In Jewish law, someone can only be punished for a crime if they are warned that the action they are about to commit is prohibited and told of the punishment that it carries. On today’s daf, the Gemara posits that if a person is warned about a severe crime, the warning also covers related, but less severe, crimes. In other words, if someone is warned that murder is prohibited and carries the death penalty, and then the person attacks someone causing bodily injury (a crime for which the punishment is flogging), they can be flogged because the warning against murder entails a warning against causing bodily harm.
Rav Ashi takes issue with this principle in a classic talmudic manner:
From where do you ascertain that one who is forewarned with regard to a severe matter is forewarned with regard to a lesser matter? Perhaps he is not.
Nothing out of the ordinary here, just another rabbi challenging a statement posited by the Gemara by inquiring into its source. But Rav Ashi is not done.
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Even if you say one is (in fact forewarned with regard to a lesser matter), from where do you ascertain that death is more severe (than lashes)?
Wait, what? Isn’t it obvious that death is a more severe punishment than lashes? Something doesn’t add up — unless, suggests the Gemara, you consider this statement made by Rav:
Had they flogged Hananiah, Mishael, and Azariah, they would have been induced to worship the graven image.
Rav is referring here to events related in the third chapter of the Book of Daniel, where Daniel’s three friends — Hananiah, Mishael and Azariah — are thrown into a fiery furnace by Nebuchadnezzar for refusing to worship idols. As Rav sees it, had they been given lashes instead, they would have eventually succumbed to idol worship to stop the pain of their punishment. And since idol worship is one of Judaism’s cardinal sins, the three were better off receiving the death penalty, because it removed their temptation to sin.
And so, says Rav Ashi, lashes can be a more severe punishment than the death penalty, as the latter protects one from committing a cardinal sin and the former does not.
Did Rav Ashi really think that it’s better to be sentenced to death than to be flogged? Probably not. But the Gemara seems to want us to know that he could demonstrate that there are cases when it might be. Perhaps because doing so shows that no argument is foolproof and that there are always other ways to look at a particular situation.
In case you’re wondering, Hananiah, Mishael and Azariah were miraculously saved from the furnace by God and as a result escaped Nebuchadnezzar’s wrath. So for them, the death penalty turned out to be the best path forward — they avoided the temptation to sin that might have resulted from being lashed AND they avoided the penalty of death by God’s miracle. Not so sure that would be the case for the others who find themselves in dire straits, but that’s a story for another page.
Read all of Ketubot 33 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 8th, 2022. If you are interested in receiving the newsletter, sign up here.
