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When Magicians Get in a Pickle Over Cucumbers

Originally published in the Masorti Journal (1993)

by Rabbi Dr Louis Jacobs

The Mishnah (Sanhedrin 7:11; Sanhedrin 67a) states "The sorcerer (hamekhasef)-one who performs an act is culpable but not one who deceives the eyes (oches haenayim) literally "one who takes hold of the eyes"). Rabbi Akiba says in the name of Rabbi Joshua: "If two men gathered cucumbers "by sorcery" one may not be culpable but the other culpable. The one who actually performed the act is culpable but the one who only deceived the eyes is not culpable." This Mishnah defines the culpability of the sorcerer for death by stoning (Exodus 22:17; Deuteronomy 18:10). A distinction is made between the sorcerer who performs the act of gathering cucumbers into one place by a magical act and one who merely deceives the onlookers that the magical act has been performed.

Mentioned together with the mekhashef in. Deuteronomy 18:10, is the meonen), and there is a discussion (Sanhedrin 65b) among the Tannaim on the definition of the meonen. The Sages hold that meonen is one who deceives the eyes a play on the word meonen, connecting this with the word for 'eye', ayin).

Commenting on the law of the mekhashef in the Mishnah, Abbaye (278-338) remarks (Sanhedrin 6713) that with regard to magical practices there are three separate categories: (1) The actual performance of the magical act, for which, as the Mishnah states, there is full culpability. (2) Deceiving the eyes, for which there is no full culpability but which is nonetheless forbidden, according to Abbaye. (3) White magic, performed by a perusal of the Sefer Yetzirah ("Book of Creation") i.e. to bring something into being by means of certain divine names. It is permitted to use these supernatural means even in the first instance. Thus, resort to white magic is permitted; to deceive the eyes is forbidden but there is no culpability, and to perform by sorcery a magical act is to be culpable.

The meaning of ochez et haenayim is none too clear. Does it mean that the wizard casts a spell on the onlookers so that their eyes mislead them? If this the meaning, why is the wizard not culpable for the act of casting the spell? What difference is there between this act and that of gathering the cucumbers? Possibly, the distinction is that the cucumbers are actually gathered together, whereas in the case of the spell there is no physical change in nature. It is unlikely that ochez et haenayim refers to some form of hypnotism, though such a meaning cannot be ruled out entirely. It is also possible that the term refers to some kind of sleight of hand, although it is difficult to see how this can cause the cucumbers to come together in one place, unless it means that the wizard succeeds in fooling the onlookers by substituting somehow for the cucumbers growing in the field other cucumbers he had previously gathered together in preparation for his "act".

It would seem that in the above sources, the term ochez et haenayim is used of two quite different phenomena. In the Mishnah and in Abbaye's elaboration, the term is used of an act of magic like gathering cucumbers, where the act has not really been performed but only appears to have been performed. Rashi to the passage (Sanhedrin 67a. s.v.ochez et haenayim ) explains it as: "He shows us as if all the cucumbers have been gathered together in one place but the cucumbers have not moved from their place." And this is in connection with the mekhasef. The statement of the Sages (Sanhedrin 65b), on the other hand, refers not to the mekhashef but to the meonen and here Rashi comments (Sanhedrin 65b, s.v. ochez et haenayim): "He takes hold of the onlookers' eyes to close them so that they imagine he has performed a marvel but he has done no such thing." But if there are two different types of deception, what is it that makes the deception practised by the meonen culpable for a flogging though not for the death penalty) and the deception by the mekhashef not culpable (not even for a flogging)? It may be that what is being said here is that there is only one type of deception and we have, in fact, a debate on the issue between the Sages in the one passage and the Mishnah.'

If, however, ochez et haenayim means the casting of a spell in the case of nzeonen and mere sleight of hand in the case of the mekhashef in the Mishnah, the whole passage can possibly be understood as follows. The mekhashef, for whom the penalty is death, is one who actually performs the magical act. If he did it by sleight of hand he is not culpable, though, according to Abbaye, he has committed an offence, albeit one for which there is no penalty. If he cast a spell to deceive the onlookers, he would still not be guilty as a mekhashef since he had not performed the type of act that would make him a mekhashef. But the casting of the spell does constitute the act required to make him a meonen whose penalty is a flogging. But the difficulty remains why, if there are two different types, the same term should be used for both.

Maimonides' statements on the whole question present difficulties of their own. On mekhashef Maimonides writes: (Avodah Zarah 11:15): `The mekhashef is to be stoned to death. This only applies where he performed a magical act. But one who deceives the eyes "ochez et haenayim", namely, one who makes it seem as if he has done something but, in reality, has not done anything, he is to be flogged by Rabbinic law (makkat mardut)' . And yet, in connection with the meonen Maimonides writes (Avodah Zarah 11:4): 'And so, too, one who deceives the eyes "ochez et haenayim" by causing onlookers to imagine that he has performed an amazing thing which he has not really performed, this is also included (among other things Maimonides mentions) under the heading of meonen, and he is flogged!

On meonen Maimonides states further in his Sefer ha-Mitzvot (ed, Warsaw, 1883 negative precepts, No.32): 'In the language of the Sages this is called a type of ochezey haenayim meaning a clever trick performed by rapid hand movements so that it appears to the onlookers that he has done things which have no reality, as we see such people do all the time. They take a rope, place it in a corner of their robe and produce a snake. Or they throw a ring into the air and then produce it from the mouth of a bystander. All such things, resembling the acts of the magicians well-known to the masses, are forbidden.

One who does this called a deceiver of the eyes and it is a type of magic, which is why he is to be flogged. In addition he is guilty of misleading people gonev daat haberiot and great is the loss he causes. For when fools, women and children depict to themselves as existing in reality when those things are really impossible, it is very harmful, causing them to believe that the impossible is possible, Understand this'.

In Maimonides the matter is further complicated by his rationalistic view (Avodah Zarah 11:16) that all claims to be able to perform acts contrary to nature are bogus. The Torah does not forbid the practice of magic because magic really works but because resort to magic is irrational and associated with idolatry. But if that is the case, how does Maimonides differentiate between the act, for which there is culpability, and the mere deception, for which there is no culpability, since the act itself is also only a deception? And there is the further difficulty of why Maimonides states with regard to the deception practised by the meonen that the magician is to be flogged by biblical law (as a meonen) and yet with regard to the deception practised by the mekhashef Maimonides states that there is only a flogging by rabbinic law.

R. Joseph Caro (Kesef Mishneh to Avodah Zarah 11:15) suggests, in order to resolve the contradiction between Maimonides' statements regarding the mekhashef and the meonen, either that Maimonides is referring to two different types of deception of the eyes or that Maimonides means that if the magician were warned not to perform the deception as a mekhashef he would not be flogged by biblical law (only by rabbinic law) since the mekhashef is only culpable, as a mekhashef, when he performs an act. But where the magician was warned not to deceive the eyes as a meonen he would, indeed, be liable to a flogging by biblical law (as a meonen).2

When we turn to the Shulchan Aruch (Yoreh De'Ah 179:15) we find the ruling that ochez et haenyim is forbidden but that it is permitted to perform 'white magic' by means of the Sefer Yetzirah.

It must be realised that all the above is stated in the context of magical practices. Even Maimonides, who holds that it is all sheer pretence and deception in any event, speaks of a pretence to perform supernatural acts, as is clear from his observation in the Sefer ha-Mitzvot about not giving the credulous an opportunity to treat the impossible as if it were possible. Conjurers, today, make no claim that they perform their tricks by supernatural means and their audience is fully aware that it is all no more than a skilled performance. The conjurer is only a "magician" in the show business sense. It is true that R. Abraham Danzig (1748-1820), in his Hochmat Adam (Josephaf, 1851, Klal 75:4) quotes Maimonides' remarks in the Sefer ha-Mitzvot and applies them to the badchanim who perform tricks at weddings and holds these to be guilty of a biblical offence, but it is improbable that this is the implication of Maimonides' statement.

Rabbi M.D. Halevi, Sephardi Chief Rabbi of Tel Aviv, in his radio programme on Jewish law, gave the ruling that conjuring tricks are permitted. A listener questioned this ruling because of Maimonides' statement on ochez et haenayim. But Rabbi Halevi defends his ruling in his Responsa collection, Aseh Lecha Ray (Vol. II, Tel-Aviv, 1978, No.44, pp. 160-66). Rabbi Halevi's analysis of the question differs from mine but he comes to the same conclusion that, contra Abraham Danzig, conjuring tricks do not involve any religious offence whatsoever, Halevi quotes Israel Lipschitz (1782-1860), who, in his Commentary to the Mishnah, Tiferet Yisrael (to Sanhedrin 7:11), understands ochez et haenayim as referring to a magician who uses demonic powers to produce this effect but no offence is committed by an illusionist; who uses ordinary human skills to produce his effects.

It might be noted that even Abraham Danzig who forbids conjuring tricks, sees no objection to a non-Jew doing them and to Jews watching the performance.

Finally reference should be made to the recently published Teshuvot ve-Hanhagot Jer., 1986, No.455, p. 159) by Rabbi Moshe Sternbuch, who reports, in the name of his father-in-law, that R. Isaiah Karelitz, the Chazon Ish, said that conjuring tricks have nothing to do with the prohibition of magical practices since everyone knows that the magician is simply using his natural skills. Sternbuch says that in practice he always requests the conjurer to tell his audience beforehand that no real magic is involved. It is doubtful whether such a prior declaration is really necessary.

1 This is the opinion of Isaiah de Trani, see Kunteros ha-Rayot ed. J. Halevi Lipschitz in Sanhedrey Gedolah, Vol. V, Jer. 1972, p.100

2 The Kesef Mishneh's source is a Responsum of R. Joshua ha-Naggid, a descendant of Maimonides, see Teshuvot R. Yehudah ha-Naggid in. Kovetz 'al yad, III, Jer., 1939, ed. A.H. Freimann, pp85-6

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