Lesson 7: Category 3 — The Ninth Root

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

The Ninth Root

One should count not the prohibitions and positive commands themselves, but the matters prohibited and commanded

On the relation between the command-verse and its content

This essay continues our discussion of the principles that belong to the third of the five categories we defined in the introduction: roots concerned with eliminating duplication. In the previous root we dealt with comprehensive commandments, and in the end we saw that, at least for Maimonides, he was not there trying to present a principle meant to prevent duplication. We noted there that the foundation of the matter lies in the ninth root, which lays down the basic principle that two commandments with overlapping content are not to be counted separately.¹ The ninth root is the subject of the present essay. The next essay, which will conclude our treatment of the roots in the third category, will discuss the sixth root. There Maimonides establishes a qualification to the principle set forth here: a prohibition and a positive commandment with overlapping content do not count as duplication, and therefore both are to be counted.

Maimonides’ discussion in this root is divided into two parts. In the first part he establishes that even when the Torah repeats the same commandment several times, we count only the act required or forbidden by those commands, and within the enumeration of the commandments this will be only one commandment. In the second part of the root Maimonides discusses a general prohibition, that is, one prohibitive verse from which several unrelated prohibitions are derived. In that case too we count only one commandment, but the context is different, since the contents are not overlapping.

Accordingly, the present essay is also divided into two parts. The first deals with the dispute between Maimonides and Nahmanides over lashes for a prohibition under one designation, and the second deals with a general prohibition.

Rabbi Daniel al-Babli, in Question 4 of Ma’aseh Nissim, and Rabbi Yerucham Fishel Perla, in his discussion of this root in the introduction to Saadia Gaon’s Sefer HaMitzvot, both raise the problem that these two parts seem, at first glance, to contradict one another. In the first part Maimonides says that we should follow the content of the commands and not their appearance in Scripture. In the second part, by contrast, he seems to focus specifically on the appearance in Scripture rather than on the essential content, where there are in fact several commandments. We will address this problem in Chapter B of the second part.

Part I: The dispute over the relation between lashes and the prohibition

Introduction

This root is very long, and therefore we will not quote it in full. Instead, we will discuss its main parts and consider the conclusions that emerge from them, as well as the assumptions hidden within them.

In the first part of his discussion, which deals directly with the subject of the root, Maimonides establishes that when the Torah repeats a command with the same content several times, we are to count all those verses as one command.

This principle is accepted by Nahmanides, Saadia Gaon, and Halakhot Gedolot. Yet within Nahmanides’ remarks there emerges a fundamental dispute with Maimonides over the question whether one can administer lashes several times for a prohibition under one designation. This dispute is not merely interpretive but above all a question in Jewish law, and as will become clear, it touches on the relation between the Torah’s commands and their content.

A. Maimonides’ opening

The division of the commandments into four kinds

Maimonides begins by dividing the Torah’s commandments into four categories:

Know that all the Torah’s commands and warnings concern four things: beliefs, actions, character traits, and speech.

• Thus, He commanded us to affirm certain beliefs, such as belief in divine unity, and to love and fear God (Positive Commandments 2-4). Or He warned us against affirming certain beliefs, as when He warned us (Negative Commandment 1) against attributing lordship to anything other than Him.
• Likewise, He commanded us to perform certain actions, such as offering sacrifices (Positive Commandments 27-28, 39-51, 55, 62-72, 76-77, 84) and building the Temple (Positive Commandment 20). And He warned us against certain actions, such as sacrificing to anything other than God and bowing to that which is worshipped besides Him (Negative Commandments 5-7).
• Likewise, He commanded us to conduct ourselves with certain character traits, such as compassion, mercy, charity, and kindness, as in the verse “You shall love your neighbor as yourself” (above, p. 55; Positive Commandment 206). And He warned us against certain traits, such as hatred, bearing a grudge, vengeance (Negative Commandments 302-305), bloodshed (Negative Commandment 292), and the other bad traits, as I shall explain.
• And He commanded us to utter certain statements, such as praising Him, praying to Him (Positive Commandment 5), confessing sins and transgressions (Positive Commandment 73), and the like. And He warned us against certain forms of speech, such as swearing falsely (Negative Commandments 61, 63, 249), tale-bearing (Negative Commandment 301), slander (end of Negative Commandment 286), cursing (Negative Commandments 315-318), and the like.

Maimonides lists here commandments that concern beliefs,² actions, character traits, and speech. He devotes a rather lengthy passage to these definitions, made up of several sentences, and clearly this is not accidental. He carefully notes, with respect to each category, both positive commandments and prohibitions, and gives examples of each. Precisely in light of all this, the question arises: why was this introduction needed at all for what follows? What is its connection to the content of the root and to Maimonides’ central claim in it?

Establishing the principle

Immediately afterward Maimonides formulates the principle of the root:

Once these matters are understood, it is fitting to count the matters that we are commanded to do or warned against, whether they are actions, speech, belief, or character traits. We do not look to the multiplicity of commands that came regarding that matter, if it is a commanded matter, nor to the multiplicity of warnings that came regarding it, if it is a forbidden matter, for all of them serve only as reinforcement.

In other words, the enumeration of the commandments contains the beliefs, actions, traits, and forms of speech that are commanded or forbidden to us, not the verses that direct us to them. Therefore, if the Torah commands us regarding one of these, and repeats that command in several different verses,³ we pay no attention to that. We count only the content of those verses—belief, trait, act, or speech—as one commandment in the enumeration of the commandments.

Notice that the opening phrase is “once these matters are understood.” That is: only after we have understood the division he presented above in detail can we understand the principle of the present root. Once again we see that Maimonides regards this introduction as the basis for his main determination in the root. Again we are left wondering why this introduction is necessary, and how it is connected to Maimonides’ claim here.

He later summarizes:

It has thus been explained that commandments are not multiplied by the multiplication of prohibitions or positive commands. It is already known that the command to rest on the Sabbath is repeated in the Torah twelve times (Exodus 20, 23, 31 four times, 34, 35; Leviticus 19, 23, 26; Deuteronomy 5). Would anyone who counts the commandments think to say that among the positive commandments, resting on the Sabbath is twelve commandments? Likewise, the warning against eating blood appears seven times (Leviticus 3; 7 three times; Deuteronomy 12 twice). Would any intelligent person think and say that the prohibition of blood is seven commandments? Surely no one could err in this. Rather, resting on the Sabbath is one positive commandment among the positive commandments (154), and the warning against eating blood is one prohibition among the prohibitions (184).

Maimonides gives here as an example that the command to rest on the Sabbath appears in the Torah twelve times, and the prohibition of eating blood seven times, and so on. In these cases, as Maimonides says, we are to count only one commandment regarding refraining from labor on the Sabbath, or regarding eating blood, and no more.

Maimonides then adds that sometimes repetition of a command comes in order to introduce something new, and in that case both commands are to be included in the enumeration. But there are also cases in which the repetition is only for the reinforcement of the same command, whether positive or negative. It is those cases that the present root addresses, and there we do not include more than one commandment in the enumeration.⁴

Two difficulties in this passage

Two difficulties arise in Maimonides’ discussion here.

1. The formulation of the root seems very cumbersome and indirect. Instead of simply writing that when a command is repeated we do not count it more than once, he writes:

The ninth root: it is not proper to count the prohibitions and positive commands themselves, but rather the things against which we are warned and those we are commanded to do.

He explains that it is not proper to count the prohibitions and positive commands, but that is precisely what we do count. Clearly, his intention is that we do not count the commands themselves but their content. If there are commands—whether prohibitions or positive commands—that appear several times, like the Sabbath prohibitions, we do not count twelve prohibitions regarding the Sabbath but only one. Why does this distinction have to be formulated as a question of command versus content? Why did he not simply write that when a command is repeated, we do not count it more than once?⁵

2. The second problem we already mentioned above: why does he devote so much space at the beginning to detailing the kinds of commands and warnings found in the Torah? This distinction belongs to the reasons for the commandments, not to the technical problems of enumerating them. Why, and in what way, is this division relevant to the claims of the root itself?

B. The reasons for the commandments and the enumeration of the commandments

A preface on the reasons for the commandments⁶

We have reached the conclusion that the purpose of Maimonides’ introduction is to provide proof for the principle presented in this root. To understand this, let us first introduce the distinction made by Rabbi Moshe Chaim Luzzatto between two components present in every commandment or transgression. In Derekh Hashem (part 1, chapter 4), he writes:⁷

All the commandments, positive and negative, are directed toward one purpose: to acquire for a person and strengthen within him one of the degrees of true excellence, and to remove one of the aspects of darkness and deficiency, whether by performing that positive commandment or by refraining from that prohibition.

The performance of a commandment has an evident purpose for a person: to fulfill his Creator’s command and do His will. He fulfills His will in two ways that follow from one another: first, by doing the very act that he was commanded to do; second, because through that act he is perfected in one of the degrees of perfection that is the product of that commandment.

Thus His blessed will is fulfilled, for He desires that a person should be perfected and come to enjoy His goodness.

Luzzatto points out that every commandment or transgression has two distinct components:
1. the essential improvement or corruption inherent in the commandment or transgression, because of which we were commanded or forbidden;
2. obedience or rebellion with respect to the command itself.

Put differently: whoever commits a transgression both damages something and disobeys God’s command. By contrast, whoever performs a commandment or refrains from a transgression both repairs something, or at least avoids damaging it, and obeys the command.

This claim is not trivial. For example, in Guide of the Perplexed III:31, Maimonides cites opinions that reject it:

Among people there are some to whom it is burdensome to assign a reason to any commandment, and they prefer that no commandment or prohibition be intelligible at all. What brings them to this is a sickness in their souls: they cannot articulate it and do not know how to say it. They think that if these laws were useful in this world and for that reason we were commanded in them, they would then seem to come from human reflection and rational deliberation. But if a thing has no intelligible meaning at all and brings no benefit, then surely it is from God, for human thought would never produce such a thing.

So far Maimonides is presenting the position of the “weak-minded,” who think that the commandments have no reasons—that is, they serve no purpose in the world or in the soul. Laws that make rational sense are, for them, a human creation; and they would also obligate even without a command. If so, in such matters the command itself was not needed at all.

Maimonides himself rejects this view outright, because it makes man more perfect than his Maker:

It is as though, in the eyes of these weak-minded people, man were more perfect than his Maker. For man says and does what serves some end, whereas God, according to them, does not do so, but commands us to do what does not benefit us and warns us against what does not harm us. Far be such a thing from Him. Rather, the matter is the reverse: the whole intention is to benefit us, as we explained from the verse, “for our good always, that He might preserve us alive as at this day.” And it says, “that all these statutes… they shall say: surely this great nation is a wise and understanding people.” It has thus made clear that even the statutes all indicate to the nations that they embody wisdom and understanding. For if there were something with no known reason, that brings no benefit and averts no harm, why should one who believes in it or acts upon it be called wise, understanding, and exalted, and why should the nations marvel at it?

He then concludes:

But the matter is undoubtedly as we have said: every one of these 613 commandments is either for the inculcation of a true opinion, the removal of a false opinion, the establishment of a proper social order, the removal of injustice, the training in good character traits, or the warning against bad character traits. Everything depends on three things: beliefs, character traits, and political conduct. The reason we need not count utterances is that the utterances the Torah urged us to say, or warned us against saying, are either part of social conduct, or serve to teach a true opinion, or serve to teach character traits. Therefore these three categories suffice for assigning a reason to every commandment.

Here too Maimonides returns to his view that all the commandments have purposes and reasons—that is, benefits brought by commandments and corruptions brought by transgressions. He also gives a list similar to the one we saw in our root, namely that these purposes fall into one of three categories: beliefs, character traits, or social order.

The connection between the reasons for the commandments and the enumeration of the commandments

If so, those “weak-minded” thinkers hold that the commandments have no reasons at all, and therefore no purpose—no production of benefit and no prevention of corruption—beyond obedience to God’s commands. On their view, every commandment has only one component: obedience to God. Every transgression likewise has only one component: rebellion, that is, disobedience to the command.

Maimonides, by contrast, as we saw also in Luzzatto, thinks that every commandment or transgression has two components: obedience or rebellion, and benefit or corruption.

We may add that according to the former view there is also no room for a hierarchy of severity among commandments. There can be no “lighter” and “more severe” commandments, since the content of the commandment—the corruption or benefit it produces—has no significance at all. A hierarchy of severity is based on the amount of corruption produced by the transgression under discussion. What damages more is more severe, and likewise with the importance of the improvement brought about by commandments. If all that exists in a commandment is obedience or rebellion, there is no room for any hierarchy of severity among commandments or transgressions.

Now, if commandments truly had no reasons, then one who transgressed a Torah command would not have damaged anything at all; he would merely have violated God’s utterance, as the discussion in Babylonian Talmud, Temurah 4b-5a, puts it. If that were the situation, then the number of commandments we would have to count would be the number of commands he violated. According to such a view, one who desecrates the Sabbath violates twelve commands, and therefore has nullified twelve positive commandments. On the conception that commandments have no reasons, and their whole point is only obedience to God, there is no basis for distinguishing among commandments by their content. Every time a person violates a command, that is a transgression, and the content of the command is irrelevant. Hence, if there are twelve overlapping commands to observe the Sabbath, one who desecrates the Sabbath has violated twelve commandments. Accordingly, on that view one should count twelve commandments of Sabbath observance in the enumeration of the commandments.

By contrast, according to Maimonides, every commandment has a reason and a purpose. On that approach, one who violates the prohibition of labor on the Sabbath also damages something—in belief, speech, character, or action—in addition to violating the commands. It is therefore clear that on this approach the essence of the transgression is also the content of the commandment and not only the command itself. That is why Maimonides rules that the prohibition of labor on the Sabbath is to be counted only as one prohibition. The enumeration of the commandments contains the aims of Jewish law, not its commands. For the “weak-minded,” there are no aims, and therefore the enumeration can refer only to the commands; duplication of content is irrelevant. For Maimonides, what determines things is the purpose of the commandment, and that is what is included in the enumeration. The repeated commands all point to that same content, and their duplication serves only to strengthen the commandment, as we will discuss below.

In fact, as we explained in our earlier essay, the enumeration of the commandments serves Maimonides as evidence for his position regarding the issue of the reasons for the commandments. If all those who enumerate the commandments agree that every prohibition or commandment that is repeated several times is counted only once, that is a sign that the commandments have reasons. If they had no reasons, then we would have had to count the commands and not the contents. That itself is evidence against the view of the “weak-minded.”

Returning to the explanation of the introductory remarks to the root

If so, Maimonides’ discussion at the beginning of the root of the different kinds of content, and his detailed elaboration of them, does indeed bear on the enumeration of the commandments, but it is meant as a preface to the technical issue of that enumeration. By pointing out that every commandment has a purpose, one that belongs to one of four categories, he is showing that the technical principle of the root is valid.

This is why Maimonides prefaces the root with such a detailed discussion of the reasons for the commandments and their purposes, thereby answering the second difficulty above. He wanted to explain that every commandment has some reason—whether the correction of a trait, or of speech, or of conduct, and so forth—because that is the basis of the principle discussed in this root. The detail is intended to convince us that for every commandment we examine, we will be able to identify a reason that belongs to one of those categories.

This also makes clear the cumbersome formulation Maimonides chose for expressing the principle of the root, thereby answering the first difficulty above:

The ninth root: it is not proper to count the prohibitions and positive commands themselves, but rather the things against which we are warned and those we are commanded to do.

Maimonides is saying that the principle of the root follows from the fact that we attend to the content of commands, not to the bare fact of command. As noted, that is the foundation of the technical principle being discussed here.⁷

We may add that Maimonides’ explanation for the repetition of commands—that they are meant to express the severity of the commandment—also has no place at all according to the view of the “weak-minded.” On their view there is no such thing as a more severe or a less severe commandment, and thus no sense in explaining such repetition in terms of severity. Indeed, on their view it is not even clear why there should be such repetitions at all. But that problem is swallowed up within the more general difficulty they face with the very existence of commandments, a problem Maimonides addresses in the Guide of the Perplexed.

A remark on the closing paragraph in the Guide of the Perplexed

At the end of the chapter quoted above, after discussing the reasons for the commandments, Maimonides writes the following sentence:

The reason we need not count utterances is that the utterances the Torah urged us to say, or warned us against saying, are either part of social conduct, or serve to teach a true opinion, or serve to teach character traits. Therefore these three categories suffice for assigning a reason to every commandment.

In our earlier essay we explained that this paragraph deals with the enumeration of the commandments, and that its meaning is what we saw here: from Maimonides’ view that all commandments have reasons it follows that one should not count the utterances—that is, the commands, namely the verses in the Torah—but only the contents, which belong to beliefs, character traits, or social conduct. The Torah’s repetition of several commands is an act of urging us on, “that the Torah urged us,” to do them—what our root calls reinforcement.

But now it seems that we should retract that interpretation. Maimonides’ point there is that in the Guide he is speaking of three categories rather than four, unlike our root. What is missing is the category of commandments concerning speech. In that sentence he explains that this category is not relevant there, because commandments concerning speech are not a separate type of purpose but only a different mode of performance. Even those commandments aim at one of the other three categories—beliefs, character traits, and conduct—and therefore he ignores it there.

Even so, it still seems that our explanation of Maimonides’ words in the ninth root remains sound.⁸

Why does the Torah repeat commands?

We noted that Maimonides explains that there are cases in which we do nevertheless count each of the repeated commands, namely when the Sages explicitly determined in the Talmud that a given command contains an additional content different from the others. In such a case, even though the verse appears to be a repetition, we count it as a separate commandment.

Maimonides says that from an interpretive standpoint it is preferable to find new content in a verse rather than to read it as mere repetition, but this can be done only where the Sages have done so. His principal innovation is that there is also a possibility that some verses genuinely contain no new content at all, and are present only in order to reinforce the force of the commandment.

To be sure, even in such cases it is sometimes possible to explain that the verse came to teach some particular detail within the commandment under discussion, or a rule concerning another commandment, and then there is no reason to count it separately because it is included within those. There are also cases of repetition with no novelty at all, intended only to teach that the commandment in question is severe. In all three of these cases, the command is not to be counted separately in the enumeration of the commandments.

The “volume” a topic occupies in the Torah as an index of severity

Maimonides’ remarks here are based on the assumption that a command repeated several times is more severe. That assumption is difficult, for we find very severe commands that are not repeated so many times. For example, the prohibition of murder, one of the gravest transgressions, and surely graver than Sabbath observance or the prohibition of eating blood, is not repeated as many times as those commandments are.

A parallel difficulty arises in Rabbi Elchanan Wasserman’s Kuntres Divrei Soferim (sec. 1, no. 20; see our essays on the first and second roots). There he adduces several proofs that laws derived by rabbinic exposition are lighter than laws written explicitly in the Torah. His explanation is that there is a principle that the amount of space a matter occupies in the Torah reflects its severity. Therefore, if a law is only hinted at in the Torah, that is, derived indirectly from the text and not written explicitly, it occupies little space and is therefore less severe. His proof is a passage cited by Rashi on Genesis 24:42:

“And I came today”—today I set out and today I arrived; from here we learn that the earth contracted for him. Rabbi Aha said: The conversation of the servants of the patriarchs is more precious before the Omnipresent than the Torah of the sons, for the section concerning Eliezer is repeated in the Torah, whereas many fundamental laws were given only by way of hint.

But the same difficulty applies there as well. We find several very serious topics that are “like mountains hanging by a hair,” as the Mishnah says in Babylonian Talmud, Chagigah 10a:

The release of vows floats in the air and has nothing to support it. The laws of the Sabbath, festival offerings, and misuse of consecrated property are like mountains hanging by a hair, for they are scant in Scripture but abundant in laws. Civil law, Temple service, purity and impurity, and forbidden sexual relations have what to support them, and they are the essential body of the Torah.

It is hard to say that the story of Eliezer, Abraham’s servant, is more important than “You shall not murder,” or than the laws of the Sabbath and misuse of sacred property.

We are therefore compelled to refine the definition somewhat. As Maimonides writes here, the amount of space a section occupies in the Torah is intended to reinforce the commandment or prohibition. When do commandments or prohibitions require reinforcement? When they are severe. But that is not sufficient, because if the public already understands their severity, reinforcement is unnecessary. We must therefore add another condition: there must be a reasonable concern that the public will not properly perceive their severity and may come to treat them lightly. The criterion, then, is this: the amount of space a commandment or section occupies in the Torah is determined by the gap between its importance and the way the public is liable to perceive it.

Hence, where there is a strong concern that people will adopt a dismissive attitude, the commandment will occupy much space even if the prohibition is not especially severe. And conversely, if the prohibition is very severe, it may occupy much space even if the public does understand that something important is at stake.

For example, the gravity of “You shall not murder” is obvious to everyone, and therefore the Torah does not find it necessary to repeat it over and over again. But regarding Sabbath or eating blood, the Torah feared that their gravity would not be properly understood, and therefore repeated them several times. Thus the “volume” a matter occupies is not an exclusive measure for comparing the severity of commandments or prohibitions; it is a measure of the Torah’s perceived need for reinforcement.

Of course, all this is valid only according to Maimonides, who sees a purpose in every commandment, and therefore has room for seeing different levels of severity among different commandments. From that one can understand the significance of the “volume” a commandment or prohibition occupies, and in our case, the number of repetitions. According to the “weak-minded,” none of this has any place, as we already noted.

A general remark on Maimonides’ treatment of this root

It is worth noting that throughout the discussion Maimonides does not cite proofs for his positions regarding the enumeration of the commandments. He only explains them and says that no enumerator of the commandments disagrees. Presumably one could bring proof from the total number of commandments that would result if each such command were counted separately, but Maimonides himself does not mention this. One could also have adduced the interpretive proof from the midrash on Rabbi Simlai, which Maimonides cited in the introduction and in the third root. If indeed each commandment tells a bodily organ, “Perform this particular commandment with me,” then clearly each of the 248 positive commandments addresses a different organ among the 248 organs. Identical commandments cannot address different organs. Maimonides does not bring this proof either.

Perhaps, since Maimonides did not see anyone who disagreed with him on this root, he saw no need to trouble himself with proofs.

C. The legal meaning of repeated commands

Introduction

So far we have assumed that duplication and repetition are intended to express the severity of the prohibition or commandment in question. Does that have any legal expression? Is Maimonides dealing only with the technical issue of enumerating the commandments, or is he also laying down a rule that applies to lashes and punishment? Put differently: when a command is repeated, do we flog the offender according to the number of commands, or are lashes determined by the number of prohibitions included in the enumeration of the commandments? This is the question of the present chapter.

The proof from the passage in Pesachim

Maimonides brings proof for his position from Babylonian Talmud, Pesachim 23b-24b:

A certain scholar sat before Rabbi Shmuel bar Nahmani and said in the name of Rabbi Yehoshua ben Levi: From where do we know that with all prohibitions in the Torah, just as they are forbidden to eat, so too they are forbidden to derive benefit from them? And what are they? Leaven on Passover and the ox condemned to stoning. From where do we know this? …

The Talmud seeks a source that every food prohibition is also a prohibition on deriving benefit. Later Rav Pappa brings a source from sacrificial meat that became impure:

Rather, Rav Pappa said: From here: “The flesh that touches anything impure shall not be eaten; it shall be burned in fire.” Why must Scripture say, “shall not be eaten”? What does it teach? If it is not needed for the case itself, for that is already derived by an a fortiori inference from the lighter case of tithe… why then say, “shall not be eaten”? If it is not needed for the case itself, apply it to all prohibitions in the Torah; and if it is not needed for the prohibition of eating, apply it to the prohibition of benefit…

Since there is already a source that prohibits eating such meat, by analogy from tithe, the Talmud understands that the additional verse comes to teach the prohibition of benefit for all other prohibitions.

At this point Ravina asks Rav Ashi:

Ravina said to Rav Ashi: But perhaps it comes to make one liable for transgressing two prohibitions? Did Abaye not say: If one ate a putita, he is flogged four times; an ant, five times; a hornet, six times!

That is, Ravina suggests that this extra prohibition need not be redirected to another subject, namely the prohibition of benefit. It can be read in its plain sense, since it concerns eating and not benefit, meaning that it adds another prohibition regarding eating. If so, one who eats impure sacrificial meat would transgress two prohibitions.

Rav Ashi answers:

Wherever a verse can be interpreted, we interpret it, and we do not establish it as an extra prohibition.⁹

That is, there may indeed be cases in which a verse is meant only to add another prohibition, but where it is possible to interpret it as teaching something else, that is preferable to leaving it superfluous in content.

From this passage we learn two important innovations:

1. There is such a thing as extra prohibitions, that is, several prohibitions with the same content. Such prohibitions come to reinforce the prohibition, as Maimonides explained above, but in such a case we count only one prohibition. Maimonides emphasizes that this is true even where the Sages say that the duplication is “so that one transgresses two prohibitions.” Even then, we count only one prohibition in the enumeration of the commandments. The statement that there are “two prohibitions” only means that the prohibition is severe. By contrast, the Torah repeats itself twelve times regarding Sabbath, and there the rabbinic literature does not say that this is so that one should transgress twelve prohibitions. So there the duplication is certainly extra. Below we will discuss the difference between these cases.

2. It is preferable to interpret every verse as introducing a new command, rather than as an extra prohibition. Although even the extra prohibition introduces something, since it teaches that the prohibition is more severe, still it is preferable to seek a substantive novelty in content—and usually in that case it will also be counted as a separate commandment. Only when we have no alternative do we interpret a verse as an addition whose role is merely to reinforce an existing commandment.

From Maimonides’ language it seems that he uses the passage in Pesachim to prove both of these elements in his position.

A surprising conclusion in Maimonides’ approach

At first glance Maimonides’ words are very puzzling. The Talmud raises the possibility that the verse was written in order to add another prohibition concerning eating sacrificial meat that became impure. The Talmud itself compares this to one who eats a putita, an aquatic creeping creature, or an ant, a land-creeping creature, who receives separate lashes for each extra prohibition.

What follows from this is that when there are repeated prohibitions, one should seemingly receive forty lashes for each one, as in the case of putita or an ant. According to Ravina’s suggestion, one who ate impure sacrificial meat should have received eighty lashes. If so, the duplication in the Torah has legal significance, not only conceptual significance. The duplication tells us not only that the prohibition is severe; it instructs us to flog him twice.

If so, when Maimonides says that the duplication introduces nothing and only indicates severity, he seems to mean that it introduces no different legal category for the commandment itself, but it still has a legal consequence. The rule that a duplicated commandment is not counted as two applies only to the enumeration of the commandments. With respect to lashes, however, there would be two separate prohibitions, each of which requires lashes.

If that were correct, it would seemingly follow that one who desecrated the Sabbath in the presence of witnesses and after formal warning would be liable to die twelve times, since there are twelve commands on the matter—though there the case concerns a positive commandment, and see below. Of course that is impossible with respect to capital punishment, but with respect to lashes it is certainly possible, and perhaps even with respect to a sin-offering for inadvertent Sabbath desecration. But is that really what Maimonides means? In a prohibition whose punishment is lashes, are we indeed liable for lashes for each appearance of the prohibition in the Torah, even if it is not counted separately in the enumeration of the commandments? This is a rather surprising conclusion, and it does not appear to withstand scrutiny in actual law.

In the terms we used above, the conclusion would be that the commandments are counted according to their reasons, but punishment is determined by the commands, and therefore there is a separate punishment for every command. Yet from Maimonides’ own language it is clear that this is not his intention.

According to Maimonides, one is not flogged for duplication

When we examine Sefer HaMitzvot and the Mishneh Torah, it becomes clear that this is not the case. For example, Maimonides mentions here in the root the prohibition of eating blood, which is repeated seven times. It should be noted that although eating blood is punishable by excision when done deliberately, that is only with regard to the life-blood, the blood released during slaughter. For limb-blood, deliberate violation incurs lashes. According to the line of thought sketched above, one who deliberately eats limb-blood should receive seven sets of forty lashes, because there are seven commands. Yet from the plain language of the decisors that does not appear to be so; see Maimonides, Negative Commandment 184, and Sefer HaHinukh, commandment 148.

In fact, the matter is stated explicitly later in Maimonides’ discussion of our root:

You will not find them saying “he receives two sets of lashes” or “three sets of lashes”; for if that were the case, each would have to be counted separately. For no one receives two sets of lashes for one designation, as is clear from what is well known in the Talmud, in Babylonian Talmud, Makkot 13a, 14a, 18a, and Hullin 82a, 102b, and elsewhere. Rather, one receives two sets of lashes for two designations—that is, for two matters, each of which was the subject of a separate warning. This is the difference between the expression “he transgresses because of this and because of that” and the expression “he is flogged twice” or “three times.”

Maimonides claims that wherever there is double liability to lashes, one must also count two prohibitions. But where we count only one prohibition and ignore the duplication for purposes of the enumeration of the commandments, the punishment is likewise only one set of lashes. So he states explicitly that if we count only one prohibition, one is flogged only once, even if the command is repeated several times in the Torah.

We will explain below his distinction between the two kinds of rabbinic expressions—”he transgresses because of this and because of that,” as opposed to “he is flogged twice or three times.” We will also later see additional evidence that according to Maimonides one does not receive lashes for duplication.

The parallel to the principle of the uniform legal basis

In our essays on the thirteenth root and the fourth root, we noted that every rule in Jewish law has one and only one basis, what we called the principle of the uniform legal basis. We derived this from the hermeneutical rule known as “the common denominator.” From there we inferred that whenever one rule appears in several different legal contexts, it always stems from the shared element among them and not from what is particular to each one.

As an example, we argued there that punishments are imposed only for prohibitions, and only when they involve an act. It follows that punishments are not imposed for the damage produced by each specific transgression, but for the feature common to all acted prohibitions. What is common to them? In all of them there is active rebellion against a command. Therefore it would seem that punishment in Jewish law is imposed for rebellion against the command and not for the damage produced by the transgression.

That conclusion appears to parallel what we see here. If so, then indeed one should impose lashes for every command that appears in the Torah. The reasons and contents would be relevant only to the enumeration of the commandments and not to the transgressions and punishments attached to them. But as we saw above, Maimonides himself does not hold this. In his view, one is not flogged separately for every command, and the principle of this root applies to lashes as well, not only to the enumeration of the commandments.

Still, one can reject the inference and say that even if Maimonides holds that in cases of duplication one receives only one set of lashes, the lashes may still be for rebellion against the command rather than for the damage. His view would simply be that here there are not several commands but rather a repetition of the same command, intended only to teach and sharpen the severity of the matter. See more on this below.

Two kinds of duplication in prohibitions

There are additional examples in the Talmud of cases in which a person performs one act and incurs several sets of lashes. For example, the Mishnah in Babylonian Talmud, Makkot 21b, says:

One may plow one furrow and become liable on account of eight prohibitions: if he plows with an ox and a donkey together, and they are consecrated animals, in a vineyard sown with mixed species, in the Sabbatical year, on a Festival, while being a priest and a nazirite in a cemetery.

Some of the prohibitions here arise from several acts being done simultaneously, such as plowing and entering a cemetery. But some are prohibitions violated by the very same act, such as plowing on a Festival, in the Sabbatical year, and in mixed species. The one act of plowing itself makes him liable on account of several prohibitions.

Is this case similar to the one we are discussing? Quite clearly not. There the prohibitions have entirely different content, such as Sabbatical year and Festival. When a person plows on a Festival during the Sabbatical year, he happens to violate two prohibitions at once, but there is no overlap in content between them. It is only an accidental overlap. In our cases, by contrast, the overlap is essential. Whenever one violates one of them, one also violates the other, and vice versa. That is the kind of duplication Maimonides is discussing in this root.

In accidental overlap, when the act is done deliberately, one certainly receives lashes for each prohibition, assuming proper warning was given for all of them. But with essential overlap—where the contents of the prohibitions themselves overlap—is there really room to say that one receives lashes for each prohibition?

At first glance another example may be found in Babylonian Talmud, Shabbat 74b:

Rava said: One who makes a barrel is liable for seven sin-offerings; one who makes an oven is liable for eight sin-offerings. Abaye said: One who makes a basket is liable for eleven sin-offerings, and if he sews its mouth he is liable for thirteen sin-offerings.

There the Talmud does not spell out the prohibitions, but the commentators do. Rashi shows that this is a completely different case: there is being discussed in several violations done one after another, not one and the same act. When a person makes an earthenware barrel on the Sabbath, he performs a series of prohibited labors in sequence: grinding the clods, selecting out the coarse parts, kneading, smoothing, kindling, and cooking. These are acts that follow one after another in the process of making the vessel. Such cases therefore are not relevant to our discussion at all.

The comparison to putita and the ant

Let us now penetrate the passage in Pesachim itself. There the Talmud compares the duplication of the prohibition of eating impure sacrificial meat to putita and an ant. What is the nature of the duplication in putita and an ant? Is it accidental or essential? Do we have different commands with the same content, or a chance convergence of commands with different contents, all violated by one act?

Regarding the putita, Rashi explains there:

He receives four sets of lashes: one prohibition for an aquatic creeping creature in Torat Kohanim, that is, Leviticus, one in Deuteronomy, and two prohibitions written in Torat Kohanim regarding creeping creatures generally: “Do not make yourselves abominable with any swarming creature that swarms, and do not defile yourselves by them.” There it does not say “on the earth,” and therefore it includes both aquatic and terrestrial creeping creatures. That makes four.

So in the case of putita, he is flogged twice for an aquatic creeping creature, and twice for creeping creatures in general. There is here a case of true overlap—two separate commands regarding the very same prohibition, one in Leviticus and one in Deuteronomy—but also accidental overlap, between the category of creeping things in general and that of aquatic creeping things.

Likewise regarding an ant Rashi writes:

He receives five sets of lashes: the two general prohibitions regarding creeping things, one prohibition “Every swarming creature that swarms upon the earth is an abomination; it shall not be eaten,” one prohibition “All swarming creatures that swarm upon the earth—you shall not eat them, for they are an abomination,” and one prohibition “Do not defile yourselves with any swarming creature that moves upon the earth.”

Here he receives two sets of lashes for creeping creatures in general and three more for land-creeping creatures.

At least some of these overlaps are essential. For example, there are several prohibitions regarding aquatic creeping things and land-creeping things, and one sees that lashes are given separately for each. Even the accidental overlaps are not entirely accidental: for example, in putita he is flogged both for an aquatic creeping thing and for creeping creatures generally, and the latter includes the former. So even between those there is an overlap of content.

In any event, it is clear that at least some of the overlaps here are essential, in the sense of complete overlap in the content of the duplicated commandments, and yet the Talmud says that one is flogged for each of them separately. This certainly accords with the conclusion we sketched above, that Maimonides treats repeated commands as separate prohibitions, and that his innovation in this root concerns only the technical context of enumerating the commandments, and nothing more.

Yet Maimonides rules this Talmudic passage as law, in Laws of Forbidden Foods 2:23-24:

23. If a creature is at once a flying swarming thing, a water swarming thing, and a land swarming thing—for example, if it has wings, walks on the ground like other swarming creatures, and multiplies in water—then one who eats it receives three sets of lashes. If, in addition, it belongs to the kinds that are generated in fruit, he receives four. If it belongs to the kinds that are fruitful and multiply, he receives five. And if, beyond being a flying swarming thing, it also belongs to the category of non-kosher birds, he receives six sets of lashes: for a non-kosher bird, for a flying swarming thing, for a land swarming thing, for a water swarming thing, for moving on the earth, and for the worm of fruit. This is so whether he ate the whole creature or an olive-sized portion of it. Therefore one who eats a flying ant that grew in water receives five sets of lashes.

24. If he crushed ants and then added one whole ant to them until the whole came to an olive’s bulk and ate it, he receives six sets of lashes: five on account of the one ant and one on account of an olive’s bulk of carcass of impure creatures.

If we look closely, the cases Maimonides discusses are different from those brought by Rashi. Maimonides opens with a case in which a person ate a creature that satisfies all the criteria of a water, flying, and land swarming creature, and he says that such a person receives three sets of lashes. He then adds cases in which one is flogged for several non-overlapping prohibitions. In none of Maimonides’ prohibitions is there a case of complete overlap like the one we saw in Rashi.

It appears from this that Maimonides interprets the Talmud differently from Rashi. When the Talmud says that one who eats a putita receives four sets of lashes, it does not mean lashes because of duplication. It is closer to the case we saw above in Makkot of the plower who incurs eight sets of lashes. These are prohibitions with different contents, not duplications.

Again we find Maimonides stating this explicitly in Sefer HaMitzvot, Negative Commandment 179:

The 179th prohibition is the warning against eating any creeping creature whatsoever, without distinction between flying, aquatic, or terrestrial creeping creatures. This is His statement, “Do not make yourselves abominable through any swarming creature that swarms, and do not defile yourselves by them and become impure through them.” This is an independent prohibition and one receives lashes for it. It resembles a general prohibition. Therefore, one who eats any land-creeping creature receives two sets of lashes: one because of “Every swarming creature that swarms upon the earth is an abomination; it shall not be eaten” (Negative Commandment 176), and one because of “Do not make yourselves abominable through any swarming creature that swarms.” One who eats any flying creeping creature likewise receives two sets of lashes: one because of “Every flying swarming creature is unclean to you; they shall not be eaten” (Negative Commandment 175), and one because of “Do not make yourselves abominable through any swarming creature.” If one ate a single living creature that both flies and walks on the ground, so that it is both a flying and a land creeping creature, he is liable to four sets of lashes. If, in addition, it is also an aquatic creeping creature, he is liable to six. The fifth is because of the non-kosher fish, regarding which it says, “From their flesh you shall not eat” (Negative Commandment 173), and the sixth because of “Do not make yourselves abominable through any swarming creature that swarms,” since that includes aquatic creeping creatures as well. We have no written prohibition for aquatic creeping creatures other than “Do not make yourselves abominable through any swarming creature that swarms.”

So far Maimonides gives the law, as we also saw in his code. There is, however, one difference: here he makes one liable under the general prohibition of eating creeping creatures in addition to liability for eating a specific creeping creature of the air, land, or water. This suggests that a general prohibition and a specific prohibition are counted separately and one is flogged separately for each.

In the code, however, as we saw above, the matter is explicit otherwise. There he does not impose lashes on account of the general prohibition. It should also be noted that he does not mention the general prohibition in the opening of the laws of forbidden foods. It seems that as a practical ruling he holds that even a general prohibition is not counted and does not incur lashes if it comes in addition to a specific prohibition. Perhaps this is because the general prohibition concerning creeping things is actually a kind of general prohibition, and therefore one is not flogged for it, as we shall see in Part II. Or perhaps it is because of overlap, since he is already being flogged for the specific prohibitions. In any event, in the code it seems that a general prohibition that introduces nothing beyond several specific prohibitions is neither counted nor does it incur lashes. Here in Sefer HaMitzvot, by contrast, it appears not to be duplication, either for the enumeration of the commandments or for lashes.

At this point Maimonides continues and explains that Rashi’s interpretation of the passage in Makkot is mistaken:

In these principles they said at the end of Makkot 16b: One who ate a putita receives four sets of lashes, an ant five, a hornet six. This is the interpretation that all whom I have heard or seen took in explaining this passage. But it is not a true interpretation. It cannot stand or cohere except by overturning the true principles that have been demonstrated from the language of the Talmud. For if you examine what we said above, you will see that they make him liable for three sets of lashes from one prohibition alone, namely, “Do not make yourselves abominable through any swarming creature that swarms.” But this has already been shown to be impossible: one never receives two sets of lashes for one prohibition, as they made clear in Hullin 82a, 102b. We have already set forth this principle several times (Ninth Root, p. 159; Negative Commandments 26, 60, 94, 98, 143, 161, 170). I will later bring you examples of this as well (Negative Commandments 195, 318-319).

He notes that all the explanations he had seen were like this “mistaken” interpretation, namely the interpretation we saw in Rashi. Indeed, the commentaries on the Laws of Forbidden Foods explain that Maimonides’ opinion is singular, against the Geonim and against the other early authorities, who apparently do not rule like him.

Maimonides then gives his own reading of the Talmud:

The correct understanding, which should neither surprise nor repel you, is that one who eats a creature that is itself both a flying swarming thing, a water swarming thing, and a land swarming thing receives only three sets of lashes: one because of flying swarming thing, for that has an explicit prohibition; one because of land swarming thing, for that too has an explicit prohibition; and one because of “Do not make yourselves abominable,” which also prohibits aquatic swarming things under the general expression “any swarming creature that swarms.” If one eats only a land swarming thing, he receives one set because of land swarming thing; likewise for a flying swarming thing, one set because of flying swarming thing; and for an aquatic swarming thing alone, one set because of “Do not make yourselves abominable through any swarming creature that swarms.” The fact that this prohibition also includes land swarming things does not make him liable twice for a land swarming thing.

And finally he summarizes the general principle:

For if we had a thousand explicit prohibitions, all concerning land swarming things, he would receive only one set of lashes, because all of them are repetitions regarding one and the same matter. Even if Scripture were to say a thousand times, “Do not eat a land swarming thing,” “You shall not eat land swarming things,” “A land swarming thing shall not be eaten,” he would incur only one set of lashes. See whether those who established this mistaken principle would say that one who wears a wool-and-linen mixture receives two sets of lashes because two explicit prohibitions were stated regarding it. I have never seen them think this; indeed, they would reject it if someone else said it. Yet they do not reject themselves when they say that one who eats a land swarming thing, or a flying swarming thing, is flogged twice—once because of the explicit prohibition regarding it and once because of “Do not make yourselves abominable.” The matter is so clear that it should not escape even a foolish youth.¹⁰

Here Maimonides states explicitly the principle we had inferred from careful reading: one never receives several sets of lashes for the same counted prohibition. Duplication does not change the number of lashes. Just as we do not count repeated prohibitions more than once, we also do not flog for them more than once.

As noted, the plain sense of the Talmud suggests that duplication does indeed generate additional lashes even where the Sages say it is “to transgress two prohibitions,” since the examples they gave were putita and an ant, where one receives four and five sets. We will now see that there are indeed early authorities who disagree with Maimonides and think that duplication is meant to introduce lashes. As we will see, this is also the approach of Nahmanides.

The passage in Bava Metzia: neshekh and tarbit, robbery and withholding a laborer’s wages

A structure similar to what we saw in Pesachim appears at the beginning of the chapter Eizehu Neshekh in Babylonian Talmud, Bava Metzia. The Torah forbids taking interest on a loan, saying in Leviticus 25:35-37:

If your brother becomes poor and his means fail with you, then you shall support him, whether stranger or resident, that he may live with you. Do not take from him neshekh or tarbit, but fear your God, that your brother may live with you. Your money you shall not give him with neshekh, and your food you shall not give him with tarbit.

Two terms appear in these verses: neshekh and tarbit. Their relation is not clear from the context. Are they synonymous, or two distinct concepts? From the second verse it would appear that neshekh refers to money and tarbit to food.

Indeed, at first glance the Mishnah in Babylonian Talmud, Bava Metzia 60b seems to define them in that way:

What is neshekh and what is tarbit? What is neshekh? If one lends a sela for five denarii, or two se’ahs of wheat for three, this is forbidden because it bites. And what is tarbit? Increase in produce. How so? He bought wheat from him at the rate of one gold dinar per kor, and that was the market price. Later wheat rose to thirty dinars. He said to him: Give me my wheat, for I wish to sell it and buy wine with the proceeds. He answered: Your wheat is now owed to me at thirty, and here is wine with me in exchange for it—but he does not actually have wine.

The Talmud, however, concludes that despite first impressions, the Mishnah must be read differently. In the end there is no difference between these two terms. They merely describe two different results of an interest-bearing loan: neshekh describes the fact that the borrower is bitten and loses, while tarbit describes the fact that the lender’s property increases.

After several attempts to see whether one can have neshekh without tarbit or tarbit without neshekh, the conclusion is that this never happens. Whenever the borrower is bitten, the lender profits, and vice versa. The Talmud therefore concludes:

Rather, Rava said: You never find neshekh without tarbit, nor tarbit without neshekh; Scripture separated them only so that one transgresses two prohibitions.¹¹

In any event, the conclusion is that neshekh and tarbit were written in order that one transgress two prohibitions. Rashi likewise writes on those verses, Leviticus 25:36:

Neshekh and tarbit—the Sages regarded them as one thing, but Scripture separated them so that one transgresses two prohibitions.

The Talmud then turns to ask why Scripture needed to write a prohibition of interest at all, since the Torah already contains prohibitions of robbery and overreaching. The Talmud concludes that the prohibition of interest could not have been omitted, nor the prohibition of overreaching. But the prohibition of robbery is indeed redundant:

Then let the Merciful One not write the prohibition of robbery, and let it be derived from those others. What objection could you raise? If you say: interest is unique because it is novel—overreaching proves otherwise. If you say: overreaching is unique because the victim does not know and waives—interest proves otherwise. The law then returns, and the common denominator is that both involve taking from another; so I will also bring robbery under them.

So robbery can be learned from interest and overreaching. If so, why was the prohibition of robbery written at all?

They said: Indeed so. Then why do I need the prohibition of robbery? For withholding the wages of a laborer. But withholding a laborer’s wages is explicitly written: “You shall not oppress a hired laborer who is poor and needy.” Rather, so that one transgresses two prohibitions. Then let us establish it with regard to interest and overreaching, so that one transgresses two prohibitions there as well. It is a matter learned from its context, and the context there is that of the laborer.

The Talmud explains that the prohibition of robbery was written in order to teach a prohibition against withholding a laborer’s wages. And although there is already an explicit prohibition to that effect, the verse was written so that withholding wages should involve transgressing two prohibitions.

At this point Tosafot, on the words “so that one transgresses two prohibitions,” raises an obvious question:

One may ask: Why not establish it regarding robbery itself, so that one transgresses two prohibitions? The answer is that one does not receive lashes for the prohibition of robbery because it is repaired by a positive commandment. But when we establish it regarding withholding a laborer’s wages by the method of “if it is not needed,” then one does receive lashes properly.¹²

Tosafot is puzzled why the Talmud takes the prohibition of robbery and applies it to withholding a laborer’s wages in order to teach that there is another prohibition there. If we are already saying that the verse teaches an additional prohibition, why not apply it to robbery itself and say that robbery contains two separate prohibitions?

Tosafot explains that the duplication cannot be referring to robbery, because robbery does not incur lashes, since it is a prohibition repaired by a positive commandment—that is, the prohibition is remedied through the commandment to return the stolen money to its owner. Therefore one is forced to interpret the duplication as teaching about withholding a laborer’s wages rather than robbery itself.

It emerges clearly from Tosafot that duplication of prohibitions has no meaning unless it leads to duplication of lashes. That is, if the additional prohibition does not generate an additional liability to lashes, the duplication has no point. Hence whenever the Sages say “so that one transgresses two prohibitions,” their meaning is that he is flogged twice, in direct contradiction to what we saw above in Maimonides.

Another conclusion that follows is that with respect to positive commandments, as well as any prohibition that does not incur lashes, there is no room at all for duplication, since positive commandments carry no punishment. Rabbi Yerucham Fishel Perla, in his remarks on the sixth root, cites similar statements from Tosafot HaRosh, quoted in Shitah Mekubetzet to Babylonian Talmud, Bava Batra 112b, who likewise assumes that there is no point to duplication of prohibitions where it does not lead to lashes.

Now, at the end of the passage quoted above, Maimonides distinguishes between two kinds of rabbinic statements. If the Sages say that one transgresses such-and-such prohibitions or positive commandments, the meaning is that there is duplication that is not separately counted. He gives several examples of this, such as: “Whoever has no fringes on his garment transgresses five positive commandments” (Babylonian Talmud, Menachot 44a). For such duplications there are also no lashes. Only when the Sages say that one is flogged twice or three times must each prohibition be counted separately, because one is flogged separately for each. Our root, of course, deals only with the first case. In that passage Maimonides also gives a number of examples of duplication of the first type, including both positive commandments, such as fringes, and prohibitions, such as overreaching a convert. This too is evidence for his view that duplication of this type does not come to introduce additional lashes and therefore does not require additional lashes.

How would Maimonides explain the movement of the Talmud? Tosafot’s question cries out: why did the Talmud not establish the prohibition of robbery with regard to robbery itself? It is possible that Maimonides had a different text here, as we shall now see in the Ritva.

The Ritva’s approach

As noted, the Talmud there asks: “Then let us establish it with regard to interest and overreaching.” Tosafot asks why it did not establish it regarding robbery itself and instead turned to interest and overreaching. But the Ritva there has a different text in the Talmud:

The correct text is: “Then let us establish it regarding robbery.” That is the plain meaning of the verse. Whoever reads “let us establish it regarding interest and overreaching” is very mistaken, for robbery certainly fits oppression better than the others do.

That is, the very reading that Tosafot rejected out of hand and then explained away is the reading the Ritva actually adopts. In his opinion, duplication of prohibitions is relevant to robbery as well and not only to overreaching and interest. It seems that Maimonides too may have had such a reading in the Talmud, and then his position encounters no problem.

This proves that the Ritva too agrees with Maimonides that duplication has significance even apart from lashes, since robbery is a prohibition repaired by a positive commandment.

It should also be noted that Maimonides himself writes that one does not receive lashes for overreaching and interest, since they are reparable through payment. If so, even the version of the Talmud that seeks to apply duplication to overreaching and interest proves, from within itself, that duplication can exist even without additional lashes.

Summary of the positions up to this point

Tosafot, Tosafot HaRosh, and those who follow them hold that when commands overlap and cannot be interpreted as teaching something else, one is indeed flogged for each command separately. Maimonides and the Ritva, by contrast, hold that duplication does not add more lashes, except where the Sages themselves say that one is flogged several times, as distinct from merely saying “so that one transgresses two prohibitions.”

The difference between these groups of early authorities lies in the meaning of duplication. Duplication is meant to reinforce the prohibition, in the sense we explained above. But what does this reinforcement mean? According to Maimonides, the reinforcement consists in adding further prohibitions, which may perhaps deter the offender by clarifying how severe the prohibition is. Tosafot and those who follow them, by contrast, think that the reinforcement comes through the addition of lashes. An offender not deterred by a prohibition that carries forty lashes may perhaps be deterred by one that carries eighty.

At first glance it seems that according to Tosafot the measure of duplication depends only on the severity of the transgression, since the number of lashes is determined by its severity. According to Maimonides, by contrast, duplication is determined by the gap between the intrinsic severity of the transgression and the way it is liable to be perceived by the public. For Maimonides, the duplication aims to provide an additional warning that clarifies severity; for Tosafot, its purpose is to add lashes.

It is possible that different theories of punishment are also at work here. According to Tosafot, the aim of punishment is to deter the offender. According to Maimonides, punishment is atonement for the damage caused by the transgression, or retribution against the offender. If so, then for Maimonides punishment is not proportional to considerations of deterrence, whereas for Tosafot it is.¹³

As noted, we saw that according to Tosafot there is no such thing as duplication with respect to positive commandments, since they have no punitive aspect. According to Maimonides, there is duplication even in positive commandments, and that is entirely consistent with his position. He writes elsewhere in the root:

Know that even if you find in the language of the Sages that whoever violates a given warning has transgressed such-and-such prohibitions, or whoever neglects a given matter has transgressed such-and-such positive commandments, it does not follow that all those prohibitions are to be counted separately or each positive command separately. The matter is one and there is no duplication in it. They say that he transgresses this number of positive commandments or that number of prohibitions only because the command or warning was repeated in that commandment; he has violated many warnings or many commands.

So once again Maimonides states explicitly that there is duplication even with respect to positive commandments, and that the issue is not tied to punishment.

Duplication of prohibitions under different names

We saw above that with neshekh and tarbit the prohibition is repeated but the terminology changes. Sometimes it is called neshekh and sometimes tarbit. The Talmud we cited above deals with duplication in the prohibition of interest, but one should notice that it is not at all bothered by the duplication of the verses themselves. There are two consecutive verses there, each one commanding the prohibition of neshekh and tarbit. That does not trouble the Talmud at all. What does trouble it is the duplication of the terms, neshekh and tarbit. Ravina’s suggestion that there are two prohibitions is directed to the pair of terms, not to the pair of verses.

This is very surprising. Why does that duplication not trouble the Talmud? Why is specifically the duplication within each verse—which does not even look like a pair of commands, but rather like a command with detail—what draws the Talmud’s attention and is treated as duplication of prohibitions?¹⁴

This itself is an excellent proof for Maimonides. It shows that the repetition of commands is not perceived by the Sages as a doubled prohibition, whereas according to the other early authorities such repetition would even produce lashes for each recurrence.

Perhaps one could explain this by saying that duplication of verses without any change is like the case of the twelve Sabbath commands. When the Torah repeats itself in the same language, there is no addition of any kind. That is why the Sages do not say there that the duplication is “so that one transgresses twelve positive commandments.” Here only Maimonides innovates that the repetition is intended to reinforce the commandment of Sabbath observance.

One transgresses two prohibitions only when the Torah uses different names, as with neshekh and tarbit. The point is that the same act contains two forbidden aspects: the neshekh, the biting of the borrower, and the tarbit, the addition to the lender’s property. That is a case of transgressing two prohibitions. Repetition of the very same command several times is only additional reinforcement of the severity of the commandment.

Clearly Rashi in Pesachim did not read the matter this way. He explains the prohibitions regarding putita as genuinely overlapping prohibitions, and Ravina there suggests that this is intended “so that one transgresses two prohibitions.” According to Rashi and Tosafot, lashes would follow in such a case as well. Maimonides, however, interprets the Talmud otherwise. In his view, those are prohibitions with different, non-overlapping contents. Therefore they are counted separately and one is flogged separately for each. In the case of Sabbath, or eating blood, by contrast, there are no multiple punishments, because there the Torah simply repeats the same thing in the same terminology for the sake of reinforcement.

Indeed, Maimonides apparently does regard repetition in different terms as two prohibitions, even though they are not counted separately. That is unlike repetition of the same thing in the same terms, as with Sabbath or eating blood, where it is truly only one prohibition and not only for purposes of enumeration. Clear proof of this is what Maimonides writes in Laws of Lender and Borrower 4:1:

Neshekh and tarbit are one and the same, as it says, “Your money you shall not give him with neshekh, and with tarbit you shall not give your food,” and elsewhere it says, “neshekh of money, neshekh of food, neshekh of any thing that is lent with interest.” Why is it called neshekh? Because it bites; it pains one’s fellow and eats his flesh. Why then did Scripture separate them? So that one transgresses two prohibitions.

So Maimonides rules that one who lends at interest transgresses two prohibitions, just as the Talmud says. Yet in his own enumeration there is only one prohibition against lending at interest, Negative Commandment 235; see also the summary of the prohibitions transgressed through interest at the end of Negative Commandment 237.

He writes there:

The 235th prohibition is the warning against lending with interest, as it says, “Your money you shall not give him with neshekh, and with tarbit you shall not give your food.” These two prohibitions concern one matter; they came for reinforcement and so that one who lends with interest should transgress two prohibitions—not because they are two different matters. For neshekh is interest and interest is neshekh. In Bava Metzia 60b they said: You never find neshekh without tarbit nor tarbit without neshekh; why then did Scripture separate them? So that one transgresses two prohibitions. There they also said: by Torah law neshekh and tarbit are one matter. And there too, on 61a, they said: Now that it is written, “Your money you shall not give him with neshekh, and with tarbit you shall not give your food,” we may read it as follows: “Your money you shall not give him with neshekh and tarbit, and with neshekh and tarbit you shall not give your food.”

Thus, whoever lends with interest, whether money or produce, has transgressed two prohibitions, in addition to the other prohibitions that also came to reinforce the lender’s warning. For this warning is repeated in another formulation: “Do not take from him neshekh and tarbit.” It is made clear in Bava Metzia 75b that this prohibition too is addressed to the lender. But all of these are extra prohibitions, as we explained in the ninth root: they are all repetitions of one matter, namely that the lender should beware of lending at interest. The laws of this commandment were explained in the fifth chapter of Bava Metzia.

Here Maimonides notices two kinds of duplication: duplication of terminology and duplication through repeated verses. With respect to the duplication of terminology, he also treats it here as two prohibitions even though it is not two different matters. With respect to the duplication of repeated verses, he writes that these are extra prohibitions brought for reinforcement, as explained in our root. Clearly he does not treat these as two prohibitions, for if he did, he would have had to say that there are far more than two.

We are thus forced to conclude that the case of interest, neshekh and tarbit, is different from the repetition of the Sabbath or blood prohibitions stated in the same terms. Here there really are two prohibitions. True, as far as the enumeration of the commandments is concerned, there is a technical rule that these two are counted as one prohibition. This proves clearly what we have argued: where duplication occurs with different terminology, there are indeed two distinct prohibitions, and the fact that the two commandments are counted as one follows only from a technical rule in the enumeration of the commandments. In the next subsection we will see the implications of this distinction for lashes.

Indeed, a similar distinction appears in the Rashba, Hiddushim to Babylonian Talmud, Bava Metzia 61a:

When Rava asked: Why did the Merciful One have to write a prohibition regarding robbery, a prohibition regarding interest, and a prohibition regarding overreaching? He could have said of all of them that they were written so that one transgresses them twice, since they are distinct names, as we say with neshekh and tarbit. But Rava found a necessary function in all of them and they are not alike; therefore one is not warned by the prohibition of the other. As for the prohibition of robbery, we establish it with regard to withholding a laborer’s wages—not because it is superfluous, for it is needed for its own case and so that one transgresses under the name of robbery, but because it is written in the context of the laborer, and a matter is learned from its context. And regarding theft, one might have had to say likewise that it was not needed except so that one transgresses under the name of theft, but there too he found it necessary for its own case.

The Rashba wonders why Rava looks for an explanation of the duplication among robbery, interest, and overreaching. Why not always say that they were written to teach that one transgresses three prohibitions, just as we saw in neshekh and tarbit? His answer is that because there are differences between them, the Talmud preferred to point those out. In light of the passage in Pesachim discussed above, and especially in light of Maimonides’ conclusion from it, this becomes easier to understand: so long as it is possible to interpret matters in a way that does not posit duplication, that is certainly preferable. Only when there is no alternative do we interpret different commands as duplication whose sole function is to teach severity.

Within the Rashba’s remarks, he explains that we could have said of interest and overreaching that one transgresses them twice, “since they are names that are separately flogged.” Clearly this is a scribal error, and it should read “separate names.” That is, he understands that in neshekh and tarbit the prohibitions are indeed duplicated, but only because they bear separate names. This implies that duplication repeated in the same terminology is certainly not said to make one transgress two prohibitions, whereas here, where there are separate names—overreaching, interest, and robbery—there is room to interpret the Torah as intending that one transgress three prohibitions.¹⁵

And in fact this is what we find in the Torah Chaim on the passage in Bava Metzia 60b, where he explains Tosafot’s approach:

“Why did Scripture separate them? So that one transgresses two prohibitions”… Now that Scripture writes “with neshekh and with tarbit,” one indeed transgresses two prohibitions even though one is with money and the other with food, because they are divided by name; each is regarded as a different matter.

And this is what appears from the continuation, where the Talmud says: If it is not needed for money-interest, apply it to produce-interest. Why did it force itself to interpret the verse of neshekh as tarbit, instead of saying that “interest on money” comes for neshekh itself, so that one transgresses two prohibitions—one because of “Do not lend upon interest to your brother” and one because of “interest on money”? Clearly, wherever there is only one name, one prohibition does not become two unless they are distinct in their names, for then they are like two different matters and the prohibition stands on each separately.

The Rashba, however, is not primarily discussing how many times one receives lashes; he is drawing the distinction between duplication under the same name and duplication under two names.¹⁶

Why are different names considered duplication at all?

If so, why are neshekh and tarbit not counted as two different prohibitions? If indeed there are two terms here and two problems, and we have seen that according to Maimonides the enumeration of the commandments is determined by content rather than by the number of commands, we would have expected them to be counted as two different prohibitions. Clearly the reason they are not is the overlap in practical application. As we saw above, the Talmud itself explains that wherever there is neshekh there is tarbit, and vice versa. Thus there are indeed two different problems, but in practice they always overlap. The practical consequences of the two prohibitions are identical. Whatever one prohibits, the other prohibits as well. That is why they are not counted as two different prohibitions in the enumeration of the commandments, even though there are two prohibitions. According to the passage there, the same is true of oppression and robbery. These too are prohibitions that practically overlap, as the Talmud assumes there, although they point to two different problems.¹⁷

It should be noted that at the end of the first part of his remarks, Maimonides himself explains that there is no difference between distinct names and repetition of the same name:

Do not be misled by the fact that the warning is repeated in different expressions, such as “You shall not glean your vineyard after you” after “When you forget a sheaf in the field, you shall not go back to take it,” and “When you beat your olive tree, you shall not strip it afterward.” These are not two prohibitions but one warning concerning one matter: that a person should not take what he forgot from the produce or fruit when he gathers it. Scripture gave two illustrations, one from grapes and one from olives, and called what remains from the grapes “gleanings” and what remains from the olives “strippings.” “You shall not strip” means: do not cut what you forgot at the ends of the branches.

According to our analysis, however, his meaning there is only with respect to the enumeration of the commandments. When the names are different, one transgresses two prohibitions nonetheless, as above.

Indeed, Rabbi Yerucham Fishel Perla, in his discussion of the sixth root, brings the passage on interest as an example of a case in which there are really two different prohibitions even though, for technical reasons, we do not count both.

Application: Maimonides’ distinction between two rabbinic formulations

We saw above that Maimonides distinguishes between cases in which the Sages say that one receives lashes twice and cases in which they say that one “transgresses two prohibitions.” Maimonides says that in the first case there are two prohibitions and one is flogged separately for each, whereas in the second there is only one prohibition and one is flogged only once for both.

In light of what we said in the previous subsection, it seems that this distinction applies only to cases in which the repetition is done under different names. As we saw, in such a case there are in principle two prohibitions, but they are counted together and one is not flogged more than once. It is therefore only there that the Sages can teach us that in certain cases there really are two distinct prohibitions, both for the enumeration of the commandments and for lashes. But if the repetition uses the very same name, the Sages cannot impose multiple lashes, because that would mean administering lashes twice for the same designation, which Maimonides thinks impossible.¹⁸

If so, this distinction applies only to the category of commands repeated in different terminology, where only the practical application overlaps, as with neshekh and tarbit. In the other category we will apparently never find a rabbinic statement imposing more than one set of lashes.

Summary of Maimonides’ approach

We thus learn that according to Maimonides there are three levels of duplication, which actually become four:

1. When the practical applications are at times distinct — the two commands are counted as two prohibitions, and of course one is flogged separately for each.

2. When there are two names, as in neshekh and tarbit, but no difference in application — they are counted in the enumeration of the commandments as one prohibition, but one transgresses each of them separately. There are two prohibitions here, even though one is not flogged separately for each.

Within this category there is apparently a further distinction:
1. If the Sages say that in this case one is flogged several times, then those prohibitions are counted separately in the enumeration of the commandments and one is indeed flogged separately for each.
2. But if the Sages say only that the verse serves to multiply prohibitions, then there are indeed two prohibitions, but they are counted as one only, and one is flogged only once for both.

3. When the repetition is in the very same name, as with blood or Sabbath — it is counted as one prohibition, and one is not flogged for it more than once. In fact this is truly one prohibition, though a more severe one, as the duplication itself shows.

Maimonides’ interpretive innovation

There is a major interpretive innovation in Maimonides’ words. On his view, some verses of the Torah contain no new content at all. On the face of it they are superfluous. They introduce no new legal detail and add no additional liability to lashes. True, they are meant to reinforce the command, but that could have been done in more economical ways, and nevertheless the Torah chose to repeat the command once more.

One might have suggested that Maimonides does not mean that such verses repeat one another exactly in content, but rather that they express two different aspects of the command. That is, they tell us that whoever violates this command damages two distinct aspects of the matter. We proposed something along these lines at the end of our essay on the fourth root, regarding the Torah’s repetition of comprehensive commandments. On that view, the severity of the prohibition would result from the fact that the transgressor violates several different aspects.

The term “extra” does not necessarily contradict such a proposal in Maimonides. One could have said that the command is extra in practical terms—it adds nothing on the practical level, that is, no additional forbidden act that we would not otherwise have known—but it nevertheless introduces a new aspect within the existing commandment.

Yet from the plain sense of Maimonides’ words it seems clear that this is not his intention. Perhaps that is the case with two prohibitions under two names, such as neshekh and tarbit. But when the prohibition is repeated in the same terminology, he appears to mean his words literally: these verses have fully overlapping content, and the repetition serves only to express the severity of the prohibition or commandment. This is evident also from the hierarchy he establishes, supported by the passage in Pesachim, according to which an interpretation that finds some novelty in a verse is preferable to an interpretation that treats it as a mere repetition. If our proposal were right, and even a doubled verse always expresses a different aspect, it is not clear why such an interpretation should be inferior to an interpretation that reads the verse as an independent prohibition.

Thus Maimonides does indeed understand these verses as a merely quantitative addition, with no new significance. The very existence of such verses is itself an interpretive innovation.¹⁹ In the next chapter we shall see that Nahmanides disagrees with Maimonides precisely on this point.

D. Nahmanides’ objections

Introduction

In his comments here Nahmanides agrees that repeated verses are not to be counted as separate commandments. Yet from his remarks it becomes clear that he opposes Maimonides on several points, above all on the question of the relation between lashes and the enumeration of the commandments—a question that will recur also in his objections to the second part. In this chapter we will try to clarify Nahmanides’ position, and then we will be able to understand the basis of his dispute with Maimonides.

Nahmanides’ words

Nahmanides’ glosses on this root are very lengthy. Although he seems to agree with the basic principle regarding the enumeration of the commandments, he disagrees with the rule Maimonides lays down regarding lashes. In other words, he accepts that repeated warnings about the same matter are not counted as a separate prohibition, but he does not accept Maimonides’ claim that one is not flogged for each such warning. In his view, one is flogged for each and every command. He seems to adopt the approach of the Tosafists that we saw above, according to which duplication introduces additional lashes even if it is not reflected in the enumeration of the commandments.

The central paragraph regarding the dispute between them is the following:

They have thus explained that multiplying prohibitions multiplies lashings. If the prohibitions in a given commandment are repeated many times, he is flogged according to the number of prohibitions. But there is a condition: the prohibitions must be superfluous and not needed in that commandment for any interpretive derivation other than to repeat the prohibition. For example, the prohibitions stated regarding mixed-fiber garments: one of them concerns wearing—”You shall not wear wool and linen mixed together”—and the other concerns placing it on oneself—”A garment of mixed fibers shall not come upon you.” Both are interpreted. In such a case one is flogged only once, because the prohibitions came to complete the matter.

The basic principle in Nahmanides’ words seems to be that the Torah does not write verses for no reason, not even for the psychological reinforcement of the duty to obey commandments. If the Torah repeats a command, that must be for one of two reasons:
1. either it wants to introduce another detail within the same commandment;
2. or it wants to introduce another set of forty lashes.

Thus Nahmanides here adopts the view of Tosafot and Tosafot HaRosh that we saw above, according to which duplication in prohibitions is possible only where it introduces lashes.

Later he writes:

We have now clarified this method according to the opinion of the early authorities, and all of them agree that every prohibition incurs its own lashes—not that they would impose two sets of lashes for one prohibition under one name, as the Rabbi accused them of doing.

Nahmanides explains here that, according to all the early authorities except Maimonides, one is indeed flogged for every command. That is what we saw above in Tosafot and Tosafot HaRosh, and it is also what emerges from Rashi’s interpretation of the passage in Pesachim. As we noted, this is also the view of the Geonim and the overwhelming majority of the early authorities. Maimonides himself says in Negative Commandment 179 that this is how all the earlier interpreters he saw understood the Talmudic passage, even though in his view that interpretation is mistaken. We did, however, see in the Ritva to Bava Metzia a textual reading that hints at a conception similar to Maimonides’.

Nahmanides now comes to the core of the dispute:

But the Rabbi did not examine their words closely and did not understand them, because he cannot accept that a person might receive two sets of lashes for one prohibition even if the warnings in it are repeated several times, as he stated in this very root. There, in that context, he explained and said that if a thousand explicit prohibitions all concerned a land-creeping creature, one would receive only one set of lashes for it; even if Scripture said a thousand times “Do not eat a land-creeping creature,” he would incur only one set. And whether both warnings are directed to one matter specifically, or one is specific and the other is general and includes it together with something else, still, in his view one is never flogged for one designation more than once. For example, with the prohibition “Do not make yourselves abominable through any swarming creature that swarms,” if one ate only a land-creeping creature or only an aquatic creeping creature, the Rabbi imposes only one set of lashes.

He brought proof and said: See whether those who planted this mistaken principle would think that one who wears a wool-and-linen mixture should be flogged twice because two prohibitions were stated about it. I have never seen them think this, and the matter is so obvious that it should not escape even the deaf and the mute. These are his words.

Nahmanides is citing Maimonides’ discussion in Negative Commandment 179 in a version different from the text before us. Above we saw that according to Maimonides in Sefer HaMitzvot, where there is a general prohibition and a prohibition included within it, one is flogged for both—for example, the general prohibition of eating creeping things, alongside the specific prohibition of an aquatic or land-creeping creature. Thus one who eats an aquatic or terrestrial creeping creature would receive two sets of lashes: one because of creeping things generally and one because of the specific creature. Nahmanides here quotes Maimonides as saying he receives only one. Yet this version fits better with what emerges from Maimonides’ legal code, as we noted above. It may be that this version better reflects Maimonides’ real view.

Nahmanides then returns to the passage in Pesachim:

I have already shown you from the tradition in the second chapter of Pesachim, 24a, that the principle follows the early authorities, and that the lashings for putita and the ant are because of duplication of prohibitions under one name. Therefore they also wished to say, regarding sacrificial meat that became impure, that it should have a second prohibition so as to flog him twice, by analogy to putita and the ant, where one receives four and five sets of lashes.

Nahmanides adds that where some legal novelty is learned from a repeated prohibition, as in the case of mixed fibers, which teaches both placing it on oneself and wearing it, then it is not duplication. Therefore one would not receive two sets of lashes for wearing or placing it on oneself through one act, but rather one would receive lashes separately for each if both distinct prohibitions were present.

Throughout his discussion Nahmanides argues with Maimonides on specific cases, trying to show in every instance that if one is not flogged twice, that proves the duplication came to teach something else. Otherwise, every repeated warning would generate lashes. He does not discuss the repeated warnings regarding labor on the Sabbath, but it would appear from his words that there too we should have to punish for every command that introduced nothing special—except that with capital punishment it is technically impossible to multiply the punishment. It remains unclear what he would say about a sin-offering for inadvertent transgression.

Two disputes between Maimonides and Nahmanides: the relation between lashes and the enumeration of the commandments

We noted above that Nahmanides rejects the distinction Maimonides draws between cases in which the Sages say that one who does something transgresses several prohibitions, where there are no separate lashes and the prohibition is counted as one, and cases in which they say that he is flogged several times, where the prohibition is also counted several times. Maimonides assumes that there is a necessary link between the number of lashes and the number of prohibitions. Therefore one is not flogged several times for repeated warnings concerning the same prohibition, even if each contains no novelty. And therefore too, if we have evidence that the Sages imposed several sets of lashes, that is a sign that there are also several prohibitions for purposes of the enumeration of the commandments. Nahmanides disputes this point. In his view there is no necessary link between the number of prohibitions and the number of lashes.

Maimonides thus holds that one never receives several sets of lashes for one prohibition, even if the warnings concerning it were repeated many times. It is not clear whether this is also true of a general prohibition that contains several specific prohibitions, though in practice it seems that Maimonides rules that even there one receives only one set.

Nahmanides, by contrast, claims that if the Torah repeats the same prohibition several times, then as far as the enumeration of the commandments is concerned it is still one prohibition, but one receives forty lashes for every repetition. And certainly where the Torah also commands a general prohibition that includes the specific prohibition together with additional cases, one must count them as separate prohibitions, and certainly one receives lashes for each. As noted, that is also the view of most of the early authorities and the Geonim, and Maimonides’ view here is singular.

The conclusion is that Nahmanides sees the rule governing the enumeration of the commandments as a technical ordering rule, lacking real legal significance. Legally, every such repetition is a prohibition in its own right, and lashes apply to it. Maimonides, by contrast, sees the technical rule about the enumeration of the commandments as reflecting a principled view of how many prohibitions there really are here, and therefore he holds that one never receives more than one set of forty lashes in such cases.

So, for our purposes, there are two disputes between Maimonides and Nahmanides:

1. Whether genuinely superfluous verses can exist in the Torah—verses with no legal significance, neither for the enumeration of the commandments nor for the number of lashes.
2. Whether there is a necessary link between the enumeration of the commandments and the number of lashes.

The connection between lashes and commandments

Beyond the proof Nahmanides brings from the passage in Pesachim, he raises the following argument against Maimonides:

I say that the Rabbi’s assumption that we count the commandments according to lashes is not clear. For we count 365 prohibitions, and many of them incur no lashes at all. We may perhaps concede this to his reasoning. But he has gone seriously astray in this method, because what he said—that for many prohibitions stated regarding one prohibition one receives only one set of lashes—is not so. It is explicit in the second chapter of Pesachim, 24a: “The flesh that touches anything impure shall not be eaten…”

Nahmanides asks: how can the existence of a separate prohibition be made to depend on whether it incurs lashes, when among the 365 negative commandments there are many that do not incur lashes? In other words, the fact that there are no lashes for a given commandment does not show that it should not be counted separately. He then says that perhaps this can be explained on grounds of logic, but then raises the problem from the passage in Pesachim.

In truth Nahmanides’ question is somewhat strange. Maimonides never meant to say that there is no prohibition without lashes. His claim was the reverse: if there are lashes, that is certainly a sign of a separate prohibition. That is, when we have two commands and the Sages tell us that one is flogged for both, that is an indication that there are really two separate prohibitions. Of course, if one is not flogged, that does not mean there is only one prohibition, since it may be that lashes are absent for some technical reason. Indeed there are many prohibitions that do not incur lashes, as Nahmanides himself notes.

In short, Maimonides’ claim is that a multiplication of lashes is a sufficient condition for a multiplication of prohibitions, even though lashes are obviously not a necessary condition for the existence of a prohibition. The fact that there are prohibitions in the enumeration that do not incur lashes proves only that lashes are not necessary for a prohibition, but it remains entirely plausible that they are sufficient.

As we saw, Maimonides also claims that the very change in rabbinic formulation—between “he transgresses several prohibitions” and “he is flogged several times”—points to a difference in meaning. In the second case we administer lashes twice and count two commandments. Nahmanides’ difficulty is that according to Maimonides it is unclear how the Sages can say that certain duplications were stated in order to increase lashes, since in Maimonides’ view one never receives lashes twice for the same prohibition under the same designation, even if the command is repeated several times.

We are therefore forced back to what we proposed above: where there are two prohibitions repeated under different names, then there really are two prohibitions. It is only in such a case, and only there, that Maimonides’ interpretive distinction applies: if the Sages say that the duplication is only to increase prohibitions, then there are no additional lashes and no additional counted prohibitions. But if the Sages say that the duplication is to increase lashes, then those two prohibitions are also counted separately, and one is flogged separately for each, even if their practical applications overlap, as with neshekh and tarbit.

All this, however, applies only where the prohibitions repeat themselves in different terminology, for there there are two problematic aspects in the prohibition, as we explained above. Where the repetition is in the very same terminology, one will never find a rabbinic statement saying that one is flogged twice. There, according to Maimonides, it is only repetition for the sake of reinforcement.

E. Explaining the dispute between Maimonides and Nahmanides

Introduction: summary of the dispute

The discussion above shows that Maimonides and Nahmanides agree that when the Torah repeats one prohibition several times, it is counted as one prohibition unless the repeated verse contains some novelty.

They disagree, however, on at least two points that at first seem opposite:

1. How many times one is flogged for a prohibition whose command is repeated without novelty: according to Maimonides, once; according to Nahmanides and most of the early authorities, as many times as the warning appears in the Torah.

2. In the opposite direction: according to Maimonides, there is a distinction between repetition in different terminology, where sometimes the Sages reveal to us that one is flogged twice and therefore two prohibitions are also to be counted, and repetition in the same terminology, where it is always one prohibition. Nahmanides sees no logic in such a distinction, because in his view the addition of lashes does not show that there is another prohibition. For him, even here one can have a single prohibition with multiple lashings, just as with several commands stated in the same language. In his view there is no problem in flogging several times for a prohibition counted only once in the enumeration of the commandments.

The basis of the matter is that Nahmanides thinks every verse must introduce something on the legal plane, whereas Maimonides thinks that repetition can be interpreted as revealing the severity of the commandment.

Nahmanides also sees no necessary connection between the enumeration of the commandments and lashes, that is, the actual legal issue. In his view, just as there are cases with two prohibitions and only one set of lashes, so too there are cases with one prohibition and two sets of lashes. Maimonides, by contrast, sees a necessary relation between them. True, where a command is repeated under two names, as with neshekh and tarbit, Maimonides regards this as two prohibitions at the principled level, but they are not counted as two and do not incur two sets of lashes.

We saw that for Maimonides the purpose of duplication is to inform a person of the gravity of the transgression, whereas for Nahmanides the purpose is deterrence, that is, adding lashes. We also saw that Maimonides interprets differently the rabbinic expression “to transgress two prohibitions” and the expression “he receives two sets of lashes,” whereas Nahmanides sees no difference between them.

A first explanation of the dispute: what are lashes for?

At the beginning of this essay we pointed to the fact that Maimonides prefaces this root with the assumption that all commandments have purposes and reasons, and from that he derives the principle that what belongs in the enumeration are contents rather than commands. That addresses the enumeration of the commandments. But what about punishment? Is punishment for the content, or for the command? As we have now seen, according to Maimonides the number of lashes corresponds to the number of prohibitions. It therefore seems that in his view lashes too, and not only the enumeration of the commandments, are determined by the content of the forbidden act itself, independent of the warnings. The number of lashes is determined by the number of damages or corruptions produced by the act.

Nahmanides, by contrast, holds that where one prohibition is accompanied by several warnings in the Torah, one receives lashes several times, according to the number of warnings. Yet with respect to the enumeration of the commandments he seems to agree with Maimonides. If so, it would seem that although the enumeration is determined by content, the number of lashes is determined by the number of commands the offender violated.

On the face of it, the continuation of the argument we presented at the beginning of the essay suggests that the basis of the dispute lies in the question what causes punishment in Jewish law. There, following Luzzatto, we saw that every transgression, and likewise every commandment, has two elements: the command and the damage or corruption. According to Nahmanides, it seems that lashes are imposed on the offender for violating the Torah’s command, not for causing damage or corruption. They are given for rebellion against the command. According to Maimonides, by contrast, it would seem that lashes are imposed for the content damaged by the transgression—that is, for the defect or corruption it produced.

The amoraic dispute at the beginning of Temurah: “he violated God’s utterance”

The root of the dispute we have seen here is apparently found in the disagreement between Abaye and Rava at the opening of Babylonian Talmud, Temurah 4b:

Abaye said: Whenever the Merciful One said “Do not do,” if one did it, the act takes effect. For if you were to think that it does not take effect, why does he receive lashes? Rava said: It effects nothing, and the reason he receives lashes is that he violated the utterance of the Merciful One.

Abaye and Rava disagree over what happens when a person violates a prohibition. The discussion there concerns making a substitution from a consecrated animal to a non-consecrated one, an act the Torah forbids. According to Rava, if one acts against the Torah’s will, the act cannot take effect; therefore, one who attempts substitution cannot, in principle, succeed—were it not for a special scriptural innovation there. Abaye, by contrast, holds that if one acts, the act takes effect despite the prohibition.

The basic difficulty Abaye raises against Rava is that if, as Rava says, a prohibited act can never take effect, then apparently no prohibition was committed at all. The prohibition is to make a substitution, and if the substitution does not take effect, then no substitution occurred. If so, asks Abaye, how will Rava explain the fact that one receives lashes for this prohibition?

Rava answers that the offender is flogged because he violated God’s utterance. That is, the lashes are not for the fact that the substitution took effect, since it did not. They are for his rebellion against God’s command. Abaye, by contrast, apparently held that lashes are imposed for the result brought about by the transgressive act—that is, that lashes are punishment for the corruption, not for rebellion against the command.

It stands to reason that according to Abaye, even if the Torah had forbidden making substitution in three separate verses, one would still receive only one set of lashes, because in practice only one substitution was made. There is only one corruption produced by the act. According to Rava, by contrast, it is plausible that in such a case one would receive three sets of lashes, because he violated three divine utterances.

It therefore seems that this dispute parallels the dispute between Maimonides and Nahmanides in this root. Nahmanides holds that lashes are for violating God’s utterance, that is, for disobedience, in a way similar to Rava. Maimonides, by contrast, seems to hold that the prohibition lies in bringing about the forbidden legal state, and the Torah’s command is meant only to warn against it, in a way similar to Abaye.²⁰

It is important to emphasize that both Maimonides and Nahmanides can agree with Luzzatto’s claim that every commandment and transgression has two parts, the command and the essence. As we saw, they do indeed agree that repeated commands are not counted separately in the enumeration of the commandments, and therefore it is reasonable that for defining the prohibition itself, the decisive element is the corruption in the world. The question dividing them is only which element in the transgression is what makes one liable to lashes: are lashes determined by violation of the Torah’s command, as Nahmanides thinks, or are lashes imposed for the forbidden act as such, as Maimonides believes?²¹

The commands as warning signs

What emerges from our discussion is that according to Maimonides the warnings merely draw a person’s attention to the existence of the prohibition, but the prohibition itself exists even without them. They function like warning signs informing a person that there is a danger. The number of warning signs drawing attention to a prohibition indicates the depth of the corruption or improvement involved in the command. By analogy, around a very dangerous place one puts up many warning signs. Maimonides understands our case similarly: repetition of the warning in several verses points to the gravity of the prohibition, like those warning signs. On his view, the prohibitive verse is a warning sign alerting us to the hazard; it is not the hazard itself, nor is it the reason that one is punished for violating the prohibition. The problem is not disobeying the sign. The problem is the damage caused by the one who fails to heed it.

Nahmanides, by contrast, apparently thinks that the warning verses may indeed function as warning signs regarding the hazards—after all, he too agrees with Maimonides and Luzzatto that every transgression contains a “hazard,” as we saw above—but with respect to punishment they constitute the factor that makes one liable. A person is punished for ignoring the warning signs, not for the consequences of his disobedience, namely the corruption.²² Therefore, on his view, the lashes incurred by one who violates the instructions will correspond to the number of verses, that is, the number of warning signs, because that is the number of rebellions embodied in his act.

The command as warning sign: the Rashba’s approach in the case of intercourse near the time of menstruation

This idea of the command as a warning sign for the prohibition finds expression in an innovative approach of the Rashba in his commentary to Babylonian Talmud, Shevuot 18a. There he discusses a person who had intercourse with a woman near the expected onset of her period, and she then saw blood. As is well known, there are times at which a woman is expected to see blood, and these are called fixed times. According to the law, a man may not have marital relations with his wife near her expected time. According to most views this is a rabbinic prohibition, and its reason is the concern that she might see blood at that time, which would lead them into a Torah prohibition, that of relations with a menstruant.

What is the status of a man who had relations with his wife near her expected time? In light of the above, it is clear that he violated a rabbinic prohibition. But what if she actually saw blood at that moment, so that it turns out he had relations with a menstruant? At first glance, in that case he violated a rabbinic prohibition, but from the standpoint of Torah law he was under compulsion, since he did not know she would see blood during intercourse. Yet the Rashba innovates there that if the man had relations near the expected time and she saw blood, he is not regarded as under compulsion with respect to the Torah prohibition of relations with a menstruant, but as having acted inadvertently. That is, he has committed a Torah transgression, and he is not regarded as compelled with respect to it, though of course neither is he deliberate.

Why is he not regarded as under compulsion? At first glance, even though he violated a rabbinic prohibition, as far as the Torah prohibition is concerned he was completely unaware. Some later authorities wanted to infer from this that anyone who violates a rabbinic prohibition and thereby becomes ensnared in a Torah prohibition is considered an offender with respect to the Torah prohibition as well. But the author of Keli Hemdah brings proofs against this and argues that the Rashba’s intention is limited to rabbinic prohibitions of the kind involved in intercourse near the expected time. What is special about such prohibitions? He explains that the rabbinic prohibition of intercourse near the expected time is wholly grounded in the concern that she may see blood. Thus, once a person has relations with his wife near the expected time, he cannot claim to be under compulsion, because the Sages themselves warned him, by means of the prohibition they enacted, not to have relations with her on that day, since it is a day on which she is likely to see blood. Therefore, specifically in the case of intercourse near the expected time, the rabbinic warning affects the Torah transgression. But if he violates some other rabbinic prohibition and thereby stumbles into a different, unrelated Torah prohibition, he is still regarded as under compulsion.

If so, in the case of fixed times we see that even though there is no Torah prohibition here in advance, and from the Torah’s standpoint he should seemingly be regarded as completely compelled, nevertheless, because the Sages raised a warning sign warning him against the prohibition, he is not regarded as compelled. How can a person count as a Torah offender without violating an explicit Torah command? The answer is that the command is only a sign warning of the prohibition; if there is another warning sign, then even without a Torah command there is room to regard the person as a Torah offender.²³

Another implication of the dispute: the Euthyphro dilemma

This formulation of the dispute between Maimonides and Nahmanides evokes the famous dilemma Socrates places in the mouth of Plato’s Euthyphro. Euthyphro offers the following definition of piety, that is, morality:

The pious is what all the gods love, and its opposite, what all the gods hate, is impious.

There is thus an identification between the good and the will of God. In similar terms, one might define the Torah’s approach: the good is what God wants us to do. But such an identification is not enough to understand the nature of the relation between His will and the good. This overlap between “God’s will” and “the good” can be explained in several ways, and Socrates focuses his question to Euthyphro on two of them:

Is the pious loved because it is pious, or is it pious because it is loved?²⁴

Socrates is torn between two explanations of the correspondence between God’s will and piety. One possibility is that God simply wants what is good. The other is that the good is defined as whatever God wants. According to the first possibility, there is a category of “good” prior to God’s will, and He instructs man to act in accordance with it. According to the second, at least in its extreme form, there is no independent category called “good” at all. That word merely describes the set of actions God wants human beings to do.²⁵

Clearly both possibilities are problematic. The first assumes some reality, or at least some objective category, independent of God and perhaps even imposing itself upon Him. The second assumes that there is no distinct category of “good” at all; the good is simply whatever God commands. On that view, moral action and atheistic moral thinking become difficult to explain. Yet many religious people feel that there is in them an independent category of good and morality that, by its very definition, does not depend on God’s will. A believing Jew is first of all a human being, and only afterward also an observer of commandments.²⁶ Christian thought tended to reject the idea of morality as an independent category, but Jewish thought certainly makes significant room for it. This is not the place to discuss the matter fully. For our purposes, it is enough to set these two positions side by side and suggest that they shed further light on the dispute between Maimonides and Nahmanides described above.

Maimonides holds that one is flogged for the bad act itself, while the command is only a warning sign indicating that the act is indeed bad. This approach resembles the first horn of Socrates’ dilemma. The act is bad in itself, prior to the divine command about it. The command merely warns us against the evil itself, which is independent of the command. Nahmanides, by contrast, might seem to hold that the command constitutes the act’s badness, and therefore transgressing the forbidden act is nothing more than violating the divine will. The meaning of the term “prohibition” is simply transgressing God’s will.

But such an explanation would fit rather the “weak-minded” people cited by Maimonides in the Guide of the Perplexed. They hold that commandments have no reasons or purposes, and all that exists are commands and warnings. Yet, as we have seen, Nahmanides does not hold this. His dispute with Maimonides concerns only the number of lashes, not the enumeration of the commandments, that is, the number of prohibitions. It therefore seems that Nahmanides agrees that the reprehensibility of the act is objective and that the command is only a warning sign concerning it; he simply thinks that liability to punishment is constituted by the command and not by the problematic act itself.

Thus Nahmanides too agrees that the command is only a warning sign regarding the bad act. On his view too, the evil of the act precedes the warning and is independent of it. Yet the liability to punishment arises only because of violation of the warning. The bad act as such, despite its reprehensibility, does not on its own make one liable to lashes.

The conclusion is that if we want to understand the dispute between Maimonides and Nahmanides through the lens of the Euthyphro dilemma, we must not merely transfer the dilemma from the plane of good and evil, where Plato discussed it, to the plane of the religiously permitted and forbidden. We must raise it further, to the plane of liability or exemption from punishment, which is in fact our real subject here.

To arrive at a truly Euthyphronic conception—namely, that the prohibition itself is nothing but violation of the Creator’s will—we would need to find an enumerator of the commandments who not only would impose lashes according to the number of times a prohibition appears in the Torah, but would also count those verses as independent commandments. Maimonides devotes his opening remarks precisely to arguing against such an approach. It seems clear that there is no enumerator of the commandments who takes such a position, apart from those “weak-minded” people mentioned in the Guide. It thus emerges that there is no approach in Jewish law that makes the fitting and the reprehensible wholly dependent on the divine command.

The Euthyphro dilemma is illusory

Within a religious worldview it is very hard to accept, in its plain form, the idea that morality has a completely independent status. Could there really be something in the world not created by God, and perhaps even binding Him? That seems highly implausible.²⁷

It therefore seems that Maimonides’ position can be presented somewhat differently. It may be that he too agrees that the act would not have been prohibited in itself had there been no command. God created both the norm and the reality whereby some act damages or repairs, and afterward He also commanded us to avoid or to do it. Therefore, according to Maimonides, even though the lashes are for the content and not for the command, that content too is a creation of God, and it obligates because it is God’s will. Once that category has been created, we are flogged for doing something reprehensible and not for violating God’s will; but that reprehensibility itself is also a product of divine action. Nahmanides, as noted, can agree to this on the plane of the transgression itself, but on the plane of punishment he will argue that punishment is only for disobeying God’s will.

So the fitting and the reprehensible are not the product of the command and are not defined by it, but they are still the product of God’s definition and action. This product, however, precedes the command conveyed to us.

Summary: the relation between the different planes of discussion

There is a connection between the two questions with which we have dealt—the Euthyphro dilemma and Luzzatto’s analysis—and to clarify it, let us distinguish several parallel planes:

1. Moral characterization, or religious characterization in the sphere of commandments between man and God: the plane of good and evil.
2. Legal characterization in Jewish law: the plane of the permitted and the forbidden.
3. Judicial characterization: the plane of liability or non-liability to punishment.

We concluded above that Maimonides and Nahmanides can both agree with Luzzatto’s claim that every commandment or transgression has two components: obedience or disobedience to God’s will, as expressed in the Torah’s command, and the improvement or corruption produced in the person or the world.

From the perspective of general religious considerations, there does seem to be an independent category of good and evil. But at the same time it is quite clear that this category too was created by God’s will. The dispute between Maimonides and Nahmanides is whether, once such a category exists, punishment for a transgressor is imposed for violating God’s will or for doing the reprehensible act.

If so, we may generalize and say that both agree about the existence of the two levels on the plane of moral characterization, the plane of good and evil. On the plane of legal characterization in Jewish law, the plane of the forbidden and the permitted, there also seems to be agreement between them, both that these are determined by God and that they have an independent standing, since both agree that several overlapping warnings are counted as one command. Their dispute concerns only punishment: is liability to punishment the result of violating God’s will, or the result of doing a forbidden act, whose existence as an independent category can, as noted, be agreed upon by both sides?

We saw that this last dispute can be formulated in Luzzatto’s terms: is punishment for disobedience, or is punishment for the corruption caused by the transgression, whether in character, in belief, or in social conduct? In fact, this formulation of the dispute in Luzzatto’s terms is no more than the Euthyphro dilemma applied to the judicial plane, that of liability to punishment.

In its original setting, and likewise in its Christian and broader philosophical contexts, the Euthyphro dilemma concerns the plane of moral characterization, or the legal plane in political theory. Later in history it was applied to the plane of religiously permitted and forbidden acts. In our context it is applied to the judicial plane, the plane of punishment. It seems that it is on this plane that Maimonides and Nahmanides divide, as explained above.

Possible reservations regarding Maimonides’ approach: once more on the principle of the uniform legal basis

According to our proposal in explaining the dispute between Maimonides and Nahmanides, Maimonides views the Torah’s theory of punishment as though punishment were imposed for the damage done by the transgressive act, not for rebellion against the command.

But this claim is problematic. First, we saw that Maimonides does not identify lashes with commands. There can be a case of one prohibition and nevertheless two sets of lashes, if the names are different. But that is not a fundamental difficulty, because it may well be, and that is what we indeed proposed above, that Maimonides sees the case of two names as two prohibitions, meaning two damages or corruptions caused by the forbidden act—for example, the neshekh, which is the bite suffered by the borrower, and the tarbit, which is the increase in the lender’s property—and therefore lashes apply to both. The reason they are not both counted is only that there is no difference in practical application.

The second problem concerns the principle we have already encountered several times in Maimonides and more generally. In our essay on the thirteenth root, and again in the essay on the fourth root, we argued that every law has one and only one basis, which we called the principle of the uniform legal basis. We also saw that if one law applies in several legal contexts, then it must derive from the element common to all of them, not from reasons peculiar to each context.

One of the examples we gave of this principle was punishment in Jewish law. Punishment applies only to prohibitions and not to positive commandments, and only where an act is involved. The principle of the uniform legal basis then implies that punishment is imposed not for the specific damage caused by this or that transgression, but for the layer common to the whole class, namely acted prohibitions. We are thus forced to say that punishment is imposed for active rebellion, expressed in action, against the command. That is what all those cases share. The damage or corruption, by contrast, differs from one transgression to another. At first glance this conclusion directly contradicts our explanation here of Maimonides, according to which punishment is for the corruption and not for defiance of the command.

Upon closer reflection, however, this conclusion is not necessary at all. There is room to define something common to all acted prohibitions even on the level of corruption and damage. For example, one could say that according to Maimonides punishment is imposed for a transgressive act that creates damage or corruption. To be sure, the punishment is not for one specific kind of damage, since it applies in all these cases. But it may still be that it is imposed for the very act of causing damage actively, that is, through an act. Such a definition preserves the principle of the uniform legal basis, and yet it remains on the plane of damage rather than rebellion against the command.

Part II: A general prohibition and “wrapped” commandments

Introduction

In this part of the root Maimonides turns to discuss the general prohibition. He opens by saying that this discussion properly belongs together with the discussion in the first part, whereas as we saw at the beginning of Part I, the two parts seem to pull in opposite directions. We will address that issue in the course of this part.

A. The course of the discussion

Introduction

In the second part of the root Maimonides deals with the question of the general prohibition. A general prohibition is a prohibitive verse from which several commands are derived, and those commands need not be related to one another. Why does Maimonides choose to discuss the general prohibition specifically in this root? The answer appears immediately at the opening of his remarks.

Maimonides begins by saying that this part is a qualification to the rule he himself laid down in the first part. There, at the beginning of his discussion, he said that the enumerator of the commandments must attend to the contents of what we are commanded—actions, beliefs, and so forth—and not to the verses that command them. Here, however, he limits that principle and says:

What ought to be joined to this root is what I shall now state: what we said, namely that the matters commanded and the matters prohibited are what should be counted, is true only on condition that with respect to each prohibited matter there is a distinct prohibition for each and every matter, or evidence from the transmitters that Scripture separated one matter from the other and assigned a warning to each. But if one prohibition includes many matters, then only that prohibition is counted, and not each of the matters included under it. This is the general prohibition for which one does not receive lashes, as we shall now explain.

Maimonides is saying that we count each distinct content separately, rather than each command, but only if there is also a separate command for each such content. In other words, a given content is counted as a commandment only if there is a verse commanding it.

Against this background, the commentators’ question becomes very surprising. They claim that the two parts of the root contradict one another. They argue that in the first part Maimonides says that what belongs in the enumeration are only commandments with different content, and the number of commands is irrelevant; whereas in this part he insists that what matters is specifically the number of commands.

But in light of the quotation above, it is clear that Maimonides was aware of this tension and did not see it as a contradiction at all. The second part is presented as a qualification to the principle of the first. What is counted in the enumeration of the commandments is not the commands but their contents. But there is a further condition that a commandment must meet in order to be counted: for each distinct content there must also be a command of its own. The conclusion of both parts together is that every commandment included in the enumeration must have both an independent content and a command, and neither of the two alone is sufficient. There is thus no contradiction between the two parts of the root. Together they constitute one comprehensive principle.

We may add that this comprehensive principle fits thoroughly with what we saw above in Luzzatto, that every commandment or transgression contains two components: the command and the defect or corruption. In order for there to be a command, there must be a verse commanding it. In order for there to be content, the commandment must be distinct in content from other commandments in the enumeration.

This also accords with what we saw in our essay on the second root. There we reached the conclusion from these principles that where one of the two components is missing—the command or the essence—what we have is not a biblical commandment but a rabbinic one. We saw this both with laws given to Moses at Sinai, which we explained as having command but not essence, and with laws derived through creative exegesis, which we explained as having essence but no command. See there also the legal consequences of this distinction, in cases of doubt and the like.

The general prohibition

As noted, a general prohibition is a command or prohibitive verse that the Talmud explicates into several branches. It should be stressed that in most cases there is no apparent connection between these branches other than the fact that they are all derived from one verse. If so, one verse yields several prohibitions, and obviously in that case each of those prohibitions lacks its own separate command. That is why a general prohibition is counted as only one prohibition in the enumeration of the commandments; regarding lashes, see below. Even though in practice there are several independent commands here, Maimonides rules that we count them as one prohibition. That is the exact consequence of the qualification just mentioned: one command cannot count as more than one prohibition. Every counted commandment requires both essence and command, and here the command is missing.

Maimonides gives as an example of a general prohibition the verse discussed in Babylonian Talmud, Sanhedrin 63a: “You shall not eat over the blood.” The Sages there, and in Sifra, derive several prohibitions from this verse, and on the face of it there seems to be no connection between them:

1. A prohibition on eating an animal before its life has departed.
2. A prohibition on eating sacrificial meat before the blood has been dashed on the altar.
3. A prohibition on holding the meal of consolation for those executed by the court.
4. A prohibition on members of the Sanhedrin who sentenced someone to death tasting food on that day.
5. A prohibition concerning the stubborn and rebellious son.
6. A prohibition on tasting food before praying.²⁸

All of these are in some sense “eating over the blood,” but that is only an external feature. In substantive terms, there appears to be no connection between them. Maimonides rules that such a prohibition is counted only as one prohibition. He also rules that one does not receive lashes for a general prohibition at all, not even once.

The two kinds of “wrapped” prohibitions

Maimonides then gives a few additional examples of this ordinary kind of general prohibition beyond “You shall not eat over the blood,” and immediately proceeds to define a second type: what he calls “wrapped prohibitions.” This type is a command in the Torah that explicitly spells out all the matters included under it, but not every one of those matters is preceded by a separate negative particle such as “beware,” “lest,” “do not,” or “you shall not.” For example: “Do not eat of it raw, or boiled in water” (Exodus 12; Negative Commandment 125), or “An Ammonite or a Moabite shall not enter the congregation of the Lord” (Deuteronomy 23; Negative Commandment 53), and so forth.

In these cases, the Torah itself lists all the prohibitions, the branches, and they are not merely the product of rabbinic exposition or interpretation. But the number of negative particles is smaller than the number of prohibitions. The Torah wraps all the prohibitions together in one word of prohibition.

Maimonides explains that this second type also divides into two parts, according to the Sages’ interpretation:

1. There are wrapped prohibitions about which the Sages explained in the Talmud that one is liable to lashes for each branch separately. In such a case we do not regard them as a general prohibition, and each branch is counted as a separate prohibition. Naturally, one is also flogged for each such branch, as with any ordinary prohibition.²⁹

2. There are wrapped prohibitions about which the Sages said that one is liable only once. These are counted as one prohibition and form a second type of general prohibition. Maimonides infers from the plain sense of the passage in Babylonian Talmud, Pesachim 41a-42b, which deals with “Do not eat of it raw,” that as a matter of law, even if one violates several such branches at once—for example, eating the paschal offering both raw and boiled—one still receives only one set of lashes.

It should be noted that both kinds are different from the ordinary general prohibition, for in the latter case one receives no lashes at all, not even once.

B. The nature of general prohibitions according to Maimonides

Introduction

We have seen two kinds of general prohibition: the ordinary general prohibition, such as “You shall not eat over the blood,” and the wrapped prohibition, such as “Do not eat of it raw,” for which one does receive lashes, though only once. In this chapter we will try to understand the relation between these two types.

The passage in Pesachim: the version of Rashi and Nahmanides

The background to the discussion of the second type is the verse prohibiting eating the Paschal offering boiled or raw and requiring that it be eaten only roasted by fire, Exodus 12:9:

Do not eat any of it raw, or boiled at all in water, but only roasted by fire, its head with its legs and entrails.

The Sages understand the end of the verse as a prohibition, meaning that “but only roasted by fire” continues the force of “Do not eat.” So we have here a wrapped prohibition, because the warning “Do not eat” applies to the two details, raw and boiled, and also to the general clause, not roasted by fire. One should note that in this case the general prohibition is related in content to the specific ones, unlike “You shall not eat over the blood.” Eating the Paschal offering raw or boiled are simply different ways of eating it unroasted.

The question now is: what exactly is the relation between these prohibitions? Is there one prohibition against eating it raw and another duty to eat it roasted, or are the details at the beginning of the verse merely a specification of the general prohibition at its end? This is the subject of the passage in Babylonian Talmud, Pesachim 41a-42b:

Rava said: If he ate it raw, he receives two sets of lashes; boiled, two; raw and boiled, three. Abaye said: One does not receive lashes for a general prohibition. Some say: It is only two sets that he does not receive, but one he does receive. Others say: Not even one, because its prohibition is not specific like the prohibition of muzzling.

Rashi explains Rava’s view:

He receives two sets because of “Do not eat it raw” and because of “Do not eat it except roasted by fire,” for “except roasted by fire” too falls under the force of “Do not eat.”

If he ate it boiled, he receives two sets because of boiled and because of “Do not eat it except roasted by fire.”

So according to Rava he is flogged both because of eating raw or boiled and because of “except roasted by fire.” That is, Rava says that one is flogged under the general prohibition in addition to the lashes for the specific prohibition. Abaye disagrees and says that one is not flogged for a general prohibition. The two reported versions that follow dispute whether one at least receives lashes under the specific prohibition, while not receiving them under “roasted by fire,” or whether one receives no lashes even under the general prohibition in a case like this.

This is not a unique case but a general principle, as the continuation of the Talmud shows, where a similar dispute is brought regarding the nazirite:

Rava said: If he ate grape skins, he receives two sets of lashes; grape seeds, two; grape skins and seeds, three. Abaye said: One does not receive lashes for a general prohibition. Some say: It is only two that he does not receive, but one he does receive. Others say: Not even one, because its prohibition is not specific like the prohibition of muzzling.

The conclusion is that everyone agrees that one does not receive lashes for a general prohibition, and even Rava agrees. The difference here is that this is a wrapped prohibition and not an ordinary general prohibition, and therefore according to Rava one is flogged for every branch of it. According to Abaye, however, one is not flogged for the wrapping clause but only for what is wrapped.

The two versions within Abaye’s view are explained by Rashi as follows:

Some say: It is only two that he does not receive, because once he is flogged because of raw or because of boiled, he is not flogged again because of the general clause, “except roasted by fire.”

But one he does receive—for example, if he cooked it in the hot springs of Tiberias and ate it. There is no liability there because of boiling, nor because of raw, and therefore he receives lashes because of “except roasted by fire.”

Others say: Not even one, because of “except roasted by fire,” because its prohibition is not specific like the prohibition of muzzling, where the prohibition itself states one definite matter, and the section of lashes is adjacent to it.

According to this, the dispute between the two versions within Abaye is whether the reason one is not flogged for the wrapping clause, namely eating it not roasted, is because there are already lashes for the specific clause, raw or boiled, and the general clause is included within them; or whether one never receives lashes for a wrapping clause at all, even where there are no lashes for the specific clause, such as cooking in the hot springs of Tiberias, where it is neither properly boiled nor raw.

Maimonides’ version and conclusion from the passage

From this version, it would appear that as a matter of law one is flogged both under the wrapped prohibition and under the specific prohibitions, since the law generally follows Rava against Abaye. Maimonides’ version of the passage, however, reverses the opinions of Abaye and Rava, and he rules accordingly—thus ruling like the opinion that, in our text, is Abaye’s. Nahmanides agrees with Maimonides’ textual version.

Accordingly, both Maimonides and Nahmanides hold as law that one is not flogged for the wrapping clause. But now it becomes necessary to determine which of the two versions within that opinion is the one accepted in law. According to Rashi’s text, that issue is not crucial, since those versions are only within Abaye, whose opinion is not accepted.

Maimonides, unlike Nahmanides, who explains the matter like Rashi, also interprets the dispute between the two versions differently. He writes here in our root:³¹

There they said regarding this statement: “And Rava said: one does not receive lashes for a general prohibition.” Some say: one nevertheless receives one set—meaning that if he ate it raw and boiled, he receives one set. And some say: not even one, because its prohibition is not specific like the prohibition of muzzling. That is, the verse “You shall not muzzle an ox while it treads” is one prohibition warning against one thing. But this prohibition, which warns against two things, raw and boiled, does not incur lashes. And you already know that it has been explained in Sanhedrin 63a that one does not receive lashes for a general prohibition; therefore Abaye’s statement is rejected. The truth is that he receives one set, whether he ate it raw, or boiled, or raw and boiled together; he receives only one. Therefore, the verse “Do not eat of it raw or boiled” is counted as one commandment.

According to Maimonides, the two versions dispute the case of one who ate it both raw and boiled, not the case of one who cooked it in the hot springs of Tiberias, as Rashi and Nahmanides explain. The first version says that he receives only one set, because this is one prohibition, apparently the general prohibition only, while the details merely spell it out. According to this reading, the wrapped clause is not a general prohibition, since one does not receive lashes for an ordinary general prohibition. Hence the distinction between a wrapped prohibition and an ordinary general prohibition. According to the second version, however, he receives no lashes at all for such a prohibition, because it is treated like an ordinary general prohibition. On that reading, there is no difference between wrapped and ordinary general prohibitions.

Maimonides’ legal conclusion is that he receives one set in all cases, that is, only under the general prohibition. He rules like the first version, and from that follows the distinction he makes between wrapped prohibitions and ordinary general prohibitions, for which one receives no lashes at all.

And this is also how Maimonides rules in Laws of the Passover Offering 8:4:

Both of them are eaten only roasted by fire. One who eats from them an olive’s bulk raw or boiled on the night of Passover receives lashes, as it says: “Do not eat of it raw or boiled in water.” If he ate it raw and boiled together, he receives only one set of lashes, because both are included within one prohibition…

It appears, then, that with this kind of prohibition one is flogged, and the lashes are for the general prohibition, “Do not eat of it… except roasted by fire,” and not for the specific clauses. That is why one who ate it raw and boiled receives only one set. This is unlike the ordinary general prohibition, such as “You shall not eat over the blood,” for which one receives no lashes at all.

The nature of the difference

Why are wrapped prohibitions different from ordinary general prohibitions? In simple terms, the difference lies in the relation among the different components. In an ordinary general prohibition, the command serves as a general heading for a collection of commandments that have no substantive connection among themselves. The second version in Pesachim, which sees even the wrapped prohibition as a general prohibition and therefore one for which no lashes apply, explains this by saying that it is unlike the prohibition of muzzling, because it does not point us to one definite matter. That is why no lashes apply. It follows that this is probably also the reason no lashes apply to the ordinary general prohibition, and on that point the first version agrees.

In wrapped prohibitions, by contrast, the specific prohibitions are just details of the general prohibition. The understanding is therefore that they are not additional prohibitions. There is only one prohibition: do not eat the Paschal offering unroasted. All cases in which it is unroasted constitute a violation of that one prohibition, whether it is raw, or boiled, or both. For that reason one is flogged for this prohibition, because it is not really an ordinary general prohibition. It commands one definite and unique thing. Whoever eats it raw has eaten it unroasted, and whoever eats it boiled has also eaten it unroasted. The prohibition forbids eating it unroasted, and thus it forbids one determinate thing. True, there are several ways of violating the prohibition, but that is true of many prohibitions—for example, there are many ways to desecrate the Sabbath, since there are thirty-nine categories of labor and their derivatives.

At this point one may naturally ask why the verse gives this detail at all. Why did the Torah not suffice with the general prohibition, as in the case of the Sabbath, where the categories of labor do not appear in Scripture? We will return to this question below.

“You shall not eat over the blood”: the warning for the stubborn and rebellious son

In light of what we have said so far, it is very difficult to understand Maimonides’ approach to the prohibition “You shall not eat over the blood,” which is the central example of the ordinary general prohibition. Given the analysis above, we might have expected Maimonides to count that prohibition under the heading “You shall not eat over the blood,” and under it to detail the six branches listed above.

But this is Maimonides’ language in Sefer HaMitzvot, Negative Commandment 195:

The 195th prohibition is the warning against being a glutton and a drunkard in eating and drinking during youth, under the conditions described for the stubborn and rebellious son. This is His statement, “You shall not eat over the blood.” The explanation is that the stubborn and rebellious son belongs to those liable to execution by the court, for the Torah says of him that he is to be stoned. We have already explained in the introductions to this work that wherever Scripture imposes excision or execution by the court, there must be a negative commandment, except for the Paschal offering and circumcision, as we explained. Therefore, since the law of the glutton and drunkard under the conditions described is stoning, we know necessarily that this act is prohibited; the punishment is explicit, and all that remains is to investigate the warning, because according to our principle Scripture does not punish unless it has warned. And the language of the Talmud in Sanhedrin 63a is: “From where do we know the warning for the stubborn and rebellious son? Scripture says: ‘You shall not eat over the blood.'” That is, do not eat an eating that leads to bloodshed; this is the eating of the glutton and drunkard, for which he is liable to death. Thus, when he ate that evil eating in those corrupt ways, he has violated a prohibition.

Even though this prohibition is a general prohibition, as we explained in the ninth root, this is not far-fetched. For once the punishment is explicit, we need not be concerned whether the warning comes through inference or from a general prohibition. This has already been explained several times, and we have given examples of it. The laws of this commandment are explained in the eighth chapter of Sanhedrin.

Unexpectedly, and contrary to what we might have anticipated, Maimonides presents this prohibition as a specific warning regarding the stubborn and rebellious son. More than that: he does not even mention the other prohibitions, the other branches derived from the same verse.

Most of his discussion here is devoted to explaining why the stubborn and rebellious son incurs punishment even though the warning comes only from a general prohibition. He explains that the son has an explicit verse of punishment in Deuteronomy, in the section dealing with the stubborn and rebellious son. Therefore, although the warning is only by virtue of a general prohibition, punishment still applies. A general prohibition suffices as a warning where there is a separate verse explicitly stating the punishment. Only where there is a general prohibition alone, without an explicit punishment, are lashes not administered.

A parenthetical note on punishment and warning in the case of the stubborn and rebellious son

We have seen that the stubborn and rebellious son, who is the sharpest and most fully counted expression of the prohibition “You shall not eat over the blood,” is a biblical prohibition and is punished. Yet the Mishnah in Sanhedrin 8:5 states that the stubborn and rebellious son is judged on account of his end:

The stubborn and rebellious son is judged on account of his end: let him die innocent rather than die guilty, for the death of the wicked benefits them and benefits the world, while the death of the righteous harms them and harms the world.

The commentators explain that there is nothing in his actual deeds that can justify the punishment imposed on him, namely stoning. The conclusion is therefore that this is not punishment but prevention, since the Talmud explains that in the end he will become a highway robber.

The burglar who breaks in through a tunnel, as the next Mishnah there states, is also judged on account of his end:

The burglar who comes through a tunnel is judged on account of his end. If he came through a tunnel and broke the barrel, then if he is liable for blood, he is liable; if not liable for blood, he is exempt.

We do not execute a person for theft, and therefore it would seem that the death of the burglar too is not punishment but prevention.

If so, why is a warning needed there at all? We are forced to conclude that both the burglar and the stubborn and rebellious son are indeed punished. The preventive aspect only explains why we impose a punishment that is disproportionate to the actual deed, but in the end it remains punishment. The indication of this is the continuation of that same Mishnah in Sanhedrin, which applies to the burglar the rule that the greater punishment absorbs the lesser. That rule exempts a person from the lesser punishment and tells us to suffice with the more severe one. It follows that the death penalty for the burglar is indeed punishment, and the same must be true of the stubborn and rebellious son.³⁰

A further look at the relation between the general prohibition and its branches

In light of our explanation of Maimonides so far, according to which the different branches are independent contents lacking their own command-verse, it would seem that the branches of this prohibition, and others like it, are unrelated to one another. Their contents are different and independent. If so, why does the Torah bring them all under one prohibitive verse and the same words? It would seem that the Torah’s only consideration was economy of words. The same phrase was used to describe prohibitions whose normative and practical content is obviously different. The similarity is only verbal, not substantive.

But such a picture is strange for at least two reasons:

1. It is hard to believe that bringing all these prohibitions under one roof has no substantive meaning. It is more plausible that the arrangement of the Torah’s material and their grouping has significance from which something can be learned.

2. On this understanding, it is not clear why one does not receive lashes for a general prohibition. At first glance, it is just like any other prohibition, only written in an unusual style. Why should that be a reason not to impose lashes? Seemingly, anyone who does any of these branch-acts should receive lashes.

There is also another difficulty, arising from Maimonides’ own presentation.

Maimonides says that the difference between the two kinds of general prohibition depends on what the Sages determine. That is, he treats the wrapped prohibitions too as general prohibitions in every respect, and the fact that one is flogged for them results only from a special tradition. We can see this in two places. In the root he writes:

This is the first kind of general prohibition. The second kind is where one prohibition comes to forbid many matters, wrapped one within another, by saying: do not do such-and-such and such-and-such. This kind divides into two parts. In some, the Talmud explained that one is liable to lashes for every one of the wrapped matters; in others, it said that one is liable only once, because it is a general prohibition.

And similarly he rules in Laws of Sanhedrin 18:3:

What is a general prohibition? It is one prohibition that includes many matters, such as “You shall not eat over the blood.” Likewise, if Scripture says: do not do such-and-such and such-and-such—since it did not assign a separate prohibition to each one, one does not receive lashes for each unless Scripture separated them by other prohibitions, or unless it was said to us by the Oral Tradition that they were separated. For example, as it says: “Do not eat of it raw or boiled.” He is not flogged twice for the raw and the boiled, but only once. But concerning the new grain it says: “Bread, roasted grain, and fresh grain you shall not eat,” and one is liable for three sets of lashes, because from the Oral Tradition they learned that this is to separate them. Likewise, it says: “There shall not be found among you one who passes his son or daughter through fire, one who practices divination…” Even though all these matters were included in one prohibition, Scripture separated them in other prohibitions, saying: “You shall not practice divination or soothsaying,” teaching that each is its own prohibition. And so with all similar cases.

[Raavad’s gloss: Abaye and Rava.]

In both places Maimonides refers to both kinds as general prohibitions, and the difference between them is the result of rabbinic tradition.

But according to our proposal above, the difference between the two kinds is quite clear and follows from the relation among the components. No tradition is needed in order to see that here there is a clear relation of general rule and its details. More than that: on our approach the wrapped prohibitions are not really another kind of general prohibition at all. It is a perfectly ordinary prohibition; the verse simply takes the trouble to state some of its details explicitly.

A partial resolution of the second difficulty

As for the second difficulty, perhaps one could say that since the language of the command is not unambiguous—after all, from the words “You shall not eat over the blood” it is difficult to infer that it is forbidden to hold the meal of consolation for those executed by the court, or that one may not eat sacrificial meat before the blood has been dashed, and so forth—there is here a problem of warning, or something like it. It may therefore be impossible to impose lashes on one who violates these prohibitions. The problem is technical: Scripture does not punish unless it has first warned.

Something like this we saw in our essay on the second root, where we argued that for prohibitions derived by rabbinic exposition one does not impose lashes, because there is no explicit warning in Scripture. In effect, detailing a general prohibition into its branches is a kind of exposition. And indeed, as we saw in Maimonides’ introduction to Sefer HaMitzvot, where there is an explicit punishment in Scripture, warning may suffice even if it comes by way of exposition. An implicit warning is enough if the punishment is stated explicitly, because in such a case the person is considered sufficiently warned. So too here: a general prohibition by itself is not enough to constitute warning, because its branches are like a derivation. But if there is an explicit punishment in Scripture, then the warning supplied by the general prohibition suffices.

All this addresses only the second difficulty. But the two other difficulties lead us to a different conclusion. They suggest that even in the ordinary general prohibition Maimonides sees a connection among the different branches, and therefore the wrapped prohibitions too are indeed a kind of general prohibition. In both cases there is a relation between the general rule and the details.

The ordinary general prohibition is itself a kind of wrapping

It therefore seems that Maimonides thinks the Torah brought all those branches under one prohibition because they have a common root. If we examine the prohibition “You shall not eat over the blood,” we will find that there is indeed a fairly clear common denominator among all these prohibitions, and not only on the verbal level. One might formulate it as a prohibition against eating in a rash and self-indulgent manner, or against eating in a way that expresses frivolity in a situation requiring greater seriousness. For example: the prohibition against eating when the Sanhedrin has executed a person, or when the animal’s blood is still flowing, or when the blood is still in the bowl before it has been dashed, so the person is not yet atoned for,³¹ or when a person has not yet prayed for his own life.

The conclusion is that it was not by accident that all these prohibitions were gathered together in one inn. All of them contain an element of lightheadedness and hurried, improper eating. From here we can proceed to resolve the difficulties we raised above.

What is the character of the general prohibition? It is not a prohibition against eating before prayer or when the blood is still in the bowl. More simply, there is here a basic prohibition pointing to an improper spiritual or psychological trait. The prohibition is not against eating but against being in a state of frivolity in situations not fitting for it. The practical expressions of such an improper inner state are the acts of eating the Sages prohibited. These acts are not forbidden in themselves; they merely express the inner state, which is what the Torah finds problematic. To use Maimonides’ own terms from the beginning of the root: the prohibition here is a prohibition concerning character traits, not one concerning actions.

A parallel may be found in the commandment “You shall love your neighbor as yourself,” which we discussed in our essay on the first two roots. There we saw that Maimonides writes, at the beginning of the Laws of Mourning, that all the practices derived from this commandment are rabbinic, even though the commandment itself is biblical. We explained this by saying that the commandment is to love one’s fellow in one’s heart; it is a duty of the heart. The duties of the limbs that flow from it are practical expressions of that duty of the heart, and therefore they are rabbinic extensions of it. We noted there that it is possible to violate the biblical commandment while fulfilling the branches—for example, accompanying the dead or bringing joy to a bride without actually loving them—and it is also possible to fulfill the biblical commandment without fulfilling the branches, for example loving one’s fellow but not going to accompany him to burial.

Our proposal here implies that there are indeed two kinds of general prohibition, just as Maimonides says. The wrapped prohibitions are also a kind of general prohibition, and the ordinary general prohibition is itself a kind of wrapped prohibition. As we saw, in both kinds the specific prohibitions are practical expressions of the abstract principle prohibited by the general clause. If so, why is there nevertheless a difference between them with respect to lashes? Maimonides attributes this to rabbinic tradition, but the tradition should be revealing to us some substantive difference between them. What could that difference be?

Why one does not receive lashes for a general prohibition: again on ramification and specification

Above we discussed the commandment “You shall love your neighbor as yourself” and its expansion into practical rabbinic duties. It seems that a similar reason can explain why one does not receive lashes for a general prohibition. As we saw above, such a prohibition belongs to the duties of the heart, and the branches are only practical expressions of that duty, exactly like the positive commandment “You shall love your neighbor as yourself.” And as is well known, for duties of the heart one does not receive lashes—either because they are all prohibitions without an act, or because it is impossible to determine unambiguously when one has transgressed them. If someone ate over the blood, but for some reason other than arrogance or coarseness, and so forth—precisely as we saw with “You shall love your neighbor as yourself.” The prohibition of “You shall not eat over the blood” is not the act itself, but being in a problematic spiritual-psychological state. The forbidden act only points to that state, and not always even that.³²

So much for why one does not receive lashes under the general prohibition itself. Why does one not receive lashes under the specific prohibitions, the branches? It may be that these are rabbinic prohibitions, because just as with “You shall love,” the biblical prohibition is only the abstract principle. The practical expressions, the branches, are merely rabbinic ramifications of it.

What about the wrapped prohibitions? Why does one receive lashes there under the general prohibition? Looking at the example of eating the Paschal offering unroasted, it is clear that the relation between the details and the general rule is not like the relation we found in “eating over the blood.” There, with regard to the Paschal offering, the prohibition is a practical prohibition, not a duty of the heart. The details are simply different ways of violating the general prohibition. They are the sorts of acts that constitute violation of the practical general prohibition, and therefore this is a practical prohibition.

The indication of this is that one cannot even imagine a case of violating the general prohibition there without violating one of the specific clauses, or vice versa. Whoever eats it raw has eaten it unroasted, and whoever eats it unroasted has eaten it either raw or boiled. By contrast, we saw that in the case of “eating over the blood” the general and the branches can be detached from one another.

In our essays on the first and second roots we defined two kinds of relation between a general prohibition and the prohibitions derived from it:

1. Specification — like the prohibition against eating bread when one has vowed to abstain from bread. The general prohibition is “He shall not profane his word,” meaning the duty to keep the vow and the prohibition against violating it. The specific prohibition is eating bread, if one vowed against bread, or sitting on a chair, if one vowed against chairs. Clearly each specific prohibition is only one way of violating the general prohibition, “He shall not profane his word.”

2. Ramification — the branch grows out of the trunk, like a law derived from a verse, in Maimonides’ terminology in the second root. Here one can detach the branch from its source, and it is not correct to say that whoever did the branch thereby did the trunk.³³

In these terms, we would say that in the prohibition against eating the Paschal offering unroasted, the wrapping is a wrapping that specifies its branches: they are different forms of the prohibition itself. It is not a wrapping that ramifies, as in “eating over the blood,” where the branches may express the root, but may also appear separately, and the root too can appear without them.

Implications for the relation between the two parts of the root

According to this analysis, in the ordinary general prohibition the branches are not prohibitions of different content, but rather different practical expressions of one abstract content. Therefore, when Maimonides rules that they are not to be counted separately, this is merely a continuation of the principle established in the first part of the root. It is not only verses that point to the same content that are not counted separately. Even seemingly different contents are not counted separately, because the fact that they are all derived from one verse indicates that they share a common root of content. Hence there is no need to abandon the view Maimonides presents at the opening of this root, according to which the enumeration of the commandments reflects only content and not commands.

We thus reach the conclusion that this part of the root in Maimonides is a continuation and sharpening of the principle of the first part, namely that only substantive content determines the enumeration of the commandments. We count only different contents. But when different contents appear in one verse, that itself is an indication that they share something common, and are not really several different contents. Therefore even from the standpoint of content there is no possibility of counting these prohibitions separately.

This also resolves our question about why Maimonides presents “You shall not eat over the blood” as a warning for the stubborn and rebellious son. We asked: why is the heading not simply the prohibition of eating over the blood? And why are all the subcases not spelled out within the commandment? According to our proposal, all these subcases are practical expressions of the same forbidden state of mind, and therefore one example is enough to illustrate the prohibition itself. The others are just additional examples, not prohibitions with distinct content. As noted, all of them share the same essential content. The stubborn and rebellious son is a glutton of frivolous disposition, liable to come to bloodshed because of that frivolity. This is the most extreme expression of all the situations listed above, and that is why it serves as the heading of the prohibition.

This becomes even sharper in light of the fact that, as noted, there is also an explicit punishment for him in Scripture. Therefore we derive his warning from “You shall not eat over the blood.” We have now learned that in the case of the stubborn and rebellious son, the prohibition of eating over the blood is not a rabbinic offshoot but a Torah prohibition applying to his actual behavior, not merely to an inner disposition. That is why he is punished for it as well, since it is a biblical prohibition involving an act.

Another remark on wrapped prohibitions

Maimonides argues that among wrapped prohibitions there are some that are not general prohibitions and some that are. The indication is whether the Sages made clear that one is flogged for each branch separately or only once for the whole. Here Maimonides relies on the principle, which we already saw in the first part of the root, that one never receives more than one set of lashes for one prohibition under one designation; therefore a multiplication of lashes necessarily indicates a multiplication of prohibitions. He writes:

Those prohibitions about which it was explained that one is liable for every one of the details are the ones in which each detail is counted as a separate commandment. But where it was explained that one is liable only once for the whole, we count it as one commandment, according to what we established in this root, that one can never receive two sets of lashes for one designation. When they explained explicitly concerning each of the wrapped matters that one receives lashes for each, and that if he does them all at once he receives many sets of lashes, we know necessarily that they are many designations, and each matter is counted separately.

What does this imply about the relation among the branches in wrapped prohibitions for which one is flogged separately for each detail? Apparently in those cases the verse is interpreted as containing fully separate prohibitions. For example, “A woman who is a harlot or profaned they shall not take” should really be read as if it said, in biblical shorthand: “A harlot they shall not take, and a profaned woman they shall not take.” Commentators have already noted that Scripture often avoids repeating the verb twice in one sentence and abbreviates in this way, as in “An Ammonite or a Moabite shall not enter,” and many other places. Read in that way, there is actually nothing common to the two details. They are simply two separate prohibitions.

Summary

At first glance, and so it appears in some commentators, a general prohibition seems to be a merely accidental grouping, motivated by verbal similarity and economy of language, of several prohibitions learned from one command. On that conception, it is not entirely clear why one does not receive lashes for it. Seemingly, the reason would be that its detailing is parallel to rabbinic exposition; that is, in a general prohibition there is no explicit warning in Scripture. Of course this cannot be Nahmanides’ explanation, since he disagrees with Maimonides on the second root. On that conception there is also a seeming contradiction between the two parts of the root. Maimonides’ discussion would have to be read as a long two-stage argument whose conclusion is that every commandment must have both an independent content and its own command-verse.

In light of several difficulties with that explanation, we proposed a different direction. There is indeed a common root to all these branches. One does not receive lashes for them because they are duties of the heart rather than duties of the limbs, and the duties of the limbs are only rabbinic, so there are no lashes for them either. On this proposal, Maimonides’ position throughout the root is that everything follows content, exactly as he emphatically states at the outset.

C. General prohibitions in light of Nahmanides’ objections

Introduction

In Maimonides’ words there are two planes on which he addresses the general prohibition. The first concerns how many lashes are administered in each situation and for each kind of general prohibition. This discussion centers on the passage in Pesachim. The second plane concerns how many prohibitions should be counted in the enumeration of the commandments. Most of the objections and defenses of Maimonides’ position focus on the first plane. Rabbi Daniel al-Babli, in Question 4, raises numerous objections on these themes: objections 1-12 concern the discussion in the first part, while the objections relevant to our present part begin at objection 13 and onward. Both Rabbi Daniel and Nahmanides engage in a detailed discussion of the passage in Pesachim and others.

It appears that Nahmanides fully agrees with Maimonides concerning the ordinary general prohibition, such as “You shall not eat over the blood.” He agrees that we count it as one prohibition and that one does not receive lashes for it at all. His objections, beginning around p. 164 in the Frankel edition, are directed only against Maimonides’ positions regarding the wrapped prohibitions.

The course of the objections

At the start of his remarks Nahmanides argues, just as he did in the first part, that a division of lashes does not necessarily indicate a division of prohibitions. Above we saw that Maimonides claims that among wrapped prohibitions there are some that are not general prohibitions, and the indication is that the Sages clarified that one is flogged for each branch. As noted, Maimonides relies here on the principle already established in the first part, that one is never flogged more than once for a prohibition under one designation.

Nahmanides again argues against him, consistent with his position in the first part, that it is entirely possible to have several sets of lashes for one designation. Therefore, a division of lashes does not remove any wrapped prohibition from the category of general prohibition. Rabbi Daniel al-Babli makes the same claim.

In effect, this is also a defense of the approach of Halakhot Gedolot, which, as Maimonides notes, counts even wrapped prohibitions of this kind as one prohibition. Nahmanides explains that Halakhot Gedolot works here with the principle that there can be several sets of lashes for one designation, as we explained in Part I of this essay.

Nahmanides goes on to argue, again with respect to wrapped prohibitions, that in some cases one is flogged for every branch, contrary to Maimonides’ view that one is flogged only under the general prohibition. For example, if one ate the Paschal offering raw and boiled, according to Maimonides he receives one set of lashes, only under the general prohibition, whereas according to Nahmanides he receives two, one for eating it raw and one for eating it boiled.³⁴

Three kinds of general prohibition

Nahmanides summarizes his discussion on the plane of lashes and says that, from this perspective, there are three kinds of general prohibition:

1. One prohibition that includes many matters whose subject and reason are not alike, and Scripture forbids them all under one prohibition and one name—for example, “You shall not eat over the blood,” and the like. Here all agree that no lashes are administered at all.

2. One prohibition that details many matters, such as “All leaven and all honey you shall not burn from them as an offering to the Lord,” or “An Ammonite or a Moabite shall not enter the congregation of the Lord,” and the like. In these cases it appears from the Sages that, according to everyone, one receives only one set of lashes even if he does two of the things at once. It seems that here the lashes are for the general prohibition, and therefore even if he does two details together, he receives only one set.

3. A prohibition that contains details, and at its end or beginning also a general clause, such as the prohibition that details raw and boiled and then concludes with a general clause, “except roasted by fire.” In this case, according to everyone, the details are superfluous, since the general prohibition covers them all. Therefore the detailing comes to teach that one receives lashes for each of them separately. This is unlike Maimonides, who holds that here one receives lashes only under the general prohibition.

Nahmanides assumes here that such detailing calls for interpretation, because in his view from the first part the Torah does not repeat commands for no reason. If the Torah repeats a command several times and there is no legal novelty, then clearly it must be introducing additional liability to lashes. As noted, Nahmanides also attacked Maimonides on this point in the first part and argued that if the Torah repeats a command several times without introducing a legal novelty, then it necessarily comes to add lashes.

It should be noted that according to Nahmanides the general clause in this third case is indeed an ordinary general prohibition, since in his view one receives lashes here only for the branches, not for the general prohibition, unlike Maimonides. Thus, for Nahmanides, the wrapping clause is a general prohibition for which no lashes are administered.

According to Nahmanides, then, the explanation we proposed above for the difference between this type, in which the details are merely a specification of the general rule, and the ordinary general prohibition, which he himself sees as a collection of unrelated prohibitions, cannot be correct. On his view one cannot understand the details here as specifying the general rule. Therefore, in his view, there are no lashes at all for the general clause itself, only for the specific clauses.

The general prohibition in the enumeration of the commandments

So far Nahmanides has been dealing with the plane of lashes for a general prohibition, which, according to Maimonides, also bears on the number of counted commandments, as explained above. Nahmanides continues and disputes Maimonides also on the second plane, namely the status of these prohibitions in the enumeration of the commandments. His main claim is that the enumeration follows the Torah’s detailing. The first kind of general prohibition is indeed counted as one prohibition, because in the Torah it appears as one prohibition. With wrapped prohibitions, however, he distinguishes between two cases. When the different branches do not share one common root, each of them is counted separately. But where the different branches are only a specification of one principle, there only one prohibition is counted. The same is true of his third type, such as the prohibition of raw and boiled with the Paschal offering.³⁵ That is, Nahmanides holds that there are cases in which wrapped prohibitions will be counted according to the number of prohibitions, namely where they are different prohibitions rather than details of one prohibition.

For example, the verse “You shall not afflict any widow or orphan” is treated by Nahmanides as two prohibitions, whereas “Bread, roasted grain, and fresh grain you shall not eat” is treated as one prohibition. Bread, roasted grain, and fresh grain are three kinds of new produce, and therefore this is one prohibition against eating produce from the new crop, with internal detailing. By contrast, the prohibition against afflicting a widow or an orphan is one of affliction, but the persons are different, and therefore the content of the prohibition is different as well.³⁶

Detailing the reason and detailing the definition: concept and general prohibition

Nahmanides adds an important distinction here, though its significance concerns chiefly the question of lashes. He asks why the thirty-nine categories of labor on Sabbath and Festival are not regarded as a specification of one general prohibition. If so, the prohibition of labor on the Sabbath would be a general prohibition. He answers that because their prohibition springs from one root—the prohibition of doing labor—it is obvious that we cannot count more than one commandment here. Nevertheless, as regards lashes there remains a practical difference depending on whether this is treated as a general prohibition: if we were to regard the prohibition of labor on the Sabbath as a general prohibition, then according to the view that lashes can be given for a prohibition that serves as the warning for a court-imposed death penalty, no lashes would apply at all, and certainly there could be no multiple lashes for performing several categories of labor at once.³⁷

Nahmanides answers³⁸ that when the detailing is the detailing of one action, there is no general prohibition here at all. For example, the thirty-nine categories of labor are a detailing of the prohibition to do labor. The concept “labor” is what is specified through those categories. By contrast, with the prohibition of acts of closeness to idolatry—hugging and kissing it, sweeping before it, honoring it, and the like—that is a general prohibition, and therefore the passage in Sanhedrin says that no lashes are given for it.

One might have objected that there too what is prohibited is serving an idol, and these acts are only a specification of the concept of service. It seems that Nahmanides’ point is that these are not specifications of the concept “service,” because acts not constituting its normal service are also prohibited there. Even acts that are not the normal worship of that idol are included.³⁹

Perhaps the difference can be formulated this way: when the detailing is a detailing of the shared idea in the commandment, such as the callousness of “eating over the blood,” it is not a detailing of the legal definition of the prohibition, and therefore it is a general prohibition. By contrast, when the detailing is not of the idea but of the act that is forbidden, then it is not a general prohibition. We can now explain this more fully.

Above we asked why the Torah would detail under one command prohibitions that seem unrelated. That question applies both to wrapped prohibitions and to the first type of ordinary general prohibition. As we saw in the previous chapter in Maimonides’ view, it is very plausible that there is a relation among them, and therefore they appear under one command. But the relation is on the conceptual plane, not on the practical plane. In that chapter we saw, for example, the common root of the branches of the prohibition “You shall not eat over the blood.”

Yet even if such a relation exists, it does not necessarily follow that we are dealing with a specification of one prohibition. It is a specification of one idea, but specification of a prohibition means specification of the forbidden act, not of the idea. For example, the prohibition of doing labor requires practical specification of what the content of the term “labor” is. The primary categories of labor and their derivatives are a specification at the practical level, not merely at the conceptual level. In fact, they specify the act of prohibition, or its legal definition, and not merely the underlying idea. By contrast, the detailing of “You shall not eat over the blood” is a collection of practical expressions of one conceptual essence. There is no basic act prohibited here whose details are then clarified; there is rather a collection of acts that express one idea. In other words: it is a specification of the idea, not of the legal definition of the prohibition.⁴⁰

On this basis, with prohibitions of idolatry too, even if they are a kind of detailing, it is a detailing of the idea of idolatry—being drawn after it—and not of the forbidden acts as such. Here it is harder to say that there is one prohibition carried out in several forms. In the case of Sabbath, by contrast, it is entirely reasonable to say that there is one prohibition, and there are simply several ways of violating it.⁴¹

Beyond that, in the case of idolatry it is we who infer the existence of the common conceptual layer, whereas in the case of Sabbath labors the Torah itself establishes it. The prohibition on the Sabbath is phrased as “you shall do no labor,” and the different labors are a detailing of that verse. With idolatry there are commands on each type of closeness, and the generalization that leads us to conclude that there is one underlying idea is something we ourselves construct.

Positive commandments that are “wrapped”

So far we have dealt only with “wrapped” prohibitions. Near the end of his discussion Nahmanides raises another kind of wrapping: wrapped positive commandments. Examples include commandments such as “Every firstborn that is born of your cattle and your flock,” or “Judges and officers you shall appoint for yourself in all your gates,” and the like.

With respect to these, Nahmanides seems to hold that they are always counted as one commandment, even though among prohibitions there are cases that are counted separately, namely where their contents differ.⁴² Maimonides too seems to agree with this, for he also counts the wrapped positive commandments just mentioned as one positive commandment. One might explain this by saying that there is no way to distinguish among several such positive commandments, because according to Maimonides the way to distinguish is by the Sages’ determining that one receives lashes separately for each branch. Positive commandments do not incur lashes, and therefore technically that criterion cannot be used with them. Even so, we must still ask why the Torah writes such wrapped positive commandments at all.

Perhaps when the Torah wants to command several positive commandments, and knows that we have no way of distinguishing them by means of lashes, it writes them in advance in separate form. Such a technical consideration would make sense if we understood general prohibitions as an economical way of writing several unrelated prohibitions in one stroke. But according to our proposal above, that there is a shared conceptual layer to all these prohibitions, if positive commandments are not written in wrapped form then we lose the possibility of discerning a common root among them. The matter still requires further investigation.

In the next chapter we will explain Nahmanides’ position and sharpen the differences between him and Maimonides. We will examine the matter on the plane of the relation between the general rule and the details included within it.

D. Nahmanides’ approach to lashes: the relation between a general rule and the details included within it

Introduction

There are two basic approaches in ontology to the relation between a general rule and the details included within it. One holds that the details are what really exist, while the general rule is only a convenient theoretical fiction used to sort individual objects into groups. The other holds that the general rule is also a real entity, and the details are like its limbs. This second approach itself divides into two possibilities:
1. the general rule is the basic object and the details are derived from it, like its limbs;
2. the details are the basic objects and their generalization creates the general rule, though it too has some sort of existence.

Take, for example, the concept of a people or a nation. Is “the people” really an entity that exists, with the persons who make it up functioning as its limbs? Or is the group containing all these individuals merely called “a people,” while that is in fact only a theoretical fiction and does not point to any real object? On a second level one can ask: even if a people does exist as a real object, are the individuals derivative objects, derived from it, or is the people the derivative object, derived from them? Different answers to this question will produce different conceptions of the relation between citizen and state or people—fascism, liberalism, and so on.⁴³

In this chapter we will suggest that different attitudes toward these questions underlie the dispute between Maimonides and Nahmanides.

A logical formulation: definition by extension and by intension

One aspect of these dilemmas appears in the familiar logical distinction between two ways of defining a set: extensionally and intensionally.⁴⁴ For example, the concept “democratic state” can be defined intensionally, through the characteristics of that kind of state—elected government, civil rights, and so on—or extensionally, through a complete list of all the states called democratic, such as the United States, England, France, and so on.

One can connect this logical distinction to the ontological distinction just noted. If the general concept does not really exist in its own right, then the natural way to define it will be by extension, that is, by listing the particulars included within it. By contrast, if the general concept does exist, it is natural to try to define it directly through its characteristics.

This connection is supported by the fact that general concepts are not always capable of explicit and direct definition, and this has led some to think that perhaps they do not exist at all. Of course that conclusion is not necessary, because it may be that even if some object exists, it still cannot be defined explicitly and we will have to make use of its extension in order to define and clarify it.⁴⁵ Nor is the converse necessary: perhaps even a theoretical object, one that does not really exist, can still be defined through its characteristics.

A rational consideration in favor of the existence of general entities

Returning to the example of a “people,” we may ask the same question: is “the people of Israel” an existing entity, or merely the group of all the individuals who call themselves Jews? As noted, the fact that it is so difficult to define the concept gives some support to the “particularist” approach. Even the mathematical definition—someone born to a Jewish mother or converted according to law—is problematic, because it does not represent the essence of the concept but only a computational technique for testing whether a given individual belongs to it. In that sense such a definition is, in substance, extensional rather than intensional.

On the other hand, it is hard to accept such a particularist position. For why do all these individual people who make up the extension of the concept, or its domain of application, all call themselves Jews? If the collection of those very particulars constitutes the basic definition of the term “Jew,” then there is no rational way to understand what connects all these people and why they chose a common designation. Why not gather into one group the chair beside me, the crow that flew here last week, and the ray of sunlight now entering through my neighbor’s door? The reason is that there is nothing at all shared by those things, so there is no point in including them in one class and certainly no point in giving them a common name.

So it seems clear that semantic sharing represents some substantive sharing as well, even if it is very hard, and perhaps impossible, to define. This suggests not only that the general concept exists, at least in such a case, but that in a certain sense it is the basic concept and the particulars are derived from it. This is not to say that their existence as objects is secondary or derivative, but only that their existence as Jews is derivative—that is, it is derived from the general concept of Jewishness, or the Jewish people.

Thus the particular objects clearly exist, and it seems that their existence as objects is basic and not derived from any broader concept. By contrast, it is very plausible that the attributes of those objects—”Jewish,” “democratic,” and the like—are indeed derived from the general concept that constitutes the attribute, such as Jewishness or democracy. It still remains open whether that abstract concept itself has some sort of existence in its own right, perhaps in a Platonic world of ideas, or whether it is merely a useful theoretical fiction.

A similar hesitation with respect to commandments

One can hesitate in similar ways with respect to the Torah’s commandments. Consider, for example, the ordinary general prohibition, the kind in which the prohibitive verse is written in an indeterminate way and the Sages derive several practical details from it. Here it would seem that the command is the general idea itself, while the details are its realization in some sense; that is, they are derived from it.

By contrast, when we are dealing with wrapped prohibitions, the Torah itself spells out the derived details. One may then hesitate whether the set of these details gives an extensional definition of the general idea, so that the command is really the idea and not the details; or perhaps the command is on the set of details, and the general idea here is no more than a theoretical fiction, a reason for the verse or a legal motivation, but not something that has standing in the law itself.

Take as an example the prohibition against eating the Paschal offering raw or boiled, one of the wrapped prohibitions. These are two details, raw and boiled, while the general idea behind them is the prohibition against eating the Paschal offering unroasted. We saw a dispute between Maimonides and Nahmanides regarding this case: does one who eats it raw or boiled receive lashes because he ate it unroasted—the general idea—which is Maimonides’ understanding, or because he ate it raw or boiled—the details—which is Nahmanides’ understanding? Nahmanides says he is flogged for the details, and therefore he can receive two sets, because the lashes are for eating raw and for eating boiled, not for eating it in a non-roasted state. Maimonides, by contrast, holds that he never receives more than one set. On his view the lashes are for the general prohibition, not for the details.

It thus seems that Maimonides holds that wrapped prohibitions of this kind are an extensional definition of the general idea, and therefore the detailing has no independent legal significance. That is why one receives lashes for the general prohibition—namely, for having eaten it unroasted. Nahmanides, by contrast, thinks the two details stand on their own, and the general idea is only an abstraction. There is no such thing as “unroasted” as an independent legal item. It is merely a collective term for a group of states, such as raw, boiled, and the like, but it has no independent existence. “Unroasted” is a fictive generalization, ontologically speaking, not a state that exists in its own right.

The consequence for lashes according to Nahmanides

Nahmanides, as noted, claims that when the details are superfluous, the detailing comes to teach that one is flogged for each detail. Only on his view is it possible to say that the details are superfluous, because he thinks the general rule has no significance in its own right. When the Torah states a general prohibition, its meaning is simply the set of details included within it, and therefore there is no point in spelling them out. We are thus forced to conclude that their explicit detailing, which is seemingly unnecessary, comes to teach something. From here we learn that one is flogged for each of them.

According to Maimonides, by contrast, when a general rule is stated it means a genuine general prohibition, and therefore the addition of details is not superfluous. The details are meant to clarify the general prohibition, unless the Sages reveal to us that one is flogged for the details themselves, each on its own. In that case, Maimonides says, the details have independent standing and do not merely clarify the general rule. Perhaps this also explains why, according to Nahmanides, such a superfluous detailing leads to lashes for the details but not to their being counted separately: after all, in substance there is nothing more here than repetition of the general principle. According to Maimonides, however, when the Sages say that one is flogged for each detail, it is clear that there is something beyond the command embodied in the general principle. Therefore one may infer from the lashes incurred for each detail that each detail must also be counted separately in the enumeration of the commandments.

It is important to stress that even according to Nahmanides, when there is no repetition of the details after the general rule, because the general rule is not explicitly stated in the Torah, his second type, then for wrapped prohibitions one is flogged only once. Presumably, in that case the Torah taught that one is flogged only for the general rule and not for the details. It appears from Nahmanides that this is the exception, the place where the Torah introduced a novelty: although the general prohibition is really nothing more than the set of details, since the Torah wrote them in wrapped form and did not hint, by a repeated generalization, that it intended separate lashes for each, one receives only one set, on account of the general whole.

A connection to the broader approaches of Maimonides and Nahmanides

In our introductory lesson we noted that Maimonides consistently follows a rationalist method, according to which the learner may make generalizations and those generalizations have real standing in the structure of Torah thought. He even imposes his generalizations on the legal data, which is a hallmark of rationalism, even where there seems to be tension with the sources. Nahmanides, by contrast, follows an empiricist method, according to which one must move from the particulars to the general rule, and one certainly may not impose an a priori conceptual generalization on the legal data found in the sources.

Here too Maimonides follows his general method. Since all the details point to one general prohibition, he concludes that the basis of the prohibition is the general clause and not the details, and therefore the offender is flogged only for the general prohibition. Nahmanides, by contrast, holds that the details are what constitute the general rule, and they alone truly exist. Therefore one is flogged for them. The general rule is only an after-the-fact generalization, as empiricism holds.

Footnotes