Rabbi Tarfon treifs some(thing / one) else up
In this post, I have two corrections / updates.
(1) In my post about Chanukkah and distance lighting, I erred in ascribing a position solely to Rav Ovadia Yosef; it turns out that Rav Moshe Feinstein held similarly. That partly undermines a point I made about how probing for knowledge of the metziut and demographic background, e.g. male or female, dorm room or apartment, and importantly, Sefardi or Ashkenazi, might make a difference in the ultimate pesak. I’ve updated the post accordingly, to note Rav Feinstein’s position.
(2) I had a recent post about Rabbi Tarfon, who ruled that a cow from Beit Menachem was treif and caused it to be fed (or directly fed it) to dogs. That pesak was in error, and he worried that he’d be liable to pay the cow’s owner. I discussed this as a as it related to purported eponymous attribution, where he got his name from the incident, but don’t think it’s likely, because he is well known from many other halachic statements and stories, and because Tryphon is a perfectly valid secular name for that time / place. And, I credited Mitchell First with noticing the connection as well as the disproof.
Well, I got some of it wrong. While that story indeed has a Tarfon / treif connection, it doesn’t actually use the word treif there. And, that’s not the source Mitchell First had mentioned to be months prior.
In fact, it is the Mishnah in Makkot 1:10 and the associated gemara in Makkot 7a. The Mishna reads:
מִי שֶׁנִּגְמַר דִּינוֹ וּבָרַח וּבָא לִפְנֵי אוֹתוֹ בֵית דִּין, אֵין סוֹתְרִים אֶת דִּינוֹ. כָּל מָקוֹם שֶׁיַּעַמְדוּ שְׁנַיִם וְיֹאמְרוּ, מְעִידִין אָנוּ בְאִישׁ פְּלוֹנִי שֶׁנִּגְמַר דִּינוֹ בְּבֵית דִּינוֹ שֶׁל פְּלוֹנִי, וּפְלוֹנִי וּפְלוֹנִי עֵדָיו, הֲרֵי זֶה יֵהָרֵג. סַנְהֶדְרִין נוֹהֶגֶת בָּאָרֶץ וּבְחוּצָה לָאָרֶץ. סַנְהֶדְרִין הַהוֹרֶגֶת אֶחָד בְּשָׁבוּעַ נִקְרֵאת חָבְלָנִית. רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה אוֹמֵר, אֶחָד לְשִׁבְעִים שָׁנָה. רַבִּי טַרְפוֹן וְרַבִּי עֲקִיבָא אוֹמְרִים, אִלּוּ הָיִינוּ בַסַּנְהֶדְרִין לֹא נֶהֱרַג אָדָם מֵעוֹלָם. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, אַף הֵן מַרְבִּין שׁוֹפְכֵי דָמִים בְּיִשְׂרָאֵל:
This mishna continues to discuss the matter of testimony in the case of one who is liable to be executed. Concerning one whose verdict was delivered and he was sentenced to death and he fled, and he then came before the same court that sentenced him, they do not overturn his verdict and retry him. Rather, the court administers the previous verdict. Consequently, in any place where two witnesses will stand and say: We testify with regard to a man called so-and-so that his verdict was delivered and he was sentenced to death in the court of so-and-so, and so-and-so and so-and-so were his witnesses, that person shall be executed on the basis of that testimony. The mishna continues: The mitzva to establish a Sanhedrin with the authority to administer capital punishments is in effect both in Eretz Yisrael and outside Eretz Yisrael. A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.
The related Gemara is this:
רַבִּי טַרְפוֹן וְרַבִּי עֲקִיבָא אוֹמְרִים: אִילּוּ הָיִינוּ וְכוּ׳. הֵיכִי הֲווֹ עָבְדִי? רַבִּי יוֹחָנָן וְרַבִּי אֶלְעָזָר דְאָמְרִי תַּרְוַיְיהוּ: רְאִיתֶם טְרֵיפָה הָרַג, שָׁלֵם הָרַג?
The mishna teaches that Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted the trials in a manner where no person would have ever been executed. The Gemara asks: How would they have acted to spare the accused from execution if witnesses testified that he intentionally committed murder? Rabbi Yoḥanan and Rabbi Elazar both say that they would have asked the witnesses: Did you see whether the accused killed a tereifa, i.e., a person with a condition that would lead to his death within twelve months, or if he killed someone who was intact? The halakhic status of a tereifa is like that of one who is dead, in the sense that one who kills him is not executed. Since no witness can be certain with regard to the victim’s physical condition, they would invalidate any testimony to a murder.
אָמַר רַב אָשֵׁי: אִם תִּמְצָא לוֹמַר שָׁלֵם הֲוָה, דִּלְמָא בִּמְקוֹם סַיִיף נֶקֶב הֲוָה.
Rav Ashi said: Even if you say that they examined him postmortem and he was intact the testimony could be challenged, as perhaps in the place that the sword pierced the victim’s body there was a perforation in one of the organs that renders the person a tereifa, but which was rendered undetectable by the wound caused by the sword.
So, we can say that Rabbi Tarfon would have not convicted an accused murderer, even with clear evidence, because perhaps the person already was a treifa. Thus, the eponymous statement! And so, we have really two associations of Rabbi Tarfon with treif.
Of course, we should point out that, while this gemara has the strength that the word treifa, there’s a weakness is in the ascription to Rabbi Tarfon. Namely:
It is not Rabbi Tarfon alone in the Mishnah, but Rabbi Tarfon together with Rabbi Akiva, who would not convict. And the explanation is an explanation of what both of them would say.
Also, the gemara does not then present a brayta in which these words are placed in their mouths. Rather, we have Rabbi Yochanan and Rabbi Eleazar ben Pedat, second-generation Amoraim of the Land of Israel, who proffer what they would have said. It is formulated as if this is what Rabbis Akiva and Tarfon would have said, but it is really a rabbinic challenge — almost like how to be metaher a sheretz — what argument could you formulate that would effectively let off every single accused murderer? That’s the similar motivation for sixth-generation Babylonian Amora, Rav Ashi. What could such an argument be, not that they specifically did say this.
As such, even aside from other concerns, it seems unlikely to me that this would cause Rabbi Tarfon to be named Rabbi Tarfon.