The Relationship Between Warning and Punishment in Halakha (Column 377)
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.
Discussion
A. First, this is not necessarily metaphysics. Perhaps it is a spiritual repair of the person. If the transgression damages some spiritual dimension, I do not see why punishment cannot repair it.
B. But if there is no need for a prohibition, then there is no reason that we should find a prohibition and thereby neutralize the possibility of deriving something else from the verse. In general, I find it hard to accept that this is an error-correction rule. If a death penalty is written, then it is a death penalty. What concern for error is there here? If we were to see a verse imposing the death penalty, would we not carry it out?
C. 1. Interesting idea. Certainly possible. I had previously thought that he should not have been negligent in guarding it (since we are dealing with something that is not really an unavoidable accident). 2. I did not understand. What I suggested is precisely that Rava gives lashes for the command alone. 3. The damage/blemish is from the fact that he put himself into a state of doubt. And when he discovered that he transgressed, he brings a sin offering for the transgression itself.
D. I mentioned that possibility. Though I am less categorical than you about it.
E. God willing, it will indeed come. 🙂
A. If it is spiritual repair, then why does suffering specifically repair rather than dancing in a circle? Is it arbitrary—thus did His wisdom decree?
C3. Meaning, a sin offering for the transgression itself without rebellion against the command? I am not sure I understood. I had thought that the sin offering is for negligence and the guilt offering for the transgression itself (and against this there is a difficulty from a sin offering in a Torah-level doubt, and also from a sin offering in the case of a child taken captive among the gentiles. But Shetzal wrote me strong arguments on the other side, from the fact that one who forgot the essence of Shabbat is liable for only one sin offering—learn from this that a sin offering is for negligence and not for the transgression itself; and in my view this requires further study).
And on the others too, with your permission, I shall return:
B. I did not propose an alternative explanation for the rule itself, but an alternative explanation for the Gemara’s questions. As for the rule itself—why there must be both punishment and prohibition—I gladly accept your explanation. You suggested that the Gemara asks whether this is a conditional punishment or a punishment with a prohibition. I suggested that the Gemara objects: there has to be a prohibition, and if there is none then the derivation of the punishment is mistaken. In fact, for example, in the Sanhedrin passage you cited there is a dispute over the derashah for punishment, so it is entirely understandable that they object, “From where is the prohibition?” And even a plain verse can be reassigned to something else, or one has to find for it a prohibition—and that same prohibition must not be expounded for something else, and the gates of interpretation have not been locked. One would need to gather all the examples, but that is a matter for experts. In any case, to say that everywhere the Gemara is merely innocently asking whether perhaps there may be conditional punishment—it is hard to say that if there is not even one place where we find conditional punishment. And after all, you concluded that there is no such thing apart from atonement, which is a different matter. [And in a whisper they say that Sefer HaChinukh is neither the Rashba nor the Ra’ah, to build lofty structures upon him].
C2. [There is no practical difference, but I will explain my words.] You tied conditional punishment to Abaye and Rava, but you rejected that dependence only according to Abaye. I merely completed the rejection of the dependence also according to Rava (for one can say that Rava gives lashes also for the result alone, and therefore according to him too there may be conditional punishment).
D. Then I did not understand what the difficulty is from the fact that the law is allowed to punish. The law can punish and cannot prohibit. Does law create prohibitions and destroy them? The reasons I see for obeying law as such are public consent, an implied contract, and the categorical imperative (none of these speaks to me at all). Are there others?
F. Incidentally, a negative commandment linked to a positive one—in the simple literal sense, it means it detaches from what it was (or from lashes) and becomes a positive commandment. Like a sacrifice that was set aside to graze until it gets a blemish.
A. Why specifically does eating pork or blood cause a spiritual blemish? That you do understand?
C3. When you sin unintentionally, there is no rebellion against the command. If there were rebellion, there would be ordinary punishment and not a sin offering. As for the idea that a sin offering is for negligence, see the note in my article on causing a secular Jew to sin (following Afikei Yam vol. 2, sec. 5-6). I have strong proofs for this.
B. In the Gemara in Sanhedrin the discussion is about lashes for suppressing one’s prophecy, and there there is no punishment at all in the verse (not just no prohibition). For with the punishment of lashes, a punishment is not supposed to appear, only a prohibition. Therefore the whole discussion there is strange.
As for your whispered remark, I have written this out loud more than once.
C2. But according to Rava, one is lashed because he violated the word of the Merciful One. Are you claiming that perhaps one is lashed for either of two possibilities? Usually that is considered a less simple and less plausible explanation. Most of the conceptual Talmudic investigations are built on this, and I commented on that in my article dealing with them.
D. The law indeed creates legal prohibitions (even if not moral ones) and destroys them.
F. Interesting. That is how it had sat in my mind, but it is certainly worth checking.
Please forgive the length. What is here comes after several attempts to shorten it.
A. Indeed, I also do not understand the connection between eating pork and a spiritual blemish, just as I do not understand the connection between lashes and spiritual repair. But there are two differences. For eating pork I have no other explanation that predicts precisely pork, and according to the explanation of a spiritual blemish it does not surprise me that they chose specifically pork, because according to that explanation anything could be chosen, so pork was simply what came up. It is like getting a random sequence on dice. But for lashes I do have another explanation that predicts precisely lashes (the usual explanations from all cultures, namely deterrence and retribution), and according to the explanation of spiritual blemish it does surprise me that they chose specifically lashes, because according to the spiritual explanation, in principle anything in our eyes could repair spiritual blemishes—so how did it happen that specifically the familiar lashes were what came up? It is like getting a sequence of 6s on dice. If the claim had been that a Yemenite dance step repairs spiritual blemishes, I would not ask; I ask specifically about lashes. It is known how hypotheses are evaluated (suppose they are equal a priori) according to the findings—namely, the hypothesis according to which the probability of the observed findings is higher. In my opinion, this is a serious problem for the idea that in the Torah lashes suddenly repair spiritual blemishes, but if not, then not.
B. In Sanhedrin 54a, which you cited at the beginning of the column, the Gemara goes through a whole accounting of how, according to Rabbi Yehudah and according to the Rabbis, each law (one’s mother, one’s father’s wife, one’s father’s wife after his death) has both a punishment and a prohibition. And each of the views interprets all the verses in its own way, apart from the small part that is completely explicit (the prohibition regarding one’s mother and the punishment regarding one’s father’s wife), where they did not disagree about what to derive from the verse. And Rabbi Yehudah arranges the verses in such a way that he is left room to derive that with regard to one’s mother one transgresses only because she is his mother and not because she is his father’s wife. But if someone had not managed to arrange all the verses and derashot in pairs of punishment and prohibition, he would have had to recalculate the route. According to your view, if he had not found a prohibition he would only conclude that this is a conditional punishment.
And after the Gemara arranges all the verses (following the baraita), it also draws further conclusions from this, such as that according to Rabbi Yehudah one is liable regarding one’s father only because of male intercourse. And that according to Rabbi Yehudah one is not liable regarding one’s father’s wife because of adultery with a married woman. This is what Abaye said there, that Rabbi Yehudah “disagrees in the baraita,” meaning that from the fact that in the baraita Rabbi Yehudah spoke generally about other matters, one can understand how he interprets the verses, and consequently we can infer on our own that according to Rabbi Yehudah one is not liable regarding one’s father’s wife because of adultery with a married woman. The sugya is somewhat intricate in its accounting and it is hard to spell it all out here, but I wrote the resulting summary.
That is, throughout the sugya one thing is proven: that one must find both punishment and prohibition, and there is absolutely no way to have one without the other. And one sees a second thing: that finding and organizing all the verses also has practical ramifications for additional laws. From the first thing one sees simply that there is no such thing as conditional punishment, and one also sees that the rule that punishment and prohibition come in pairs can serve as an error-correction rule. And from the second thing one sees that even if the punishment is explicit and there is no room at all to deviate from it, it is still very important to find the prohibition verse, and it is not enough merely to know that it exists. That is also what the wording implies: “From where is the prohibition?”—they ask forcefully from the assumption that there must be a prohibition (that is, if there is no prohibition then there is a problem and a solution must be found), and not as a naïve question whether perhaps there is a prohibition.
As for suppressing one’s prophecy in Sanhedrin 89, I did not understand what is strange. You explained everything in the column (following Tosafot and Minchat Chinukh): that we compel performance of positive commandments even when it is not a positive commandment from the 613 commandments, but a positive commandment that arose directly for the prophet. Incidentally, this is apparently a unique and very nice example of a subjective commandment imposed only upon the prophet himself, whoever he may be.
C2. Now I understand. You are right.
A. Perhaps the direction is the reverse: lashes repair a spiritual blemish, and from here all cultures learned to flog as punishment. In any case, it seems to me there is no other reasonable explanation. As Ran already noted in his Derashot, according to halakhah lashes do not really come to deter. And I elaborated in the references I pointed to in the discussions on punishment.
B. At first glance you are right. And it may be that according to Sefer HaChinukh (assuming one may indeed infer this from his words, if only in a faint whisper) that is indeed only the conclusion after we failed to find a contrary example.
I do not think this is a subjective commandment. Every prophet who receives a prophecy is obligated to convey it to its destination. This is subjectivity in the sense of a vow, and not in the sense I was speaking about.
A. The references seem very significant, but I have not yet had time to study them. I will get to them soon. [Still, without looking inside, if Ran noted that lashes are not for deterrence, perhaps he meant that they are for retribution, which after all is an existing human rationale. My argument was against lashes as spiritual repair.]
B. But there is no general commandment upon every prophet to convey his prophecies, whereas there is a general obligation upon one who makes a vow to fulfill his vows. Therefore the one who vows has only put himself under the condition for the commandment, and this is not a subjective commandment in the full sense; whereas for a prophet, each prophecy is a new positive commandment, unique and personal only to him: “Go and say.” And even if the prophecy is said to all prophets together (‘Surely the Lord God will do nothing unless He reveals His secret to His servants the prophets’), still this is a new and personal commandment only to the recipients of the prophecy, and it is not covered by a general commandment to convey prophecies (for no such general commandment exists).
With God’s help, 2 Nisan 5780
L33 – Greetings.
There is a positive commandment to listen to a true prophet, as it is written, ‘To him you shall listen.’ It seems simple that the prophet himself is no worse than any other person, and he too is commanded to listen to the word of God that was spoken to him.
Regards, Yaron Fishel Ordner
We have found lashes for spiritual repair, in the words of Yaakov of Kefar Nevoria: ‘Be beaten with your beating, for it is good for you in your basket.’ 🙂
This reasoning refutes itself, because after the prophecy has been spoken by the mouth of a prophet there is a commandment to heed it, but there is no commandment to heed prophecies that have not yet been proclaimed by a prophet, and in particular there is no general commandment for a prophet to proclaim prophecies. For that is precisely the commandment discussed by the Minchat Chinukh (516), about which he wrote that this is not a prohibition (that is, not a positive commandment) for the prophet who suppresses his prophecy—and that is because of the above answer. And the Minchat Chinukh said there that the instruction itself to the prophet (such as “Go and say”) is the positive commandment, and for that we compel him to fulfill it, and therefore one who suppresses his prophecy is lashed until he proclaims his prophecy publicly. So in truth there is no need for a general commandment to proclaim prophecies, because it is renewed as a new commandment with each new prophecy. In other words, this is a positive commandment that both arises in the subjective sphere and is addressed only to a particular person; as for a subjective and personal matter, you could hardly ask for a better example.
[In that column (374), at the end one finds subjectivity in a very specific sense: if the source of facts is from the subjective sphere, then everyone, or certain people, may ignore those facts. In that sense a prophet is indeed not comparable. But in the first part of that column there is a tacking among waves of different commandments—perhaps this one is subjective, perhaps this one, perhaps this one, or maybe actually this one—and all the rejections stated there do not reject the special commandment upon a particular prophet to say a particular prophecy.]
I think that de facto there is a general commandment upon every prophet to convey his prophecies. After all, when he receives a particular prophecy, the implied assumption is that he is obligated to convey it. That assumption is shared by all prophets. A commandment applying to all prophets is general, like a commandment applying to all priests or Levites, or to men. But this is already hair-splitting.
Granted, and that is what I said: this is subjectivity of the type of a vow and the other examples discussed there.
But aside from the simple reasoning that the prophet himself is also bound by the positive commandment of ‘To him you shall listen’ – the prophet received a personal command from the Almighty to convey the words to the people, and this itself is the ‘prohibition,’ for violating which he is punished. Just as Adam and Eve, who violated the personal command given them not to eat from the Tree of Knowledge, were punished for it.
Regards, Yifa’or
See the words of Rav Kook in Mussar Avikha 1:4, that a transgression dulls the heart insofar as it is a transgression, with no distinction between eating forbidden food, neglecting Torah study, and the like; transgressing the will of God is what gives rise to the dulling of the heart.
Regards, Yifa’or
Exactly. The personal command from the Almighty to convey the words to the people is the prohibition spoken of by the Minchat Chinukh quoted in the column, and I am following him; and that is what we are discussing as a personal commandment.
A general commandment would seemingly require a verse, and there is none.
And the implied assumption to publicize a prophecy is indeed plausible, but perhaps it is not binding. For in countless places God explicitly tells the prophet to publicize it. In a search I found: “and you shall tell them,” “go and speak,” “say to Rehoboam,” “and say to him, Be careful and be calm,” “go and proclaim,” “and say to them, Cursed is the man,” and many more. Granted, in many prophecies (perhaps most) no explicit command to publicize is quoted, but that is no proof. It may be that there was such a command and it was not written (there are many such omissions understood from context in the Bible, and Radak notes them in several places), and it may be that there was none and the prophet publicized the prophecy on his own reasoning and for the benefit of his generation and future generations, but not out of obligation.
And the practical difference from all this is whether, in the case of a prophecy without a command to publicize, we compel him as one who suppresses his prophecy. For if the commandment is an implied assumption, then we compel him. And if the commandment is from the new explicit instruction, then without such an instruction we do not compel him.
And apparently one can bring some evidence that there is no law of suppressing one’s prophecy in a prophecy without a command, for the Gemara there brings one who suppresses his prophecy from Jonah son of Amittai. But ostensibly we find several of the greatest prophets who suppressed their prophecy for some time. For example, Samuel suppressed his prophecy until Eli threatened him with a curse. And Micaiah son of Imlah suppressed his prophecy until Ahab adjured him. And Jeremiah suppressed his prophecy until Zedekiah promised him that he would not harm him. And perhaps there are others. So why did the Gemara go all the way to Jonah and not bring these great prophets? Rather, Jonah was explicitly told to publicize: “Arise, go to Nineveh, and proclaim against it,” whereas regarding Samuel, Micaiah, and Jeremiah it is not written that they were commanded to publicize. From this we learn that the law of suppressing one’s prophecy does not arise from an implied assumption that one should publicize it.
One can easily distinguish: there they postponed the publication. It may be that the timing is left to the prophet’s discretion, and there is no punishable obligation upon him under the law of suppressing one’s prophecy; rather, he merely postpones his prophecy. Similar to the dispute between Rambam and Raavad whether there is karet for postponing circumcision to another day.
Nice. In the case of Samuel (1 Samuel ch. 3), that is possible. But with Micaiah son of Imlah (1 Kings ch. 22), his prophecy is seemingly relevant only before the war, and if he postpones it until after the war it is no longer of any use, since it has already happened in reality. And with Jeremiah (Jeremiah ch. 38), if he postpones the prophecy to Zedekiah, the Babylonians will already have captured him, and again the prophecy will come after the fact. One can say that Micaiah and Jeremiah only postponed it by a few minutes, and at the last moment would indeed have spoken—but that seems forced. Though perhaps Micaiah and Jeremiah feared danger to life.
But one can bring general proof for your suggestion that a prophet may postpone and choose the timing (and perhaps does not even violate any prohibition by doing so, if he intends it for benefit) from Jeremiah (ch. 36), where in the fourth year of Jehoiakim he told Baruch to wait for a fast day and publicize a certain prophecy, and later, in the fifth year of Jehoiakim, when they proclaimed a fast, Baruch came and publicized the prophecy.
With God’s help, 4 Nisan 5780
There is a state of afflictions intended to bring a person to spiritual elevation beyond merely correcting a sin. And
Thus Rav Kook explains (Ein Ayah, Berakhot 1:30) the Gemara’s statement (Berakhot 5) that if afflictions come upon a person, he should examine his deeds, to find a sin requiring correction. If he examined and found nothing – he should attribute it to neglect of Torah study, for it may be that his traits require correction, and the best way to correct traits is through Torah study, by means of which ‘the traits requiring correction will be corrected and he will not need afflictions.’
But if a person examined himself and found no sin or traits requiring correction – these are ‘afflictions of love,’ and Rav Kook explains: ‘That is, to sweeten his traits to such a degree that he cannot sweeten them without afflictions, and to merit a more exalted perfection; and this is out of God’s love, to raise him to a level greater than his nature at the beginning of creation.’
The afflictions, and the need to overcome them, develop within a person great inner powers that do not emerge in routine situations. A person discovers his great capacities, and reaches refinement and ennoblement of his traits beyond natural habit. One may compare these afflictions to the difficulties a soldier in an elite unit experiences in training, through which he discovers and develops tremendous abilities and strengths that he did not previously have.
Regards, Ben-Tzion Yohanan HaLevi Radetzky
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… Rav Kook (Ein Ayah…
With God’s help, 4 Nisan 5780
At first glance, we have found punishment for non-fulfillment of a commandment even though no halakhic obligation to fulfill it was created, as stated in Menachot 41, that at a time of wrath they punish one who did not wear a four-cornered garment and therefore did not become obligated in the commandment. One could say that this is not in the category of ‘punishment,’ but rather that at a time of wrath one needs abundant merits in order to be saved, and one who did not fulfill the commandment of tzitzit lacks a merit that would protect him.
However, from the words of the angel, ‘At a time of wrath we punish,’ it appears that there is punishment here. Rabbeinu Yonah in Shaarei Teshuvah explained that the punishment is for not desiring to perform the commandment. In the Rishonim there is also a view that the punishment at a time of wrath is when the common practice is to wear a four-cornered garment and he acts so as to exempt himself from the commandment—which, even if not forbidden, is improper conduct.
Regards,, Yaron Fishel Ordner
Regarding Sefer HaChinukh’s reasoning that if no prohibition had been written, it would have entered our minds that the punishment is ‘conditioned recompense’: those ‘burial men’ (in Sanhedrin 26) held such a view, having buried a corpse on the first festival day, and Rav Pappa excommunicated them; nevertheless, Rav Huna the son of Rav Yehoshua deemed them fit as witnesses, because they thought they were performing a commandment, and the excommunication was not given to them as punishment for the transgression, but as atonement for having been forced to desecrate the festival.
It can therefore be said that in order to exclude such a possibility, which people might raise and think—that the punishment is atonement for having been forced to commit a ‘transgression for the sake of Heaven’—the Torah therefore comes and warns that the act is forbidden.
Regards, Yifa’or
We find punishment for a permitted act in the words of the Netziv, who says that Jacob was punished not for the actual stealing of the birthright, for that was a ‘transgression for the sake of Heaven’ and was permitted to him; yet he nevertheless incurred punishment for the slight pleasure he took in his victory over Esau.
At first glance, this is similar to Rabbeinu Yonah’s words that one who causes himself to be exempt from tzitzit is punished at a time of wrath—not for the act, but for his inner attitude, that he does not desire to perform the commandment. Similarly with Jacob: the act itself was permitted to him, but his inner attitude—namely the pleasure he had—is what made him liable to punishment.
Regards, Yifa’or
A. The idea of punishment as a conditioned recompense is difficult. Why should punishments rectify metaphysical matters (that is, not deterrence and not retribution), rather than there being metaphysical rectification through eating semolina and honey and oil and throwing apples to the crowd? Lashes exist in all cultures and nations, and to say that in the Torah the same familiar and well-known thing suddenly turns, like a deceitful bow, into something entirely different—that is strange. Metaphysical rectifications exist in sacrifices that are given to Heaven, or in fasting, where a person diminishes his fat and blood and repents, and God sees his affliction and has compassion on him. But that there should be some principle engraved into the world whereby punishment rectifies, without any understanding of why specifically punishment and not other actions—that seems strange. And especially since punishment is imposed on him from the outside—how can what one person damaged be repaired by another?
B. You explained that the Gemara looks for a prohibition in order to know whether the punishment is conditional. I had thought to explain that this is an internal control rule in the Torah for correcting errors. If a punishment-prohibition pair cannot be found, then we have erred either in interpreting the punishment or in interpreting the prohibition. Especially when one of the components comes from a derashah (as in Sanhedrin 54 that you cited), then the question “From where is the prohibition?” is really an attempt to challenge the derashah. The verse of prohibition must be found even if it is obvious that it exists, so that we know not to derive something else from that verse (or, as stated, so that we know we erred in interpreting the punishment verse).
To explain why specifically this rule was established—that there should always be pairs—one arrives at your essential explanation, that there are two components: command and essence. But once the rule exists, the Gemara uses it straightforwardly as a rule for correcting errors, and there is no need to reach the idea that punishment without prohibition is possible—that is, conditioned recompense. This also explains why you indeed concluded that we have found no such example (and, as said, this is itself a strange idea).
C. In any case, comments on the examples:
C1. Regarding a true oath, according to Rashi the hava amina is that one gets lashes in the oath of the bailees. Rashi there is careful and writes that he is lashed for having brought himself to the point of taking an oath. He does not write that he is lashed for swearing. Apparently he means that he is lashed because he should have been careful and not taken a deposit from someone who would not believe him. Or he should have set up witnesses. Or pressed him until he would believe him. Or volunteered to pay. This is different from being lashed for the act of swearing itself, which is entirely permitted if he wants to exempt himself from payment.
C2. Regarding i avid lo mahani, you suggested that conditioned recompense (result alone) depends on the dispute of Abaye and Rava over i avid lo mahani. And you rejected this, saying that Abaye gives lashes for command and result together, and there is no proof that result alone suffices. But even according to Rava one can reject it and say that Rava gives lashes for command alone, and perhaps result alone would also suffice.
C3. Regarding the guilt offering. In that article there (I just now read the section on the provisional guilt offering), you wrote that the provisional guilt offering comes for the blemish. I am puzzled, for when he becomes aware that he sinned, he brings a sin offering, and the rebellion does not depend on future knowledge. According to Rambam, who holds that a Torah-level doubt is ruled leniently, one who ate a piece that was possibly forbidden fat and possibly permitted fat, and it later became known to him that it was forbidden fat, brings a sin offering even though he ate with complete permission (all the more so one who never even imagined that the piece was forbidden fat, who brings a sin offering if it later becomes known). So before us is conditioned atonement in the sin offering. If so, whatever there is in the provisional guilt offering is also in the sin offering. Granted, you distinguished well between a sacrifice (atonement, which can come upon a state of affairs) and punishment (recompense, which comes upon rebellion), but this distinction between the guilt offering and the sin offering still requires study for me.
D. Regarding prohibition in secular law (around note 2). You wrote that if the law can prescribe punishment, then it can prescribe prohibition. In my view, the law cannot prohibit, even if it wants to and tries to, because it has no access to the abstract normative sphere. This would not be a dead letter, but a letter that was a miscarriage from the outset. In practice, there are indeed people who bend themselves to the law by virtue of its being law (for various reasons), but we are not dealing with statists, and they too are probably included in the group who fear punishment. Only if the law had politely and compassionately waived the prohibition would there be a difficulty from the fact that it did not waive the punishment. The law did not write “prohibition” because that has no meaning and no benefit. And if it did write it, that is merely an attempt to influence society, unrelated to normative prohibition.
E. At the end of the previous column we heard a prohibition concerning the column on Platonism, but where is the punishment? This requires further study.