Acharei Mot (5764)

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

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With God’s help

Mida Tova — Eve of the holy Sabbath, Parashat Acharei-Mot, 5765

Questions

1. What is the reason for the rule that punishments are not derived from inference?
2. What are the three kinds of pirkha (refuting objections) to a kal va-homer (an a fortiori inference)?
3. Can a pirkha be raised against a kal va-homer of the “within two hundred there is one hundred” type?
4. What is the difference between civil legal systems and the halakhic system?
5. What are the thirteen rules of legal inference according to Tarello?
6. What is the difference between a “preserving” kal va-homer and a kal va-homer of the “within two hundred there is one hundred” type?
7. Is there a kal va-homer from which punishments may in fact be derived?

The Hermeneutical Principle

kal va-homer (an a fortiori inference)

“The nakedness of your son’s daughter or your daughter’s daughter you shall not uncover; their nakedness is your own.”

(Leviticus 18:10-11)

As it was taught: “If a man takes his sister, his father’s daughter or his mother’s daughter”—I know only his father’s daughter who is not his mother’s daughter, or his mother’s daughter who is not his father’s daughter. From where do I know his sister who is both his father’s daughter and his mother’s daughter? Scripture says: “He has uncovered the nakedness of his sister.” Even before Scripture said this, I could have derived it by inference: if Scripture punishes him for his father’s daughter who is not his mother’s daughter, and for his mother’s daughter who is not his father’s daughter, then for his sister who is both his father’s daughter and his mother’s daughter, how much more so! Thus you learn that punishments are not derived from a kal va-homer. We have heard the punishment; from where do we know the prohibition? Scripture says: “The nakedness of your sister, your father’s daughter or your mother’s daughter…” Thus you learn that prohibitions are not derived from a kal va-homer.

(Babylonian Talmud, Makkot 5b)

From where do we know the prohibition regarding his daughter born from rape? Did not Abaye say: By a kal va-homer—if he is punished for his daughter’s daughter, then for his daughter all the more so? But can punishments be derived from a kal va-homer? This is merely a gilui milta (a clarification of what is already evident).

(Babylonian Talmud, Sanhedrin 76a)

“This is merely a gilui milta”—that is, this is not deriving punishment from a kal va-homer, for his daughter’s daughter is related to him only by virtue of his daughter, from whom she comes. What, then, is a case of deriving punishment from a kal va-homer? For example: “The nakedness of your sister, your father’s daughter or your mother’s daughter”—I know only his father’s daughter who is not his mother’s daughter, or his mother’s daughter who is not his father’s daughter. If you wish to include his sister who is both his father’s daughter and his mother’s daughter through a kal va-homer, that is deriving punishment from a kal va-homer. For this one does not come by virtue of the other kinship: this kinship exists in its own right, and that kinship exists in its own right. But one who has intercourse with his daughter’s daughter—she is related to him only because of his daughter.

(Rashi ad loc.)

A. Punishment by Inference

Introduction: The exposition in tractate Makkot on deriving punishment by inference

In tractate Makkot a source is brought for the rule that punishments are not derived from inference.¹ The exposition is based on an apparent superfluity in the verse in Parashat Kedoshim, where Scripture separately addresses his father’s daughter and his mother’s daughter, and afterward also his sister who is both. Seemingly, the last case could have been learned by kal va-homer from the first two. But that is precisely what the verse itself reveals to us: punishments are not derived from inference, and therefore an explicit verse was needed in order to punish one who has intercourse with his sister who is both his father’s and his mother’s daughter.

Later in that Talmudic discussion, our portion is used to derive the rule that prohibitions are not derived from inference. The exposition is built in exactly the same way. Our portion deals with prohibitions and warnings, and therefore from it we learn the principle that prohibitions are not derived from inference; Parashat Kedoshim, by contrast, deals with punishment, and therefore from it we learn the principle that punishments are not derived from inference.

In the sheet for Parashat Mishpatim we discussed these two rules. There we saw three possible explanations of the rule that punishments are not derived from inference:
1. Since a person formulates a kal va-homer on his own, by force of his own reasoning, we worry that perhaps there is a pirkha against it.
2. It may be that the punishment of the source case is not sufficient for the derived case, which is more severe than it.
3. The rule is simply a scriptural decree, without any reason.

What is “inference”? Gilui milta

In the first verse cited above, there is a prohibition concerning his daughter’s daughter. The prohibition concerning his own daughter does not appear explicitly in Scripture; later in the Talmudic discussion in Sanhedrin, various midrashic (exegetical) sources are brought for it. The Gemara in Sanhedrin derives the prohibition concerning his daughter by kal va-homer: if he is punished for his daughter’s daughter, then for his daughter all the more so. The Gemara then attempts to reject this source by arguing that punishments are not derived from inference, but that argument is itself rejected: this is not punishment derived from inference, but merely a gilui milta.

Rashi there explains why such a derivation is not considered punishment derived from inference, but rather a mere clarification, on the basis of which punishment may indeed be imposed. The explanation is that his daughter’s daughter is related to him only through his daughter, who is her mother. Therefore, if he is punished for the granddaughter, it is obvious that he must also be punished for the daughter. Rashi then goes on to explain what kind of case really raises the problem of punishment derived from inference, and for that purpose he cites the exposition from Makkot quoted above, from which we learn the rule that punishments are not derived from inference.

Explaining the difference between gilui milta and an ordinary kal va-homer

At first glance, the Gemara in Sanhedrin seems to be establishing the qualification found in the literature of the hermeneutical rules: in a kal va-homer of the “within two hundred there is one hundred” type, one may indeed derive a punishment. In other words, the rule that punishments are not derived from inference does not apply there. In the sheet for Parashat Noah we defined and characterized this kind of kal va-homer. It is a kal va-homer based on a single halakhic (Jewish-legal) assumption, rather than three, as in the usual qualitative kal va-homer. The transition from premise to conclusion rests on a necessary piece of reasoning: the derived case includes the source case, just as every sum of two hundred includes within it one hundred. For example, there is a kal va-homer in Babylonian Talmud, Bava Kamma 49b:

“If a man opens a pit, or if a man digs a pit”—if he is liable for opening it, then for digging it all the more so.

(Babylonian Talmud, Bava Kamma 49b)

The act of digging a pit includes, in practice, the act of opening it as well. When one removes the upper layer of fill, that is literally an act equivalent to removing a cover. Thus, when a person digs a pit he is also opening it, and therefore all the laws that apply to one who opens a pit will also apply to one who digs one: within two hundred, there is one hundred; within digging, there is opening.

It is fairly clear that a kal va-homer of the “within two hundred there is one hundred” type cannot be refuted by a pirkha. The reason is that there is no background generalization here that can be overturned by a counterexample. The derived case includes the source case, and therefore it is necessarily true that all the laws of the source case apply to the derived case as well. For this reason, some of the writers on the hermeneutical rules held that punishments may indeed be derived from such a kal va-homer. See, for example, Maharsha, second edition, to Bava Kamma 49b; and see Ginat Veradim, sec. 1, and others. It seems that this claim is based on the assumption that the rule that punishments are not derived from inference stems from the fear that there may be a pirkha.

In light of this, one possible explanation for the distinction in the Sanhedrin discussion would be as follows: a gilui milta is a kal va-homer of the “within two hundred there is one hundred” type, which carries no concern of pirkha, and therefore punishment may be derived from it.

Several difficulties with the proposed explanation

This, however, certainly does not seem to be the meaning of Rashi’s language quoted above. More than that: the kal va-homer brought in the Makkot discussion is itself a classic case of “within two hundred there is one hundred,” for every sister who is both his father’s and his mother’s daughter is also his sister who is his father’s daughter, and also his sister who is his mother’s daughter. Recall that Rashi specifically cites that very kal va-homer as an example of a kal va-homer from which one may not derive punishment.²

In fact, one can say even more. It is specifically the kal va-homer from his daughter to his daughter’s daughter that does not have the exact structure of “within two hundred there is one hundred.” It is not correct to say that one who has intercourse with his daughter’s daughter thereby also, in practice, has intercourse with his daughter. By contrast, one who has intercourse with his sister who is both his father’s and his mother’s daughter certainly thereby has intercourse with his sister who is his father’s daughter. Thus, from the standpoint of the fear of pirkha, and of the actual presence of the source case within the derived case, it is specifically the kal va-homer of the Makkot discussion that has the structure of “within two hundred there is one hundred,” whereas the kal va-homer of the Sanhedrin discussion does not.

We must therefore return and seek another explanation for the distinction drawn by the Gemara in Sanhedrin between a kal va-homer and a gilui milta.³

Rashi’s explanation

From the wording of Rashi quoted above, it appears that his meaning is that the prohibition of the granddaughter exists only by force of the daughter herself. The part of the granddaughter that is related to the grandfather is the part of her that belongs to her mother. If so, then in the final analysis, intercourse with her constitutes, at least in an essential sense, intercourse with her mother. But in the case of his sister who is both his father’s and his mother’s daughter, the kinship is of a different kind. It is not merely the kinship of his father’s daughter or of his mother’s daughter; it is a deeper sibling relation, of a higher order than the two previous cases.

Thus, although concern for a pirkha does not exist in the kal va-homer concerning his sister, and certainly does exist in the kal va-homer concerning his daughter’s daughter, the logic of giving the punishment of the source case to the derived case exists specifically in the case of his daughter’s daughter, and not in the case of his sister. For the prohibition violated by one who has intercourse with the granddaughter is literally the same prohibition as that violated in the case of the mother, whereas the prohibition violated by one who has intercourse with his sister who is both his father’s and his mother’s daughter is not the same prohibition as that violated by one who has intercourse with his paternal half-sister or his maternal half-sister. It is a more severe prohibition, arising from a deeper kinship. Her being his sister from both father and mother is not a mere combination of two kinds of kinship, but a new and deeper kind of kinship.

A different explanation of the rule that punishments are not derived from inference

This leads us to a different explanation of why punishments should not be derived from inference. Earlier we moved in the direction of concern for pirkha, but we have seen that this cannot explain the present case. It therefore seems that the explanation is that the punishment for the offense in the source case may not be severe enough to atone for the offense in the derived case, and therefore it is not imposed. See Encyclopedia Talmudit, entry “Ein Onshin Min Ha-Din,” and the sheet for Parashat Mishpatim.

Still, one might ask: why should we not impose at least that punishment, since it certainly is not too severe? We are therefore forced to conclude that the problem lies in the type of punishment, not necessarily in its degree of severity. It may be that the punishment for the offense in the source case is not of the same type as the punishment that should be imposed for the offense in the derived case, and therefore it cannot be imposed at all. According to this view, punishments are measured not only by severity, but also by type.⁴

Now we can understand Rashi thoroughly. One who has intercourse with his daughter’s daughter is liable to the kind of punishment appropriate to one who has intercourse with his daughter. The reason is that, in the final analysis, on the essential plane, the offense of one who has intercourse with his daughter’s daughter is intercourse with his daughter—that is, with that aspect of his daughter that is present in his daughter’s daughter. If so, this is not a different type of punishment, and therefore punishment may be derived here. But in the case of one who has intercourse with his sister who is both his father’s and his mother’s daughter, the kinship is not of the type of his father’s daughter or his mother’s daughter, but rather a different kinship, one that is not simply the sum of the two. In such a kinship, an entirely different punishment may be required from those imposed for a paternal or maternal half-sister.

In the case of his daughter’s daughter, the granddaughter’s relation to the grandfather is created through the daughter, who is an intermediate relative of a higher degree of closeness. By contrast, in the case of his sister who is both his father’s and his mother’s daughter, we are dealing with a conceptual relation, not a relation of actual mediation through another relative. She is not related to him through his paternal or maternal half-sister; rather, the essence of the relation is composed of those two relations.

We may therefore say that the kal va-homer from his daughter’s daughter is a “preserving” kal va-homer. The derived case preserves the ground of liability present in the source case, and not merely the severity of the liability. By contrast, the kal va-homer concerning his sister is indeed of the “within two hundred there is one hundred” type, but it is not a preserving kal va-homer. The ground of liability is not necessarily preserved, and therefore one cannot derive from the source case the punishment for the offense in the derived case.

B. Logic, Halakha, and Law

A pirkha against a kal va-homer of the “within two hundred there is one hundred” type

Above we noted that a kal va-homer of the “within two hundred there is one hundred” type cannot be met with a pirkha. This is the place to note, however, that earlier we encountered three kinds of pirkha:
1. A pirkha that finds an exception to the generalization made at the beginning of the kal va-homer.
2. A pirkha that shows that the law being derived is not relevant to the context of the derived case. This does not appear in the Talmud as a pirkha, but rather as a reason that prevents the kal va-homer from being launched in the first place. See the sheet for Parashat Shemini on the obligation of a lintel in the law of fringes.
3. A pirkha that undermines the considerations of leniency and stringency assumed by the kal va-homer. The challenge points to the possibility that the trait cited as a stringency does not in fact indicate a genuinely more stringent characteristic.

Can it really be that in a kal va-homer of the “within two hundred there is one hundred” type none of these kinds of pirkha can ever be found? We shall see here that legal literature does know examples of kal va-homer arguments of this type against which pirkhot can be raised. We now bring one of the best-known examples.

Chaim Perelman, in his book Legal Logic, summarizes Tarello’s work on types of legal inference (part 1, sec. 33). Tarello presents thirteen common types of legal inference. On p. 50, in the course of his discussion of kal va-homer, he mentions the Belgian Vandervelde law of 1919. This law permits the sale of alcoholic beverages only if at least two liters are sold. Seemingly, if the law permits the sale of three bottles of wine, then it certainly permits the sale of a single bottle. This is a kal va-homer of the “within two hundred there is one hundred” type.

Yet under the Vandervelde law that was not the case. It was forbidden to sell one bottle, but permitted to sell three bottles, since that quantity was above two liters. The reason was that the law sought to protect the worker’s family from the squandering of the average weekly wage on alcoholic drinks. In those days the price of two liters of liquor was higher than the average weekly wage.

Thus, prima facie, we see here a pirkha against a kal va-homer of the “within two hundred there is one hundred” type. One might argue that this is merely the result of poor drafting of the law, or of latching onto the wrong rationale—something akin to an argument from the reason of the verse. But a very similar problem can arise in halakhic contexts as well. Every kal va-homer presupposes some axis of stringency. Even a kal va-homer of the “within two hundred there is one hundred” type presupposes such an axis, and therefore in fact it too is not absolutely necessary. One can find pirkhot or mistakes even in reasoning of this sort.

According to our earlier classification, this pirkha belongs to the third type. In the kal va-homer reasoning we assume that three bottles are more severe than one bottle. But it turns out that there is a possibility—and here it is even the more plausible possibility—that this is not a stringency at all. An analysis of the legislator’s motivation shows that the sale of three bottles is lighter, not more severe, than the sale of a single bottle. That is the opposite of what the kal va-homer had assumed.

Types of legal interpretation

In legal thought, the example of the Vandervelde law is brought as a demonstration of the importance of purposive interpretation—that is, interpretation of a law on the basis of the motivations for its enactment⁵—as opposed to literal interpretation, which relies on the language of the law and nothing more. This law thus serves as an example against positivist approaches to jurisprudence, which tend to focus on the interpretation of the law in itself, without attempting to trace the legislator’s intent or the circumstances of the legislation.

In the halakhic context, the tannaim—the sages of the Mishnah—disagreed about whether we may invoke tama de-kra (using the reason of the verse as an interpretive tool). The issue is not the search for reasons for the mitzvot (commandments), a topic with which many of the early sages dealt extensively. The dispute concerns only the use of the reason for a commandment as an instrument of interpretation. It is indeed permitted to seek reasons for the mitzvot, but as a matter of halakha we are not permitted to interpret the commandment in accordance with those reasons. In other words, purposive interpretation is not used by the halakhic interpreter.

One reason for this is that we cannot trace the motives of the Holy One, blessed be He—for example, to look for the “mischief” or defect that led to the enactment of a particular halakhic law. But compensating for this is the fact that God’s omnipotence guarantees that the wording of the Torah is such that the correct halakhic interpretation can be reached from it even without tracing the reasons.

In a different formulation: if we interpret the Torah by a literal method—that is, on the basis of textual considerations alone—we will arrive at the correct interpretation even with respect to the reasons for the commandments. Because the wording of the Torah is perfect, textual interpretation fully parallels the interpretation we would have given had we known all the reasons for the commandments. Interpretation according to the rules we possess leads us to the correct halakhot even without understanding the reasons. In civil law, because of the limitations of human legislative drafting, we have no choice but to try to trace the motivations. There this is both possible and necessary. In halakha, it cannot be done, but there is also no need to do it.

An interesting implication: invoking tama de-kra when the reason is stated explicitly

The Mishnah in Sanhedrin 21a discusses the prohibition against a king’s accumulating many wives, concerning which the tannaim disagreed:

“He shall not multiply wives for himself”—only up to eighteen. Rabbi Judah says: He may have more, provided that they do not turn away his heart. Rabbi Shimon says: If even one turns away his heart, he may not marry her. If so, why does Scripture say, “He shall not multiply wives for himself”? Even women like Abigail.

(Mishnah Sanhedrin 2:4; cited in Babylonian Talmud, Sanhedrin 21a)

Ramban, at the beginning of Principle 5, explains the dispute as follows:

As in the matter over which they disagreed concerning: “He shall not multiply wives for himself, and his heart shall not turn away.” This second prohibition is certainly the reason for the preceding restriction against multiplying wives. Even so, the sages of Israel disagreed about it. Rabbi Judah expounds: What is the reason for “he shall not multiply”? Because “his heart shall not turn away.” He thus teaches that he may multiply wives, provided that they do not turn away his heart—that is, provided that they have been found reliable in their righteousness. Rabbi Shimon expounds that second prohibition as an independent prohibition. He said: Even if there is only one wife, if she turns away his heart he may not marry her. If so, why is it said, “He shall not multiply”? To teach that even women like Abigail are forbidden in excess. Thus he made it into an independent prohibition because of its superfluity.

(Ramban, Principle 5)

Ramban opens by asserting that “his heart shall not turn away” is certainly the reason for the prohibition against multiplying wives. He then explains that the tannaim disagreed over what is to be done with this reason. According to both views, although it is a reason, it also carries the force of a command. They disagree about the nature of that force. According to Rabbi Judah, the prohibition is not the multiplication of wives, but rather the turning away of the heart; multiplying wives is merely the way by which the king may come to such a turning away. Therefore, according to Rabbi Judah, the definition of the prohibition follows only the turning away of the heart. According to Rabbi Shimon, there are two separate prohibitions here: “he shall not multiply” and “his heart shall not turn away.” For Rabbi Judah, the reason itself becomes the prohibition in place of the original prohibition. For Rabbi Shimon, the reason becomes an additional prohibition beyond the original one.

In his Commentary on the Mishnah on this mishnah, Maimonides concludes by writing: “The halakha does not follow Rabbi Shimon, nor Rabbi Judah.” The same appears in negative commandment 365 in Sefer HaMitzvot. It is clear from these remarks that Maimonides understood the first line of this mishnah as a third tannaitic opinion, one that stands in opposition to the other two. Maimonides therefore rules in accordance with the anonymous first opinion: there is only a prohibition on multiplying wives, up to eighteen, and the reason is no more than a reason for the prohibition. According to the anonymous first opinion, which is also the view followed by Maimonides, the reason has no halakhic significance or practical consequence at all.

The Gemara asks concerning this mishnah that it seems to be the opposite of what we usually know. The accepted rule is that Rabbi Shimon does invoke tama de-kra, whereas Rabbi Judah does not. Here, however, it seems that specifically Rabbi Judah invokes the reason, while Rabbi Shimon does not.

The Gemara explains that this is an exceptional case in which the Torah itself spells out the reason for the prohibition. Rabbi Judah, who ordinarily does not invoke tama de-kra, does so here because the Torah explicitly wrote the reason, and presumably thereby hints to us that here, as in other similar places, we should invoke the reason for the commandment. Rabbi Shimon, by contrast, who ordinarily does invoke tama de-kra, specifically finds it difficult why the Torah should need to write the reason explicitly, since everywhere—even without the Torah’s stating the reason—we expound the reason of the verse. He therefore concludes that in such cases the Torah is hinting that there are two separate prohibitions here.

According to the conclusion of the Talmudic discussion as understood by Maimonides, it follows that we do not invoke tama de-kra even where the Torah states the reason explicitly, in accordance with the anonymous first opinion. According to Ramban, there is no such opinion at all, since he understood the mishnah as containing only two tannaitic views.

Why, indeed, do we not invoke tama de-kra? Usually the explanation given is that we do not know how to penetrate fully to the Torah’s mind, and therefore we cannot rely on inquiry into its reasons. But such a rationale does not apply where the Torah itself reveals its reasons. There, without doubt, we should have been able to invoke the reason for the commandment, since the Torah itself disclosed it.

It seems from this that, according to Maimonides, the reason we do not invoke tama de-kra is not our inability to understand, but rather the absence of any need to do so. Since, on our assumption, the wording of the Torah is perfect and exactly matches its intent, an interpretation that relies on the wording alone will hit precisely upon the Torah’s intention, just as if we had also taken its purposes and reasons into account.

We can now see the same point in the view of Ramban and his school as well. If the only reason not to invoke tama de-kra were the fact that we cannot fully fathom the Torah’s intention, then we should ask ourselves how we allow ourselves to interpret the Torah at all without being able to understand its purposes. Does our interpretation really hit its intention, or are we merely groping in the dark? It is very plausible that an additional assumption must be present here, even according to Ramban and his school: that we have a way of interpreting the Torah without trying to examine its reasons, and yet still arrive at the correct halakhic conclusion. Once again we return to the assumption of the perfection of the wording. Halakhic interpretation can allow itself to be positivistic.⁶

Back to pirkhot against a kal va-homer of the “within two hundred there is one hundred” type

In light of everything said until now, it emerges that from the standpoint of pure logic one can indeed refute even a kal va-homer of the “within two hundred there is one hundred” type—but only if one appeals to the plane of the reasons that underlie it. In the Vandervelde law, the pirkha was based on the claim that we should not interpret the law literally, but rather according to the motivations for its enactment—that is, according to the law’s rationale. But if, in halakha, we do not permit ourselves to appeal to the plane of reasons, and we assume that even so we arrive at the correct results, then a kal va-homer of the “within two hundred there is one hundred” type is indeed immune to pirkhot.

Our conclusion is that in halakha, unlike in civil law, a kal va-homer of the “within two hundred there is one hundred” type truly cannot be refuted.

Footnotes