Over the last year, Daf Yomi readers have been exploring Seder Kodashim, the division of the Talmud that deals with “holy things”—that is, things pertaining to the Temple service. So far this has largely meant items that are sacrificed on the altar, such as meal offerings and cattle, as well as things and people who must be redeemed from the priests by means of a payment, such as first-born sons.
Last week, we began Tractate Arakhin, which deals with a new facet of Temple law: the rules governing what the Talmud calls “valuations” and “assessments.” These are types of promises to God, which makes this tractate akin to Tractate Nedarim, which dealt with the laws governing vows and oaths. Vows, we learned there, are generally negative in form—a person would vow to abstain from something, such as when a Nazarite vows not to cut his hair or drink wine.
A valuation or assessment, by contrast, is a promise to donate a certain amount of money to the Temple, based on the value of the person who is the subject of the promise. For instance, a man facing mortal danger, or one who survives a dangerous illness, might make a valuation of himself, promising to donate to the Temple a sum equal to his own value. This seems like an odd kind of promise, to modern ears, because it means assigning a monetary value to a human being—something most people today would find objectionable. Yet the truth is that we too find ways to determine the price of a life—when performing a cost-benefit analysis on an environmental regulation, say, or when calculating life insurance premiums. In such cases, the dollar value of a life might depend on the earning power of the person in question, or how much longer he would normally be expected to live.
The Talmud offers two methods of finding the monetary value of a person, which correspond to the terms “valuation” and “assessment.” An assessment means a promise to pay the market value of the person, animal or object in question—in the case of a person, this would be the price he would command if sold as a slave. (Slavery was of course legal under Talmudic law, as it was in all ancient societies.) A valuation, on the other hand, requires paying according to a standard scale that is laid down in Leviticus 27, and which assigns monetary value to different categories of people based on age and sex.
This scale of valuations reflects the logic of patriarchy: At every age, women are worth less than men. The highest value is assigned to a man in the prime of adulthood, aged 20 to 60, whose life is valued at 50 shekels; a woman in the same age range is worth 30 shekels. Older people are worth less, presumably because they have less time to live and less earning power: Over the age of 60, a man is worth 15 shekels and a woman 10. For younger people, a male aged 5 to 20 is worth 20 shekels, and a female 10 shekels; while a boy aged 1 month to 5 years is worth five shekels, and a girl three shekels. Anyone who makes a vow of valuation on himself or another person must pay according to this scale.
The first chapter of Tracrate Arakhin delves into some of the basic questions raised by the concept of valuation. In general, the first mishna says in Arakhin 2a, “everyone takes vows of valuation and is valuated”: That is, men and women, free people and slaves, priests and Israelites can all take such vows and be their object. There are only two categories of exceptions. A deaf-mute, an imbecile, and a minor cannot take these vows—they are considered halakhically incompetent in general, since they are presumed not to know the meaning and consequences of their actions. However, they can be the object of vows of valuation: As we have seen you can promise to pay the value of a child who is over 1 month old. (For an infant who is younger than that, no vow of valuation can be taken; possibly this reflects a recognition that a newborn’s life was far from secure, in an age of high infant mortality.)
Conversely, there is another category of person who can take vows of valuation but not be their object: These are what the Talmud calls tumtums, people with concealed sexual organs, and hermaphrodites, who have both male and female genitalia. Such people can’t be the object of valuations, not because they are valueless, but because they pose a technical problem for a system that depends so heavily on gender distinctions. As the mishna says, “only a definite male or a definite female are valuated.”
The Gemara goes on to probe the meaning of the mishna’s statement that “everyone” is valuated. The rabbis suggest that this is a way of distinguishing between assessments, which depend on market value, and valuations, which don’t. After all, “a repulsive man and one afflicted with boils” have no market value, since no one would want to buy them—which means that one cannot take a vow of assessment on them. But they can be the subject of vows of valuation, which depend only on the age and sex of the person. On the other hand, the Gemara explains, a hermaphrodite or a tumtum cannot be valuated, because of their indeterminate gender, but they can be assessed, since they could be sold as slaves.
The term used in the Torah to describe valuation of a “person” is nefesh, which also means “soul” or “life-breath.” It follows that only a living person can be the object of a valuation; if you promise to pay the Temple the value of a dead person, it is meaningless and you have incurred no obligation. But what about people who are moribund, on the verge of death? They too are excluded, but for a different reason: The Torah says that a person who is valuated “shall be set before the priest,” so a person who is too frail to stand up in front of a priest is exempt. The same holds true, we learn later in Arakhin 6b, of a person who is condemned to be executed. In this case he may be physically able to stand before the priest, but because he is considered cherem—forbidden or excommunicated—he cannot be the object of a vow.
This issue opens the door to a digression that has nothing directly to do with valuations, but is fascinating in the context of Talmudic attitudes toward abortion. In the previous tractate, Bekhorot, we saw that a miscarried pregnancy can “open the womb” of the mother if it is sufficiently advanced, while a miscarriage before 40 days have elapsed is considered “like water” and does not open the womb. Now, in Arakhin 7a, the rabbis ask about the case of a pregnant woman who is condemned to be executed. In practice, this was probably a nonissue, since as we earlier learned in Tractate Sanhedrin, Jewish courts basically never imposed the death penalty. But the Talmud is just as interested in theory as practice, and so the question has to be answered: Should a pregnant woman be spared until she can give birth?
The mishna says that, in general, she is not spared: A pregnant woman is executed even though it will mean the death of the fetus. This suggests that Jewish law does not regard the fetus as an independent living being. However, if the woman has already begun labor—if, in the Talmud’s words, she “sat on the travailing chair,” the seat designed for women in labor—then the execution should be postponed until the child is delivered. At this stage, apparently, it is considered a separate life: “Once the fetus uproots, it is an independent body.”
The death of a pregnant woman raises another kind of legal complication. If a woman dies in childbirth, and her unborn child dies too, do we assume that the fetus died before the mother or afterward? With the medical technology of the period, it was of course impossible to know for certain whose heartbeat stopped first; but the answer turns out to have important implications for inheritance law.
If we assume the mother dies first and the fetus survives for a time afterward, then the fetus becomes the heir of its mother’s property. When it dies, then, the property goes to its heirs, which are its paternal relatives. In other words, property is transferred via the fetus’ ownership from the mother’s family to the father’s. If, on the other hand, we assume that the fetus dies before the mother, then it never inherits the mother’s property, and when she dies the property returns to her father’s family.
To settle such disputes, an assumption about who died first had to be made, and the rabbis rule that we assume that the fetus died first: “Since the fetus’ vitality is minimal, the Angel of Death’s drop of poison enters his body and cuts the two organs that must be severed in ritual slaughter,” that is, the windpipe and the esophagus. If, however, the baby is born, then it inherits from its mother, even if it only lives for a day. In this sense, then, Jewish law distinguishes clearly between even a third-trimester pregnancy and a live birth: Only once the fetus is “uprooted” and outside the mother’s body does it become a legal person.
Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.