Emor (5764)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help — Midah Tovah — Eve of the holy Sabbath, Parashat Emor, 5765

Questions

1. The unique prohibitions applicable to priests.
2. Is the High Priest merely an improved ordinary priest, or is he essentially different?
3. Again, the two kinds of kal va-homer that are based on a single datum.
4. What is the difference between them in terms of the force of the law and the validity of the inference?
5. The connection to the emptiness of the analytic.
6. External and internal relations between concepts.
7. The meaning of an injury to the sanctity of the priesthood: morality, emotion, and reason.

The hermeneutical principles

Kal va-homer (a fortiori inference); gezerah shavah (verbal analogy).

And he shall take a wife in her virginity. A widow, or a divorced woman, or a profaned woman, or a harlot — these he shall not take; rather, he shall take a virgin from his people as a wife. And he shall not profane his offspring among his people, for I am the Lord who sanctifies him.

— Leviticus 21:13–15

As a tannaitic teaching states: The verse need not have said “a divorced woman” with respect to the High Priest, for it could have been derived by kal va-homer from the ordinary priest. I would then have said: if she is forbidden to the ordinary priest, is it necessary to say that she is forbidden to the High Priest? Why then was it stated? To teach that just as the divorced woman is treated separately from the zonah and the chalalah with respect to the ordinary priest, so too she is treated separately with respect to the High Priest. Is that obvious? Is she any less forbidden? Rather, the meaning is: just as the divorced woman is treated separately from the zonah and chalalah with respect to the ordinary priest, so too the widow is treated separately from the divorced woman, chalalah, and zonah with respect to the High Priest. Why was chalalah stated? Because chalalah exists only through a prohibition pertaining to priests. Why was zonah stated? Zonah is stated here and zonah is stated there; just as here his offspring are rendered non-priestly, so too there his offspring are rendered non-priestly. Rav Ashi said: Therefore, if a priest had intercourse with his sister, he renders her a zonah, but he does not render her a chalalah. If he had intercourse with her again, he has made her a chalalah.

— Babylonian Talmud, Kiddushin 77b

A. Prohibited Relations for Priests

Introduction

The tribe of priests is distinguished by several prohibitions that do not apply to the rest of Israel — that is, “additional commandments were imposed upon them” (see Babylonian Talmud, Yevamot 114b). With respect to marriage prohibitions, every priest is forbidden to marry a divorced woman, a zonah, and a chalalah (and in halakha (Jewish law), a woman released through the halitzah ceremony is forbidden only by rabbinic decree), whereas a widow is forbidden only to the High Priest. Intercourse with a woman forbidden to a priest can itself confer upon her a disqualifying status. The Talmudic passage in Kiddushin distinguishes between two kinds of disqualification: if the prohibition of intercourse is one that applies to all Israelites, the woman becomes a zonah. If the prohibition applies only to priests, the woman becomes a chalalah. For example, if a priest has intercourse with his sister, she becomes a zonah and not a chalalah, since the prohibition against one’s sister applies to all Israelites. But if he has intercourse with a divorced woman, he makes her a chalalah. Hence, when a priest has intercourse with his sister, he confers upon her the status of zonah. If he then has intercourse with her again, she is now forbidden to him also by a priestly prohibition, and as a result of this second act she becomes a chalalah as well.

The passage in Kiddushin assumes that it would have been enough for the Torah to state such a prohibition with respect to the ordinary priest, and it would then have been learned for the High Priest. If the prohibition is nevertheless stated regarding the High Priest as well, the passage understands this as intended to teach an additional point. For example, the prohibition of zonah, which is stated regarding both, is seemingly superfluous. The passage explains that it is written in order to teach us that when a priest has intercourse with a zonah, his offspring are rendered non-priestly. Thus there is an additional consequence here, beyond the status of the woman with whom he had intercourse. The offspring produced by that union is likewise disqualified from priestly status.

In the end, then, there is a two-way relationship between the High Priest and the ordinary priest. The High Priest is learned by kal va-homer from the ordinary priest, and the ordinary priest is learned by gezerah shavah — the verbal analogy based on the repeated word “zonah” — from the High Priest.

The Relationship Between the High Priest and the Ordinary Priest

A simple assumption of the Talmudic passage is that it would have been enough for the Torah to state the prohibition with respect to the ordinary priest, and we would have derived it for the High Priest. Presumably, that derivation too would have been by kal va-homer, as in the case of the divorced woman at the beginning of the passage quoted above. But if we were to derive it by kal va-homer, apparently we could not impose punishment for violating that prohibition, since it is an accepted principle that punishment is not derived by inference. It is therefore not clear why the passage assumes that repeating these prohibitions with respect to the High Priest is superfluous.

The Dispute Between Maimonides and the Raavad: Punishment Derived from Inference

Maimonides writes as follows in Mishneh Torah, Laws of Forbidden Relations 17:2–3:

2. Any priest, whether High Priest or ordinary priest, who married one of these three women and had intercourse with her incurs lashes. But if he had intercourse with her outside marriage, he does not incur lashes because of zonah, divorced woman, or chalalah, as it is said: “they shall not take” — meaning, only when he takes her and has intercourse.

3. But a High Priest who had intercourse with a widow incurs one set of lashes even if he did not betroth her, as it is said: “he shall not profane.” Once he has had intercourse with her, he has made her a chalalah and disqualified her from the priesthood. But a zonah, chalalah, and divorced woman are already profaned before his intercourse with them. Therefore the High Priest alone incurs lashes for intercourse with a widow alone, even where there was no betrothal, for by that act he makes her a chalalah, and he is warned not to profane those fit for priestly status, neither a woman nor his offspring.

Maimonides thus distinguishes between a prohibition that applies to the High Priest and one that applies to the ordinary priest. A High Priest receives lashes for intercourse with a widow even without betrothal, but not for a divorced woman, chalalah, or zonah. He explains that a divorced woman, zonah, and chalalah are already profaned — that is, already forbidden to priests — even before his intercourse with them, and therefore there is no separate prohibition for intercourse with them without betrothal.

The Raavad, ad loc., objects to Maimonides and writes:

“and had intercourse with her incurs lashes,” etc. The Raavad wrote: Reason does not accept this. For they derived the ordinary priest from the High Priest, regarding the profanation of offspring, by a gezerah shavah of “zonah” and “zonah.” Therefore their prohibitions are parallel, and this is his error. What misled him was the statement in the Gemara that a High Priest who has intercourse with a widow incurs two sets of lashes, one for “he shall not take” and one for “he shall not profane.” He thought this applied specifically to the High Priest. It is not so. The reason the profanation of the woman is not taught with respect to the ordinary priest is that the passage is speaking of incomplete intercourse, where there is no profanation of offspring.

That is, the Raavad holds that even when a priest has intercourse with a zonah, a divorced woman, or a chalalah, he incurs lashes for the intercourse itself, even without betrothal. The reason is that the Gemara derives this by gezerah shavah — “zonah”/”zonah” — from the prohibitions of the High Priest, teaching that in both cases intercourse with a zonah profanes the offspring. In other words, even if intercourse with a zonah or a divorced woman does not profane the woman herself, because she is already profaned, there is still a profanation in the child produced by that intercourse. From this it follows that the prohibition of “he shall not profane” applies to these relations as well.

This dispute gives rise to a long and detailed discussion among the commentators about the explanation of the Gemara’s line of reasoning there, especially further on, at 78a.¹ We shall not deal with the dispute itself. We will point out, however, that it is entirely possible that Maimonides is unwilling to derive either a prohibition or a punishment from an exegetical inference, and therefore he does not derive the ordinary priest from the High Priest, at least as far as punishment is concerned. We have already seen that in the Second Root Maimonides explains the rule that punishment is not derived by inference as applying to all thirteen hermeneutical principles, and not only to kal va-homer; Nachmanides vigorously disputes him there on this point as well.² If so, Maimonides will not derive a prohibition or a punishment even from gezerah shavah, not only from kal va-homer.

In any event, as we have seen, the derivation in the other direction — from the ordinary priest to the High Priest — is based on kal va-homer. Regarding kal va-homer, everyone agrees that punishment is not derived by inference. If so, the Talmudic passage, which assumes that it would have been enough for the Torah to write the prohibition only with respect to the ordinary priest and we would have derived it for the High Priest, is not clear.

The Type of Kal Va-Homer

Let us now try to clarify the nature of this kal va-homer. On the sheet for Parashat Noah we presented three types of kal va-homer:

1. A hermeneutical kal va-homer. This is a kal va-homer based on three data points. It generalizes from two of them, creates from them a rule of inference, and applies that rule to the third in order to derive the conclusion.
2. The inclusion-type kal va-homer, the type of “within two hundred is one hundred.” This is a kal va-homer based on a single datum. Its rule of inference is analytic, and it is applied to that single datum in order to derive the conclusion. In this case the result is contained within the premise, and the conclusion is therefore necessary. Such a kal va-homer cannot be refuted.³
3. A logical kal va-homer. This too is a kal va-homer based on a single datum. Its rule of inference arises from rational judgment, not from generalization based on two other data points; but it is not analytic, and therefore it can be refuted.

The question that distinguishes these different kinds of kal va-homer structure is: what is the rule of inference based on? In our case: what grounds the rule that the High Priest is more stringent than the ordinary priest? If it is a generalization derived from laws that apply to one and not to the other, then this is a hermeneutical kal va-homer. But the flow of the Talmudic passage clearly shows that this is not so. It would seem that the operative assumption here is a rational one: the High Priest must surely preserve a higher sanctity than the ordinary priest, and therefore what is forbidden to the ordinary priest is certainly forbidden to the High Priest as well. But it is also possible that the kal va-homer here belongs to the inclusion type.

Types of Kal Va-Homer Reflect Different Kinds of Conceptual Relations

The question of what type of kal va-homer we are dealing with depends on the question: what is the relationship between the High Priest and the ordinary priest? Is the High Priest something essentially different from the ordinary priest, or is he simply an ordinary priest with an additional layer? If the High Priest is an ordinary priest with additions, then clearly everything that applies to the ordinary priest must also apply to the High Priest. The converse is not true: there may be laws that apply only to the High Priest and not to the ordinary priest, because they derive from the additional, unique layer that exists only in him.

At the level of the laws that apply to the ordinary priest and the High Priest, this relationship does in fact hold. The laws that apply to the ordinary priest also apply to the High Priest, but not necessarily vice versa. But this is, of course, no proof that the High Priest is simply an ordinary priest with something added. That might be merely accidental, or an “external relation” between them.

An external relation means a relation that yields an explanatory, non-analytic kal va-homer. If there is an external relation between the High Priest and the ordinary priest, then we can say that the High Priest is more stringent than the ordinary priest, but not literally included within him. The High Priest is not an ordinary priest plus more, but a different category. And nevertheless, the laws that apply to the ordinary priest will also apply to the High Priest, because they stem from priestly sanctity, and his sanctity is certainly more stringent.

There are several halakhic discussions that turn on the question whether the relation is external or one of inclusion. For example, there is the discussion of whether “the original non-forewarned aspect remains in place” (Babylonian Talmud, Bava Kamma 45b and parallels). This passage discusses whether a forewarned ox is simply a non-forewarned ox with additions — that is, “the original non-forewarned aspect remains in place” — or whether it is an entirely new concept, though admittedly a more severe one.⁴

The Position of the Tzafnat Paneach and Its Implications

Let us return now to the question of the High Priest and the ordinary priest. The author of Tzafnat Paneach, in Responsum 2, argues that the High Priest is indeed an ordinary priest with additions, and not a fundamentally new concept. He discusses there the question whether a High Priest who becomes ritually impure for close relatives also transgresses the prohibition that applies to the ordinary priest; for this he cites Tosafot to Babylonian Talmud, Nazir 48b–49a, which states this explicitly.⁵ If so, the relation between the High Priest and the ordinary priest is not external. The High Priest is an ordinary priest, but with an added uniqueness beyond that of every priest.

Accordingly, it seems quite clear that the kal va-homer which derives the High Priest from the ordinary priest is of the inclusion type — “within two hundred is one hundred.” The High Priest is forbidden to a zonah by virtue of the ordinary priestly status within him, not specifically by virtue of his status as High Priest.

Returning to Our Passage

We can now understand the words of the Gemara in our passage. The Gemara assumed that if the prohibition of a zonah is written with respect to the ordinary priest, there is no need to repeat it with respect to the High Priest. It can be learned by kal va-homer. We asked why kal va-homer would suffice, given that neither prohibitions nor punishments are derived by inference. The answer is now self-evident: once the prohibition of the ordinary priest to have intercourse with a zonah is written, that prohibition already includes the same prohibition for the High Priest. It is not derived externally, but is actually contained within it. In such a case, it is clear that both prohibition and punishment may be established on that basis. This is not analogy, nor even generalization. It is logical identity.

An analogy may be drawn from the laws of damages, where the Torah says, “If a man’s ox gores the ox of his fellow,” and obligates the owner of the goring ox to pay the owner of the injured ox. Suppose we now discuss a dog that bit another person’s ox, and interpret the Torah as mentioning an ox only as an example. In that case, the law concerning the dog is included within the law concerning the ox, and it is obvious that we may impose liability on the basis of that reasoning. This is an interpretive judgment clarifying the meaning of the Torah’s own words, not an extension beyond what is found in the Torah.

By contrast, the gezerah shavah that derives the ordinary priest from the High Priest is one of the hermeneutical rules by which the Torah is expounded. It is therefore not identity but an extension beyond what is explicitly found in the Torah. There is no claim here that the laws of the ordinary priest are literally contained within those of the High Priest.

B. The Logical Meaning of the Difference Between Two Types of Kal Va-Homer: Strength and Validity

Introduction

In section A we presented two types of kal va-homer that are based on a single datum: the logical kal va-homer, whose rule of inference states that the derived case is more stringent than the source case and is grounded in rational judgment; and the inclusion-type kal va-homer, whose rule of inference is analytic.

In this section we will point to a surprising phenomenon in the relation between these two types of kal va-homer. On the one hand, there is a difference between them in terms of the relative severity of the rule in the source case and the derived case. On the other hand, there is a difference in the logical validity of the inference, and as we shall see, the direction of that difference is the reverse of the previous one.

The Force of the Relation Between the Source Case and the Derived Case

The logical kal va-homer, which is based on an external relation of greater severity between the source case and the derived case, is an amplifying consideration. The law in the derived case is more severe than the law in the source case, and therefore it is all the more obvious that it applies there. For example, if the High Priest is a concept essentially different from the ordinary priest, but one that is more stringent — that is, if there is only an external relation between them — then every law that applies to the ordinary priest will apply with even greater force to the High Priest, since he is more stringent.

By contrast, the inclusion-type kal va-homer is not based on a relation of leniency and stringency, but on similarity — in fact, on identity. Within this framework the relation between the concepts is internal: the High Priest is an ordinary priest, only greater. If so, the law that appears in the source case must appear in the derived case because the latter is identical with the former, not because it is more stringent. The force of the law in the High Priest is not stronger than in the ordinary priest, but exactly the same.

The Validity of the Inference

If, however, we examine the validity of the inference, we will easily see that the inference in the inclusion-type kal va-homer is necessary. It admits of no refutation. But the inference in the logical kal va-homer can be refuted, because it is based on a rationale of greater severity and not on genuine logical identity.

For example, one could in principle refute the external assumption that the High Priest is more stringent than the ordinary priest, by showing that some law that applies to the ordinary priest does not apply to the High Priest. But one cannot refute the inference from the ordinary priest to the High Priest if the assumption is that the High Priest is himself a kind of ordinary priest.⁶ Thus the validity of the logical kal va-homer is weaker than that of the inclusion-type kal va-homer.

The Problem in All This

There is something problematic in the picture that emerges from the previous two sections. We have before us two kinds of inference, one of which has absolute validity but yields less severe results than the other. The more valid inference is the weaker one, and vice versa. Is that really surprising?

The Logical Uncertainty Principle

On the sheet for Parashat Noah we noted that deductive inference, precisely because it is necessary, is valid only because it tells us nothing beyond what is already contained in its premises. Synthetic inferences — analogical and inductive — are weaker precisely because they add something non-trivial. The very novelty of the inference is what makes it vulnerable to refutation, and that is what makes it prone to error.

At the beginning of the book Two Carts and a Hot-Air Balloon, a joke is brought that illustrates this phenomenon — hence the “hot-air balloon” in the title.⁷

Two men were flying in a hot-air balloon and lost their way. After some time they saw a man standing in a field below them. They asked him, “Where are we?” The man answered decisively, “Above my field.” One of the travelers turned to his friend and said, “That is clearly a real mathematician.” When the other asked, “Why a mathematician?” the first explained: “For two main reasons. First, what he says is exact and unquestionably true. Second, it is of absolutely no use to us.”

The two characteristics of the mathematician are inseparably connected: the fact that his words are utterly precise follows precisely from the fact that they are of no use to us whatsoever — that is, they add nothing. This is the phenomenon known in philosophy as “the emptiness of the analytic.”

So we should not be surprised that the more valid kal va-homer is the one that is less forceful and less innovative. On the contrary, that is exactly what we should expect. This is the logical uncertainty principle: the greater the validity, the lower the force; and vice versa. In economics this is formulated as a direct relation between risk and return. The more risk one takes, the greater the possibility of profit. In this respect logic is characterized exactly like economics: an argument that takes the risk of error can generate greater novelty, and vice versa.

C. The Sanctity of the Priesthood: Emotion and Reason

Introduction

We will conclude with a brief discussion of the sanctity of the priesthood. Several years ago the press reported a case involving the wife of a priest who had been raped in Bnei Brak, and halakhic authorities ruled that her priest-husband was required to divorce her.⁸

This aroused a great storm, because that unfortunate woman had undergone a terrible trauma through no fault of her own, and now she was supposedly being forced to undergo an additional trauma that would only pour salt on her wounds. She wanted to continue living with her husband and their children, and halakha did not permit it. The newspapers were full of angry denunciations of halakha and of those decisors. The most common sentence in the media in those days was: “Do they have no heart?” Here we will attempt only to point briefly to one important point for understanding that difficult and painful situation.

Emotion and Reason

First, let us address that key sentence. Those halakhic authorities — hypothetical, as it turned out — certainly do have a heart, no less than anyone else. They surely would not have slept at night before or after issuing such a ruling. Unlike the newspaper readers, they would have had to stand before that couple, decide, and instruct them regarding the painful step they would have to take.

But decisors, despite all the pain of heart they have — and it is very important that they have it — are not guided solely by the heart. They are guided first and foremost by rational considerations. This is not to say that every decisor fully understands the rationale of the Torah’s command that in such a case the couple must separate. But those decisors are certainly convinced that this is the correct course, despite all the pain. Therefore they instruct accordingly, because in their world reason outweighs emotion.⁹

Why do newspaper readers — and perhaps not a few readers of this very page as well — not tend to act this way? It seems that two explanations can be suggested:

1. In our world there is a very strong dominance of emotion. This stems partly from a postmodern despair of reason. Where one believes that no decision can be reached by reason, one lets the heart lead.
2. In such a case there is a clash between two values, one of which we can very easily identify with, whereas the other is much harder for us to identify with.

The Sanctity of the Priesthood

The value conflict in this situation is between compassion for the unfortunate and the avoidance of harming the innocent, on the one hand, and the halakhic command concerning the sanctity of the priesthood, on the other. Halakha rules categorically that a priest who lives with a woman who has had intercourse with another man, even if by coercion, impairs the sanctity of his priesthood.

The first values are universal moral ones. It is very easy to identify with them — and that is good. But the second value, even if it is not easy to identify with, is no less true. It belongs, in a certain sense, to higher spheres, regarding which we have no intuitive feeling. A secular person, of course, does not recognize these spheres at all, and therefore sees a one-sided picture in which there is no conflict whatsoever. In such a picture this appears to be a wicked and incomprehensible act. But at least Jews who live by Torah and commandments should understand that this is not the real situation. There is a clash of values here, and in any clash one side inevitably finds itself harmed. In a conflict of values, one of the values is always compromised — as in the case of desecrating the Sabbath in order to save a life.

If we look at the situation from the opposite angle, and begin from the clear assumption that the Torah is fully aware of the moral implications and of the pain involved in harming these unfortunate people, we can learn from this something about the importance of the value of priestly sanctity. If it justifies such harm, then it is evidently a very important and significant value.

Footnotes