Beginning Makkot? Now?!

The other day, we began the third and final perek of Makot, on Makkot 13b.

מַתְנִי׳ אֵלּוּ הֵן הַלּוֹקִין: הַבָּא עַל אֲחוֹתוֹ, וְעַל אֲחוֹת אָבִיו, וְעַל אֲחוֹת אִמּוֹ, וְעַל אֲחוֹת אִשְׁתּוֹ, וְעַל אֵשֶׁת אָחִיו, וְעַל אֵשֶׁת אֲחִי אָבִיו, וְעַל הַנִּדָּה. אַלְמָנָה לְכֹהֵן גָּדוֹל, גְּרוּשָׁה וַחֲלוּצָה לְכֹהֵן הֶדְיוֹט, מַמְזֶרֶת וּנְתִינָה לְיִשְׂרָאֵל, בַּת יִשְׂרָאֵל לְנָתִין וּלְמַמְזֵר.

MISHNA: After enumerating in tractate Sanhedrin those liable to be executed and in the previous chapter those liable to be exiled, the mishna proceeds to enumerate those liable to receive lashes. These are the people who are flogged by Torah law for violating a prohibition: One who engages in intercourse with his sister, or with his father’s sister, or with his mother’s sister, or with his wife’s sister, or with his brother’s wife, or with the wife of his father’s brother, or with a menstruating woman. Likewise, one is flogged in the case of a widow who married a High Priest, a divorcée or a ḥalutza who married an ordinary priest, a mamzeret, i.e., a daughter born from an incestuous or adulterous relationship, or a Gibeonite woman who married a Jew of unflawed lineage, and a Jewish woman of unflawed lineage who married a Gibeonite or a mamzer, i.e., a son born from an incestuous or adulterous relationship.

Someone at the Daf Yomi chabura noted that we have finally arrived at Makkot. That is, the name of the tractate is Makkot, but here we finally cover lots of offenses that earn lashes.

This made me reflect. There might be something to it. As I discussed in my recent article,

there may be different views between Bavli, Yerushalmi, Amoraim, Savoraim, and scribes as the whether Makkot is its own tractate, related to a question about the order of the tenth and eleventh chapters of Sanhedrin.

In a footnote to that article, I wrote:

See Ramban, Devarim 21:13, referring to Yerushalmi Makkot as Sanhedrin; Rashba, Kiddushin 22a, referring to something appearing in our Yerushalmi Makkot perek 2 as Yerushalmi Sanhedrin; Ralbag on Shemot 21:12 referring to the same second as the 13th perek of Yerushalmi Sanhedrin. Rambam in his Introduction to the Mishnah notes this position / textual variant and rejects it.

I didn’t get into it there because the situation was already complicated enough, but here is the Rashba in question.

ורבינו יצחק זצ"ל מצא בירושלמי שזה מחלוקת של אמוראין, דגרסינן התם בפרק בתרא דסנהדרין ר' יוחנן שלח אמר לרבנין דתמן תרתין מלין אתון אמרין בשם רב ולית היא, (כאן) [כן] אתון אמרין בשם רב יפת תואר לא התירו בה אלא ביאה ראשונה,

He talks about a quote in the “last perek of Sanhedrin”. While the text the Rashba quotes appears in Yerushalmi Makkot, it appears in the second perek of Makkot. Also, there is no Talmud Yerushalmi on the third perek of Makkot, as this note in the Leiden manuscript states. (There’s one brief text that appears elsewhere and appears in one manuscript, G, that makes some sense, as I discuss in the article I linked to above.)

This may indicate that a third possible grouping. Namely:

1. Sanhedrin

2. The first two perakim of Makkot actually continue Sanhedrin. They don’t pertain to lashes. The connection is only tangential, since eidim zomemim on occasion receive lashes. But really, testimony of conspiring witnesses belongs more in Sanhedrin.

3. Meanwhile, Makkot could be a stand-alone one perek tractate, beginning with אֵלּוּ הֵן הַלּוֹקִין: . And, it was later attached to available material of a larger tractate so that it would not get lost.

Maybe we can say that Makkot chapter 2 really finishes Sanhedrin, and leaves off in a quasi-inspirational space, namely, return:

מַאי ״וְכֵן בַּגּוֹלָה״? כִּדְתַנְיָא: ״יָשׁוּב הָרֹצֵחַ אֶל אֶרֶץ אֲחֻזָּתוֹ״ – לְאֶרֶץ אֲחוּזָּתוֹ הוּא שָׁב, וְאֵינוֹ שָׁב לְמַה שֶּׁהֶחְזִיקוּ אֲבוֹתָיו, דִּבְרֵי רַבִּי יְהוּדָה. רַבִּי מֵאִיר אוֹמֵר: אַף הוּא שָׁב לְמַה שֶּׁהֶחְזִיקוּ אֲבוֹתָיו – גָּמַר שִׁיבָה שִׁיבָה מֵהָתָם.

The Gemara asks: What is the meaning of: And likewise, the same is true with regard to an exile? The Gemara explains: It is as it is taught in a baraita with regard to the verse: “The murderer shall return to his ancestral land” (Numbers 35:28), from which it is derived that he returns to his ancestral land, but he does not return to that status of prominence and honor that his ancestors held; this is the statement of Rabbi Yehuda. Rabbi Meir says: He even returns to that status of prominence and honor that his ancestors held. Rabbi Meir derives this by means of a verbal analogy from there, i.e., between the term of “return” written with regard to the unintentional murderer, and the term of “return” written with regard to the Hebrew slave. The verbal analogy teaches that just as a Hebrew slave returns to his father’s estate and the status of prominence held by his ancestors, so too, the unintentional murderer returns to his ancestral land and to the status of prominence held by his ancestors.

Alternatively, we might imagine perek Chelek moved to the very end, after Makkot 2.