“Included in Two Hundred Is a Maneh” (Column 318)

In this column I wish to touch on a special type of kal va-chomer (a fortiori argument), which the rule-writers call “bekhlal matayim maneh”—“included in two hundred is a maneh.” At first glance this looks like a purely logical argument and, in that sense, is unusual compared to the other hermeneutical rules (including the other types of kal va-chomer). We will see again that applying logic to real-world domains must be done with great care (I noted this as well in Column 50). I have already mentioned in the past that logical formalization is alluring (to me as well), but it is a dangerous process. Formalization presents a philosophical argument as if it were absolute mathematics—i.e., incapable of error. People fail to notice that the very act of formalization itself involves several assumptions that require scrutiny, and those assumptions may well be mistaken or at least unnecessary. We shall see that this is also the case with this kind of kal va-chomer.

The “Included in Two Hundred Is a Maneh” Kal Va-Chomer

Among the hermeneutical rules, the kal va-chomer is considered the most “logical.” Not for nothing do the Sages refer to it as “din” (“and is it not a din?,” or “we do not punish/warn from a din,” and the like).[1] There are several types of kal va-chomer, and what they all share is learning the stricter from the lenient (or the lenient from the stricter, in “chomer ve-kal”). The type I wish to focus on here is what the rule-writers call the “kal va-chomer of ‘included in two hundred is a maneh’,” meaning that the severity relation between the lenient and the strict is one of inclusion.

A standard biblical kal va-chomer appears, for example, in Exodus 6:12:

And Moses spoke before the Lord, saying: “Behold, the children of Israel have not listened to me; how then shall Pharaoh listen to me, and I am of uncircumcised lips?”

The chance that Pharaoh will heed Moses is lower than the chance that the children of Israel will heed him. Therefore, if the children of Israel did not listen, then all the more so Pharaoh will not listen. There is a severity relation between the children of Israel and Pharaoh that is expressed in their respective probabilities of complying with Moses. This is a regular kal va-chomer based on an ordinary severity relation.

But in Exodus 21:33–34, the Torah commands regarding damages caused by a pit:

And if a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or a donkey fall therein: the owner of the pit shall pay; he shall make restitution to the owner, and the dead animal shall be his.

A person who created a pit in the ground must pay for damages caused to an ox or a donkey that fall into it. Digging a pit is creating a pit in the ground. What is opening a pit? Simply, removing a cover from an existing pit. This raises the question: why does the Torah bother to mention both actions? If one is liable for opening, then certainly one should be liable for digging. Note that here the severity relation is special and not similar to the relation in the previous example. When you dig a pit, the act of digging removes soil from the entire depth of the pit, and in particular from its upper part (the part at ground level). Removing the soil from the top is itself an act of opening. Therefore, in this case digging is not merely more severe than opening (as with Pharaoh and the children of Israel); rather, digging includes opening, and its “greater severity” derives from the fact that it contains opening plus something additional.

What is the difference between these two kal va-chomer types? For the first type one can raise refutations (pirchot). For example, perhaps Pharaoh will heed Moses because he is not under anyone’s authority and makes decisions himself, whereas the children of Israel are afraid to heed Moses because they fear Pharaoh’s heavy hand. This refutation attacks the severity relation—namely, the assumption that Pharaoh’s probability of compliance is lower than that of the children of Israel. Now consider whether a similar refutation could be raised against the second kal va-chomer (of the “included in two hundred is a maneh” type). On the face of it, it seems not. Digging is necessarily stricter than opening, for it inherently includes opening. The punishment for digging is not imposed because it is “more severe” than opening, but because there is, within it, an act of opening. I punish the digger for the “opening component” of his act. Therefore there can be no refutation that shows that digging contains something “lighter” than opening. Everything that is said about an act of opening must also be said about an act of digging.

Indeed, in the Mekhilta on this verse we find the following exposition:

If for opening he is liable, then for digging all the more so? Rather, from here [we learn] that we do not punish from a din (i.e., from a kal va-chomer).

Reference to digging is superfluous, and its mention comes to teach that we do not punish (impose liability) via din (kal va-chomer). In other words, had the Torah written only “opening” and not “digging,” we would not have obligated the digger to compensate the victim of the pit.

However, in several places in the Rishonim (Tosafot, Bava Kamma 2a, 50a, and elsewhere) we find that regarding monetary liabilities, such as torts, we do punish via din. At first glance, the Mekhilta here contradicts that view. Indeed, in several sugyot (see Bava Kamma 50a and 3a) this verse is expounded differently. Some Acharonim claimed that the Bavli disagrees with the Mekhilta about whether one punishes monetarily via din or not.

Yet some of the rule-writers argue that no proof can be brought from here about punishing monetarily from din. In a “bekhlal matayim maneh” kal va-chomer from opening to digging, it would have sufficed for the Torah to write only “opening,” and we would learn by kal va-chomer to obligate the digger as well—that is, here we would punish monetarily from din. The common explanation is that a kal va-chomer of this type cannot be refuted; therefore we punish via din in such a case. The assumption is that where we do not punish from din, it is because a refutation might exist. Hence, for a kal va-chomer that admits no refutation, there is no impediment to punishing via din. So writes, for example, the author of Ginat Veradim, General I, and others.

However, the Maharsha (Sanhedrin 64b) explains the rule “we do not punish from din” differently. According to him, it may be that the punishment given for the lenient case is insufficient for the stricter case, and therefore one cannot derive the punishment for the stricter from the lenient. Yet it emerges that even according to his view, for a “bekhlal matayim maneh” kal va-chomer we do punish from din. Thus he explains in the Mahadura Basra, Bava Kamma 49b:

He argues that because in a kal va-chomer of this sort digging includes opening, here it would indeed have been possible to write only “opening,” and we would learn by kal va-chomer to obligate the digger as well. In other words, even according to him, in such a kal va-chomer we do punish from din. This can also be seen as follows: you punish the digger for the fact that he opened (the ground for liability is opening, not digging; since digging includes opening), and for that there is no need for a kal va-chomer at all. The Torah punishes the opener, and a digger is also an opener.

Halakhic Examples: The Pit in Torts, Conspiring Witnesses, and One Who Passes His Children to Molech

Nonetheless, at least the Mekhilta maintains that even in such a case we do not punish from din. That is, if the Torah had written only “opening” and not “digging,” we would not punish one who digs. This seems puzzling, for we have seen that apparently, according to all views, we should have punished in such a case.

One could say that the Mekhilta does not disagree that for digging we would punish from din, and that the lesson here—“that we do not punish from din”—is taught only by way of “if it is not needed for this matter” (im eino inyan). In this specific case, where the kal va-chomer is of the “bekhlal matayim maneh” type, we would indeed punish the digger even if only “opening” were written; and precisely for that reason the Torah’s reference to digging is superfluous. What does it come to teach? The Mekhilta claims that this superfluity teaches that we do not punish from din in cases where the kal va-chomer is ordinary (the severity relation is ordinary and not of the “included in two hundred is a maneh” type).

But even if in the Mekhilta one could avoid that conclusion, we nevertheless find views among poskim and commentators that we do not punish even in a “bekhlal matayim maneh” kal va-chomer. We will bring two examples: conspiring witnesses and passing one’s children to Molech.

As is known, conspiring witnesses are punished with the penalty they plotted to impose on the defendant. There we find a surprising rule (Rambam, Hilchot Sanhedrin 20:2):

If the one about whom they testified was executed and only afterwards they were proven [to be conspirers], they are not executed by law, as it is said, “as he plotted to do,” and he had not yet done; and this is by received tradition. But if the one about whom they testified was flogged, they are flogged; and likewise if money passed from one to another by their testimony, it returns to its owner and they pay him. /Gloss of the Ra’avad/ “If the one about whom they testified was executed…” I say this is an error.

This penalty is imposed only if they were proven to be conspirers before the defendant was executed. But if they were proven after he had already been executed, they are exempt. The Rambam holds that for monetary penalties and lashes there is no such distinction, and the Ra’avad disagrees with him.

The Kesef Mishneh there addresses why we do not punish them even when he has already been executed by a kal va-chomer, and what the difference is between death and lashes:

It is possible to give a reason for our master’s words, that we say “as he plotted” and not “as he did,” only where he was executed on their testimony; for since their sin is too great to bear, it is not fitting to give them a court-imposed death penalty that would atone for them; rather, it is fitting to leave them to be judged after death with dreadful punishments. A similar case is one who gives all his seed to Molech, who is exempt—something we do not say regarding lashes imposed by their testimony.

He explains that if they already caused a death, their sin must be extremely great, and it is not proper to punish them with the same penalty that those who merely plotted would receive. He brings an example from one who passes his children to Molech. The Rambam rules in Hilchot Avodah Zarah 6:4:

One is not liable to karet or stoning until he hands over his son to Molech and passes him between his legs through the fire in the usual manner of passing; if he handed over but did not pass, or passed but did not hand over, or handed over and passed not in the usual manner—he is exempt. And he is not liable until he gives over part of his seed and leaves part, as it is said, “for of his seed he has given to Molech” (mi-zar’o)—some of it, but not all of it.

He rules that one is liable only if he passed to Molech part of his seed and not all his seed. True, this is derived from the wording “of his seed,” which the Sages expounded as “and not all his seed,” but one might have said that it is prohibited specifically this way because this was also the practice of the idol worshippers on account of which the matter was prohibited (see the Rambam’s description there in halacha 3). This ruling, of course, again raises the difficulty: how can one who passed all his children to Molech be exempt? After all, in particular, he did pass part of his children. This is a “bekhlal matayim maneh” kal va-chomer, and one should punish one who passed all his children by virtue of the fact that, in particular, he passed part of his children.

In the Hagahot Maimoniyot there, on Hilchot Avodah Zarah, he cites the explanation of the Sefer Mitzvot Gadol (SeMaG):

The SeMaG’s wording on this matter: and there is a reason here that answers the heretics: because those executed by a court are atoned for, and this man committed such a great transgression that the Holy One, blessed be He, does not want him to have atonement, etc.

The fact that the punishment for the lenient case is not sufficient for the stricter case is offered as an explanation of why we do not punish from din even when the kal va-chomer is of the “bekhlal matayim maneh” type. This can also be the explanation in the above Mekhilta regarding one who digs a pit. This is precisely the explanation proposed by the Kesef Mishneh here.

The Kesef Mishneh there gives another reason for not punishing the witnesses after the defendant’s execution:

And one can offer another reason: since “God stands in the congregation of God,” had this person not been liable to death, the Holy One, blessed be He, would not have allowed a Jewish soul to be lost; and since the Holy One, blessed be He, allowed the court to agree to execute this person, and he was executed, he must have been liable to death; therefore the witnesses are not subject to the death penalty—unlike lashes.

A Note on Gezerat Ha-Katuv (Scriptural Decree)

R. Yosef Engel, in his book Lekach Tov, General 2, brings three rationales for the rule “we do not punish from din” (his words are also brought in the Talmudic Encyclopedia, entry “We do not punish from din”): concern that there may be a refutation (pircha) to the kal va-chomer; perhaps the punishment for the lenient case does not suffice for the stricter case; and a scriptural decree learned from “and his sister, the daughter of his father and the daughter of his mother.” The first two we have seen here. Regarding the third “rationale,” it is not a rationale but a source. For some reason there is a feeling in yeshivot that when there is a biblical source, one no longer needs a reason (as if it were an alternative to a reason). In my article on gezerat ha-katuv I pointed out the error in this approach. Therefore, the truth is that there are not three explanations here; rather, the rule is learned from that verse and two explanations are offered for it. In another article dealing with halakhic punishment, I argued that there is a more natural and compelling explanation for this rule (an extension of the second explanation): namely, that the severity of punishment is not determined at all by the severity of the offense, and therefore there is no place to infer it by a kal va-chomer in the first place.

Can There Be a Refutation of a “Bekhlal Matayim Maneh” Kal Va-Chomer?

We have seen above that there are halakhic opinions according to which, in a “bekhlal matayim maneh” kal va-chomer, we punish from din. We discussed whether this is because a refutation is impossible, or whether it stems from the concern that the punishment for the lenient case may be insufficient for the stricter case. But now we must note that this very concern is itself a refutation of a “bekhlal matayim maneh” kal va-chomer. In any event, it is clear that such a kal va-chomer can be refuted.

Take the example of digging and opening a pit. Suppose the Torah had written only “opening” and not “digging,” and we would learn by kal va-chomer that digging a pit is prohibited (assuming that creating a dangerous obstacle is prohibited). We saw that even if there is no refutation to such a kal va-chomer, the digger’s obligation to pay could not be learned from there, because perhaps the monetary liability for opening is insufficient to punish the digger.[2] That is, despite the kal va-chomer, one cannot derive the punishment for the stricter case. At least de facto, this itself is a refutation of the kal va-chomer: even though digging is more severe, one cannot infer from opening, by a kal va-chomer, that there is a punishment for digging.

More examples can be adduced. In Column 50 I dealt with this and connected it to the question of the relationship between logic and reality. I cited the Vandervelde Law that once existed in Belgium, which forbade selling two liters of wine at one time. A man who wanted to buy ten liters was refused and appealed to the court. The judge ruled in his favor: although the law forbids selling two liters, one may sell ten liters. This is a classic example of “bekhlal matayim maneh,” and yet the judge argued that the kal va-chomer is refuted. The explanation was that the purpose of the prohibition was to prevent a worker from spending his weekly wages on wine in a pub (so he would bring them home for sustenance). But if a person wishes to invest his money in wine, the law should not prohibit it. There you have a refutation of a “bekhlal matayim maneh” kal va-chomer.

A “bekhlal matayim maneh” kal va-chomer is a valid logical inference. In several places (for example here) I pointed out that the validity of a logical inference derives precisely from the fact that its premises include its conclusion (it presupposes what is sought). That is exactly the situation in a kal va-chomer of this type. And yet: although the conclusion follows necessarily from the premises, when we come to apply it to reality, it may be incorrect. In Column 50 I explained that applying a logical inference to life always presupposes additional assumptions, and these can certainly be exposed to various refutations. I explained there that this parallels the problems in formalization that I mentioned at the beginning of the column, above. The assumption that this logical argument is a model of something in reality is the problematic point—not the argument itself. This is precisely the error of the rule-writers (like the above-mentioned Ginat Veradim) who think that a “bekhlal matayim maneh” kal va-chomer cannot be refuted. They ignore the fact that even a valid logical argument, when applied to reality, relies on additional hidden assumptions, and with respect to those, a refutation is indeed possible.

A Contemporary Example: The Poznanski Ruling

A few months ago it was brought to my attention that these remarks of mine about a “bekhlal matayim maneh” kal va-chomer were cited in a ruling of the Supreme Court. This case is particularly interesting, because on the face of it the kal va-chomer seems very persuasive. It concerns the case of Judge Poznanski-Katz, who exchanged messages with an attorney from the Securities Authority who was handling a matter before her. The judge and the state reached an arrangement of a one-year suspension, but the Disciplinary Tribunal for Judges rejected that and decided to remove her from office permanently. She petitioned the High Court of Justice, which accepted the tribunal’s view that a one-year suspension was not within the tribunal’s authority, yet nevertheless decided to reprimand her and return her to the bench after a year (the justices’ reasoning there was very odd).

Our concern here, however, is with the first petition, which was submitted to the Disciplinary Tribunal for Judges. The Minister of Justice petitioned against the judge, and there the question arose whether the tribunal has the authority to suspend her for a fixed period. In the tribunal’s decision (p. 33), the following argument was discussed: there is no dispute that the tribunal can remove a judge from office permanently; therefore, all the more so, it has the authority to suspend a judge for a fixed period. This is a “bekhlal matayim maneh” kal va-chomer. What do you think? Seemingly, this is a knockout argument. The panel comprised Justices Asher Grunis and Neil Hendel, and Judge A. Helman.

The tribunal rejected this claim, and Justice Hendel wrote, among other reasons, the following:

The principal argument on which the parties based their position, presented in the form of the rule “included in two hundred is a maneh”—i.e., the whole contains its part—is based on the possibility of removing a judge from office permanently. In their view, this possibility also includes the possibility of removing a judge from office for a set period—suspension. The flaw at the heart of this position is the assumption that these are two identical sanctions in essence, differing only quantitatively—in the length of the removal from office. The “included in two hundred is a maneh” rule refers to coins from the Talmudic period, in which one maneh was equal to one hundred zuz. The discussions relevant in the Babylonian Talmud and in the Rambam concern a claim to collect a debt, where one witness testifies to a loan of a “maneh”—i.e., one hundred zuz—while the other witness testifies to a loan of “two hundred,” i.e., two hundred zuz. In that case, it was determined that the borrower must pay the lender one hundred zuz, since both witnesses testify to a loan of one hundred zuz: included in two hundred zuz are also one hundred zuz (see Babylonian Talmud, Sanhedrin 31a; Mishneh Torah, Testimony, ch. 3, hal. 3). This is a rule of evidence, not a punitive rule, and in any case it cannot teach what counsel for the parties tried to learn from it (see also Michael Avraham and Gavriel Hazut, “Midah Tovah—Emor” (2009), at: https://www.biu.ac.il/toramada/parasha/230_emor).

An ancillary claim by counsel aims to transfer the evidentiary principle into the punitive field. According to this line, the more severe sanction includes within it the lighter sanction. But, as we shall see, this is not the case when dealing with two different sanctions. The parties’ claim rests on section 35 of the Penal Law, 1977, titled “Punishments are maximum punishments.” This section provides that “a court that has convicted a person of an offense may impose on him any punishment that does not exceed the punishment prescribed by law for that offense.” But the proof is not analogous to the case before us.

As is known, the Penal Law sets a maximum punishment for each offense. For example, section 384 of the law states: “Whoever steals—his punishment is three years’ imprisonment.” Note that it does not say that theft is forbidden, but that the punishment is three years’ imprisonment. According to the plain reading, one might have thought this is a mandatory punishment; section 35 comes to teach us that it is a maximum punishment. A three-year sentence is a ceiling, but a different punishment, such as one year of imprisonment, may also be imposed. By contrast, removal from office does not mean removal for a certain period up to a maximum. Therefore, had the legislature wished to allow suspension, it would have had to say so explicitly, as it did, for example, in section 68 of the Bar Association Law, 1961: “These are the sanctions that a disciplinary court is empowered to impose… (4) suspension for a set period not exceeding ten years; (5) expulsion from the association.” Thus, the sanction of permanent removal from office and the sanction of suspension are different sanctions. Suspension raises unique difficulties that do not arise with removal from office. Similarly, the punishment of imprisonment in the Penal Law does not grant the court authority to impose a “less severe” punishment than imprisonment, such as suspension from one’s professional activity for a set period or public shaming. Additional sanctions that may be imposed—such as a fine, a suspended sentence, or compensation—are explicitly written in the Penal Law (see sections 37, 52, and 77 of the Penal Law). To this we add, of course, the possibility of a quasi-interim measure during proceedings—detention until the end of proceedings after an indictment—codified in section 21 of the Criminal Procedure (Enforcement Powers—Detentions) Law, 1996 (see also HCJ 5185/13 Ploni v. The Great Rabbinical Court in Jerusalem (28.2.2017), para. 37 of the opinion of the Deputy President E. Rubinstein; para. 6 of the opinion of Justice A. Shoham; para. 5 of the opinion of Justice Y. Danziger; para. 7 of the opinion of Justice A. Hayut; para. 12 of the opinion of President M. Naor; paras. 9–11 of my opinion. By contrast, see the view of Justice Y. Amit, para. 6 of his opinion).

In my opinion, the argument that transfers the discussion from the law of evidence to penal law is beside the point. Justice Hendel himself writes that even in the realm of punishments one may infer authority to impose a lighter punishment from authority to impose a more severe punishment, so long as it is the same kind of sanction and the difference between them is only quantitative (for in such a case it indeed involves a “bekhlal matayim maneh” relation). But here we are comparing suspension—which is inherently a punishment—to removal from office—which is inherently not a punishment.

It seems to me that a more precise and persuasive formulation of this argument is as follows: suspension is a punishment, and different durations of suspension are indeed related in the manner of “two hundred to one maneh.” But removal from office is not a punishment; it is a declaration that the judge is not fit to serve. It is a determination of unfitness, not a sanction. Suspension clearly is not that, since suspension is for a fixed time, after which the judge returns to office. Thus suspension presumes that the judge is fit, but deserves punishment; not so removal from office. If the legislature granted the tribunal authority to declare that a judge is unfit to serve, this does not necessarily mean that it also granted authority to punish him—even if, from the subject’s perspective, it appears to be a milder “sanction.” This is, again, a refutation of a “bekhlal matayim maneh” kal va-chomer.

[1] Indeed, in the Rambam’s introduction to the Sefer Ha-Mitzvot he refers to all the hermeneutical rules as “din,” and applies these principles to all of them. The Ramban, in the second shoresh, already disputes him on this point.

[2] My assumption here is that tort liability is a punishment. This emerges from several places, in particular from the discussions about monetary punishment from din (and also regarding the rule of kim lei be-derabba minei as it relates to monetary penalties). I will not go into that here.