The Relationship Between Warning and Punishment in Halakha (Column 377)
With God’s help
Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.
This past Shabbat I spoke about the relationship between a warning (azharah) and punishment in Halakha. The motivation was the verses at the beginning of Parashat Vayakhel:
“Moses assembled all the congregation of the children of Israel and said to them: ‘These are the things that the LORD has commanded to be done: Six days work shall be done, but on the seventh day you shall have holiness, a sabbath of complete rest to the LORD; whoever does work on it shall be put to death. You shall not kindle a fire in any of your dwellings on the sabbath day.’”
The last verse warns with regard to kindling fire, but it is not a general warning about performing labor on Shabbat. Kindling is one of several labors explicitly mentioned in the Torah: kindling, carrying out (hotza’ah), plowing, and harvesting. The remaining labors are derived from the Tabernacle or from the reasoning of the Sages (see Tosafot s.v. “ha-gihakh” on Bava Kamma 2a, and Maharam and Maharsha there, as well as Shabbat 49b). The Sages indeed wonder why these four labors were singled out. Regarding carrying out, the Rishonim say it needed to be written explicitly because it is a “minor”/“inferior” labor (see more on this in Column 345). Regarding plowing and harvesting, those are needed for the laws of the Sabbatical year (see Makkot 8b, Horayot 4b, Mo’ed Katan 3a–b). As for kindling, the Gemara discusses it and derives several laws regarding Shabbat labors from it (Shabbat 70a: whether kindling was singled out to teach it is a separate prohibition [“lav yatzah”] or to divide the labors [“le-chalek yatzah”]), or about punishment on Shabbat (Yevamot 6b). In any case, this is not the general warning about the labors; therefore, the preceding verse here (“whoever does work on it shall be put to death”) is punishment only, and the warning does not appear in this passage (of course, elsewhere there is a warning about labor on Shabbat). Let us consider the relationship between warning and punishment.
“We have heard the punishment; from where [do we learn] the warning?”
In several places in the Talmud, when encountering a verse that states a punishment, the Sages ask where the warning is found: “We have heard the punishment; from where [do we learn] the warning?” For example, the sugya in Sanhedrin 54a discusses the prohibition of one’s father’s wife:
“‘They shall surely be put to death by stoning.’ You say by stoning—but perhaps by one of the other death penalties stated in the Torah? It states here ‘their blood is upon them,’ and regarding the ov and yid’oni it also states ‘their blood is upon them’; just as there it is by stoning, so here by stoning. We have heard the punishment; from where [do we learn] the warning? The verse states: ‘The nakedness of your father you shall not uncover’—‘the nakedness of your father’ means your father’s wife. You might say it refers to your father’s nakedness literally; it states here ‘the nakedness of your father you shall not uncover,’ and it states further on ‘he has uncovered his father’s nakedness’; just as there the verse speaks of a marital relationship, so here the verse speaks of a marital relationship—meaning both one’s father’s wife who is his mother and one’s father’s wife who is not his mother.”
In the end the Gemara finds a warning verse as well, but it assumes that if there were only a punishment verse, we would not administer punishment. The Gemara in Sanhedrin 56a formulates this as: “He did not punish unless He had first warned,” meaning we do not punish unless we have a warning (even if a punishment is explicitly written; otherwise, it is clearly unjust to punish). The question is: why? If the Torah writes a punishment verse, it instructs us to punish. Suppose we could not find a verse that warns—would we not carry out the Torah’s instruction? Why is a warning verse also required?
The words of Sefer Ha-Chinukh
Mitzvah 69 in Sefer Ha-Chinukh addresses the prohibition of cursing a judge: “Elohim lo tekalel.” In the course of his discussion there, he addresses precisely this question:
“Not to curse judges, as it is stated (Ex. 22:27), ‘Elohim you shall not curse,’ and its meaning is judges, as [v. 8 there] ‘whom Elohim shall condemn.’”
“And Scripture expressed it with the word ‘Elohim’ in order that another prohibition be included along with this prohibition—namely, the prohibition of blessing (i.e., blaspheming) the Name, as our Sages said in the Mekhilta and in the Sifrei: the warning for blaspheming the Name is from ‘Elohim you shall not curse’; and what is written elsewhere (Lev. 24:16), ‘one who pronounces the Name of the LORD shall surely be put to death’—that is the punishment, but the warning is from here. For it does not suffice us to mention punishment in a commandment without [also] a warning. And that is what our Sages always say: ‘We have heard the punishment; from where [do we learn] the warning?’”
The Torah hints to us a warning against blaspheming the Name (in euphemistic language), although the punishment appears explicitly in Leviticus. The need for this is that punishment alone does not suffice; a warning is also required.[1]
He now explains the need for a warning:
“The point is that if we were to receive only a statement of the divine forbearance [or: prohibition] in the form of ‘whoever does such-and-such shall be punished thus,’ the implication could be that anyone who wishes may choose to accept the punishment and not care about the pain, to transgress the commandment—and this would not come in opposition to the desire of the blessed God and His command. The commandment would revert to something like a commercial transaction: whoever wishes to do such-and-such shall pay such-and-such and do it, or ‘pay with his shoulder’ to bear such-and-such and do it. But the intent of the commandments is not like that. Rather, God, for our benefit, restrained us with words and informed us, for some of them, of the punishment that would befall us immediately—besides the fact that we would be transgressing His will, which is worse than all. This is what our Sages meant by saying everywhere, ‘He did not punish unless He had first warned’—that is, God does not inform us of the punishment that will come upon us for transgressing a commandment unless He has first informed us that His will is that we not do that very thing for which the punishment comes.”
If we were to find a punishment verse without a warning, we might think it is not punishment in the ordinary sense but a conditional recompense. That is, we might think that one who blasphemes the Name is put to death, but not because his act contravenes God’s will. There would be no prohibition against blaspheming the Name, and the death would be a conditional consequence (“like a sale,” in the Chinukh’s phrase), not a penal sanction for wrongdoing. A hand put into fire will be burned, but that is a factual consequence, not a punishment. Likewise, for blaspheming the Name—without a warning—the “recompense” (death) would be perceived as a factual consequence, not as punishment. This is why every punishment requires a warning as well: so that we know there is an offense, and that the punishment is a penal sanction for criminal conduct, not merely conditional recompense.
Two difficulties in his words
There is an inherent difficulty here in the Chinukh’s approach; it seems he saws off the very branch on which he sits. He explains that we must not think the Torah’s punishments are conditional recompense; all are penal sanctions. This explains why whenever we see a punishment verse, we must look for a warning. But if we already know a priori the rule that the Torah’s punishments are penal sanctions rather than conditional recompense, then a warning would no longer be needed. When we see a punishment verse, we would infer from this principle that the act is also prohibited, since the rule is “He did not punish unless He had first warned.” If so, the question returns: why is a warning verse required?
Moreover, suppose the rule is “He did not punish unless He had first warned,” and, still, a warning verse is required. Even so, when we find a punishment verse, it should be obvious that somewhere there is also a warning verse. Why must we locate the warning verse in order to punish? Why is it a condition for administering punishment? If there is a punishment, it cannot be conditional recompense but a penalty for a prohibition. Thus, it should be clear that a warning exists somewhere, even if we have not found it. There should be no need to actually find it in order to punish.
By way of example, in Israeli statutory law there is no separate clause “theft is prohibited,” nor “murder is prohibited.” What appears is only the punishment: “one who steals is liable to such-and-such,” or “one who murders is liable to such-and-such.” Some interpret this to mean that the law does not forbid theft or murder but merely obligates law-enforcement organs to punish such acts.[2] But according to most opinions, it is clear that a prohibition is included even if not explicitly formulated in the statute, for “He did not punish unless He had first warned.” This would be a reason not to need an explicit warning, since it is self-evident. Seemingly, the same should hold in the Torah and Halakha.
The inevitable conclusion is that the Chinukh does not, in fact, assume that all punishments in the Torah are of that sort. There may be punishment verses that speak of conditional recompense rather than true punishment; hence a warning verse is needed in addition, so we will know it concerns a prohibition. Moreover, for that reason we must actually locate the warning verse, for if none can be found, it may be that in this case there is no warning—and then it is not punishment but conditional recompense. Thus, according to the Chinukh, the Talmudic question “We have heard the punishment; from where [do we learn] the warning?” is not a rhetorical challenge but a genuine question. The Gemara searches to see whether there is a warning or not; it does not assume that there must be one. It is simply checking whether we are dealing with punishment or with conditional recompense.
What is the practical implication? In a case where there is a punishment and we have not found any warning, a person could decide to perform the act and accept the punishment, and he would not thereby be violating God’s will. He would receive the “punishment,” yet would not become a criminal. Such a person would not be disqualified from testimony and would not be deemed an apostate, for his act involves no transgression. He did an act, received the conditional recompense, and all is in order.
Implications for a theory of punishment
In such situations, the “punishments” are surely not meant as deterrence or retribution for an evil deed, for the deed is not evil. The Torah has no problem with doing such acts. So what is the point of these “punishments”? Perhaps some metaphysical rectification. That is, the act produces a (spiritual) result, and the “punishment” comes to repair it. Once repaired, no blemish remains—in the world or in the person—and therefore there is no objection to doing the act and then receiving its recompense or rectification. This contrasts with ordinary transgressions, where, even if we punish the person, some blemish remains in the person or the world. In such a case the Torah prefers that the act not be done at all, and therefore it warns against it, i.e., it imposes a prohibition and does not suffice with rectification (conditional recompense).[3] Incidentally, it follows that if a person does such an act and does not receive the recompense, the blemish remains unrectified, and in that case the act is certainly forbidden even if there is no warning but only a punishment. The claim is that if, after doing the act, he also receives the recompense, there is no prohibition.
An analogy is a “lav ha-nitak la-‘aseh”—a prohibition that is “connected” to a positive command which rectifies it. The Torah has prohibitions for which Scripture mandates how we repair them (“nitek” as in “repaired”) by a positive commandment. For example, the prohibition of robbery is rectified by the positive command to return the stolen object. The prohibition of notar (leftover sacrificial meat) is rectified by the positive command to burn the leftovers. The rule is that one who violates a prohibition rectified by a positive command does not receive lashes. The standard explanation is that after fulfilling the rectifying positive command, no blemish remains in the world or the person, so there is no need for punishment. Note that the positive act of returning the stolen item is certainly not “punishment”; it merely restores the status quo ante (by contrast, double payment for theft is punishment, since it goes beyond restoring the owner’s property—what we call a fine). Once the object is returned, the wrong has been repaired and there is no need to punish. On this explanation it would seem there is nothing wrong with one who steals and then returns the stolen item. The victim does suffer while the item is away and unusable, but the underlying deficiency does not truly remain; hence there would be no halakhic prohibition.
However, this is not the standard view regarding theft, and indeed a thief must repent. Even regarding his eligibility as a witness, returning the stolen item does not suffice; repentance is also required (see Shulchan Arukh Choshen Mishpat 34:7). It may be that there the disqualification is not because he is a “criminal,” but because of the concern that he is not careful with others’ money and so we fear he may lie in his testimony.[4] And indeed the Shulchan Arukh there 34:29 writes:
“Anyone who was liable for lashes—once he was flogged by the court, he returns to his fitness [as a witness]. But other disqualified witnesses, who are disqualified due to money they seized or robbed—even if they repaid—they require repentance; they remain disqualified until it is known that they have abandoned their evil way.”
That is, a wicked person who committed a regular transgression needs only to be lashed and need not repent. But a robber who returned the stolen object does not regain his fitness until he repents. Perhaps the reason is as I wrote above.
For our purposes, even if that is not the correct explanation for the crime of theft, according to the Chinukh this principle would apply to a case where an act carries a punishment but no warning. Do such acts actually exist? It is unclear. I will now bring two examples in which such a possibility arises.[5]
Example A: Suppressing one’s prophecy
A prophet who receives a prophecy from the Holy One to deliver is obligated to convey it to its addressee. If he suppresses his prophecy and does not deliver it, he violates a prohibition. The Mishnah in Sanhedrin 89a says that one who suppresses his prophecy is liable to death at the hands of Heaven. Later (89b) the following statement is cited:
“A tanna recited before Rav Chisda: ‘One who suppresses his prophecy is flogged.’ [Rav Chisda] said to him: ‘Who warned him? Who would testify to him?’ Abaye said: ‘His fellow prophets—how would they know?’ Abaye said: ‘As it is written, “For the Lord GOD does nothing without revealing His secret to His servants the prophets” (Amos 3:7).’ Perhaps they retracted [i.e., perhaps the decree was rescinded]? If so, they would have informed all the prophets. But what about Jonah, who retracted [i.e., the decree was rescinded] and they were not informed? Regarding Jonah—at the outset [the prophecy was phrased], “Nineveh shall be overturned,” and [the prophets] said to him: he did not know whether for calamity or for good [i.e., ‘overturned’ could mean overturned from evil to good].”
One who suppresses his prophecy is flogged even though it is an offense about which no one would know. True, flogging requires prior warning, and the Gemara explains that his fellow prophets are the ones who warn him.
And Tosafot (s.v. “ha-koves”) there 89a write:
“‘One who suppresses his prophecy is flogged’—there is no [explicit] prohibition here, and moreover there is no [forbidden] act; therefore they strike him until his soul departs, as [they do to one who is commanded] ‘Make a sukkah!’ and he does not do so.”
Tosafot explain there is no warning regarding suppressing prophecy; therefore, there are no standard lashes as for prohibitions. Rather, they administer coercive blows to force compliance, as with all positive commandments. That is, one who suppresses his prophecy nullifies a positive commandment but does not violate a prohibition. Admittedly, the simple reading of the Gemara is of standard lashes; then the question arises how one can receive lashes without a warning.
Indeed, the prohibition of suppressing prophecy does not appear in the various enumerations of the commandments. But the Minchat Chinukh, in Mitzvah 516, addresses it and discusses Tosafot’s question cited above:
“And one who suppresses his prophecy is also liable, from the verse we expound ‘he shall not withhold’—and we say there that one who suppresses his prophecy is flogged and his fellow prophets warn him, since they all know, as explained there. And Tosafot wrote that he is not flogged with [the standard] lashes, since there is no prohibition here, but they strike him until his soul departs. Here we have learned the punishment of one who suppresses his prophecy, but not the command; for in the verse it is not explicit that he is obligated to declare his prophecy.”
He then answers, invoking the Chinukh above:
“And even though ‘He did not punish unless He had first warned’ applies only to prohibitions and not to positive commands, nevertheless, according to what the author of the Chinukh wrote in Mitzvah 69—that the function of the warning is that if there were only a punishment, it could be implied that one who wants to transgress and accept the punishment would be permitted and would not be acting against the will of the Holy One…therefore the Torah warned to inform that God does not desire this—[then] even regarding a positive command, since no verse is written, it is possible that if he wishes to accept the punishment and suppress the prophecy, that is permissible.”
He suggests that although this appears to be a positive command, in principle we could understand it in light of the Chinukh in Mitzvah 69: if we assume there is no warning, the lashes for suppressing prophecy are conditional recompense. It is somewhat strange to say this about coercive blows whose purpose is to force fulfillment of a positive commandment, since such blows do not require a warning at all. It seems he means the absence of an explicit positive command, not the absence of a prohibition; for without a positive command, there would be no basis to strike him to compel performance.
He subsequently brings an interesting implication regarding the prophet Jonah. By way of preface, the Gemara in Sanhedrin 89a says Jonah is an example of one who suppressed his prophecy, for he received a prophecy concerning Nineveh and fled from God to avoid delivering it. The Minchat Chinukh writes:
“It is possible this was Jonah’s reasoning, as explained in the Gemara here—that he suppressed his prophecy; Heaven forbid that Jonah the prophet would transgress against the will of the Almighty. Rather, this is not against His will; it is only that a punishment results. And Jonah intended this for the good of Israel, as explained—that the nations are close to repentance, etc. He accepted upon himself the punishment for the sake of Israel.”
Jonah fled from God because he thought it improper to deliver the prophecy and was prepared to accept the consequences. He did not act against God’s will, for suppressing prophecy is not a transgression; lashes would be a conditional recompense, which Jonah was ready to accept.
But ultimately he rejects this possibility:
“In truth, no [separate] warning is needed here, for the warning is to the prophet himself—like Jonah—whom the Holy One, blessed be He, told: ‘Go to Nineveh….’ Thus His will was that he go; He did not say to him, ‘If you do not go…,’ but rather commanded him. Therefore, no [additional] command in the Torah is needed here, for when a prophet is sent, the Holy One commands him to prophesy; this is simple and clear.”
A prophet who suppresses his prophecy does not require a (separate) warning verse (i.e., an explicit positive command to deliver), because the very communication from God to the prophet constitutes the command to deliver it. Therefore, in conclusion, this is no proof for lashes without a warning.
Example B: Lashes for a truthful oath
At the beginning of Tractate Temurah (3b) the Gemara discusses the verse “and the LORD will separate your plagues”:
“From where do we know that one who curses his fellow using the Name [of God] receives lashes? R. Elazar said in the name of R. Hoshaya: Scripture says, ‘If you do not observe…,’ and it is written, ‘and the LORD will make–distinct your plagues.’ I do not know what this ‘distinction’ is. When it says, ‘the judge shall cause him to be laid down and strike him,’ say that ‘distinction’ is lashes.”
The Gemara learns from here that one who curses his fellow using God’s Name is flogged even though no act was performed.
The Gemara then asks:
“Say [perhaps] even for a truthful oath! It is explicitly written, ‘the oath of the LORD shall be between them.’ Say: that applies only to appease his fellow; but to be flogged [for it]—you cannot say so, for it is written, ‘and in His Name shall you swear.’”
It proposes that perhaps the verse refers to someone who swears a truthful oath, who would be flogged—even though he must swear to appease his fellow—but rejects it, since it is written, “and in His Name shall you swear.”
This is how Rashi explains it, and in more detail Rabbeinu Gershom there. From their explanation it follows that the Gemara entertained that one would be flogged for an oath administered by the court—even though he is obligated to obey and swear. This is another example of an act that is not only not prohibited but required, and still the Gemara entertains flogging.
However, Ramban in Sefer Ha-Mitzvot (positive command 7) writes:
“But flogged—yes; that is, the oath of custodians is permitted to appease the householder, but he would be flogged for a truthful oath when he swears on his own as a ‘shevu’at bitui’ (an oath of expression).”
That is, according to him, the suggestion was only that he be flogged if he swore without the need to appease the owner.
Thus, at least according to Rashi and Rabbeinu Gershom, an additional example arises in which one would be flogged without any underlying transgression. Admittedly, the Gemara subsequently rejects that suggestion; therefore, in conclusion this is no exception of punishment without warning. In the end, lashes for oaths are punishment, not conditional recompense.
A note from the rule “If he did it, it does not take effect”
A little later in Temurah (4a), Abaye and Rava dispute the following:
“Abaye said: Any matter about which the Merciful One said ‘do not do’—if he did it, it takes effect; for if you think it does not take effect, why is he flogged? Rava said: It does not take effect at all, and the reason he is flogged is that he transgressed the statement of the Merciful One.”
The question is whether, when a person does something prohibited, it is effective or not. For example, if a person transfers sanctity from one animal to another, he transgresses a prohibition. According to Abaye, such a substitution must take effect—otherwise he would not be flogged. Rava, however, says that a prohibited act does not take effect, and the lashes are imposed for violating God’s command (despite the fact that the forbidden result did not materialize).[6] I will only note that, as for the halakhic ruling, opinions are divided (at least regarding Rambam’s position; some say he rules like Abaye even though this is not one of the six “exception” cases where the law follows Abaye against Rava—“Ya‘al Kegam”).
Seemingly, the dispute is about what lashes are for. According to Abaye, lashes are for the forbidden result; according to Rava, they are for the mere act—violating the command. Simply put, at least according to Rava, lashes are imposed due to the transgression; on his view, one cannot say that there are lashes that are conditional recompense. The whole idea of lashes is because the person committed an offense. Perhaps, according to Abaye, lashes are for the result, and maybe one could say they are given even if he did not commit an offense.
But tying this to the Abaye–Rava dispute is improbable. Note that the entire discussion there concerns offenses for which there is a warning as well as a punishment (for it speaks of “anything the Merciful One said ‘do not do’”), i.e., acts that certainly constitute a transgression, not acts that merely carry a conditional recompense. Therefore, nothing can be inferred from there regarding our question in other cases. In instances where there is both a warning and a punishment, it is clear that even Abaye holds that lashes are imposed for the transgression; he merely holds that without the forbidden result, there is no transgression.
Accordingly, up to this point we have not found any example of conditional recompense in Halakha.
Guilt-offerings versus sin-offerings
In my essay on the nature of the guilt-offering (’asham), I showed that the difference between guilt-offerings and sin-offerings is that sin-offerings come to atone for the person’s criminality, whereas guilt-offerings come to repair the consequence of his deed (and therefore they are brought for intentional acts as well as unwitting ones). I showed there that guilt-offerings are brought even in cases where there is no sin in the person’s act at all (such as the ’asham for a designated betrothed maidservant, and the suspensive ’asham according to Rambam, who holds that doubts in Torah law are ruled leniently). And even in situations where there is sin in the act (’asham for misuse of sancta, and misuse by means of consecration vows), I showed there that the ’asham is not brought because of the sin. If so, the ’asham is an example of conditional recompense imposed on a person irrespective of criminality. Its purpose is to repair the state produced by the act, not to atone for wrongdoing. But an ’asham is a sacrificial offering, not a regular punishment; it seems guilt-offerings are a unique category, and we cannot learn from them a general halakhic principle of conditional recompense.
Summary
In short, from the Chinukh it emerges that, in principle, there could be a situation in which a person is subjected to conditional recompense that is not a punishment for a transgression. In practice, however, we have not found such a concrete example (aside from guilt-offerings, which are a special, exceptional category), which casts doubt on the likelihood of such cases. Is it reasonable that, purely by chance, we have no example of conditional recompense? It is more plausible that there is a substantive reason: the punishments in the Torah are not conditional recompense but penal sanctions. If so, the Chinukh’s explanation indeed remains in need of clarification (see the two difficulties above).
Perhaps we can interpret the Chinukh as follows: In principle, one could have understood that conditional recompense is possible; therefore, in every place the Gemara searches for a warning. After surveying all the cases and finding no example of conditional recompense, we have indeed concluded that the Torah’s punishments are penal sanctions, not conditional recompense. Now we have a rule—but it is not one known a priori; it is a rule induced from surveying all the prohibitions and punishments. In all of them we found warnings, whence we inferred there is no punishment that is conditional recompense (for it is implausible that this is mere coincidence—that all punishments are penal and not conditional). Admittedly, this reading of the Chinukh is somewhat forced.
But if we reject the Chinukh’s explanation, the question returns: why is a warning necessary when the Torah states a punishment? The answer may be that the Torah warns simply in order to create the prohibition. My claim is that although, if only a punishment verse appeared, it would be clear by implication that the act is forbidden, a warning is still required in order to constitute the prohibition.
In my essays on the Eighth Root and the Second Root, I argued that every mitzvah has two components: the command and the essence. The essence exists by virtue of reality itself (i.e., that the act produces a certain result is a fact independent of what is or is not written in the Torah), but to create the command, a verse in the Torah is required—and this is the need for a warning. If only a punishment were written in the Torah, we would indeed infer that the act is forbidden, but there would still be no command. We would understand that the act is not according to God’s will, but not necessarily that it constitutes a formal halakhic offense. In such a case we would view the sanction as punishment (not merely conditional recompense), but it would be a sanction for an improper act, not for a formal halakhic transgression. This is especially true according to Rambam’s Second Root, who holds that even a warning derived by exegesis does not suffice to create a Torah-level prohibition with lashes (see my essay on the Second Root).
[1] True, here the warning is learned by exegesis, and according to Rambam, generally a warning derived homiletically does not suffice for punishment. But Rambam himself writes in the introduction to Sefer Ha-Mitzvot (immediately after Root 14) that when the punishment is explicit in the Torah, a warning learned “from the law,” i.e., by exegesis, suffices. That is apparently the case here.
[2] This could be based on a liberal view that the law cannot dictate to the citizen what he may or may not do; it can only direct those who work for it (police and judges) what to do in such cases. This seems to me an absurd interpretation, for after directing them, the citizen lands in prison and is punished. Is that something the governing system is permitted to do to him? If so, why can it not dictate permitted and forbidden? Perhaps the idea is that the law does not wish to engage in moral education or dictate prohibitions and permissions, for that infringes freedom of thought. The law sees its role as only maintaining public order.
[3] These matters relate to broader questions about the Torah’s theory of punishment. See my remarks on attempted murder in Column 353 (and somewhat also in Column 229), and on the nature of punishment in general in Column 47, and also in my essay that addresses this and, more broadly, in my seminar paper on Rambam’s theory of punishment here.
[4] The question whether a “wicked person due to violence/theft” (rasha de-chamas—one who committed a monetary offense) is disqualified intrinsically or due to a concern for falsehood is disputed among the halakhic authorities. See, for example, Ketzot Ha-Choshen §52, subsec. 1.
[5] I saw them many years ago in a short article by R. Dov Landau, Rosh Yeshivat Slabodka, in some memorial volume. Since then I have tried to find the source and have not succeeded.
[6] Regarding temurah there is, in fact, an explicit verse that if a person substitutes animal A for animal B, both become sacred. So here I cite this dispute only illustratively.
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A. The idea of punishment as a conditional reward is difficult. Because why do punishments correct metaphysical matters (i.e. neither deterrence nor reward), and why would there not be a metaphysical correction by eating semolina and honey and oil and throwing apples to the crowd. Floggings are found in all cultures and peoples, and to say that suddenly in the Torah the same familiar and well-known thing turns into something completely different like a bow of deceit is a strange thing. Metaphysical corrections exist in sacrifices that are given to heaven or in fasting when a person reduces his milk and blood and repents and’ will see his sins and have mercy on him. But for there to be an established matter in the world that punishment corrects without there being an understanding of why punishment specifically and not other actions seems strange. And in particular that punishment is forced upon him from the outside and how what one person has spoiled will be corrected by his fellow man.
B. You explained that the Gemara is looking for a warning in order to know if the punishment is conditional. I thought I would interpret this as an internal control rule in the Torah for correcting errors. If we do not find a pair of punishment and warning, then we have made a mistake in the interpretation of the punishment or the interpretation of the warning. In particular, when one of the components comes from a sermon (as in the Sanhedrin v. 4 that you cited), then the question of a warning from a minyan is actually an attempt to expound on the sermon. The warning verse must be found even if it is clear that it exists so that we know not to demand anything else from that verse (or as stated so that we know that we made a mistake in interpreting the punishment verse).
To explain why this particular rule was established that there will always be pairs, we come to your essential explanation that there are two components, a command and a substance. But since the rule exists, the Gemara uses it simply as a rule for correcting errors and does not need to arrive at the idea that there is a possibility of punishment without a warning, that is, conditional retribution. This also explains why you did indeed conclude that we did not find a single such example (and as mentioned, this is itself a strange idea).
C. And in any case, comments on the examples
C1. Oath of Truth to Rashi: Milkah is right in the oath of the watchmen. Rashi was careful there and wrote Luke for bringing himself to an oath. He did not write Luke for swearing. And apparently his intention was Luke because he had to be careful and not take a deposit from a person who would not believe him. Or to present witnesses. Or to urge him until he believes him. Or to volunteer to pay. And this is different from Luke for the act of swearing itself, which is completely permissible if one wants to get rid of the money.
C2. In the matter of not being a slave, I proposed that conditional reward (result alone) depends on the dispute between Abaye and Raba in not being a slave, I proposed that Abaye was limited to a command and a result together and there is no evidence that the result alone is sufficient. According to Eliab Darba, too, one should reject it and say that Raba was limited to a command alone and perhaps the result alone is sufficient.
C3. In the matter of a guilt offering. In the article there (I just read the part about dependent guilt) you wrote that dependent guilt comes upon the defect. I am surprised, because when he learns that a sin brings sin, and rebellion does not depend on future knowledge. The Rambam says that the Torah suffices for a person who eats a piece of meat, some milk, some fat, and learns that it is milk brings sin, even though he ate it with complete permission (from someone who did not even think that the piece was milk, he brings sin if he knew). After all, we are dealing with atonement that is conditional on sin. If so, everything that is in dependent guilt is in sin. You did make a clear distinction between a sacrifice (atonement, which can come for reality) and punishment (reward, which comes for rebellion), but this division between guilt and sin requires Talmud in my opinion.
D. Regarding a warning in the law (around note 2). You wrote that if the law can dictate a punishment, then it can dictate a prohibition. In my opinion, the law cannot prohibit even if it wanted to and tried because it has no access to the abstract normative sphere. This would not be a dead letter but a letter that has fallen from the very beginning. Although in practice there are people who bend themselves to the law by virtue of it being law (for various reasons), but we are not dealing with state-sponsored people, and they too are probably included in the group of those who fear punishment. Only if the law had graciously and compassionately waived the prohibition would there be a problem with not waiving the punishment. The law did not write “prohibition” because it has no meaning and no benefit. And if it did, it would be an attempt to influence society without regard to a normative prohibition.
E. At the end of the previous column, we heard a warning to the column about Platonism, but where is the punishment?
A. First, it is not necessarily a matter of metaphysics. Perhaps it is a spiritual correction of the person. If the offense damages some spiritual dimension, I do not see why the punishment cannot correct it.
B. But if there is no need for a warning, then there is no reason to find a warning and neutralize the possibility of learning something else from the verse. In any case, it is difficult for me to accept that this is a rule for correcting errors. If it says death penalty, it is death penalty. What fear of error is there here? And if we saw a verse that imposed the death penalty, would we not carry it out?
C. 1. An interesting idea. Definitely possible. I thought in the past that he had to not be negligent in observing (since this is something that is not actual rape). 2. I did not understand. What I suggested is exactly that the Rabbi flogs on a separate command. 3. The damage/defect is that he let himself into the house of the suspect. And when he discovered that he had committed it, he brings a sin offering for the offense itself.
D. I wrote this possibility. Although I am less decisive than you on the matter.
E. In the name of God, let him come. 🙂
A. If spiritual correction, then why did he suffer a corrective and not dance in a circle? A case in point, and that is how His wisdom, blessed be He, decreed?
C3. That is, you sinned for the very offense without rebelling against a commandment? I am not sure I understood. I thought you sinned for negligence and are guilty for the very offense (and it is more difficult to sin by doubting the Torah and also to sin by sinning against a baby that was captured. But Sh”el wrote me strong arguments on the other hand that one who forgets the essence of Shabbat is guilty of one sin, hear me, because you sinned for negligence and not for the very offense, and in my opinion this is Sh”b).
And for the others, please answer with your permission
B. I did not offer an alternative explanation for the rule itself, but an alternative explanation for the questions of the Gemara. Regarding the rule itself, why is both punishment and warning necessary, I take your explanation with both hands. You suggested that the Gemara asks whether it is a conditional punishment or a punishment with a warning. And I suggested that the Gemara makes it difficult, since there should be a warning, and if there is none, then the teaching of the punishment is wrong. It is a fact that, for example, in the Sanhedrin that you cited, there is a dispute about the sermon on punishment, and therefore it is well understood that a warning is difficult to find. Even a verse in its simplest form can be given importance to something else or a warning should be found for it, and the same warning should not be demanded for something else, and the gates of sermons were not closed. All the examples should be collected, but that is a matter for experts. In any case, to say that everywhere the Gemara only innocently asks that there might be a conditional punishment is difficult to say if there is not at least one place where we find a conditional punishment. And you concluded that there is no such thing except for atonement, which is a different matter. [And they say in a whisper that education is neither the Rashba nor the Ra’a on which to build lofty buildings].
32. [There is no nef’m, but I will explain my words]. You attached conditional punishment to Abay and Raba, but you rejected the dependence only on the grounds of Dabay. I just completed the rejection of the dependence on the grounds of Darba (which can be said that Raba also punishes for a separate result and therefore can be, according to his method, a conditional punishment).
D. So I didn't understand what the problem is with the law being allowed to punish. The law can punish and cannot prohibit. And does a law create prohibitions and destroy them? The reasons I see for obeying the law as it is there are the consent of the public and an implied contract and a categorical command (none of these speak to me at all). Are there any more?
F. By the way, the one who was cut off from doing, in the simple literal interpretation, is cut off from what was (or from the beatings) and becomes doing. Like a sacrifice that was cut off from the flock until it is consumed.
A. Why does eating pork or blood cause a spiritual defect? Do you understand that?
C3. When you are mistaken, there is no rebellion against the commandment here. If there was rebellion, there would be a normal punishment and not a sin. Regarding the fact that the sin is for negligence, see the note in my article on the fall of a secular person into a transgression (following the Afiki Yam 2:5-6). I have strong evidence for this.
B. The Gemara Sanhedrin speaks of whipping a person who has conquered his prophecy, and there is no punishment at all in the verse (and not just a warning). After all, in the punishment of whipping, there should not be a punishment, but only a warning. That is why the whole discussion there is strange.
Regarding your comment in a whisper, I wrote it out loud more than once.
C2. But to Rav Lokim Daber Amimra Drachmana. Are you claiming that Lokim might be one of two possibilities? This is usually considered a less simple and less likely explanation. This is what most scholarly investigations are built on, and I commented on it in my article dealing with them.
D. The law does indeed create legal prohibitions (even if not moral) and destroys them.
F. Interesting. That's how I phrased it, but it's definitely worth examining.
Forgive me for the length. What is here is after several attempts to be brief.
A. Indeed, I also do not understand the connection between eating pork and spiritual defect, just as I do not understand the connection between whippings and spiritual correction. But there are two differences. I have no other explanation for eating pork that would predict exactly pork, and according to the explanation of a spiritual defect, it does not surprise me that they chose pork because according to this explanation anything is possible, so they drew the pig. It is like a random sequence of dice. But for whippings, I have another explanation that predicts exactly whippings (the usual explanations from all cultures, i.e. deterrence and retribution), and according to the explanation of a spiritual defect, it does surprise me that they chose whippings because according to the spiritual explanation, in our eyes, anything can, in principle, correct spiritual defects, so how did it happen that the whippings that are familiar to us were drawn. It is like a sequence of 6s on a dice. If the claim was that the Yemenite step corrects spiritual defects, I would not ask, I am asking specifically about whippings. It is well known how hypotheses (let's say a priori sound) are evaluated according to the findings - the one according to which the probability of the findings that appeared is higher. In my opinion, this is a serious problem with the idea that in the Torah, whippings suddenly correct spiritual defects, but if not, then no.
B. In Sanhedrin 45a that you cited at the beginning of the column, the Gemara makes a complete calculation of how Rabbi Yehuda and the Sages have for each law (his mother, his father's wife, his father's wife after death) both a punishment and a warning. Each of the methods demands all the verses in its own way except for the few that are completely explicit (warning for the mother and punishment for the father's wife) where they did not disagree on what to take out of the verse. And Rabbi Yehuda arranges the verses in such a way that he has room to demand that the mother be punished only because of the mother and not because of the father's wife. But if someone had not managed to arrange all the verses and sermons in pairs of punishment and warning, then he would have been forced to recalculate the course. And according to you, if he did not find a warning, he would only conclude that it is a conditional punishment.
After the Gemara arranges all the verses (following the baraita), it also draws additional conclusions from this, such as that according to Rabbi Yehuda, a father is liable only because he is male. And that according to Rabbi Yehuda, a father's wife is not liable because she is a man's wife. And this is what Abaye said there that Rabbi Yehuda "flipped in the baraita"; that is, from the fact that in the baraita R’ Yehuda spoke about other matters at all, we can understand how he studies the verses and in any case we can conclude on our own that according to Rabbi Yehuda, a father's wife is not liable because she is a man's wife. The issue is a bit complex in calculation and difficult to detail here, but I wrote the summary that emerges.
In other words, in the entire issue, one thing is proven: it is necessary to find both a punishment and a warning, and it is impossible in any way for one to be found without the other, and we see a second thing: finding and organizing all the verses also throws up additional laws. From the first point we see simply that there is no such thing as a conditional punishment and we also see that the rule that punishment and warning come in pairs can be used as a rule for correcting errors. From the second point we see that even if the punishment is explicit and there is no room to deviate from it, it is still very important to find the verse of the warning and not enough to know that it exists. And so is the meaning of the phrase ‘warning from the bottom’ which asks forcefully from the assumption that there must be a warning (meaning if there is no warning then there is a problem and a solution needs to be found) and not asking in its entirety whether there was a warning.
Regarding the conqueror of his prophecy in the Sanhedrin, I did not understand what was strange. You explained everything in the Torah (according to the Tosafot HaNach) that it is obligatory to perform a mitzvah even if it is not one of the 13 mitzvahs, but rather a mitzvah that was renewed directly to the prophet (by the way, this is probably a unique and very nice example of a subjective mitzvah that is imposed only on the prophet Moshe Zuchmir himself).
C2. Now I understand. You are right.
A. Perhaps the direction is the opposite: whippings correct a spiritual defect, and hence all cultures learned to whip as punishment. In any case, it seems to me that there is no other reasonable explanation. As the Rabbi already noted in his sermons on Halacha, whippings do not really serve to deter. And I have extended the references to the places I referred to for discussions of punishment.
B. Apparently you are right. And it is possible that according to education (assuming that this number can indeed be precise, even if only in a whisper) this is really just the conclusion after we have not found a counterexample.
I do not think that this is a subjective commandment. Every prophet who receives a prophecy must convey it to its destination. This is subjectivity in the sense of a vow and not in the sense that I was talking about.
A. The places seem very significant, but I haven't had time to study them yet. I'll get to them soon. [From the author, without looking into whether the Rabbi commented that the whippings were not meant to deter, perhaps his intention was to punish, which is, after all, a human explanation. And I argued against whippings as a spiritual correction].
B. But there is no general commandment on every prophet to convey his prophecies, and there is also a general obligation on the one who makes the vow to fulfill his vows. Therefore, the one who makes the vow only placed himself within the conditions of the commandment, and this is not a subjective commandment in the full sense, whereas for a prophet, every prophecy is a new and special positive commandment, personal only to him, "Go and tell." And even if the prophecy is addressed to all the prophets together (‘For God will do nothing unless He reveals His secret to His servants the prophets’), it is still a new and personal commandment only for the recipients of the prophecy and is not covered by a general commandment to convey prophecies (because such a general commandment does not exist).
On the 2nd of Nisan, Tashahhud
Telg – Shalom rabb.
There is a positive mitzvah to listen to the prophet in truth, as it is written, ‘You shall hear him’. It seems clear that the prophet himself was no different from any other person, and he is also commanded to listen to the word of God that was spoken to him.
With blessings, Yaron Fish’l Ordner
We found whips for spiritual correction, in the words of Yaakov Ish Kfar Neboriya: ‘Habot Habot Habot Dayhu Teva Kolta’ 🙂
This explanation is answered in part by the fact that after the prophecy has been spoken by a prophet, there is a mitzvah to listen to it, but there is no mitzvah to listen to prophecies that have not yet been spoken by a prophet, and in particular, there is no general mitzvah for a prophet to utter prophecies. After all, this is the mitzvah that the Mishnah dealt with (15:7) and about which it was written that it is not a warning (i.e., it is not a positive commandment) for a prophet who renounces his prophecy, and that is why this answer was given above. And there the Mishnah said that the instruction itself to the prophet (such as “Go and say”) is the positive commandment and that he must fulfill it, and therefore the one who renounces his prophecy is afflicted until he utters his prophecy in a proper manner. Therefore, there is also no need for a general mitzvah to utter prophecies, because it is renewed as a new mitzvah with every new prophecy. In other words, it is a positive commandment that is both created in the subjective realm and is also directed only to a specific person, and for a subjective and personal matter, you do not have a good commandment from it.
But apart from the simple explanation that the prophet himself was also obligated by the positive commandment of ‘Hearken to Him’ – the prophet received a personal command from the mouth of the hero to convey the words to the people, and this is a ‘warning’ for violating it he was punished. Just as Adam and Eve, who violated the personal commandment given to them not to eat from the tree of knowledge, were punished for it.
With blessings, Ya'far
And consider the words of Rabbi Kook in Moser Avibach 1:4, that transgression dulls the heart because it is a transgression, and there is no distinction between eating a forbidden food and nullifying the Torah, etc.; transgression against the will of God is what gives rise to the hardness of the heart.
With blessings, Yafa'r
Exactly. The personal command from the mouth of the hero to convey the words to the people is the warning that the educational presenter quoted in the column is talking about and I am following him, and which we are discussing is a personal command.
On the 4th of Nisan 25, there is a state of torment intended to bring a person to spiritual ascension beyond the correction of sin.
Thus the Rabbi (in the Book of Blessings of the Lord) explains the words of the Lord (Berachot 5) that one who is afflicted with torment should search his actions to find a sin that requires correction. If he searches and finds none, he will be condemned to abrogation of the Torah, for it is possible that his virtues need correction, and the best way to correct virtues is by studying the Torah, by which virtues that need correction will be corrected and he will not need to torment himself.
However, if a person searches and finds no sin or virtues that require correction, These are the “torments of love,” and the Rabbi explains: “We mean to sweeten his qualities to such an extent that he cannot correct them without suffering, and to deserve a higher perfection, and this is from the love of God to raise him to a greater level than his nature at the beginning of creation.”
The suffering and the need to overcome them develop in man great spiritual powers that are not revealed in everyday situations. Man discovers his great abilities, and reaches a refinement and refinement of his qualities beyond natural habit. One can liken these torments to the difficulties experienced by a soldier in an elite unit in his training, who discovers and develops through his difficulties tremendous abilities and powers that he did not have before.
With blessings, Ben-Zion Yochanan Halevi Radetzky
Paragraph 2, line 1
… mirror”e (eye of the”e…
[In that column (374) we find subjectivity in a very specific sense at the end, that if the source of the facts is from the subjective realm, then everyone or certain people were allowed to ignore these facts. And indeed, no prophet is like that. But in the first part of the column there is a cruise between waves of different commandments, whether this is subjective, or this, or this, or perhaps actually this, and all the rejections stated there do not reject the special commandment for such and such a prophet to utter such and such a prophecy]
Oh, and this is what I said, this is subjectivity of the kind of vow and other faded examples.
I think that de facto there is a general commandment for every prophet to convey his prophecies. After all, when he receives a certain prophecy, the implicit assumption is that he must convey it. This assumption is common to all prophets. A commandment for all prophets is general, like a commandment for all priests or Levites or men. But that's already moot.
A general commandment apparently needs a verse, but it is not.
And the implicit assumption to publish a prophecy is indeed something obvious, but perhaps not obligatory. After all, in many places, there is no number of places where the Lord explicitly tells the prophet to publish. Here, in searching, I found and told them, and you spoke, say to Rehoboam, and you said to him, “Be careful and be quiet,” and you read and you said to them, “Cursed is the man,” and so on and so forth. Although in many prophecies (perhaps most) an explicit command to publish is not quoted, this is not proof. It is possible that there was one and it was not written (there are many such omissions that are understandable from the context in the Bible, and Radek comments on them in several places), and it is possible that there was not and the prophet published the prophecy explaining himself and for the benefit of the people in his generation and generations, and not out of obligation.
And the conclusion from all this is that in a prophecy without a command to publish, does it force him as the conqueror of his prophecy? If the commandment is a presumption from nothing, then they are forced. If the commandment is from the new commandments, then without commands, they are not forced.
And apparently, some evidence must be brought that there is no law for one who conquers his prophecy in prophecy without a command, since the Gemara there cites one who conquers his prophecy from Jonah ben Amitai. And apparently, we find several of the greatest prophets who conquered their prophecy for a time. For example, Samuel conquered his prophecy until Eli threatened him with a curse. And Micaiah ben Yamlah conquered his prophecy until Ahab swore an oath. And Jeremiah conquered his prophecy until Zedekiah promised him that he would not harm him. And perhaps there are more. And so why did the Gemara go as far as Jonah and not bring any of these great prophets. Except that Jonah was explicitly told to proclaim, "Arise, go to Nineveh and proclaim against it," while it is not written that Samuel, Micaiah, or Jeremiah were commanded to proclaim. And we learned that there is no law that prohibits a prophet from declaring his prophecy by virtue of an implicit assumption that must be published.
It is easy to divide, where they postponed the announcement. It is possible that the timing is left to the discretion of the prophet, and he is not subject to punishment as one who withholds his prophecy, but rather one who postpones his prophecy. Similar to this is the disagreement between the Rambam and the Rabbis about whether there is a kerat for postponing the circumcision to another day.
Nice. In Samuel (1 Samuel, Chapter 3) it is possible. But Micaiah ben Imlah (1 Kings, Chapter 22) his prophecy is apparently relevant only before the war and if he rejects it after the war it will again be of no use because it has already happened in reality. And Jeremiah (Jeremiah, Chapter 38) if he rejects the prophecy to Zedekiah, the Babylonians will already conquer him and the prophecy will again be after the reality. It can be said that Micaiah and Jeremiah only postponed it for a few minutes but at the last minute they would have said so but it seems rushed. Although perhaps Micaiah and Jeremiah were afraid of being caught.
But general evidence must be provided for your suggestion that a prophet can postpone and choose the timing (and perhaps not even violate any prohibition in doing so if he is aiming for benefit) from Jeremiah (chapter 36), who in the fourth year of Jehoiakim told Baruch that he would wait for a fast day and publish such and such a prophecy, and after some time in the fifth year of Jehoiakim, when a fast was proclaimed, Baruch came and published the prophecy.
On the 4th of Nisan 5:15, we apparently found a punishment for not fulfilling a mitzvah, even though there was no halakhic obligation to fulfill it, as in the offerings of Ma, in the era of Ritcha, one is punished for not wearing a four-cornered garment and therefore not committing to the mitzvah. There is room to say that this is not a “punishment,” but rather that in the era of Ritcha, one needs many rights in order to be saved, and one who does not fulfill the mitzvah of tzitzit lacks a right that would protect him.
However, from the words of the angel, “in the era of Ritcha, they are punished,” it seems that there is a punishment here. Rabbi Yonah in Sha’arei Teshuvah explained that the punishment is for not wanting to do the mitzvah. The Rishonim also present a method that the punishment in the era of Ritcha is when the way of the world is to wear a garment with four wings and he does something to get rid of the mitzvah, which even if it is not forbidden - this is improper conduct.
With regards, Yaron Fishel Ordner
Regarding the educational argument that if there was no written warning, it was clear that the punishment was a “conditional reward.” This was the argument held by the “buriers” (in the Sanhedrin 26) who buried a dead person on the first Yom Kippur and Rav Papa excommunicated them, and yet Rav Huna Bariya, Rabbi Yehoshua, qualified them to testify, because they believed that they were performing a mitzvah, and the excommunication was not given to them as punishment for the offense but as atonement for being forced to violate Yom Kippur.
It can therefore be said that to excommunicate constitutes such an amina that people are likely to raise and believe that the punishment is an atonement for being forced to commit a “offense for its own sake,” and therefore the Torah comes and warns that the act is forbidden.
With blessings, Yafa’r
We find punishment for a permissible act in the words of the Netzi”ev that Jacob was punished not for the actual theft of the birthright, which was a ‘offense for the sake of’ that was permitted to him, but nevertheless he was obligated to pay the penalty for the little bit of pleasure he had in his victory over Esau.
Apparently, the words are similar to the words of Rabbeinu Yonah, who causes himself to get rid of a tzitzit is punished in the era of Ritcha, not for the act, but for his mental attitude that does not desire to do the mitzvah, and so is Jacob, for whom the actual act was permitted, but his mental attitude that he had pleasure – that obliged him to pay the penalty.
With blessings, Ya'fu”r