At the end of our daf, a Beraisa is brought quoting Rabbi Muna in the name of Rabbi Yehuda.
Amongst other things, Rabbi Yehuda is quoted as saying someone who touches his eye, nostrils, ears, mouth, sexual organ, an open vein (from bloodletting) or anal opening should have his hand chopped off.
The first question to ask is why Rabbi Yehuda takes this so seriously??!
It is immediately apparent that these are all examples of places where infection can easily enter the body, and it seems logical that this has something to do with the seriousness with which Chazal took hygiene.
Whereas Rashi explains that this is because the רוח רעה (the evil spirit) that is on the hands before washing in the morning , whatever that means, could damage these places, there is no need, at least in the context of this sugya, to assume that this is something supernatural- it could simply be invisible physical micro-organisms (a broader treatment of the usage of this term and that of מזיקין ושדים [harmful forces and demons] might reveals issues with such an interpretation, but that’s for another discussion.)
What is clear from Rashi is that this harsh statement is limited to before one has washed one’s hands.
It is not clear whether this ruling is meant to be taken literally- usually such statements are not, the rule of עין תחת עין (an eye for an eye) being the אב לכולם ( father of all such non literal punishments), and the frequency of such actions would also make it somewhat impractical, but we HAVE seen cases of such penalties literally being carried out!
The Gemara (Sanhedrin 58b) discusses a person who likes to hit people habitually.
Various opinions are given as to how to handle such a person, and Rav Huna opines that his hand should be chopped off, basing himself on the passuk (verse) וזרוע רימה תשבר (and a violent hand will be broken- Iyov 38/15.)
The Gemara proceeds to tell us that Rav Huna carried this out in practice with someone, and most of the Rishonim (early commentators) understand that he did this literally (note the Meiri who suggests that it might have been a monetary payment equivalent to the value of his hand!)
There is a debate between Rashi and Tosfos in that sugya as to what halachik basis Rav Huna had for such an action.
Rashi explains that this was an application of the courts right to impose a meta halachik punishment not actually mandated by the Torah, in order to stop a current danger to society (Sanhedrin 46a)- the passuk brought would thus be only an אסמכתא (in short, a relatively weak basis in the pesukim for what remains a non-biblical law- though this definition is subject to a discussion in its own right.)
This fits in with the rule we have discussed before (Bava Kama 2b) that we do not derive Torah laws from the rest of the Tanach.
Tosfos and Tosfos haRosh both suggest, based on another sugya (Niddah 13b) that Rav Huna held that this was actually the Torah law.
Although they admit that this is problematic in view of the principle cited above, an examination of at least part of the cited sugya in Niddah is now in place.
The Mishna (Niddah 13a) makes the cryptic statement that the more a woman checks herself with her hand to see that she is not a Niddah(menstruant), the more praiseworthy she is. In contrast, a man who does this to see that he is not impure, should have his hand cut off.
The Gemara asks why this is so serious, and answers that it is because it could cause someone to spill his seed in vain, which Chazal viewed as a serious prohibition.
The Gemara (Niddah 13b) asks whether this statement is meant to convey an actual law (דינא תנן) or a curse (לטותא תנן)
The Gemara then brings Rav Huna’s ruling regarding our bully as an example where such language is actually a law, not just a curse.
Although they admit the difficulty poised by the rule of דברי תורה מדברי קבלה לא ילפינן, Tosfos and Tosfos haRosh both argue that this wording implies that according to Rav Huna, this is an actual law, at least in the case of the bully, not an example of an extra judicial punishment by the court.
Now that we have mentioned this sugya, we can return to our sugya and ask why the prohibition of touching one’s sexual organ is grouped together with all the other body parts which should not be touched for health reasons- surely the reason mentioned in Niddah puts it in its own category?
One could argue that health is treated more stringently than prohibition (חמירא סכנתא מאיסורא ) , and that in our sugya which is dealing with touching body cavities WITHOUT washing hands first, this reason was given priority.
However, it needs to be noted that some rather extreme measures were suggested by various Tannaim to avoid the prohibition of wasting seed .
These include seemingly crazy suggestions such as leaving a thorn in one’s flesh, or urinating without holding one’s sexual ,(please discuss this with a serious and down to earth Talmid Chacham before putting into practice- they are usually not be taken at face value) it is hard to say that simple hygiene which so many people are lax about would be more important to Rabbi Yehuda than this consideration.
Perhaps this concern is what pushes Rashi to say that in his opinion, the prohibition of touching one’s sexual organ on our daf is not because of רוח רעה, but because of the concern for spilling semen in vain.
Other Rishonim who hold like Rashi’s initial suggestion might not rule like these extreme opinions- there is indeed some debate amongst Chazal around them, but that requires further analysis.
There is much to discuss on all these topics, and we shall have further opportunity to do this, Hashem willing, but I believe that in the context of the above discussion, a number of things can be argued:
- Whether the concern of Rabbi Yehuda was because of some sort of supernatural dangerous force or simple hygiene, it is clear that washing one’s hands before touching parts of the body that are conduits for infection is to be taken extremely seriously.
- Although extremely harsh and barbaric punishments such as cutting off people’s hands are certainly not meant to be the norm, Chazal were certainly open to any methods necessary to save society from chaos and anarchy.
- There is much to discuss regarding the nature, scope, and reasons for the prohibition of intentionally spilling seed in vain.
For example, is the desire on the part of a married couple for non vaginal sex, a single male’s overpowering desire to masturbate occasionally for sexual release, fertility testing and treatment, or sex with a condom when needed , really considered spilling seed “in vain?”
Some Rishonim |(See Tosfos, Yevamos 34b and Rambam, introduction to 7’th chapter of Mishnayos Sanhedrin for example) certainly appear to limit the scope of the severe prohibition somewhat (for a future analysis, Hashem willing.)
However, it seems clear from this sugya (at least according to Rashi) and the sugya in Niddah, as well as other sources which we should get to discuss soon, Hashem willing, that even basic needs such as urinating , thorn removal, and checking oneself might be affected by concern for this prohibition ( at least according to certain Tannaim), a point raised by Rav Moshe Feinstein zt’l in a Teshuva )Even haEzer 1/63.)
This does seem to prove that the definition of “in vain” and its severity is somewhat broader than what some interpret the above Rishonim to mean.
One could attempt to counter Rav Moshe’s proof, and I have a possible idea of how to do so, but who wants to take on Rav Moshe….
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.