Lesson 27: Vayakhel-Pekudei

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

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With God’s help

Concepts

• Indirect derivation from a verse
• Return to the original prohibition

Abstract

This week’s article deals with the prohibition against a beit din (rabbinic court) administering punishment on Shabbat. Most of the sources in the rabbinic tradition, in the Babylonian Talmud and in the Mekhilta, appear to understand this as an extension of the prohibitions of labor on Shabbat. In other words, there is no separate prohibition against punishment on Shabbat; rather, administering punishment does not override the prohibitions of labor. By contrast, several medieval authorities, including Maimonides and Sefer HaChinukh, and also the Jerusalem Talmud, seem to treat the prohibition against punishment on Shabbat as an independent prohibition.

We present several practical ramifications of this dispute: whether to count this prohibition as a separate negative commandment or include it within the prohibitions of labor on Shabbat; whether it forbids flogging as well or only execution; whether the prohibition is directed at the court or at the court’s agent; whether it concerns the judicial act or the actual carrying out of the sentence; whether violation incurs stoning and a sin offering or flogging; and more.

Along the way, a distinction emerges between the prohibited labors involved in carrying out an execution and the prohibition of taking life itself. It is possible that the prohibition of taking life does not apply here at all, and that the entire discussion concerns only kindling and the like.

We suggest two different approaches to explaining Maimonides and Sefer HaChinukh:

1. There are two parallel prohibitions: a labor prohibition regarding the kindling, and a prohibition directed at judges against punishing on Shabbat.
2. There is a labor prohibition in the verse, and from it one learns indirectly that there is also an independent prohibition against judging and punishing, for otherwise the labor prohibition itself would not apply here.

According to the second approach, the indirectly derived prohibition may be less stringent. At the end of the article we briefly discuss the derivation of rabbinic prohibitions from the verse “You shall not turn aside.” This too is an example of an indirect derivation of prohibitions from a Torah verse, and there too the status of those prohibitions is weaker.

We also point out practical differences between these two possibilities, for example with respect to the law of killing a man who pursues a betrothed young woman in order to rape her.

Within the framework of the second proposal, we touch on the issue of “return to the original prohibition.” This is a principle in halakha (Jewish law) according to which, when an otherwise prohibited act has been permitted in certain circumstances, and within those circumstances there exists a secondary, lighter prohibition that again forbids the act, then in some cases the original prohibition may reawaken. If that secondary prohibition is a prohibition inferred from a positive command, which in halakhic terms is treated like a positive commandment and does not incur flogging, then the return to the original state may impose upon it the status of a regular negative commandment, with the result that its punishment will be flogging.

The Rules and Principles That Emerge from the Article

Regarding Punishment on Shabbat

A Look at the Indirect Derivation of Prohibitions from a Verse

A. Punishment on Shabbat

Introduction

The Torah’s prohibition of labor on Shabbat appears in several places, as Maimonides already noted in the ninth root of Sefer HaMitzvot, and Nachmanides in his glosses there. Most commentators see the warning against labor on Shabbat in the Ten Commandments; see Exodus 20:9. At the beginning of the portion of Vayakhel, however, the Torah commands us regarding the punishment of one who violates the prohibition of labor on Shabbat:

Moses assembled all the congregation of the children of Israel and said to them: These are the things that the Lord has commanded to do: Six days labor shall be done, but on the seventh day there shall be for you a holy day, a sabbath of complete rest to the Lord; whoever does labor on it shall be put to death. You shall kindle no fire in all your dwellings on the sabbath day.
— Exodus 35:1-3

At the end of this passage, the Torah saw fit to command the prohibition of kindling fire on Shabbat. This is unusual in two respects. First, the passage itself is not about the prohibition but about its punishment, whereas this command concerns the prohibition itself. Second, kindling is one of the thirty-nine primary categories of labor, and these are not stated explicitly in the Torah. There are two exceptions that the Torah commands explicitly: carrying and kindling. The Sages address this phenomenon and offer several explanations for it, that is, what is learned from the fact that kindling was singled out; see Rashi there and others.¹ Some tannaim saw this verse as teaching that kindling is less severe than the other labors, since it is permitted on a festival, and they apparently understood the need for the verse as teaching that nevertheless on Shabbat it is forbidden like every other labor. Others saw this verse as the source for separate liability for each category of labor on Shabbat, and that is also the accepted halakha, namely, that kindling is not less severe than the other Torah-level labors.

The midrash (rabbinic exposition) with which we will deal this week, according to which it is forbidden to execute court-imposed death penalties on Shabbat, can also be seen as an explanation of this anomaly.

Punishment on Shabbat: Rabbinic Sources

In the Mekhilta de-Rabbi Ishmael on Mishpatim, tractate Nezikin, section 4, on the words “From My altar,” the question is discussed whether court-imposed execution overrides Shabbat, just as it overrides Temple service and the like. In that context the following exposition is cited:

One of Rabbi Ishmael’s students said: Scripture says, “You shall not kindle fire in all your dwellings.” Burning was included in the general category and singled out in order to teach: just as burning is unique in that it is one of the court’s death penalties and it does not override Shabbat, so too none of the other court-imposed death penalties overrides Shabbat.

That is, the extra mention of kindling comes to teach that execution by burning does not override Shabbat. From there the rule is extended to the other court-imposed death penalties, which also do not override Shabbat. Why might we have thought that court-imposed death penalties would override Shabbat? In this midrash, that possibility is presented as the result of an a fortiori argument from the fact that court-imposed death penalties override Temple service and the like.

We find another midrash as well, also in the Mekhilta, this time in the context of explaining why kindling was singled out. In Vayakhel, tractate Shabbata, section 1, on the words “You shall not kindle,” we read:

One of Rabbi Ishmael’s students said: Scripture says, “You shall not kindle fire.” Why was this said? Because it says, “If a man has committed a sin deserving death, and he is put to death.” I might think this applies both on weekdays and on Shabbat. How then do I uphold “its violators shall surely be put to death”? As referring to the other labors, excluding court-imposed execution. Or perhaps it applies even to court-imposed execution. How then do I uphold “and you shall hang him on a tree”? As referring to all other days, excluding Shabbat. Therefore Scripture says, “You shall not kindle fire,” and so on. Burning was included in the general category and singled out in order to teach: just as burning is unique in that it is one of the court’s death penalties and does not override Shabbat, so too none of the other court-imposed death penalties overrides Shabbat.

Here the initial assumption that one may execute even on Shabbat is presented as based on the verse commanding the execution of one liable to death, apparently from the doubled wording “he shall surely be put to death.” Afterward a doubt arises, and the conclusion is that court-imposed execution does not override Shabbat.

Another source appears in the Jerusalem Talmud, Sanhedrin 4:6, in the course of a discussion about the possibility of judging on Friday:

Rabbi Ila said in the name of Rabbi Yannai: From here we learn that courts may not judge on Shabbat. What is the reason? Here it says “in all your dwellings,” and there it says, “These things shall be for you as a statute of judgment throughout your generations in all your dwellings.” Just as there Scripture speaks about a court, so here too Scripture speaks about a court.

In the Jerusalem Talmudic exposition, however, it appears that the subject is not court-imposed execution at all, but rather a general ruling that a court does not judge on Shabbat. The source is indeed the same verse, but here there is an important clarification absent from the Mekhilta passages above: the verse is understood as referring specifically to a court because the word “your dwellings” is taken to mean a court.

Ibn Ezra, in his commentary there, explains this somewhat differently:

The meaning of “These are the things” is the Tabernacle and its vessels, to make them; therefore it says “to do them.” The sense is that God commanded me that you do what I tell you. Yet He warned you that although you are obligated to do the work of Heaven, beware not to do any labor on Shabbat. One who transgresses in the presence of witnesses shall be put to death by the court. Elsewhere Scripture explains that this is by stoning.

On the plain meaning, he is speaking about the labor of the Tabernacle, but it is possible that he also sees our rabbinic exposition as based on the opening of the passage, which speaks of the things we were commanded to do. From this he explains that the prohibition of kindling was said with respect to those very things, meaning that even an act we were commanded to perform, namely punishment, is forbidden on Shabbat. According to this, the sequence of the verses should be read as follows: there are things we were commanded to do; on the other hand, we must preserve the sanctity of Shabbat; and therefore even things we were commanded to do do not override Shabbat.²

But it seems that a simpler explanation lies in the context of the passage itself. As noted, it begins with the punishment for Shabbat labors in general and continues with the warning about kindling. Why such a mixture? It may be that the verses are to be read continuously: “its violators shall surely be put to death” — but this punishment itself, that is, the execution of the violator, must not be carried out on Shabbat.

It should be noted that the Babylonian Talmud, Sanhedrin 35b, gathers all these sources into a single structure and explains that the tannaitic dispute over why kindling was singled out from the other labors is not related to the issue of court-imposed execution on Shabbat. That law is learned not from the fact that kindling was singled out, but from the word “dwellings.” Shabbat is a personal obligation and should therefore apply everywhere. If so, why does the Torah say that it applies “in all your dwellings”? To teach us that the rule includes court-imposed execution.

The Enumerators of the Commandments

This law is also counted in the enumeration of commandments by Maimonides and those who follow him. In Sefer HaMitzvot, negative commandment 322, and see also Sefer HaChinukh, commandment 114, Maimonides writes:

The 322nd prohibition is that we were warned against punishing sinners and carrying out judicial sentences on the Sabbath day. This is His statement, at the beginning of Vayakhel: “You shall not kindle fire… on the Sabbath day.” The meaning is that you shall not burn one who has incurred burning, and the same applies to the other death penalties. The language of the Mekhilta is: “You shall not kindle fire” — burning was included in the general category and singled out to teach that just as burning is unique in that it is one of the court’s death penalties and does not override Shabbat, so too all the other court-imposed death penalties do not override Shabbat. Now they said, in Babylonian Talmud, Sanhedrin 35b and parallels, that kindling was singled out as a prohibition. This is not the halakha; rather, it was singled out to divide liabilities, so that one is liable for each labor separately, as explained in its proper place. And in the Jerusalem Talmud, Sanhedrin 4:6: “in all your dwellings” — Rabbi Ila said in the name of Rabbi Yannai: from here we learn that courts may not judge on Shabbat.

The opening formulation of Maimonides’ words is that one may not punish on Shabbat. In that sense his source appears to be the Jerusalem Talmud. But later he specifies that the prohibition applies only to court-imposed executions, not to all forms of punishment. The structure is the same in Sefer HaChinukh.

B. Two Laws Concerning Execution on Shabbat

Defining the Rule

At first glance, all these sources imply that the prohibition against executing a condemned person on Shabbat is a violation of the prohibition of labor. These sources teach us that although execution is a commandment and a Torah obligation, it does not override Torah prohibitions. It follows clearly that one who transgressed and executed a condemned person on Shabbat violated the labor of kindling, and also the prohibition of taking life. In the other court-imposed death penalties — strangulation, the sword, and stoning — there is no separate labor in the mode of execution itself, and only the prohibition of taking life remains.

Yet this picture is problematic in terms of the enumeration of commandments. On this understanding, we would expect that this prohibition not be counted separately, but rather be included as one detail among the prohibitions of labor on Shabbat. What we have here is a source teaching that even when one kills those liable to death, one violates the prohibition of labor on Shabbat. In other words, one who violates this prohibition has not violated an independent ban on punishment on Shabbat, but the ordinary prohibition of labor on Shabbat. If so, why did the enumerators of the commandments decide to count this prohibition separately?

Indeed, in Sefer HaChinukh, commandment 114, when explaining the roots of the commandment, we find the following:

From the roots of the commandment: the Blessed God wished to honor this day, so that all should find rest on it, even sinners and those liable to punishment. This may be compared to a great king who invited the inhabitants of the land one day to a feast and did not shut the door to anyone, and only after the feast day did he hold judgment. So too, the Blessed God commanded us to sanctify and honor the day of Shabbat for our good and our merit, as I wrote above, and this too is part of the honor of the day.

At first glance, this is puzzling. Why explain the basis of the prohibition in terms of a desire to allow rest to those condemned to death?³ On the face of it, the problem is desecration of Shabbat, that is, the severity of the prohibition of labor. We see from the words of Sefer HaChinukh that there is indeed an independent prohibition here. The problem is not the court’s desecration of Shabbat or that of its agents, but the absence of rest for the condemned person. Even if this is the reason behind the verse and not its formal legal definition, it still seems that one can learn from it the legal character of the prohibition.

Another legal implication concerns who actually violates this prohibition. If it is merely a prohibition of labor on Shabbat, then the offender is the court’s agent who physically carries out the execution. The judges who ordered it do not themselves perform labor on Shabbat, and therefore at most they violate the prohibition of placing a stumbling block before the blind, that is, causing another to sin. Yet at the end of the commandment, Sefer HaChinukh discusses the punishment of one who violates this prohibition, and writes:

This commandment applies in Temple times to males, who possess judicial authority and are obligated to beware lest they administer judgment on Shabbat. If they transgressed and ordered a person to be burned on Shabbat, they violated this prohibition. They are not flogged for it unless they performed an act. But if they performed an act, for example if they themselves burned him with their own hands, then if there were witnesses and prior warning they are stoned; if unwitting, they bring a sin offering for atonement.

That is, the addressees of the prohibition are the judges, not their agents. The prohibition concerns the order to burn, not the burning itself. Sefer HaChinukh is therefore fully consistent with his view that the basis of the prohibition is not the prohibition of labor on Shabbat, but a prohibition directed at judges against judging and punishing on Shabbat. Admittedly, if the judges did not themselves perform an act, they cannot be flogged, because a negative commandment without an act does not incur flogging. But if they did perform an act, they are punished. What is surprising is that Sefer HaChinukh says nothing at all about the punishment of the court’s agent who physically carried out the act, though he would seem to have violated the ordinary prohibition of labor on Shabbat. It is possible that because he acted under court order he is regarded as coerced. It is also possible that Sefer HaChinukh saw no need to mention it because it is included under the regular prohibitions of labor.

Two Prohibitions in Court-Imposed Execution on Shabbat

There is another point in the words of Sefer HaChinukh. He entertains the possibility that if the judges performed an act they should be flogged, and rejects that only because this is a negative commandment without an act. This implies that it is an ordinary negative commandment and not one of the Shabbat prohibitions, so that the punishment for violating it, if an act were involved, should have been flogging. Yet later he rules that if an act was in fact performed, the punishment is stoning in the intentional case and a sin offering in the unintentional case. That seems to imply that it is, after all, one of the prohibitions of Shabbat.

One might therefore understand that this prohibition is indeed an ordinary negative commandment, and so one who violates it should be flogged. But in addition, if the court executes a person, it has also performed labor on Shabbat, and from that perspective it is liable to stoning or a sin offering.

This also explains another feature of the wording of Sefer HaChinukh. After stating that the prohibition applies to all court-imposed death penalties, in the final passage just cited he shifts to a discussion of one who ordered a person to be burned on Shabbat. Why does he focus specifically on burning and not on every court-imposed death penalty? According to our proposal, the answer is simple: every court execution violates this negative commandment, but there is desecration of Shabbat only if it is done by burning.

True, every execution involves taking life, but it is possible that the prohibition of taking life does not apply to one who is already liable to death at the hands of the court.

This can be explained in two ways:

1. Because he is already liable to death, he is considered as one already dead.
2. Because of the initial assumption found in the midrashim above, according to which it would be permitted to execute a condemned person on Shabbat with respect to the Shabbat prohibitions, the novelty in the final conclusion was not said with respect to the prohibition of taking life. That prohibition truly does not exist when the life in question is that of one already liable to court-imposed death. The novelty of the law is that there is another prohibition against court execution on Shabbat, and for that one is liable only to flogging. It is not a Shabbat labor prohibition.

According to this proposal, if the court transgressed and strangled a person liable to strangulation on Shabbat, it would not be liable to stoning or a sin offering, because it did not violate a labor prohibition. Rather, it violated a distinct negative commandment that is not one of the Shabbat labors. If the judges themselves acted physically, they would incur flogging for that commandment, but not stoning.

This also makes clear what we asked above: why does Sefer HaChinukh not discuss the punishment of the court’s agent who executed on Shabbat? According to our proposal, the agent did not transgress any Torah prohibition. The ban on court execution on Shabbat was said to the judges, not to the agent. And the prohibition of labor does not apply to the execution as such.⁴

Sources for This Distinction

It seems that these two prohibitions emerge from the two types of midrashim cited above in section A. The language of the Mekhilta passages and of the Babylonian Talmud clearly points to the conception that the basis of the prohibition is the prohibition of labor on Shabbat, and the novelty is that the obligation to execute those liable to death does not suspend the Shabbat prohibitions. By contrast, the language of the Jerusalem Talmud clearly indicates that the prohibition is a newly formulated prohibition against judging on Shabbat: “that courts should not judge on Shabbat.”

If we return to the two Mekhilta passages cited above, we can detect these two tones there as well. The first Mekhilta rejects the initial assumption that punishment overrides the labor of kindling on Shabbat. Once that is established, it is quite clear that one who punished by burning violated the labor of kindling, and there is no separate negative commandment here. By contrast, the second Mekhilta rejects the possibility that the duty to punish applies on every day of the week, “I might think, both on weekdays and on Shabbat.” Here the conclusion is that there is no duty to punish on Shabbat, and perhaps even a prohibition, while the punishment for kindling is only a consequential result.

We have seen that both Sefer HaChinukh and Maimonides cite both of these dimensions and do not explicitly distinguish between them. Even so, based on the linguistic nuances noted above, there is good reason to see in Sefer HaChinukh the complex picture we have drawn here, one that unites the two sources and yields a picture of two parallel prohibitions.

Maimonides in the Fourteenth Root

In the fourteenth root, Maimonides rules that the duty to punish must be counted as a commandment in its own right. His words contain two novel claims:

1. Carrying out the punishment is itself a commanded act incumbent on the court.
2. This commandment is independent and not merely a detail within the prohibition for which the punishment is imposed.

For example, the obligation to stone Shabbat desecrators should be counted separately as a positive commandment, and not treated as merely one detail of the negative commandment prohibiting labor on Shabbat. Of course, we do not count every individual obligation to stone separately, but the general obligation to stone those liable to stoning. The same is true with flogging, burning, and the like.

There Maimonides brings proofs for these two principles, and in that context he invokes our midrashim as well:

The carrying out of all these penalties is a positive commandment. For we were commanded to kill this person, to flog that one, to stone another, and to bring a sacrifice for that for which one becomes liable when one transgresses. The proper way to count them is to count the four court-imposed death penalties as four positive commandments. The language of the Mishnah is: “This is the commandment of those who are stoned,” and likewise: “How is the commandment of those who are burned carried out?” “How is the commandment of those who are strangled carried out?” “How is the commandment of those who are beheaded carried out?” They also said that the statement of the Most High, “You shall not kindle fire,” came to warn against carrying out these penalties on Shabbat. For He warned about a burning that is itself a commandment, and said “in all your dwellings,” meaning, in the seat of the court they shall not kindle fire, even though it is a positive commandment. They said: “Burning was included in the general category, and why was it singled out? To teach that just as burning is unique in that it is one of the court’s death penalties and does not override Shabbat, so too all the other court-imposed death penalties do not override Shabbat.” This is clear and leaves room for no doubt. Likewise flogging too should be counted as a commandment…

Maimonides here apparently intends to prove the first principle, that carrying out the punishment is the fulfillment of a commandment. His proof is based on the fact that a special verse was required to teach that court-imposed execution may not be carried out on Shabbat. This implies that execution is indeed a positive commandment, for otherwise why would we have thought at all that it was permitted on Shabbat? In any case, it seems clear from his words that the novelty is that the commandment would have overridden the prohibition of labor on Shabbat, but it was newly taught that it does not override it. Nothing in this passage suggests an independent prohibition against punishment on Shabbat. Nachmanides agrees with this in his glosses there.

Maimonides’ Position in the Mishneh Torah

By contrast, the wording of Maimonides in Hilkhot Shabbat 24:7 appears to yield a different picture:

Punishments are not administered on Shabbat. Although punishment is a positive commandment, it does not override Shabbat. How so? If a person was sentenced by the court to flogging or death, he is not flogged and not executed on Shabbat, as it is said, “You shall not kindle fire in all your dwellings on the sabbath day.” This is a warning to the court not to burn on Shabbat one who is liable to burning, and the same law applies to all the other punishments.

On the one hand, he writes that this commandment does not override Shabbat, which clearly suggests, as in his discussion of the roots, that the prohibition involved is the prohibition of labor on Shabbat, not overridden by the commandment to execute those liable to death. On the other hand, this halakha appears in the later chapters of Hilkhot Shabbat, that is, in the context of ancillary rabbinic restrictions, and not in the opening chapters where he deals with the Torah prohibitions of labor. That specifically suggests that this is a new and distinct prohibition, not a labor prohibition, as we inferred above in Sefer HaChinukh as well.

There are two additional proofs from Maimonides’ wording here. First, the warning is directed to the court, not to the court’s agent, even though the agent is the one who actually performs the labor on Shabbat. This proves that the prohibition is not a labor prohibition but a prohibition against judging on Shabbat. Second, Maimonides makes a very sweeping move here: he extends the prohibition to all other punishments, and not only to death penalties, both at the beginning and at the end of the halakha. This clearly reflects a conception according to which we have an independent prohibition here and not merely a labor prohibition, for administering flogging on Shabbat certainly does not involve a Torah prohibition of labor.

In fact, this also follows from the very fact that in Sefer HaMitzvot Maimonides counts this as an independent negative commandment, and not as one detail within the prohibition of labor on Shabbat. It is therefore not clear how far his words in the Mishneh Torah truly contradict his words in Sefer HaMitzvot and in the roots. Perhaps in those two sources he presents the law as it appears explicitly in the Torah, whereas in the Mishneh Torah he extends it to punishments in general.⁵

The Prohibition Against Judging for Flogging: A Dispute Between Maimonides and Tosafot

Naturally, this halakha does not appear in the Shulchan Arukh, since that work deals only with laws that apply in our time. However, it does say there, in Orach Chayim 339:4, that judging on Shabbat is forbidden, as part of the rabbinic decrees lest one come to write, and therefore even monetary cases may not be judged on Shabbat. The Minchat Chinukh, on commandment 114, section 1, and the Magen Avraham, on 339:3, infer from Maimonides in Hilkhot Shabbat 24:7, cited above, that there is a prohibition against judging a person on Shabbat altogether, and not only against carrying out court-imposed death penalties. The Magen Avraham there objects:

Maimonides wrote in chapter 24: “Punishments are not administered on Shabbat, for although punishment is a positive commandment, it does not override Shabbat. How so? If one became liable to death or flogging, he is not flogged,” as it is said, “You shall not kindle fire,” and the same applies to the other punishments. The Maggid Mishneh wrote that Maimonides counted this in the enumeration of the commandments. But in truth, in the enumeration of the commandments, number 322, it implies that only in a case involving desecration of Shabbat is it forbidden by Torah law; and this also appears from Babylonian Talmud, Shabbat 106a, regarding kindling. Perhaps flogging too involves desecration of Shabbat, for example where it causes a wound; this requires investigation. And perhaps from the amplification of the verse “in all your dwellings” we derive that courts may not judge at all; this too requires investigation. Yet in Babylonian Talmud, Sanhedrin 35a, it appears only in a case involving desecration of Shabbat, and this is also the implication of Tosafot there. Monetary cases are not judged because of the rabbinic decree lest one write. It is stated in Babylonian Talmud, Sanhedrin 88b, that on Shabbat the Sanhedrin would not sit in the Chamber of Hewn Stone but rather on the rampart, so that it would not appear as though they were judging on Shabbat. It therefore seems to me that for this reason it is forbidden to establish a place for a halitzah ceremony on Shabbat. See Even HaEzer, in the explanation of the order of halitzah, section 17, where he strains over this matter.

There are two types of objection here: contradictions to the wording of Maimonides himself in Sefer HaMitzvot and in the roots, and contradictions from sugyot in the Babylonian Talmud, in Shabbat 106a and Sanhedrin 35a, from which it seems that the prohibition exists only where there is actual desecration of Shabbat through labor. That is why they conclude that in the case of flogging as well, one must be dealing with a wound that involves a Torah labor prohibition, though of course this is very forced. According to our approach, however, there is no difficulty at all. The prohibition is to judge on Shabbat, not specifically a prohibition against carrying out punishment through acts that are prohibited labors. As we have seen, Maimonides regards the judges as the addressees of the prohibition, which strongly supports our reading.

On our approach, the ruling cited later in the Magen Avraham also becomes clear: the Sanhedrin were decreed not to sit in the Chamber of Hewn Stone on Shabbat so that they would not appear to be judging. If the prohibition were only the rabbinic decree lest one write, plus the labor prohibition if one physically carried out the punishment, it is unclear why there should be a safeguard upon a safeguard. According to our approach, this is a safeguard for a Torah prohibition.⁶

Still, the sugya in Shabbat 106a seems at first glance to prove against Maimonides’ view, for the Gemara there infers from the fact that the Torah forbids burning the daughter of a priest who committed adultery that such burning is a Torah-level labor on Shabbat, that is, it is treated as constructive rather than destructive. The assumption, then, is that what is forbidden here is labor. The same is true in the Sanhedrin sugya, parallel to the Mekhilta passages we cited, for the exposition there shows that kindling was not permitted for the sake of punishment, which implies that the prohibition is because of labor on Shabbat.

And this is indeed explicit in Tosafot, in the comment beginning “killing does not override,” on the Sanhedrin sugya:

Killing does not override Shabbat. In the case of burning this is understandable even according to the opinion that a destructive act of kindling is exempt, because there is desecration of Shabbat on account of the wick, as stated in Babylonian Talmud, Yevamot 6a: what difference is there between cooking a wick and cooking spices? And with the other death penalties too, even according to the opinion in Babylonian Talmud, Ketubot 5b, that a destructive act involved in making a wound is exempt, here it is considered constructive, because it brings him atonement.

We see that the prohibition exists only where there is labor on Shabbat. It should be noted, however, that both in the Shabbat sugya and in Tosafot, they do not take the prohibition of taking life into account, but discuss only the prohibition of kindling. This would seem to show that even according to the approach that treats the issue as one of labor, the prohibition concerns the labor involved in the execution and not the execution itself, as we explained above.

With respect to Maimonides, there seems to be no escape from the conclusion that he rules in accordance with the Jerusalem Talmud, namely, that the prohibition is to judge, not a prohibition of labor, and that the Babylonian Talmud apparently disagrees with this conception. If so, the dispute between Maimonides and Tosafot is in practice a dispute between the Babylonian Talmud and the Jerusalem Talmud.

C. A More Complex Model

Introduction

Up to this point, we have seen that in the execution of those liable to court-imposed death penalties on Shabbat there may be two different prohibitions: a prohibition of labor on Shabbat, perhaps said only with respect to the acts of labor involved in the execution itself, but not with respect to the prohibition of taking life, and usually directed to the court’s agent rather than to the judges; and a prohibition against punishment on Shabbat, directed to the judges themselves.

But the picture of two different prohibitions operating in the same situation does not seem to reflect the intention of the medieval authorities. First, Sefer HaChinukh itself does not say explicitly that there are two prohibitions here. That conclusion arose only from careful, though compelling, inferences from his language. We found something similar in Maimonides: on the one hand, his words suggest that the main novelty is that the Shabbat prohibitions are not displaced by the commandment to execute those liable to death, which would make this a labor prohibition. On the other hand, we saw that Maimonides treats it as an independent prohibition and extends it even to flogging. Yet Maimonides too never explicitly says that there are two separate prohibitions here.

In this section we will suggest that the actual state of affairs may be more complex. We will propose a model in which both aspects exist together within a single prohibition. The distinction between the prohibitions of labor and the prohibition against court-administered punishment is not as sharp and dichotomous as we have presented it until now.

The Complex Model

Perhaps we should regard these two dimensions as intertwined rather than as two rival explanations, each excluding the other. One way to formulate this is as follows: the original exposition is based on the fact that kindling was singled out to teach that burning the daughter of a priest does not override Shabbat. That is, the foundation is the prohibition of labor. But why is there in fact a labor prohibition here, if there is a positive commandment to burn her? To this the Gemara answers that apparently this obligation does not exist on Shabbat, and therefore the act counts as a prohibited act of labor.

From this consideration it emerges that the ruling that the prohibition of kindling remains in force indirectly proves that carrying out punishments is forbidden on Shabbat. In other words, the independent prohibition is not written explicitly in the Torah, but is learned from the Torah’s treatment of the burning of the daughter of a priest as prohibited labor.

We can now understand that if some court burns a daughter of a priest who committed adultery, it violates both prohibitions at once: the prohibition of labor and the prohibition against judging her on Shabbat. That is why the act incurs the ordinary Shabbat sanctions of stoning or excision, and that is also why one might initially have thought that the judges would incur flogging as well, were they to violate the prohibition through a concrete act.

This may explain why in Sefer HaMitzvot only the prohibition against judging for death is explicitly mentioned, whereas in the Mishneh Torah the rule is expanded to all court-imposed punishments. That expansion is the result of an interpretive extension of the verse, and not something written explicitly in the Torah, and therefore it is not counted in the enumeration of the commandments, in line with Maimonides’ second root.

The difference between this proposal and the previous picture is found on two levels:

1. The source: According to the previous picture, the source for the independent prohibition is the phrase “in all your dwellings,” while the prohibition of burning is an ordinary labor prohibition whose warning, according to the view that kindling was singled out to divide liabilities, comes from the verses in the Ten Commandments. According to the picture proposed here, the source for the prohibition of burning is also this verse, and the independent prohibition is learned indirectly from the very existence of the labor prohibition.
2. The essence of the prohibition: According to the previous picture, the labor prohibition exists even if there were a duty to burn the daughter of a priest on Shabbat and no independent prohibition at all. Here, by contrast, the labor prohibition arises from the fact that there is a prohibition against punishing on Shabbat. Without such a prohibition, the burning would not count as a prohibited labor.

One implication of this distinction concerns prior warning. As is well known, a person who violates a prohibition is not punished unless he was warned beforehand. There is a rule that the warning must be specific and mention the prohibition being violated. The question thus arises: for what exactly does one warn a person who violates this prohibition? Is the warning for labor on Shabbat, or for the prohibition against punishment? Of course, if one cites the verse “You shall not kindle fire” in the warning, that certainly works according to all views.⁷ In Minchat Chinukh, section 2, it is taken for granted that the warning is for the prohibition of kindling on Shabbat, which is entirely consistent with his approach.

Return to the Original Prohibition

The Gemara, in Babylonian Talmud, Beitzah 12a, rules that one who slaughters a voluntary burnt offering on a festival is flogged. An obligatory burnt offering is permitted even on a festival, whereas a voluntary burnt offering remains prohibited, for vows and freewill offerings are not brought on a festival. Tosafot, in the comment beginning “one who slaughters,” ask:

But if so, even Beit Hillel should agree that he is flogged, for they hold later there that vows and freewill offerings are not brought on a festival. Why then does the Gemara establish the case according to Beit Shammai? It may be answered that from where does he derive that vows and freewill offerings are not brought on a festival? From the verse “for yourselves” and not for the Most High. If so, this is a prohibition inferred from a positive command, and one is not flogged for it.

That is, according to Beit Hillel one is not flogged, because this is a prohibition inferred from a positive command, which is treated like a positive command and not like a regular negative commandment. Tosafot then raise a further difficulty on the view of Beit Hillel:

But if so, once Scripture restored it, it restored it to the original prohibition. For we say regarding one who shears disqualified consecrated animals that he is flogged, even though we know the prohibition of shearing only from the verse “you may slaughter” — and not shear — which is a prohibition inferred from a positive command, for which one is not flogged. Rather, it must be that once Scripture restored it, it restored it to the original prohibition, that is, to the negative commandment that applied before it was disqualified. So too regarding vows and freewill offerings on a festival, let us say the same: once Scripture restored it, it restored it to the original prohibition, and he should be flogged.

Tosafot thus formulate a general principle in halakha: if something prohibited was later permitted, and for some reason in certain circumstances becomes prohibited again, then in those circumstances it returns to its original prohibition. The example Tosafot bring is from Babylonian Talmud, Temurah 31a, and Bekhorot 6b, where it is learned that there is a prohibition against shearing consecrated animals that have become disqualified, by way of a prohibition inferred from a positive command: “you may slaughter” — but not shear. In the background there is an ordinary prohibition against shearing and working consecrated animals, which is a regular negative commandment. In the case of disqualified consecrated animals, that original negative commandment no longer applies, because they are no longer designated for sacrifice. But once a new prohibition, inferred from a positive command, was introduced with respect to shearing them, the original prohibition against shearing consecrated animals returned, and therefore one is flogged even for shearing disqualified consecrated animals. In other words, the moment the permission to shear is canceled, even if the cancellation comes only through a positive command, the original prohibition reawakens — and that is a full negative commandment, not merely a prohibition inferred from a positive command — so flogging applies.

Tosafot therefore ask that the same should be true regarding vows and freewill offerings on a festival. If there is no permission to offer them because of a prohibition inferred from a positive command, then the original prohibition of slaughtering on a festival should also return, and therefore even according to Beit Hillel one should be flogged. Tosafot distinguish between the cases by saying that in the case of disqualified consecrated animals it was never truly permitted at all, whereas in the case of vows and freewill offerings on a festival the original prohibition was completely suspended, and therefore it does not return.

The Minchat Chinukh here, in section 1, writes:

There is no need to analyze here the rule of “once it is restored, it is restored to the original prohibition,” see Babylonian Talmud, Beitzah 12a, Tosafot beginning “one who slaughters,” because it appears from the Talmud that this is only a clarification of the matter… and the Torah wrote that this is labor and does not override Shabbat…

He apparently means that one might have argued here that since judgment on Shabbat is forbidden by an independent prohibition, the act of burning again becomes prohibited labor on Shabbat and thus incurs stoning. In other words, he entertains the possibility of treating the labor prohibition not as an independent full prohibition, but as a return of the original prohibition. He himself, consistent with his approach, holds that what we have here is an ordinary labor prohibition that was never canceled, rather than a return of the original prohibition. That is indeed the approach of Tosafot in Sanhedrin cited above.

But according to our explanation of Maimonides and Sefer HaChinukh, that is precisely the situation here: because there is a prohibition against judging on Shabbat — a lighter prohibition, not itself a labor prohibition — the original prohibition of burning and labor returns to its place. That is why Maimonides and Sefer HaChinukh concluded that if the act of execution involves labor, as in burning, one is liable for it just as for any ordinary Shabbat labor; but if no labor is involved, one violates only the newly derived prohibition, which is parallel to a prohibition inferred from a positive command, that is, the secondary and lighter prohibition in Tosafot’s examples in Beitzah.

See there further in Minchat Chinukh, where he somewhat retreats from his claim and raises the possibility that according to Maimonides, who forbids all punishments, this is indeed an independent negative commandment. He explains on that basis the fact that it is counted separately in the enumeration of commandments. That is exactly our point here. And Minchat Solet proves this from the fact that Maimonides speaks of flogging for violation of this prohibition — which we explained as a case where the judges themselves administered flogging on Shabbat and thus performed an act — even though at first glance this seems to be a negative commandment that serves as the warning for an offense punishable in other contexts by court-imposed death. It follows that according to Maimonides, the prohibition against punishing on Shabbat is not the same prohibition as the one against kindling on Shabbat. This is yet another expression of the fact that this negative commandment is counted separately.

Another Example of the Principle of Return to the Original Prohibition

In the responsa Tzofnat Paneach, section 2, a question is raised about one who cooked on a festival that fell on Shabbat. As is well known, on a festival one may cook for the sake of food preparation, whereas on Shabbat one may not. Therefore, when a festival falls on Shabbat, cooking is forbidden because it is Shabbat. But Tzofnat Paneach discusses whether one who transgressed and cooked violated only the prohibition of Shabbat, or also the prohibition of cooking on a festival. The explanation he offers for the latter possibility is that if in such a case there is no permission to cook for food preparation, then the festival prohibition of labor also reawakens.

This would seem to be another example of the principle of return to the original prohibition. Yet if so, it is not clear why Tzofnat Paneach is doubtful at all. On the face of it, this is a principle established by the Talmud and Tosafot. One can explain his hesitation by saying that the prohibition of cooking on a festival is entirely canceled, at least according to those who accept the principle of “since,” and this would be like the case of vows and freewill offerings on a festival in Tosafot’s answer. Or perhaps there is a difference because the prohibition of Shabbat comes from a completely different source, but that is not our subject here.

It should be noted that the entire discussion might arise from a completely different angle as well, even though in Tzofnat Paneach it seems clear that his meaning is as above. It may be that the reason to forbid cooking from the side of the festival too stems from the view that the combination of festival and Shabbat is not merely a neighborhood conjunction of two sanctities, but creates a third legal entity with a different character. Something along these lines is written by the author of Or Sameach in Hilkhot Avodat Yom HaKippurim regarding the offering of the additional Sabbath sacrifices when Yom Kippur falls on Shabbat.⁸

Implications for the Law of the Pursuer

The law of the pursuer imposes an obligation on every Jew to kill one who is pursuing another in order to kill him. The same law applies to one who pursues a betrothed young woman in order to rape her; see Maimonides, Hilkhot Rotzeach 1:10. What is the law if one sees such a pursuit on Shabbat? In the case of an ordinary pursuer, the Gemara explicitly states that one kills him even on Shabbat, because saving life overrides Shabbat. But in the case of one pursuing a young woman in order to rape her, the Mishneh LaMelekh there is uncertain whether one may kill him on Shabbat. The basis of the doubt is whether killing such a pursuer is an act of punishment like the punishments administered by the court, in which case one may not punish on Shabbat, or whether it is a form of rescue, as in the case of an ordinary pursuer, the novelty being that rescue from rape is treated like rescue of life. The Mishneh LaMelekh leaves the matter unresolved.

Now, if the prohibition against punishing on Shabbat is understood as a prohibition of labor on Shabbat, then it is reasonable to assume that it applies to an ordinary private person as well. If even court-imposed execution does not override the prohibition of labor, then killing by a private person certainly would not override it.⁹ But if the prohibition is understood as an independent prohibition directed to the court against judging and punishing on Shabbat, it is difficult to invent such a prohibition for a private individual on our own. After all, in practice there is no act of judgment here as there is in court; it is merely an act that functions de facto as punishment. From where should we know that such an act too is forbidden on Shabbat?

Another implication concerns rescue by injuring one of the pursuer’s limbs. If the rescuer can save the victim by injuring the pursuer without killing him, he may not kill the pursuer. Such injury does not always involve a Shabbat prohibition, since there is no killing. If so, specifically according to Tosafot, who ground the prohibition in labor on Shabbat, it would be permitted to injure the pursuer in such a way, because there is no labor prohibition involved. But according to Maimonides and Sefer HaChinukh, who hold that there is an independent prohibition, and that it applies even to punishment by flogging, then injuring the pursuer without killing him is also an act of punishment. If such an act is forbidden in the case of killing, it would be forbidden in the case of ordinary injury as well.

It is true that one may reject these practical distinctions. As we saw, according to the initial picture we proposed in explaining Maimonides and Sefer HaChinukh — namely, two parallel and separate prohibitions — such punishment also involves a prohibition of labor and not only the independent prohibition. If so, even if the independent prohibition does not apply to a rescuer, the labor prohibition would still apply. But in light of the more complex picture — namely, two prohibitions, one learned from the other — the labor prohibition is learned only from the existence of the independent prohibition, and in that sense it is a return to the original prohibition. If so, where the newly derived prohibition is absent, it is possible that the labor prohibition will be absent as well, because it is displaced by the commandment to rescue, just as would have been the case with the court itself had the verse “You shall not kindle fire” not taught otherwise.

Another Example of an Indirectly Derived Prohibition: “You Shall Not Turn Aside”

There are several examples of the indirect derivation of a prohibition from an explicit command. We will bring here one example that is very similar to the one with which we have been dealing.

Maimonides writes in several places, see the second root and the beginning of Hilkhot Mamrim — though compare his words in negative commandment 312 — that the obligation to obey rabbinic legislation is anchored in the verse, “You shall not turn aside from the word that they tell you, right or left” (Deuteronomy 17:11). A number of commentators explain that he does not mean that anyone who violates a rabbinic prohibition has thereby violated Torah law; rather, only one who rejects rabbinic authority in principle has done so. See, for example, the beginning of Tzofnat Paneach on Maimonides, and also the Sefer HaMafte’ach in the Frankel edition at the opening of Hilkhot Mamrim.

The question now arises again: what is the source of the obligation to obey the Sages? According to this explanation, one who eats poultry with milk not out of principled rebellion against rabbinic authority but simply out of appetite does not violate Torah law. So why is the thing forbidden? One cannot explain that it is merely a rabbinic prohibition, for we are now asking precisely from where it follows that we are obligated to obey the Sages. Seemingly, there must be a source for this in the Torah itself.¹⁰

The explanation seems to lie in the following consideration. If the verse “You shall not turn aside” forbids us to rebel against rabbinic authority, then it cannot be that this authority has no substantive content of its own. If there were no obligation to obey and refrain from eating poultry with milk, then there could be no prohibition either against eating poultry with milk as an act of rebellion against rabbinic authority. In A. A. Milne’s Winnie-the-Pooh, there is a sign that says, “Offenders will be punished,” without any explanation of what the offenses are or who the offenders are. To treat the command “You shall not turn aside” as prohibiting only rebellion against authority, while there is no prohibition on the act itself, has exactly the same logical structure.

If so, the fact that eating poultry with milk out of denial of rabbinic authority is a Torah violation follows from the fact that there is also a prohibition on the act of eating poultry with milk itself, even without any rebellion against authority. To be sure, this obligation is not included in the content of the verse “You shall not turn aside” itself, for that verse prohibits only direct and principled rebellion against authority, as in the case of the rebellious elder. But from the existence of that command it clearly follows that in the background there are other prohibitions as well, and that one is obligated to obey the Sages with respect to them too. The force of that obligation is weaker, since one who violates it has not transgressed the Torah prohibition of “You shall not turn aside,” and therefore this is not a Torah violation but a rabbinic one. Yet it is not the result of rabbinic legislation. Rather, it is learned indirectly from the command “You shall not turn aside.” It is the result of rabbinic interpretation, not of rabbinic enactment.

This is very similar to what we saw in our case. The verse explicitly tells us not to punish by burning on Shabbat, but from that we learned that if burning counts as prohibited labor, then clearly the duty to burn one liable to burning is suspended on Shabbat, and perhaps even turns into a prohibition — and this prohibition is apparently not itself a prohibition of labor but another prohibition. That prohibition too is an expansion of what appears explicitly in the verse itself, namely execution by burning, and as we saw, it too is not included within the counted commandment.

Concluding Note

After writing all this, we found in the responsa Avnei Nezer, Orach Chayim 228, essentially the same approach.¹¹ He explains that the basis of the prohibition is punishment on Shabbat, not labor on Shabbat, and he brings some of the proofs we presented here. He distinguishes there between two aspects of punishment: the commandment to punish the offender and the commandment to eradicate evil. He derives practical implications from that distinction with respect to punishment on Shabbat. All of his comments there require careful study and detailed discussion, and we will therefore not undertake that here.

Footnotes