Shemot (5765)

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 — Sabbath eve, Parashat Shemot, 5766

Questions

1. An inference by means of “the common element” that can be challenged by an argument from a stricter aspect.
2. The factual and legal characteristics of the source cases in an inference of the “common element” type.
3. Three components in the causal relation: the physical, the logical, and the temporal.
4. Is the claim that every halakha (Jewish law) has only one cause accepted by the medieval authorities?
5. What happens when a majority forms in favor of one ruling, but for different reasons?

The Hermeneutical Principles

• Binyan av (constructing a general principle from a textual precedent) from one verse.
• Binyan av from two verses.

A. Summary of Last Year’s Article

“The Lord saw that he had turned aside to look, and God called to him from within the bush and said, ‘Moses, Moses,’ and he said, ‘Here I am.’”
— Exodus 3:4

“‘And He called to Moses and spoke’—the call preceded the speech. Is this not something that may be inferred? ‘Speech’ is stated here, and ‘speech’ is stated at the bush. Just as with the speech stated at the bush the call preceded the speech, so too with the speech stated here the call preceded the speech.

“(b) But if you say this of the speech at the bush because it was the first of the speeches, will you say it of the speech at the Tent of Meeting, which was not the first of the speeches? The speech at Mount Sinai proves otherwise, for it was not the first of the speeches, and yet the call preceded the speech there.

“(c) But if you say this of the speech at Mount Sinai because it was for all Israel, will you say it of the speech at the Tent of Meeting, which was not for all Israel? Thus you reason by a binyan av: the speech at the bush, which was the first of the speeches, is not like the speech at Mount Sinai, which was not the first of the speeches; and the speech at Mount Sinai, which was for all Israel, is not like the speech at the bush, which was not for all Israel.

“(d) The common element between them is that they are acts of speech from the Holy One to Moses, and the call preceded the speech. So too, every case that is speech from the Holy One to Moses is preceded by a call.

“(e) But perhaps the common element between them is that they are speech in fire, from the Holy One to Moses, and the call preceded the speech. Then every case that is speech in fire, from the Holy One to Moses, should be preceded by a call, excluding the speech at the Tent of Meeting, which was not in fire. Therefore Scripture says, ‘And He called to Moses and spoke’—the call preceded the speech.”
— Sifra, Parashat Vayikra, Dibbura de-Nedavah, parashah 1

“‘And He called to Moses and spoke’—why did the call precede the speech? The Torah teaches proper conduct: a person should not say anything to another unless he first calls him. This supports Rabbi Hanina, for Rabbi Hanina said: a person should not say anything to another unless he first calls him.”
— Babylonian Talmud, Yoma 4b

The central midrash (rabbinic interpretive exposition) cited above is not a midrash halakha (legal rabbinic exposition), nor is it really a midrash aggadah (non-legal homiletical exposition). It deals with an interpretive and factual question, whose conclusion turns out to have significance for proper conduct: whether and when God called to Moses before speaking with him, and from where we learn this.

The structure of the midrash is based on a pattern that the Sages call “the common element.” In such a derivation, we infer a conclusion from two different sources. We discussed this mode of derivation in detail in the previous article. See also the article on Parashat Tetzaveh, 5765, where we addressed several additional foundations that can find expression in such a structure, and connected this to various requirements in scientific methodology. We saw that the hermeneutical principle used by this sort of midrash is binyan av from two verses, and according to some approaches binyan av from one verse is structured this way as well. We will not repeat the full analysis and conclusions here, but only present a few of its principal points.

First, we addressed the question of the relation between the two source cases and the derived case. Is the derivation from one of them, with the second merely correcting what requires correction, or is the derivation from the common element of both? The diagrams presented in the previous article summarize our conclusions on this matter according to the different approaches.

We then noted that the different patterns can also lead to different legal consequences. A clear instance of this arises when the two source cases possess different characteristics, and the question then becomes which of those characteristics we assign to the derived case: the characteristics of both source cases, or of the primary one, or of neither. We noted that the medieval authorities cited by Rabbeinu Asher on Babylonian Talmud, Bava Kamma 6a, disagree about this.

At the end of that discussion we noted that the structure of “the common element,” by its very nature, is always exposed to the logical flaw of an objection from a stricter aspect—that is: what of the two source cases, each of which contains an advantage, a “stricter aspect,” that serves as an objection to the inference? We saw that such an objection is based on the assumption that each of the two unique characteristics could by itself cause the legal result under discussion. From this we concluded that the logic of the principle of “the common element” is based on the assumption that every halakha in the Torah has one and only one causal reason, and no more.¹ This conclusion has very interesting implications for halakha, and perhaps also for the philosophy of causality, though we did not discuss them there. In this week’s article we will address that point.

B. The Uniqueness of Causes in Halakha and in General

Introduction

As stated, in last year’s article we noted that an inference in the logic of “the common element” assumes that two different causes cannot produce the same halakhic result. For example, it cannot be that the obligation of payment imposed on an owner because his property caused damage stems from one of two different reasons—for example, that its initial formation was for damage, as in the case of a pit, or that it naturally moves and causes damage, as in the case of an ox. The assumption underlying the pattern of inference called “the common element” is that the obligation to pay derives entirely from one factor, and that factor is some generalization of those two particular reasons. In our case, the common reason is that the damaging property is my property and its guarding is my responsibility; therefore I am liable to pay for the damage it causes.

Sometimes the two reasons are different manifestations of the overarching reason, and sometimes they are not related at all to the reason that creates liability to pay. For example, in the case of torts, as Rabbi Yitzhak Ze’ev Soloveitchik wrote in his work on Maimonides, Laws of Monetary Damages, the special characteristics of each primary category of damage are not the reason for the obligation to pay, but the reason for the special exemptions that each category has: exemption for vessels in the case of a pit; exemption for tooth and foot in the public domain; concealed items in the case of fire; or half-damages in the case of an innocuous horn. In the language of the Gemara, Babylonian Talmud, Bava Kamma 5b, this is called “for their specific laws.”

In this chapter we will deal somewhat with the nature of causality in general, and halakhic causality in particular. The discussion is somewhat philosophical, scientific, and abstract, but I assume that with a bit of concentration all readers will be able to follow the course of the argument.

A Brief Introduction to the Philosophy of the Causal Relation²

The relation between cause and effect has aroused great interest in philosophy, and no small amount of ink has been spilled in attempts to clarify it. Some philosophers have understood the relation between cause and effect as a logical relation, while others have understood it as a physical one. The approach that sees a physical relation between cause and effect speaks of the cause as “bringing about” the occurrence of the effect. By contrast, the approach that sees here a logical relation speaks of the cause as a logical condition for the occurrence of the effect, without recourse to concepts such as “bringing about.” According to this approach, if A occurs, then B will also occur—not necessarily because A caused B, but because there is a relation of logical dependence between the two states.

In truth, from an intuitive standpoint it is completely clear that the relation between cause and effect consists of both these dimensions together. There is logical dependence here, but that dependence is a result of the relation of causation between the states. Without causation, we would not believe that the logical dependence between the states is essential and therefore should always obtain. Let us add that there is also a third component in the causal relation: the dimension of time. The cause is always supposed to appear before the effect. The temporal dimension is not a necessary feature of logical dependence, since there is no logical barrier to speaking of a condition that appears after that which depends on it. It is therefore an additional component that is not logical in character. The conclusion is that the causal relation involves at least three kinds of components: a logical component, a physical component, and a temporal component.

For example, the statement “if there is rain, then there are clouds” sounds to us reasonable, and yet the rain does not precede the clouds. But if we say, “if there are clouds, there is rain,” then our intention includes temporal priority: the clouds precede the rain. The second statement is closer to what we would call a cause, even though both statements equally express a relation of logical dependence. It is worth noticing that specifically the more “causal” statement does not express a necessary relation: the fact that there are clouds is the cause of rain, yet it does not necessarily follow that whenever there are clouds, rain will fall. The clouds are a necessary condition, but not a sufficient one, for rain.

In the previous example, the clouds are the cause of the rain, and not the reverse. But as noted, not every time there are clouds will there be rain. The reason is apparently that, beyond the existence of clouds, additional conditions are required—perhaps also special kinds of clouds—in order for rain to fall. If so, the cause of rain is not merely clouds, but clouds together with those additional conditions. That entire complex is the cause of the rain.

Is it possible that there would be no clouds and yet rain would still fall? Theoretically one might say yes, even if in this particular case it does not seem so. If, for example, water were poured out from airplanes passing overhead, one might say that here there is rain without clouds. True, one might also say that this is not rain at all, and that the phenomenon of rain is caused only by the complex of causes described above. Even so, once we enter more deeply into the complex of causes required in order for the phenomenon of rain to arise, there is in principle no barrier to thinking that several different sets of circumstances could result in actual rain.

General Logical Formulation

When we say that event or state A is the cause of event or state B, it is clear that there cannot be a situation in which A exists and B does not occur. If cause A is present, the effect B occurs. On the other hand, in principle one might hold that even though B occurs, A did not occur, since there may be an additional cause of B besides A.

In logical language, we may put it this way: when we say that event A is the cause of event B, we mean that event A is a sufficient condition for the occurrence of event B. But it is not clear whether event A is also a necessary condition for B or not. It should be noted that quite a number of analytic philosophers have disagreed about this question over the past several decades.

One should notice that if A is a necessary and sufficient condition for B, then B is also a necessary and sufficient condition for A. In other words, the relation of necessary and sufficient condition is bidirectional, or symmetrical. This is very easy to see. Suppose that A is a necessary and sufficient condition for the existence of B. If B exists, can we infer with certainty that A occurred? The answer, without doubt, is yes. For if A did not occur, then the assumption that A is a necessary condition for B is contradicted, since we would then have before us a case in which B exists and A did not occur. It is therefore clear that the relation would not be necessary. Thus, the assumption that it is a necessary and sufficient condition compels us to infer that B is also a necessary and sufficient condition for A.

One implication of this symmetry is that the concept of “cause” necessarily contains non-logical components. For if the concepts of cause and causality were purely logical—if we identified the cause with the logical condition—then whenever A is the cause of B, B would necessarily also be the cause of A. If striking a match is a cause of the creation of fire, then the creation of fire would also be a cause of striking the match. Our intuition regarding the concept of cause resists such a conclusion, and it is therefore clear that the causal relation includes a non-logical component. Let us try to examine those additional components.

The Relation between the Logic of Causality and the Scientific Conception

Since causality is a feature of the physical world, it is no wonder that its definition depends on our conception of nature and the character of its laws.

This discussion is connected to the question of physical determinism. At least in the inanimate natural world, it seems clear to us that some totality of circumstances dictates one specific and definite result. If so, it is clear that the cause is at least a sufficient condition for the emergence of the effect. On the other hand, a given phenomenon does not necessarily indicate one specific state that prevailed before it. Theoretically, two different states could produce a state like the one we now observe. If so, the cause is not necessarily a necessary condition for the effect.

In mathematical language, we would say that the correspondence between cause and effect is single-valued, but not one-to-one.³ In other words, the relation between causes and effects is a mathematical function.⁴

Questions about the exact mathematical character of the causal function are bound up with two of the most interesting scientific riddles. First, quantum theory includes a certain freedom in the relation between cause and effect. Given a defined physical state, we are unable to determine with certainty what state will emerge from it. Apparently this is not merely a limitation on our part; nature itself is not fixed all the way down.

The second riddle concerns the character of the most fundamental laws of nature, all of which are reversible. This reversibility means that if we were to film a fundamental physical process in reverse, no one could detect that there is anything there that fails to fit the laws of nature. The reverse process fits the laws of nature just as well as the original process. This property follows from the fact that the most fundamental equations—that is, the functions—of physics are insensitive to the sign of the time parameter. If we reverse the sign, the equation does not change; that is, it is symmetric with respect to time reversal.

By contrast, in life we are familiar with many phenomena that are not reversible. For example, if we see a jar falling from a roof and shattering, this is a natural and sensible process, even if not particularly pleasing to us. But if we see the film in reverse—that is, shards rising from the ground, fusing together, and arranging themselves on the roof in the form of an intact jar—we would clearly conclude that this is a process that does not fit the laws of physics.

It is commonly said that the problem arises when we are dealing with temperatures that are not absolute zero. In that case, the controlling theory is thermodynamics, and it is not reversible with respect to the time axis. Put differently, within thermodynamic theory—unlike other domains of physics—it is possible to assign a definite direction to the time axis.⁵

A break in the directional symmetry of the time axis also means a break in the symmetry between cause and effect, since, as we have seen, the causal relation also contains a temporal component.

Let us now view this from another angle. We focus on three markings on the time axis, where A is the earliest and C the latest: at time A, state A prevails; at time B, state B prevails; at time C, state C prevails. The state at time A is the cause of the state at time B, and the state at time B is the cause of the state at time C. Now let us “reverse” the time axis. It now turns out that state C is the cause of state B, and state B is the cause of state A.

If both of the described processes fit the laws of nature, then it follows that state B has two possible causes: state A and state C. By contrast, if only the first direction of the time axis is “lawful,” that is, in accord with the laws of nature, then there is no reason to assume that state B has more than one possible cause, namely state A. If so, breaking the symmetry of the time axis preserves the uniqueness of the causal relation, or at least does not force us to give it up. Here the causal condition is necessary and sufficient. But the existence of such symmetry necessarily breaks the uniqueness of the causal relation, and turns it into something sufficient but not necessary.

Causality between Halakha and Philosophy

As we saw above, the logical pattern of “the common element” assumes a one-to-one relation between states of causes and the halakhot that apply to them. The implicit assumption in this pattern is that every halakha has only one cause.

By contrast, we saw above that from the very nature of the causal relation there arise two possibilities for understanding its logical component: is it a necessary and sufficient condition, or merely a sufficient condition? We saw that the cause’s being a necessary and sufficient condition for the effect points to the uniqueness of the cause, and to a temporal asymmetry embedded in it. How are we to decide which of these two conceptions is correct? What is a “cause” at all?

At first glance, the pattern of “the common element” decides this dilemma: every halakhic effect has only one cause. But this decision concerns the halakhic plane, which is normative in nature. What of causality in the natural and empirical world? By force of this decision, can we say something about the causal relation in the scientific world, and in general?

This is not entirely clear. If we adopt the assumption that the Torah has a structure that in some respects corresponds to the world—that is, that it reflects the logical infrastructure of the world—then it is reasonable to infer that the causal relation in halakha should correspond to the causal relation in the world itself. But this conclusion is, of course, not necessary.

In the article on Parashat Bereshit, 5765, we presented the approach of Rabbi David Cohen, known as the Nazir, who saw the hermeneutical principles as fundamental forms of thought about the world itself, and not merely as formal tools for scriptural exegesis. As we explained there, he viewed the system of hermeneutical principles as a kind of map of analogical and inductive modes of inference in general. According to his approach, it would be very plausible to conclude that if causality in the Torah indeed has the character of a necessary and sufficient relation, then that will also be the character of the causal relation in the world itself.

The Uniqueness of the Causal Relation and Parallel Planes of Explanation

Several times in the past we have noted that a single phenomenon can admit several parallel interpretations or explanations. See the sheets on Parashot Vayetze, Vayechi, Bamidbar, and Ha’azinu, 5765, and the sheet on Parashat Lekh Lekha, 5766.

In the sheet on Parashat Vayetze we brought examples from various fields of such parallel planes of reference and explanation. For example, the apple that fell on Newton’s head can be explained by a sin Newton committed, with the apple’s fall serving as a punishment imposed on him because of that sin, or by the operation of gravitational force. As we saw in the sheet on Parashat Vayechi, if Newton had sinned but the branch holding the apple had been strong enough to resist gravity, then if we accepted the theological explanation, the apple would fall. And if the branch had been too weak to withstand it but Newton had not sinned, then if we accepted the physical explanation, the apple would also fall. So which of the two is the correct explanation? What is the true cause of the apple’s fall: the theological one or the physical one?

At first glance, this too suggests a conception of the uniqueness of explanation or cause. On the other hand, in some areas we are committed to a plurality of explanations.

Even if we assume a plurality of explanatory planes, each explanation must lie on a separate plane. Each explanatory plane ought to contain a complete explanation, in itself, of the event in question. Therefore, in each explanatory plane there is only one explanation, or only one cause. However, on parallel planes there may perhaps be several explanations in parallel.

If so, the principle we have reached here is that every halakha has only one cause. It is, however, clear that one may describe that cause on the plane of peshat (plain sense) or on the plane of drash (homiletical interpretation), and these will not be two different causes. They are two different descriptions of the same occurrence on several parallel planes.⁶

Example: Ruling for Different Reasons and the Majority in a Court

An example of a halakhic implication of this conception may be found in the issue of following the majority in a court. As is well known, the rule of following the majority, and apparently also the rule of nullification by majority, is learned from the verse “incline after the majority,” which deals with the laws of a court. This verse instructs us that when there is disagreement among the judges, we are to adopt the opinion of the majority.

However, there are situations in which the judges rule in favor of the same position for different reasons. Judge A rules for opinion A on reason a, while Judge B rules for opinion A on reason b. In contrast to those two, Judge C rules for opinion B on reason c. In such a situation there is no majority for any of the principles under discussion—that is, for any of the reasons. On the contrary, every reason is in the minority.⁷ The majority exists only on the practical plane. When we ask why we should hold the litigant liable, every position that would justify doing so is in the minority within the court. If so, how can the litigant be held liable without a rationale that was accepted by the court? Perhaps, in truth, in such a case we should not follow the majority of opinions.

The Rema, in Shulhan Arukh, Hoshen Mishpat 25:2, deals with legal rulings in matters of permission and prohibition, and writes as follows:

“Likewise, if an individual is against the majority, we follow the majority everywhere, and this is so even when the majority do not agree for one single reason, but each has his own separate reason. Since they agree regarding the ruling, they are considered a majority, and we follow them.”
— Rema, citing Rashba, Responsa no. 253, and Maharik, root 41

If so, it appears that the Rema relates to majority on the basis of positions, not on the basis of reasons. The Shakh, ad loc., discusses this issue at length, and shows that there are situations in which we must follow the reasons and not the majority of opinions. This is not the place to expand further on this grave issue.

Let us now examine the matter in light of what we said above. We saw that in halakha there is one cause for every law. If so, how can it happen that there are different reasons leading to the same ruling? At first glance, according to our assumption, some of the judges must certainly be mistaken.

But this argument is apparently incorrect. We are not dealing here with causes for some law or rule, but with different considerations in favor of or against one of the litigants. The considerations themselves are laws, not states, and the decision whether to hold him liable or not depends on different laws. Each such law indeed has only one cause, on account of which one should act in that way; but there is no obstacle to there being several laws that direct us toward the same practical ruling.

The Passage in Sanhedrin 34a: One Reason from Two Verses

In the Gemara, Babylonian Talmud, Sanhedrin 34a, we find a very interesting legal determination:

“Rabbi Assi asked Rabbi Yohanan: If two say one reason from two verses, what is the law? He said to him: We count them only as one.”

From the Gemara it appears that if two sages bring two sources for one reason, from our standpoint this is one reason. At first glance, this seems to be merely a question of counting: we count the reasons, not the sources. But further on in the passage it appears that this is not the basis of the determination:

“From where are these words derived? Abaye said: For the verse says, ‘God has spoken one thing; two things have I heard, that strength belongs to God.’ One verse yields several reasons, but one reason does not emerge from several verses. The school of Rabbi Ishmael taught: ‘And like a hammer that shatters rock’—just as this hammer breaks into many sparks, so too one verse yields several reasons.”

Rashi, commenting there on the words “we count them,” writes:

“For one of those verses was not written for this purpose, since we maintain that two verses were not written for one reason. Therefore one of them is in error.”

That is, the reason we do not count them as two is that one of them is mistaken, not because there is duplication between them. The Gemara therefore establishes that one reason cannot emerge from two verses. What does “reason” mean in this passage? The Gemara continues:

“What is a case of one reason from two verses? Rav Zevid said: As we learned in the Mishnah: ‘The altar sanctifies what is fit for it.’ Rabbi Yehoshua says: Anything fit for the fire-offerings, if it went up, it does not come down, as it is said, ‘the burnt-offering on its firewood.’ Just as a burnt-offering, which is fit for the fire-offerings, if it went up, does not come down, so too anything fit for the fire-offerings, if it went up, does not come down. Rabban Gamliel says: Anything fit for the altar, if it went up, does not come down, as it is said, ‘it is the burnt-offering on its firewood upon the altar.’ Just as a burnt-offering, which is fit for the altar, if it went up, does not come down, so too anything fit for the altar, if it went up, does not come down. And what do both of them include? Disqualified items. One derives this from ‘its firewood,’ and the other derives it from ‘the altar.’”

If so, “reason” here means a law, not a rationale or an argument, exactly as we explained above.

The conclusion is that the correspondence between scriptural sources and the halakhot learned from them is not two-way. One source may yield several halakhot, or “reasons,”⁸ but one halakha cannot be learned from several sources. The Gemara establishes the functional relation that we noted above in the discussion of the relation between causes and effects, except that it applies it to the relation between the sources and the laws.

An Apparent Contradiction to the Pattern of “The Common Element”

At first glance, every scriptural source reflects a conception or rationale from which the law under discussion emerges. According to what we said above, every law can have only one reason, even though additional laws may emerge from that same reason. This would seem to be the conception of causality that we saw above. On the other hand, when we encounter two different sources from which the same law emerges, we should seemingly conclude that we are mistaken. Yet the pattern of “the common element” assumes exactly the opposite: that if there are two sources, then obviously their root is one—that is, they teach the same rationale and, through it, the same law. But it is clear that the passage here does not negate the pattern of “the common element,” which is one, or according to some opinions two, of the hermeneutical principles by which the Torah is interpreted.

This is only an apparent contradiction. In a case where there are two different sources for the same law and we perform a derivation of “the common element” between them, we are dealing with the application of the same law to two situations. For example, compensation for damage caused by an ox and compensation for damage caused by a pit. The law is the obligation to pay, and the two cases are different circumstances in which one must pay. Here there is obviously no error. The case described in the Gemara there is the derivation of that very law itself from two different sources. If so, there is indeed harmony between these two meta-halakhic conceptions.

C. The Passage in Makkot 4b: Does Every Halakha Really Have Only One Cause?

The Passage in Makkot: The Core of the Problem

The Gemara in Babylonian Talmud, Makkot 4b, discusses whether one receives lashes for violating a prohibition that involves no action. It cites a dispute between Rabbi Akiva and Rabbi Yehuda on this issue: Rabbi Yehuda held that one does receive lashes, and Rabbi Akiva held that one does not. Rabbi Yehuda’s source is a derivation by “the common element” from conspiring witnesses and the slanderer of his wife, since in both cases there is no action and yet lashes are administered. However, conspiring witnesses are unique in that they do not require prior warning, and the slanderer is unique in that he both receives lashes and pays. Therefore the law is derived by means of “the common element.” The Gemara then raises an objection against these two sources: what of both of them, for each contains a stricter aspect? In simple terms, the meaning is that conspiring witnesses do not require prior warning, and the slanderer both receives lashes and pays. The Gemara answers that Rabbi Yehuda does not reject a derivation on the basis of this kind of objection. In practical halakha, however, we follow the Sages, that one does not receive lashes for a prohibition lacking an action, and not Rabbi Yehuda. It therefore seems that in the final analysis this objection is accepted.

But such an objection undermines the entire derivation of “the common element,” for every derivation in this pattern can be challenged in just this way. See last year’s article, and compare the question raised by Tosafot on Babylonian Talmud, Ketubot 32a, s.v. “sheken.” Beyond that, this Gemara would seem to provide decisive proof against our claim that every law does not necessarily have only one cause, for here the Gemara is prepared to accept that in the case of the slanderer he receives lashes because of one stricter aspect, and in the case of conspiring witnesses they receive lashes because of another stricter aspect.

The Views of the Medieval Authorities

All the medieval authorities on the passage raise this question, and they disagree about the proper answer to it.

Rashi, in his comment on the words “a stricter aspect,” writes that since the stringency of one is not the stringency of the other, this necessarily cannot be the obligating cause, and the rationale for the lashes does not depend on it. That is, he explains that this itself was Rabbi Yehuda’s answer. But, as we have already noted, Rabbi Akiva’s view is the one accepted in practice, and Rabbi Akiva apparently does raise the objection from a stricter aspect. If so, it is not clear how, in practice, one can derive anything from “the common element” at all.

The Ritva, in his comment on the words “Rabbi Yehuda,” explains that it is possible that Rabbi Akiva also does not reject derivations on the basis of a stricter aspect, but he has another objection, mentioned earlier in the Gemara, and on that basis he rejects the derivation and exempts one from lashes for a prohibition lacking an action.

Tosafot as well, in their comment on the word “rather,” raise this difficulty, and explain it in two ways:

1. The objection here is indeed from a feature shared by both source cases, and therefore Rabbi Akiva does challenge the derivation on that basis. Rabbi Yehuda, who does not challenge it, is not expressing a general methodological position; rather, this particular objection is not acceptable to him, because he holds that conspiring witnesses do perform an act, since “through their speech an act is effected.” Clearly, if the objection is from a feature common to both source cases, there is no contradiction to our assumption that one law cannot have two different causes. Here there is only one cause.
2. When there is a highly unusual and exceptional characteristic, then one does raise an objection from a stricter aspect. See the detailed discussion in the Ritva there, in his comment on the words “what of the common element.”

The Ritva also cites the Ramban, who held that the reason we ordinarily do not challenge an inference by a stricter aspect is that in the two source cases there are two stringencies absent from the derived case, while in the derived case there is also a stringent aspect not found in the source cases. In such a situation, it is possible to derive the law for the derived case from the two source cases together, because we compare and say that all of them have some stringent aspect, and this is common to each of them; therefore the law that applies in the source cases should apply to the derived case as well. But here there is nothing in the derived case beyond what is found in the source cases, and therefore one does challenge the inference by a stricter aspect. According to the Ramban, it appears that he really does not accept the assumption that every law has only one factor behind it. For when the derived case also has a stricter aspect that does not exist in the source cases, one can derive from them to it, and the result is that each of the three aspects, by itself, could be the factor generating the law in question. This is an astonishing and revolutionary view. In effect, it means that we compare the level of stringency of the laws and not their specific properties, but this is not the place to elaborate.

See there in the Ritva, and in the editor’s notes in the Mossad Harav Kook edition, for additional explanations on this matter.

Another Explanation

If we look again at our case, and take into account the explanation we proposed above—namely, that the assumption behind the pattern of “the common element” is that there cannot be two different causes for the same law—then this difficulty disappears on its own. Not only is there no difficulty here for our principle; on the contrary, there is strong proof for what we said.

For the difficulty raised here is directed at the very pattern of “the common element,” and not only according to our explanation. But according to our approach, every such pattern is based on the assumption that the unique characteristics of the source cases cannot be what causes the law, since they are different, and one law cannot have two different causes. Let us now examine the case discussed in Makkot. The two unique aspects of conspiring witnesses and the slanderer are not characteristics of the offense, but laws that pertain to it: that prior warning is unnecessary in the case of conspiring witnesses, or that in the case of the slanderer he both receives lashes and pays. Yet there is no doubt that the fact that the slanderer both receives lashes and pays is not the reason that he receives lashes. At most it is an indication that there is here a uniquely stringent aspect, and that aspect of stringency is what causes the obligation of lashes.

By contrast, in the primary categories of damage, the unique characteristics are not laws but traits of the two source cases. For example, the characteristic of a pit is that its creation begins with damage in mind, and that certainly could be the factor that makes its owner, that is, the one who dug it, liable to pay. If the Gemara in Babylonian Talmud, Bava Kamma 6a, where it details the “common element” of the primary categories of damage, had said that a pit is exempt regarding vessels, then one truly could not construct a common element from there, since that is a law that applies to a pit and not a characteristic of a pit. One cannot say that the obligation to pay stems from the fact that a pit is exempt from payment for damage to vessels. That is a meaningless sentence.

If so, laws can be grounded in features of the situation of the source cases, but not in other laws that are applied to them. Therefore, when we raise two objections that deal with legal properties of the source cases, then one may indeed challenge the derivation by a stricter aspect. The two properties—receiving lashes and paying, and not requiring prior warning—are not causes of the obligation of lashes, but indications that there is an added stringency here. And that added stringency is common to both source cases, though it does not exist in the derived case. Therefore, the objection from a stricter aspect is valid here.

It seems that the Ra’ah, as cited in the Ritva there, intends to explain matters in this way. He sharpens the point even further by saying that here the objections are essentially the very same thing that we are trying to learn from them. That is, the objection in the case of the slanderer is that he both receives lashes and pays, but the lashes are precisely what we want to learn from him. So how can one challenge the derivation by the very fact that he receives lashes? At most, one could claim that every prohibition lacking an action should likewise receive lashes and require payment, just like the slanderer.⁹

Final Note: Do the Medieval Authorities Accept Our Explanation?

These points are so simple and compelling that the opposite question now arises: what troubled the medieval authorities at all? At first glance, their questions prove that they did not understand the logic of “the common element” in the way we have proposed. In the opinion of the Ramban we certainly saw that he did not understand it that way. From the second explanation in Tosafot as well, which distinguished between very exceptional characteristics and ordinary objections, it appears that they did not accept our approach.

To answer this, one must examine the foundation underlying the assumption behind an objection from a stricter aspect. Even if the Gemara raises aspects that are legal characteristics and not characteristics of the teaching context itself, those special legal characteristics constitute a sign of a special stringent aspect that exists in the source case itself. The question is how we should relate to a situation in which we have two aspects that are legally stringent, and whose existence testifies to the existence of corresponding aspects in the properties of the source cases. Can one carry out an inference by “the common element” or not? What are we to assume regarding those hidden aspects? More generally, we must examine the various sources that perform an inference by “the common element” when the objections to the source cases are legal rather than attributes of the cases themselves. Is such an inference possible at all? According to our approach, it would seem that it is not. But this requires further discussion.

Footnotes