Ben Sorer Umoreh Never Was and Never Will Be”: Making Sense of Bavli Sanhedrin 71a

Introduction

Teaching an extended passage of Gemara to bright, knowledgeable, Modern Orthodox high school students often entails two somewhat competing processes. The back and forth of the Gemara can often be mystifying, with each line presenting textual and logical challenges, thereby making the thrust of the entire passage opaque. So, a large portion of a Gemara teacher’s time and energy is focused on helping students make basic sense of the sugya, both line-by-line and as a whole. Even as we aim to help our students understand the text and its logic, we also need to challenge students to go beyond a surface understanding of the Gemara, to eventually decipher the broader agenda of the sugya. But this deeper level of analysis entails pushing students to read the Gemara more closely in order to detect additional difficulties in the text!

These two goals typically operate on different planes pedagogically and are often experienced as in tension with one another. Students often have a hard enough time understanding the Gemara when they first encounter a passage, so it can feel self-defeating as an educator to push them to identify even more problems in the sugya. However, there are many sugyot where these two exercises, making sense of the sugya and problematizing the sugya, ultimately converge and yield a deeper understanding of the particular sugya and a more profound appreciation for Gemara study as a whole.

One rich example of this convergence can be found in the sugya of ben sorer umoreh (BSM)–the wayward and rebellious son. In a separate essay, “Confronting the Moral Dilemma of Ben Sorer Umoreh: Three Approaches,” we delineate three potential perspectives in tannaitic sources to the moral challenge of killing a child for merely disobeying his parents.^[1] In this essay, we will examine the passage in the Bavli which seems to address the moral dilemma of BSM most directly, Sanhedrin 71a. Like many extended passages in the Bavli, the back and forth of this particular Gemara presents a number of confounding problems. The logic of each line in the passage is perplexing for many students (and educators). But in order to really understand the sugya, it is necessary to lean even further into the difficulties of the Gemara and challenge students’ assumptions about its broader agenda.

That is because this is the Gemara which cites the Tannaitic view that the law of “ben sorer umoreh never was and never will occur,” “בן סורר ומורה לא היה ולא עתיד להיות.” Many modern scholars cite this Gemara to advance the claim that ethical considerations played a decisive role in shaping rabbinic interpretations of the biblical law of BSM. According to these scholars the rabbis deemed the biblical law of BSM to be morally problematic and actively sought to make it impossible to implement.^[2] These scholars assert that the notion of overcoming Divine Will through rabbinic interpretation the approach of “לא היה ולא,עתיד להיות” is at the heart of the Bavli’s treatment of BSM.

Indeed, each year when we begin learning BSM, several students in my class are vaguely familiar with this approach, “Isn’t BSM one of the things that the Rabbis made sure could never happen?” These students assume that there is broad support for the view of “lo haya velo atid lihyot” which helps minimize the moral challenge presented by BSM. Reading and analyzing this passage in Sanhedrin carefully will allow us to properly assess this assertion.

This essay focuses on the text of the Gemara and the questions that emerge from both an initial reading, and from a second, closer reading of each line of the sugya. Our goal is to eventually make sense of each line by recognizing the broader agenda of the sugya, an agenda which only fully emerges after inventorying all of the sugya’s logical and textual difficulties.

The Talmudic Sugya (Sanhedrin 71a)

Before analyzing the Gemara, we need to place this passage within the broader context of the larger BSM sugya in the Bavli. The Bavli (Sanhedrin 68b-72a) consistently follows the Mishnah’s lead and extensively cites the idea of “judging him based on his future,” נידון על” שם סופו,” as the explanation for the punishment of BSM and for the many practical details of its implementation. In contrast, over the course of the extended sugya, “lo haya velo atid lihyot” does not appear to be a leitmotif.^[3] In fact, Sanhedrin 71a is the only place in all of shas where the Bavli invokes the concept of “lo haya velo atid lihyot.” The question I pose to students before we analyze this sugya in-depth is: What is the Gemara’s goal when it cites the view of lo haya? Does the Gemara express this view here in order to integrate this perspective into the discussion of BSM in a significant way, as a counterweight or alternative to nidon al shem sofo? Or does the Gemara invoke the view with some other purpose in mind?

Here is the first portion of the passage:^[4]

משנה: היה אביו רוצה ואמו אינה רוצה אביו אינו רוצה ואמו רוצה אינו נעשה בן סורר ומורה עד שיהו שניהם רוצין. רבי יהודה אומר: אם לא היתה אמו ראויה לאביו אינו נעשה בן סורר ומורה:

גמרא: מאי אינה ראויה? אילימא חייבי כריתות וחייבי מיתות ב”ד סוף סוף אבוה אבוה נינהו ואמיה אמיה נינהו? אלא בשוה לאביו קאמר. תניא נמי הכי: רבי יהודה אומר: אם לא היתה אמו שוה לאביו בקול ובמראה ובקומה אינו נעשה בן סורר ומורה. מאי טעמא? דאמר קרא: איננו שומע בקלנו מדקול בעינן שוין מראה וקומה נמי בעינן שוין. כמאן אזלא הא דתניא?: בן סורר ומורה לא היה ולא עתיד להיות. ולמה נכתב? דרוש וקבל שכר. כמאן? כרבי יהודה.

Mishnah: If his father wanted [to bring him to be stoned], but his mother did not, or if his father did not want but his mother did, he does not become a rebellious son until both of them want. Rabbi Yehuda says: If his mother was not fit for this father, he does not become a rebellious son.

Gemara: What is the meaning of “not fit”? If you say [it means] they are prohibited [to one another] by punishment of karet or a capital crime – in the end his father is his father, and his mother is his mother!? Rather it means that she is physically identical (lit. the same as) to the father. A beraita also taught this: Rabbi Yehuda says: If his mother does not match his father in voice, appearance, and height – he does not become a rebellious son. What is the reason? Scripture said: “He does not heed our voice” – since the voice must match, the appearance and height must also match. According to whom is the following beraita: The rebellious son – never was and never will be, so why was it written? Expound and receive a reward. Like whom? Like Rabbi Yehuda.

After students read the Mishnah and Gemara, I ask them to note the placement and presentation of the view of “lo haya.” Students observe that the view appears immediately after the Gemara has provided an explanation for Rabbi Yehuda’s minority view in the Mishnah. The Mishnah first states the universally held requirement that both parents must consent to label the child a BSM and bring him to be stoned. It then cites Rabbi Yehuda’s view that one can only become a BSM if the boy’s mother is “fit” for his father.^[5] The Gemara opens by addressing Rabbi Yehuda’s position. It first suggests that “fit” means halakhic compatibility. It immediately rejects that possibility, noting that all we should care about is that the parents are the child’s biological parents.^[6] The Gemara then abruptly suggests a different understanding of “fit,” that the couple must be identical physically.

After reviewing the basic meaning and structure of the passage, I ask students what bothers them. Students immediately respond that they cannot understand the Gemara’s insistence that the parents be identical in appearance, voice, and height. Why would it offer that explanation unless it wanted to render the law impossible to apply in practice? I then push the students further and ask them to delineate, line-by-line, the problematic pieces of the Gemara. After this additional prodding, students typically identify the following questions:

1. Why does the Gemara ignore its own rationale for rejecting its initial position? If the Gemara just stated that we ignore halakhic incompatibility because all we care about is that the parents are the boy’s biological parents (סוף סוף אבוה אבוה נינהו ואמיה אמיה נינהו) how can the Gemara completely jettison that rationale and now suggest that the parents must be physically alike?

2. Even granting a shift to physical compatibility, students wonder why the Gemara claims that this means they must be identical and not just similar in appearance?^[7]

3. Students are most troubled by the drasha cited by the Gemara to support this view. The Gemara quotes a beraita in the name of Rabbi Yehuda that explicitly states his view that the parents must be identical in appearance, voice, and height.^[8] The Gemara then justifies this beraita with a highly problematic drasha – “since their voice must be the same, their appearance and height need to be the same too.” Students reach a point of exasperation in trying to understand this dubious derivation. What is the basis for this difficult explanation and even weaker justification? Is the Gemara so insistent on promoting the view of lo haya velo atid lihyot that it has blinders on as to how problematic this passage reads? How do we “make sense” of this mystifying Gemara?

In order to help students make sense of the shakla vetarya, I remind students about our observation regarding the placement of the beraita of lo haya velo atid lihyot and what that reveals about the broader aim of the sugya. I note again to students that this is the only time that “lo haya” is mentioned in the entire Bavli. The Gemara chooses this precise juncture, immediately after explaining the view of Rabbi Yehuda, to ask which Tanna authored the view of lo haya. The Gemara answers: it is Rabbi Yehuda. It is here that the Gemara conjoins Rabbi Yehuda’s position with the view that the law of BSM never was and never will occur! This is the moment the Gemara connects the dots and suggests that stipulating extraordinary conditions on this law makes it impossible to implement.^[9]

I then ask students to try to make sense of this juxtaposition and the alignment of Rabbi Yehuda’s view with lo haya. Does it suggest that the Gemara is championing lo haya velo atid lihyot and projecting it as a viable response to the moral problem of BSM? Or is it more likely that by mapping the view of lo haya velo atid lihyot onto the problematic explanation of Rabbi Yehuda, the Gemara effectively undercuts both Rabbi Yehuda and lo haya. To wit, who is the lone Tanna identified by the Gemara who sought to eliminate the law of BSM? It is Rabbi Yehuda, the Tanna whose peculiar opinion was explained so as to require the parents to be physically identical. Rather than reading the citation of “lo haya” as evidence for the Gemara staking its claim in support of revolutionary rabbinic interpretation based on moral considerations, students usually come to the conclusion that the sugya may actually be marginalizing that approach by attaching it to the idiosyncratic view of Rabbi Yehuda.

At this stage, I challenge students to try to now make sense of the entire passage of the Gemara. Why did the Gemara have such an abrupt about-face on its initial insistence that we only care about the fact that the parents are the biological parents to instead require that they be identical in appearance, voice, and height? And why did the Gemara support this outlier view with such a highly suspect drasha? With these prompts, some students suggest that the Gemara presented its explanation of Rabbi Yehuda’s view in such a far-fetched and problematic fashion in order to undermine it and any view associated with it. In this reading of the sugya, the Gemara is well aware of the weaknesses in its explanation of Rabbi Yehuda. In fact, that is precisely the point of the passage: to subvert by association the lo haya view of activist rabbinic interpretation.^[10]

Students who identify the Gemara’s goal as working to marginalize the Rabbi Yehuda/lo haya approach, will often note that the continuation of the passage also supports this reading. Immediately following the citation of lo haya and ascribing it to Rabbi Yehuda, the Gemara adds an alternative possibility. The Gemara suggests that it is actually Rabbi Shimon who maintained the view of lo haya and cites a beraita to support this view:

איבעית אימא ר’ שמעון היא. דתניא: אמר רבי שמעון: וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי אביו ואמו מוציאין אותו לסקלו? אלא לא היה ולא עתיד להיות ולמה נכתב? דרוש וקבל שכר.

Alternatively: it is like Rabbi Shimon, for we learned in a beraita: Rabbi Shimon said: Just because this one ate a tartimar of meat and drank a half log of Italian wine, his father and mother will take him out to be stoned!? Rather: He never was and never will be, so why was it written? Expound and receive a reward.

Rabbi Shimon’s view is fascinating. I inform students that this is the only time in rabbinic literature where the answer to the question of “Can it be that just for eating meat…” is לא היה ולא עתיד להיות. In every other instance where the question appears the answer provided is nidon al shem sofo, including later on in the Bavli on 72a.

Students observe that the precise formulation of the question is also highly suggestive. As opposed to all other versions of the question which asks how the Torah could require the BSM to be executed for such a minor offense, Rabbi Shimon’s version states that no set of parents would consent to this punishment: “Just because this one ate a tartimar of meat and drank a half log of Italian wine, his father and mother will take him out to be stoned!?”

The significance of these details is better understood when we review the broader passage. The Gemara’s explanation of Rabbi Shimon’s view brings us back to the consensus view of the Mishnah, that both the father and mother must agree to bring the BSM to the town elders to be stoned. Rabbi Shimon’s statement highlights the incommensurate punishment of BSM. But his focus is not moral, but psychological/emotional and practical. Rabbi Shimon asserts: what parents would ever bring their child to be stoned for these relatively minor infractions? Because parental consent is required, it is inconceivable that parents would sign off on carrying out this punishment. That is why this would never happen, not because ethical sensibilities demand that we interpret the passage out of existence.

This view of Rabbi Shimon and lo haya, with its linkage to the normative view of the Mishnah, is not presented as an alternative to nidon al shem sofo, as the Maharsha explains in his Chiddushei Aggadot on Sanhedrin 71a:

ור״ש דקאמר וכי מפני כו’ הוא תמוה לכאורה אם אינו ראוי ליסקל למה כתבה התורה שהוא ראוי ולא שייך בזה דרוש וקבל שכר וכו’?… ור’ שמעון דקאמר וכי מפני שאכל כו’ דודאי לדעת ר”ש התורה חייבה עליו מיתה שהגיעה תורה לסוף דעתו ונידון ע”ש סופו- ימות זכאי וכו’ כדלקמן אלא דקאמר דאביו ואמו ודאי דלא יוציאו אותו בשביל זה לסקילה שהם ודאי לא יגיעו לסוף דעתו ויאמרו שסופו לחזור מדרכיו הרעים ויהיו חסים עליו וע״כ לא היה ולא עתיד להיות שאביו ואמו לא יגיעו לסוף דעתו ויחסו עליו מלהוציאו לסקילה בשביל תרטימר אחד ולמה נכתב אלא דרוש שאביו ואמו ידרשו שהתורה הגיעה לסוף דעתו דבכזה הוא ראוי ליסקל וע”י זה יוכיחו ויסרו את בניהם ויקבלו על זה שכר וכדאמרינן הני נשי במאי זכיין שמגדלין בניהן לת”ת אבל בזמן הזה אין נותנין לב לזה וכל אחד מכפה על בנו אף שהוא באמת חייב מלקות ומיתת ב”ד ואין מוכיחין אותן והנערים הולכים רוב ימיהן בביטול ת”ת ואמרי’ פרק כל כתבי לא חרבה ירושלים אלא בשביל שבטלו בו תינוקות של בית רבן כו’ ודו”ק:

Rabbi Shimon’s statement that this law was never enforced is surprising: If it is not appropriate to stone the son, then why did the Torah write that it is appropriate to stone him? There would then be no sense to the statement that it was written to be expounded and to receive reward [because the claim is that the parsha itself makes no sense]!… Clearly Rabbi Shimon thinks that the Torah decreed death for this boy based on his future deeds (nidon al shem sofo) and what Rabbi Shimon means is that his father and mother will surely not actually agree to bring him to be stoned on this account, because they will not judge his future in this way. They will say that he will eventually abandon his bad behavior and they will have mercy on him. That is why this case would never be implemented… So why was this law written? So it could be expounded by his parents, who will see that the Torah judges their son based on his future behavior and he is worthy of being stoned. And based on this, they will rebuke him and punish their son and thereby receive reward, as we say [elsewhere]: Women receive reward for raising their sons to be scholars. But in our own time, no one pays attention to this; everyone spoils their child even when he truly is liable for court-ordered punishment and they do not rebuke them and most children spend their childhood totally neglecting the study of Torah…

Rabbi Shimon’s view of “never was and never will be,” according to the Maharsha, doesn’t mean to suggest that the law of BSM is inherently morally problematic. What would have been the point of it being in the Torah if it is immoral and we are not supposed to implement it? Rabbi Shimon is not bothered that in theory we would execute such a child; rather, he would be shocked if it ever happened. No set of parents thinks that their child is irredeemable and so no set of parents would bring their child to be stoned. Moreover, Maharsha believes that this more psychological/practical view of “lo haya” works in tandem with nidon al shem sofo, which is the broader rationale for the law. Finally, Maharsha models how to expound the law of BSM and derive lessons from it. All parents should take heed of the underlying message of this mitzvah, even if they will never implement the biblical punishment in reality.

The Gemara’s “alternative explanation” rereads and redeems the view of lo haya velo atid lihyot by ascribing it to the consensus position of Rabbi Shimon, thereby mainstreaming lo haya velo atid lihyot. According to this perspective, lo haya complements the nidon al shem sofo approach and is something that everyone agrees to – and not merely a corollary to the minority view of Rabbi Yehuda.

To sum up: Every line of the Gemara, from how it chooses to explain Rabbi Yehuda’s view and employs a dubious drasha to support it, to how it incorporates and then reworks the earlier tannaitic texts, makes sense once we identify the broader aim of the sugya.^[11]

Concluding Thoughts on Pedagogy

When I first started teaching this perek to high school students, I was ambivalent about teaching the passage on 71a. The thought of prodding students to identify all the difficulties in the sugya seemed counterproductive. Explaining the logic of a Gemara to students is enough of a challenge on its own without encouraging them to pile on even more problems. So, I often skipped this Gemara entirely or just did a cursory reading of it with my students, highlighting how the Gemara does reference the lo haya velo atid lihyot approach in the course of the perek.

But I have since come to the realization that truly believing that the Gemara should “make sense” requires taking this Gemara (and all Gemarot) more seriously and not glossing over challenging lines within a sugya, or skipping entire passages, even (or especially) with high school students. This is true even when, upon encountering the additional textual and logical difficulties, some students will initially be more convinced that the Gemara is illogical and “doesn’t make any sense.” I have found that consistently reinforcing with students that the Tannaim, Amoraim, and authors of the Gemara were smart people who were aware of the strengths and weaknesses in specific positions and drashot, pays dividends over time. It empowers students to use their own intellectual abilities to try to understand what Chazal might have been thinking in advancing an argument.

In the sugya under discussion, firmly believing in the wisdom of the Amoraim typically yields a reassessing of the broader agenda of the sugya. After an initial reading, many students are convinced that the only thing they understood is that this Gemara supports the “never was and never will be” approach to the moral dilemma of BSM. Indeed, a cursory reading affirms what some students had thought or heard about BSM prior to learning the sugya. But closer scrutiny of the Gemara challenges students to reconsider their assumptions. And on final analysis, the “never was and never will be” approach to the moral challenge of BSM is a minority voice, if that, within the sugya. The broader agenda of the sugya instead reinforces the centrality of the nidon al shem sofo approach to BSM. Moreover, if we follow the Gemara’s lead and Maharsha’s reading of the sugya, the aim of the Gemara is to incorporate the statement of “lo haya velo atid lihyot” into the framework of nidon al shem sofo. According to this view, putting the BSM to death is not something that any set of parents would consent to carry out. Nevertheless, the laws of BSM remain relevant and contain timeless moral teachings.

At the conclusion of learning this sugya, I ask students to write what they see as its takeaways. One student’s response from a number of years ago stands out: “The position of Rabbi Shimon, as explained by the Maharsha, captures the deep wisdom embedded in the multifaceted sugya of BSM. Rabbi Shimon’s acknowledgment of both the power and the limits of parental love conveys to parents, to children, and to society as a whole, the delicate balance between accepting love and transforming love in the parent/child relationship.”

Appendix I: The sugya in Sanhedrin 71a with a detailed summary^[12]

תלמוד בבלי סנהדרין עא.

משנה :1. היה אביו רוצה ואמו אינה רוצה אביו אינו רוצה ואמו רוצה אינו נעשה בן סורר ומורה עד שיהו שניהם רוצין.

2. רבי יהודה אומר אם לא היתה אמו ראויה לאביו אינו נעשה בן סורר ומורה:

גמרא: 3. מאי אינה ראויה? אילימא חייבי כריתות וחייבי מיתות ב”ד סוף סוף אבוה אבוה נינהו ואמיה אמיה נינהו!

4. אלא בשוה לאביו קאמר

5. תניא נמי הכי רבי יהודה אומר אם לא היתה אמו שוה לאביו בקול ובמראה ובקומה אינו נעשה בן סורר ומורה

6. מאי טעמא דאמר קרא איננו שומע בקלנו מדקול בעינן שוין מראה וקומה נמי בעינן שוין.

7. כמאן אזלא הא דתניא: בן סורר ומורה לא היה ולא עתיד להיות ולמה נכתב דרוש וקבל שכר כמאן כרבי יהודה.

8. איבעית אימא ר’ שמעון היא דתניא אמר רבי שמעון וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי אביו ואמו מוציאין אותו לסקלו אלא לא היה ולא עתיד להיות ולמה נכתב דרוש וקבל שכר.

9. אמר ר’ יונתן אני ראיתיו וישבתי על קברו

10. כמאן אזלא הא דתניא עיר הנדחת לא היתה ולא עתידה להיות ולמה נכתבה דרוש וקבל שכר כמאן כר’ אליעזר דתניא רבי אליעזר אומר כל עיר שיש בה אפילו מזוזה אחת אינה נעשית עיר הנדחת. מאי טעמא אמר קרא (דברים יג) ואת כל שללה תקבוץ אל תוך רחבה ושרפת באש וכיון דאי איכא מזוזה לא אפשר דכתיב (דברים יב) לא תעשון כן לה’ אלהיכם.

11. אמר רבי יונתן אני ראיתיה וישבתי על תילה

12. כמאן אזלא הא דתניא בית המנוגע לא היה ולא עתיד להיות ולמה נכתב דרוש וקבל שכר כמאן כר’ אלעזר בר’ שמעון דתנן ר’ אלעזר ברבי שמעון אומר לעולם אין הבית טמא עד שיראה כשתי גריסין על שתי אבנים בשתי כתלים בקרן זוית ארכו כשני גריסין ורחבו כגריס. מאי טעמא דר’ אלעזר ברבי שמעון כתיב קיר וכתיב קירות איזהו קיר שהוא כקירות הוי אומר זה קרן זוית.

13. תניא אמר רבי אליעזר בר’ צדוק מקום היה בתחום עזה והיו קורין אותו חורבתא סגירתא אמר רבי שמעון איש כפר עכו פעם אחת הלכתי לגליל וראיתי מקום שמציינין אותו ואמרו אבנים מנוגעות פינו לשם:

Talmud Bavli SANHEDRIN 71A

Mishnah: 1. If his father wanted, but his mother did not, or if his father did not want but his mother did

he does not become a rebellious son until both of them want.

2. Rabbi Yehuda says: If his mother was not fit for this father – he does not become a rebellious son.

Gemara: 3. What is the meaning of “not fit”?If you say that marrying her would be a karet or capital crime – In the end his father is his father, and his mother is his mother!?

4. Rather it means that she is physically identical (lit. the same as) to the father.

5. A beraita also taught this: Rabbi Yehuda says: If his mother does not match his father in voice, appearance, and height – he does not become a rebellious son.

6. What is the reason? Scripture said: “He does not heed our voice” – Since the voice must match, the appearance and height must also match.

7. Like whom is the following beraita: The rebellious son – never was and never will be, so why was it written? Expound and receive a reward.? Like whom? Like Rabbi Yehuda.

8. Alternatively: Like Rabbi Shimon, for we learned in a beraita: Said Rabbi Shimon: Because this one ate a tartimar of meat and drank a half log of Italian wine, his father and mother take him out to be stoned!? Rather: He never was and never will be, so why was it written? Expound and receive a reward.

9. Said Rabbi Yonatan: I have seen him, and I sat on his grave.

10. Like whom is the following beraita: The idolatrous city never was and never will be.? Like whom? Like Rabbi Eliezer, for we learned in a beraita: Rabbi Eliezer says: Any city that has in it even one mezuzah cannot be made an idolatrous city. What is the reason? Scripture said: “and all its spoils gather to the midst of its plaza and burn in fire”, And (since) if there is a mezuzah it is not possible, as Scripture writes “(you must destroy their name…you must not do so to Hashem your G-d.”

11. Said Rabbi Yonatan: I have seen it, and I sat on its tell.

12. Like whom is the following beraita: The afflicted house never was and never will be, so why was it written? Expound and receive reward.? Like whom? Like Rabbi El’azar son of Rabbi Shimon, as we learned in a Mishnah:

Rabbi Eliezer son of Rabbi Shimon says: Actually the house does not become tamei until the (afflicted patch) appears in the size of two gris on two stones in two walls, in a corner, two gris long and one gris wide. What is Rabbi El’azar son of Rabbi Shimon’s rationale? Scripture writes “wall” and “walls” – What is a wall that is like walls? That is a corner.

13. A beraita: Said Rabbi Eliezer son of Rabbi Tzadok: There was a place in the vicinity of Aza which they called “the ruin of the shut-in”. Said Rabbi Shimon of the Village of Akko: Once I went to Galilee and I saw a place that they marked, and they said: “Leprous stones were moved to here”.

Detailed summary:

The Mishnah opens by stating that both parents must consent to condemn their child before he may be stoned, which aligns with the plain sense of the biblical verses (1). Rabbi Yehuda adds a further condition: the mother must be “fit” for the father (2). The talmudic sugya begins by asking what “fit” means. It first raises the possibility that it means they must be halakhically compatible – such that if the relationship was biblically prohibited due to incest and the like (capital sexual crimes), the son born from such a relationship could not be a BSM according to Rabbi Yehuda (3). But the Gemara summarily rejects this view: in the end, all we should care about is whether the parents are in fact the child’s biological parents (3). The Gemara then suggests that “fit” means that the two must be identical (4). It cites a supporting beraita which states that Rabbi Yehuda is of the view that the couple must be identical in appearance, in voice, and in height (5). The Gemara then employs a drasha to explain how Rabbi Yehuda derived that they must be identical in voice, and by extension in appearance and height (6). Then the sugya pivots and cites the Tosefta that the rule of the wayward and rebellious son was never put into action (7). The Talmud maps this Tosefta onto Rabbi Yehuda’s view, suggesting that his conditions that the father and mother sound and look alike will eliminate the application of this law (7). The sugya then continues by suggesting that the Tosefta might equally well be mapped on to the tannaitic view of Rabbi Shimon, who, in a slightly modified version of the question “can it be because he ate…”, is astounded by the law and declares that no set of parents would ever put it into practice (8). The passage continues with a dissenting view, that of Rabbi Yonatan, who reports a personal encounter with a wayward and rebellious son who was executed, indicating his conviction that this law is very much applicable (9). The passage then discusses two parallel cases, the idolatrous city and the house with nega’im, where the law was never implemented and never will be, according to a single tannaitic view. Each parallel concludes with reports (the first from Rabbi Yonatan as well) that these laws were in fact implemented and witnessed (10-13).

Appendix II: Analysis of the latter portion of the sugya:

In the body of the essay, we analyzed the sugya through line 8. In this appendix, we offer an analysis of the rest of the sugya (lines 9-13).

Questions:

1. Rabbi Yonatan’s statement is difficult to understand literally. It is historically dubious. How could this second century Tanna (living after capital punishment had ceased to be operative) and a Kohen (subject to the prohibition of tumat kohanim) have actually witnessed the execution of a BSM or sat on his grave. How are we to understand this statement?
2. What is the significance of the Gemara citing the other two cases – ir hanidachat and bayit hamenuga? What do these cases suggest about the prior discussion of BSM?

Analysis:

1. Rabbi Yonatan’s view: This dramatic double formulation “I saw a BSM and I sat on his grave” parallels the double formulation of “BSM never was and never will be”. It is hyperbole, meant to affirm with conviction that BSM definitely can happen, even if Rabbi Yonatan never could have seen a BSM or sat on his grave. For Rabbi Yonatan, it is inconceivable that the law of BSM would not be intended for implementation.^[13] But which argument is Rabbi Yonatan responding to – Rabbi Yehuda’s interpreting the law out of existence or Rabbi Shimon’s assertion about parental consent? The ambiguity suggests that Rabbi Yonatan could be responding to both arguments, and truthfully, Rabbi Yonatan’s argument is a broad, all-encompassing one: what is written in the Torah should, in an ideal world, be implemented in practice. The Torah is a repository of wisdom and values, and as such, we should certainly not utilize dubious legal interpretation to eliminate BSM nor should parents withhold consent if their child’s actions and attitudes warrant the biblical punishment. Rabbi Yonatan’s rhetorical message is clear: BSM should and did happen. And, though it is hard to conclude anything definitively from this, the Gemara gives Rabbi Yonatan the last word. This also suggests that the overall agenda of the Gemara is to advocate against deploying ethical considerations to interpret the law of BSM out of existence.

2. The other cases: The passage concludes with two parallel cases – the idolatrous city and the afflicted house where a single Tanna’s view is associated with a tannaitic statement of lo haya velo atid lihyot. The Gemara concludes each case with a dissenting “witness” who claims to have seen the remnants of the implementation of these laws.

The Gemara first cites Tosefta Sanhedrin 14:1 which records that the law of a city that has gone over completely to idolatry and must be burned to the ground and never rebuilt never happened and never will happen. In this instance the Gemara ascribes this view to Rabbi Eliezer who argues that if the city contained even one mezuzah, it could not be burned. There do not seem to be any major moral misgivings in rabbinic literature about idolatry and the death penalty that it carries. Moreover, Rabbi Eliezer’s reasoning does not seem related to any moral consideration, but to an understanding of the verses.

And even if one might argue that some Sages had ethical objections due to excessive and group punishment in the case of the idolatrous city, there is almost no way to make such a claim about the subject of Tosefta Negaim 6:1: “There never was and never will be a case of an afflicted house. Why was it written? To say to you: Expound upon it and receive reward.” The case of the afflicted house is one where tzara’at will not depart from a stone house in the Land of Israel. If repeated efforts to contain and remove the mold fail, the entire house must be destroyed. This is surely a personally difficult law for the owner of said house, but can one plausibly claim that one of our Sages had so much moral discomfort with this law that he sought to eliminate it through interpretation? Here, too, the Gemara maps this view onto a tannaitic view that does not appear to be based on moral considerations.

The Gemara’s inclusion of these two cases in the BSM sugya is highly suggestive. The language deployed to describe their non-applicability is even more evocative. It is identical to that used in the case of the wayward and rebellious son! If it is more plausible to read this language without the lens of moral outrage in these two other cases, should we seriously consider that the Gemara is encouraging us to drop that lens in the case of the BSM as well?

Instead, this Gemara appears to contain different perspectives on another important, and related, question: Can, or should, the Rabbis legislate in ways that will eliminate laws out of existence? This is a fascinating question, and is applicable even if the motivation for interpretation is not rooted at all in moral considerations. It is more likely that this question about the Torah as a legal system and whether it is advisable to eradicate individual laws is the overarching debate that links all three cases of lo haya velo atid lihyot.

1. We analyze how these approaches reflect different perspectives on navigating gaps between divine law and human ethical sensibilities. One perspective, the divine decree approach, acknowledges the chasm between the two and encourages submission of our ethical sensibilities before the Divine Will. A second perspective, the lo haya velo atid lihyot approach, promotes the idea of overcoming the Divine Will through rabbinic interpretation. A third perspective–nidon al shem sofo–models an approach which seeks to narrow the gap between Torah law and human sensibilities. ↑
2. This view is articulated by Moshe Halbertal, Interpretive Revolutions in the Making (Magnes Press, 1997) [Hebrew] and Avi Sagi, Judaism: Between Religion and Morality (Hakibbutz Hameuhad, 1999) [Hebrew], among others. Eliezer Berkovitz, Not in Heaven (Shalem Press 2010 reprint) 48 argues that the full Tannaitic statement encourages this approach: ״בן סורר ומורה לא היה ולא עתיד להיות. ולמה נכתב? דרוש וקבל שכר״ -”ben sorer umoreh never was and never will occur. So why was it written? In order to interpret it and receive reward.” For Berkovitz, “drosh v’kabel schar” means we have a mandate to interpret it out of existence – the reward of BSM will come if it is eliminated! Even Daniel Statman, who challenges the methodological assumptions of scholars who read ethical considerations into rabbinic interpretation, accepts that this passage supports the view that ethical considerations drove rabbinic interpretation. See his “Halakha and Morality: A Few Methodological Considerations,” Journal of Textual Reasoning 6, no. 1 (2010). For an overview of approaches to the issues raised here, see Rachel Rosenthal, “Rebel With a Clause: Interpretation, Pedagogy, and the Problem of the Stubborn and Rebellious Son” (Phd Diss., JTS, 2019). ↑
3. It is worth noting that the approach of “Divine Decree” is also not at all prominent in the Bavli. The Divine Decree statement of the Tosefta with regard to the exclusion of daughters appears in just one place in the Bavli (69b-70a). A slightly more expansive version of the Divine Decree rationale appears in the Yerushalmi (8:1). There Rabbi Yasa folds this point into a set of three details about this mitzvah and its rabbinic interpretation that seem counterintuitive. Rabbi Ethan Tucker gives a thorough and persuasive analysis that the Divine Decree statement was never meant to be offered as a comprehensive explanation for the moral challenge of BSM. See his “בן סורר ומורה: Moral Revolution or Complex Application?,” Center for Jewish Law and Values Elul 5776, https://mechonhadar.s3.amazonaws.com/mh_torah_source_sheets/CJLVRebelliousSon.pdf. ↑
4. See Appendix I for the entirety of the passage along with a detailed summary. ↑
5. Rabbi Yochanan in the Yerushalmi voices the majority view of the Sages when he states that the mother does not need to be fit for the father. Before analyzing the Gemara, I encourage students to suggest what they think Rabbi Yehuda means. They typically explain the pshat of the Mishnah as referring to personal incompatibility of the parents – do they get along as a couple and are they on the same page as parents? While the Gemara does not raise this possibility in this context, passages in the Midrash Halakha reflect this perspective. See, for example, the Midrash Pitaron Torah on Ki Teitzei which states that a child who grows up in a home where the parents speak different dialects of the same language is ineligible to be a BSM, presumably because this leads to different messages from the parents.

   מדרש פתרון תורה פרשת כי תצא

   כי יהיה לאיש בן סורר ומורה…״איננו שומע בקול אביו ובקול אמו״ מגיד שניהם ״ותפשו בו אביו ואמו״ אביו שהוא כאמו אמו שהוא כאביו לא בזמן שאחד מדבר יהודית ואחד מדבר אשדודית. ↑

6. A parallel Gemara in Sanhedrin (53b) does explain Rabbi Yehuda’s position as referring to Halakhic incompatibility. This begs the question of why the Gemara on 71a does not make a stronger case for halakhic incompatibility. It appears that the Gemara is more interested in offering the alternative explanation than in modifying this explanation. See below for more on how this aligns with the broader agenda of the sugya. ↑
7. See Mishnah Yoma 6:1 where the Mishnah states that the two goats used in the Yom Kippur service must be identical in height and appearance (as well as cost). Our Gemara utilizes this language for the parents, but differs from the Mishnah Yoma which permits a scenario where the goats are merely similar and not identical. ↑
8. Note that this beraita does not appear anywhere in earlier rabbinic literature, perhaps suggesting that the Gemara constructed it for the purpose of this sugya! ↑
9. To be precise, the Gemara does not explain Rabbi Yehuda’s motivation for doing so. It never says outright that ethical considerations drove him to interpret it out of existence. However, one could conclude from this passage, as many scholars have, that the Gemara presents Rabbi Yehuda as consciously utilizing legal interpretation to neutralize BSM because it is morally objectionable. It is also possible to read the Gemara differently. See Rabbi Ethan Tucker, cited above, who says not to understand the identical appearance literally or as a tendentious attempt to eradicate the law. One could also interpret the drasha as having some logic, i.e. that presumably the only way to achieve the same voice is to have parents of identical height and appearance. ↑
10. Some students push back and ask: if the Gemara seeks to minimize the significance of the lo haya view, why cite it in the first place? Indeed, if it was entirely omitted, no one would mistakenly think that the Gemara is throwing its support behind this view. Though speculative, there are a few possible reasons for this. Perhaps the Gemara just cites it to further weaken the position of Rabbi Yehuda. Or perhaps the Gemara felt compelled to respond to the view of lo haya that appears in a significant Tannaitic source (the Tosefta) and does so by marginalizing it. Or maybe the Gemara’s agenda from the outset was to cite the Tosefta so as to reinterpret lo haya to be in line with the consensus view of nidon al shem sofo. See the next section in the body of the paper. ↑
11. See Appendix II for an analysis of the rest of the passage in Sanhedrin 71a. ↑
12. All citations of Tannaitic texts are in bold. ↑
13. It is important to note here a potential parallel where Rabbis may express a similar sentiment to BSM’s “never was and never will be.” This view can be found in Mishnah Makkot 1:10 which delineates the frequency of capital punishment by various courts. Rabbi Akiva and Rabbi Tarfon assert that if they had sat on the Sanhedrin, the death penalty would never have been implemented, presumably because of ethical considerations. Though similar to our case in that Tannaim are employing Halakhic means to an ethical end, there is a significant difference between the two. In Makkot, the Rabbis use a Halakhic mechanism (from the context of the Mishnah, Rabbi Akiva and Rabbi Tarfon would employ extensive drisha v’chakira – or overly intense questioning of witnesses – in order to obfuscate the details of a capital case) to prevent capital punishment from materializing. With BSM, the Gemara’s explanation of Rabbi Yehuda is qualitatively different as it entails altering the very requirements of BSM (the parents must be identical in voice, appearance, and height) to ensure it cannot occur. Rather than preventing the outcome in a practical way, he alters the law itself before it can ever occur. As such, Rabbi Yonatan may have had no issue with Rabbi Akiva and Rabbi Tarfon’s view. ↑