Ki Tavo (5765)

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).

---

With God’s help

Midah Tovah — Sabbath eve of the Torah portion Ki Tavo, 5766

Questions

1. Is there a dependence between the mufneh side and the direction of the gzerah shavah?
2. Is this dependence substantive, or does it arise from the formal rules of the hermeneutical principles?
3. How can a refutation of a kal va-homer operate simultaneously on four different planes?
4. What is meant by the rules that one does not derive a prohibition or a punishment from logical inference? What is the source of Maimonides’ puzzling view on this matter?
5. Does the existence of a punishment prove the existence of a negative prohibition?
6. Are there limitations of formulation that even the Holy One, blessed be He, cannot satisfy?
7. What is the difference between a kashya and a teyuvta?
8. How can we explain the highly puzzling course of the discussion about the prohibition entailed by Yom Kippur self-affliction?

Hermeneutical principles

• Gzerah shavah (verbal analogy)
• Kal va-homer (a fortiori inference)
• One does not derive punishment from logical inference
• One does not derive a prohibition from logical inference
• There is no punishment unless Scripture first states a prohibition

“And the priest shall take the basket from your hand and place it before the altar of the Lord your God.”
— Deuteronomy 26:4

“His own hands shall bring the offerings of the Lord made by fire; he shall bring the fat together with the breast, to wave the breast as a wave offering before the Lord.”
— Leviticus 7:30

It was taught in a baraita: “‘And the priest shall take’—this teaches that bikkurim (the first-fruits offering) require waving; these are the words of Rabbi Eliezer ben Jacob. What is Rabbi Eliezer ben Jacob’s reason? He derives ‘hand’ from ‘hand’ by gzerah shavah from the shelamim (peace offering). Here it is written, ‘And the priest shall take the basket from your hand,’ and there it is written, ‘His hands shall bring.’ Just as here it is the priest, so there too it is the priest; and just as there it is the owner, so here too it is the owner. How so? The priest places his hand beneath the owner’s hands and they wave together.”
— Babylonian Talmud, Menahot 61a-b, and parallels

A. Summary of last year’s essay

In the baraita cited above, Rabbi Eliezer ben Jacob rules that bikkurim require tenufah (ritual waving). He bases this halakha (Jewish law) on a gzerah shavah from the shelamim.¹ The continuation of the baraita presents an additional law regarding the waving of bikkurim: the waving must be performed jointly by the priest and the owner.

At the beginning of last year’s essay, we dealt with the principle of gzerah shavah. We noted the need to fit the result of the derivation to the plain sense of the verse (see Babylonian Talmud, Yevamot 24a; Rashi ad loc., under the heading “and you derive it otherwise”; and Tosafot, under the heading “seven days,” Babylonian Talmud, Shabbat 133b). We also discussed the requirement that one of the terms be mufneh (“free,” that is, textually available for analogy), whether on one side or on both. We also examined various aspects of the derivation before us, especially its unusual logical structure, which expresses a two-sided gzerah shavah.

We brought two divergent versions of this midrash (rabbinic exposition), which differ over the question of the source for the law of waving in bikkurim. According to our version, the gzerah shavah is also the source for the very requirement of waving in bikkurim; but in parallel versions it appears that the source is the verse “And the priest shall take the basket from your hand” itself. This is reflected in Maimonides on this law and in the Radvaz ad loc.

The two versions also differ over whether the two-sided gzerah shavah fills a deficiency on one side of the analogy only, where a law is not stated in that halakhic context, or whether both sides are already complete, as in our version.

A further implication arises with respect to the question of who is the primary person performing the waving. If there is one explicit performer of the waving and the second is included by gzerah shavah, then the one stated explicitly is primary. But if both performers are learned from the gzerah shavah, then there is no primary performer. We saw that this disagreement affects the mode of waving, and that the medieval authorities disputed the matter. According to Tosafot, each of the two bears an obligation. According to Rashi, the obligation rests on the owner and the priest is only an ancillary participant. According to Tosafot on Kiddushin, there is a single obligation resting on both together. We saw that the heart of the dispute among these three approaches lies in how to understand the two-sided comparison between the two sides of the gzerah shavah: is it a combination of two obligations, a combination of the parties addressed by one obligation of waving, or merely the addition of a secondary element to the owner’s obligation?

In the second chapter of last year’s essay, we examined several characteristics of gzerah shavah and how they appear in the present derivation. We addressed the dispute over the rule that a gzerah shavah cannot be applied only partially, and we saw that this too depends on the two versions just mentioned. We also noted that if the gzerah shavah is a substantive comparison, and not merely a technical transfer of laws from one side of the equation to the other, then a two-sided comparison is quite reasonable. The exceptional nature of two-sided comparisons stems from viewing gzerah shavah as a mechanism that “transfers” laws in a technical way from one side to the other.

We distinguished between two types of gzerah shavah: one that teaches a law not written in the text, and one that interprets what is written. We saw that in our formulation there is a comparison between the waving of bikkurim and the waving of the shelamim, and this is a gzerah shavah that generates a new law. In the second formulation, however, the gzerah shavah compares bikkurim and shelamim themselves, not merely their waving, and this is an interpretive gzerah shavah concerning the word “your hand.”

We then examined the law of mufneh. We noted that in our derivation the analogy is mufneh on both sides, and therefore we are compelled to expound a gzerah shavah, since otherwise the Torah would contain words left without interpretive function. On the other hand, there is a contradiction between the two sides—does the priest wave, or does the owner wave? Therefore it is impossible not to employ a gzerah shavah at all, even if there is no halakhic lacuna to fill. The only solution is a two-sided comparison.

Finally, we suggested a hypothesis regarding the various types of mufneh. According to this proposal, if there is mufneh on both sides, we must expound a two-sided gzerah shavah, and there is probably a substantive similarity between the two sides. If, however, there is mufneh on only one side, then one may expound a one-sided gzerah shavah only, that is, only from that side or only toward that side, but in its entirety. We hesitated over whether the mufneh side is the derived side or the source side.

We also raised the possibility that the disagreement between Rashi and Rashbam is not a real disagreement, and that they are dealing with gzerah shavah at different levels of mufneh. A gzerah shavah that is mufneh on both sides must be symmetrical. By contrast, a gzerah shavah that is mufneh on only one side should run only from that side, or only toward that side, but always in full.

The third chapter of last year’s essay dealt with the development of halakha, and with the motivation for making interpretive derivations, in light of the legal development concerning the recitation of the first-fruits declaration by another person. Our claim was that there can be situations in which a practical need motivates the making of a derivation, but only as motivation and not as justification. Once the derivation is made, it must satisfy the standards of valid exegesis. The need is only the motivation to look for a derivation that leads to the desired result. Intellectual integrity remains obligatory even when there is a practical need.

We concluded that essay with a reminder of what we saw in our sheet on the portion Yitro, 5765: there are several levels of connection to the written text. Peshat (plain sense) is a close connection; derash (exegetical expansion) is a connection of analogy and extension; and asmakhta (a looser scriptural support) is a more speculative extension. At times, the Torah itself leaves a space within which the Sages can intervene and extend the law stated explicitly in the text.

B. The direction of learning in a gzerah shavah: the derivation concerning Yom Kippur self-affliction

Introduction

In last year’s essay, we raised the hypothesis that the mufneh side determines the direction of the gzerah shavah. A priori this is a reasonable hypothesis, since the Torah chose to render free specifically one of the two sides, and there is no reason that the choice of side should not indicate something (see our essays on the portions Ki Tetze, 5765, and Toldot, 5766, where we discussed whether the Torah contains degrees of freedom). The choice of which side to render free is directional, and it is therefore plausible that it indicates the direction of learning in the gzerah shavah.

In this year’s essay we will not examine that question in depth. Instead, we will focus on a special gzerah shavah in the course of which the mufneh side reverses itself. From the discussion of the direction of the gzerah shavah and its dependence on the mufneh side, we will move to several other issues that arise in this same derivation, all of them deeply bound up with the question of the directionality of the gzerah shavah, with the mufneh side, and with two different kinds of connection that exist between them.

The course of the discussion is very difficult, and our remarks will require careful tracking of both the Talmudic argument and our own line of analysis. But the results of the analysis are very interesting, and they seem to cast the apparently puzzling course of this discussion in a new and clear light.

The discussion of the prohibition entailed by Yom Kippur self-affliction

In the Torah’s section on Yom Kippur there appear two positive commandments: to refrain from labor² and to practice self-affliction. Regarding labor, there is also a negative prohibition and the punishment of karet (excision). Regarding self-affliction, there is no biblical source for a negative prohibition, but a punishment is written there—one who does not afflict himself is liable to karet.

The Mishnah in Babylonian Talmud, Yoma 81a, states that one who eats and also performs labor on Yom Kippur is liable to two sin-offerings. Rashi explains there that this is because these are two different categories of prohibition. It thus emerges clearly that there is a negative prohibition relating to self-affliction—that is, to eating—and that this prohibition is distinct from the prohibition of performing labor. As noted, the Torah does not state an explicit negative prohibition concerning self-affliction. It is therefore unsurprising that the Gemara there opens by searching for the source of the prohibitory injunction concerning self-affliction.

In the course of the discussion, the Gemara cites a baraita that derives the prohibition concerning self-affliction from the prohibition of labor by means of a gzerah shavah. The baraita presents two possible ways to construct this gzerah shavah:

But as for the prohibitory injunction regarding the affliction of the day itself, from where do we derive it? Let Scripture not state the punishment for labor, since it could be learned from affliction: if affliction, which does not apply on Sabbaths and festivals, incurs karet, then labor, which does apply on Sabbaths and festivals, all the more so. Why then is it stated? It is free, so as to form an analogy and derive from it a gzerah shavah: punishment is stated regarding affliction, and punishment is stated regarding labor. Just as in the case of labor, Scripture punished only after it had first prohibited, so too in the case of affliction, Scripture punished only after it had first prohibited. One may refute this: what is true of affliction, which was never permitted by way of exception, is not true of labor, which was permitted by way of exception. Rather, let Scripture not state the punishment for affliction, since it could be learned from labor: if labor, which was permitted by way of exception, incurs karet, then affliction, which was never permitted by way of exception, all the more so. Why then is it stated? It is free, so as to form an analogy and derive from it a gzerah shavah: punishment is stated regarding affliction, and punishment is stated regarding labor; just as labor is punished and prohibited, so too affliction is punished and prohibited. One may refute this: what is true of labor, which applies on Sabbaths and festivals, is not true of affliction, which does not apply on Sabbaths and festivals.

In the first possibility, they prove by kal va-homer that the punishment for labor is redundant, and the conclusion is that it is mufneh for a gzerah shavah to affliction. In the second possibility, they prove by kal va-homer that the punishment for affliction is redundant, and the conclusion is that it is mufneh for a gzerah shavah to affliction. In both cases, the gzerah shavah is learned from labor to affliction, even though the mufneh terms lie on opposite sides. At first glance, this implies that the mufneh side does not define the direction of the gzerah shavah, contrary to our proposal in last year’s essay.

Rejection of the proof

Of course, the matter also depends on the circumstances under discussion. If a gzerah shavah has one full side—that is, a side for which the law appears in the Torah—and one deficient side—that is, a lacuna in the Torah—then there is an obvious and natural direction of learning: from the full side to the deficient side. In such a case, it is clear that the mufneh side will not determine the direction of learning. In our example, the prohibition regarding labor is known, since there is an explicit negative prohibition there, whereas the law regarding self-affliction is a lacuna, since the Torah contains no explicit negative prohibition concerning it. If so, it is obvious that here the direction of the gzerah shavah will run from labor to affliction, independently of the form of the mufneh. This example therefore does not constitute a proof against our proposal.

Yet this claim is not entirely correct. The constraint on the interpreter is indeed clear: there is a lacuna only on one side, and therefore that side must be the derived side. But the remaining question is why the Torah rendered free specifically the source side, rather than the derived side, as one would have expected. If there really were a connection between the mufneh side and the direction of the gzerah shavah, and if the Torah needed specifically to teach us the prohibition concerning self-affliction while writing explicitly specifically the prohibition concerning labor, then the Torah should have rendered free the “correct” side. Hence, even if the lacuna is clearly located on one side, the Torah’s freedom to render either the source side or the derived side mufneh seems to indicate that there is probably no connection between the location of the mufneh and the direction of the gzerah shavah.

The reverse possibility

Theoretically, the Torah did not have to change the mufneh side. It could have reversed the direction of the gzerah shavah by “filling” the opposite side—that is, by writing the prohibition concerning self-affliction explicitly and leaving labor as the lacuna. In that case, we would have had to derive the prohibition concerning labor from self-affliction.

But it is interesting that, at least according to Resh Lakish, such a possibility does not exist in our case. The Gemara in the discussion of Yoma cited above opens with the unusual declaration of Resh Lakish, who says:

Resh Lakish said: Why was no prohibition stated regarding self-affliction? Because it was impossible. How should the Merciful One write it? If Scripture were to write, “He shall not eat,” that would refer only to the standard halakhic quantity of eating, an olive’s bulk. If Scripture were to write, “You shall not afflict yourself,” that would imply: get up and eat. Rav Hoshaya challenged him: Let the Merciful One write, “Take care lest you fail to afflict yourself.” If so, it would multiply the number of negative prohibitions. Rav Bibi bar Abaye challenged him: Let the Merciful One write, “Take care regarding the commandment of affliction.” If so, “take care” attached to a negative command creates a negative command, but “take care” attached to a positive command remains a positive command. Rav Ashi challenged him: Let it write, “Do not depart from affliction.” This remains difficult.

Thus, Resh Lakish holds that it is impossible to formulate, in biblical language, a negative prohibition concerning self-affliction that would fit the content the Torah wishes to express. The conclusion is that the Torah has no way to formulate a negative prohibition regarding self-affliction, and therefore it cannot fill the side of self-affliction and leave labor as the lacuna. The words of Resh Lakish will be discussed in detail in the next chapter, and the views of those who disagree with him will be discussed later in this chapter.

Two kinds of connection between the mufneh side and the direction of the gzerah shavah: content-based and rule-based

There is another reason why reversing the direction of the gzerah shavah is impossible in our case: such a reversal would automatically affect the direction of the mufneh as well. This effect is not necessarily due to the formal rules of gzerah shavah, as we had suggested, but rather to the content involved in this specific derivation, and especially to its special structure. Let us explain this in greater detail.

The consideration that leads the baraita to conclude that one side is mufneh is a kal va-homer. In the second kal va-homer, we examine the possibility that the punishment for self-affliction need not have been written, and that it could have been learned by kal va-homer from the punishment for labor: if labor, which was permitted by way of exception, nevertheless incurs karet, then self-affliction, which was never permitted by way of exception, certainly incurs karet. But if no prohibition concerning labor had been written, from where would we know that labor is prohibited on Yom Kippur at all? Punishment is not enough to establish that, for the rule is that there is no punishment unless Scripture first states a prohibition.³

And the problem is even sharper: from where would we know that the prohibition of labor was not permitted by way of exception, if the Torah did not write any prohibition of labor at all? Hence, rendering free the punishment for self-affliction requires that a prohibition of labor be written. It follows that if we were to reverse the direction of the gzerah shavah—that is, make the derived side into the source side and vice versa—then the direction of the kal va-homer would also change, and with it the direction of the mufneh.

This is a highly unusual and very interesting case. We are examining the possibility that, by the formal rules of the hermeneutical principles, there must be a connection between the mufneh side and the direction of the gzerah shavah. At first glance, we thought we had found here a contradiction to that possibility. But now we see that in this special case such a connection cannot be created at all, because the content and structure of the derivation force the opposite connection: the mufneh side must be the source side. It therefore seems that no proof for or against our proposal can be brought from here.

In this unique derivation, the direction of the gzerah shavah depends on the direction of the mufneh in a content-based sense, not necessarily in a formally hermeneutical sense. Here the Torah has no degrees of freedom to determine independently the direction of the mufneh and the direction of the gzerah shavah, and therefore no proof can be brought from here in either direction.

Parenthetical remark: how the refutation operates simultaneously on four different planes

Let us open a parenthesis and view the same phenomenon through the role and place of the refutation in the derivation we have cited. By kal va-homer we learn that if labor incurs karet, then self-affliction—which is more severe, since it was never permitted by way of exception—certainly incurs karet. A refutation now arises: what about labor, which applies on festivals and Sabbaths as well, unlike self-affliction, which applies only on Yom Kippur? This refutation is based on a stringency that labor has relative to self-affliction. What does this refutation do? It turns out to operate simultaneously on four planes, two of them independent of the others:

1. It obviously refutes the kal va-homer itself.

2. As a result, it cancels the mufneh of the punishment for self-affliction, since it is now clear that the punishment for self-affliction must in fact be written. This is a direct result of the previous plane.

3. Once the punishment for self-affliction is no longer mufneh, it is still possible in principle to expound a gzerah shavah between labor and self-affliction. But this is now a non-mufneh gzerah shavah, and therefore it can be refuted. A mufneh gzerah shavah cannot be refuted; see the continuation of the discussion there.⁴ This is a result of the previous two planes.

4. Up to this point, the refutation has only opened the possibility of refuting the gzerah shavah. So long as no actual refutation has been made, one could still derive the prohibition of self-affliction from it. But this very refutation also functions as an actual refutation of the gzerah shavah itself. We wish to learn by gzerah shavah that if there is a prohibition regarding labor, then there is certainly a prohibition regarding self-affliction. But now we have a refutation, for labor is more severe, since it applies on Sabbaths and festivals as well. In other words, the refutation not only makes possible the process of refuting the gzerah shavah by rendering it non-mufneh; it also carries out the refutation itself. This plane is independent of the previous three.

It should be noted that plane 4 is not common to both considerations presented in the baraita. In the first derivation, in which the mufneh side is the punishment for labor, once we refuted the kal va-homer by saying that self-affliction has a stringency, namely that it was never permitted by way of exception, three things occurred, not four:

1. The kal va-homer was refuted.
2. The mufneh of the punishment for labor was cancelled.
3. The gzerah shavah became vulnerable to refutation, since it was no longer mufneh.

But in that case, the refutation does not in fact refute the gzerah shavah, because the refuting factor is a stringency in self-affliction, not in labor, whereas the gzerah shavah derives the law of self-affliction from labor. In that case, therefore, the refutation actually assists the gzerah shavah rather than refuting it, and so the fourth, independent plane of the refutation’s activity does not appear here.

The reason is that, as we have seen, the direction of the gzerah shavah does not change between these two derivations. Because the vacuum lies on the side of self-affliction, even when the mufneh side is reversed, the direction of the gzerah shavah necessarily remains the same: from the full side to the empty side.

But this raises a difficulty that seems to contradict what we have said. According to our explanation, there would still have been room to derive the gzerah shavah in this direction even after we refuted the kal va-homer and cancelled the mufneh. It would then be a non-mufneh gzerah shavah, which according to at least some views is still a legitimate gzerah shavah. If so, the first derivation cited in the baraita would still appear to remain valid even after the refutation.⁵

But this conclusion is not correct. We must notice that the kal va-homer itself is based on a stringency that labor has relative to self-affliction—namely, that the prohibition of labor applies on Sabbaths and festivals as well. That stringency, as we have seen, refutes the gzerah shavah. Had the gzerah shavah been mufneh, it could not have been refuted. But here we are in a situation in which the gzerah shavah is not mufneh, even though that came about because of the opposing stringency. It follows that the stringency underlying the kal va-homer—not the explicit refutation, as in the previous case—is what refutes the gzerah shavah. In other words, it is this that performs the fourth-plane function.⁶ We may now close the parenthesis and return to the main line of the discussion.

A difficulty in the derivation itself

We can now understand why the structure of the derivation as it appears in the Gemara is itself very problematic. In the very kal va-homer that the Gemara makes, the same difficulty exists that we pointed out above—namely, that one cannot derive the matter without there already being a prohibition, here the prohibition entailed by self-affliction. The Gemara proposes not to write the punishment for self-affliction and to learn it by kal va-homer from labor. We noted that in such a situation there must be a written prohibition of labor, and that is certainly true. But in such a case there must surely also be a prohibition regarding self-affliction, and no such prohibition appears. If the Torah truly had not written a punishment for self-affliction, and there were no prohibition regarding self-affliction, then how could we learn a punishment for self-affliction by kal va-homer from labor? Who would have revealed to us that there is any prohibition against failing to afflict oneself, when there is neither prohibition nor punishment?

It is possible that this difficulty is solved through the positive commandment. The Torah explicitly states a positive commandment to afflict oneself on Yom Kippur. That means there is certainly an obligation to afflict oneself, but on the plain level of Scripture it appears as a positive commandment, not a negative prohibition. Now we see that with respect to labor, in addition to the positive commandment, there are also a negative prohibition and a punishment. Hence we derive by kal va-homer that there should also be a negative prohibition and a punishment regarding self-affliction.

Yet from such a kal va-homer one could also derive directly the prohibition concerning self-affliction that we are seeking throughout this whole discussion. For if we now assume that self-affliction is more severe than labor, why not also derive directly from this kal va-homer the conclusion that there is a prohibition concerning self-affliction? For some reason, the Gemara uses the kal va-homer only to render the punishment redundant, and afterwards the resulting mufneh of the punishment is used to derive the prohibition concerning self-affliction by gzerah shavah. Why not derive the prohibition itself directly through the very same kal va-homer that serves to render the punishment redundant?

The answer is probably that one does not derive a prohibitory injunction from logical inference. One cannot derive by kal va-homer a prohibition that serves as the basis for the punishment of karet.⁷ But one can use the kal va-homer to render the punishment for self-affliction redundant, and then use the mufneh thereby created in order to derive a prohibition concerning self-affliction by gzerah shavah.

C. The relation between “one does not derive a prohibition from logical inference” and “there is no punishment unless Scripture first states a prohibition”

Introduction

In this chapter we will discuss how to understand the words of Resh Lakish in the Gemara. We will see that this discussion yields several important principles regarding the relation between prohibition and punishment, and the relation of both of these to exegetical derivations. We have already dealt with all of these issues in the past, but as we shall see, this discussion may serve as an interesting source for Maimonides’ puzzling view on these matters.

Maimonides and Nahmanides on deriving a prohibition from logical inference⁸

At the end of the previous chapter we assumed that the rule “one does not derive punishment from logical inference” applies only to kal va-homer and not to gzerah shavah, and this is how we explained the need to move from kal va-homer to gzerah shavah in the second consideration that appears in the baraita.

But it is important to note that this rule is interpreted differently by the medieval authorities. In the second root of Sefer Ha-Mitzvot, Maimonides understands the rule that one does not derive punishment or prohibition from logical inference as applying to every derivation made through the thirteen hermeneutical principles, not only to kal va-homer. He therefore rules that such a derivation cannot serve as the source of a negative prohibition or a punishment. As we saw in the essay mentioned above, Maimonides views this rule as an offshoot of the principle that there is no punishment unless Scripture first states a prohibition. A law learned through the thirteen principles is not considered written in the Torah, and therefore, from his standpoint, it is as though there were no prohibition here at all. By contrast, Nahmanides, in his glosses there, like most of the medieval authorities, proves from many Talmudic discussions that this rule applies only to kal va-homer. According to their view, the rule apparently derives from the unique characteristics of that particular hermeneutical principle; see our essay on the portion Mishpatim, 5765. If so, the move from kal va-homer to gzerah shavah solves the problem only according to Nahmanides. According to Maimonides, however, even a gzerah shavah cannot serve as the basis for a prohibition, and the difficulty we raised remains in force.

If we continue along Maimonides’ line of thought, we encounter the same difficulty from another angle. In the introduction to Sefer Ha-Mitzvot, Maimonides writes a second innovation: if the punishment is stated explicitly in the Torah, then the prohibition may indeed be derived from logical inference. If so, regarding self-affliction, where the punishment of karet is explicit in the Torah, there is no obstacle to deriving the prohibition by gzerah shavah. According to Nahmanides, however, who disputes Maimonides on this point as well, the fact that the punishment exists does not allow one to derive a prohibition from logical inference, and therefore the move from kal va-homer to gzerah shavah remains indispensable. In light of this, the move from kal va-homer to gzerah shavah not only changes nothing; it is also unnecessary, because in our case there is a punishment explicitly written in Scripture.

Thus Maimonides introduces two innovations regarding the rule that one does not derive a prohibition from logical inference:

1. It is a principle that branches out from the principle that there is no punishment unless there is first a prohibition, and is not unique to kal va-homer.
2. If the punishment is explicit in the Torah, one may derive the prohibition through exegesis.

We will return to these two points below.

Resh Lakish’s statement: the difficulties

We cited above the words of Resh Lakish, who states that the Torah does not write a negative prohibition because there is no way to formulate such a prohibition in biblical language. This is puzzling on its face. It is hard to believe that there is no available formulation that could define a prohibition against the enjoyment that constitutes the absence of self-affliction on Yom Kippur. This is especially so if we remember that it is the Holy One, blessed be He, who wrote the Torah and who created the holy tongue. Could He not have created a language in which such a prohibition could be formulated?

As we saw above, Rav Ashi in fact proposes such a possible formulation, though admittedly a somewhat cumbersome one, and the Gemara remains with a kashya (“this is difficult”) against the words of Resh Lakish. But, as is well known, a conclusion of kashya differs from teyuvta (“conclusive refutation”): teyuvta decides against the rejected position, whereas kashya still leaves room for resolution.⁹

A second difficulty concerns the very meaning of his words. If the Torah contains no prohibition concerning self-affliction on Yom Kippur, then presumably there is no prohibition here at all. We did mention that the Torah states the punishment of karet for failing to afflict oneself on Yom Kippur, and indeed Maimonides, in Laws of Rest on the Tenth Day 1:5, writes that the prohibition is learned from the fact that the punishment of karet is written. But this explanation seems insufficient, because throughout the Talmud the existence of a punishment is not enough to infer that there is also a prohibition. The Gemara always asks: “We have found the punishment; from where do we know the prohibition?” or formulates the matter as: “There is no punishment unless Scripture first states a prohibition.” If so, Maimonides’ words here are also very puzzling.

How, then, are we to understand the words of Resh Lakish? And how are we to understand the words of Maimonides, which apparently rest upon the position of Resh Lakish?

Two ways to understand Resh Lakish

Later in the Gemara, various gzerah shavah derivations are offered for the prohibition connected with self-affliction, beginning with the two possibilities stated in the baraita above, the gzerah shavah based on kal va-homer. In light of that, it seems possible to understand the words of Resh Lakish in one of two ways:

1. Resh Lakish disputes the sources brought later in the discussion, including the baraita, and indeed holds that there is no independent prohibitory source for self-affliction on Yom Kippur. Nevertheless, the punishment itself establishes a negative prohibition.
2. Resh Lakish accepts at least one of the gzerah shavah derivations that appear later, and he holds that although there is no explicit prohibition regarding self-affliction on Yom Kippur, only a positive commandment, there is a prohibition derived by means of one of those gzerah shavah derivations.

Neither possibility is easy to understand. Each raises its own difficulties. Yet it seems that in the end one can make progress with either of them, as we shall now explain.

Option 1

From the plain sense of Maimonides’ words, it appears that Resh Lakish really does disagree with the sources brought later, and that he indeed holds that the existence of a punishment suffices to prove the existence of a prohibition. He does add, however, that this is a unique case because there is no simple way to formulate the prohibition in biblical language. We saw that Rav Ashi suggests such a way, and though it is somewhat cumbersome, it is certainly possible.

The explanation lies in understanding the rule that there is no punishment unless there is first a prohibition. As we saw in our essay on the portion Mishpatim, 5765, if there were theoretically a case in the Torah in which a punishment appeared without a prohibition, it is obvious that we would still administer the punishment, as the Torah commands us. There is an explicit verse commanding punishment—would we seriously consider disobeying that command? The author of Sefer Ha-Hinukh explains, in commandment 69, that the rule that there is no punishment unless there is first a prohibition teaches us that there is no such case. Whenever the Torah states a punishment, we must look for a prohibition as well. It must appear in some form, and its purpose is to teach us that the act is evil in the eyes of the Holy One, blessed be He, and that this is why we are punished for it.¹⁰

If so, when the Torah states the punishment of karet for failing to afflict oneself on Yom Kippur, one must certainly punish the person who fails to afflict himself, even if we were unable to find the prohibition. At most, we may assume that we have not found it, but that it exists somewhere. And if there is a specifically good reason why this prohibition was not stated in the present case, then perhaps the punishment itself can suffice. In our case, for example, a specific difficulty arises: it is very hard to formulate a prohibition of non-affliction. In such a situation, the Torah might suffice with writing the punishment, assuming that we will infer from the punishment that we are also under a prohibition. In that case, we do not worry at all that perhaps there is a prohibition that we failed to locate. There is no explicit prohibition—but there is a good reason for that, and therefore this does not disturb us.

If the meaning of the rule that there is no punishment unless there is first a prohibition were that, when only a punishment appears, we do not obey the command and in practice do not punish the offender, then there would be no room for this line of reasoning. So long as there is no prohibition, punishment would be impossible. But if we are correct that the offender is punished in any event, and that the Torah ordinarily adds a prohibition to the punishment only in order to make clear that the act is evil in God’s eyes, then it is certainly possible to say that when there are good reasons, the Torah may depart from its usual pattern and suffice with punishment without a prohibition. That is precisely the situation here.

We can now understand why Rav Ashi’s question against Resh Lakish remains only a kashya, and why Resh Lakish is not shaken by it. Even if one can find an obscure and complicated wording that would yield the desired meaning, that is not necessary. In the final analysis, there is also the possibility of writing only a punishment and relying on the rule that there is no punishment unless there is first a prohibition, a rule that teaches us that every punishment is imposed for a wrongful act. Resh Lakish holds that the Torah preferred not to state a negative prohibition because of the difficulty of formulation, even if some possible wording exists in theory.

If so, the two difficulties we raised above concerning the words of Resh Lakish are resolved quite well. And the difficulty concerning Maimonides—how one can infer from the punishment that there is a prohibition, when the rule we hold is that there is no punishment unless there is first a prohibition—is likewise resolved well according to our proposal.

Option 2

Another possibility is to understand that Resh Lakish in fact adopts one of the gzerah shavah derivations that appear later. If so, he does have a source for the negative prohibition, and all that he means is that there is no explicit biblical wording that teaches its existence. This direction too resolves the two difficulties we raised. Resh Lakish rejects the complicated formulation proposed by Rav Ashi because he has a simpler possibility: to establish the prohibition by means of gzerah shavah. We should note that on this interpretation, the words of Resh Lakish do not conflict with what is said in the baraita. According to option 1, by contrast, Resh Lakish would come out as disagreeing with a baraita, and that creates a certain interpretive difficulty.

But here a different difficulty arises: why does Resh Lakish speak as though there is no prohibition of self-affliction because of the difficulty of formulation? On the contrary, there is a prohibition by force of gzerah shavah, and therefore there is no need whatever for an explicit formulation of the negative prohibition. Learning by derivation is more economical than writing an explicit verse. More than that: beyond the semantic question—why he speaks as though there is no prohibition at all—there is also a substantive question. Why should it matter that there is no explicit formulation of a negative prohibition regarding self-affliction? What is wrong with a prohibition learned by gzerah shavah?

The answer to this difficulty lies precisely in the light of Maimonides’ position presented above. According to Maimonides, as we saw in our essay on the portion Mishpatim, 5765, a prohibition based on one of the thirteen hermeneutical principles does not suffice. That is a prohibition derived from logical inference. A prohibition must be explicit in a verse in order to create a negative command on which punishment may rest. As we saw there, according to Maimonides, what is learned from the thirteen principles is not regarded as explicit in the Torah, and therefore cannot serve as a prohibition.

That is why Resh Lakish expresses himself by saying that there is no prohibition here at all, even though he accepts the sources based on gzerah shavah. Only an explicit prohibition counts as a prohibition. The words of Resh Lakish here thus provide a marvelous source for Maimonides’ position, which stands against a good many Talmudic sources, as Nahmanides notes in his glosses there.

Yet, as we saw, Maimonides also holds that if the punishment is explicit in the verse, then a prohibition learned through the thirteen hermeneutical principles can be accepted. As noted, the verses do explicitly state the punishment of karet for one who does not afflict himself. If so, in this case an exegetically derived prohibition is enough, and Resh Lakish is therefore willing, even here, to rely on one of the gzerah shavah sources as the prohibition. Thus the position of Resh Lakish in this discussion serves as a source for both of the innovations of Maimonides mentioned above:

1. What is learned by exegesis is not considered written in the Torah and therefore cannot serve as a prohibition.
2. When the punishment is explicit in Scripture, a prohibition based on exegesis is sufficient.

An additional conclusion from Resh Lakish

Even so, one should note that Resh Lakish adds another specific reason: there is a difficulty in formulating a prohibition of non-affliction. Why does he need this reason, if in every case one may rely on exegesis as an acceptable source for a prohibition whenever the punishment is explicit in the Torah?

It seems that beyond the principle newly established here—that when the punishment is explicit, an exegetically derived prohibition is enough—we must still seek, in each individual case, a local reason explaining why in that case the Torah was satisfied with a prohibition derived through exegesis rather than writing the prohibition explicitly.

Which of the two interpretive options does Maimonides intend?

Above we noted that the plain sense of Maimonides’ language seems to point to option 1, namely that according to Resh Lakish there is no prohibition at all regarding self-affliction on Yom Kippur. But it should be noted that Maimonides’ wording in Sefer Ha-Mitzvot, negative commandment 196, points rather clearly to option 2. This is his language there:

The 196th commandment is that He prohibited us from eating on the fast of Yom Kippur. The Torah did not state an explicit prohibition for this act, but it mentioned the punishment and imposed karet upon one who eats, and from this we know that eating is prohibited. This is His statement, “For any person who will not afflict himself on that very day shall be cut off.” At the beginning of tractate Keritot, when they listed those liable to karet, they included among them one who eats on Yom Kippur, and they explained there that everything for which one is liable to karet is a negative commandment, except the Paschal offering and circumcision. It is thus established that eating on Yom Kippur is a negative commandment, and therefore one who acts intentionally is liable to karet and one who acts unintentionally is liable to a fixed sin-offering, as they explained at the beginning of tractate Keritot and as is explained in tractate Horayot, Mishnah 8:1 and in his commentary there, that this rule applies only to negative commandments, as Scripture says regarding those liable to a fixed sin-offering: “one of any of the commandments of the Lord that shall not be done.”

And the wording of the Sifra, Emor, section 14, halakha 9, is: “For any person who will not afflict himself and shall be cut off”—this is the punishment for affliction. But as for the prohibition regarding affliction on the day itself, we have not heard it. When Scripture states the punishment for labor, this is unnecessary, for it is already a kal va-homer: if affliction, which does not apply on festivals and Sabbaths, is punishable, then labor, which does apply on festivals, is it not all the more so punishable? If so, why is the punishment for labor stated? In order to learn from it a prohibition regarding affliction: just as the punishment for labor comes only after a prior prohibition, so too the punishment for affliction comes only after a prior prohibition. Thus what we have said has been explained.

Maimonides expresses himself here in almost exactly the same way as in the Mishneh Torah: “The Torah did not state an explicit prohibition for this act, but it mentioned the punishment … and from this we know that eating is prohibited.” On the other hand, in the next paragraph he cites the first gzerah shavah derivation presented above, and he takes it from the Sifra. It seems quite clear that his intention is that there is no explicit prohibition, but there is a prohibition by gzerah shavah, as in option 2 above.

Footnotes