The Logic of *Kal Va-Chomer*: III. A Note on Maimonides’ Approach (Column 737)
In the previous two columns I discussed the “relevance assumption” lurking behind *kal va-chomer* (a fortiori) arguments. Here I continue analyzing *kal va-chomer* and wish to examine it in light of Maimonides’ approach to “Divrei Sofrim” (rabbinic law) and in light of my remarks in the two previous columns.
Pilpul of *Kal Va-Chomer* and the Conclusions
We dealt with an argument based on two data points of the following type:
| Object/Rule | Tzitzit | Mezuzah |
| Lintel | ? | 1 |
| Four-cornered garment | 1 | ? |
The argument seeks to obligate a lintel in tzitzit or a garment in mezuzah by force of a *kal va-chomer*: if a garment, which is exempt from mezuzah, is obligated in tzitzit—then a lintel, which is obligated in mezuzah, is it not all the more so that it should be obligated in tzitzit?! And conversely: if a lintel, which is exempt from tzitzit, is obligated in mezuzah—then a garment, which is obligated in tzitzit, is it not all the more so that it should be obligated in mezuzah?! When the table contains only two data points, one can always run the *kal va-chomer* in both directions.
In the following column I brought several exceptions where the Talmud does employ a *kal va-chomer* on the basis of two data points. To explain why these cases do not contradict each other, I explained the *kal va-chomer* in a “layers (slides)” model: one layer (the textual) contains the halakhic data appearing in Scripture, and the second (the measured/derivative layer) contains those learned from the *kal va-chomer*. The claim was that even if we fill the missing cells with a 1, in truth we should write (0,1): 0 means it does not appear in Scripture, and 1 means it is true after the *kal va-chomer*. Therefore the 1 cannot be counted within the *kal va-chomer* argument itself. My assumption is that *kal va-chomer* operates only on Scriptural data.
The resulting table is the following (instead of “Torah” and “food” I left here the lintel and the garment in the table—despite the lack of real relevance—just to make it easier to follow):
| Object/Rule | Tzitzit | Mezuzah |
| Lintel | (0,1) | 1 |
| Four-cornered garment | 1 | (0,1) |
However, a difficulty arises here: the result of the *kal va-chomer* undermines its assumptions. For example, we assume that mezuzah is more stringent than tzitzit (from the top row), yet on the bottom row we see the reverse: a garment is explicitly obligated in tzitzit by the Torah, whereas in mezuzah it is obligated only by force of the *kal va-chomer* (textually it is exempt).
I answered that each cell in such a table can be filled in three ways and not just two: 0 – exempt; 1 – obligated; X – not relevant (a lintel is irrelevant to tzitzit, or a garment to mezuzah). In a case with only two Scriptural data points, the starting point is that the lacunae express X, i.e., the rule is irrelevant (and not 0, a halakhic exemption from the rule). But this solves the problem only for a table with two data points. In such a *kal va-chomer* it is indeed hard to accept running it in both directions (and usually one chooses, by sevara, which direction is correct). Yet the difficulty remains in an ordinary *kal va-chomer* built on three data points:
| Object/Rule | Tzitzit | Mezuzah |
| Lintel | 0 | 1 |
| Four-cornered garment | 1 | (1,?) |
Looking at the Scriptural data, we still see that the hierarchy in the top row (mezuzah is more stringent than tzitzit) does not hold in the second row. The same is true, of course, for the columns.
I explained there that in the “layers” picture the problem is resolved, since the assumptions of *kal va-chomer* are based on the Scriptural data alone (the first component in parentheses). My assumption was that if the result (0,1) depicted a degree of stringency between 0 and 1, it would indeed generate an internal contradiction within the *kal va-chomer* argument. But I claimed that these parentheses do not in fact express an intermediate level of stringency; rather, they are two independent components, each of which must be evaluated on its own. From the perspective of the halakhic result (after the *kal va-chomer*), the hierarchy is preserved, since in the end the learned case (*lamed*) truly is more stringent.
Maimonides’ Approach
In his Second Root, Maimonides presents a very novel position regarding laws derived from the hermeneutic rules:
Since this is so, not everything the Sages derived by analogy from the Thirteen Rules is to be said as having been stated to Moses at Sinai; nor should we say regarding everything we find in the Talmud that they base upon one of the Thirteen Rules that it is rabbinic. For at times it is an accepted interpretation. Therefore, what is proper is this: anything you do not find written in the Torah but you find in the Talmud that they derived by one of the Thirteen Rules—if they themselves explained and said that “this is Torah itself” or “this is from the Torah,” then it should be counted, for the recipients said it is from the Torah. But if they did not explain this and did not speak about it—then it is rabbinic, for there is no verse pointing to it.
That is, his view is that a rule derived from one of the hermeneutic rules that does not support/confirm an existing law but creates a novel law has the status of rabbinic (derabbanan). As is well known, Nahmanides (the Ramban) sharply attacks him on this point (see our book Yishlach Shoreshav, in the essay on the Second Root), and he presents many difficulties with this innovative view—a view that almost all Rishonim and Aharonim rejected outright. The issue is so difficult and so novel that among later authorities a position took hold that Maimonides did not mean to say these are rabbinic laws. Clearly, even according to him, they are de’oraita; their source, however, is from the Sages. He is speaking about the question of source, not the question of legal force. Yet in our book we demonstrated that this is not so, and that Maimonides truly intends to claim these are rabbinic laws. Our contention was that the question of force (status) is based on the question of source: when a law has no clear source in the plain sense of the Torah but is derived by derash, its force is like that of a rabbinic law.
This means that, according to Maimonides, the parentheses (0,1) in the tables above—where the first component expresses the question of source (whether there is a textual source) and the second component expresses the question of force (the law in practice)—can in fact be translated into an intermediate degree between 0 and 1, e.g., 0.5. This reflects Maimonides’ view that a law learned by *kal va-chomer* is less stringent than a law explicitly written in the Torah.
But now we obtain the following table:
| Object/Rule | Tzitzit | Mezuzah |
| Lintel | 0 | 1 |
| Four-cornered garment | 1 | (0.5,?) |
Before the derivation, the data direct us to perform a *kal va-chomer*, with the row-argument assuming that mezuzah is more stringent than tzitzit. But the result of the *kal va-chomer* is that mezuzah is lighter than tzitzit, for mezuzah on a garment has stringency 0.5 whereas tzitzit on a garment has stringency 1. The same holds for the relationship between lintel and garment (in the column-argument, which, as we saw in previous columns, is not a different argument from the row-argument).
Thus, the difficulty we saw above regarding *kal va-chomer* intensifies according to Maimonides. Unlike all the other hermeneutic rules, *kal va-chomer* rests on the assumption (generalization) that the learned case (lamed) is more stringent than the teaching case (melamed). Yet the melamed is a rule explicitly appearing in Scripture, while the lamed is a rule emerging from the *kal va-chomer* itself—i.e., it arises from derash—and is therefore lighter. Consequently, the conclusion of the *kal va-chomer* contradicts its assumptions. Put differently: the result of the *kal va-chomer* constitutes a rebuttal (*pircha*) to the very inference: what of the learned case, seeing that the force of the rule in it is lighter (since it comes from derash) than in the teaching case (which is explicit in Scripture)?
The Textual Solution—and Its Undoing
One might consider here as well the textual solution: if we assume that *kal va-chomer* is based on Scriptural data and does not address the practical law, then we can relate only to the left component in the parentheses. On this proposal, *kal va-chomer* is a textual, not a substantive, rule and does not reflect true relations of stringency between the data. But now this already begins to look very problematic, because in practice—halakhically—the learned case comes out lighter than the teaching case, which is effectively a rebuttal to the *kal va-chomer*’s assumption.
This is seen even more clearly if we compare *kal va-chomer* to “kol she-ken,” i.e., an a fortiori based on a single datum. For example: “Behold, the children of Israel did not listen to me; how then will Pharaoh listen to me, and I am of uncircumcised lips?” Here the relation of stringency is grounded in reason, not in Scriptural data, and therefore it is clearly about actual stringency. It is implausible that in a measured/derivative *kal va-chomer* based on three data points we would ignore altogether the true relations of stringency between the learned and the teaching cases.
This becomes sharper still in light of what I explained above according to Maimonides, who links the question of source with the question of force. For him, the source of the law determines its force. If it lacks a source in the Torah, its force is lower. Accordingly, it is even harder to sever the textual question from the halakhic question and to claim that *kal va-chomer* is based on relations among data as they appear in Scripture, detached from the question of their force. On the contrary, in his view the reference to the text is only because it serves as an indication of force.
On Force and Stringency
I think we must distinguish between a law’s force and its stringency. The force of laws may be de’oraita or derabbanan. But their stringency does not necessarily mirror their force. In the end I will argue here that, according to Maimonides, the source of a law indeed determines its force, but not its stringency. The force of a law derived by derash is indeed like that of a rabbinic law, but its stringency can be full—like that of a de’oraita. Therefore, the relations of stringency are preserved even after the *kal va-chomer*, and there is no contradiction to its assumptions. In other words,
To understand this better, I will preface a principle I have discussed elsewhere (see at length in my essay on sevarot). In the essay “Teshuvah,” in his Collected Essays, Ra"u notes that there are two planes in performing a mitzvah or transgressing a prohibition: the command and the essence. The assumption is that each mitzvah is meant to achieve some benefit, and each prohibition prevents some harm that the prohibition comes to avert. Accordingly, one who performs a mitzvah accomplishes two positive things: he obeys the command, and he brings about some positive outcome (which is the reason we were commanded). Similarly regarding one who transgresses a prohibition: he rebels against the command and causes harm. Thus, for example, Tosafot ha-Rosh (Kiddushin 31a) explains the principle that “one who is commanded and does [is] greater than one who is not commanded and does” as follows:
“Greater is one who is commanded and does.” Although we say in Hagigah chap. 2, by way of parable, that if a king told his servants to rise early at his door—to whom is there more reason to be grateful? To the women, whose way is not to rise early as men do…—that is not like our case. There both are commanded, and one who does what is not his way is better when he does. And the reason here is that one who is commanded and does is preferable because he constantly worries and is pained, lest he transgress, and he must subdue his inclination more than one who is not commanded, who may desist if he wishes. Moreover, the Holy One, blessed be He, needs nothing from the commandments; rather, He says and His will is done. Therefore, the one who is commanded and does fulfills the will of his Creator; but one who is not commanded and does—regarding him it is not apt to say that he does his Creator’s will, for He did not command him anything. Nevertheless, there is reward.”
In his second explanation he writes that one who is commanded and acts simply achieves both benefits, and therefore is greater (the reward reflects that he performed a positive act).
The “essence” says that a given mitzvah brings some benefit (and a prohibition prevents harm). This is a good reason to fulfill it, but it does not create an obligation. Our obligation to fulfill the commandments stems from the command. From this we may conclude that the stringency of a mitzvah is not necessarily tied to the command, but to the essence. The greater the harm a prohibition causes, the more stringent it is. And the greater the benefit, the more important (stringent) the mitzvah. By contrast, the force of the mitzvah is determined by the command: if there is a command in the Torah, it is de’oraita; if not—then it is rabbinic.
In the essay cited I argued that there is no direct linkage between command and essence. For example, among de’oraita commandments there are lighter and more severe ones, even though all are commanded in the same way. Their legal force and status are identical, since all are commanded and are de’oraita; but their stringency certainly differs (in accordance with the benefit or harm involved). Thus, “You shall not murder” is the most severe prohibition, yet its force is like that of any de’oraita prohibition (for it is written in the Torah as an ordinary prohibition). One may discuss whether the punishment reflects a prohibition’s stringency or not (see, for example, here and in this work), but command is only a necessary, not sufficient, condition for liability to punishment. Moreover, there may be commandments severe in essence for which, for various reasons, there is no command (see the end of the essay on sevarot).
We saw above that, according to Maimonides, laws derived from derash are “Divrei Sofrim.” I have explained in several places that in such laws there is essence but no command (for according to Maimonides, derash does not uncover something latent in the Torah itself but expands what is written there; see my essay on the Second Root). Thus, for example, fear/awe of Torah scholars is a de’oraita obligation derived from an inclusion: “You shall fear the Lord your God”—to include Torah scholars (Pesachim 22). This means there is no command regarding awe of Torah scholars, but in essence there is such an obligation and its stringency can be like that of an ordinary de’oraita (which does carry a command). There is a reason we were instructed to revere Torah scholars; i.e., there is benefit in such awe. Therefore there is essence here. This is in contrast to rabbinic laws, which are laws without essence (there is an obligation to fulfill them, but from the Torah’s perspective there is no harm or benefit in their performance or transgression—otherwise the Torah itself would have commanded them). See on this in columns 582 – 583.
In my essay on the Second Root I inferred from here that even according to Maimonides, doubt in a law derived by derash is treated stringently, despite its being rabbinic. I explained that the halakhot of doubt are set according to stringency, not command; and in a derash-derived law, the stringency is like that of a de’oraita, only its force is lower (for there is no command). One implication: according to Maimonides there is no punishment for violating it (since the threshold condition—a command—is lacking, and there is no punishment without warning).
Thus we learn that a law’s force is not identical with its stringency. Its force is measured on the de’oraita/derabbanan plane according to whether there is a command; but its stringency is a continuous matter with varying degrees that are not necessarily dependent on the command. They depend on the act’s consequences—the harm or benefit it causes.
A similar idea I proposed in column 679, which dealt with the relationship between a law’s halakhic force and the strength of the obligation to fulfill it. I showed there that the strength of the obligation to fulfill may differ from its halakhic force. In the terminology presented here, it is more accurate to say that a law’s stringency (its essence) does not depend on whether there is a command. The strength of the obligation to fulfill is determined by the command (for only a command creates obligation), but the stringency depends on the essence—i.e., on the act’s consequences. Therefore, with all de’oraita laws there is the same strength of duty to obey, since all are commanded in the Torah and there is a duty to obey the Torah’s commands. But the stringency varies according to the essence. Moreover, it is possible that the duty to fulfill rabbinic laws is identical to the duty to fulfill de’oraita laws (certainly according to Maimonides, who grounds the duty to obey rabbinic laws in the verse “You shall not deviate”; see columns 652 and 443).
Back to *Kal Va-Chomer* According to Maimonides
We can now understand that even according to Maimonides, it is not the case that the result of the *kal va-chomer* undermines or contradicts its assumptions. We saw that a *kal va-chomer* table according to Maimonides looks like this:
| Object/Rule | Tzitzit | Mezuzah |
| Lintel | 0 | 1 |
| Four-cornered garment | 1 | (0.5,?) |
The difficulty was that, according to Maimonides, the rule in the lower-right cell is lighter than 1 (we marked it 0.5), creating a reversed hierarchy in the bottom row compared to the top row, and in the left column compared to the right.
We can now understand that this is not the case. Maimonides does not say that the stringency of a law learned by *kal va-chomer* is lighter than that of a law explicit in the Torah. What he says is only that the strength of the obligation to fulfill it is lower (hence he treats it as rabbinic).
This can take us to two different formulations:
- Following the distinction I drew between the textual plane (whether the law is written in the Torah) and the halakhic plane: one could say that *kal va-chomer* is made on the basis of a law’s force (command and Scriptural appearance) and not on the basis of its stringency. Therefore, even if the product of the *kal va-chomer* is a law less stringent, this does not contradict the *kal va-chomer*’s assumptions. It is less stringent, but its force is identical.
But this formulation is implausible, since, as we saw, according to Maimonides the opposite is true: the stringency of laws derived by derash can be like that of ordinary de’oraita laws, while it is their force that is lower.
It therefore seems better to explain the reverse:
- Indeed, a law learned by *kal va-chomer* has lower force than ordinary de’oraita laws. But its stringency is not necessarily less than theirs, for the *kal va-chomer* assumes that it is actually more stringent (its consequences are no less grave than those of the de’oraita law that teaches about it). We saw that, for Maimonides, derash expands what is written in the Torah rather than uncovering what is within it; therefore, according to Maimonides, the learned law of the *kal va-chomer* does not carry an actual command, whereas the teaching law, of course, does. Nevertheless, the stringency of the learned law is naturally greater than that of the teaching law—that is the very basis of the *kal va-chomer*. Hence the result of the *kal va-chomer* does not contradict the generalization on which it rests, for even in the halakhic plane the law learned by *kal va-chomer* is more stringent than the teaching law.
Of course, according to this proposal Maimonides would hold that the *kal va-chomer* inference is based on the stringency of the given laws, not on their force. In other words, the *kal va-chomer* is made in the halakhic (substantive) plane and not in the textual plane (as I suggested in previous columns to explain certain kinds of two-datum *kal va-chomer*).
One implication of this proposal is that there will be situations in which we have a *kal va-chomer* data table (i.e., a table with three data points as we saw), where the upper-right cell is 0 because there is no Scriptural command—and nonetheless we will not perform a *kal va-chomer*. This could occur if, for some reason, we understand that that cell concerns a law that is very stringent (and the reason the Torah did not command it is circumstantial, as I noted above). In such a case we cannot perform a *kal va-chomer*, since on my proposal the *kal va-chomer* is based on relations of stringency and not on relations of force. Note that under the previous proposal, which assumes that the *kal va-chomer* inference is based on force and not on stringency (i.e., that it operates in the textual plane), we would perform a *kal va-chomer* even in such a case.
Discussion
The question is not what to do in practice. Obviously one should derive by kal va-chomer, since it is a hermeneutical rule. But the question is twofold: 1. What is the logic of this rule? If this case is more severe, why is its law not more severe? Alternatively, if its law is less severe, then it is not more severe. 2. Seemingly, this itself is a refutation of Rambam’s position that what is derived by kal va-chomer is easier/lighter.
So according to Rambam, the kal va-chomer in the sugya of “Torah and sustenance” remains difficult (even if we assume the lacuna-boxes are filled in by an “explicit exemption,” but on the plane of “stringency/leniency” they are still more severe, the ratio is still preserved and the kal va-chomer still cannot be carried out)?
Likewise, this undermines the “yardstick” for knowing levels of stringency as a basis for making a kal va-chomer, because of lack of information: it may always be that the explicit datum “exempt” is, on the plane of stringency/leniency, actually more severe, and for some side reason the Torah did not spell out its obligation. Suppose in the sugya of “an ox’s goring in the injured party’s courtyard,” it may be that tooth in the public domain is more severe, and the kal va-chomer falls apart?
Seemingly we require some indication of that, and not just to assume that the “exempt” box is more severe. But if so, we are already arbitrarily assuming, implicitly, some ratio of severe/light relative to the final result.
Whereas according to the other commentators, the yardstick for knowing what is more severe is based on the explicit data.
Regarding Torah and sustenance: indeed, in the conclusion we do not make the two kal va-chomer arguments. The question was about the initial assumption.
As for your second question, I hinted at it in my remarks. And I explained that usually legal force does indeed indicate stringency, unless there is an indication otherwise.
Perhaps support for Tur’s principle (that there is legal force and there is stringency) can be brought from Bava Kamma 2b and Tosafot there, s.v. “aval ha-mechuberet eima.” There there is a rationale to obligate “attached horn” for full damages by kal va-chomer, because it is more severe than the data there (according to several views), and nevertheless the Gemara’s conclusion is that since there is an explicit verse, “the firstborn of his ox, majesty is his” [Deut. 33:17], in practice one is not liable for full damages but only half.
Seemingly, the “stringency” relation of attached horn is preserved; it is only that because of the explicit verse, this is not the law in practice. If so, the explicit law does not coincide with the relations of stringency/leniency.
Corrections.
First line: bring support
Second line from the end: is preserved,
But seemingly from every kal va-chomer we see that legal force does not coincide with stringency. For the explicit data are less severe than the result of the kal va-chomer. So this is a weakness in the principle you wrote (“that usually legal force does indeed indicate stringency”).
A. What practical difference is there in a different intensity of obligation? For example, a fourth degree of impurity in consecrated food is disqualified by kal va-chomer—for the purpose of “if one has to choose, choose the lesser evil first,” are the second and third degrees equal and more severe than the fourth? Or if one was coerced into eating one of them, are the second and third equal and his obligation is to prefer the fourth, since it comes from a derivation?
B. In the Gemara we see that “a matter that comes by kal va-chomer, Scripture nevertheless took the trouble and wrote explicitly” is treated as a less preferred outcome. According to you, why is it less preferred? In a place where an איסור is learned (and not a permission), Scripture took the trouble in order to teach us the truth—that here the legal force is higher.
C. I thought of a strange conclusion. According to your view, a guilt-offering (asham) is for damage to the essence, and kal va-chomer teaches about essence. So if we find a prohibition learned by kal va-chomer from a prohibition punishable by karet, whose inadvertent violation requires a sin-offering and whose uncertain violation does not require a guilt-offering, then there would be no prohibition carrying lashes and no sin-offering—but there would be a guilt-offering. Is that really so?
Possible. But perhaps the verse reveals that the stringency relation is not correct.
Correct. Where there is a kal va-chomer, that indeed does not hold.
A. Plainly, “choose the lesser evil first” is determined by stringency and not by legal force.
B. I do not know what the practical difference is with respect to legal force. The main thing is stringency. And if this is a kal va-chomer that explicates an existing law (adding a detail to it) and does not innovate a new law, then the legal force is also high.
Beyond that, if they write it in order to teach about legal force, then the kal va-chomer itself is superfluous. So perhaps the duplication itself is an a posteriori matter.
C. Why is that strange? It is certainly plausible. More than that: if one simply learns a prohibition by kal va-chomer from some other law, then according to Rambam the derivative is not truly a Torah prohibition, but there can still be a guilt-offering for it.
B. If there is no legal force from logical derivation, then one must write two verses—so what if the kal va-chomer itself is superfluous? And if legal force has no effect, then why do your remarks on Rambam’s view not collapse back into the view of those who say that “rabbinic law” just means the source separately.
You added here a major claim: that in an explicating kal va-chomer, the legal force is high. If I understand correctly, that means the Tur deals only with an innovative kal va-chomer. And everywhere the Gemara says, “a matter that comes by kal va-chomer, Scripture took the trouble and wrote explicitly; and where it is possible to distinguish, we distinguish,” it refers only to an explicating kal va-chomer. And I assume you agree that even an explicating kal va-chomer is called divrei soferim in Rambam. Did I understand correctly?
I retract my hesitation. Certainly legal force has halakhic significance. We do not punish if there is no Torah-level legal force. In my estimation, the rule that a positive commandment overrides a negative commandment would not apply if the positive commandment does not have full force.
And still, “a matter that comes by kal va-chomer, Scripture took the trouble and wrote explicitly”—I think one can understand this as second preference. If there is an option to explain that the verse innovates a new law, that seems preferable.
I have not checked the places where this rule is stated. If indeed it is only in an explicating kal va-chomer, that of course solves the problem.
In my opinion, an explicating kal va-chomer is not Rambam’s divrei soferim, just as all derivations that uphold an existing law are not such. What is confusing is that at the beginning of Hilkhot Ishut he writes that money is divrei soferim. The derivation regarding money, and likewise intercourse and document, explicates the concept of kichah in the Torah (“when a man takes a woman” [Deut. 24:1])—that is, betrothal—and therefore, in terms of legal force, they are all Torah law. Admittedly, here Rambam uses the expression divrei soferim, and that seemingly contradicts my position, but in my opinion here it is only in the sense of source and not of legal force. The proof is that in the very next halakhah he imposes the death penalty on one who has relations with her.
As a matter of halakhah, we do not punish on the basis of logical derivation, but it seems that one does make a rebuttal from the punishment (in searching for something else that is also liable to death): “What about sprinkling, where a non-priest is liable to death for it,” and so on. That means the conclusion of the kal va-chomer still undercuts its premises. What would you answer to that?
I do not know how to define clearly what an “innovative kal va-chomer” is, in order to check in the Talmud the occurrences of “a matter that comes by kal va-chomer.” If you have one genuine example or two of an innovative kal va-chomer from three data-points (the case the Tur is discussing), that would definitely help.
Do you think that with regard to “a derivation from a derivation” there would also be a difference depending on whether the first kal va-chomer is explicating or innovative—meaning, why should there not be “a derivation from a derivation” in an explicating kal va-chomer?
The first possibility—that “a matter that comes by kal va-chomer” is different from “if Scripture nevertheless took the trouble and wrote explicitly,” yet is still second preference—seems impossible to me. What is the Holy One, blessed be He, supposed to do if He is forced to write two verses so that we may know the truth?
I did not understand the question. How do you see here that the kal va-chomer undercuts its premises?
A. The difference in punishment here is not the one connected to the kal va-chomer itself, but due to a side law (the law of a non-priest). This is a rebuttal like any other rebuttal.
B. And even if it were connected to the kal va-chomer, this is not a rebuttal to its premises. The rebuttal is that the Torah wrote a punishment in the source case, and there is no punishment in the derived case (and even if we derive a prohibition by kal va-chomer, there still will be no punishment here).
The kal va-chomer in Bava Kamma 25 regarding horn in the injured party’s courtyard is explicating, since it adds a detail to the existing laws of damages of horn and of the injured party’s courtyard.
And indeed, your remark here seems correct to me: usually a kal va-chomer of three data-points will be explicating and not innovative, because if one assumes relevance between the columns and the rows, that means the kal va-chomer only adds a detail to an existing law. I need to think about this more. It seems to me that the examples of punishment by logical derivation are mostly (and perhaps all) cases of a kal va-chomer from one datum (such as his sister who is the daughter of both his father and his mother, or digging and opening a pit). Interesting—I had not thought of that.
As for “a derivation from a derivation,” I do not know. Perhaps.
As for “a matter that comes by kal va-chomer,” I am actually growing stronger in my view that this is indeed second preference. The possibility that the Holy One, blessed be He, would be forced, have no way out, and need to write two verses, is rarer than the possibility that this comes to innovate something else. It is possible, but rare. Especially if one remembers that in terms of stringency, the law learned by kal va-chomer has full stringency, and only its legal force is smaller.
Please explain more. Just as you suggested a rebuttal—“what about the source case, which is written explicitly, from which it follows that it is more severe?”—so too one could rebut: “what about the source case, where they punish, from which it follows that it is more severe?” Therefore a prohibition without punishment cannot be learned. Perhaps the formulation “a rebuttal to its premises” is not fitting, but it is still a general rebuttal, like the one you suggested in the Tur from the fact that it is not explicit in the Torah. This seemingly shows that there is a problem with such a general rebuttal. And when one learns a kal va-chomer toward permission or exemption, then too the rebuttal from the matter being explicit in the Torah is not a rebuttal.
I lost you.
How can one rebut: “what about the source case, since it is written explicitly”? That would eliminate every kal va-chomer from the outset. The claim is that the derived case is not written because it can be learned by kal va-chomer. So that is not a rebuttal.
I also did not understand the rebuttal you are suggesting concerning a prohibition without punishment: “what about the source case, since it has a punishment.” Do you mean that in the derived case there is no punishment because we learned it by kal va-chomer? (That is not the rebuttal you quoted. There it is a side law.) Well, that is what I dealt with in the Tur regarding Rambam’s view in general (the distinction between stringency and legal force).
And perhaps your intention is to broaden what I asked about Rambam, and ask it about all the views, since everyone agrees that one does not punish on the basis of logical derivation (= kal va-chomer)?
Then I will answer as I answered regarding Rambam (the distinction between stringency and legal force). Beyond that, the fact that one does not punish on the basis of logical derivation is not necessarily a leniency. There is an explanation that one does not punish דווקא because the derived case is too severe for that punishment.
In short, I do not understand.
Regarding “a matter that comes by kal va-chomer,” I cannot understand how you avoid the conclusion that we see in the Gemara that learning by kal va-chomer and learning from a verse are identical. If there is any practical difference whatsoever (or even a difference in what the Torah means), then the Holy One, blessed be He, wrote the verse so that we would know the difference. Just as He wrote a verse when He wanted us to know that there is a warning and punishment, so too He wrote a verse so that we would know the legal force—which according to you certainly has halakhic significance. Now I think that in a kal va-chomer for permission, purity, or exemption, legal force has no significance, because legal force pertains only to prohibitions and commandments, and therefore in such a kal va-chomer the kal va-chomer and the verse really do bring the same result. Meaning: if there really are no occurrences of “a matter that comes by kal va-chomer” that teaches a prohibition or an obligation, then the problem is solved.
I answered. Either this is an explicating kal va-chomer, and then there is no practical difference. Or it is still preferable to the possibility that there was no constraint on the Holy One, blessed be He. True, there can be a situation where a verse is needed, but if I have two possibilities: 1. Even though there is a kal va-chomer and I would know the stringency even without a verse, a verse was needed to define the legal force as Torah law. 2. A verse is needed to teach something else, and I have also found such a thing that the verse can teach. Now I must decide which of the two possibilities is preferable. I can certainly understand why, a priori, the second is preferable, even though the first is also possible. The first describes a situation in which the Holy One, blessed be He, is “in distress” and has to add a verse beyond the kal va-chomer.
And indeed you also added a third possibility: that the kal va-chomer in question is for exemption.
In short, one could discuss this around a concrete example that is neither for exemption nor an explicating kal va-chomer but an innovative one, and then ask about the order of preference between the two possibilities I described above.
Indeed, I meant to broaden the question you asked about Rambam to all the views. And my aim is to cast doubt on the question itself, for this whole separate thread here is about that doubt; the rebuttal I quoted only shows that they make a rebuttal from punishment—meaning that punishment is a stringency.
I did not understand your answers to this difficulty. One answer you gave was to distinguish between stringency and legal force—meaning, the derived case is of the same stringency, only with lower legal force? But a difference in punishment is a difference in stringency, since they make a rebuttal from it.
A second answer you gave was that the derived case is not adequately addressed by this punishment. First, as a matter of reasoning this is hard for me, because they said that (in the Gemara, not in later authorities) about exile, which brings atonement—but where did they say this about court-imposed punishments, lashes and death, especially the most severe death, than which the court has none more severe? And one can also test that answer: if we can block off the derived case both from above and from below, then we will find a source case lighter than it whose punishment is lashes, and a source case more severe than it whose punishment is also lashes, and then one cannot say that this derived case is not adequately addressed by lashes. True, how to find such a situation—perhaps one would have to ask a dream-question to Rabbi Baruch Shmuel Deutsch.
I asked only about the second option you wrote, that there is preference for the possibility that there was no constraint. And I am asking: legal force is exactly like warning and punishment. Just as for them the Holy One, blessed be He, always takes the trouble to write a verse, so too for legal force, since it has halakhic significance. If you answered this comparison, then unfortunately I did not manage to understand, and I will try again this evening.
I answered that legal force is usually an indication of stringency, even if not always. Therefore one can make a rebuttal from the existence of a punishment, and then the burden of proof that here the stringency remains intact and the punishment is only because of legal force is on the expositor himself.
The absence of punishment because the severity is insufficient is one of the two explanations in the commentators regarding why one does not punish on the basis of logical derivation. I even have an article about this (Maharsha and Kesef Mishneh).
I answered this in the last message.
I went back over the matter, and with your permission I will go over it again in writing and at length. If I have repeated myself unnecessarily, I apologize, but I am uncertain whether it may help.
A. Rambam said that what is learned from a derivation is divrei soferim. You said that you proved that Rambam means that what is learned from a derivation is really different in result from Torah law. At first you explained that what is explicit in the Torah is more severe. And against this you raised the difficulty: if so, in every kal va-chomer to be stringent from three data-points, one could rebut, “What about the source case, which is explicit in the Torah?”—meaning, the source case is more severe, not lighter. “The result of the kal va-chomer itself constitutes a rebuttal to the inference: what about the derived case, where the legal force of the law is lighter (since it comes out of a derivation).” And on that basis you qualified your interpretation of Rambam and said that what is learned from a derivation is always as severe as what is explicit, except that with respect to legal force there is a difference between what is explicit and what is derived, and the kal va-chomer is not affected by legal force.
B. I am trying to argue against this difficulty—“the result of the kal va-chomer itself constitutes a rebuttal to the inference.” Even if as a matter of logic the difficulty is indeed a difficulty, such is the hermeneutic rule, and that is all. Leniencies whose reason lies in the laws of kal va-chomer itself are not considered leniencies but a side impediment.
C. And how am I arguing against the difficulty? I found that it is difficult not only according to your new understanding of Rambam, but according to everyone.
D. And thus the difficulty—that the result constitutes a rebuttal to the inference—is difficult according to everyone. Makkot 17b: “If tithe, which is lenient—one who eats it outside the wall gets lashes, then first-fruits all the more so… etc. But do we derive a warning by logical inference?… etc. It is only a bare prohibition.” And Rashi explained: “A warning by kal va-chomer is said only for a bare prohibition, and not for lashes.” Meaning: in the source case there is a prohibition and lashes, and we learn for the derived case that there is only a bare prohibition and no lashes. If so, the difficulty arises: the result of the kal va-chomer itself constitutes a rebuttal to the inference—what about the source case, where one gets lashes, as opposed to the derived case, where one does not get lashes?
E. One might have said that punishment is not a stringency, and therefore one does not make a rebuttal from it. But we find in Zevachim 107: “What about sprinkling, for a non-priest is liable to death for it?” Meaning: they do indeed make a rebuttal from punishment. If so, the difficulty—“the result of the kal va-chomer itself constitutes a rebuttal to the inference”—arises according to everyone. Only when the absence of punishment in the derived case is because of the laws of kal va-chomer itself is it not considered a leniency in the derived case (Makkot), but when the absence of punishment is an independent law in the derived case, then it is considered a leniency in the derived case (Zevachim).
F. And the difficulty in brief is this: in Zevachim they make a rebuttal from the gap in punishment, whereas in Makkot they do not make a rebuttal from the gap in punishment. Seemingly the difference is that in Zevachim the gap in punishment is independently known, and therefore they make a rebuttal from it; but in Makkot the absence of punishment itself is because of a side impediment from the laws of the kal va-chomer that we are learning, and therefore they do not make a rebuttal from it. And according to this, your difficulty against your first understanding of Rambam—that “the result of the kal va-chomer itself constitutes a rebuttal to the inference”—is not a difficulty, and one could quite well remain with your first understanding of Rambam, that what is learned from a derivation is also less severe.
G. At this point I went back and wrote your two answers and what seemed difficult to me in them, etc., but deleted it for a certain reason. Could you please at least just confirm that now, after I have explained my question more fully, your two answers or one of them still stand.
Many thanks for the summary. I no longer remember the details of the discussion—neither from your side nor from mine—but I think all this was clear to me. I too will summarize my position as it seems to me now (I no longer remember what I wrote to you):
A. My difficulty was not exactly what you wrote here. You present the problem as that the punishment is a rebuttal to the kal va-chomer. I am not saying exactly that, but rather that the absence of punishment is a leniency, and that contradicts the premise of the kal va-chomer, namely that the derived case is more severe. That is, even if this does not constitute a formal rebuttal, there is still an internal contradiction here.
B. Note that your answer does not address this formulation, because even if the result of the kal va-chomer is not a rebuttal to it, since this itself is what was innovated in the law of kal va-chomer, it still comes out that the derived case is not more severe than the source case, and that contradicts the premise of the kal va-chomer that it is more severe.
C. Therefore I tried to say that one goes after the stringency in the text (a textual kal va-chomer). In the end, I was forced to say differently: the derived case is as severe as the source case (and even more so), only its legal force is lower. Consequently, the premise of the kal va-chomer is not contradicted by its result. The absence of punishment does not contradict the greater stringency of the derived case.
D. Now you can understand that your question from Zevachim—where we see that they do indeed rebut from punishment—is no difficulty for me. There, punishment is an indication of stringency, and it is perfectly proper to rebut from it. Only when the absence of punishment is because of the rule that one does not punish on the basis of logical derivation (and according to Rambam this applies in all the hermeneutic rules, not only in kal va-chomer)—there, the absence of punishment is not necessarily the result of lower stringency, but of lower legal force (the transgression is severe enough to warrant punishment, but it simply lacks an explicit warning, and therefore one cannot punish).
E. I also added that the absence of punishment in Zevachim is side-related and not part of the law under discussion itself, unlike the case of absence of punishment for what is learned by kal va-chomer. There the discussion is about punishment for a non-priest, whereas our discussion is about a priest.
Thank you very much; I think I now understand.
Regarding section D: are you essentially writing that everyone—not only Rambam, who said that what is learned from a derivation is divrei soferim—agrees that what is learned by kal va-chomer, where one does not punish on its basis, has lower legal force, meaning that the intensity of the obligation to observe it is lower?
Indeed. What I wrote regarding Rambam about all the hermeneutic rules—regarding kal va-chomer, everyone agrees. For there, according to everyone, one does not punish on the basis of logical derivation.
Of course, there is an assumption here about the rule that one does not punish on the basis of logical derivation, and it does not fit the standard explanations. It does fit the explanation I proposed in the past, whose basis is that the severity of the transgression does not necessarily overlap with the severity of the punishment (the question of legal force offers an alternative explanation for this rule).
Since the rebuttal—“what about deriving a law when that law does not appear explicitly there?”—is a general rebuttal to every a fortiori argument (kal va-chomer), then it is obvious that the very hermeneutic of kal va-chomer was innovated precisely to exclude that rebuttal (something like lex specialis). Why, in your view, is an explanation needed for that innovation?