MAKKOT

MAKKOT (Heb. מַכּוֹת; "Flagellation"), fifth tractate in the order Nezikin, in the Mishnah, Tosefta, and Babylonian and Jerusalem Talmuds. The tractate deals with three separate topics and is a continuation of the preceding tractate Sanhedrin, as it also deals with judicial punishments administered by the courts. The first chapter discusses the laws of plotting witnesses ("zomemim"; Deut. 19:16–20), the kind of testimony that constitutes such plotting, when such witnesses are punishable by the sentence they intended the court to impose upon the accused, and when their punishment is merely flogging. Chapter 2 contains an exhaustive treatment of circumstances under which the inadvertent murderer is banished to a city of refuge (Num. 35:6f.; Deut. 19:2f.), those liable and those exempt from banishment, the character of the cities of refuge and the protection they afford, and the connection between the death of the high priest and the return of the manslayer to his hometown (Num. 35:25). Chapter 3 gives a list of offenses for which the penalty is flogging; discusses whether flogging is incidental to offenses punishable by death, and describes in detail the imposition of the penalty. The tractate ends with an aggadic passage on the value to Israel of the commandments and a summation of the principles which inspire them. An interesting mishnah (1:10) deals with capital punishment: "R. Eliezer b. Azariah says: A Sanhedrin that effects a capital punishment once in 70 years is branded a destructive tribunal. R. Tarfon and R. Akiva say: Were we members of the Sanhedrin, no person would ever be put to death. [Thereupon] Rabban Simeon b. Gamaliel remarked: If so, they [these rabbis] would multiply shedders of blood in Israel."

The Tosefta consists of five chapters (ch. 2 is found only in the Erfurt manuscript published by Zuckermandel). Chapter 1 of the Tosefta parallels chapter 1 of the Mishnah; chapter 2, Mishnah 2:1–4; chapter 3, the remainder of chapter 2; while chapters 4 and 5 correspond to chapter 3. De Vries maintains that the Mishnah and Tosefta in this case both derive from an earlier compilation which the Tosefta follows closely, but from which the Mishnah deviated considerably. In his opinion the Mishnah was originally divided into five chapters – as is the Tosefta – and that it was later abridged into three chapters. The Babylonian Talmud has Gemara on all three chapters, but the Jerusalem Talmud only on the first two. In addition, the Babylonian Talmud on Makkot is much richer in aggadic material. It concludes with the moving story of a group of rabbis who were shocked to see a jackal emerging from the recess of the Holy of Holies. All with the exception of Akiva, burst into tears, while he laughed. He explained his joy with the observation that with this calamity the worst prophecy about the Jews had been fulfilled, and one could now anticipate that the comforting prophecy of Zechariah, "There shall yet old men and old women sit in the broad places of Jerusalem" (Zech. 8:4), would likewise be fulfilled.

Although the printed editions of the Jerusalem Talmud have no Gemara to the third chapter, Lieberman has shown that such a Gemara existed, but since the topics with which it dealt were discussed in the Gemara to Mishnayot in other places, the copyists omitted these duplicated discussions from the third chapter of the tractate. In fact, the early authorities quote references from the Jerusalem Talmud to Makkot which do not occur elsewhere in the existing text. A fragment from the Jerusalem Talmud belonging to chapter 2 of Makkot and found in the Cairo Genizah has been published by S. Wieder. Published translations of the Mishnah include one in Latin, with extracts from the Gemara, by J. Coccejus (Amsterdam, 1629), one in German by H.L. Strack (1910), and one in English by Danby (1933). The Babylonian Talmud was also translated into English by H.M. Lazarus in the Soncino edition (1935). Although the imposition of the penalties discussed in Makkot was not practiced directly in the Diaspora, yet because of its importance for the theoretical discussion of criminal law it is much discussed and frequently referred to in rabbinic literature.

bibliography:

Ḥ. Albeck, Shishah Sidrei Mishnah, Seder Nezikin (1959), 211–8, 461–7; Epstein, Tanna'im, 417; B. De Vries, in: Tarbiz, 26 (1956/57), 255–61 (= Meḥkarim be-Sifrut ha-Talmud (1968), 102ff.); S. Klein, in: Koveẓ ha-Ḥevrah ha-Ivrit la-Ḥakirat Ereẓ Yisraelve-Attikoteha, 3 (1935), 81–107; S. Lieberman, Hilkhot ha-Yerushalmi le-Rabbenu Moshe b. Maimon (1947), 67f.; S. Wieder, in: Tarbiz, 17 (1947), 129–37.

[David Joseph Bornstein]