Talmudic Thinking – Lesson 8

Table of Contents

• [0:00] Command and essence in a commandment – Maimonides
• [1:21] Rabbi Elchanan’s question on Kiddushin and the righteous person who rebels
• [2:42] The story of the priest and repentance on his deathbed
• [4:28] The subjective versus objective dimension in repentance
• [7:52] Planning to eat pork and ending up with a lizard – two states of inadvertence
• [10:59] Halakhic differences between lack of command and lack of essence
• [13:15] Attempted murder versus murder – is it the same thing?
• [16:38] Does there need to be proportionality between sin and punishment?
• [20:25] Rabbinic-level doubt and leniency – an analysis of Maimonides
• [27:59] Rabbinic-level doubt and leniency versus Torah-level doubt
• [30:02] A conceptual analysis of two components – command and essence
• [31:12] Nachmanides’ critique of Maimonides’ approach
• [38:44] A law given to Moses at Sinai – command without essence
• [42:22] Laws derived from interpretation – essence without command
• [43:26] Non-transitive resemblance in the category of building
• [48:11] Differences between Slabodka and Ponevezh in learning
• [50:52] The limits of conceptual analysis and the connection to yeshiva heads

Summary

General Overview

Maimonides, in the ninth root, holds that every Torah-level commandment requires both a command and an independent essence, and this parallels the two sides present in every commandment or transgression according to the Ramchal: a relation of obedience or rebellion toward the command, and an essential result of benefit or harm that is actually produced. Rabbi Elchanan Wasserman uses this distinction to reconcile the Ramchal’s statement that repentance is a grace that changes history with the Talmudic text in Kiddushin about a righteous person who regrets his earlier deeds and loses his merits, by distinguishing between the subjective repair that takes place as a matter of law and the change in objective results that occurs only beyond the strict letter of the law. The distinction between command and essence is then used to explain cases of inadvertent sin versus “he intended to eat pork and ended up with lamb,” the laws of doubts at the Torah and rabbinic levels, and Maimonides’ view regarding interpretations and laws given to Moses at Sinai. At the end, a further direction is opened for understanding the difference between sin-offerings and guilt-offerings, where the guilt-offering is characterized by applying to intentional cases as if they were inadvertent and is aimed mainly at the result that was produced rather than the degree of personal culpability.

Command and Essence in Commandments and Transgressions

Maimonides, in the ninth root, requires that every Torah-level commandment be both commanded and possess an independent essence or content. The Ramchal describes how every commandment has a side of obedience to the command and a side of the benefit for which we were commanded, and every transgression has a side of rebellion against the command and a side of the harm the transgression creates. This distinction is presented as the basis for Maimonides’ demand for the two components, command and essence, and for conceptual analyses that break a law into components and distinguish practical consequences according to each one.

Repentance, “Rewriting History,” and the Talmudic Text in Kiddushin

The Ramchal says that repentance is a special grace from the Holy One, blessed be He, that makes it possible to change history and repair what was done. Rabbi Elchanan Wasserman raises a difficulty from the Talmudic text in Kiddushin that a completely righteous person who rebels at the end loses his merits, and the Talmud explains this as referring to someone who “regrets the earlier deeds,” meaning he regrets even the good he did. Rabbi Elchanan argues that retroactive change as a matter of law applies only to the subjective dimension of one’s relation to the command, so regret changes the person’s identity with respect to obedience or rebellion, but should not change the consequences that have already occurred in reality. He explains that beyond the strict letter of the law, repentance also operates on the objective dimension and rewrites the outcomes, but such grace is granted only to do good and not to do harm. Therefore, in the case of a righteous person who regrets his earlier deeds, he loses the subjective dimension of his merits but not the objective repairs produced by his good actions.

He Intended to Eat Pork and Ended Up with Lamb, Inadvertent Sin, and the Two Dimensions of Transgression

The Talmudic text in Nazir and Rashi at the beginning of Parashat Matot bring two parallel situations: someone who intended to eat lamb and ended up with pork, and someone who intended to eat pork and ended up with lamb. The first case is described as inadvertent: there is no subjective rebellion because the person thought it was permitted, but there is a forbidden act and a problematic essential result. The second case creates subjective rebellion because the person intended to transgress and acted accordingly, but there is no actual result of transgression because in practice he ate lamb. The rabbi of Brisk, in his stencils on Nazir, argues that this is “a full-fledged transgression,” and only there is a scriptural decree that one is not punished if the result did not occur; the speaker rejects this as a straightforward halakhic reading and presents it as, at most, a conceptual or motivational problem. He argues that in terms of “who is the real offender,” the subjective dimension is more severe than the objective one, but in Jewish law the very existence of a transgression and punishment also depend on a factual and consequential dimension, because punishment is understood not only as a sanction for guilt but also as atonement or purification of a result.

Punishment, Attempted Murder, and the Idea of “Proportionality”

The speaker argues that in terms of moral guilt, attempted murder is as serious as murder, since the intention and the act are present, and the difference stems only from a technical failure or from luck. He criticizes public and legal distinctions that assign decisive weight to “blood on one’s hands” and to the result alone, and suggests that on the level of dangerousness and protecting society there is no necessity for proportionality between the severity of the offense and the severity of the punishment; the central question is the likelihood of repeating the offense. He brings a dispute attributed to Sefer Chasidim versus Maimonides on the question of whether there is proportionality between the severity of punishment and the severity of the offense, and notes that Rabbi Uri Perlov speaks about this and that an article was written on the topic.

Torah-Level Doubt Stringency and Rabbinic-Level Doubt Leniency Through Command and Essence

The speaker presents the difficulty of how a rabbinic-level doubt can be ruled leniently if, according to Maimonides, the obligation to obey the sages stems from “do not turn aside,” so that a rabbinic prohibition would seemingly involve a Torah-level prohibition. He mentions the answer of “they said it and they said it,” but notes that it does not necessarily work, and points to Shema’ata, which discusses this in Shema’ata 1, along with a similar direction in Rabbi Shimon Shkop and Rabbi Shlomo Zalman on the Shema’ata. He explains that with rabbinic prohibitions, the usual understanding is that there is a command without essence, as in poultry with milk, which was prohibited as a fence lest one come to meat with milk; therefore in a case of doubt there is no rebellion, because “a doubtful rebellion is not rebellion,” and there is also no problematic essence in the act itself. He contrasts this with Torah law, where even if there is no rebellion in a case of doubt, on the possibility that it is forbidden there is still an essential corruption created, and therefore the stringency in Torah-level doubt is founded on essence rather than command.

Netivot 234: A Rabbinic Prohibition Done Inadvertently, One’s Rabbi Committing a Transgression, and Transactional Error

The Netivot, in section 234, cites a Talmudic text that if a person sees his rabbi violating a Torah-level prohibition, he stops him and asks, “Our rabbi, did you teach us this?” But with a rabbinic prohibition, “first we let the act be done and afterward we raise the objection.” The Netivot infers from this that in the case of a rabbinic prohibition done inadvertently, there is no prohibition, and therefore there is no obligation to stop the rabbi if at most he is acting inadvertently. He states that someone who eats a rabbinic prohibition inadvertently does not need to repent because “he did not transgress anything,” and explains the law of transactional error accordingly: if someone bought a rabbinically prohibited food and ate it, he does not get his money back because “I sold him food,” whereas with a Torah prohibition, even after inadvertent consumption, there is transactional error because he “ate prohibited food,” which harmed him. Rabbi Shimon and Rabbi Shlomo Zalman extend the Netivot’s approach to rabbinic-level doubt and explain that such doubt resembles inadvertence, in that there is no rebellion against a command when there is no clear knowledge, and therefore it is treated leniently.

Maimonides’ View of Interpretations and Laws Given to Moses at Sinai, and the Implications for Doubts

Maimonides argues that a law derived from interpretation or a law given to Moses at Sinai is classified as “words of the scribes” and not Torah-level law, and Nachmanides attacks this in his glosses to the second root, emphasizing the broad implication of turning many laws into rabbinic ones. The speaker cites Maimonides in his commentary to the Mishnah in Keilim, chapter 17, that measures are a law given to Moses at Sinai, and explains Maimonides’ statement that doubt regarding a measure is not a doubt in a law given to Moses at Sinai but a doubt in the Torah prohibition itself, because the measure is a detail in the definition of the prohibition. He proposes a spectrum within what is “not Torah-level” according to Maimonides: a law that has command without essence is treated as doubtful and therefore lenient, whereas a law that has essence without command is treated as doubtful and therefore stringent, even though there is no punishment, because “we do not punish unless there was prior warning.” He formulates it this way: laws derived from interpretation lack command, and therefore are not Torah-level regarding punishment, but they do have essence, and therefore their doubts are treated stringently; whereas a law given to Moses at Sinai is understood as having command without enough essence to enter the written Torah, and therefore its doubt is treated leniently according to Maimonides.

Conceptual Analysis: The Example of Building, Tent, and Curdling

The speaker brings from Rabbi Isser Zalman an analysis of the prohibited labor of building on the Sabbath as the gathering of parts that creates a functional space. Curdling is presented as a derivative category where there is a gathering of parts without a functional space, and tent-making as a derivative category where there is a functional space without a gathering of parts. So you get a non-transitive resemblance, where each derivative resembles the primary category from a different side, but they do not resemble each other. He parallels this to the structure of command and essence, where “rabbinic law” can divide into two types that are not similar to each other: essence without command versus command without essence, and each one yields different consequences in the laws of doubt and punishment.

Ponevezh and Slabodka as Tools for Understanding a Conceptual “Template”

The speaker describes two differences between Ponevezh and Slabodka: Ponevezh as a structured, analytical, logical way of learning, and Slabodka as a more intuitive, ba’al-batish style of learning in the spirit of the Chazon Ish, a kind of “it seems to me this way.” He argues that almost all yeshiva heads emerged from Ponevezh and not from Slabodka, because systematic tools allow even an average person to produce consistent analyses and reach halakhic leadership and guidance, whereas in a less structured track an unusual talent is required in order to become a leader. He describes the experience that after years he is able to predict the flow of lectures by yeshiva heads because they are built on the same template, and tells of a lecturer whose ideas turned out to resemble the lectures of Rabbi Shmuel Rozovsky even though he had not learned that tractate with him, as a result of deep absorption of the structure. He also describes an attempt that did not work out in the Chazon Ish kollel because of the lack of the analytical structure to which he was accustomed.

Opening: Guilt-Offerings versus Sin-Offerings

The speaker opens a direction for distinguishing between guilt-offerings and sin-offerings, and cites from Nachmanides’ commentary on the Torah that a guilt-offering indicates a “grave matter” that brings “desolation,” while a sin-offering indicates a deviation from the path. Nachmanides explains that the guilt-offering for misappropriation and the guilt-offering for a designated maidservant are called guilt-offerings because they also apply to intentional sin, and the suspended guilt-offering is called that because Scripture treated its doubt with stringency. The speaker cites a Mishnah in Keritot 9 and Rashi in Horayot 8, who emphasize that in several guilt-offerings, “they are brought for intentional sin just as for inadvertent sin,” and marks the guilt-offering for misuse of sacred property as an exception that applies only to inadvertence. He proposes a principle that distinguishes between the offerings according to the two dimensions developed throughout the lecture: the sin-offering focuses on the person’s sin and the violation of the command, and therefore applies only to inadvertence, while the guilt-offering focuses on the result and on “what happened,” and therefore does not depend on whether the act was intentional or inadvertent. He concludes by saying that next time he will go through the various types of guilt-offerings one by one to show that this principle works in all of them.

I recorded it. So I’ll just summarize three sentences. Last time we saw Maimonides, in the sixth root, saying that every Torah-level commandment has two requirements it has to meet: first, there has to be a command; second, it also has to have an independent essence or content. I said that this corresponds to two sides, as the Ramchal explains, two sides that exist in every commandment or transgression. In a commandment, for example, there’s the side that you obey the command, and there’s the side of the benefit that this act brings, because of which we were commanded. So if you performed the commandment, you did two things: you obeyed the command, and you brought about the benefit. If you committed a transgression, you rebelled against the command—there are two problems: you rebelled against the command, and you brought about the harm that this transgression is meant to prevent. The definition of the thing as a transgression comes to prevent that. So there are these two aspects here, and those are the two aspects underlying Maimonides’ requirement that there be both a command and an essence.

And then I said that when Rabbi Elchanan brings this distinction, he brings it because he raises a difficulty there: the Ramchal says that repentance is a special kindness that the Holy One, blessed be He, did for us—that we can rewrite history. We committed a transgression, and if we repent, that repairs what we did. In other words, we now look at history differently. And then he says this is difficult in light of the Talmud in tractate Kiddushin, because the Talmud in Kiddushin says that a completely righteous person who rebelled at the very end lost his merits. That’s what the Talmud says. The Talmud asks: then let him be considered half-and-half. Why did he lose his merits? From this point on, count the bad things he did on the side of liability—but the good things he did, why did he lose them? So the Talmud answers: he regrets the earlier deeds. He didn’t just become secular; he also regretted what he had done in the past. And then he also loses what he had done. Not only is what happens from now on counted against him, but even the positive things he did until now he essentially loses.

Okay, by the way, usually that doesn’t happen. There’s an asymmetry between becoming secular and repenting. In repentance, a person can regret the bad things he did. In becoming secular, I don’t think anyone regrets good things he did; he just doesn’t think that was the right thing to do, maybe unnecessary, but he usually doesn’t regret it. But there the Talmud does make the case that he regrets the earlier deeds—yes, he became secular in a real, ideological way, not some toy version of it. In other words, he regrets what he did. There are amusing stories, you know, about Adam HaKohen. One of the stories people like to tell about him is that on his deathbed he wanted to repent in order to refute the saying of the Sages that “the wicked, even at the entrance of Gehenna, do not repent.” An interesting question whether repentance is possible in such a state, whether such repentance even has any meaning. In any case, it’s a thesis that can’t be refuted.

The difficulty, yes—so Rabbi Elchanan asks: you see there in the Talmud that if a person was righteous and then rebelled at the end, he lost his merits. Meaning, if rewriting history or changing history is something done only beyond the letter of the law, not according to strict law, then it should work only in the positive direction, not in the negative direction. If someone committed sins and repented, then the sin changes and now we disregard the sin he committed—it becomes unwitting acts, becomes merits, whatever; we disregard the sin he committed. But the Holy One, blessed be He, inclines toward kindness. He does not go beyond the letter of the law in order to do harm; He goes beyond strict justice only to do good. To do harm is according to justice—“anyone who says that the Holy One, blessed be He, is indulgent, his intestines will be forfeited,” right? So basically, if according to justice you deserve it, you’ll get it. There is no going beyond the letter of the law in order to harm someone. Okay? So if you say that erasing history—if I regret history, it gets erased—that’s beyond the letter of the law, then that should not have worked for a righteous person who regrets the earlier deeds; it should work for a wicked person who regrets the earlier deeds and repents. Okay? So how can that be?

So there he says—he brings that Ramchal—that in every commandment or transgression there are these two aspects: obedience or rebellion against the command, and the essential benefit or harm contained in the act. Then he says: if you regret what you did, you certainly change your subjective relation to the matter. In other words, if for example you sinned, then there were two problematic things there: first, you rebelled against the command, you did not obey; second, some result occurred because of your act—there was some spiritual damage that occurred because of your act. Now you repented—what does that mean? According to the strict law, what does repentance do? Repentance says: okay, I… So the subjective dimension in the sin—that you can repair. Fine, so what do I care that then I rebelled against the command? Today I’m a different person. Today I do think one should obey the command. Why do you care what I was then? But as for reality—if some damage occurred in reality, then my regretting it should not change that. That’s reality; what can you do? What burned, burned; what was ruined, was ruined. That should not change.

Therefore, fundamentally, if I’m talking about retroactive effect or a change of mind that has retroactive effect, fundamentally it applies only to the subjective dimension—the dimension of my attitude to the act. But to the objective dimension, there is no retroactive effect; there’s no such thing. What happened happened. Beyond the letter of the law, that too changes. So what the Ramchal writes—that repentance is effective beyond the letter of the law—that is only in order to change the results, the essence. As far as the subjective attitude is concerned—obedience versus rebellion—that changes according to strict law, not beyond the letter of the law.

And then he says: what happens with a righteous person who regrets the earlier deeds? With a righteous person who regrets the earlier deeds, indeed one does not go beyond the letter of the law in order to do harm. The Holy One, blessed be He, inclines toward kindness. So what happens there? If you regret the earlier deeds, what does that change? It changes only your attitude to the commands. You used to be someone committed to the commands, someone who obeys the commands; now you’re not. Why should I care that once you were, now you’re not? Why should I care about what was. But as for the results—if your good deeds produced positive results, that remains even if you changed your mind. Because changing that would be beyond the letter of the law, and beyond the letter of the law is done only for good, not for harm. So therefore in the Talmud in Kiddushin, when it says that if he regrets the earlier deeds he lost his merits, he lost the subjective dimensions of the matter, but the objective dimension—the repairs he made, he made. And what the Ramchal writes, that repentance is beyond the letter of the law, means that in repentance, in the positive direction, you also succeed in rewriting history. Not only in becoming someone who obeys the commands—from someone who did not obey into someone who does obey—but you also rewrite history. And that truly is only beyond the letter of the law, but it indeed happens only in the positive direction and not in the negative direction. Okay, that is essentially what Rabbi Elchanan Wasserman claims.

He says—there he brings several nice examples to illustrate the meaning of the matter. So he says: the Talmud brings—the Talmud in Nazir brings, and Rashi at the beginning of the Torah portion of Mattot also brings this—that there are two cases. One case is: he intended to eat pork and ended up with lamb. Right? At the beginning of the Torah portion of Mattot, the Talmud—the Torah there speaks about the laws of vows. And it brings two situations. There’s a gap of several verses between them, but both appear in Rashi at the beginning of the portion. One situation is when the husband tells his wife that he annulled her vow on the day he heard it, right? But the truth is that he did not annul it—he’s lying to her. But he tells her that he annulled it. So the wife violates the vow because she is sure the vow was annulled. The truth is that the vow was not annulled; the husband lied. That is someone who thought he was eating lamb and ended up with pork, right? She thought she was doing something permitted, and it turned out she did something not permitted. Or in plain Hebrew translation, this is called unintentional wrongdoing—a transgression committed inadvertently. An inadvertent transgression is someone who thought he was eating lamb and ended up with pork, right?

There’s the opposite case. A person actually did annul his wife’s vow, fine, but did not tell her. Now she thought it was forbidden, and she decided to do it because she wanted to commit a transgression. So she decided to violate the vow. In practice she did not violate the vow, because the vow had been annulled. Okay? About that the Talmud says: he intended to eat pork and ended up with lamb. She wanted, in effect, to commit a transgression. In practice—yes—she’s not only wicked, she’s also unlucky; she can’t even manage to commit transgressions. She wants to commit transgressions and can’t. Okay? So that is “he intended to eat pork and ended up with lamb.”

So Rabbi Elchanan says there: what is the difference between these two situations? “He intended to eat pork and ended up with lamb”—the essential dimension of the transgression is not here. He ate lamb. There is no essential harm of the sinful act here. But the subjective dimension of not obeying the command—that is here. He thought it was pork and he wanted to eat that pork. He also acted, by the way—wanting to eat without doing anything also doesn’t count. So wanting to eat, when it comes to expression in action, right? It only turned out in the end that this action was not what you thought—but you performed an action, and that means you rebelled against the command. In practice, factually, you did not commit a transgression, because nothing happened there. In the end it was permitted; it was lamb, or the vow had been annulled. But what she wanted, subjectively, was to rebel against the command. So here you have a case where you rebel against the command, but the essence is absent. Right—that’s “he intended to eat pork and ended up with lamb.”

In an inadvertent transgression, it’s the reverse. In an inadvertent transgression, it’s someone who did not know he was rebelling against a command, because he acted inadvertently—he didn’t understand that this was a transgression here—but in practice he did do the essence, he did the problematic essence, he committed the transgression. The dimension of non-obedience is absent, because he did not know the thing was forbidden. The subjective dimension is not here. So these are exactly two opposite situations: he intended to eat pork and ended up with lamb, or he intended to eat lamb and ended up with pork. These are exactly the two situations. One of them has the dimension of non-obedience but not the essential dimension, and the other has the essential dimension but not the non-obedience. Okay?

By the way, what is the difference between them from the standpoint of Jewish law? From the standpoint of Jewish law, in an inadvertent transgression one is liable for a sacrifice, for example, if the intentional violation carries karet, then the inadvertent violation requires a sin-offering. In any case, an inadvertent transgression is considered a transgression. Less severe, less blameworthy, but it is considered a transgression. What about someone who intended to eat pork and ended up with lamb? So the Rabbi of Brisk, in his stencil notes on Nazir, writes there that this is a full-fledged transgression. It’s a prohibition; he violated a Torah-level prohibition, ate lamb, but he violated a Torah-level prohibition because he wanted to eat pork and he also performed the action, not just wanted to of course. Except what? There is a scriptural decree that one is not punished if the result did not occur—that’s his claim. But it is literally a Torah-level prohibition.

Now, I don’t know—that seems absurd to me, in my humble opinion. Simply reading what’s written there gives the opposite. What’s written there is that this is not okay—not okay in some sense, I don’t know, some conceptual sense like that, not formal halakhically. Meaning yes, there is a problem here in terms of your motivations, your commitment to Jewish law, so that is certainly problematic. But there is no transgression here; it’s less than inadvertent, not more than inadvertent. Even though in terms of reasoning, from the standpoint of the sources in Jewish law, I think it’s pretty clear—in terms of reasoning, he is completely right. Think who the real criminal is between the two. Whom would you treat more severely? Obviously, the one who intended to eat pork and ended up with lamb. The one who intended to eat lamb and ended up with pork isn’t guilty at all—what do you want from him? By accident he committed a transgression, okay. In terms of results, something problematic happened here—but when I ask myself how much of a criminal the person is, clearly the subjective dimension is much more important than the objective dimension. That’s what determines whether you are a criminal or not. The question is what your motivations are, not what you actually did.

People often distinguish between attempted murder and murder, okay? There’s no root-and-branch to that distinction. Obviously attempted murder is exactly as severe as murder. What’s the difference? You are equally wicked. You take a rifle, aim it at someone, pull the trigger with the intention of killing him, and the firing pin is broken, so the gun doesn’t fire. So it’s just luck—but you are no less wicked. You failed in the transgression, but you’re wicked in every sense. Attempted murder is literally murder in every sense in terms of blameworthiness; on that the Rabbi of Brisk is certainly right.

But in Jewish law, whether you have a transgression or not is not identical with the question of how wicked you are. There is also a factual, objective dimension here—that is, whether you performed the problematic act or not. Now the implication is that the punishment given to you is not a sanction for wickedness, or at least not only a sanction for wickedness, but some kind of atonement or purification of the result caused through you. And therefore there has to be a result—otherwise what is the point of punishing you? The purpose of punishment is to repair what you did; if you did nothing, there is nothing to repair. Not because you are not guilty, but because there is nothing to repair. If punishment were a sanction for guilt, then certainly the Rabbi of Brisk would be right, and someone who intended to eat pork and ended up with lamb is a thousand times more wicked than someone who intended to eat lamb and ended up with pork. The second one is not wicked at all—maybe a little negligent, but not wicked. In no way did he intend to commit a transgression. It happened; what can you do? But he absolutely did not intend it.

Say, in terms of secular law, I don’t understand these silly distinctions at all between attempted murder and murder. Attempted murder and murder are exactly the same thing. They should put people in prison until the end of their days for attempted murder—exactly like for murder. There’s no difference. Our whole penal system is stupid in my opinion—not ours, but that of all legal systems in the world. Really stupid. I can’t understand this at all. Just as an aside. They classify, say, a terrorist “with blood on his hands” versus “without blood on his hands.” Whom do they release? Those without blood on their hands. Why do I care whether there’s blood on his hands? So he failed—so what if he failed? He wanted to kill; he failed, he didn’t manage. What can you do? He didn’t run over the victim properly, or the doctors managed to save him, or I don’t know exactly what. He failed to kill. Ah, so there’s no blood on his hands, then we can release him in deals—let him murder next time and then we’ll talk to him, maybe he’ll do better next time, improve next time. What kind of stupidity is that? What does that mean?

Maybe there’s a consideration that it’ll be easier to… yes, but what is that? To me that’s a minor consideration. That’s what everyone gets worked up about. What does it mean, “blood on his hands”? Fine, it’ll be harder for the families, so we’ll take that into account. That’s not the argument there. The argument there is outrage: how can it be? These are the worst criminals—they have blood on their hands! Blood? I don’t understand this foolish argument. Or say, someone who abuses his wife. Right? So they put him in jail, depending on what he did. According to what he did, maybe he serves one year, two years, five years? Shocking. He should sit there for the rest of his life, never get out, if there is really concern that he’ll do again what he did. Even if what he did wasn’t the most severe thing—so what? Why do I need to wait until he does it in order to put him in jail? Keep him there so that he won’t do it. Why should there be any proportionality at all between the severity of the punishment and the severity of the offense? That’s the dumbest thing I’ve ever heard. Not the dumbest—there are other dumb things I’ve heard—but it’s one of the dumbest.

Why in the world should there be proportionality between the severity of the offense and the severity of the punishment? If you understand it like in Jewish law, then there’s some logic to it, though even there there’s a dispute between Sefer Chasidim and Maimonides—Rabbi Uri Perla talks about it. He claims that Sefer Chasidim says there is no proportionality between the severity of the punishment and the severity of the offense, while Maimonides says there is. I once wrote an article about it. But in the legal conception—not the halakhic one—where the purpose of punishment is not to take revenge on the criminal but to protect society—if you need to protect society, then protect society as long as… A person who stole one shekel should sit in prison and never get out for the rest of his life if there is concern that when he gets out he’ll keep stealing one shekel. Why in the world would you let him out? So what if he stole only one shekel? When you put him in prison after he stole one shekel, you’re putting him in prison so that he won’t steal. He has already proved that he steals. What difference does it make whether he stole one shekel or murdered someone? It really makes no difference. If you’re talking about a sanction that is a response to an act, then there is logic in having proportionality between the response and the severity of the offense. If you’re talking about protection of society—which is basically the accepted conception of punishment in a modern state—then I don’t understand at all what connection there should be to the severity of the offense. The whole question is recidivism—what is the chance that you’ll return to the offense afterward? If you are going to return—if the committee evaluates that, fine, you’ve been rehabilitated, excellent, release him, everything’s fine. But if there is no evaluation that you’ve been rehabilitated, then so what if the offense was light? Why send the person back to the crime scene so he can go on doing exactly the same thing because he already sat three years? It’s absurd. I don’t know, this whole thing is absurd.

Anyway, for our purposes, the claim—yes, so I said that there is the subjective dimension of my relation to the command and the objective dimension of the repair or corruption of the act itself. These are the two sides in Maimonides: the command and the essence of the commandment. I said that what distinguishes between these two things is the inadvertent case versus “he intended to eat pork and ended up with lamb”: in one of them you have the essence and not the command, in the other you have the command and not the essence. And from that we discussed the question: so which is more severe? Well, it depends. If you’re speaking about the degree of criminality of the person, then what matters is the subjective dimension. If you’re speaking about what result occurred, then obviously what matters is the objective point—whether the result occurred or not. If in the end you ate lamb, then nothing happened. You’re a great villain, but nothing happened; there’s nothing to repair. And if the purpose of punishment is to repair, then you need to follow the essence. If the purpose of punishment is to impose a sanction on wicked people, then you need to follow the subjective dimension and not the essence. And you see that this whole story is really just a conceptual analysis of the two components that exist in every commandment and every transgression, and where each of them appears, what role each of those two components plays. Okay, so this is just another example of conceptual analysis.

So now, let’s try for a moment to see what this means for other implications. For example, let’s talk for a moment about the laws of doubt. In the laws of doubt, we know that with rabbinic doubt we rule leniently, and with Torah-level doubt we rule stringently. There is a dispute whether the stringency in Torah-level doubt is itself Torah-level or rabbinic, but I’m leaving that aside for the moment. So Torah-level doubt is treated stringently and rabbinic doubt leniently. Why is rabbinic doubt lenient? In particular, some sharpen the question more: according to Maimonides, the obligation to obey the Sages comes from “do not turn aside.” Since it comes from “do not turn aside,” then basically, if you violate a rabbinic prohibition, ostensibly you have violated a Torah-level prohibition. So in rabbinic doubt, every rabbinic doubt is actually a Torah-level doubt—you should have to be stringent exactly like with any other Torah-level doubt. So why are we lenient in rabbinic doubt?

Okay, there is the answer “they said it and they said it,” you can resolve these things that way—they also could have chosen not to forbid it at all, right? In the end, if they forbade it then you are obligated by “do not turn aside,” but they could also say that in a doubtful case you may be lenient. It’s not such a terrible difficulty, but there are arguments this way and that; I’m not getting into it now. The Shemaita discusses this in Shemaita 1. I’m not sure that answer of “they said it and they said it” really works.

There are several later authorities who go in a direction connected to the analysis I just made now about the two dimensions present in every transgression. Rabbi Shimon Shkop and Rabbi Shlomo Zalman, in his comments on the Shemaita, go in a similar direction. They go with the following claim: in rabbinic prohibitions, the accepted view is that these are prohibitions that contain only obedience and not essence. Meaning, if I eat poultry with milk, which is a rabbinic prohibition, okay, then basically the problem here is that I did not obey the Sages’ prohibition against eating poultry with milk. The Sages forbade eating poultry with milk, and I did not obey their command. Okay, so I basically rebelled against the command of the Sages. Does the act in itself have some problematic consequences—does it damage something? The assumption is no. If it damaged something, then it would have been forbidden by the Torah. The Torah does not forbid poultry with milk, only meat with milk. Apparently, from the Torah’s point of view, there is no problem with eating poultry with milk. The Sages prohibited it because you might come to eat meat with milk, and that really is problematic; therefore that one is Torah-level. We said that a Torah-level prohibition is something that has both essence and command. A rabbinic prohibition is something that has only the command and not the essence.

And therefore, even though it comes from the verse “do not turn aside,” even though it comes from the verse “do not turn aside,” still, because there is only command here and not essence—because what they are basically telling you is: do not turn aside from what the Sages commanded. Listen to the verse; that’s what it says. The verse basically says that the whole problem here is only disobedience to the command. There is no problem in the thing itself. Eating poultry with milk is not intrinsically problematic; it’s only that you did not obey the command of the Sages. So therefore there is only command here without essence.

Okay, and then what? Yes, this is the Netivot in section 234. The Netivot says that the Talmud says that if a person sees his rabbi committing a transgression, then if it is a Torah-level transgression he has to stop him and ask him, “Has our master not taught us that such-and-such is forbidden?” and then his rabbi will either explain it to him or realize that he really made a mistake and not do it. But in rabbinic matters, first we let him do the act and only afterward raise the objection. Meaning, if you see your rabbi doing a rabbinic prohibition, let him do it; afterward ask him only in order to know. The question is, what—rabbinic prohibition isn’t a prohibition? Why not? The Netivot says: from here we see that if a rabbinic prohibition is done inadvertently, there is no prohibition in it. Therefore if his rabbi is doing a prohibition and does not know, you don’t have to correct his mistake, because at most he committed that prohibition inadvertently. In a rabbinic prohibition, inadvertence is not a prohibition. In Torah law, an inadvertent prohibition is still a prohibition. Therefore there you must stop him even if he is acting inadvertently, because it is a prohibition; but in a rabbinic prohibition, not so.

Why not? Because in a rabbinic prohibition, as I said earlier, all there is in this prohibition is the duty of obedience—the fact that you did not obey the command of the Sages. But if I acted inadvertently—remember Rabbi Elchanan Wasserman’s analysis—then there is no disobedience here; I didn’t know the Sages had forbidden it. And as for essence… there is no essence here in any case. So what remains? What is the problem? If someone commits a rabbinic prohibition inadvertently, there is no disobedience here, and there is no essence here even in the intentional case. So there is nothing. An inadvertent rabbinic prohibition contains no prohibition. Therefore the Netivot says there, in 234—and for this he brings that Talmud—that someone who eats a rabbinic prohibition inadvertently does not need to repent, because he did not transgress anything. He does not need to repent.

More than that, he says that if I sold someone a rabbinically prohibited item, then if he did not eat it, he gets his money back. He returns the item to me and gets the money, because it was a mistaken transaction. But if he ate it—if he ate it—he doesn’t get a penny. Because everything is fine; he ate something inadvertently, nothing happened. With a Torah-level prohibition, it is not like that. Even if he ate it, he gets the money back—because basically he ate something prohibited and he did not want to eat that. But with a rabbinic prohibition he gets no money back at all. If he ate it, then he ate it. I sold him food, he ate the food, he enjoyed it, everything is fine—what is the problem? What is the difference from a Torah-level prohibition? That in a rabbinic prohibition, if you ate it inadvertently, nothing happened; you did not violate a prohibition. You just ate food. I sold you food; pay me. With a Torah-level prohibition, even if you ate it inadvertently, you ate something prohibited. That is not a thing that helped you; it harmed you. So no—that is a mistaken transaction. You get the money back. Okay? That’s the Netivot’s claim; that’s how he explains a certain ruling in the Shulchan Arukh there. And his proof is from that Talmudic passage—in Eruvin, I think—the Talmud about one who sees his fellow, or his rabbi, committing a transgression.

So what does that mean for our purposes? Just as the Netivot says this regarding inadvertence, Rabbi Shimon and Rabbi Shlomo Zalman say it regarding doubt. Rabbinic doubt is like an inadvertent rabbinic transgression. Why? Because with rabbinic doubt, once there is doubt, you can’t say that you rebelled against the command. Doubtful rebellion is not rebellion. You don’t know for certain that there is a prohibition here. Rebellion is when you know it is forbidden and you decide to go against it. But if you don’t know, if you are in doubt, then in that situation it is not called rebellion. Rabbinic doubt is lenient because rabbinic doubt contains no prohibition at all. It is like an inadvertent rabbinic prohibition.

Now, that comparison is not trivial. In other words, one could argue. Even if I accept the Netivot that an inadvertent rabbinic prohibition is no prohibition at all, in doubtful rabbinic prohibition there was at least a possibility that the Sages prohibited it. In other words, it’s not that I did something I never imagined was forbidden. There is a possibility—I just wasn’t sure. They say it’s the same thing. You can hear that, and you can also disagree with it. In other words, with inadvertence it’s a stronger claim than with doubt. But they say it also about doubt. Therefore they claim that rabbinic doubt is lenient. Why? Because there is no problem at all—eat it, everything’s fine. Even if there is a rabbinic prohibition here, you haven’t violated anything. Because a rabbinic prohibition has no intrinsic problematic content. The essence is absent. And regarding the command, since you are in doubt, there is no rebellion against the command here. Therefore nothing happened. Rabbinic doubt is lenient.

By contrast, with Torah law, Torah-level doubt is stringent. Why? Because in Torah law, besides the obligation to obey the command, there are also the consequences, the repairs or corruptions caused by the act. Now if you are in doubt, still—on the possibility that it is forbidden and you did it, the corruptions occurred. So as far as obedience goes, doubtful rebellion is not rebellion, even in Torah law. But as for the content itself, maybe you are eating pork. One must be careful about that, not because you will violate obedience. You won’t violate obedience, because you don’t know if there is a prohibition here. But you ate pork, and that will do the damage that eating pork does. Or in the language of conceptual analysis: I would phrase the question like this. In every Torah-level prohibition there are two aspects, as we saw, right? Essence and command. In Torah-level doubt, must one be stringent because of the command or because of the essence? A conceptual inquiry, right? Is one stringent in Torah-level doubt because of obedience or because of essence? According to what I explained earlier: because of the essence. What’s my proof? Because in rabbinic law there is also a command, and yet in doubt we see that I can be lenient there. Why? Because rebellion against a doubtful command is not rebellion. So if so, in Torah-level doubt too the dimension of rebellion does not exist. Because even though there is a command there, if there is doubt whether there is a command or not, rebellion against a doubtful command is not rebellion. What exists in Torah law that does not exist in rabbinic law? The essence. There is corruption; the act causes corruption. And if you transgressed that prohibition in a doubtful case, then basically maybe you ate pork. So in that situation you need to be stringent so as not to stumble into the prohibition of eating pork. Therefore the obligation to be stringent in cases of doubt is founded on essence and not on obedience.

And here again you have a type of analysis similar to the analyses I made in previous classes—an analysis that breaks the thing into two components, command and essence, the analysis—and then suddenly all kinds of appearances of two laws begin to emerge. What do I mean by two laws? Certain implications are determined by component A, certain implications are determined by component B. So suddenly you see that the very same thing, under certain circumstances, contains only component A, so certain implications disappear and others remain. In other contexts it contains only component B. Then it’s the opposite: those implications remain, and the others disappear. And this is the classic structure of conceptual analysis; it always works that way.

If you want, I’ll continue a bit with this move. In Maimonides—Maimonides has a somewhat unusual view of the question what counts as Torah law, which is a continuation of what I said from the ninth root. Maimonides claims that a law derived from an exposition, or a law given to Moses at Sinai, is rabbinic law, not Torah law—“the words of the Sages.” Nachmanides attacks him on this in his glosses to the second root. This is a unique view; almost nobody agrees with it. Among the Geonim maybe there is some such conception; there is a Rashi in Ketubot 3 that quotes something like this in the name of his teachers. But in principle this is Maimonides’ view, an unusual view. Nachmanides, in his glosses to the second root, says that the book of our master the author is entirely sweetnesses, “his palate is sweetness, and all of him is delights,” but all of that was worth nothing because of the second root. So destructive in his eyes was this conception of Maimonides, that he turns three-quarters of the laws we possess into rabbinic laws even though they are Torah laws. Anything that comes out of expositions—anything not explicitly written in the Torah, basically—anything derived from expositions or a law given to Moses at Sinai or things like that, all of it becomes rabbinic law.

Then he asks him many, many questions: how can that be? In various places in the Talmud we see that with doubt in such laws we are stringent. So if these are rabbinic laws, why is doubt in them treated stringently? The truth is that this is not so simple, because in a law given to Moses at Sinai there really are several places—and there are some contradictions in Maimonides—and there are several places in Maimonides from which one sees that indeed doubt in a law given to Moses at Sinai is ruled leniently. For example, in his commentary to the Mishnah in Kelim, chapter 17, Maimonides says there—he is speaking about measurements. “Measurements, interpositions, and partitions are a law given to Moses at Sinai.” So measurements are a law given to Moses at Sinai. Maimonides says: then you’ll ask why doubt in them isn’t lenient. Suppose I have a doubt whether I ate an olive’s bulk of pork. Fine? The olive’s bulk is a measurement, and measurements are a law given to Moses at Sinai. So if I have a doubt whether I ate an olive’s bulk or not, ostensibly this is a doubt about the measurement, and measurements are a law given to Moses at Sinai. Maimonides says the doubt should be lenient. Then he says no, why not? Because the measurement, in my language, is a detail within the prohibition of eating pork. So doubt whether I ate an olive’s bulk of pork is not rabbinic doubt; it is Torah-level doubt. Doubt whether I violated the prohibition of eating pork. The detail that in order to violate it one must eat an olive’s bulk is a detail from a law given to Moses at Sinai. But here the law given to Moses at Sinai only clarifies the boundaries of the Torah prohibition. If there were to be a law given to Moses at Sinai that innovates a new law—for example, the willow and the water libation are a law given to Moses at Sinai. That is not accepted as law, but there is such an opinion in the Talmud. So if the willow and the water libation are a law given to Moses at Sinai, then there it is already a law given to Moses at Sinai that innovates a new law; it is not a detail in an existing Torah commandment like measurements in the prohibition of eating and so on. There indeed doubt would be lenient.

So from Maimonides needing to explain why doubt about a measurement is not lenient—because it is a detail in a Torah commandment—you see that basically, in his view, doubt in a law given to Moses at Sinai really is lenient. When Maimonides says that a law given to Moses at Sinai is “the words of the Sages,” he means it seriously, in every respect—that doubt in it is lenient; yes, it is rabbinic law. Or not Torah law; its category is rabbinic doubt. The same with laws derived from expositions: Maimonides also says these are “the words of the Sages.” And on this Nachmanides piles up difficulties there with astonishing breadth in his glosses—it’s really an experience to see it. But he says there that in many places we see that doubt in laws derived from expositions is treated stringently. It’s difficult that Maimonides says such doubt is lenient.

So I wanted to argue the following: since Maimonides’ view, as we saw in the ninth root, is that a Torah commandment is a commandment that has essence and command, as opposed to, say, a rabbinic commandment that has only command but not essence, as we saw earlier—how do we understand a law derived from an exposition? In Maimonides one can see in the second root, and by reading his wording carefully, and in other places too, that he understands that a law derived from an exposition is “the words of the Sages” because we have no command regarding it. We have no command regarding it. Why? For example: “You shall fear the Lord your God”—this comes to include Torah scholars. We learn that from an exposition; the word “et” comes to include. Okay, says Maimonides, there is no command on that; the verse does not command it. You take some word, expound from it, and derive some law or another. A person reading the Torah does not see there a command to revere Torah scholars. Therefore, from his standpoint, for example, “there is no punishment unless there is prior warning”: there is no warning, he was not warned about this thing. Therefore it is not Torah law, because there is no command regarding it.

Maimonides refers to this and says “one does not punish based on derivation.” For Maimonides—and all the medieval authorities explain this—“one does not punish based on derivation” means one does not punish by force of a kal va-chomer, an a fortiori argument. Right, that’s the Talmud, not only the medieval authorities. But Maimonides says not so. He says “one does not punish based on derivation” means from all the interpretive principles by which the Torah is expounded, not only from a kal va-chomer. Any law derived from the interpretive principles by which the Torah is expounded carries no punishment, because it is the words of the Sages. And this is called “one does not punish based on derivation.” It’s not because maybe there is a refutation of the kal va-chomer, or all the explanations later authorities give. One does not punish based on derivation simply because it is not Torah law. Such a law is not Torah law; there is no punishment for violations that are not Torah law. That is basically Maimonides’ claim.

Now—so what about doubt? Nachmanides asks that in many places we see that doubt in laws derived from expositions is treated stringently. And how can Maimonides say these are “the words of the Sages”? I want to claim that in Maimonides there are different kinds of laws that are not Torah law. It’s a whole range of laws. They are not all the same. It’s not a package deal. There are rabbinic laws whose doubt is stringent, and rabbinic laws whose doubt is lenient. How do I know? How do I explain it? Simple. We saw earlier why rabbinic doubt is lenient—when dealing with laws that have command and no essence. Doubtful command is not command; doubtful rebellion is not rebellion, right? What happens if there are laws that have essence and no command? A regular Torah law, according to Maimonides, requires both, command and essence, as we saw in the second root, right? If there is a law that has essence and no command—suppose there is such a law—what would its status be? It would not be Torah law, because for Torah law you need both, essence and command. But on the other hand, let’s apply the analysis of the laws of doubt. If there is doubt in this type of law, what should the rule be? Forbidden. Why? Because the doubt in ordinary Torah law also stems from the doubt in the essence, not in the command. So if there is something that has essence, even if it has no command, what do I care—the command does not play a role in the laws of doubt. If it has essence and no command, its doubt will be stringent.

Therefore I argue that in Maimonides a law derived from expositions is indeed rabbinic law in the sense that, for example, one is not punished for it—but its doubt will be stringent. Because the question whether doubt is stringent or lenient is not a categorical question: if it is rabbinic, doubt is lenient; if it is Torah law, doubt is stringent. Each thing according to its own nature. If it has essence, doubt is stringent; if it has no essence, doubt is lenient. Usually what we call rabbinic law—decrees, enactments, fences, things like that—are things that have no essence, only command. And their doubt is indeed lenient. But it is not some rule that every rabbinic matter has lenient doubt. There will be rabbinic categories that have essence and no command, like laws derived from expositions, where doubt will be stringent. Because when there is doubt in the essence, one must be careful not to damage the essence. One must be stringent. Okay?

In a law given to Moses at Sinai, for example, my claim is that there is command but no essence. Therefore it is not written in the Torah. Why did the Torah leave it out, this law given to Moses at Sinai? There is command—we received it from the Holy One, blessed be He, at Sinai together with the Written Torah. There is command. So why did it remain outside the Torah? Why wasn’t it written? If it is Torah law and the Holy One, blessed be He, said it all, then it is not rabbinic law in the ordinary sense. So why is it not written? It is not written because only what has both essence and command enters the Torah. And the Holy One, blessed be He, decided to leave the law given to Moses at Sinai outside because a law given to Moses at Sinai has no essence; it has only command. What does it mean it has no essence? Obviously there is something behind the command; it’s not arbitrary that we were commanded. But it does not reach the threshold of an essence sufficiently important to count as Torah law. That is what I mean by saying it has no essence. Okay?

The same in Hanukkah and Purim, which are rabbinic laws—there is essence there. This is not a decree or something else; the act itself has value in Hanukkah and Purim—the rabbinic commandments, not the decrees and fences. But it is not an essence important enough to count as Torah law. Fine? That is what I call “no essence”; I do not mean it is arbitrary. So therefore doubt in a law given to Moses at Sinai, Maimonides really says, is lenient. Not because there is some rule that rabbinic doubt is lenient, but because a law given to Moses at Sinai is exactly the same category as decrees and fences. It is something that has command and no essence. Doubt in such a thing is lenient, because rebellion against a doubtful command is not rebellion. And there is no essence here.

So it comes out like this: an ordinary Torah law is a law that has essence and command. If the essence is lacking but there is command, then it is rabbinic law of the type of enactments and fences or a law given to Moses at Sinai. In both those cases doubt is lenient, because it is only doubtful command, and against doubtful command there is no rebellion. Okay? In laws derived from expositions, this too is rabbinic law, or not Torah law. Why? Because there is no command. But here there is no command but there is essence. So as far as punishment is concerned, there will be no punishment for it—it is not Torah law, there is no command. For punishment you need command; there is no punishment unless there was prior warning. But with doubt we will be stringent. With doubt we will be stringent because there is a possibility here that you are harming the prohibition and creating the problem that the prohibition creates. Because I refrain from eating this piece lest it be pork, and then if I ate the pork, I ate pork; it did what it is supposed to do. One must be careful about that. That is the idea of doubt. It is also simple in reasoning: the reason one must be stringent with Torah-level doubt is simply because maybe you will violate a Torah prohibition, right? You don’t need great pilpul for that; it’s simple reasoning.

So this is an example of conceptual analysis—or analysis and synthesis—that takes the concept of commandment, breaks it into its components, and says: in this concept there is command and essence. Maimonides first of all requires both of these together—that resolves Rabbi Yerucham Fischel Perla’s difficulty on the ninth root. I ask myself: why do you need both of these things? Apparently because of the two aspects that exist in every commandment and every transgression. Then I continue and say: so how are the laws of doubt derived from this? I know, for example, the difference between Torah law and rabbinic law in the laws of doubt. Then I work it out—how does it work? Why in the laws of doubt do I go leniently in rabbinic cases and stringently in Torah cases? I say: in rabbinic law only one component appears, only the command without the essence. And regarding the laws of doubt, what matters is specifically the second component. The same with a law given to Moses at Sinai. But with laws derived from expositions—even though they too are only laws, they are not Torah law, they are rabbinic, not Torah law—there specifically the second component appears and not the first. Only the essence and no command. Regarding the laws of doubt we will go stringently there, because in the laws of doubt the relevant component is specifically the essence and not the command.

Regarding punishment, the essential component is the command—perhaps both command and essence are needed; you need both. Because even for a law given to Moses at Sinai there is no punishment. But you need both. Regarding the laws of doubt, what matters is only the essence and not the command. This is classic conceptual analysis. This is Rabbi Chaim—things like this on every page. You distinguish between two things, say this thing is responsible for this implication and that thing is responsible for that implication, and this is how you resolve all kinds of contradictions. Two rabbinic laws—in one of them we go stringently, in the other leniently. Why? Because the concept “rabbinic” probably conceals beneath it two different categories. One category is missing command; the other category is missing essence. And then suddenly you see that the two things appear differently.

If you remember, I brought Rabbi Isser Zalman regarding the definition of the labor of building on the Sabbath, where he basically shows there that a property of resemblance can be non-transitive. In other words, usually resemblance is transitive: if A resembles B and B resembles C, then A resembles C. Okay? But it turns out there are properties of resemblance that are not transitive. For example, the principal category of building resembles two types of derivative categories. The two types are tent and making cheese. Both are derivatives of building. But between tent and making cheese there is no resemblance at all. Even though both resemble the same thing. Between them, A resembles B, and C resembles B, but A does not resemble C. How does this miracle happen? I said it is because in the labor of building, when once again one performs analysis—what is the analysis of building? What is it to build a house? It is to take various parts, components, materials, gather them together—assembling parts—and by means of that gathering create a functional space. Right? Some sort of space, structure, within which you can perform various functions. Okay? So assembling parts that creates a functional space is basically the principal category of building.

Okay, now see exactly the same structure I made now. Meaning: what happens when there is assembling of parts but no functional space? Then it is a derivative category. What is it? Making cheese. Right? Making cheese is a collection of parts; you gather together the parts, but it is not a functional space. You create cheese that people eat; you don’t perform functions inside the cheese, the cheese is not a structure. Okay? So that is assembling parts that did not create a functional space. One component of the principal category is missing—the functional space—and the second component, assembling parts, is present. What is a tent? Exactly the opposite, right? A tent creates a functional space, but you just spread out a blanket; you are not assembling parts, you are not building it from stones or wood or whatever. So that too is a derivative category. Right? The point is that each of these two derivatives resembles the principal category from one side. The principal category has components A and B. One derivative has only A; the second derivative has only B. Both resemble the principal category, but between themselves there is no resemblance. Right? The two derivatives have no resemblance. This one has only A, that one has only B—they are not similar. So that means there is here a property of resemblance that is not transitive. That is, A resembles B, C resembles B, but A does not resemble C.

And that is exactly what is happening here. In a Torah commandment there are the two components. One component is the command; the second component is the essence. Now it has two derivatives, so to speak—laws that are not Torah law. One of them is expositions, which is essence without command. The second is a law given to Moses at Sinai, which is command without essence. Now both are called rabbinic law, and everyone asks: wait, so why isn’t the doubt lenient? In Maimonides we see that for a law given to Moses at Sinai the doubt really is lenient. For laws derived from expositions we don’t see that. Why not? Because the concept “rabbinic law” hides within it two categories like the derivatives of building, which do not resemble each other at all. There is no resemblance between them. Each lacks a different component of the principal category. Okay? One of the two components of the principal category—but a different one. And therefore if there are implications—for example, in the Sabbath laws—if there were some implication tied only to assembling parts and not to functional space, then it would appear only in making cheese and not in a tent. Or if there were some implication only to the functional space, independent of assembling parts, then it would appear only in a tent and not in making cheese. Okay? In the Sabbath laws you generally don’t have these things, because the Talmud in the beginning of Bava Kamma says that in the derivatives of Sabbath, their derivatives are like them. Okay? So the derivatives are like the principal category, and there is no difference in implications between the derivative and the principal category. But in principle, if there were a difference in implications, then these two derivatives could have entirely different implications if each implication depended on a different parameter among the two parameters of the principal category. Okay? And that is basically what happens with us.

You see that these structures I’m talking about here—these analyses and syntheses—operate in exactly the same way in different contexts. It is exactly the same idea, exactly the same logical structure. Okay? And once you get used to this, that is the power of Brisker conceptual analysis. You don’t need to be some great genius to apply it; you need to be skilled. If you are sufficiently skilled and you know how this logic works, you can apply it to anything that moves. You don’t have to be a genius for that. I mentioned, I think in one of the first sessions, my anthropological findings from my time in Bnei Brak. I said there were—I think this is still true, but then it was very noticeable—two central yeshivot there: Slabodka and Ponevezh. And I saw two differences between these two yeshivot.

One difference is that Ponevezh studies in a very structured, very analytical, very logical way. In Slabodka it’s more homespun, like the Chazon Ish basically, following the Chazon Ish—a more homespun kind of learning: “it seems to me like this, it seems to me like that,” not something terribly built, terribly analytical, the way people are used to in Ponevezh. Ponevezh is very square. The second difference is that almost all the heads of yeshivot came out of Ponevezh and not from Slabodka. You find heads of yeshivot around the country in all sorts of yeshivot—almost all of them were graduates of Ponevezh, very few graduates of Slabodka. And the claim—I think I talked about this, I don’t remember—the claim is that there is a connection between these two things. Here again, another conceptual analysis, I think. There is a connection between those two components, two laws in being a rosh yeshiva. What does that mean? The fact that more heads of yeshivot emerge from Ponevezh is because it is simply easier to become a rosh yeshiva when you are equipped with structured tools for analyzing a Talmudic passage conceptually. If you’re sufficiently skilled, you’ll do the analysis, you’ll do it on any passage; it makes no difference at all what the passage says or doesn’t say. The form of thought is very, very fixed, systematic, uniform.

Ponevezh—whoever knows knows—there are things they are unwilling to hear. In other words, if it’s outside their square mold, they don’t hear it at all. You can’t say it—not “we haven’t heard that,” it won’t even enter the protocol. There are all sorts of odd characteristics there. Precisely because of that squareness, any mediocre person can become a rosh yeshiva. Because you aren’t the rosh yeshiva—Rabbi Shmuel is the rosh yeshiva, Rabbi Shmuel Rozovsky—you are simply imitating him. And once you imitate him long enough, you learn his way and you become a rosh yeshiva. In Slabodka, if you want to become a rosh yeshiva, you need to be the Chazon Ish. So the Chazon Ish was the Chazon Ish. But all the mediocre people who studied in Slabodka, nothing came of them. Nothing came of them, because they do not receive those automatic tools for doing conceptual analysis of Talmudic passages. Therefore very few heads of yeshivot come out of there. The exceptional people—yes, they became heads of yeshivot from there too. But mediocre people did not become heads of yeshivot from there. From Ponevezh they did.

And I think this reflects the point here: the analysis, the fixed pattern of conceptual analysis, has a lot of power in it, but of course it also has limitations. The limitations are that somehow you are captive to very, very fixed patterns. You are already reciting the same thing; slowly, you don’t even think anymore whether it really makes sense in this passage to do this analysis or not, because it has already become this fixed mold. You always say the same thing, you make the same distinctions, right? Like the HaGashashim say: they ask you questions and you always answer the same answers. It’s the same thing, right?

I had a hobby of going to the lectures of heads of yeshivot during intersession breaks; they would always give them in neighborhood synagogues. So during intersession, holidays or things like that, heads of yeshivot would come give a lecture—a good learning lecture, not ethics talks. So I would go listen to these classes, and at some point after a few years—I always enjoyed them—but after a few years I suddenly saw that a class would begin, and I knew how it would end. I’d say to myself: okay, now he’s going to ask this, bring that practical implication, bring the dispute between Rashba and Maimonides here, and he’ll finish with such-and-such a novelty. I even knew his novelty, although I hadn’t heard him before. Because I already understood where it was going. I knew the mold. Absolutely. The class would begin, and I could tell you how it would end. And that was because the heads of yeshivot there were almost all these Ponevezh types. They all do the same thing. It’s all the same mold.

Sometimes you don’t notice it enough, but it’s there. It’s really very similar. I think I mentioned the maggid shiur I had in Netivot Olam, in the yeshiva where I studied—also a student very attached to Rabbi Shmuel Rozovsky. He taught us a certain tractate—I always thought it was Sukkah, but then I was shown there’s no book of Rabbi Shmuel on Sukkah. The daily lessons, not the general lectures. The first volume of Rabbi Shmuel’s lessons came out around that period, when we were studying that same tractate—say Beitzah, I don’t remember anymore which tractate it was. Okay? And suddenly I saw that his lessons—I think I said this, I don’t remember already—looked exactly the same. He was simply copying Rabbi Shmuel. Uncomfortable. He didn’t say that he was saying it in Rabbi Shmuel’s name. He presented it as his own class. So we didn’t know what to do, but I decided to gather courage, approached him, and said to him: Rabbi, do you know that Rabbi Shmuel’s lessons on the tractate—say Beitzah for argument’s sake—have been published? He said: no, no, I hadn’t heard, yes, interesting—what did you find there? And I told him: the truth is that we see a really surprising similarity to the classes you give; it really looks one-to-one. Then his eyes lit up with happiness, my maggid shiur. He said to me: look, I’ll tell you—I did not study this tractate with Rabbi Shmuel. I did not study it with Rabbi Shmuel. I just said these lessons on these passages on my own, and they are exactly the lessons Rabbi Shmuel gave on these passages. And I did not study them with him. It was just that the structure had entered him so powerfully. It was amazing. So powerful.

He said: never in my life did I hear what Rabbi Shmuel says on these passages, but he gave exactly the same lessons, exactly. The resemblance is astonishing. People were really embarrassed; it was uncomfortable to tell him because it was obvious he was copying everything. No, he copied nothing. He had never heard it from Rabbi Shmuel. Which is a classic expression of what I said earlier: if you are sufficiently skilled in this analytical gymnastics, then you’ll say the same class on all passages and you’ll say it in the same… yes, like Rabbi Shmuel. I’m exaggerating a bit, obviously talent matters too, but you can have mediocre talent—if you work hard, you’ll become a magnificent rosh yeshiva. And that’s only in Ponevezh. I mean, not only in Ponevezh, there are other yeshivot too—but in the structured yeshivot. Not in Slabodka. Okay? There it won’t happen.

At one point I wanted to go study in the Chazon Ish kollel for a certain period. After Ponevezh I was there a bit and then the Chazon Ish kollel. So they warned me. They told me: listen, you won’t manage there—I’m from the Ponevezh school—and you won’t manage there, it’s a totally different world. You won’t get along with them. I chuckled to myself under my breath: two frogs living in a puddle and thinking it’s the Pacific Ocean. What difference can there be between Ponevezh and Slabodka? Okay, what can there be? Everyone wears the same suits and says roughly the same things. I got there—and therefore I didn’t manage. I didn’t manage; it didn’t work that way. These are people who come from the Slabodka wing, like the Chazon Ish: “it seems to me like this, and here a bit more, and here a bit less.” All the structured, analytical thinking, with practical implications, with construction, with rigid and orderly logical structures—none of that was there. Everything was maybe like this, maybe otherwise, maybe a bit more, maybe a bit less. So loose, so unstructured—it was unbearable for me. So that strengthened a bit more in me the insights I described to you earlier.

Okay, the next stage—I see we don’t have so much time left, so I’ll only begin. I want to continue with this issue and move in a direction that examines a bit the meaning of guilt-offerings. We’ll see how this relates to what I’ve been talking about until now. Guilt-offerings, say, as opposed to sin-offerings. Both basically come for a sin. There are sins for which a guilt-offering is brought, and sins for which a sin-offering is brought. What is the difference? Why for these is there a guilt-offering and for those a sin-offering? What distinguishes the offerings brought as guilt-offerings from the offerings brought as sin-offerings?

On this matter there is a Nachmanides, a commentary on the Torah, that tries to explain it. I’m not sure how much I buy what he says there. In principle, when we describe the guilt-offerings from a bird’s-eye view, there are basically three groups of guilt-offerings. Later it will be clear why this relates to what I said until now, okay? Right now I’m dealing with guilt-offerings. There are three guilt-offerings that come for sin—these are guilt-offerings for sin. One of them is the guilt-offering for misuse of consecrated property: one who misuses consecrated property must bring a guilt-offering. The guilt-offering for robbery—that is, false oath regarding a deposit: one who denies under oath possession of money that isn’t his must bring a guilt-offering. It’s not just someone who robs; it’s called the guilt-offering for robbery, but it refers to one who falsely denies a deposit under oath, fine, and it turns out he lied. So that is the guilt-offering for robbery—if they claim from you wages, a lost object, robbery, whatever, whatever they claim from you, and you swear it’s not with you and then it turns out you lied. And the guilt-offering for the designated maidservant. One who has relations with a designated maidservant is also liable for a guilt-offering. Those are three guilt-offerings that come for sin.

There are two guilt-offerings that come for purification: the Nazirite’s guilt-offering and the leper’s guilt-offering, which are not guilt-offerings brought for sin, at least in the simple sense, but are part of the purification procedure. For a Nazirite who became impure or for a leper, part of the purification is bringing a guilt-offering. The Talmud in Shevuot says that the Nazirite does not bring a guilt-offering for sin; it is not a guilt-offering for sin.

And the third type is the provisional guilt-offering. A provisional guilt-offering is really also a guilt-offering for sin; it is brought for a doubtful transgression. One who committed a doubtful transgression brings a provisional guilt-offering. What kind of doubtful transgression? One whose intentional violation carries karet and whose inadvertent violation requires a sin-offering. So if you violated it in doubt, you bring a provisional guilt-offering. If afterward it turns out that the doubt was indeed realized, then you go back and bring a sin-offering, because you committed that prohibition inadvertently—but when it was doubtful, you didn’t know. You didn’t know whether you were liable for a sin-offering, so in the meantime you bring a provisional guilt-offering. Fine—that is the third type of guilt-offering.

Now, what distinguishes all these contexts? Why in all these cases do we bring guilt-offerings, and how is this different from the transgressions for which sin-offerings are brought? So Nachmanides in his commentary to the Torah says: “This offering is called asham, guilt-offering, as in ‘by the sacred shekel for a guilt-offering,’ and it has not been clarified what reason there is that one offering is called chatat, sin-offering, and another is called asham, guilt-offering, when all of them come for sin.” They all come for sin. So why is this called a sin-offering and that called a guilt-offering? “And one cannot say it is because of the severity of the sin, for behold, the leper brings two offerings, one called a sin-offering and the other called a guilt-offering. And it appears to me that the name asham indicates a grave matter, for which the doer becomes desolate and lost through it,” from the language of “hold them guilty, O God” in Psalms, “the dwellings of the wilderness were desolate,” and similarly “Samaria shall be desolate, for she rebelled against her God,” and similarly “we are guilty,” and so on. “And chatat indicates something that strayed from the path,” from the expression “and not miss” by a hair’s breadth. You deviate from the path, and for that you bring a sin-offering. Asham, guilt-offering, is some sort of desolation that you brought into the world—asham from the language of desolation. “And behold, the guilt-offering for robbery and the guilt-offering for the designated maidservant, because they come even for intentional sin, their offering is called a guilt-offering; likewise the Nazirite’s guilt-offering. And the guilt-offering for misuse of consecrated property, although it is for inadvertence, because it concerns sacred property of the Lord, its offering is called a guilt-offering, for the sin is great and he becomes guilty through it, as it is called misuse.” Fine. Then he explains the provisional guilt-offering: because its owner thinks he has no punishment, since it is not known that he sinned, Scripture was stricter with his doubt than with certainty, and required a ram worth shekels of silver, whereas if his sin had been known he would have brought a cheaper sin-offering. And it is called a guilt-offering to say that it is at two sela’im like the severe guilt-offerings. In short: a collection of explanations, not very convincing, I must say. But inside his presentation there are some distinctions that are worth using.

First, he says that a guilt-offering is brought for intentional sin. Sin-offerings are brought only for inadvertence. A guilt-offering is brought for intentional sin, except for the guilt-offering for misuse of consecrated property. That one is specifically for inadvertence. Misuse of consecrated property is only when one misuses it inadvertently. If one does so intentionally, there is no guilt-offering for misuse. But the other guilt-offerings are brought even for intentional sin. Now, this concept of desolation—he says asham is from the language of desolation, you created some kind of desolation here and for that you bring the guilt-offering. The sin-offering is for the fact that you sinned, that you committed the transgression; for that you bring the offering on the sin you committed.

I want to start specifically with this issue of intentionality—that a guilt-offering is brought for intentional sin. This appears in several places. There is a Mishnah in Keritot 9: “And these are brought for intentional sin as for inadvertence: one who has relations with a designated maidservant brings the guilt-offering for the designated maidservant, a Nazirite who became impure, and an oath of testimony and an oath regarding a deposit.” Fine? So all these guilt-offerings are basically brought for intentional sin just as for inadvertence. There is no difference between intentional and inadvertent. Okay? The sliding-scale offering is called in the Torah an asham even though it is not really a guilt-offering, but never mind—that’s because it comes for intentional sin, so it is called asham. Okay? So you see that the fact that the offering comes for intentional sin contains something essential regarding the guilt-offering. Although, I remind you, as Nachmanides notes, there is one exception: the guilt-offering for misuse of consecrated property. That one comes specifically for inadvertence, only for inadvertence. The other guilt-offerings come for intentional sin just as for inadvertence. Fine? I think this is the key to trying to understand what exactly the difference is between a guilt-offering and a sin-offering.

In order to understand this common denominator, I’ll actually give away the end first, and afterward we’ll see by going through the guilt-offerings one by one how it works within them. What distinguishes something that is brought for intentional sin just as for inadvertence? Remember for a moment what we discussed at the beginning with the Torah portion of Mattot, for example—he intended to eat pork and ended up with lamb, or he intended to eat lamb and ended up with pork. When I tell you that someone is liable for something whether he acted inadvertently or intentionally, what does that say about the character of the transgression? Or what does it mean that I don’t care whether it was inadvertent or intentional? Right? If you say you don’t care whether he acted inadvertently or intentionally, then basically I’m saying I don’t care about the degree of his criminality; I care about what happened. What happened. In other words, you did something, and desolation occurred, as Nachmanides says. Desolation occurred—this is some kind of result in the world. Desolation occurred, and for that you bring a guilt-offering, no matter whether it was intentional or inadvertent.

By contrast, the sin-offering is brought only for inadvertence. Why? Because if you acted intentionally, then you cannot gain atonement through a sin-offering; you need to receive the actual punishment—karet if the intentional offense incurs karet, or lashes; “those liable to karet who were lashed are exempt from their karet,” but you need to receive punishment if you acted intentionally. If you acted inadvertently, punishment is not due to you, but in order to gain atonement you bring a sin-offering. So a sin-offering is basically brought for the sin of the person. Therefore, if he acted intentionally, he is too guilty; a mere sin-offering does not suffice. He needs to receive punishment. But if he acted inadvertently, then it is negligence—not really guilt, not really criminality, but negligence; he should have been more careful. That degree of guilt resting on the person, on the individual, requires a sin-offering. Therefore it is only for inadvertence.

With the guilt-offering it is not a question at all how guilty you are. The point is not whether you are guilty or not guilty. Therefore I don’t care whether it was intentional or inadvertent. The question is: what did you do? There is a result. So basically the sin-offering versus the guilt-offering reflects those same two things we talked about earlier. I’m already closing the circle. The guilt-offering is brought for the result of the act, for the problematic element in the transgression that lies in the result—what happened. Okay? It basically repairs the desolation caused by the transgression. The sin-offering is brought for the sin in the person, the missing-the-mark, as Nachmanides says, because you, the person himself, are at fault here; he sinned. And since he is at fault—guilty here sounds like asham, but no, asham here means desolation, not guilt—so since he is at fault, his criminality is atoned for through a sin-offering. That is the difference between a sin-offering and a guilt-offering. The sin-offering addresses the question whether you rebelled against the command. Therefore it depends on whether it was inadvertent or intentional—how guilty you are as a person. The guilt-offering is brought for the result, for what happened as a result of what you did, regardless of the person, how wicked he is or how guilty or negligent or whatever he may be. A result occurred, and the guilt-offering will erase it or repair it. The guilt-offering comes for what happened. Therefore with a guilt-offering I don’t care whether it was intentional or inadvertent, because it happened either way. And the sin-offering is brought only for inadvertence, because in intentional sin you need to receive actual punishment.

So that is the general principle. Now we—well, not now, it’ll be next time—but I’ll begin to go through all the kinds of guilt-offerings, or at least the guilt-offerings for sin. The Nazirite and the leper are less significant, but all the guilt-offerings for sin—I’ll try to show you this one by one. There are no misses. There isn’t one type of guilt-offering where I can’t show you that this is exactly it. All of them, to the last one. Okay? So I’ve already closed the circle now, just so we won’t be left in the middle, but we’ll close it at the end as well. Okay, let’s stop here.