Topics in Tractate Makkot, Chapter 3 – Lesson 11 – Rabbi Michael Abraham

[Speaker A] All right, let’s begin.

[Rabbi Michael Abraham] We spoke last time—this is the last session of this semester.

[Speaker A] With wine and cakes?

[Rabbi Michael Abraham] Oh, well, I’m asking too. I’m not joking, I’m really asking. Okay, anyway—fish, fish, big ones. Not big ones; after we eat the cakes, we’ll be the big ones. What’s the Rabbi teaching next year?

[Speaker A] Half sabbatical. Daniel, half sabbatical, yes, you said…

[Rabbi Michael Abraham] I don’t remember, I don’t know. One of them is philosophy, that’ll probably continue—“A Philosophical Perspective” on Sundays—and there’ll probably be one more class on Talmud, I think. I don’t know, I don’t remember anymore what.

[Speaker C] Half sabbatical. He comes a day and a half. For us, that’s half.

[Rabbi Michael Abraham] Half in name. Sabbatical is half in name, exactly, Natan. Half on you is here.

[Speaker C] Okay, anyway—seriously, cakes?

[Rabbi Michael Abraham] No, that’s enough for me. I want to continue this issue of “we do not derive punishments by inference.” Let me just summarize where we are. We saw that there are two conceptions, or two understandings, of why we do not derive punishments by inference. One understanding is that maybe there is a refutation of the a fortiori argument, and the second understanding is that the punishment given for the lighter transgression may not be enough to atone for the more severe one, and therefore you can’t derive the punishment from the lighter to the more severe case. We saw the Kesef Mishneh, Maharsha, and I also made a methodological comment about the fact that from Rabbi Yosef Engel onward, everyone copies that there are three views: these two views and derivation from a verse—about “his sister, the daughter of his father and the daughter of his mother.” If we already know about the daughter of his father, then there’s no need to say the daughter of his father and his mother, because the daughter of his father and mother is obviously a daughter of his father. And therefore, this teaches you that we do not derive punishments by inference. And I said: these are not three views. It’s two views: one source and two explanations of the source. In other words, there is a source from “his sister,” and there are two explanations of why from that source we learn the rule that we do not derive punishments by inference. What is the logic of this rule in the first place? And I’ve mentioned more than once that there’s a certain reluctance in the yeshiva world toward explaining a law that is learned from a verse. If there are explanations, then supposedly the verse is unnecessary—“why do I need a verse? Reasoning alone should suffice.” But that’s obviously wrong. “We do not expound the reason of the verse,” and things of that sort—but all that is irrelevant here. Because if we learn, say, from the phrase “his sister, the daughter of his father and the daughter of his mother,” and we ask: why did Scripture need to write that? After all, the daughter of his father and mother is, specifically, also the daughter of his father. So I could have known that even if it weren’t written. Rather, it teaches you that we do not derive punishments by inference. Why not say that it teaches you that if it is his sister who is the daughter of both his father and his mother, I don’t know, he should be killed twice? I don’t know—make up whatever you want. Once we derive something from a nuance or from an interpretation—and that’s usually what interpretation does—then obviously there is a rationale behind that something. Otherwise, why did we choose to derive this rather than something else? I mentioned את ה’ אלוקיך תירא—“You shall fear the Lord your God”—to include Torah scholars. Why not include chairs? “You shall fear the Lord your God”—to include chairs.

[Speaker D] That’s not in the context. Not in the context?

[Rabbi Michael Abraham] And Torah scholars are in the context? Why are they in the context?

[Speaker D] A little closer.

[Rabbi Michael Abraham] Chairs are in the study hall too, so they’re close as well. You’re bringing in reasoning. What you’re really saying is that fear is more reasonably applied to Torah scholars than to chairs. Right? You’re bringing in reasoning. What does that mean? That when we say “we do not expound the reason of the verse,” we’re talking about a law explicitly written in Scripture. A law explicitly written in Scripture—we do not expound the reason of the verse. That does not mean there is no reason; it means we do not derive law from the reason. Okay? But when we’re dealing with a law that we derive through interpretation, or a nuance, or whatever it may be, there is always a reason behind it. Not only is it permitted to seek the reason—you have to seek it, because the interpreter himself relied on a reason. Otherwise how would he know what to include, for what purpose to compare, what to exclude? That decision is always a decision based on reasoning. It’s built in. The reasoning is built in there. So it makes no sense to talk about “we do not expound the reason of the verse” when we’re talking about laws that come out of interpretations. Now here, when you tell me “the daughter of his father and the daughter of his mother” is redundant, then what is it coming to teach? It could have taught a lot of things. No—it teaches that we do not derive punishments by inference. Okay? Why? Because I understand logically that we do not derive punishments by inference. There has to be a rationale behind my choosing to derive specifically this point. Therefore, even though I have a source, that does not close the door to reasoning. The reasoning will explain why the interpreter chose specifically to derive from here that we do not derive punishments by inference. So his reasoning was either A or B. That’s the proposal. Therefore these are not three views but one source and two ways to explain or understand it. That’s regarding deriving punishments by inference, and in the course of that I spoke about an a fortiori argument where “included in two hundred is one hundred,” and the question whether it can be refuted or not, and so on. That was last time.

Now I want to add two more directions in explaining this rule that we do not derive punishments by inference. Each of them requires discussion in its own right, and we’ll see that this rule may be broader than people usually think. So I’ll start with the first direction I want to propose. It’s basically this: we generally assume that if a punishment is given for a lighter transgression, then surely at least that same punishment should be given for a more severe transgression. Okay? And that assumes, basically, that the severity of the punishment reflects the severity of the transgression. Right? That’s the assumption behind the whole idea. Why do you want to derive punishment by inference? Because you say: if for the lighter transgression he gets lashes, then for the more severe transgression surely he should get lashes—at least lashes, if not more. Right? Because the more severe transgression requires a more severe punishment. Why not more? At least lashes. There’s the rule that what comes from an inference…

[Speaker E] …should be like the source case.

[Rabbi Michael Abraham] Right. But the assumption in the background here—the assumption in the background—is that the severity of the punishment is supposed to be proportional to the severity of the transgression. Right? And therefore, obviously if there is a more severe transgression, the punishment should be more severe, or at least not less severe. What? Why not more?

[Speaker F] At least lashes. What? How do you know the severity of the transgression from the severity of the punishment, and not the other way around?

[Rabbi Michael Abraham] Okay, so that’s another question—how do I know the severity of the transgression? But maybe sometimes you can understand from reason itself that a certain transgression—say, murder—sounds like a severe transgression. So maybe there’s also room to reach that conclusion by reasoning. But on the conceptual level, there is some assumption here that one can know the severity of a transgression independently of the severity of its punishment, and that the severity of the punishment is supposed to be proportional to the severity of the transgression. Now I want to examine that assumption. Because if we reach the conclusion that this assumption is false, then you understand that we don’t need to look for explanations of why we do not derive punishments by inference. We do not derive punishments by inference because how can you know that the punishment for the lighter case will work for the more severe transgression? The transgression may indeed be more severe, but who said the punishment for it is more severe? You assume the punishment is proportional to the severity of the transgression, but if that’s not true, then the whole attempt to derive punishment by inference collapses. There’s no need to look for explanations of why we don’t do it. There’s no reason that we should do it. Okay? So this is a different direction.

I want to begin with that direction. In Rabbi Yeruḥam Fishel Perla’s commentary to the Book of Commandments—we’ve spoken about this, right? Rabbi Yeruḥam Perla’s Book of Commandments with notes on Saadia Gaon. We already talked about this.

[Speaker E] This is…

[Speaker D] Serious stuff. Five or six volumes.

[Rabbi Michael Abraham] In practice, yes.

[Speaker D] In the end they found a Book of Commandments by Saadia Gaon that Yeruḥam Perla didn’t know.

[Rabbi Michael Abraham] What do you mean, in the end they found it? Yes?

[Speaker D] No, when he wrote, he didn’t know.

[Rabbi Michael Abraham] Who? Rabbi Yeruḥam Fishel Perla? Ah, there are two versions. There’s his liturgical poem and there’s his Book of Commandments.

[Speaker D] The Book of Commandments—Yeruḥam Perla didn’t know it.

[Rabbi Michael Abraham] I don’t remember anymore. Did he write it on the poem and not on the Book of Commandments? Okay, could be, I don’t remember. Not everything is exact. In any event, Maimonides already writes in his introduction to the Book of Commandments that most of the authors who counted the commandments were poets, so they didn’t understand all that much. Therefore he didn’t even find it worthwhile to argue with them, except with Bahag. What’s interesting is that he doesn’t mention Saadia Gaon. He doesn’t mention him, so it seems that Maimonides did not know Saadia Gaon’s Book of Commandments. Yes, Rabbi Sabato has an article on the question whether Maimonides knew Saadia Gaon’s Book of Commandments. Anyway, I argued that he didn’t. I don’t remember anymore what Sabato writes and what his proofs are—I saw it a long time ago. In any event, because if he did know it, then we’re in trouble, since he treats those writers dismissively. Then Saadia Gaon would be included among all those authors of commandment counts whom Maimonides dismisses.

[Speaker G] Well, Saadia Gaon—okay, that’s…

[Rabbi Michael Abraham] Not in philosophy—in the counting of commandments. Fine, he didn’t know him; these were pamphlets circulating in the world, in Ashkenaz and not… Now look, he says here as follows. The Book of Commandments is structured as a pair of words or two word-pairs, and these are basically two commandments, and Saadia Gaon spells out what those commandments are and then says who disagreed with them, and so on. He says: according to the honor of the Sabbath, so are those who desecrate it; and one who comes to a betrothed maiden is greatly punished. Someone who has relations with a betrothed maiden, okay? “According to the honor of the Sabbath, so are those who desecrate it”—so these are two things: desecrating the Sabbath and relations with a betrothed maiden. These are two entries in Saadia Gaon’s count of the commandments. It’s just two little phrases; that’s the commandment in his system. His whole Book of Commandments is a page or two. That’s Saadia Gaon’s Book of Commandments. Rabbi Perla’s commentary is three such volumes—you have to understand the scale.

So he writes as follows: it appears that his intention is to say that according to the importance of the commandment of Sabbath-rest, which is one of the greatest commandments in the Torah, so too is the punishment for those who desecrate it, which is the severest punishment among all types of punishments in the Torah, for we hold that stoning is more severe than all the other court-imposed deaths. And so too with a betrothed maiden: according to the severity of the transgression, so the severity of the punishment. Okay? He says: according to the honor of the Sabbath—however severe the transgression is, so severe is the punishment of those who desecrate it. And so wrote our master the Gaon, of blessed memory, in his Book of Beliefs and Opinions—this is Saadia Gaon—and this is his language there: “And how do we know that they are not severe? Because their punishments in this world were not made greater,” and so on. In other words, you see that the severity of the punishment is an indication of the severity of the transgression. “But the intentional sinner who violates the severe prohibitions—those that involve excision… and the four court-imposed death penalties—through this we know that they are severe.” End quote. He ties the severity of the transgression to the severity of the punishment.

This connects to the point you raised earlier—that there’s a kind of circularity here, because the severity of the punishment corresponds to the severity of the transgression, but how do you know the transgression is more severe? From the fact that the punishment given for it is more severe. But it’s not really circular. The Holy One, blessed be He, gave the severity of the punishment according to the severity of the transgression. We cannot know which transgression is more severe, so for us the severity of the punishment is an indication that the transgression is severe. Okay? Think of a scientific study. You say: this object falls on the table—why? Because there’s a law of gravity, that every object with mass falls to the earth, right? So that fact is a result of the law of gravity. But for us, how do we know there is a law of gravity? Because we see such phenomena. We go from the phenomena to the law. But the Holy One, blessed be He, who made the law—from His standpoint the law was created so the world would operate that way. In other words, the world works that way because of the law, not that the law exists because of the world. Okay. What about things where we do not derive punishments by inference?

[Speaker I] False witnesses—if they caused someone’s value, they don’t kill them.

[Rabbi Michael Abraham] That’s what we saw—that we do not derive punishments by inference. We don’t derive punishments by inference, so they are not executed. If they killed, they are not killed; if they didn’t kill, they are killed. But the question is why we do not derive punishments by inference—that’s our whole topic. So the direction I’m examining now is that perhaps we do not derive punishments by inference because there is no reason to do so, since there is no connection between the severity of the transgression and the severity of the punishment. That is exactly an explanation for that law of false witnesses. Okay? We’ll soon see. But at the moment he says otherwise. At the moment he says that the severity of the punishment is proportional to the severity of the transgression. Right? And now he continues: and this is not like the view of our master Rabbi Yehuda He-Hasid, of blessed memory, in Sefer Hasidim and so on, who wrote: Know that you cannot know the commandments, their punishments, and their rewards by the severity of the afflictions. For desecration of the Sabbath is punishable by stoning, while some sexual prohibitions are punishable by strangulation or excision. Stoning is more severe than strangulation, right? Now Sabbath is punished by stoning, and forbidden sexual relations—which are in the category of “one must be killed rather than transgress”—seemingly more severe, yet are punished by strangulation. So you see that the severity of the punishment does not necessarily reflect the severity of the transgression.

By the way, here’s a partial answer to the question of how I know that the transgression is more severe not by way of the punishment given for it. Here, for example, the fact that one must be killed rather than transgress shows me that it is more severe. That has nothing to do with the punishment assigned to it. On the contrary: in terms of punishment, it really is not more severe. But I see that the transgression is more severe because it carries the rule “one must be killed rather than transgress.”

[Speaker E] “One must be killed rather than…”

[Rabbi Michael Abraham] …transgress—is…

[Speaker E] …only from Beit Nataza.

[Rabbi Michael Abraham] What do you mean?

[Speaker E] That determination—that religious determination of “one must be killed rather than transgress.”

[Rabbi Michael Abraham] The determination of “one must be killed rather than transgress.”

[Speaker E] From Beit Nataza, I think. That’s where they established this concept of “one must be killed rather than transgress.” It’s a Torah law.

[Rabbi Michael Abraham] This concept of “one must be killed rather than transgress” is a Torah law. What difference does it make where it was established?

[Speaker E] It’s a Torah law, not a rabbinic law.

[Rabbi Michael Abraham] There’s a time of persecution and all that—it’s the same thing. Maybe they didn’t know it then and later they did, and we don’t know where they learned it from, but it’s a Torah law. It doesn’t really matter where and when it originated. Even though desecrating the Sabbath is permitted for the sake of saving life, and one cannot do that in the case of forbidden sexual relations or murder, which are not punished by stoning. Therefore, do not say that this one is more precious and beloved than that one. End quote.

And he writes further on that one should not assess the value of commandments according to the punishment of those who violate them. And he brings proof for this, that the sin of a false oath and erasing the Divine Name is only a prohibition, whereas the sin of relations with a married woman is punishable by strangulation. And yet, when she had relations in the transgression of a married woman many times, her thigh did not collapse and her belly did not swell; but when the priest administered the oath and she drank the bitter waters, her thigh collapsed and her belly swelled. See his words there.

He says that in the case of the suspected adulteress—she swore that she had not had relations, and she drinks the bitter waters—then her belly swells and her thigh collapses. So you see that this is very severe. And that doesn’t happen to one who had relations with a married woman, even though the prohibition of a married woman is more severe than the prohibition of a false oath. Right? Therefore you see that there is no necessary connection between the severity of the transgression and the severity of the punishment.

By the way, I think his second proof is not correct. Because “her belly swelled and her thigh collapsed” happened after she both swore and had relations. It’s not just about the oath, but after she had relations she also swore, and those two together bring about the swelling belly and collapsing thigh. It’s not a comparison between the transgression of the oath and the transgression of the sexual act. After all, the oath comes on top of the sexual act. Right? It’s like that other discussion regarding the guilt-offering for a false oath about a deposit. We spoke about guilt-offerings. Right? What is the guilt-offering for a false oath about a deposit? I deny that you deposited the object with me, and I deny it under oath. If I didn’t deny it under oath, I’m not liable. But if I deny it under oath, then I’m liable for the guilt-offering for a false oath about a deposit. Fine? Now what do the later authorities discuss? What is this actually about? Is the guilt-offering brought for the oath, or for the theft? Because the guilt-offering is called a guilt-offering of thefts. So what difference does the oath make? What difference does it make whether you swore or not? Bottom line, if you stole, bring a guilt-offering. But an ordinary thief also doesn’t bring such a guilt-offering; it’s only in a case of deposit. So it would seem that the oath is more severe than the theft, right? But that’s not true. Why not? Because here the oath concerns the denial that I stole. So besides the fact that you stole, you also swore falsely. So those two together are certainly more severe than theft alone. Okay? That’s why in Kiddushin 5 the Talmud makes this refutation. It makes an a fortiori argument from the bridal canopy—that the bridal canopy is stronger than money, because the bridal canopy effects marriage whereas money does not effect marriage. So if money effects betrothal, then the bridal canopy, which is stronger, should certainly effect betrothal. Fine? So the Talmud rejects this: no, who says the bridal canopy is stronger than money? The bridal canopy succeeds in effecting marriage because it comes after the money that effected the betrothal. There was money first—it did something. The money created betrothal, and then I did the bridal canopy and that created marriage. So you can’t conclude from this that the bridal canopy is stronger than money. The bridal canopy that comes after money is certainly stronger than money. In any case, you see this in many places. So in my opinion his second proof is not really a proof.

In any event, this is what Rabbi Yehuda He-Hasid says, and he argues that the severity of the transgression does not reflect the severity of the punishment. Later there Rabbi Abraham Perla brings from Maimonides, Meiri, Tashbetz, and others, that from the punishment of the one who violates a commandment one can know the reward of the one who fulfills it. Okay? Then he says: the words of Rabbi Yehuda He-Hasid are astonishing to me—astonishing meaning unintelligible—and the words of our master the Gaon and Maimonides are straightforward and clear, for the Holy One, blessed be He, does not execute justice without justice, and the ways of God are upright. Why should He give a more severe punishment for a lighter transgression? What logic could there be in that? Beyond this idea or that idea, why would it be so? So what do you say? Why would it be so? What possible logic could there be in it? What? So people won’t stumble in it—so because it’s easier to stumble, you say we need greater deterrence. The Sages were stricter with their own enactments than with Torah law. “The words of the Sages are more beloved than the wine of the Torah,” Talmud, Eruvin 21. Right—and therefore the Sages were stricter with their own laws than with Torah law.

I think the point is that perhaps the relation between punishments is not necessarily measured in terms of severity. A relation of severity assumes that there is a single scale on which all punishments can be placed, and whichever one is higher is more severe. In other words, that one has five units on the scale, that one seven, that one eight, and so on. So you can measure them all and evaluate them against one another, constructing a ladder of severity for punishments. But if punishments differ from one another in kind, not in severity—simply a different kind. For example, think about it this way: doesn’t punishment come to…

[Speaker E] In the prohibited labors of the Sabbath there are labors different from one another—in the sense of primary categories, no? But in terms of the law, they’re all equal.

[Rabbi Michael Abraham] There’s no difference in difficulty or severity—in the prohibited labors of the Sabbath…

[Speaker E] They’re all the same.

[Rabbi Michael Abraham] Ah, it doesn’t matter—but in terms of punishment it’s the same punishment for all of them. The punishment is the same for all of them: a sin-offering or stoning. It’s not that one punishment is less severe or more severe. What do you see there? That it’s easy to transfer from domain to domain, so does that mean it’s a lighter transgression? Of course not.

[Speaker E] Sabbath desecration.

[Rabbi Michael Abraham] Fine. In any case, for our purposes, what I want to say is this: the difference between punishments may be a difference in kind. It’s not a quantitative difference but a qualitative difference. For example, if our conception of punishment is that its purpose is atonement—not deterrence or retribution, but atonement. Now if that is really so, then I would expect there to be a connection between the punishment and the transgression not on the level of how severe the punishment is, but on the level of what kind of purification or atonement it achieves. In other words, the question is: what defect did the transgression create, and how can that defect be purified, repaired, or atoned for? And that may be a matter of kind. For example—I don’t know—someone sinned against another person’s property. That may be a very severe transgression, and you want to punish him in a way that fits the kind of transgression. So the punishment is: return the property, and maybe also pay double. Because that teaches you to be more careful with someone else’s property, even though double payment is not a more severe punishment than death, or lashes, or other things. But the type of punishment corresponds to the type of transgression. Not that the severity of the punishment corresponds to the severity of the transgression.

Now if that’s so, then it is not true that this would be “justice without justice.” Rabbi Abraham Perla’s question against Sefer Hasidim is not necessary at all. He says that if the Torah gives a more severe punishment for a lighter transgression, then that’s justice without justice—how can that be? But that’s not true. The difference may be a difference in kind, not a difference in severity, and the kind is determined by the issue itself. The type of transgression you committed dictates the type of punishment you deserve. In other words, the question is: what is your conception of punishment? Is your conception deterrence—in which case everything really is determined by how severe the punishment is? Or is your conception purification or atonement, repairing the sin? And if so, then it’s not a question of severity but a question of how one repairs what. For each thing, according to what needs repair, we decide how to repair it. Okay?

I’ll say more than that: how do you measure the severity of a punishment at all? We basically assume that there is a scale of severity of transgressions, and we already discussed earlier that sometimes it’s hard to know what is more severe than what, though there are indicators. But how do I measure the severity of a punishment? What determines that one punishment is more severe than another? The four court-imposed death penalties—stoning, burning, and so on—or theft, including slaughtering, where there’s a gradation in the wrongdoing. That’s in the framework of “included in two hundred is one hundred.” But there you have five versus two, so there’s no problem—it’s obvious one is more severe. But say stoning versus burning, or lashes versus death—how do I know which is more severe? By what standard is that determined? The simple answer would be: whichever hurts more. If it hurts you more, weighs on you more, torments you more, then the punishment is more severe, right? In other words, the severity of a punishment is how hard it is for you to undergo it. And therefore Rabbi Abraham Perla really does say: this would be justice without justice. Why do you give severe suffering for a lighter transgression and light suffering for a more severe transgression? The degree of suffering should be proportional to the severity of the transgression. But if the severity of the punishment does not reflect the degree of suffering, then once again this is not justice without justice. And that fits what I said earlier: if the role of punishment is atonement and not deterrence, then punishments differ from one another in kind, not in degree of severity. And then, even if you do speak about severity of punishments, it is not necessarily the question of how much they hurt me, but something else.

And look at a passage in the Talmud. In Ketubot 33 it says as follows. This is an ancient article of mine, one of the first things I ever wrote, maybe the second or something, so you can see it’s not yet in the normal format of quotations. No, the black is just accidental—wherever possible I can change it, I just can’t find it. In principle it can be changed.

So in Ketubot it says: Rav Ashi challenged: from where do we know that warning for the more severe offense counts as warning for the less severe one? If someone commits a transgression and I warn him, but I warn him for a different transgression, not the one he is actually about to commit—okay? So he says: if the transgression I warned him about is more severe, then the warning counts; warning for the more severe counts for the less severe. But perhaps it doesn’t count? Who told you that warning for the more severe counts for the less severe? Maybe it doesn’t? And even if you say it does count, from where do you know that death is more severe? Maybe lashes are more severe. There the case is someone who received warning for a capital punishment, whereas the punishment he actually deserves is lashes, so the question is whether warning for death is enough to count as warning so that he can then be lashed. Okay? So first, I don’t know why warning for the more severe should count for the less severe, and even if it does, who says death is the severe one and lashes the lighter one? Maybe the opposite. As Rav said: had Hananiah, Mishael, and Azariah been scourged, they would have worshipped the image.

[Speaker L] That’s what Rav says.

[Rabbi Michael Abraham] Rav Sama son of Rav Asi said to Rav Ashi: Is there not a difference for you between a beating that has a set limit and a beating that has no set limit? What does that mean?

[Speaker L] Lashes—if…

[Rabbi Michael Abraham] If it’s thirty-nine lashes, that’s less severe than death. I assume they would have withstood that too, if they were willing to give themselves up to death. But if you tell them: look, I’m going to whip you…

[Speaker L] …all…

[Rabbi Michael Abraham] …the time, constantly, until you give in—I’m just not going to stop—then they would not have withstood it. Even though lashes are in principle less severe than death, this has no limit, and you can’t withstand it. Okay, and that’s really true. Even apart from lashes, one of the hardest things about living in a situation like a concentration camp or a ghetto or something like that is that you don’t know when it will end. You have no idea. They didn’t know how long this story would last, if it would end at all. That’s one of the hardest things. If you know it will end in another week, okay, somehow I’ll hold out for a week, another week. But you can’t know. It could continue for another fifty years. You don’t know. It’s terrible—it’s impossible to withstand.

By the way, I once wrote about homosexuality. My argument was that someone who transgresses in that area is under compulsion—under compulsion. Why is he under compulsion? What do you mean, “restrain yourself”? I’m also forbidden to have relations with a married woman, right? And I’m required to restrain myself and not have relations with a married woman even if I desire her, right? So why not him? Because in the case of the married woman, he has “bread in his basket”—meaning, he can get married, he can be with his wife, he can be with an unmarried woman, whatever—it has a solution, there’s a limit to the difficulty. But here you decree on him a life of loneliness forever. That’s a beating with no limit. And in that sense a person cannot withstand it, so it counts as compulsion. That’s what I argue.

In any case, what we see here in the Talmud is that the standard changes. It says that the severity of a punishment is not measured by the final result but by the person’s experience. And from the person’s experience, something with no limit is much more severe than something with a limit, even if it is death. And this connects to what we said about children’s punishments. When a child feels the punishment is endless, that he will always be the bad child—that’s the harshest punishment there is. That’s much worse than one blow and it’s over. For him it has no limit.

In other words, I also have the option of doing this in a permitted way, right? Why go to a married woman or a forbidden relative or whatever? You have the option—do it permissibly. The Torah gave you the way to do it permissibly. But he has to stand this test all his life and not do it. That’s exactly this Talmudic passage. In other words, a person can’t withstand it; it’s complete compulsion. You can withstand and hold back for a day, a week, half a year, even a year, I don’t know—but you know there is some horizon beyond which you have another solution. But here there isn’t. A whole life is decreed upon him, with no way out. He has to struggle against this thing every single moment. That’s it—it never ends. It’s insane. I don’t know who could withstand such a thing. And people really make light of this issue, but it is unbelievably difficult. You can argue about it until tomorrow; I don’t think you can argue about the difficulty of the goal itself. And therefore, in my view, that is complete compulsion. It’s simply compulsion. There’s no question about it at all. What? No, there is compulsion regarding a single act too. There isn’t compulsion on the fact that in the end you didn’t manage.

[Speaker J] No, but even for one act.

[Rabbi Michael Abraham] For one act, yes, but when is that one act? When you have “bread in your basket” and you did it because of some desire or another.

[Speaker J] I’m talking about male homosexual intercourse too.

[Rabbi Michael Abraham] A person who had male homosexual intercourse while having the option to do things permissibly—of course he is not under compulsion; he deserves punishment. But we’re talking about someone who has no other option, he cannot do it. He is under compulsion. There should be no punishment for that. Certainly. I’m saying there should be no punishment, not no transgression. There should be no punishment because he is under compulsion.

[Speaker E] The Merciful One exempts one who is under compulsion.

[Rabbi Michael Abraham] Exactly—and that’s obvious. Is there even a doubt about that? I have no doubt about it. What? Isn’t this in the category of “one must be killed rather than transgress”? No, it is. It’s a sexual prohibition—of course it is. There is “one must be killed rather than transgress.” Okay, so it is in that category, but he is under compulsion. What can he do? He failed. Maimonides himself writes that if you were under compulsion and you transgressed one of the prohibitions for which one must be killed rather than transgress, you are not punished. There’s a dispute between Maimonides and Tosafot. Maimonides says that if someone threatens me with a gun to worship idols, in principle I am supposed to give up my life. Right? But if I didn’t withstand it and I worshipped idols, I am not liable to death. The Merciful One exempts one who is under compulsion. I was forbidden to do it, but I am under compulsion and do not deserve punishment. Okay?

So the Talmud says here that lashes are basically more severe than death. What is the Talmud’s assumption? Why? Notice, there’s a hierarchy here, right? The most severe is lashes with no fixed limit. Death with no fixed limit—there’s no such thing, right? You only die once. As the saying goes, only cowards die twice. You die once. But lashes—there can be lashes with no fixed limit. Okay? So lashes with no limit are the most severe, then death, and then lashes with a fixed limit. Right? There is a hierarchy here. What determines that hierarchy? Seemingly suffering, right? And that’s what they say there: would Hananiah, Mishael, and Azariah have withstood it? Obviously the parameter is how much suffering is involved, right? That’s the parameter. So from this passage it really emerges that the criterion for the severity of punishments is basically the criterion of degree of suffering. Okay? And that’s like Rabbi Yeruḥam Perla assumes, not like Rabbi Yehuda He-Hasid.

Now Ritva says there as follows: “From where do we know that warning for the more severe offense counts as warning for the less severe one? Perhaps it does not count?” Explanation: it is a scriptural decree that a person needs warning for that very punishment for which he is punished. “And even if you say it does count, from where do you know that death is more severe?” Explanation: even though in terms of the Torah’s legal categories it is obvious that death is more severe, what we mean here is this: from where do we know that warning for death is more severe from the standpoint of people? Perhaps warning for lashes is more severe for people. Because death they do not fear, since a person may say, “Let me die with the Philistines.” But lashes he does not want—he would rather not be killed and instead be lashed, because my lashes are more painful to me than another person’s death.

What is he saying? There is no necessary connection between the severity of the punishment and what it does to the person. In other words, a person may fear lashes more than death, even though the death penalty is obviously more severe than lashes. So what do you see? That the severity of punishment is not determined by the question of how much human beings fear it. Regarding the laws of warning, says Ritva, what matters is how much the person fears it. Right? That’s what matters. If the person fears a more severe punishment, then obviously warning for the more severe counts for the less severe. Because after all, that’s the function of warning—to deter him, right? Warning was given only to distinguish between accidental and intentional sin. In other words, the function of warning is to deter him. So there the parameter really is how much the person fears it, or how much suffering it causes him. But regarding the severity of punishment in itself, not necessarily. The severity of punishment in itself may be something else. Death is more severe than lashes, but the lashes may nevertheless deter him more than death. In death he is not humiliated—he dies and it’s over; he’s no longer here. With lashes he will still be here afterward and everyone will know that he is the man who was whipped in the town square. Okay? So it may be that the severity of punishment is not determined—or does not overlap necessarily with—the question of how much the person fears it, or how much suffering it causes him. So what does determine it? Some kind of scriptural decree, I don’t know exactly. Punishment—I assume the idea is that the differences between punishments are differences in kind, not differences in degree of suffering. Right? A difference in kind. And in what sense one is more severe, I don’t know. If it repairs the eternal aspect within hod, maybe that’s more severe than the eternal aspect within yesod. Fine? Hod, yesod—yesod is below hod. Okay? So some spiritual criteria of one sort or another, I have no idea, but not the suffering it causes people.

And for example, Tosafot there seem not to follow Ritva. There it seems that it is indeed determined according to human perception. It says: if people liable to different death penalties became mixed together, they are judged by the lighter penalty. If there’s someone liable to burning and someone liable to strangulation and they got mixed up, and now you don’t know whom to burn and whom to strangle, okay? So what do you say? I’ll judge them both by strangulation because it’s the lighter death penalty. Because if he is liable to burning, then certainly he is also liable to strangulation, since strangulation is lighter. So I’ll strangle both and nothing has gone wrong. In other words, I’m playing it safe. You understand that here we see there is indeed a hierarchy among punishments? Because if strangulation and burning are differences in kind, then you cannot strangle someone who is liable to burning, even though strangulation is considered a lighter penalty, because it’s a different kind entirely. It’s not a difference in severity, right? It’s not quantitative but qualitative. That’s what Tosafot says. And as the Talmud there says, we infer from this that warning for the more severe counts as warning for the less severe, because that person was warned for burning and nevertheless we judge him by strangulation. Why? After all, he was not warned for strangulation, but for burning. So you see from here that warning for the more severe counts as warning for the less severe. And there it is obvious that once they warned him for stoning and he accepted, then all the more so if they had warned him for strangulation for that same act he would have accepted. And even so, the Talmud wanted to say that warning for the more severe does not count as warning for the less severe. Rather, one must say that it is a scriptural decree that he must expose himself to that very death penalty, whether lighter or more severe. Some sort of scriptural decree that this is a special rule in warning.

Okay? But the criterion of severity is certainly the criterion of degree of suffering. Not like what emerges from Ritva, who distinguishes between those two things. So this is apparently the same dispute as between Rabbi Yehuda He-Hasid and Rabbi Yeruḥam Perla and Maimonides and Saadia Gaon. Okay? The question is whether there is a connection between the severity of the transgression and the severity of the punishment, or whether the differences are differences in kind.

Okay, there are various practical implications, but let’s leave that for now. What does this actually mean? It means that if we really follow Rabbi Yehuda He-Hasid, according to whom the severity of the transgression does not necessarily entail the severity of the punishment, then the question of why we do not derive punishments by inference does not arise at all. You don’t need explanations like maybe there is a refutation, maybe the punishment for the lighter case is not enough for the more severe case because it’s too severe. No. It doesn’t work for the more severe case because it is a different kind of punishment. You simply cannot learn by an a fortiori argument that if punishment X was given for a lighter transgression, then certainly you can impose it also for a more severe one. No—because punishment X is a certain type, and maybe the more severe transgression requires a different type of punishment, not a different degree of severity but a different type, so punishment X is of no use at all. And the question of why we do not derive punishments by inference simply does not arise according to Rabbi Yehuda He-Hasid. In some sense, the fact that we do not derive punishments by inference is itself evidence for Rabbi Yehuda He-Hasid’s position. Okay?

And the earlier authorities who disagree with him—Maimonides, Rabbi Yeruḥam Perla, Saadia Gaon, and the other earlier authorities, Tashbetz, who disagree with him—who really think that the severity of punishment is proportional to the severity of the transgression, well, there I really do need explanations. Then why don’t we derive punishments by inference? So I gave the two explanations I discussed earlier. Now this is a third direction as to why we do not derive punishments by inference: we simply do not derive punishments by inference because there is no reason to do so, since the severity of punishment does not reflect the severity of the transgression.

Now what do we do with the view of the earlier authorities who disagree with Rabbi Yehuda He-Hasid? Here I want to move in a fourth direction, and this goes along the lines of Maimonides, who indeed disagrees with Rabbi Yehuda He-Hasid. Maimonides understood this whole issue of deriving punishments by inference completely differently. But to understand that, let’s begin with a passage in Sanhedrin. What does it say? “They shall surely be put to death”—by stoning. Do you say by stoning, or perhaps by one of the other death penalties stated in the Torah? Here it says “their blood is upon them,” and regarding the necromancer and the medium it says “their blood is upon them.” Just as there it is by stoning, so too here it is by stoning. This is about the prohibition concerning one’s father’s wife. “We have heard the punishment; from where do we know the prohibition?” What kind of question is that? You learned by inference that in the case of one’s father’s wife he is liable to stoning, right? An a fortiori argument. But who says there is a prohibition? How do you know there is a prohibition? So it says: Scripture says, “You shall not uncover the nakedness of your father;” “the nakedness of your father” means your father’s wife. Do you say it means your father’s wife, or perhaps it literally means your father’s nakedness? It says here “You shall not uncover the nakedness of your father,” and so on. In short, we also found the prohibition. Okay?

So when we derive the punishment, but don’t have a prohibition, we look for a source for the prohibition. Okay? Not derive by inference—sorry. We found a source for the punishment, and still we need a source for the prohibition. Why, really? What is the Talmud asking when it says, “We have heard the punishment; from where do we know the prohibition?” If the Torah says to punish, then why do you need a prohibition? The Torah says to punish—finished. Why does the Torah also have to… a prohibition means a negative commandment, yes? Why does there have to be a verse that forbids the act? If the Torah says he is liable to death, liable to stoning, isn’t it obvious that it’s forbidden? What’s the question?

On this, Sefer Ha-Ḥinukh discusses it in commandment 69. The commandment is not to curse judges, as it says, “You shall not curse God,” and its interpretation is judges, as in “whom the judges condemn.” “God” in that verse means judges. And Scripture expressed it using the word “God” so that another prohibition would be included with it, namely the prohibition against blessing the Divine Name—obviously using a euphemistic expression. As our Sages said in the Mekhilta and Sifrei, the prohibition against blasphemy is derived from “You shall not curse God.” And what is written elsewhere, “One who pronounces the Name of the Lord shall surely be put to death”—why do we need that prohibition, when it already says explicitly “One who pronounces the Name of the Lord shall surely be put to death”? That is the punishment, but the prohibition is derived from here. Because mentioning the punishment in a commandment is not enough for us without a prohibition. Even if we learned the punishment, we still need a source that gives us the prohibition. And this is why our Sages always say, “We have heard the punishment; from where do we know the prohibition?” as we saw in the Talmud in Sanhedrin.

Now he explains why this is so. If the Torah says there is a punishment, then obviously it is forbidden—so why do you need a verse saying there is a prohibition? He says this: the point is that if we had only God’s prevention in the matter—same thing, “prevention” here means a negative commandment—if He merely said, “One who does such-and-such will be punished in such-and-such a way,” that would imply that anyone who wishes may choose to accept the punishment and not care about the suffering, and transgress the commandment without thereby acting against the will of God, blessed be He, and His command. The commandment would then become something like a commercial exchange: whoever wants to do such-and-such may pay such-and-such and do it, or may offer his back to suffer such-and-such and do it. But that is not the intention of the commandments. Rather, God, for our benefit, restrained us from certain things, and informed us in some cases of the punishment that would come immediately, apart from violating His will, which is worse than anything. And this is what our Sages mean everywhere when they say: He does not punish unless He first warns. That is, God did not inform us of the punishment that comes upon us for violating the commandment unless He first informed us that His will is that we not do the act to which the punishment applies.

What is he saying? He’s saying this: why do you need a prohibition as well when the punishment is written? Because if only the punishment were written and the prohibition were not written, what would we think? That when we do this act, it is not really a bad act—it does not go against God’s will. There’s just some condition: if you do it, you get punished; if you don’t, up to you, no problem. But it’s not that you are required not to do the act. How do I know that the act is bad, that it goes against God’s will? Writing the punishment is not enough for that. Because the punishment only says: if you do it, you get this. But that could just be a condition.

[Speaker O] Like, for example, if you fast intentionally and are hanged by the wind or… okay.

[Rabbi Michael Abraham] Fine, whatever. But even aside from that consideration: if there were no prohibition written, only a punishment, then I would think the Torah is saying: if you do it, you’ll be punished; if you don’t do it, you won’t be punished. But in principle God has no concern whether you do it or don’t do it. It’s just some sort of mechanical rules. Okay? So I would not even know that this act is a bad act, a problematic act, an act that goes against God’s will. I would only know that if I do it, I’ll get hit; if I don’t, I won’t. That’s all. Everything’s fine. But I could decide to do it and also take the punishment, and everything would still be fine. Okay? And therefore the Sages assume that even if the punishment is written, the prohibition still also has to be written.

Now, that statement itself is very strange. Why? Because if there really is an option to interpret the punishment as merely some kind of mechanical condition, but not as meaning that I performed an act that was wrong, that was against God’s will—right?—then now whenever the Talmud sees, say, in the case of one’s father’s wife, yes, that there is a punishment, there is stoning, the Talmud asks: “We have heard the punishment; from where do we know the prohibition?” Who told you there is a prohibition? What makes it assume there is a prohibition? It asks: wait a minute, but where is the prohibition from? No—maybe there is no prohibition, and the punishment here is really just mechanical. You can have relations with your father’s wife; there’s no problem in principle, it doesn’t go against God’s will—just know that you’ll be stoned afterward. Some mechanical condition like that. That possibility is exactly what Sefer Ha-Ḥinukh says, right? That if punishment were written without prohibition, there would be no problem. They would indeed give the punishment, but we simply would not understand that the act itself is forbidden. We would think the punishment is only a mechanical condition.

So according to him, what comes out is this: if I find a place where there is a punishment and I do not find a prohibition, apparently that punishment is mechanical, and the action is not really forbidden. But when the Talmud says “We have heard the punishment; from where do we know the prohibition?” it assumes that there must always also be a prohibition. In other words, there is no case where the punishment is mechanical but the act is not against God’s will. Because otherwise, what is the Talmud asking? Right? Now if the Talmud assumes that, then I go back and again I don’t understand the Talmud’s question, “We have heard the punishment; from where do we know the prohibition?” Because if you understand that there must necessarily be a prohibition, what are you really understanding? That there are no punishments that are merely mechanical conditions. That every punishment is really a sanction for having done something wrong, for violating God’s will. Right? So if you already know that, then why do you need the Torah to write a prohibition? Everywhere a punishment is written, I already know it’s also against God’s will. The very fact that the Talmud asks this question cuts off the branch on which the question is sitting. Because the fact that this question arises means: okay, there could be an option that there is punishment without prohibition, right? But if that option exists, then why are you asking? And if that option doesn’t exist, then the question has no answer. So why does the Torah really write a prohibition? I already know by myself that wherever there is a punishment, it is also an act that is forbidden. So why do you need a prohibition? There is some problem here.

Now look at an interesting example of application. I once found this in an old article by Rav Dov Landau. At that time he was less well known. In Bnei Brak he was known, but not outside Bnei Brak until he became a political figure. It was in some memorial volume that I’ve never tracked down since. But I remember it was a two-page article. I came across it once during the repetition of the Amidah—one of those moments when, as they say, the repetition of the Amidah is for increasing Torah and glorifying it. So in that article he brings this Sefer Ha-Ḥinukh that we just read, and he gives two examples.

One example is from Sanhedrin 89. The Talmud says there that one who suppresses his prophecy dies by the hand of Heaven. A prophet who suppresses his prophecy—that is, the Holy One, blessed be He, sends him to prophesy and he does not go—he dies by the hand of Heaven. Then the Talmud says: a tanna taught before Rav Hisda that one who suppresses his prophecy receives lashes. Rav Hisda said to him: someone who eats dates out of a sieve—does he get lashed? Who warns him? If no one sees it, no one knows, how is he going to get lashes? Who is going to warn him? He received some prophecy and no one knows. He is the prophet—there are no others, right? So the Talmud says: Abaye said, his fellow prophets. His fellow prophets warn him, because they know that he received prophecy. How do they know? He received the prophecy, not they. Abaye says, as it is written: “For the Lord God will do nothing unless He reveals His secret…” He reveals His secret, yes. In other words, they do know. And maybe He retracted? If indeed He had retracted, they would have informed all the prophets, and so on. And Jonah, where He retracted and did not inform him? Originally they told Jonah “Nineveh will be overturned”; he did not know whether for good or for bad.

Okay? In other words, this is a transgression—and let’s leave aside the details. It’s a transgression that no one knows about. In principle, he should be lashed. And to receive lashes, warning is required. How does he get warning? His fellow prophets warn him, because they know that he received prophecy. Tosafot there say: one who suppresses his prophecy receives lashes. Tosafot say: there is no negative commandment here. Where is the negative commandment for suppressing one’s prophecy? And furthermore, there is no action here. Why would he be lashed? There is no deed—after all, he is just not doing something, right? It is passive non-performance. Rather, they strike him until he is willing to comply, just like “make a sukkah” and he does not make one. In other words, he does not get thirty-nine lashes, because the conditions for a prohibition punishable by lashes are not met here. Rather, they strike him under the law of coercion to fulfill commandments. That is, his fellow prophets strike him until he delivers the prophecy. I don’t know why they don’t just deliver the prophecy to us themselves, but okay. Apparently if he received it, then he is the one who has to prophesy.

Now there is a problem: why does one who suppresses his prophecy get lashes? There is no prohibition here, right? So Minḥat Ḥinukh, in commandment 516, discusses this difficulty of Tosafot. He says as follows: one who suppresses his prophecy is also liable from the verse that we interpret as “he does not make it heard,” and there we say that one who suppresses his prophecy gets lashes, and his fellow prophets warn him; they all know, as explained there. And Tosafot wrote that he is not lashed, since there is no prohibition here, and the lashes mentioned in the Talmud are not lashes for a prohibition, but lashes of coercion to fulfill the commandment. Also, there is no action. Rather, they strike him until he yields. Now, we have heard this punishment in the case of one who suppresses his prophecy, but the command in the verse does not explicitly say that he is obligated to deliver his prophecy. If he does not make it heard, then he gets lashes—fine. But where is it written that he is obligated to make it heard? There is no prohibition. There is a punishment and no prohibition.

So he says: and although the principle “He does not punish unless He first warns” does not apply here, because we only find that with negative commandments and not with positive ones, nevertheless, according to what the author wrote in commandment 69, that the function of the prohibition is that with punishment alone it would imply that if he wishes to transgress and accept the punishment, that is perfectly acceptable and he is not acting against the will of the Holy One, blessed be He—therefore the Torah gave a prohibition, to inform us that the blessed God does not desire this. See there. So he brings the Sefer Ha-Ḥinukh that we saw.

He then says: if so, even in the case of a positive commandment, since there is no verse explicitly saying so, if he wants to accept the consequence and suppress the prophecy, that is perfectly acceptable. What is he saying? Here we have found an example where there is a punishment but no prohibition, and yet he is still punished. But the punishment is a mechanical punishment, not a punishment for a transgression, because we did not find a prohibition. If we did not find a prohibition, then as Sefer Ha-Ḥinukh explained, that means the action is not an action against God’s will. It only means: if you do this, then mechanically you will receive the punishment. So what does Tosafot want? No problem: you can give him thirty-nine lashes—not lashes to coerce him to fulfill the commandment, but lashes as punishment. Ah, we didn’t find a prohibition? Fine—these are lashes without a prohibition, just a mechanical condition, without a prohibition. Okay? So here is the example.

Of course, as I said earlier, it’s a little hard—then why does the Talmud everywhere ask “We have heard the punishment; from where do we know the prohibition?” Maybe it’s a mechanical punishment; there’s no prohibition. But the Talmud assumes there is no such thing, and Sefer Ha-Ḥinukh says the same. Still, Minḥat Ḥinukh claims: here, in the case of suppressing prophecy, that’s how you can answer Tosafot’s question. One who suppresses his prophecy gets lashes even though there is no prohibition. Don’t be surprised that there is no prohibition, because one can be lashed even without a prohibition if the lashes are a mechanical punishment.

Now look at an interesting implication. He says: perhaps this was Jonah the prophet’s reason, for it is explained in the Talmud here that he was suppressing his prophecy, as we saw above. And Heaven forbid that Jonah the prophet should transgress against the will of God, blessed be He. What—Jonah the prophet is some little child? The Holy One, blessed be He, sends him to prophesy and he runs away? What kind of thing is that? Clearly, says Minḥat Ḥinukh, he did not commit a transgression against God’s will. Rather, this is not against His will, only it carries a punishment. Suppressing prophecy—yes, he was sent to prophesy to Nineveh, fine, and he does not want to prophesy to Nineveh. No problem—let him be lashed. Mechanically, he is not doing something against God’s will. Because after all, there is no prohibition on suppressing prophecy, right? So in this way the whole story of Jonah the prophet becomes clear. Jonah the prophet is basically performing a kind of—what shall we call it?—conscientious objection or something like that. In other words, he decided he was willing to accept the lashes so long as he would not go prophesy to Nineveh, because he did not agree that one should prophesy to Nineveh. Therefore there is no problem. That option exists. This punishment for suppressing prophecy is a mechanical punishment; you are not doing something against God’s will.

Excellent question. Right. A very good question—but that question should really be directed to Tosafot. Because when Tosafot ask, “We did not find a prohibition,” why are they asking that? Of course we found a prohibition. The very fact that the Holy One, blessed be He, sends you to prophesy is a command from Him to go and prophesy. Why are you asking where there is a command from God? You don’t need a Torah command to prophets in general telling them that if you receive prophecy from the Holy One, blessed be He, you are obligated to go and prophesy it. By the fact that He sends you to prophesy it, He told you that He wants you to prophesy it. Why do I need a verse for that? But Tosafot themselves do not assume that. Minḥat Ḥinukh answers according to Tosafot’s own view. Okay? But you are completely right that this whole discussion is somewhat shaky.

In any event, what does he say in practice? Minḥat Ḥinukh explains that Jonah the prophet was not in fact going against God’s will. Rather, he says: I will do what I believe in, and I am willing to accept the lashes. A kind of conscientious objection. What was the dispute there? Just parenthetically. The dispute was: why does the Holy One send Jonah? To bring Nineveh to repentance, right? Jonah says: what do you mean, bring them to repentance? They sinned—let them get hit. They sinned—let them get hit. Why bring them to repentance? Why are you giving them leniencies and things like that? “Wisdom was asked and it said: the sinner shall die,” something like that, right? According to wisdom, repentance should not work. If you sinned, you should get hit. Okay? That was basically Jonah’s claim. And the Holy One sends him anyway to prophesy, and he refuses, so he is making a conscientious refusal.

[Speaker N] So that a desecration of the Name would be created—Israel afterward would come…

[Rabbi Michael Abraham] Yes, the Sages say that they would come with a claim against Israel, fine. But I’m saying in the plain meaning of the verses, Jonah is arguing with the Holy One about the very process of repentance. That’s why we read it on Yom Kippur. There is an argument here over whether there is meaning to repentance—whether it is right to bring people to repentance, whether it is right to accept their repentance. What do you mean? If someone sinned, let him get hit. That’s the strict line of הדין, that’s justice—what do you mean, repentance?

And by the way, just to close the circle, at the end of the book there’s the story of the gourd. Right? There’s the worm and the east wind, and the gourd dries up and dies, and Jonah wishes for death, and the Holy One says, “Are you so upset over the gourd?” He says yes, I’m upset enough to die. Then the Holy One makes a kind of a fortiori argument, right? You pitied the gourd, over which you did not labor and which you did not grow, and should I not pity Nineveh, the great city, with much cattle and many people, and so on? But that a fortiori argument is absurd, right? Because Jonah did not pity the gourd; Jonah pitied himself. The gourd gave him shade. Did he have compassion on the gourd? He did not have compassion on the gourd—he wished for death. He says: what, the gourd gave me shade, now it dried up, I’m finished, I’m done for. He did not pity the gourd. So what is this a fortiori argument? “You pitied the gourd and I should not pity Nineveh”? Jonah did not pity the gourd.

There are two possible answers to that. Parenthetically—this is a bit of aggadic material. I once spoke about this in Yeruḥam the morning after Yom Kippur. We used to pray at sunrise on Har Nun there in the wilderness. I told them there are two possible answers. One answer is: why do you think Jonah did not pity the gourd? True, he had an interest in it, he wanted the shade—but that doesn’t mean he didn’t pity the gourd. It may be that he also pitied the gourd. Here you have a political kind of interpretation. If there is a politician and you know he has an interest, then you immediately assume the act is not pure, right? It was done for the sake of the interest. Who says so? It may be that he has an interest, but he really is doing it because he believes in it. More than that: for politicians, usually it comes together. If you do what you believe in, that’s usually also your interest, because that’s what you were elected for, and that’s how you’ll continue getting votes. You have an interest in advancing the things you believe in. It may be that he has an interest, but he really believes in them. But the political commentator is narrow-eyed. The political commentator always says: if you have an interest, the act is not pure. Okay? No. It may be that I have an interest, and the act is still pure. Right? There is no logical necessity in that.

So here too, the Holy One sees in Jonah that yes, he wishes for death because he has no shade, but besides that he genuinely pities the gourd. Some connection was formed between him and the gourd, and he truly pitied it, he really felt bad for it. Therefore the Holy One’s a fortiori argument is valid.

There’s also an opposite way to answer the difficulty. Right, Jonah did not pity the gourd; Jonah needed the gourd. But the Holy One also does not pity Nineveh—He needs it. Same thing. Why did He create Nineveh? He created Nineveh—there are people there and cattle. Did He create them for nothing? He wants them, He needs them. So what do you want—that if they sinned, He should wipe them all out? But He created them because He needs them. He has an interest, just as you need the gourd, I need Nineveh.

[Speaker N] What interest? He needs…

[Rabbi Michael Abraham] On that interest I’ve written articles; I won’t get into it now. But yes, He needs—it. He needs Nineveh. That is what is called the “secret of service for the sake of the One above”: our service is something the Holy One, blessed be He, needs from us. There are things He cannot do without us.

Anyway, back to our subject. Minḥat Ḥinukh says that Jonah the prophet made a kind of conscientious refusal, and this was not really against God’s will—he was only willing to bear the consequences, willing to bear the punishment. And that is what he means when he says: this is not against His will; it only brings punishment. Jonah the prophet intended the good of Israel, as is explained—that they were near repentance—so he accepted the punishment for the sake of Israel. Okay?

What does this mean? It continues what he said earlier. Namely, that the lashes received by one who suppresses his prophecy are mechanical lashes. They are not a sanction, yes—not a punishment for an act that is improper. Therefore you don’t need a prohibition either, because this is not a sanction for a wrong act. It’s just the mechanism, the mechanical consequence of what you did.

And in the end he rejects that possibility. He says: but in truth, here no separate prohibition is needed, because the prohibition is addressed to the prophet himself, like Jonah, to whom the Holy One said, “Go to Nineveh.” So if He said that, then His will was that he go. He did not say, “If you do not go…” and so on. He told him “Go.” So how can you cast doubt on the fact that the Holy One wants him to go? Exactly your question from before. So there is no need here for a command in the Torah, because when the prophet is sent, the Holy One commands him to prophesy. The matter is simple and clear. Therefore it is obvious that one cannot really say such a thing. But in principle Minḥat Ḥinukh was willing to say such a thing. In other words, according to what Sefer Ha-Ḥinukh says, there may be punishments that are mechanical punishments, not punishments given as a sanction for an improper act, for a transgression. But in the final analysis, that is not the explanation here.

A second example Rav Dov Landau brings there is from Temurah 3b: “And the Lord will make your plagues wondrous.” The Talmud there discusses: from where do we know that one who curses his fellow using the Divine Name receives lashes? Rabbi Elazar said in the name of Rabbi Hoshaya: because the verse says, “If you do not observe,” and then it says, “And the Lord will make your plagues wondrous.” I don’t know what “making wondrous” means. When it says, “And the judge shall cast him down and strike him before him,” then you must say that “making wondrous” means lashes.

In other words, one who curses his fellow using the Divine Name receives lashes, even though this is only speech—there’s no action. He gets lashes. So the Talmud asks: maybe this would even apply to a truthful oath. Maybe he should get lashes for a truthful oath? “And the Lord will make your plagues wondrous”—that could refer to a truthful oath. In other words, the court requires you to swear, you swear truthfully, and you get lashes. Why? Because that’s what the Torah says: “And the Lord will make your plagues wondrous.” But for what? For nothing. You get lashes. We’re talking again about the mechanical condition. Okay?

So the Talmud says: but it explicitly says, “An oath of the Lord shall be between them”; the Torah tells him to swear. Maybe that only means in order to appease his fellow, but perhaps he should still get lashes? But you cannot say that, because it says, “And in His name you shall swear.” Fine. So in the end the Talmud rejects it. But what was the initial thought? The initial thought was that a person who takes a truthful oath because the court requires him to swear—he swears, and he gets lashes. I don’t understand. Not only is he permitted to swear—he is obligated to swear. The court requires him to swear. So what should he get lashes for?

Obviously, says Rav Dov Landau, this is another example of the principle of Sefer Ha-Ḥinukh. Namely, that we see here lashes that are a mechanical condition, not lashes as punishment for having done something wrong. What did I do wrong? I did exactly what Jewish law required me to do, and I still get lashes. Here is your example of mechanical lashes.

Now here too, like in Minḥat Ḥinukh, this gets rejected. Here too, in the final conclusion, that’s not accepted; the Talmud doesn’t accept it. But as an initial assumption it does come up. In both cases, in the end the Talmud does not accept it. Right.

Okay, so what does this actually mean? In bottom-line terms, without all the dialectics, it’s clear that punishment alone is not enough; you need a prohibition. Without a prohibition, you do not punish. Why really not? Why not? Because there is no punishment unless there is prior warning, as Sefer Ha-Ḥinukh says. What does that mean? If the Torah gives a punishment for something, then obviously the Torah also does not want me to do it. This hair-splitting possibility that maybe it’s a mechanical punishment—that doesn’t work. Obviously the Torah does not want it. And still, I cannot be punished unless I was warned. And now the question is: where was I warned? Something not written in the Torah cannot count as something I was warned about. Where was I warned? The Torah does not say. The fact that it writes the punishment is not enough. It has to write that I am forbidden to do it. Not because otherwise we wouldn’t know it was forbidden, but because a person has to receive warning. Maybe the court knows, but you don’t. A person has to be warned before being punished, just like the warning given by witnesses. That is why a prohibition is required. Okay? But obviously, even without the prohibition, the punishment is not mechanical. The punishment is given for a transgression. And still there is such a rule: one cannot punish unless one first warns.

And in the second root of the Book of Commandments, Maimonides writes that the interpretive principles by which the Torah is expounded belong to rabbinic law. Laws learned by interpretation are rabbinic. Why are they rabbinic? Again, this is a long topic, I won’t get into all the details; I’ll do it briefly. Maimonides describes them there as “branches emerging from roots”—branches that emerge from roots. What does that mean? There is a possible way to understand this. Usually how do people understand it? When I learn from את ה’ אלוהיך תירא—“You shall fear the Lord your God”—to include Torah scholars, I understand that when the Torah wrote the word את, it was hinting that there is another prohibition or obligation within that verse. Besides fearing the Holy One, blessed be He, one must also fear Torah scholars. In other words, the interpretation uncovers another deeper layer that is hidden behind the verse. Fine?

Maimonides did not understand it that way. Maimonides understands that interpretation does not uncover what is already inside the verse but extends beyond what is in the verse. In other words, “You shall fear the Lord your God” means fear of the Holy One, fear of God. “To include Torah scholars” means I take the idea that is in the verse and extend it, saying that one should also fear Torah scholars. But the interpretation does not uncover; it extends. That is Maimonides’ view.

And therefore, says Maimonides, if that is so, then it is not Torah law. Because Maimonides interprets the phrase “Torah law” literally. “Torah law” means from the Torah—that is the literal meaning, right? “From the Torah” means from the Torah. Something that is not inside the Torah is not Torah law.

[Speaker P] Sure, the Talmud says…

[Rabbi Michael Abraham] Yes, sure, the Talmud says—but I’m not getting into the details now. Because then the interpretation uncovers rather than extends. But in principle, interpretations extend and do not uncover.

We learn from here a principle that can be seen in Maimonides in many places: one cannot punish unless the Torah writes that the thing is forbidden. And even if it is hinted at in the Torah and we extract it by interpretation, that is still not enough. Why? Because the interpretation may be extending rather than uncovering. If the interpretation were uncovering, then it would be telling me: this is written in the verse, there is a prohibition here, the verse warns against it. But if the interpretation extends, then it is not uncovering what is in the verse. The verse itself is not warning about this. The Sages learn from the spirit of the matter or something like that that it should be extended there too, but still we have no prohibition—it is not written in the Torah.

Therefore, for example, according to Maimonides, even for a law given to Moses at Sinai one does not impose punishment. Because a law given to Moses at Sinai is not written anywhere. The Torah does not warn about it. Even though in principle it is Torah law—it was given by the Holy One, blessed be He, it is not a rabbinic enactment. But you cannot punish for it because it is not written in a verse; the verse does not warn about it.

Now in his words there, Maimonides says: why is it really rabbinic? Because we do not derive punishments by inference. “We do not derive punishments by inference.” On this Nachmanides attacks him in his glosses, and Nachmanides says: what do you mean, “we do not derive punishments by inference”? That applies only to an a fortiori argument. We discussed that “inference” here means a fortiori argument. It applies only to an a fortiori argument. What does that have to do with all the other interpretive rules? On the contrary: “we do not derive punishments by inference” teaches against Maimonides. Because what do we see? That in the case of an a fortiori argument there is a rule that if a certain law is learned by an a fortiori argument, then one does not punish on its basis. That implies that in the case of the other interpretive rules, if a law is learned by them, then certainly one does punish. So we see that a law learned through the other interpretive rules is indeed Torah law; it is not rabbinic. The very rule that we do not derive punishments by inference is evidence against Maimonides, because the very fact that they found it necessary to single out the a fortiori argument shows that for the other interpretive rules, if I learn a law that way, people are punished on that basis—it is Torah law. Only in the case of an a fortiori argument do we not punish.

What would Maimonides answer to this? Maimonides would explain that “we do not derive punishments by inference” is said not only about an a fortiori argument, but about all interpretive rules. “Inference” does not mean only an a fortiori argument; it means any interpretive deduction. Why? As I said before: because an interpretive deduction extends what is written in the verse; it does not uncover what is inside the verse. And therefore one does not punish on the basis of such a deduction. Why not? Because you have no prohibition. So here you have the explanation why we do not derive punishments by inference—a fourth explanation according to Maimonides.

We said that Maimonides disagrees with Rabbi Yehuda He-Hasid. He says that the severity of punishment is indeed proportional to the severity of the transgression. So why, according to him, do we not derive punishments by inference? The answer is in Maimonides’ own words. We do not derive punishments by inference because in order to punish, you need a prohibition, and a deduction is not a prohibition, because deduction is an extension of what is written in the verse, not an uncovering of what is inside the verse. So if that is so, then it is not because the lighter punishment is insufficient for the more severe case, not because there is no proportion between the severity of the punishment and the severity of the transgression, but simply because there is a rule that one cannot punish a person unless he was warned. And when you learn something by interpretation, that is not a warning.

Yes. And in particular, regarding an a fortiori argument, the rule that we do not derive punishments by inference in an a fortiori argument may be correct according to all views, even according to those who say that this rule applies only to an a fortiori argument. But according to Maimonides, who says it applies to all interpretive rules, “we do not derive punishments by inference” means not only a fortiori argument but anything learned through interpretive principles. The rule that we do not derive punishments by inference is Maimonides’ main source for the idea that things learned by interpretation do not have the status of Torah law; they are rabbinic.

[Speaker E] Does he say that explicitly?

[Rabbi Michael Abraham] Yes, of course, he says that. “We do not derive punishments by inference.” In the second root.

[Speaker E] In the second root?

[Rabbi Michael Abraham] Yes. Therefore this assumption of Maimonides basically reveals to us a fourth direction for understanding this rule that we do not derive punishments by inference. And the point is a technical one. If you learn a certain law by inference, then it is not written in the Torah. If it is not written in the Torah, then you cannot say that I was warned. Maybe I didn’t know? Maybe I didn’t make that a fortiori argument? A thing written in the Torah—the assumption is that a person should know it. If the Torah warned, then you were warned. But if a thing is learned by interpretation, even if the interpretation is correct and everything is fine, still you were not warned. Therefore you cannot be punished.

By the way, according to this conception, there would also be room to say that things learned by interpretation are Torah law, not rabbinic, but one simply cannot punish for them. Since even a Torah-law matter, if it is not written in the form of a prohibition, one cannot punish for it because the person was not warned—not because it is not Torah law.

Think, for example, about the cases of “We have heard the punishment; from where do we know the prohibition?” Suppose a punishment were written in the Torah but I did not find a prohibition—for example in the case of one’s father’s wife. Suppose I did not find a prohibition, only a punishment. Then the prohibition of one’s father’s wife would still be Torah law, not rabbinic, because the Torah explicitly writes a punishment for it. It says so explicitly. But the punishment would have been given without a prohibition. Why, then, in the end is it not imposed? Why do you need a prohibition? You need a prohibition because without it, I could not punish even if the Torah had written the punishment. Why not? Not because it would not be Torah law—it would still be Torah law. But I would not have been warned. Without being warned, I cannot be punished. Not because it wasn’t Torah law, but because I was not warned.

And indeed, there are those who understand Maimonides to mean that things learned by interpretation are not rabbinic, “words of the Sages,” but Torah law. It’s just that one does not punish for them. They are a kind of Torah law that is not written in the Torah, and therefore you were not warned. If you were not warned, you cannot be punished.

Maybe I’ll give an implication; I have a few minutes left. In Maimonides there are basically two innovations. One is an interpretive innovation. His interpretive innovation says that something learned by interpretation does not uncover what is inside the verse but extends beyond what is written in the verse. That is an interpretive innovation. Maimonides also writes generally that every verse has only one interpretation. There are not two interpretations of the same verse. That one interpretation is what is called the plain meaning. Any other interpretation is not an interpretation of the verse. That is Maimonides’ interpretive method, also in the second root. He says: a verse never departs from its plain meaning. How does he understand that? Nachmanides attacks him on this too. Nachmanides says: what does it mean that a verse never departs from its plain meaning? It means that even if you offered sophisticated interpretations and exegetical readings and so on, in the end the plain meaning is still there as well. You cannot ignore the plain meaning. Maimonides does not read it that way. He understands “a verse never departs from its plain meaning” to mean that the only interpretation a verse has is its plain meaning. Anything other than the plain meaning is not interpretation. So what is it? An extension. Interpretation tells me what is in the verse. Anything else is not an interpretation of the verse; it does not uncover what is in the verse. It is an extension—something like the spirit of the verse. That’s one innovation of Maimonides.

The second innovation of Maimonides is that anything not found inside the verse is not Torah law. That is a legal innovation, not an interpretive one. The interpretive innovation says what is in the verse and what is not. The legal innovation says that if something is not in the verse, it is not Torah law. Torah law is only what is in the verse.

In principle, one could accept Maimonides’ first innovation without accepting his second. For example, one could assume that interpretation extends what is in the verse, but that it is nevertheless still Torah law, and maybe one can even punish on its basis. That is basically the view of almost all the earlier authorities: something derived by interpretation is fully Torah law, and punishment can be imposed on that basis. Maimonides’ view is very much a lone view.

An example: Ran in Nedarim 8. The Talmud there says that one who swears, “I will study this chapter,” has made a great vow to the God of Israel. He swears that he will study a certain chapter—he’ll study chapter two of Berakhot, say. Fine? “He has made a great vow to the God of Israel.” The oath takes effect. There, vow and oath are used interchangeably—the point is an oath. The oath takes effect. So the Talmud asks: but he is already sworn from Sinai. There is a commandment of Torah study. How can he swear to fulfill a commandment? An oath to fulfill a commandment does not take effect.

So the Talmud answers: no, since he can fulfill his obligation with reciting the Shema morning and evening, therefore this is not included in the commandment of Torah study, and so if he swears to study a certain chapter, the oath does indeed take effect. It is not considered an oath on an existing commandment.

Ran asks: what do you mean? Even if one fulfills the obligation with reciting the Shema morning and evening, then what is the whole concept of neglecting Torah study? And what about the verse “You shall teach them diligently to your children,” that the words of Torah should be sharpened in your mouth, and “when you lie down and when you rise up,” at every moment, and so on—where does all that come from? Clearly there is an obligation to study Torah all the time, not just morning and evening Shema.

[Speaker K] He fulfilled the basic obligation.

[Rabbi Michael Abraham] So Ran says that yes, there is indeed such a Torah obligation, but it is not explicitly written in the Torah. It is derived by interpretation: “You shall teach them diligently”—that the words of Torah should be sharpened in your mouth. Okay? That is interpretation. It is not explicitly written in the Torah. Therefore an oath takes effect regarding it. Now Ran writes there explicitly that it is Torah law. It’s not that the oath takes effect because it isn’t Torah law. “You shall teach them diligently” is Torah law; there is a Torah obligation upon you to study beyond a chapter in the morning and a chapter in the evening, and that obligation is a Torah obligation. But the oath still takes effect with respect to it. Why? What lies behind this? He accepts—not the opposite, there is punishment—he accepts Maimonides’ first innovation but not his second.

What does that mean? He says that interpretation extends beyond what is in the verse. What I learn by interpretation is not explicitly written in the verse. Okay? But he does not accept Maimonides’ second innovation. The status of what emerges by interpretation is Torah law. Therefore the charge of neglecting Torah study is, according to him, neglect of a Torah positive commandment.

Okay? The Rosh disagrees with him—it doesn’t matter now—but that is Ran’s view. It is neglect of a Torah positive commandment, not that there is no Torah law involved. And still the oath takes effect regarding it. Why shouldn’t it? He says that when the Talmud says “already sworn from Sinai,” what does that mean? It means matters about which you were sworn at Sinai, which are written in the Torah, and you then swore to fulfill them—your oath to do them does not take effect, because an oath to fulfill a commandment does not take effect, since you are already sworn. You are already sworn from Sinai to fulfill that commandment. So what is the point of swearing again about something you are already sworn to do?

To that Ran says: if Torah study beyond a chapter in the morning and evening is not included in the commandment of “when you lie down and when you rise up,” the commandment of Torah study, but is derived from the interpretation of “You shall teach them diligently”—and interpretation is extension, remember? It does not uncover what is in the verse—then what did I swear to at Sinai? I swore regarding verses. I received the Written Torah from the Holy One, blessed be He. What is in the verses—I swore to that. What is not—I did not swear to that. Now one is still obligated to fulfill what is not explicit as well, because of “do not turn aside” and other things. But from the standpoint of my oath, I swore to what the Holy One gave me. What did He give me? What is written in the Torah. If interpretation extends beyond what is written in the Torah, then it is Torah law—not that it is not Torah law—but since it is not included in the verse, the oath can take effect with respect to it. So I am not “already sworn from Sinai,” and therefore my oath does take effect regarding it.

There you have the implication for someone who accepts Maimonides’ first innovation—that the thing is not written in the Torah—without accepting his second innovation, that the thing is therefore not Torah law.

[Speaker O] In his view, the thing is Torah law, but it is not written in the verse, so the oath does not apply to it.

[Speaker E] That gives us a distinction between Maimonides’ two innovations. There are other distinctions too, but I won’t get into them here.

All right, we’ll stop here. That’s it for this semester. Whoever has exams—good luck, and in general, well, I don’t know, we’re heading out…

[Speaker O] …for summer break.