Tamar's judgement as Torah Law, Noachide Law, Contemporary Law

Summary: Which one is it, and when? Ibn Caspi says that the death penalty was Noachide law while freeing her from the same was contemporary law.

Post: A noteworthy Ibn Caspi on Vayeshev:

 הוציאוה  ותשרף.  כן הוא הדין לבני  נח, לכן אמר להם
 מה לי [ די ]  כי זינתה, עשו לה דנה ,אבל מה שטען  הוא לפניהם
  נמלטה לפי דיניהם בזמן ההוא ובארץ ההיא ;

"Take her out and burn her: so is the law for Bnei Noach. Therefore he said do them 'what is it to me [sufficient?], for she has fornicated. Carry out her judgement upon her. But that which he argued before them that she should be spared was in accordance with their laws in that time and in that land."


In saying that the death penalty for Tamar was from the sheva mitzvos bnei Noach, he is differing slightly from the popular midrash, mentioned in Midrash Rabba and brought down by Rashi {38:24}:

24. Now it came about after nearly three months, that it was told to Judah, saying, "Your daughter in law Tamar has played the harlot, and behold, she is pregnant from harlotry." So Judah said, "Bring her out, and let her be burned."

כד. וַיְהִי כְּמִשְׁלֹשׁ חֳדָשִׁים וַיֻּגַּד לִיהוּדָה לֵאמֹר זָנְתָה תָּמָר כַּלָּתֶךָ וְגַם הִנֵּה הָרָה לִזְנוּנִים וַיֹּאמֶר יְהוּדָה הוֹצִיאוּהָ וְתִשָּׂרֵף:

and let her be burned: Ephraim Miksha’ah said in the name of Rabbi Meir: She was the daughter of Shem, who was a priest. Therefore, they sentenced her to be burned. [From Gen. Rabbah 85:10]

ותשרף: אמר אפרים מקשאה משום רבי מאיר בתו של שם היתה, שהוא כהן, לפיכך דנוה בשרפה:

And that Midrash is here:

הוציאוה ותשרף אפרים מקשאה תלמידו של רבי מאיר אמר משום רבי מאיר:תמר בתו של שם היתה, דכתיב: (ויקרא כא) ובת איש כהן, לפיכך הוציאוה ותשרף. 

Thus, according to that midrash, Yehuda is imposing Torah law on her. A bas kohen shezinsa gets this death penalty.

Ibn Caspi is offering here a different explanation, that it is not Torah law being imposed here, but rather classic sheva Mitzvos benei Noach law. In modern times, we might imagine that the particulars of sheva mitzvos bnei Noach were drashot interpreted by Chazal applying to non-Jews, such that an assumption that the avos knew these particular seven commandments in their many details was an anachronistic, midrashic, retrojection. But Ibn Caspi does seem to hold that this is a straightforward application of the 7 Noachide laws.

How about how she was saved. Why is this not part of the sheva mitzvos bnei Noach? If she was zakuk leyavam, then her sleeping with Yehuda was not necessarily znus. And so, if he admitted that the child was his, why appeal to contemporary extra-Noachide laws?

I think there are two possibilities. First, perhaps despite his being a family member, it was not close enough to avoid the death penalty for her. Second, perhaps he did not admit to fathering this child. As discussed in the past, Ibn Caspi refers to the trup on tzadka mimeni to differ from Rashi and Onkelos. When Tamar shows him the signs, such as the signet ring, he proclaims:

26. Then Judah recognized [them], and he said, "She is right, [it is] from me, because I did not give her to my son Shelah." But he no longer continued to be intimate with her.

כו. וַיַּכֵּר יְהוּדָה וַיֹּאמֶר צָדְקָה מִמֶּנִּי כִּי עַל כֵּן לֹא נְתַתִּיהָ לְשֵׁלָה בְנִי וְלֹא יָסַף עוֹד לְדַעְתָּהּ:

and Rashi explains:

She is right: in what she said.		צדקה: בדבריה:
from me: she is pregnant (Targum Onkelos). Our Sages, however, explained this midrashically to mean that a “bath-kol” came forth and declared,“From Me and from within Me these matters have emerged. Since she was modest in her father-in-law’s house, I decreed that kings should be descended from her, and from the tribe of Judah I [already] decreed to raise up kings in Israel.” [from Sotah 10b]		ממני: היא מעוברת. ורבותינו ז"ל דרשו שיצאה בת קול ואמרה ממני ומאתי יצאו הדברים, לפי שהיתה צנועה בבית חמיה גזרתי שיצאו ממנה מלכים, ומשבט יהודה גזרתי להעמיד מלכים בישראל:

But based on the trup on צָדְקָה מִמֶּנִּי, namely munach zakef-katon, Ibn Caspi treats it as a single statement. Thus, "she is more right than me". If so, there is no explicit admission that the child is Yehuda's.

If so, the appeal to contemporary laws, separate from the Noachide laws, might be the following argument: Tamar was only bound to Shela so long as Shela was an option. Since Yehuda had held back Shela, she was no longer זקוקה ליבם. And if so, her znus with the unnamed boel was not infidelity.

Or, even if he implicitly acknowledged fathering this son, this could be saying that she was right in pursuing / tricking him in this way because of his withholding Shela. Regardless, the details of withholding Shela being a justification for cancelling the death penalty is not in the Sheva Mitzvos Bnei Noach, and must have simply been the law of the land at that time.