Rabbi Yitzchak the Tanna and his Son Rabbi Yishmael b. Rabbi Yitzchak
Also from the start of the the third perek of Makkot, there is a three way Tannaitic dispute. Right after the Mishnah, on Makkot 13a-b:
גְּמָ׳ חַיָּיבֵי כָרֵיתוֹת קָא תָנֵי, חַיָּיבֵי מִיתוֹת בֵּית דִּין לָא קָתָנֵי. מַתְנִיתִין מַנִּי – רַבִּי עֲקִיבָא הִיא, דְּתַנְיָא: אֶחָד חַיָּיבֵי כָרֵיתוֹת וְאֶחָד חַיָּיבֵי מִיתוֹת בֵּית דִּין
GEMARA: Apropos the list in the mishna of those liable to receive lashes, the Gemara notes: The tanna teaches those liable to receive excision from the World-to-Come [karet], as most of the cases enumerated at the beginning of the mishna include actions that not only entail violation of a prohibition but are also punishable by karet. But the tanna does not teach those liable to be executed with court-imposed death penalties among those liable to receive lashes. Apparently, lashes are not administered to those who violate a prohibition punishable by execution. The Gemara asks: Whose opinion is expressed in the mishna? It is the opinion of Rabbi Akiva, as it is taught in a baraita that there is a tannaitic dispute: Both those liable to receive karet and those liable to be executed with court-imposed death penalties
[יֶשְׁנָן] בִּכְלַל מַלְקוֹת אַרְבָּעִים, דִּבְרֵי רַבִּי יִשְׁמָעֵאל.
are included in the category of those liable to receive forty lashes for violating a Torah prohibition. This is the statement of Rabbi Yishmael.
רַבִּי עֲקִיבָא אוֹמֵר: חַיָּיבֵי כָרֵיתוֹת (יֶשְׁנוֹ) [יֶשְׁנָן] בִּכְלַל מַלְקוֹת אַרְבָּעִים, שֶׁאִם עָשׂוּ תְּשׁוּבָה בֵּית דִּין שֶׁל מַעְלָה מוֹחֲלִין לָהֶן. חַיָּיבֵי מִיתוֹת בֵּית דִּין אֵינוֹ בִּכְלַל מַלְקוֹת אַרְבָּעִים, שֶׁאִם עָשׂוּ תְּשׁוּבָה אֵין בֵּית דִּין שֶׁל מַטָּה מוֹחֲלִין לָהֶן.
Rabbi Akiva says: Those liable to receive karet are included in the category of those liable to receive forty lashes, because if they repented, the heavenly court absolves them of the punishment of karet. Therefore, karet does not absolve them of the punishment of lashes. Those liable to be executed with court-imposed death penalties are not included in the category of those liable to receive forty lashes, as even if they repented, the earthly court does not absolve them of execution; and one is not punished by the court twice for performing the same transgression.
רַבִּי יִצְחָק אוֹמֵר: חַיָּיבֵי כָרֵיתוֹת בַּכְּלָל הָיוּ, וְלָמָּה יָצָאת כָּרֵת בַּאֲחוֹתוֹ – לְדוּנוֹ בְּכָרֵת וְלֹא בְּמַלְקוֹת.
Rabbi Yitzḥak says that like those liable to be executed, those liable to receive karet are not flogged. Those liable to receive karet for incest were included in the generalization: “For anyone who performs any of these abominations, the souls who do so shall be excised [venikhretu] from among their people” (Leviticus 18:29). Included in that category is one who engages in intercourse with his sister. And why then did the halakha of karet with regard to intercourse with one’s sister emerge from the generalization and receive specific mention: “And a man who takes his sister…and they shall be excised before the eyes of the children of their people” (Leviticus 20:17)? It is in order to sentence one who engages in intercourse with his sister with karet, and not with lashes. This is the source for the opinion that those liable to receive karet are not flogged.
Rabbi Yishmael (ben Elisha) and Rabbi Akiva (ben Yosef) are famous fourth-generation Tannaim. They stake out these positions, and their disputant, still in the brayta, so it is a Tanna rather than an Amora, is Rabbi Yitzchak. He is actually of the next generation, so a fifth-generation Tanna.
This inter-generation dispute is not outside the realm of possibility. It is like Rabbi Yehuda or Rabbi Meir weighing in to argue with Rabbi Akiva, which can happen. Some unique features of Rabbi Yitzchak the Tanna:
Fifth generation Tanna, so contemporary with Rabbi Yehuda and Rabbi Meir
Babylonian, one of the gedolim along with Rabbi Natan in the town of Nehar Pekod. When Chanania nephew of Rabbi Yehoshua intercalated in Bavel, Rebbi send him a message about it through Rabbi Yitzchak and Rabbi Natan. See Yerushalmi Sanhedrin 1:2, and the interchange included the sarcastic reading of כִּי מִבָּבֶל תֵּצֵא תוֹרָה וּדְבַר־ה מִנְּהַר פְּקוֹד.
Doesn’t appear in Mishnayot, only braytot.
Anyway, the gemara in Makkot continues with its analysis. The anonymous gemara analyzes the brayta at length. Then, third-generation Rabbi Abahu [from Israel] also weighs in, and third-generation Rabbi Abba bar Mamal [from Israel] objects. Finally, at the very end of the sugya, on 13b, a somewhat cryptic statement (but don’t read the English yet):
קַבְּלַהּ מִינֵּיהּ רַבִּי שְׁמוּאֵל בַּר רַב יִצְחָק: ״כְּדֵי רִשְׁעָתוֹ״ – מִשּׁוּם רִשְׁעָה אַחַת אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם שְׁתֵּי רִשְׁעָיוֹת – בְּרִשְׁעָה הַמְּסוּרָה לְבֵית דִּין הַכָּתוּב מְדַבֵּר.
The Gemara answers: Rabbi Shmuel bar Rav Yitzḥak received a tradition from Rabbi Abbahu that the reason those liable to receive karet are flogged and it is not considered two punishments for one transgression is that when the verse states: “According to the measure of his wickedness” (Deuteronomy 25:2), from which it is derived: For one evildoing you can render him liable, but you cannot render him liable for two evildoings, the verse is speaking with regard to an evildoing that is given to the jurisdiction of the court, not to an act of wickedness punishable at the hand of Heaven.
Without looking at the English translation from Rav Steinsaltz, where is Rabbi Shmuel bar Rav Yitzchak coming from? When it said קַבְּלַהּ מִינֵּיהּ, does the kabal mean receive, as in receiving a tradition, or does it mean accept, as in accepting a disproof? When it said מִינֵּיהּ, who is the person he received / accepted from? Now, look at the English to see some answers. This might make sense only after reading the sugya carefully in full.
Rashi gives two resolutions to this cryptic paragraph:
קיבלה מיניה רבי שמואל - לתשובה זו מרבי אבא בר ממל ושני עלה ברשעה המסורה לב"ד הכתוב מדבר ב"ד הוזהרו שהם לא יחייבוהו שתי רשעיות כגון ממון ומלקות או מיתה ומלקות או מיתה וממון אבל כרת לא ע"י ב"ד הוא
ויש לפרש קיבלה מיניה רבי שמואל מרבי אבהו תירוץ זה על אתקפתא דר' אבא בר ממל:
That is,
In the first explanation, the ambiguous antecedent of מיניה is Rabbi Abba bar Mamal, and Rabbi Shmuel … accepted / received the following answer from him.
In the second explanation, the ambiguous antecedent is Rabbi Abbahu, who gives an answer.
Who is Rabbi [?} Shmuel bar Rav Yitzchak? He’s a third-generation Amora from Bavel who eventually went to Israel to study. So this can work out. But is he accepting answers from contemporaries? The whole thing still seems strange.
There is another possibility which I think is absolutely true, and an alternative to Rashi’s two explanations. We have few manuscripts of Makkot on Hachi Garsinan, but one of the two is Yad HaRav Herzog, a 16th century manuscript that has text claiming it was copied from a really old manuscript, the oldest seen referenced. And in this text, it is not Rabbi Shmuel bar Rav Yitzchak. Instead, we have:
So, there are two things to observe.
First, there is a gap and a quote mark at the end of קיבלה מיניה. That means that this is the end of the sugya and the exchange. So, the third and correct explanation is:
Rabbi Abahu accepted this refutation from Rabbi Abba bar Mamal!
Furthermore, a new statement begins after the gap, and it is Rabbi Yishmael beRabbi Yitzchak omer. The extra word omer means it is the introduction of a new statement. And it is “Yishmael” not “Shmuel”.
Who is this? He’s a Tanna, appearing in a brayta in Kiddushin 54a.
תָּא שְׁמַע: דְּתַנְיָא, אָמַר רַבִּי יִשְׁמָעֵאל בַּר רַבִּי יִצְחָק: אַבְנֵי יְרוּשָׁלַיִם שֶׁנָּשְׁרוּ מוֹעֲלִים בָּהֶם, דִּבְרֵי רַבִּי מֵאִיר. לָא תֵּימָא רַבִּי מֵאִיר, אֶלָּא אֵימָא רַבִּי יְהוּדָה.
Come and hear another proof: As it is taught in a baraita: Rabbi Yishmael bar Rabbi Yitzḥak said: With regard to stones of the walls and towers of Jerusalem that fell, one is liable for misuse of property consecrated to the Temple by using them; this is the statement of Rabbi Meir. This indicates that according to Rabbi Meir, the use of even such stones renders one liable, despite the fact that it is not possible for people to avoid benefiting from them. The Gemara again answers: Do not say that this baraita is recording the statement of Rabbi Meir. Rather, emend the baraita and say that it is in accordance with the opinion of Rabbi Yehuda.
That would make him a sixth-generation Tanna, contemporary with Rabbi Yehuda HaNasi. In Toledot Tannaim vaAmoraim, Rabbi Aharon Hyman speculates that he may be the son of this Tanna Rabbi Yitzchak. Rav Hyman didn’t have our Yad HaRav Herzog manuscript in Makkot to reference our gemara. But here, it makes a lot of sense for Rav Yitzchak’s son, a Tanna, to be involved in this conversation, instead of the printed alternative who comes out of left field.