בה שם השעה ושם המלאך הממונה עליה מן השמות ההם הנזכרים באותו הספר ותעשה הקטרה פלונית בענין כך וכך יהיה המבט עליה לרעה לנתוש ולנתוץ ולהאביד ולהרוס וכאשר תהיה הלבנה במזל פלוני תעשה תמונה והקטרה בענין פלוני לכל טובה לבנות ולנטוע והנה גם זה הנהגת הלבנה בכח מנהיגיה אבל ההנהגה הפשוטה אשר במהלכה הוא חפץ הבורא יתברך אשר שם בהם מאז וזה היפך וזה סוד הכשפים וכחם שאמרו בהם (חולין ז) שהם מכחישים פמלייא של מעלה לומר שהם היפך הכחות הפשוטים והם הכחשה לפמלייא בצד מהצדדין ועל כן ראוי שתאסור אותם התורה שיונח העולם למנהגו ולטבעו הפשוט שהוא חפץ בוראו

THOU SHALT NOT LEARN TO DO AFTER THE ABOMINATIONS OF THOSE NATIONS … And now, know and understand concerning the subject of sorcery, that when the Creator, blessed be He, created everything from nothing, He made the higher powers to be guides for those below them. Thus He placed the earth and all things that are thereon in the power of the stars and constellations, depending on their rotation and position as proven by the study of astrology. Over the stars and constellations He further appointed guides, angels, and “lords” which are the soul [of the stars and constellations]. Now, their behavior from the time they come into existence for eternal duration, is according to the pattern the Most High decreed for them. However, it was one of His mighty wonders that within the power of these higher forces, He put configurations [as explained further on] and capacities to alter the behavior of those under them. Thus if the direction of the stars towards the earth be good or bad to a certain country, people, or individual, the higher dominions can reverse it of their own volition, as they have said, “The apposition for the word oneg (pleasure) is nega (plague).” G-d ordained it so because He, blessed be His Name, changeth the times and the seasons; He calleth for the waters of the sea to do with them at His Will, and bringeth on the shadow of death in the morning without changing the natural order of the world, and it is He Who made the stars and constellations move about in their order. Therefore, the author of the Book of the Moon, the expert in [the field of] necromancy, said, “when the moon, termed ‘the sphere of the world,’ is, for example, at the head of Aries (the Ram) and the constellation thus appears in a certain form, you should make a drawing of that grouping, engraving on it the particular time [when this relative position appears] and the name of the angel — one of the names mentioned in that book — appointed over it. Then perform a certain burning [of incense] in a certain specified manner, and the result of the influence [of the relative position of the stars] will be for evil, to root out and to pull down, and to destroy and to overthrow. And when the moon will be in a position relative to some other constellation you should make the drawing and the burning in a certain other manner and the result will be for good, to build and to plant.” Now this, too, is the influence of the moon as determined by the power of its [heavenly] guide. But the basic manner of its movement is by the wish of the Creator, blessed be He, Who endowed it so in time past, while this particular action is contrary thereto. This then is the secret of [all forms of] sorcery and their power concerning which the Rabbis have said that “they contradict the power of Divine agencies,” meaning that they are contrary to the simple powers [with which the agencies have been endowed] and thus diminish them in a certain aspect thereof. Therefore, it is proper that the Torah prohibit these activities in order to let the world rest in its customary way, in the simple nature which is the desire of its Creator.

In his commentary on the Torah Rabbi Bachya ben Asher (1255–1340) of Spain supported the position of the Ramban: Witchcraft works, but only if God wants it to (which kinda raises the question, if God wants it to work, why is it forbidden?).

אבל דעת רבינו חננאל ז"ל בפירושו במסכת סנהדרין מכחישין נראין כאלו מכחישין ואמר כי אין לכשפים פעולה כ"א מה שיגזור הש"י וכענין שאמר ר' חנינא לאותה אשה אין עוד מלבדו כתיב ואע"ג דמשני התם שאני ר' חנינא דנפיש זכותיה שנויא הוא ולא סמכינן עליה ואדרבי חנינא אתי תברן.

Rabbeinu Chananel in his commentary on that folio in Sanhedrin explains the matter of מכשפים differently. He claims that such sorcerers cannot perform any supernatural feats unless God specifically wants them to succeed. He bases his view on a reply given by Rabbi Chaninah to a woman who was trying to extract soil from beneath the feet of that Rabbi in order to perform acts of sorcery. Rabbi Chaninah told her that in the event she would enjoy help from G’d in her efforts and succeed he would still not be concerned as there is no one beside the Lord (Deut. 4 4,35). Rabbi Yochanan questioned this saying that the reason these sorcerers are called מכשפים is because they deny the power of celestial forces. In that case, Rabbi Chaninah did have something to be concerned about! The answer given by the Talmud is that Rabbi Chaninah had so many merits that he personally did not have what to worry about. Concerning the above, Rabbeinu Chananel writes that although the Talmud gave such an answer it is not to be taken seriously.

Another Spanish exegete, Isaac Abarbanel (1437-1508) took a similar position: 

וכבר ידעת כונת הרב המורה בחלק ג' פרק ל"ז בכל מעש' הכשוף ויתר הדברים והוא שהם כלם דברי תהו והבל ושנמשכו אחריה' חסרי הדעת והם כלם מפועל הדמיון ואינם שיהיה בהם שום ממשות ומציאות החלטי כי הוא לא יסבור במציאות השדים ולכן יחשוב שהמעשים האלה הם כלם מעשה תעתועים. אבל הדעת הזה התורה האלהית מכזיבתו שהניחה מציאות השדים באמרו (פ' האזינו) יזבחו לשדים לא אלוה. וקבלת חכמינו סותרת לזה כי הם קבלו מציאות השדים ומעש' הכשפים ואמרו בפרק ד' מיתות (סנהדרין ד' ס"ז) מההיא אתתא דהות מיהדר' למשקל עפרא מתותי כרעיה דרבי חנינא. אמר לה זילי שקילי אין עוד מלבדו כתיב. והקשו עליו מדאמר רבי יוחנן למה נקרא שמן כשפים שמכחישין פלמיא של מעלה. ותרצו שאני רבי חנינא דנפיש זכותיה. הורו בזה שענין הכשוף הוא אמת ובסנהדרין אמרו (דף ס"ו) בלטיהם זה מעשה שדים. בלהטיהם זה מעשה כשפים

The Rambam in his Guide for the Perplexed was of the opinion that all this has no real basis…but the Torah disproves his opinion for it assumes the existence of demons. And the teachings of our rabbis also disproves this, for they too assumed the existence of demons… 

The Vilna Gaon believed in witches

Practically everyone disagreed with the Rambam’s rationalist position. Yehuda Halevi (Kuzari 44:23), Chasdai Kreskus (Sefer Ohr, 5, 44:4), and the Vilna Gaon (YD 179:13) to name but a few. In fact the Vilna Gaon was scathing in his dismissal of the Rambam’s position:

פירוש הגר׳א יורה דעה 179:13

ואע"פ כו'. הרמב"ם וכ"כ בפי' המשנה לפ"ד דעבודת כוכבים אבל כל הבאים אחריו חלקו עליו שהרי הרבה לחשים נאמרו בגמרא והוא נמשך אחר הפלוסופיא ולכן כ' שכשפים ושמות ולחשים ושדים וקמיעות הכל הוא שקר אבל כבר הכו אותן על קדקדו שהרי מצינו הרבה מעשיות בגמ' ע"כ שמות וכשפים אמרה איהי מלתא ואסרתה לארבא אמרו כו' (שבת פ"א ב' חולין ק"ה ב') ובספ"ד מיתות ובירושלמי שם עובדא דר"א ור"י ובן בתירה וכן ר"ח ור"א דאיברו עיגלא תילתא ור' יהושע דאמר שם ואוקמיה בין שמיא לארעא (בכורות ח' ב') וכן אבישי בן צרויה (סנהדרין צ"ה א') והרבה כיוצא ואמרו (בספ"ד מיתות חולין ז' ב') למה נקרא שמן כשפים כו'. והתורה העידה ויהיו תנינים וע' זוהר שם וכן קמיעין בהרבה מקומות ולהשים רבו מלספר. והפלסופיא הטתו ברוב לקחה לפרש הגמרא הכל בדרך הלציי ולעקור אותם מפשטן וח"ו איני מאמין בהם ולא מהם ולא מהמונם אלא כל הדברים הם כפשטן אלא שיש בהם פנימיות לא פנימיות של בעלי הפלוסופיא שהם חצוניות אלא של בעלי האמת

The Rambam wrote [that witchcraft is not real], but all those who came later disputed this, for there are many examples of casting spells in the Talmud. Rambam was trying to be logical, and so he wrote that witchcraft and incantations and demons and talismen were all imaginary. But we have shown the opposite is the case, for there are many stories about them in the Talmud…

To be honest, the Vilna Gaon had a good point. The Talmud and midrashim are indeed full of stories that suggest the reality of witchcraft, spells and incantations.

The Church on witches

The dispute between the Rambam and the Ramban (et al) has a correlate among the early Church Fathers. St Augustine of Hippo (d.430) echoed the position of Maimonides; witchcraft had no power to do anything. And if witches had no real power, the Church need not take the trouble to root them out or investigate any allegations of witchcraft. But this all changed in 1208, when Pope Innocent III began a campaign of crusades against the Cathars, a group of Christian gnostics from southern France who believed in the existence of the Devil and the power of witchcraft. Tens of thousands of them were murdered. When the leader of the Pope’s forces was asked how to tell Cathars from Catholics he famously replied Caedite eos. Novit enim Dominus qui sunt eius"—"Kill them all, the Lord will recognise His own.” (I know, you don’t believe me. But it is true.)

Thomas Aquinas (1225-1274), a contemporary of the Cathar-killing Pope also helped rewrite the Church approach to witches. Aquinas argued that demons, real demons, would extract sperm and spread it among women. In this way, sex and witchcraft became entwined, and would remain so for centuries. Witches were seen as not merely seeking their own pleasure, but intent also on leading men into temptation.

The many Witchcraft Acts

From then on the Church took witchcraft seriously. So seriously that it was outlawed – under punishment of death – in many different societies and eras. Let’s start with Henry VIII’s Witchcraft Act of 1541, which made it illegal to   

…use devise practise or exercise, or cause to be devysed practised or exercised, any Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries to thentent to fynde money or treasure or to waste consume or destroy any persone in his bodie membres, or to pvoke [provoke] any persone to unlawfull love, or for any other unlawfull intente or purpose…

 Elizabeth I felt the need to pass another act – the 1562 Act Against Conjurations, Enchantments and Witchcrafts. The Scottish also felt the need to pass their own Act in 1563, as did the Irish in 1586. Not to be outdone, in 1603 King James I passed the Act against Conjuration, Witchcraft and dealing with evil and wicked spirits.  

In Britain, the Witchcraft Act of 1735 repealed all the prior laws and with them the death penalty. The new Act made it a crime to claim that one had supernatural powers or could practice witchcraft. (Fun fact: the promoter of the 1735 Act was John Conduit, whose wife was the niece of Sir Isaac Newton.) And that Witchcraft Act was itself repealed in 1951 by the Fraudulent Mediums Act, whose goal was to prevent a person “from claiming to be a psychic, medium, or other spiritualist while attempting to deceive and to make money from the deception (other than solely for the purpose of entertainment).”

Which brings us to the South African Witchcraft Suppression Act, of 1957. Yes. It.Was. Passed. In. 1957. (Given South Africa’s recent international demonstration of its pathetic judicial sense, this should not really have surprised you.) Among its provisions are these crimes, punishable with a fine of up to R200,000 or imprisonment for up to five years (or both): 

…Employing or soliciting any witch doctor, witch-finder or any other person to name or indicate any person as a wizard.

…On the advice of any witch doctor, witch-finder or other person or on the ground of any pretended knowledge of witchcraft, using or causing to be put into operation any means or process which, in accordance with such advice or the accused's own belief, is calculated to injure or damage any person or thing.

The terrible cost of the fear of Witchcraft 

Between 1400 and 1775 about 100,000 people were tried for witchcraft across Europe and the American colonies. Of these, 40,000 to 60,000 people were executed. Perhaps setting a record in 1675, Torsåker parish in Sweden beheaded and then burned 71 people (65 women and 6 men). By the end of the seventeenth century, witch trials in Europe and Britain were on the decline, although they continued in the American colonies, which famously brought us the Salem witch trials of 1692. 

Not all who were found guilty of were executed, and not all who were found guilty were Christians. In 1712, the kabbalist Rabbi Hirsch Fränkel was convicted of witchcraft after completion of an inquisition by the Theological & Legal Faculties at the University of Aldorf.  Rabbi Fränkel was sentenced to life imprisonment and died in 1723 after spending twenty-four years in solitary confinement.

And it still continues

The history of the fear of witches is a history of their prosecution and execution. We now understand that witches have no power to injure, and their spells have no power to cure. But in some parts of the world, the fear of witches remains. A 2009 case report from the Department of Forensic Medicine at Walter Sisulu University for Technology and Science in Mthatha, South Africa details the murder of three women who were suspected of being witches.

“When misfortune occurs, it is believed to be caused by a fellow tribesman in a position of standing in the community. In Swaziland, witchcraft emanates typically from a jealous co-wife. The most prolific single source of witchcraft is the conflict of co-wives, reflecting tensions in the polygamous household.”

— Meel, B.L. Witchcraft in Transkei Region of South African: case report. African Health Sciences 2009; 9(1):61-64

The first case was a 70-year-old woman who had been accused of witchcraft. A relative of the assailant was a neighbor of the woman, and had been admitted to the hospital with pulmonary tuberculosis. The victim was accused of bewitching him, and was stabbed to death. The second case was a 51-year-old woman who was shot in her home. The assailant, a distant relative of the victim, had accused her of engaging in witchcraft, which resulted in an accident in which his son died. The third case was of a 70-year-old woman alleged to have been involved in witchcraft. The perpetrator was a close family member who had accused her of being responsible for his brother’s death. She was hacked to death. Every year 50-60 women in the area around Mthatha are murdered after an accusation of witchcraft, and they often share the same set of circumstances: “First, a witch is always a woman, secondly they are elderly (>50 years) thirdly, most of the time the perpetrator is related to the victim or very well known to her fourthly, there is some sort of community consensus or permission to eliminate these witches.” The author, whose poor English should be excused, concluded that

…beliefs in witchcraft are still strong in rural areas of Transkei. Even rational, literate people do believe in witchcraft especially when events cannot be explained or when people fail to explain the course of events or when people fail to establish causes of complex issues e.g. regular misfortunes, failure to succeed in life etc. Victims of witchcraft accusations, majority of them elderly women, are faced with terrible experiences in these communities. The issue of witchcraft and counter killing of witches is associated with lack of education.

Witches, like demons, devils and ghosts, are a projection not of reality, but of the thing we fear the most - that we may not control our circumstances any more than we control the weather. A belief in witches is a belief that we have control, that we are indeed to bring about the most terrible destruction or the most noble of outcomes. And when we prosecute and persecute witches, we regain power over those who would use their power over us. But wishing that this is reality doesn’t make it so. Not for witches, and not for the rest of us.

Talmudology on the Parsha, Yitro: The Fourth Commandment & American Jurisprudence

שמות 20:8-11

זָכ֛וֹר֩ אֶת־י֥֨וֹם הַשַּׁבָּ֖֜ת לְקַדְּשֽׁ֗וֹ׃ שֵׁ֤֣שֶׁת יָמִ֣ים֙ תַּֽעֲבֹ֔ד֮ וְעָשִׂ֖֣יתָ כל־מְלַאכְתֶּֽךָ֒׃ וְי֨וֹם֙ הַשְּׁבִיעִ֔֜י שַׁבָּ֖֣ת ׀ לַיהֹוָ֣ה אֱלֹהֶ֑֗יךָ לֹֽ֣א־תַעֲשֶׂ֣֨ה כל־מְלָאכָ֜֡ה אַתָּ֣ה ׀ וּבִנְךָ֣͏ֽ־וּ֠בִתֶּ֗ךָ עַבְדְּךָ֤֨ וַאֲמָֽתְךָ֜֙ וּבְהֶמְתֶּ֔֗ךָ וְגֵרְךָ֖֙ אֲשֶׁ֥֣ר בִּשְׁעָרֶֽ֔יךָ׃ כִּ֣י שֵֽׁשֶׁת־יָמִים֩ עָשָׂ֨ה יְהֹוָ֜ה אֶת־הַשָּׁמַ֣יִם וְאֶת־הָאָ֗רֶץ אֶת־הַיָּם֙ וְאֶת־כל־אֲשֶׁר־בָּ֔ם וַיָּ֖נַח בַּיּ֣וֹם הַשְּׁבִיעִ֑י עַל־כֵּ֗ן בֵּרַ֧ךְ יְהֹוָ֛ה אֶת־י֥וֹם הַשַּׁבָּ֖ת וַֽיְקַדְּשֵֽׁהוּ׃זָכ֛וֹר֩ אֶת־י֥֨וֹם הַשַּׁבָּ֖֜ת לְקַדְּשֽׁ֗וֹ׃

Remember the Sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work; but the seventh day is a Sabbath to the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: for in six days the Lord made heaven and earth, the sea, and all that is in them, and rested on the seventh day: therefore the Lord blessed the Sabbath day, and made it holy.

In Bergen County, New Jersey, it is against the law to buy furniture, clothing and household appliances on a Sunday. You may, however, purchase newspapers, alcohol (!) and floral supplies without fear of prosecution. You may also safely and legally buy athletic socks, but not dress socks. These laws (known as the Blue Laws because they were originally printed on blue paper,) are based on the famous verses found in this week’s parsha: “Remember the Sabbath day, to keep it holy.” In this week’s Talmudology on the Parsha we will take a look at how the commandment to observe Shabbat was interpreted in the early legal codes of the United States.

In 1980, voters elected not to repeal the Bergen County Sunday Blue Laws. From here.

Virginia is for….Sabbath Observers

In 1610 Virginia adopted the Fourth Commandment, followed by New Haven in 1653 and New Hampshire in 1680. Pennsylvania liked it so much they adopted it twice, first in 1682 and again in 1705.

Laws of the Commonwealth of Pennsylvania, from here.

Just like in Judaism, there was a question as to when a “day” begins. When should the Sunday Sabbath should be observed, and when its observance should come to an end? The English clergyman Nicholas Bownde (d.1613) supported a Sunday morning start to the Sabbath, but John Cotton (d.1652) advocated a Saturday evening to Sunday evening approach, more in keeping with the Jewish day of sundown to sundown.

“The Puritan Sabbath always prospered best in New England, but it significantly influenced all of the colonies in the seventeenth and eighteenth centuries. American culture was therefore “puritanized” at its very inception”

— Winton U. Solberg. John Cotton’s Treatise on the Duration of the Lord’s Day

New York took Sabbath observance very seriously; in 1665 the Colonial Legislature there voted into law that:

Sunday is not to be profaned by traveling, by laborers, or vicious persons…Church wardens to report twice a year all misdemeanors such as swearing, profaneness, Sabbath-breaking, drunkenness, fornication, adultery , and all such abominable sins…

Just up the road, in 1787 Vermont passed a series of laws to preserve the character of the Sabbath. They also followed John Cotton’s approach that the Christian Sabbath was to begin with sundown on Saturday night.

I is hereby enacted by the General Assembly of the state of Vermont, That the first day of the week shall be First day of kept and observed, by the good people of this state, as a the week to sabbath, holy day, or day of rest from secular labours and employments: nor shall any person or persons, between twelve o'clock of the night preceding, and the setting of the sun of the same day, exercise any secular labour, business Time or employment: except such as necessity, and acts of charity shall require. Nor shall they use or exercise any games, Labour and sports or plays; or hold or resort to any publick assembly, recreation except such as shall be holden for the purposes of social and forbidden. Nor shall any person or persons visit, from house to house, unless for the purposes of religious or moral conversation, instruction or edification; or from motives of humanity, or charity. And any person herein offending, on conviction thereof, shall forfeit and pay to the treasury of the town, in which the offence is committed, a sum not exceeding two dollars.

Still, Vermont recognized the need to maintain at least some flexibility.

[I]f any person shall have necessary Justice may occasion to travel, or drive any team or drove, on the sabbath; he may apply to any justice of the peace, who shall have power, at his discretion, on consideration of the circumstances of the case, to grant such person a permit, in writing, for that purpose; and such person having such permit, and travelling or driving peaceably on the sabbath, shall be exempt from any penalty therefor.

The Boston Tea Party and God’s Justice

Among Jewish religious leaders there has been a rather unfortunate tradition of blaming [enter a human-made or natural disaster] on [enter the vice of your choosing]. As but one example, in 1575 there was an [outbreak of plague in Cremona] that was blamed on [widespread gambling,] which the rabbis there then banned, although they excluded the game of chess. This pattern could also be found in Colonial America. In 1774, following the Boston Tea Party, the British Parliament passed the Coercive Acts, which became known as the Intolerable Acts laws, to punish the colony of Massachusetts Bay. Here is an account of William Tennent III of Charleston, South Carolina, a minister who

warned that widespread degeneracy heralded a nation’s imminent destruction. He pointed to a long list of common sins on both sides of the Atlantic as evidence that the British and the colonists deserved their impending doom. Infidelity, heterodox theology, lax child-rearing, failure to observe the Sabbath, swearing, drunkenness, and unmentionable sexual sins all made Britain and its colonies deserving of God’s wrath. If the ancient cities of Sodom and Gomorrah “had showers of burning sulphur rained down upon them, it is surely of the Lord’s mercy that our cities, our nests of iniquity, are not consumed!

So, the British reaction to the Boston Tea Party was because the colonialists were not properly keeping the Sabbath.

A century later, in November 1862, Abraham Lincoln issued an Order Respecting the Observance of the Sabbath Day in the Army and Navy:

The President, Commander in Chief of the Army and Navy, desires and enjoins the orderly observance of the Sabbath by the officers and men in the military and naval service. The importance for man and beast of the prescribed weekly rest, the sacred rights of Christian soldiers and sailors, a becoming deference to the best sentiment of a Christian people and a due regard for the divine will demand that Sunday labor in the Army and Navy be reduced to the measure of strict necessity.

Resting on the Sabbath, whether that be a Saturday or a Sunday, is even recognized in the US Constitution, where it appears in Article 1, which addresses the President’s role in signing Bills into law

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Shabbat is a beautiful thing, and who could blame the early colonists for wanting a piece of Shabbat for themselves. More recently, others outside of the Jewish faith have also claimed a kind of Shabbat for themselves. For example, as the digital world has become ever more distracting and harder to escape, the notion of a “digital Sabbath” has become increasingly popular. The Sabbath Manifesto (“slowing down lives since 2010”) is “a creative project designed to slow down lives in an increasingly hectic world,” and like Judaism it has its own set of Ten Commandments:

The Ten Principles of the The Sabbath Manifesto. From here.

The observance of a Sabbath, whether it be on a Friday, Saturday or Sunday is a feature common to the Abrahamic faiths, and some moderns of no faith. If you would like to learn more about how those outside of the Jewish community commemorate the Sabbath, watching this charming documentary from PBS is a great place to start. It might even make your own Shabbat practices just a little more meaningful. Just don’t watch on Shabbat.

Bava Kamma 90a ~ The Prosecution & Punishment of Animals

בבא קמא צ, א 
תנו רבנן שור תם שהמית והזיק דנין אותו דיני נפשות ואין דנין אותו דיני ממונות מועד שהמית והזיק דנין אותו דיני ממונות וחוזרין ודנין אותו דיני נפשות קדמו ודנוהו דיני נפשות אין חוזרין ודנין אותו דיני ממונות 

The rabbis taught: a tam ox that killed a person and inflicted damages, is tried first for the capital case and is not tried for the damages. A muad ox that killed a person and inflicted damages is tried first for the damages and is then tried for the capital case.

The notion that an animal should be tried for a crime is a completely foreign one to our modern sensibilities. Animals do not commit crimes; they act on instinct. When those instincts lead to a conflict with human society animals might be removed, or killed. But tried for a crime? Isn’t that an odd notion? Not so much, it turns out.

On the prosecution of animlas

In her review article The historical and contemporary prosecution of animals, Professor Jen Girgen noted that the formal prosecution of animals existed for centuries. Aristotle (d.322 BCE) mentioned animal trials in Athens, although there is no direct evidence of them having taken place in ancient Greece. The earliest known records of animal trials are from the mid-13th century. For example, in France in 1386, a pig was put on trial for the death of a child:

The defendant was brought before the local tribunal, and after a formal trial she was declared guilty of the crime. True to lex talionis, or "eye-for-an- eye" justice, the court sentenced the infanticidal malefactor first to be maimed in her head and upper limbs and then to be hanged. A professional hangman carried out the punishment in the public square near the city hall. The executioner, officially decreed to be a "master of high works," was issued a new pair of gloves for the occasion in order that he might come from the discharge of his duty, metaphorically at least, with clean hands, thus indicating that, as a minister of justice, he incurred no guilt in shedding blood.

In medieval times, animals were tried in two different court systems. The Church handled cases in which animals were a public nuisance (usually because they ate a farmer’s crops) while secular courts judged cases involving the physical injury or death of person.  Apparently these trials were taken seriously: “The community, at its own expense, provided the accused animals with defense counsel, and these lawyers raised complex legal arguments on behalf of the animal defendants. In criminal trials, animal defendants were sometimes detained in jail alongside human prisoners. Evidence was weighed and judgment decreed as though the defendant were human.”  Animals that faced these trials included swans, rodents, dolphins (dolphins!) grasshoppers, and, in 1713, a nest of termites, which was I suppose fair enough. The termites were munching their way through a monastery, devouring the friars' food, destroying their furniture, and even threatening to topple the walls of the monastery. 

“The ox is to be executed, not because it had committed a crime, but rather because the very act of killing a human being- voluntarily or involuntarily-had rendered it an object of public horror.
”

— JJ Finkelstein. The ox that gored. Transactions of the American Philosophical Society, Vol. 71, No. 2 (1981), pp. 1-89

The animals that faced prosecution would rarely appear in court on their trial day (because, I suppose, they had other things on their mind) so they usually lost the case by default.  Here’s a fairly typical example. In 1575 weevils were helping themselves to the vineyards in a picturesque hamlet in France, and were brought to trial:

The plaintiff and the two lawyers appointed as counsel for the beetle defendants presented their respective sides of the case…Pierre Rembaud, the beetles' newly appointed defense counsel, made a motion to dismiss the case. Rembaud argued that, according to the Book of Genesis, God had created animals before human beings and had blessed all the animals upon the earth, giving to them every green herb for food. Therefore, the weevils had a prior right to the vineyards, a right conferred upon them at the time of Creation… While the legal wrangling continued, the townspeople organized a public meeting in the town square to consider setting aside a section of land outside of the Saint Julien vineyards where the insects could obtain their needed sustenance without devouring and destroying the town's precious vineyards. They selected a site named "La Grand Feisse" and described the plot "with the exactness of a topographical survey."…However, the weevils' attorney declared that he could not accept, on behalf of his clients, the offer made by the plaintiffs. The land…was sterile and not suitable to support the needs of the weevils. The plaintiff’s attorney insisted that the land was, in fact, suitable and insisted upon adjudication in favor of the complainants. The judge decided to reserve his decision and appointed experts to examine the site and submit a written report upon the suitability of the proposed asylum.

How did this case end? We have no idea.  The last pages of the court records were (I kid you not) eaten by insects.  

The Source- our Hebrew Bible

The impetus for all this, according to historians, was our own Hebrew Bible, or more precisely, the passage from Exodus 21:28.

וְכִי-יִגַּח שׁוֹר אֶת-אִישׁ אוֹ אֶת-אִשָּׁה, וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר, וְלֹא יֵאָכֵל אֶת-בְּשָׂרוֹ, וּבַעַל הַשּׁוֹר, נָקִי

"If a bull gores a man or woman to death, the bull is to be stoned to death, and its meat must not be eaten. But the owner of the bull will not be held responsible.

The Jewish scholar Bernard Jackson, (who seems to have spent his entire career studying the legal history of the goring ox,) noted this connection.  “The stoning of the goring ox”, he wrote, 

… may well have been the parent, rather than the child, of the idea of divine punishment of animals .... [O]nce the concept of divine punishment of animals became established, it could then be transferred back to the legal sphere as a primarily penal notion.

What sense can we make of these medieval trials – and what sense can be made of the earlier Talmudic law that also placed animals on trial for their actions? Girgen suggests a number of possible ways to explain these trials, which seem to have become increasingly popular in the middle ages. 

1. Rehabilitation of the offending animal. This is not a satisfying explanation, since “these proceedings usually ended with the execution of the animal.” That left little opportunity for rehabilitation.

2. Retribution, which is another word for revenge. Indeed, this is precisely the notion reflected in the biblical law of “an eye for an eye”- although of course that was not the way the rabbis of the Talmud interpreted the verse. Under Roman law, the Torah law of עין תחת עין was called lex talionis – the law of retaliation. This need to retaliate was, according to Justice Oliver Wendell Holmes, a key feature of early legal systems, which were “…grounded in vengeance.”

3. Revenue for the king. This would only explain cases in which the animal was impounded or confiscated from the owner and given over to the king or local lord. But this did not happen when the animal was executed – which apparently was a frequent outcome of these trials.

4. The elimination of a social danger. Now, this begins to sound familiar. In the US and other western countries, vicious dogs are, after all, put down, and when this happens we breathe a collective sigh of relief. So by sentencing a dangerous animal to death, the courts were making life safer for everyone else.

5. Deterrence – that is, “to dissuade would-be criminals - both animal and human-from engaging in similar offensive acts”. As the legal scholar Nicholas Humphrey noted, "if word got around about what happened to the last pig that ate a human child, might not other pigs have been persuaded to think twice?” That implies endowing animals with an agency that we would consider today to be quite fanciful. So perhaps the deterrent effect was not aimed at other animals, but rather at other humans – deterring them from committing these kinds of horrible crimes.

6. Establishing control in a disorderly world. Perhaps these trials were a search for order in a world of chaos. “Just as today,” wrote Professor Humphries “when things are unexplained, we expect the institutions of science to put the facts on trial ... the whole purpose of the legal actions was to establish cognitive control.". The good professor continues:

What the Greeks and mediaeval Europeans had in common was a deep fear of lawlessness: not so much fear of laws being contravened, as the much worse fear that the world they lived in might not be a lawful place at all. A statue fell on a man out of the blue; a pig killed a baby while its mother was at Mass; swarms of locusts appeared from nowhere and devastated the crops .... To an extent that we today cannot find easy to conceive, these people of the pre-scientific era lived every day at the edge of explanatory darkness.

By defining events as crimes rather than as natural occurrences, they could be placed within a legal context – and controlled. The late JJ Finkelstein of Yale University (d. 1974) wrote one of the most detailed studies of the ox that gored (called, rather unimaginatively, The Ox that Gored). On page 24 of his 86-page essay he addressed this aspect:

[T]he "crime" of the ox that gored a person to death is not just to be found in the fact that it had "committed homicide.". . .The real crime of the ox is that by killing a human being-whether out of viciousness or by an involuntary motion, it has objectively committed a de facto insurrection against the hierarchic order established by Creation.

Trials of animals in more recent Times

Animal trials continued well into the twentieth century. In 1906 in Switzerland a dog was sentenced to death for killing a man, while his masters – who had used the dog to help them rob the man - were sentenced to life in prison. In 1924, Pep, a Labrador retriever, was accused of killing Pennsylvania Governor Gifford Pinchot's cat. 

The dog was tried (without the assistance of counsel) in a proceeding led by the Governor himself. Governor Pinchot found Pep responsible for the cat's death and sentenced the dog to life imprisonment in the Philadelphia State Penitentiary. Pep died of old age, still incarcerated, six years later… And in 1927, a dog was reportedly tried and incarcerated by a Connecticut justice of the peace for "worrying the cat of a neighbor lady.”

In fact, “trials” of dangerous animals continue to this day. Depending on where you live, a judge may rule an animal to be dangerous if it has attacked others, and may order it destroyed.  This is what happened in New Jersey in 1991, when Taro, a 110 lb Japanese Akita dog was sentenced to death by a judge in Bergen County, after it had apparently attacked its owner’s niece. Taro’s owner appealed the verdict and the dog remained on death row for three years, until the order to execute the dog was upheld.  That’s when newly elected Governor Christin Todd Whitman issued an executive order and reprieved the dog, which by now had been imprisoned for more than one thousand days at a cost to the state of more than $100,000. Taro was exiled from New Jersey, and died in her sleep five years later. 

What do we talk about when we talk about punishment?

What is it that we want to see happen when we call for a criminal to be “punished”?  This simple question has been answered by legal scholars and judges who have written about theories of punishment, but we knew little about what the average citizen wants to see happen when a punishment is imposed. 

In a series of experiments published in 2002, psychologists from Princeton and Northwestern University studied the motivation underlying use of punishment in a group of students; that is to say, in people with no special legal training or background. What are the motives of ordinary people when they wish to punish a criminal? (Ok, they weren’t exactly “ordinary people, since they were Princeton University students, but still…)The two specific motives they contrasted were just deserts and deterrence. The “just desserts” theory is the belief that when punishing a criminal, our concerns should not be about future outcomes like rehabilitation, but rather about providing a punishment appropriate for the given crime. “Although it is certainly preferable that the punishment serve a secondary function of inhibiting future harm doing, its justification lies in righting a wrong, not in achieving some future benefit. The central precept of just deserts theory is that the punishment be proportionate to the harm.”  So what motivates the theory of punishment in ordinary people? Does it come from a deservingness perspective, in which the focus is on atoning for the harm committed, or from a utilitarian, deterrence perspective, in which the focus is on preventing future harms against society? 

The psychologists found that in sentencing hypothetical criminal perpetrators, their student subjects responded to factors associated with the “just desserts theory” and ignored those associated with deterrence. This desire to see a criminal get his just desserts is also found when animals are put on trial.  More recent work by the psychologists Geoffrey Goodwin and Adam Benforado also addressed the way in which we view punishment as retribution.  They asked volunteers (found on-line using something called Amazon's Mechanical Turk interface) about a number of different scenarios in which animals had killed or injured people. In five different studies the results demonstrated "...clear evidence for the existence of retributive motives and for a broader conception of the viable targets of retribution."

Back to the goring ox

In the view of J.J. Finkelstein, the Yale scholar, “the system of categorization reflected in the biblical statement of the laws of the goring ox is essentially the same as our own… the cosmic apprehension of the biblical authors, the way in which the Bible perceives and classifies the world of experience, is in every fundamental respect identical with ours, that is, with that of the civilization we usually describe as "Western.” Once we understand that animal trials were not just an interesting quirk mentioned in today’s page of Talmud, but were – and still are - a common part of the judicial process, Finkelstein’s claim view is entirely plausible.  This, together with the insights from the field of psychology about what motivates people to punish others, leads us to a remarkable conclusion. Moderns, like those before us, seek to punish, not to rehabilitate the criminal or deter others from committing a crime, but because the criminal “deserves to be punished.” It matters not one bit if that criminal is a human, a dog, or an insect.