Analytical Talmudic Thinking – Lesson 9

Table of Contents

• The framework of person and object in commandments, transgressions, and vows
• The difference between a sin-offering and a guilt-offering
• Mapping the types of guilt-offerings and focusing on guilt-offerings for sin
• The guilt-offering of a designated maidservant as payment for “intruding into another domain” without a formal transgression
• “Acting treacherously against him” as a foundation not dependent on knowing the prohibition
• The guilt-offering for misuse of sanctified property as an exception that reinforces the principle of outcome
• The blessing over enjoyment as a framework of misuse of sanctified property without a formal command
• Misuse in konamot as stemming from the object-status law in a vow
• The guilt-offering for theft as a repair for intrusion into another’s monetary domain and not as punishment for the prohibition
• The provisional guilt-offering, doubts, and Maimonides
• Torah-level doubt, “do not deviate,” and rabbinic prohibitions as a dimension of obedience alone
• Conclusion and implication for purity-related guilt-offerings

Summary

General overview

The text presents a framework of two aspects in every commandment and every transgression: the dimension of the person, meaning obedience or rebellion against the command, and the dimension of the object / reality, meaning an objective result in the world because of which the act is defined as a commandment or a transgression. From within this framework, it argues for a fundamental distinction between a sin-offering and a guilt-offering: the sin-offering atones for the person and for the degree of criminality, and therefore distinguishes between inadvertent and intentional action; whereas the guilt-offering is aimed at repairing a “result” in reality, and is therefore characterized by applying equally to inadvertent and intentional cases, and can even apply where there is no command and no formal transgression at all. It then argues that the exception of the guilt-offering for misuse of sanctified property, which applies only in inadvertent cases, does not contradict this but actually reinforces it, because the result that creates liability there occurs only in an inadvertent case according to the laws of misuse, and not because the guilt-offering depends on the question of command. The text goes through the different types of guilt-offerings—designated maidservant, misuse of sanctified property, theft, and the provisional guilt-offering—and shows again and again that the guilt-offering comes for the blurring of boundaries and intrusion into a domain that is not yours, and for the “desolation” in reality, in Nachmanides’ language, and not for the transgression itself as a dimension of rebellion against the command.

The framework of person and object in commandments, transgressions, and vows

The text states that every commandment or transgression has a law in the person—obedience or rebellion against the command—and also a dimension in the object or in reality—objective benefit or damage that defines the act as a commandment or a transgression. The text brings vows as an example where the Talmud defines vows as a law in the object and oaths as a law in the person, and emphasizes that even in vows, the law in the object is not the whole story, because commandments are imposed on people but rest upon a legal status in the object. The text cites the Ran on tractate Nedarim 16, who says that in a vow there is both a law in the person and a law in the object, so that when a person forbids a loaf to himself, there is both a status of prohibition on the thing itself and also a personal prohibition of “he shall not profane his word.”

The difference between a sin-offering and a guilt-offering

The text argues that the sin-offering is brought for the sin of the person and for the degree of criminality, and therefore depends on the distinction between inadvertent and intentional action, because intentional action is frontal rebellion against the command, while inadvertent action is a lesser level of wrongdoing that can be atoned for. The text argues that from the standpoint of the result in the world, there is no difference between inadvertent and intentional action, and therefore the very fact that the sin-offering distinguishes between them shows that it is not aimed at the result but rather at the person’s standing vis-à-vis the command. It presents the guilt-offering as a sacrifice whose characteristic is that it is brought equally for inadvertent and intentional cases, and concludes from this that the guilt-offering comes to repair, cleanse, or purify the result in reality that was created by the act, and therefore does not depend on the question of rebellion against the command, and can even appear in cases where there is no command at all.

Mapping the types of guilt-offerings and focusing on guilt-offerings for sin

The text lists two purity-related guilt-offerings, those of the nazirite and the metzora, and sets them aside. It defines the guilt-offerings for sin as including the guilt-offering for misuse of sanctified property, the guilt-offering for theft, and the guilt-offering for a designated maidservant, and adds the provisional guilt-offering as another type, brought in a case of doubt regarding something whose intentional violation incurs karet and whose inadvertent violation requires a sin-offering. The text emphasizes that the guilt-offering for theft is not for every theft, but specifically for a false oath regarding a deposit, when money is claimed from someone and he swears that it is not in his possession, and it turns out that he lied.

The guilt-offering of a designated maidservant as payment for “intruding into another domain” without a formal transgression

The text presents the designated maidservant as a case where, according to most views, the man who has relations with her is not even in violation of a prohibition, and nevertheless he brings a guilt-offering, and it presents this as an example of a guilt-offering that comes without a command and without a formal transgression. The text cites the Pnei Yehoshua on tractate Gittin 43, who explains why the rule of “the wife of two dead men” does not apply in the case of a designated maidservant as well, and formulates that the inability of betrothal to take effect can stem not only from the severity of a forbidden sexual relationship but also from the fact that she is “in the domain” of a prior master, and therefore “she has no legal capacity to accept betrothal from someone else.” The text strengthens this distinction using Maimonides in Laws of Kings chapter 9, where he connects the act of Shechem to “theft,” and explains that in many cases of relations with a woman who belongs to another domain, there is a dimension of trespass into another domain and a conceptual kind of theft that does not depend on the halakhic structure of sexual prohibition. The text argues that the guilt-offering of the designated maidservant is brought for the factual dimension of entering territory that is not yours and for the “violation of someone else’s domain,” and adds a broader claim that were it not for kim lei bid’raba minei, one could have said that in every case of a married woman there would be room for a guilt-offering on the dimension of “theft” in addition to the punishment for the sexual prohibition.

“Acting treacherously against him” as a foundation not dependent on knowing the prohibition

The text cites the Maharik as brought by the Rema in Even HaEzer, who rules that a woman who committed adultery willingly but “did not know whether the matter was prohibited” is not considered inadvertent in a way that would permit her to her husband, because she intended “to act treacherously” against her husband. The text concludes from this that her prohibition to her husband does not stem from the formal prohibition itself, but from damage to the reality of the marital unit and to the sanctity of the relationship, and that the distinction between an error in law and an error in fact changes the laws governing her status vis-à-vis her husband because the focal problem is “misuse” as a breach of boundaries. The text connects this to the Talmudic statement in tractate Kiddushin 7 about “sanctity spread through all of her,” and presents betrothal as having a dimension of sanctity, so that “and she acted treacherously against him” is read as harm to the sanctity of the bond and not merely as a formal transgression.

The guilt-offering for misuse of sanctified property as an exception that reinforces the principle of outcome

The text presents the guilt-offering for misuse of sanctified property as an apparent exception, since it applies specifically in an inadvertent case, but argues that the reason lies in the laws of misuse themselves, according to which transfer into non-sacred status occurs only in an inadvertent case. The text explains that in an intentional case “the object does not leave sacred status,” and therefore there is “one misuse after another,” whereas in an inadvertent case the object leaves sacred status, and thus the real-world result is created that generates the guilt-offering. The text states that the guilt-offering is not brought for the prohibition, since the prohibition of misuse exists in an intentional case as well, but rather for the result of “removing something from the domain of the Most High into ordinary use,” and therefore the fact that the guilt-offering for misuse is limited to inadvertence actually reinforces the thesis that the guilt-offering depends on result and not on degree of criminality.

The blessing over enjoyment as a framework of misuse of sanctified property without a formal command

The text cites the Talmud in tractate Berakhot, which says that anyone who benefits from this world without a blessing has “committed misuse,” and cites the students of Rabbenu Yonah, who define the source as an asmachta but write that someone who does not know the laws of blessings “would become liable for a misuse-offering.” The text raises the difficulty that this would involve bringing non-sacred animals into the Temple courtyard, and presents the Pnei Yehoshua, who asks why, if the conclusion is merely “reasoning,” the obligation is not Torah-level, based on the principle that “something derived by reasoning is Torah-level.” The text argues that the obligation can be understood as intrusion into the domain of the Holy One, blessed be He, and taking without permission, a kind of theft that does not depend on a formal command but on a structure of real-world delimitation, and therefore a guilt-offering can fit even when the halakhic system defines blessings over enjoyment as a rabbinic obligation. The text adds that one who says “by whose word all things came to be” is released “from misuse” even if he did not fulfill the proper blessing formula, because the repair here is obtaining permission and not resolving a formal “transgression.”

Misuse in konamot as stemming from the object-status law in a vow

The text presents the Talmud’s and Maimonides’ ruling that there is “misuse in konamot,” and cites the Mishneh LaMelekh, who asks what the source is for such an obligation and how one can bring a sacrifice without an explicit command. The text uses the Ran’s point that a vow includes both a law in the person and a law in the object, and explains that the lashes for “he shall not profane his word” deal with the personal dimension of desecrating one’s speech, while the guilt-offering comes for intrusion into the prohibited object-status created by the vow. The text emphasizes that this is not “sanctity” but a delimitation of domain created by speech, and misuse in konamot means entering a domain that was defined as off-limits for the one who made the vow.

The guilt-offering for theft as a repair for intrusion into another’s monetary domain and not as punishment for the prohibition

The text argues that in theft there is the prohibition of “do not steal,” but there is no punishment of lashes because it is a prohibition linked to a positive command, namely “and he shall restore the stolen item that he stole,” and therefore the guilt-offering does not come as atonement for the prohibition but as a repair for the very intrusion into another person’s domain. The text cites the question of the Marei Shen about why in a case of certainty against uncertainty we do not extract money despite the concern for theft, and cites Rabbi Shimon Shkop in Shaarei Yosher, Gate 5, who places the prohibition of theft on the level of “the law of justice” that precedes command, in which the laws of ownership and the legal prohibition against taking define the boundaries even before “do not steal.” The text suggests that the guilt-offering for theft is limited to a false oath regarding a deposit because this is a situation in which there is no “act of theft” like “and he stole the spear,” but only possession and denial under oath, and therefore what mainly remains is the dimension of money being in your possession when it is not yours, and the blurring of the monetary boundary that creates liability for a guilt-offering.

The provisional guilt-offering, doubts, and Maimonides

The text presents Maimonides’ position that a Torah-level doubt is treated leniently on the Torah level and stringently only on the rabbinic level, and criticizes the later gloss that adds to Maimonides, “and nevertheless, something whose intentional violation incurs karet, its doubtful case is prohibited by the Torah,” in order to explain how the provisional guilt-offering is possible. The text argues that the difficulty arises only from the assumption that a guilt-offering requires an actual transgression, and concludes that there is no need for a transgression in order to obligate a guilt-offering, because the guilt-offering comes for “entering the house of doubt” and for blurring boundaries, as Rabbi Shimon Shkop says when he proposes two models of doubt: either lack of protection if it turns out there was a prohibition, or a prohibition on entering the zone of doubt itself. The text explains that the provisional guilt-offering fits the general structure of the guilt-offering as repair for a result and for a dangerous real-world risk, and not as atonement for rebellion against a command, and therefore even if there is no formal Torah prohibition in a case of doubt according to Maimonides, there is still room for a guilt-offering as a response to entering dangerous territory.

Torah-level doubt, “do not deviate,” and rabbinic prohibitions as a dimension of obedience alone

The text raises Nachmanides’ question against Maimonides in his glosses to the first root, that if rabbinic prohibitions are based on “do not deviate,” one should seemingly be stringent in cases of doubt just as with Torah-level doubt. The text proposes an analysis according to which in rabbinic prohibitions there is no inherently problematic “result,” but only a dimension of obedience, and therefore “rebellion against a doubtful command is not rebellion,” and that is why we are lenient in a rabbinic doubt. The text concludes that the stringency in Torah-level doubt stems from concern over the essential result involved in the prohibition and not from the dimension of obedience, and therefore the provisional guilt-offering is understandable as a systematic continuation of the idea that the guilt-offering comes for the result and for blurred boundaries, and not as atonement for the person in the way a sin-offering does.

Conclusion and implication for purity-related guilt-offerings

The text concludes that all the examples—designated maidservant, misuse of sanctified property, the blessing over enjoyment, konamot, theft, and the provisional guilt-offering—show that the guilt-offering is not brought for a formal transgression but for the result and for the “desolation” created by blurred boundaries and intrusion into a domain that is not yours. From this it suggests that the purity-related guilt-offerings of the nazirite and the metzora are not necessarily different in essence either, because they too can be understood as guilt-offerings of cleansing and purification of a problematic state, and not as sacrificial atonement for the wrongdoing of the person. The text closes with a notice about a make-up lecture that is not mandatory and about the end of the semester.

Okay, last time I spoke a bit about the guilt-offering. I started talking about the guilt-offering and what characterizes it, especially in contrast to the sin-offering—what the difference is between them. And I prefaced it so that we could understand the framework of the discussion, following what I said before, that every commandment or transgression in Jewish law has two aspects. One aspect is the law as it applies to the person—the obedience or rebellion against the command. And the second is an aspect you might call the objective reality itself. In reality itself there is some benefit because of which this commandment is defined as a commandment, or some harm if the transgression is defined as a transgression. So if someone eats pork, then first, he is rebelling against the command, and second, he is also apparently causing some sort of damage because of which we were forbidden to eat pork. Damage to the person, damage to the world, I don’t know what, to the eternal order of the world. These two aspects—I brought various implications and sources for this—exist in every commandment and every transgression. There’s an interesting point here by way of analogy from tractate Nedarim, right? We know that the Talmud at the beginning of Nedarim says that vows are a law in the object, while oaths are a law in the person. Right, object and person are not inventions of Rabbi Chaim; it appears here in the Talmud. Whether it means the same thing or not probably depends on different disputes, but that’s what the Talmud says.

Now, regarding vows, which are a law in the object, the standard understanding is that a vow creates some kind of legal status in the thing, a status that applies to the thing itself. But it’s obvious that the status in the thing itself is not the whole story. Meaning, okay, there’s a status in the thing itself—and so what? Commandments are not imposed on things; commandments are imposed on people, right? Rather, a commandment imposed on a person begins with the fact that there is something in the object itself. By contrast, laws in the person are commandments imposed on the person that don’t have some basis in reality as such; they are, let’s call it, a floating norm. A norm that is not rooted in the world—it floats; it applies directly to the person, he is forbidden or permitted something.

For example, there is a Ran on Nedarim 16, when he discusses whether a vow takes effect on an oath, and an oath on a vow, and on a commandment—someone who swears to sit in a sukkah, or someone who vows to prohibit the sukkah to himself. So there the Ran—I don’t remember all the details exactly, I’m only just now recalling it—the Ran says that in a vow there are really two aspects. There is the law in the person and the law in the object. What does that mean? Obviously a vow is also a law in the person, just like an oath; a vow too is a law in the person. But besides the law in the person, there is also a law in the object. Meaning, for example, when I prohibit to myself a certain loaf of bread, then a status of prohibition takes effect on the thing itself, and then when I violate the prohibition, I have violated a prohibition in the object—I damaged the status that rests on the object itself. And besides that I also committed a prohibition in the person: I violated “he shall not break his word,” meaning I violated the command. This already comes very, very close to what I said here: that in everything there is some aspect which is the aspect of the objective result in reality itself, and there is the dimension of obedience or rebellion against the command.

We’ll later see another implication of this in the contexts of a guilt-offering, misuse with consecration-style vows, but we’ll get to that shortly. So in this context, why am I mentioning it? Because we spoke two classes ago, and in this context I now want to continue and argue that the difference between guilt-offerings and sin-offerings lies in these two aspects. Meaning, the sin-offering is fundamentally brought for the sin of the person—for the fact that he sinned, that he did something wrong, that he acted against the command. Not every sin obligates a sin-offering, right? Only something for which intentional violation incurs excision—then unintentional violation requires a sin-offering. But sin-offerings are always something that comes to atone for the person. If he acted intentionally, that’s too severe, you can’t atone for it. If he acted unintentionally, then you can atone for it. Something still happened here—it’s not like coercion, it’s not like someone who didn’t commit any transgression at all—but one can receive atonement with a sin-offering. And this offering basically depends on the degree of the person’s criminality, and if he acted unintentionally then he is a minor offender. But if I ask myself what happened in the world as a result of his act, it doesn’t matter whether he acted unintentionally or intentionally—what happened, happened. It happened in the world, it happened in the world. And it happened—you did something that has consequences. Okay? So from the standpoint of what happens in the world, there’s no difference whether you were unintentional or intentional. What happened happened. And if the sin-offering distinguishes between unintentional and intentional, then it’s pretty clear that it is not dealing with what happened in the world, but with the degree of the person’s criminality. Like an unintentional sinner—he didn’t rebel against the command because he didn’t know there was a command. If he acted intentionally, then he is rebelling against the command. That’s a more frontal, more severe transgression.

From this one can understand—and this is where I ended last time—one can understand how the guilt-offering differs from the sin-offering. I brought several sources for this, also from Rashi and from the Mishnahs and Talmudic passages, that a guilt-offering is brought for intentional just as for unintentional acts, except for the guilt-offering for misuse of sacred property, which is brought for an unintentional act. But in general, what characterizes the guilt-offering is that it is brought for unintentional as for intentional acts. That is the essential characteristic of the guilt-offering in several places. Not that by chance there is such a law. That’s how it is defined—as the essential characteristic of the guilt-offering. And then the question arises: what does that say about the essence of the guilt-offering? Why—what does it mean that we do not distinguish between intentional and unintentional?

I suggested that what this means is that the guilt-offering basically does not operate on the plane of the sin-offering. The sin-offering distinguishes between intentional and unintentional because the sin-offering speaks about the degree of criminality of the person. If he acted unintentionally, he didn’t know there was a command—he knew something, but he didn’t know. Fine, so he can be atoned for through a sin-offering. If he acted intentionally, he’s a full criminal, he went against the command, he rebelled against the command, and therefore no offering will help him, no sin-offering will help him. Precisely from that one can understand what characterizes the guilt-offering. The guilt-offering, which does not distinguish between intentional and unintentional—what is it really saying? That it is brought for the result in reality that occurred. That result occurs whether you acted intentionally or unintentionally—that’s what happened. So basically the guilt-offering comes, in some sense, to repair, clean, purify—I’m not sure exactly what to call it—the result that your act created in reality. And therefore it does not matter whether it was intentional or unintentional.

More than that: we’ll also see later that it may be that there is no command at all and we will still be liable for a guilt-offering. It’s not a question of whether I violated the command intentionally or unintentionally—there is no command at all, and yet one is still liable for a guilt-offering. Which sharpens even more this characteristic I mentioned before concerning the guilt-offering: that the guilt-offering is brought for the result, not connected to the question of whether you are rebelling against the command or not rebelling against the command. I said there are guilt-offerings for things that do have a command involved, and guilt-offerings for things that have no command involved, but almost always—or always—the guilt-offerings are not brought for the command even when it exists. There are places where there simply is no command, and then that’s proof: the guilt-offering cannot be connected to the command because there isn’t one. And from that we can also learn that even where there is a command, what the guilt-offering is brought for is the objective dimension, irrespective of the command, even if there is a command.

Another point I mentioned before is that the guilt-offering for misuse of sacred property is exceptional. It is brought specifically for an unintentional act. There it is not true that both unintentional and intentional are treated alike. And that requires explanation. Why really? If the essential characteristic of the guilt-offering is that it does not distinguish between intentional and unintentional, then why is the guilt-offering for misuse of sacred property different? Okay, so those two things we will have to examine.

I’ll just remind you what guilt-offerings we actually have. We are mainly talking about guilt-offerings for sin. There are four of those. There are four guilt-offerings; there are also two guilt-offerings of purification: for a Nazirite and for a leper. I’m leaving those aside for now. But there are three guilt-offerings for sin, regular guilt-offerings for sin: the guilt-offering for misuse of sacred property, the guilt-offering for robbery, and the guilt-offering for a designated maidservant. Okay? And the guilt-offering for robbery is not for every robber, but for someone who swore falsely in an oath regarding a deposit—he is holding money, he is holding property, they ask him to swear regarding the property, and he swears that he does not have that property, okay? And then it turns out that he lied. Not everyone who steals brings a guilt-offering for robbery. The guilt-offering for robbery is brought for the false oath concerning a deposit. That is denial under oath of money that is not his—wages, a lost object, robbery, doesn’t matter. Someone claims money from you and you swear that it is not with you. It turns out you lied; for that you bring the guilt-offering for robbery.

So there is the guilt-offering for misuse of sacred property—that is for misuse of something holy—the guilt-offering for robbery, and the guilt-offering for a designated maidservant. Besides that there is the provisional guilt-offering. The provisional guilt-offering is for something whose intentional violation incurs excision and whose unintentional violation incurs a sin-offering; if there is doubt about it, then the doubtful case requires a provisional guilt-offering. If it turns out that there really was a problem, then you bring a sin-offering, because then there is liability for a sin-offering if it is certain. But if not, then in any case at first you bring the guilt-offering.

Now I want to go through the different guilt-offerings and show you directly within them that… in truth, the suggestion I made earlier is really what characterizes the guilt-offering. So let’s start with the guilt-offering for a designated maidservant. A designated maidservant, right, is a Canaanite maidservant who is married to a Hebrew slave, and she can marry the Hebrew slave—she is his wife—and one who has intercourse with her is liable for the guilt-offering of the designated maidservant. Meaning, she is half maidservant and half free woman, betrothed to a Hebrew slave—sorry, yes—and because she has the status of a designated maidservant, the slave side means this is not ordinary marriage. The slave side is basically a kind of non-Jew, so there is no regular marriage bond there; it is not considered truly a forbidden sexual relation. If someone has intercourse with her, the maidservant is flogged, but the man who has intercourse with her, according to most views, is under no prohibition at all. Not only is he not flogged—there is no prohibition, he does not violate a prohibition, there is no prohibition. Okay? But he does bring a guilt-offering. This, for example, is a case of a guilt-offering brought with no command. There is no command; you did not violate anything. There is no transgression, no command, nothing at all, and you bring a guilt-offering. Now how does that happen? What is its meaning? I’ll try to sharpen things from this and try to understand its significance, and then you’ll see that it appears in all types of guilt-offerings.

So I’ll begin perhaps with Pnei Yehoshua on tractate Gittin 43. This is from an article—I’ll upload it to the site; I don’t know whether I already did, and if not, I will—so you can read it inside. But Rav Chisda says: a woman who is half maidservant and half free woman, who was betrothed to Reuven and then emancipated—“I do not call her the wife of two dead men.” Right? A designated maidservant—what is “the wife of two dead men”? The Talmud says there is no such thing; we do not find the wife of two dead men. What is the wife of two dead men? A woman who could require levirate marriage from two directions, from two husbands. If both died childless, then seemingly she would require levirate marriage from both. Why do we not find the wife of two dead men? Because a woman cannot have two husbands, right? A man can have two wives, but a woman cannot have two husbands.

So Pnei Yehoshua says as follows: this is difficult to me, because now you could indeed find the wife of two dead men in a case where she was not emancipated—they did not emancipate her—and she then went and was betrothed to Shimon. For although Reuven’s betrothal takes effect on her—yes, she is Reuven’s wife—nonetheless, since one is liable for those betrothals only to a guilt-offering, as implied by Rashi’s commentary and as the Or Zarua wrote, then it would seem that Shimon’s betrothal also takes effect on her. For we hold that betrothal takes effect where there are mere prohibitions, and here there is not even a prohibition, only a guilt-offering alone. Meaning, if someone has intercourse with her, what prohibition has he violated? Nothing—there is no prohibition. Not only is this not a forbidden relation carrying excision; there isn’t even a mere prohibition. Now regarding whether betrothal takes effect: betrothal does not take effect in forbidden relations carrying severe liability. In cases of ordinary prohibitions it is a tannaitic dispute—Rabbi Akiva says it does not take effect—but in Jewish law we rule that betrothal does take effect in cases of ordinary prohibitions. A priest and a divorcee: if the priest betroths the divorcee, she is his wife, okay? Meaning she is betrothed to him; he only violated a prohibition and they compel him to divorce her, whatever, but the betrothal takes effect. So betrothal takes effect even where there is a prohibition. So where there isn’t even a prohibition—not only is it not a forbidden relation, there isn’t even a prohibition—then if someone has intercourse with her he has not violated any prohibition, he only needs to bring a guilt-offering and he has violated no prohibition, so now he can betroth her, right? Because having intercourse with her is neither a prohibition nor excision nor anything else; he can betroth her.

And then what happens? Basically, she is the wife of two dead men—she has two husbands—and if both die childless, she could require levirate marriage from both directions. So why do you say there is no wife of two dead men? There is. A designated maidservant who was not emancipated was betrothed to someone else—that takes effect. If she was emancipated, then she is a married woman and that’s impossible; betrothal would not take effect, because then it’s a forbidden relation. But if she was not emancipated, then she still has the status of a designated maidservant; one who has intercourse with her is liable only for a guilt-offering, there is no prohibition, certainly not excision, so the betrothal takes effect. So then why does the Talmud say we do not find the wife of two dead men?

Pnei Yehoshua says as follows: it seems to me that the way to resolve this is that… I once gave this at a conference here on Pnei Yehoshua, where I spoke about Brisk-style sparks in Pnei Yehoshua. Meaning, the style of conceptual analysis—this is a class in a conceptual yeshiva style—so I tried to show that conceptual analysis in the fully modern sense, yes, of Brisk and so on, already appears in Pnei Yehoshua. I said there that the history of thought, the history of ideas, is a very problematic field. Because after you identify an idea or formulate it, right away we’ll find it in another hundred books before you. That always happens. Nobody invents something from nothing. It doesn’t happen. I’m telling you from experience: after I published books in which I thought I had originated something, all kinds of people came to me—“It’s written in Tzadok,” “it’s written in Rabbi Nachman,” “in Rabbi Kook,” each person and his own favorites. And indeed—they weren’t lying or mistaken—you really can see those ideas in various earlier writings. And the question, of course, is to whom do you attribute the idea? Usually, in my opinion, to the one who conceptualized and formulated it. There are all kinds of people who used it intuitively; yes, through analysis one can show that it is really hidden in their words too. But the first one who puts it on the table—let’s say that was Rabbi Chaim—with these conceptual distinctions, which is our subject here, that was Rabbi Chaim. So true, he did not invent the wheel; human thought existed before him too.

As I mentioned at the beginning of the series, Aristotle too did not invent logic in the Organon, even though he is considered the founder of logic. Even before Aristotle everyone knew that if all human beings are mortal and Socrates is a human being, the conclusion is that Socrates is mortal. Aristotle did not invent that. But Aristotle was the first to notice that there is a rule here that can be formulated, conceptualized, and defined—that there is some sweeping rule here, that you can put in frogs and green color in place of human beings and mortality. All frogs are green, Brela the frog is a frog, therefore Brela is green. It is exactly the same structure as Socrates. And once you understand that this is some kind of abstract rule, you basically understand that all those arguments have the same structure and you can treat them all at once, in the same way. They simply share the same structure. You no longer need to deal with frogs or color or Socrates or death or mortality and so on. You only need to analyze the structure. That was Aristotle’s innovation. But the thought itself, the form of logical thought, existed before Aristotle too, of course. But thanks to Aristotle’s conceptualization—I spoke about this—thanks to Aristotle’s conceptualization, we have computers today. He founded logic as a field of study, a field one can actually work in and treat directly. Before him people used logic in other fields—they dealt with science, law, literature, poetics, whatever—and they could use logical thinking. But nobody thought that logical thinking itself was a subject of thought, something one could discuss and identify logical schemes and ask why this is valid and what validity even is, and so on. Aristotle invented that—or conceptualized it. So he invented nothing; he was simply the first to conceptualize and formulate it. And the same is true of Rabbi Chaim. He didn’t invent any of the distinctions he made. Every distinction he made you can find already among medieval authorities (Rishonim), certainly among later authorities. But he was the first to give them names: object and person, sign and cause, obligation and fulfillment, things of that sort.

And what do you do with that? Suddenly you see there is a general pattern here. You can use it in many Talmudic topics. The logic is exactly the same logic. Until Rabbi Chaim, people stated those distinctions in a particular topic—someone would suddenly have an idea: maybe we can distinguish it this way. He never imagined that it was actually a general logical structure which, if available to you, can be used in any topic where you get stuck: you can go through the toolbox and see which of the tools fits your problem. Exactly as with Aristotle’s logic. That is why these ideas belong to Rabbi Chaim, even though they appeared before him—for example, yesterday with Pnei Yehoshua. One of the examples I brought was this example. Because what Pnei Yehoshua says here is this: it seems to me that where we hold elsewhere that betrothal takes effect in cases of ordinary prohibitions, that means ordinary prohibitions in general. But not where the obstacle is the betrothal itself. Aside from that, you cannot find a second betrothal after a first one, because once Reuven’s betrothal has taken effect, she is already in his domain and has no legal capacity to receive betrothal from someone else. So it seems to me.

What is he saying? He says, okay, let’s take—for didactic purposes he speaks of ordinary prohibitions, but I think he should really have spoken about liabilities carrying excision. Why does betrothal not take effect with my sister? Because of the severity of the prohibition, right? A forbidden relation is a death-level prohibition, excision, whatever, so it’s a severe prohibition, and because it is so severe the betrothal does not take effect. With an ordinary prohibition, betrothal does take effect, but with such a severe prohibition it does not. Why does betrothal not take effect with a married woman? An ordinary married woman, not a designated maidservant. Well, yes, the severity of the prohibition—she is one of the forbidden relations. But not only that. There is something else. She is simply someone else’s wife already, she is already taken, she is not on the market. My sister is on the market, she is unmarried. I cannot betroth her because she is my sister, because of the severity of the prohibition. But a married woman I cannot betroth also—these are two separate laws. One is because of the severity of the prohibition, but the other is because she is simply already married; she has no legal capacity to receive betrothal. That, of course, is a legal expression. What he means is: she is not on the market, meaning she already has a husband. What do you want? There is no woman here to betroth; she already has a husband. Okay?

Now what is nice about that is that in every ordinary married woman there are those two reasons why the betrothal does not take effect. What happens with the designated maidservant? In the designated maidservant, the severity of the prohibition is absent—it is not even an ordinary prohibition. From the standpoint of the severity of the prohibition, there is nothing preventing betrothal from taking effect. But someone else’s wife—that is a case where betrothal does not take effect not because, not only because, of the severity of the prohibition. It does not take effect simply because she is not on the market; she already has a husband. That is true also of the designated maidservant. Meaning, if she is the wife of the Hebrew slave, then she is no longer on the market; you can’t betroth her a second time. Not because of the severity of the prohibition. The betrothal does not take effect in her not because betrothal does not take effect in forbidden relations—she is not a forbidden relation—but because she is someone else’s wife.

In her, as we saw with the two laws in previous classes, only one of the two laws that apply in an ordinary married woman appears. In an ordinary married woman there is both the severity of the prohibition and the fact that she already has a husband. In the designated maidservant there is only the dimension that she already has a husband; the severity of the prohibition is absent. In a forbidden relation that is not a married woman—that is the complementary case—you have only the severity of the prohibition, but she still has the legal capacity to receive betrothal, right? Remember the structure I laid out regarding the prohibited labor of building on the Sabbath, Rabbi Zalman on that topic, who says that joining parts together and creating a functional cavity together make up the principal category. One derivative is joining parts without a functional cavity—that’s making cheese. The other derivative is creating a cavity without joining parts—that’s building a tent. Okay? Both are derivatives. I said that the two derivatives are not similar to each other at all, because one resembles the principal category in parameter A, the other resembles it in parameter B, but between themselves they have nothing in common. Yet both resemble the principal category. That is the classic structure of two laws. Here too exactly the same thing.

In a married woman there are two laws why betrothal does not take effect. One law is the severity of the prohibition—she is a forbidden relation. The second law is that she is a married woman, she already has a husband, she has no legal capacity to receive betrothal. She has two derivatives in the conceptual, logical sense. One derivative is the designated maidservant. What happens there? You don’t have the severity of the prohibition, but she is someone else’s wife. Betrothal won’t take effect because of parameter A: she is someone else’s wife. What happens with my sister or another forbidden relation? There you have only the severity of the prohibition; you don’t have the fact that she lacks the legal capacity to receive betrothal, she has no husband, she is unmarried. But you do have the severity of the prohibition—that’s characteristic B. So there are two derivatives, each of which on its own, in this case, is enough for the same result: that the betrothal does not take effect. Sometimes, as I said, the result is generated from the combination of the two features, but sometimes not. Sometimes each feature alone can generate the result, and there are cases where both simply exist. Fine? Then the result applies because of both, but it doesn’t need both. Meaning, if there are cases where feature A exists, and other cases where feature B exists, the same result will still follow. In this case of whether betrothal takes effect, that is exactly what happens.

Okay? Therefore, says Pnei Yehoshua, there cannot be a wife of two dead men even with the designated maidservant, because the second betrothal cannot take effect on her—she is already someone’s wife—even though the prohibition doesn’t truly exist. What does this really say?

There is a Maimonides in Laws of Kings chapter 9. Maimonides says: how are Noahides commanded concerning laws? They are obligated to appoint judges and officers in every district to judge regarding these six commandments. What are the six? Other than laws themselves; laws are the seventh commandment. What are “laws”? To judge concerning the other six commandments, okay? And to warn the people. And a Noahide who violates one of these seven commandments is executed by the sword. And for this reason all the inhabitants of Shechem were liable to execution, because Shechem committed robbery and they saw and knew and did not judge him. And a Noahide is executed on the testimony of one witness and by one judge, without warning, and even based on relatives, but not on a woman’s testimony, and a woman does not judge for them. Fine, those details are less important for us.

What is he actually saying? Why were all the people of Shechem liable to execution? Because Shechem committed robbery and they did not judge him. There is a commandment of legal order: one has to judge offenders. They did not judge him, so he is liable to death because he robbed, and they are liable to death because they neglected the commandment of laws. And Noahides are liable to death for every offense; for every transgression they commit they are liable to death. Fine. The issue of one witness and one judge is a very specific point. What? The witness and the judge—that’s a very specific point. Maybe there were others who saw it, doesn’t matter. Yes, I’m not assuming this really worked according to all the ordinary procedural laws, but the idea written by Maimonides is basically this idea. It’s all anachronistic, of course. But still, this is a halakhic way of looking at what happened there. Fine? Without committing to the claim that historically this is really what happened; probably it wasn’t, if the story happened at all, I don’t know.

Anyway, the wording of Maimonides led the later authorities to raise an objection. What does it mean, “because Shechem committed robbery”? Shechem didn’t rob. He fornicated—I don’t know—she was unmarried, not a married woman, but he did something else. What has robbery got to do with it? Why robbery? The argument is that when you have relations with a married woman, especially by force, then beyond the dimension of adultery, the offense involved, there is also a dimension of invading another person’s domain. You rob. She is effectively in someone else’s domain—not in the property sense; a woman does not belong to her husband. But she is in the husband’s domain, and if you take her there is also a dimension of robbery here, alongside the dimension of the prohibition that a married woman is one of the forbidden relations, like a sister, like any other forbidden relation. So this is really the same duality as Pnei Yehoshua. Because what are we actually saying? That with a married woman there is the prohibition in the halakhic sense—having relations with her is forbidden like all forbidden relations. In addition, there is something beyond the prohibition and beyond its severity: there is a kind of reality. She simply belongs to somebody else, you can’t take her, you are effectively robbing. Like Rabbi Shimon’s legal theory—you are entering a domain that is not yours, so you are effectively a robber.

Now this is obviously not robbery in the simple property sense, because the husband is not the owner of his wife; and in Dinah’s case she wasn’t married at all, maybe she was in her father’s domain, not her husband’s. But clearly she is in someone’s domain; she is not ownerless. This is not robbery in the literal sense, but there is a dimension of robbery here in the sense that beyond the formal halakhic offense, as with any other forbidden relation, there is some dimension not connected to commandments and prohibitions and not to commands. And here there is no severity of prohibition; there is a reality. The reality is that she belongs to another domain, and you cannot enter that domain. Therefore Maimonides calls it robbery.

Now every married woman has that, except that with Dinah there is no severity of prohibition—she was not a married woman—there is only the dimension of robbery. Therefore Maimonides says not because he committed adultery; it isn’t adultery in the halakhic sense, she was not a married woman. But robbery is here. In other words, it’s like the designated maidservant, you see. There is basically a type of woman such that when I force myself upon her, then the problem is not the prohibition—the prohibition is absent—but there is still some problem that does not derive from a command or a formal prohibition. There is simply some factual problem: she belongs to someone else, she is in the domain of someone else—the husband’s domain, or the father’s domain in Dinah’s case—and you cannot enter there. It is a kind of robbery.

Now my claim is that the guilt-offering of the designated maidservant is brought for that aspect, not for the prohibition. For the prohibition there is a death penalty where that exists, and if there is no prohibition, as with the designated maidservant, then there is no prohibition. But there is still the factual dimension of robbery. You are entering another person’s domain irrespective of the religious prohibition in the sense of a sexual prohibition. It is not a sexual prohibition; it really is robbery in the conceptual sense—entering a domain that is not yours, another territory. Okay? And for that you bring the guilt-offering. The guilt-offering is not brought for the offense; it is brought for the reality.

Now I would claim even more: in principle, for every married woman one should have brought a guilt-offering. For the offense one should have received the punishment—death penalty or excision or whatever applies—and for the dimension of robbery in a married woman, not in every forbidden relation, for the dimension of robbery one should have brought a guilt-offering. It’s just that in that case there is a kind of “the greater penalty absorbs the lesser one.” In a regular married woman there is the prohibition, there is the punishment for the prohibition, so they no longer tell you to bring the guilt-offering. In the designated maidservant, where there is no punishment for the offense because there is no offense there, there you really bring the guilt-offering. But in principle it is a guilt-offering for every married woman. Only in every married woman there is this principle of the greater liability absorbing it, or at least another punishment has already been defined and swallows up this element of the guilt-offering. But in the designated maidservant, where there is no punishment for the offense because there is no offense there, for that you bring the guilt-offering.

What do we see? That here the guilt-offering—after all, we saw that in the designated maidservant the guilt-offering is brought where there is no command. Now we see there is no command and also no transgression; the guilt-offering is not brought for that. It is brought for what we might call the factual problem: that you penetrated a domain that is not yours, another person’s territory. For that you bring a guilt-offering, not because of a halakhic prohibition that you violated. It speaks about the result, about what you did. What you did is basically desecrate someone else’s domain. That’s what you did, even though there is no prohibition involved.

It’s problematic to say judges can rule on someone who did not violate a command; he violated reality. Judges won’t rule in that case. In that case it’s because of the prohibition of robbery, not because of adultery. So it’s not really a prohibition. But it is a prohibition—what do you mean? That’s what he’s arguing. No, not a halakhic prohibition; there is no command on this in Jewish law, because taking a woman is not defined as property of the husband. But there is that dimension of robbery in the moral or pre-halakhic legal sense, like Rabbi Shimon’s legal theory. So it’s like ownership that exists before the Torah defines formal legal acquisitions, at the legal layer. In that sense there is robbery here. Yes, legal, moral, however you define it—it is pre-halakhic, meaning before Jewish law. Okay? And that is basically the claim.

For example, Minchat Chinukh in commandment 35 says that if a Noahide comes and has intercourse with a married woman in an atypical way, then he does not violate the prohibition of a married woman, but he does violate the prohibition of robbery. At the end of the day he had relations with another man’s woman. He infers that from this Maimonides. And there are other later authorities too—I brought the Sho’el U’Meshiv and so on. What does that basically mean? It means that here we see, as a first example, that the guilt-offering is brought for an act that is not even halakhically defined as a transgression. Halakhically. Morally, legally, maybe something else. Halakhically it is not defined as a transgression. So for what is the guilt-offering brought? It is brought for the fact that there is some problematic result here. You desecrated the territory or domain of another person. The guilt-offering is supposed to clean, repair, purify that problematic result—that is what Nachmanides called guilt-offering from the language of desolation. You created a kind of desolation in the world; the guilt-offering comes to repair that desolation. So notice that here there is no prohibition at all and yet a guilt-offering is still brought. That means a guilt-offering is not brought for rebellion against a command.

Also in the next examples we’ll see, where there are commands involved, I’ll show you that the guilt-offering does not come for that. It does not come for the command. Here there is no command at all, so it’s the easiest case. That’s why I started here. But in the next examples we’ll see transgressions for which there is a command, and I will still show you that the guilt-offering is not brought for that but for something else.

Actually, one can also mention… yes, the Maharik is cited by the Rema in Even HaEzer. The Maharik says: as for what the Maharil asked, about a woman who committed adultery under her husband willingly, and she did not know that there was a prohibition in the matter—whether she would be considered unintentional. Right? A woman who committed adultery unintentionally does not become forbidden to her husband. If he is a priest, yes, but with an ordinary Israelite, if she committed adultery intentionally she becomes forbidden to both her husband and the adulterer. If she did it unintentionally or under coercion, then she does not become forbidden to her husband. Now he says: the woman did not know there was a prohibition in the matter. So she is unintentional, right? We know that in the chapter Klal Gadol in the Mishnah there are two kinds of unintentional acts. There is an error in law and an error in fact. Okay? In this case it is an error in law. Factually she knew—she knew this man was not her husband. But she did not know that it was forbidden to have relations with someone who is not her husband. So this is an error in law. But an error in law and an error in fact are both still unintentional, right? We know this from explicit Mishnahs.

The Maharik says: in my humble opinion, this woman does not have the status of an unintentional woman so as to permit her to her husband. So says the Maharik, and it is also cited as Jewish law by the Rema. Why? Because she intends to betray her husband and to commit adultery under him. For it does not say “when a man’s wife goes astray and commits a trespass against the Lord,” in a way that would imply specifically intent toward the prohibition. Rather it says “and commits a trespass against him”—not a trespass against the Lord, but a trespass against her husband, as the verse says. What does that mean? The moment she betrays her husband, that is not the prohibition. The prohibition she did not know about, so that part is unintentional. That’s not the point. But you had relations with someone who is not your husband, which means you basically dismantled the marital unit, you betrayed the marital unit. And therefore you become forbidden to your husband.

In other words, the prohibition of a woman to her husband after adultery is not because of the prohibition she violated, but because she committed a betrayal against him. Even where she was unintentional, where regarding the prohibition itself an unintentional act does not prohibit her to her husband if he is an Israelite—but if the unintentionality was an error in law and not in fact, then she does become forbidden to him. An error in fact does not—if she did not know it wasn’t her husband, she thought it was her husband, then she does not become forbidden because she did not intend at all to betray her husband. That’s not the problem. In terms of the prohibition it’s the same prohibition in both cases; both are an unintentional case of a married woman. Okay? On the level of prohibition. But regarding whether she becomes prohibited to her husband as a result of the action, it depends whether it was an error in law or an error in fact.

And again, this means there is another dimension in damaging the marital unit. One dimension is the prohibition involved. The second dimension is the actual damage to the marital unit in reality. In reality she made a desolation; she basically destroyed the marital unit. Therefore she becomes forbidden to her husband, not because of the prohibition involved. A practical difference, for example: a designated maidservant who had relations with someone else in this kind of unintentional way—meaning, she did not know the prohibition, because for her there is a prohibition; for either the man or the maidservant there is a prohibition. So she did not know the prohibition; she would still become forbidden to her husband. Why would she become forbidden to her husband even though there is no prohibition? It is not because of the severity of the prohibition that she violated, as in adultery among forbidden relations, but because she betrayed her husband. Okay? In terms of reality.

By the way, from here too you can see that misuse is not about going against a prohibition, but about reality—blurring a boundary in reality or breaching a fence that exists in reality. That is called misuse. “And commits a trespass against her husband” means that misuse is the breach of a boundary. We will also see that with misuse of sacred property in a moment. But you can already see it here as well. And this parallels what we saw in Pnei Yehoshua and Maimonides and so on: that the connection between a woman and her husband is not only the halakhic connection that creates halakhic prohibitions, but there is also some sort of reality here. They create a certain home, and damage to that reality, even if it is not bound up with a prohibition, has significance—with respect to the woman being forbidden to her husband, with respect to liability for a guilt-offering, and so on.

If I dared, I would say that if a woman did this in such an unintentional way, then there is no death liability upon her, right? She acted unintentionally, so there is no death liability for an unintentional act. But she would need to bring a guilt-offering. A guilt-offering she would indeed need to bring, because in every ordinary married woman—I’m not speaking about a designated maidservant now, but an ordinary married woman—because in an ordinary married woman, the only reason there is no guilt-offering is simply that there is the death penalty and it already covers everything, the greater liability absorbs it. But here, since she acted unintentionally and is not punished with death, it may be that the guilt-offering would arise here. This depends on whether in capital offenses committed unintentionally we apply the school of Chizkiyah, that where an offense carries death liability if done intentionally, then even if one did it unintentionally and is not actually put to death, there is still the principle that the greater liability absorbs the lesser. So it may be that in practice it wouldn’t happen. But on the conceptual level there should have been liability here. One who does not accept the school of Chizkiyah would indeed obligate her here in a guilt-offering.

Okay? And by the way this also shows us that the guilt-offering of the designated maidservant is really a kind of guilt-offering for misuse. These are not two kinds of guilt-offerings. What is the guilt-offering of the designated maidservant? It’s that you basically caused the woman to betray the relationship between herself and her husband irrespective of the prohibition. So the guilt-offering of the designated maidservant is really a guilt-offering for misuse. Okay? For a wife’s betrayal of her husband, not for misuse of sacred property.

By the way, a wife’s betrayal of her husband is also connected to sacredness, as the Talmud in tractate Kiddushin 7 says. The Talmud there says that one who betroths half a woman—then she is not betrothed. The Talmud asks: but if one says, “the leg of this animal is for a burnt-offering,” the sanctity spreads to the whole animal. So also with a woman, if he betroths half a woman, the betrothal should spread to the whole of her. And there they discuss a limb on which life depends, a limb on which life does not depend, and there are distinctions there in the Talmud and in the medieval authorities and so on. But Rabbi Gustman discusses this in his introduction to Kiddushin, and other later authorities too, showing that in betrothal there is a dimension of holiness. It is not for nothing called kiddushin, sanctification. And the laws of sanctity that exist in consecrating an offering also exist in the betrothal of a woman: the same law that sanctity spreads to the whole applies also to betrothal spreading to the whole woman. Meaning there is truly a dimension of holiness here. Therefore it is no accident that the Torah calls it “and commits a trespass against her husband.” To commit a trespass against her husband is to damage the sanctity of marriage.

I brought that Avnei Nezer before, right? The one quoted by his brother’s grandson, Nefesh Yonatan, in the novellae of Rabbi Yonatan Eybeschutz on the portion of Chukat. I think I brought this in one of the previous classes. He said there—about the placenta, right, with the placenta. So I brought that there. And there exactly this is what is written: that basically the difference between… yes, Tosafot says there that the discussion there about the placenta, whether there can be part of a placenta without a fetus or not, in Bava Kamma 11, that discussion is about whether she becomes forbidden to her husband and not about ritual impurity. And therefore it operates according to the ordinary laws of doubt. Because with doubts of ritual impurity there is no difference between a doubt and a double doubt: in a private domain everything is impure, and in a public domain everything is pure. So how can the Talmud distinguish there between a doubt and a double doubt? He says that is only concerning whether she becomes forbidden to her husband; it is not about the laws of ritual impurity.

So Avnei Nezer asks—his brother’s grandson, who published Nefesh Yonatan of Rabbi Yonatan Eybeschutz, brings this below in the name of his great-uncle Avnei Nezer—what do you mean? All the laws of doubt in ritual impurity, in public or private domains, are learned from the suspected adulteress, which is the prohibition of a woman to her husband. And from there we learn that a doubt of ritual impurity in a private domain is impure and in a public domain is pure. So how can you say no, the prohibition of a woman to her husband has nothing to do with ritual impurity? All the laws of doubt in ritual impurity are learned from the prohibition of a woman to her husband. And Avnei Nezer’s answer is that the prohibition of the suspected adulteress to her husband stems from damage to the sanctity of the marital bond, damage to the betrothal. What is the problem in the fact that she strayed? That she committed a betrayal against her husband, that she damaged the sanctity of the bond between them, of the betrothal. When sanctity is damaged, that is the law of ritual impurity. Ritual impurity is what exists when sanctity is damaged.

But the prohibition of a woman after childbirth or menstruation has nothing to do with her husband. She is forbidden to the whole world. What has that to do with her husband? She is ritually impure, and therefore no one may have relations with her, even if she is unmarried. So that is not because the marital bond between them has been damaged; that is not misuse of the sanctity of the marital bond. It is a prohibition like any other prohibition. So this is a prohibition whose basis is not damage to the marital bond. We say she is forbidden to her husband because among all people, who most directly encounters his wife? Her husband. But it is not really a prohibition to her husband; it is a prohibition to everyone. In contrast to the suspected adulteress, who is forbidden specifically to her husband, not to the whole world. Okay? Why? Because there it is damage to the marital bond and betrayal, and therefore the prohibition has the character of ritual impurity, and from there we learn the laws of doubt in ritual impurity in public and private domains. In the prohibition of a woman after childbirth or during menstruation to her husband, there it is simply a prohibition, not connected to sanctity, and therefore a prohibition that does not arise from damage to sanctity has nothing to do with the laws of ritual impurity. Therefore it does not work according to the laws of doubt in ritual impurity in public and private domains.

Of course there is an innovation here, because after all she is impure, also in the sense of ritual purity and impurity she is impure as a woman after childbirth or a menstruant. But this is an innovation already discussed by later authorities: from that Tosafot one sees that impurity and prohibition are two separate laws not dependent on each other. There can be a case where she is impure but not forbidden to her husband, and there can be a case where she is not impure and yet forbidden to her husband. If it is a double doubt in a private domain, then the prohibition to her husband does not exist, because with a double doubt in prohibition one can be lenient. But as for impurity, a double doubt of ritual impurity in a private domain is still impure. So she will be impure but permitted to her husband. If it is a single doubt in a public domain, then she will be forbidden to her husband because it is a doubt of prohibition and a Torah-level doubt is treated stringently, but in doubts of ritual impurity a doubt in a public domain is pure. So she will not be impure, but she will be forbidden to her husband. Okay?

So from that Tosafot, as the later authorities already noted, one sees that although there are two laws—the prohibition of a woman to her husband and ritual impurity—and they seem to come together because she gave birth or because she is a menstruant, they are two independent things. Two results of the same physiological condition, but not that one is the cause and the other the result—that the impurity is the cause and the prohibition is the result of the impurity. No. The prohibition and the impurity are both results of the woman’s physiological condition. And here I’m saying more than that: because they are not dependent on each other, the prohibition receives the legal rules of a doubt of prohibition and not of a doubt of ritual impurity. Where the prohibition of the woman to her husband is the result of damage to the sanctity of the marriage bond or the marital connection, there it receives the legal rules of a doubt of ritual impurity and not of a doubt of prohibition.

Okay? So that’s basically what we’re saying here as well: damage to the sanctity of marriage contains something beyond the prohibition itself. It contains a kind of reality. You are simply dismantling the boundaries that create the home, you are breaching the fences that create the home, intruding into territory that is not yours—that is the desolation spoken of there.

Okay. Now we move to the guilt-offering for misuse of sacred property. As I said at the beginning, it looks problematic. Why? Because it is the only guilt-offering that exists only for an unintentional act and not for an intentional one. And that would seem to be a refutation of the suggestion I made, because I’m claiming that if the act created the result, then that is what the guilt-offering is brought for, whether intentional or unintentional—that’s the whole idea. Because with the guilt-offering there is no difference between intentional and unintentional, I inferred from that that the guilt-offering comes for the result and not for the person’s sin, but rather for the problematic result created by the act. So what happens with the guilt-offering for misuse of sacred property?

Very simple. In misuse of sacred property it is obvious that there is a prohibition both intentionally and unintentionally to commit misuse. What is the difference between intentional and unintentional? That the item becomes desacralized and goes out to ordinary status as a result of the misuse only in the unintentional case. There is no second act of misuse after a first one. Meaning, if you committed misuse, the object went out to ordinary status, so if I now want to commit misuse, it won’t count as misuse because the object is already ordinary. But all that is only in the unintentional case. If the first user committed misuse unintentionally, then the second user does not commit misuse. If the first one acted intentionally, then he did violate a prohibition, but the object did not go out to ordinary status. So there can still be a second misuse after the first. In the intentional case there can be repeated misuse.

What does that mean? It means that in the case of misuse of sacred property, because of the laws of misuse—not connected at all to guilt-offerings or anything else—there is a rule in the laws of misuse that the sacred object goes out to ordinary status only if you misused it unintentionally. If you misused it intentionally, then no—it remains sacred. If so, then it is obvious why there is a guilt-offering for misuse only in the unintentional case. For the guilt-offering does not come for the prohibition. The prohibition exists in both the unintentional and intentional cases. But the guilt-offering does not come for the prohibition. What does it come for? The factual result. What is the factual result? That a sacred object went out to ordinary status—you desacralized it. Once again, intrusion into a domain that is not yours, from the domain of Heaven, and you took it out, made it an ordinary object, a secular object. For that the guilt-offering is brought.

How could it be brought for an intentional act? In the intentional case that does not happen. The factual result does not occur intentionally, only unintentionally. But that is not a law of guilt-offerings; that is a law of misuse of sacred property, namely that only in unintentional misuse does the object go out to ordinary status, not in intentional misuse. The guilt-offering is just a consequence of that. Accordingly, the guilt-offering will exist only for unintentional misuse and not for intentional misuse. So that does not contradict anything. The factual result does not occur intentionally, only unintentionally. But that is not in the laws of the guilt-offering. It is in the laws of misuse. Since the guilt-offering does not come for the prohibition, if it came for the prohibition it would come for both. On the contrary: the fact that the guilt-offering for misuse is brought only for an unintentional act strengthens my thesis; it does not refute it. It shows you once again that the guilt-offering does not come at all for the offense itself, but for the result that occurred. Except that in the laws of misuse, the result that triggers the guilt-offering occurs only in unintentional misuse, not in intentional misuse. That is a law of misuse, not a law of guilt-offering.

The difference—even though in the intentional case there may also be some financial issue. I understand. What result? The object remains sacred. In intentional misuse the result could maybe be some kind of damage? Right. Fine, but he did not make it ordinary. So that does not create the specific result that triggers the guilt-offering. Right. So in my view the difference between intentional and unintentional in the guilt-offering for misuse is actually support for this thesis, and certainly not a refutation of it.

A comment—I’m not sure this is a question—but it’s kind of the reverse of what we said in the case of marriage. Because there he said: since it’s a betrayal, she can’t return to her husband. It’s a kind of reversal. Yes, the link between the guilt-offering and the result is reversed there. Right. Yes, but that is in the laws of marriage, not the laws of guilt-offering. It is in the laws of misuse, not the laws of guilt-offering. The laws of marriage and the laws of guilt-offering are not the same thing. Here precisely I’m saying: what is the cause here? The fact that it goes out to ordinary status because it’s misuse, because something changed in reality? No. Because of the law of misuse: as long as it was unintentional, the object goes out to ordinary status. Once that is so, there is some result here that triggers a guilt-offering. Right, but in the context of marriage it’s exactly the reverse. There in the context of marriage we say because it is a betrayal she becomes forbidden, not that she goes out to ordinary status. She becomes forbidden to her husband. It’s somewhat parallel. Somewhat parallel, yes—but that is in the laws of marriage, not in the laws of guilt-offering. The difference between marriage and misuse is not a difference in the laws of guilt-offering. The guilt-offering is brought for the result. It’s just that in the laws of marriage the result does not operate the way it operates in the laws of misuse of dedicated property. Fine, so what? Not every halakhic context is the same. But the underlying conception of the guilt-offering is the same in both. Where there is a result, a guilt-offering is brought, and the guilt-offering is brought for the result, not for the prohibition.

I’ll give you examples regarding guilt-offerings for misuse. There are two very strange examples over which the medieval authorities struggled, and the later authorities even more so: blessings over enjoyment—where someone eats without a blessing—and misuse regarding consecration-style vows. So I’ll start with blessings over enjoyment. In tractate Berakhot the Talmud says as follows: from where do we derive blessings over enjoyment, that one has to bless before eating? For the rabbis taught: “holy praise to the Lord”—this teaches that they require a blessing before and after. Thus said Rabbi Akiva: it is forbidden for a person to taste anything before he blesses, and so on. It rejects proofs here and there, all the proofs get rejected. Conclusion—there are three points here—conclusion: rather, it is logical: it is forbidden for a person to derive benefit from this world without a blessing. The rabbis taught: it is forbidden for a person to derive benefit from this world without a blessing, and anyone who derives benefit from this world without a blessing commits misuse. What is his remedy? Let him go to a sage. What can a sage do for him? He already committed the offense. Rather, Rava says: let him go to a sage beforehand and let the sage teach him blessings, so that he not come to misuse. Fine, that part is less important for us.

What does this mean? That one who derives benefit from this world without a blessing commits misuse. Okay? How would you understand that? It’s metaphorical, obviously, right? It’s a rabbinic prohibition. Someone who eats without a blessing—the obligation of blessings is rabbinic. It’s not really misuse of sacred property, right? Look at the students of Rabbenu Yonah. “Holy praise to the Lord teaches that it requires a blessing before and after, and this is only an asmachta.” Certainly by Torah law, even the seven species, which require a blessing afterward by Torah law, as it is written “and you shall eat and be satisfied and bless,” do not require a blessing beforehand by Torah law, only rabbinically. So “holy praise to the Lord” is just an asmachta.

Okay? But the students of Rabbenu Yonah continue there: meaning, one who does not know the blessings—in what way can he eat? For if he eats, he will become liable for a guilt-offering for misuse every single time. What do you mean, a guilt-offering for misuse? Just now you said this is rabbinic and just an asmachta. What do you mean, a guilt-offering for misuse? A guilt-offering for misuse means the guilt-offering brought for misuse of sacred property. And they warn him to go to a sage and learn the blessings for every single thing. And the same law applies even if he only knows the blessing “by whose word all things came to be”—that alone gets him out of misuse. If you don’t know the proper blessing, say that one; then you are no longer liable for misuse. As we learned in the Mishnah: for all things, if he said “by whose word all things came to be,” he fulfilled his obligation. He still needs to learn so that he can say the proper blessing for each thing, but regarding misuse he is released even with that general blessing.

Okay? Now what is this? It’s an asmachta, a rabbinic prohibition, and if you violate it you bring a guilt-offering for misuse? That’s unconsecrated slaughter in the Temple courtyard! There is no such prohibition. How can you bring a guilt-offering for misuse if there is no Torah prohibition here, only a rabbinic one?

Pnei Yehoshua says there in that place, the famous Pnei Yehoshua: “rather, it is logical, it is forbidden for a person,” and so on. It appears from the language of all the legal authorities that according to the conclusion here, all blessings over enjoyment are only rabbinic, except for grace after meals alone, which is by Torah law—“and you shall eat and be satisfied and bless.” And in my humble opinion one may wonder, because throughout the Talmud it appears that whatever follows from logic has the force of Torah law. For the Talmud asks, “why do I need a verse? It is logical.” And something derived from logic is by Torah law. So if it is logical that anyone who derives benefit from this world commits misuse, and it is forbidden for a person to derive benefit from this world without a blessing, then it should have the status of Torah law. That isn’t connected to the students of Rabbenu Yonah; he’s asking this on the Talmud itself. Okay? You understand how it connects to Rabbenu Yonah. Moreover, the Talmud asks, “why do I need a verse? It is logical.” And concerning food one blesses before and after, if so he is not deriving benefit from this world without a blessing; after all he does bless afterward, only before he did not bless. That seems to me right, though it still requires further analysis; see the later pamphlet.

What is he basically saying? He does not understand why in cases of doubt concerning blessings we rule leniently. Why are blessings considered rabbinic? If this is based on logic, and the Talmud says “why do I need a verse? It is logical,” meaning logic is a source with Torah-level force, then this should be Torah law. Now the Tzelach, as is known, disagrees with him there, and I think the Tzelach is right. I’m not sure Pnei Yehoshua really means something else; that’s already a separate discussion. But I think what Pnei Yehoshua is basically arguing is that there is a logical obligation to bless before one eats. There is no command for it, okay? But if you ate without a blessing, you basically invaded Heaven’s domain, you derived benefit from this world without a blessing, you took something that belongs to the Holy One, blessed be He, for yourself without a blessing. It is a kind of robbery. Not halakhic robbery. There is no command. Formally it is only a rabbinic prohibition. But you do not need a prohibition in order to be liable for a guilt-offering. A guilt-offering is triggered if there is robbery—like when you rob a woman, where too there is no halakhic prohibition in the case of an unmarried woman, like Dinah. Okay? But you are still liable for a guilt-offering for that. A guilt-offering does not require a transgression.

Here you have an example of something that is not a Torah transgression but only a rabbinic one, and the students of Rabbenu Yonah themselves say: yes, it is a transgression, and still you are liable for a guilt-offering. If you bless with “by whose word all things came to be,” then maybe you did not fulfill the rabbinic requirement fully, but you solved the problem of the guilt-offering. You said a blessing; there is a blessing here. You received permission from the Holy One, blessed be He, to eat, so you are no longer deriving benefit from this world without a blessing. The rabbinic offense you still committed, because they told you to bless this way and not that way. But regarding misuse you are released.

Therefore, in my opinion, if there is doubt about blessings—Pnei Yehoshua asked: in cases of doubt we should be stringent, since this is Torah law. The answer is: yes, he is right, in cases of doubt concerning blessings one should indeed be stringent. Only one should bless without God’s name and kingship. Why? Because even if you bless without God’s name and kingship, you are out of the category of misuse. You did not fulfill the rabbinic laws of blessings, but that’s a rabbinic doubt and therefore lenient. There is no license to say a blessing with God’s name in a case of doubt; a blessing with God’s name in a rabbinic doubt is something we are stringent about—we are not lenient and say it. Okay? But still, you should say: thank you very much, Holy One, blessed be He, I want to eat this thing with Your permission. Okay? That is all you need to say in order to fulfill the Torah-level requirement. If it is a Torah-level doubt, then Torah-level doubts are treated stringently. You need to bless, only not with God’s name and kingship and all the full formal rules, because that part is only rabbinic, and that rabbinic obligation does not override the prohibition of saying God’s name in vain. In the case of doubt you are stringent and therefore do not recite the formal blessing. That has practical legal significance. In cases of doubt concerning blessings, one should say a blessing in one’s own words or without God’s name and kingship. Fine? That is basically the claim.

So here is a first example of liability for a guilt-offering that comes without a transgression. And again, it is the same idea as misuse—it’s a guilt-offering for misuse after all. One who derives benefit from this world without a blessing commits misuse. What does that mean? You entered the domain of the Holy One and took something without permission. Like robbery or misuse or entering a domain not your own, as in the designated maidservant. All the ideas are always this: there is some factual boundary that precedes formal Jewish law. In reality there is some boundary, and you blur it, knock down the fence, and penetrate some realm where you were not supposed to be. For that you bring the guilt-offering. And all the examples we have seen are basically that. It is like misuse, where you desacralize it; and like here, where you take something of God’s without a blessing; and like the designated maidservant, where you enter the domain of her husband; and every married woman really, where you enter the domain of her husband; and so on.

Misuse in consecration-style vows. Another strange, mysterious example of a guilt-offering for misuse, with no source. The Talmud says in several places that one who derives benefit from something he prohibited to himself by a consecration-style vow—what is this? There is misuse in such vows, the Talmud says. Maimonides rules this as Jewish law. There is misuse in vows. How so? One who says, “this loaf is to me like an offering” or “like consecrated property,” and then eats it, commits misuse—even though it is permitted to others. That is called misuse. Yes, sacred property is forbidden to everyone, but this is forbidden only to me. And in the plain sense it is not a holy thing, but if I ate it I committed misuse. Therefore it cannot be redeemed, because it is not sacred property except to this person alone, and so on.

The Mishneh LaMelekh there asks: where does this come from? Are you bringing a guilt-offering? There is not even a hint of this in the Torah. There is misuse in consecration-style vows? The Talmud just says it, without source. It cites no source at all. There is misuse in such vows, full stop. And you have to bring a guilt-offering for misuse? What is this? That’s unconsecrated slaughter in the Temple courtyard. How can you invent offerings? You bring it to the Temple and there is no command in the Torah—this is unconsecrated in the courtyard. The Mishneh LaMelekh remains with the matter unresolved; he does not understand it.

The answer, as I mentioned, is the Ran on Nedarim 16. What does the Ran say? That with vows, although they are a law in the object, there is also a law in the person and a law in the object, right? Regarding the law in the person, if you violated it, you are flogged, right? “He shall not break his word”—a prohibition like any other prohibition, punishable by flogging. So what is the guilt-offering brought for? And a guilt-offering, remember, is brought both intentionally and unintentionally. Fine. So if you are flogged, then what is the guilt-offering for? The guilt-offering is for the law in the object. For the fact that you intruded into the consecrated-vow object. A consecration-style vow is a domain standing on its own; from your point of view it lies outside your bounds. It is not holy. That is why all the later authorities are mistaken when they look for sanctity here—where is the holiness, why does this belong to sanctity, what does it have to do with misuse? It is not holy in any way. Not that it is holy only to me and not to others—it has nothing to do with sanctity at all. But there is a boundary here, like the domain of sanctity. It is a domain that I created with my own mouth by making the vow, and now it lies outside my bounds. When you penetrated the realm that I prohibited to myself, I created that boundary—that is the law in the object, yes, the legal status of prohibition created in the object itself. When you crossed it, I become liable for a guilt-offering. I become liable not because of the prohibition. For the prohibition I am flogged: “he shall not break his word.” For that there is flogging, as usual, like any other prohibition. So what is the guilt-offering? Here there is a prohibition, not that there isn’t, but the guilt-offering is not brought for it. The guilt-offering is brought for the result.

With the designated maidservant there is no prohibition. With blessings over enjoyment there is no Torah prohibition, okay? Here there is a prohibition, but the guilt-offering is not brought for it. For the prohibition there is flogging—“he shall not break his word.” The guilt-offering is brought for the consequential, factual dimension: that you entered a domain that should have been off-limits to you. For that you bring a guilt-offering. A great many questions of later and earlier authorities who get tangled up here simply disappear once you understand the nature of the guilt-offering.

But we’ve only just started. What about the guilt-offering for robbery? Actually, maybe before that: misuse in consecration-style vows and an ordinary guilt-offering for misuse of sacred property are the same idea. But not because there is sanctity in a vow. There are later authorities who say, wait, there must be sanctity in a consecration-style vow because we see there is misuse. No. There is misuse also in the designated maidservant—so is there sanctity there too? What does that have to do with anything? Not because of sanctity, but because there is a bounded realm here. Just as the domain of Heaven is a domain unto itself, so too the vow, since it is a law in the object—as opposed to an oath. With an oath there is no guilt-offering, but with a vow there is. Why? Because vows are a law in the object. What does it mean that vows are a law in the object? That when I make a vow I basically place a fence around the thing. That is the legal status of prohibition I created in the object itself. And if I derive benefit from the thing, then besides desecrating my word—“he shall not break his word,” I desecrated my word—besides that, I also consumed something that is an object of prohibition; I entered a domain not my own. It is not only in the sense that I desecrated my word; I created a fence that I am forbidden to cross. Now, “forbidden to cross” contains the two aspects of the Ran. A: when I cross it, I rebel against the command, I desecrated my word, and the verse says “he shall not break his word”; for that I am flogged. B: I penetrated a domain not my own, irrespective of the command; for that one brings a guilt-offering. Fine? Exactly the same pattern in all the guilt-offerings.

The guilt-offering for robbery: why is a guilt-offering brought for robbery? Robbery does not carry a punitive penalty, right? Because it is a prohibition reparable through restitution, tied to the positive commandment “and he shall restore the stolen item that he stole.” There is no punishment for robbery beyond restoring the stolen object itself. So what is the guilt-offering doing here? I want to make the following claim. In robbery there is of course a prohibition, right—“you shall not steal.” One who violates “you shall not steal” has violated a prohibition. But that prohibition does not carry punishment, because it is tied to restitution—or to the positive commandment “and he shall restore the stolen item that he stole.” A prohibition tied to a positive commandment is not punished. Okay? But there is a guilt-offering. The guilt-offering is not brought for the prohibition. It is brought for the fact that you entered another person’s domain. Robbery is entering another person’s domain. For that the guilt-offering is brought: the entry itself. Factual entry into another person’s domain, not the prohibition involved. The prohibition involved carries no punishment because it is tied to a positive commandment. A prohibition tied to a positive commandment is not punished. Okay? And this is exactly the same pattern.

Now I’ll sharpen it a bit more. There is the famous question of Mahari Basan: why in cases of doubtful robbery are we not stringent? It’s a doubt involving a prohibition. So if in a case of doubtful robbery—for instance, someone claims money from me, okay?—then the burden of proof is on him. He did not meet the burden of proof. Now we are in doubt. Since there is doubt, maybe I am violating the prohibition of robbery—why don’t we obligate me to pay? Of course, what would that help? If I pay him, then he may be violating robbery. We are in doubt as to robbery; there is no decision who is right. Okay? More than that, I myself know that I did not rob. The court is in doubt. The court does not know because it lacks evidence. But I know the facts; I know I did not rob. How can they obligate me to pay? I am not in doubt; you are in doubt. You have a problem—so you pay, why are you coming to me? I claim that I am right.

Therefore he is speaking only about a case of certainty versus uncertainty. If someone claims against me with certainty and I answer with uncertainty, I am the possessor, okay? In Jewish law—that is an amoraic dispute—we rule that certainty versus uncertainty is not enough to remove property from a current possessor. If there is no possessor, certainty wins, but if you are trying to extract from a possessor, then a possessor who says “I am unsure” cannot be dispossessed by someone who says “I am certain.” In Jewish law, yes, there is the dispute of Rav Huna and Rav Chisda, but we rule that certainty versus uncertainty is not enough.

Now here is Mahari Basan’s question. Why? Because when I say “I’m not sure,” I don’t know the facts—I myself am saying that I do not know the facts. So if I am in doubt, why am I not concerned about a possible prohibition of robbery? Okay? Now you’ll tell me: fine, but why pay him? He too is in doubt. No, he is not in doubt—he claims with certainty. So he can take it. Here it would seem natural to say: pay him because of the doubt, in order to avoid the prohibition of robbery, and he can take it because he is not in doubt. That is the question. The question applies only to a claim made with certainty against someone who responds with uncertainty. Rabbi Shimon Shkop already notes this.

But then really, why do we say “the burden of proof rests upon the claimant”? Why, if neither side brought evidence, do we leave the money with the current possessor? Rabbi Shimon Shkop says, in his well-known principle in section 5, that the prohibition “you shall not rob” is different from all the other prohibitions of the Torah. The prohibition “you shall not rob” basically comes to give backing to a legal state that existed even before the Torah. What is called legal law, the theory of law. What does that mean? There are laws of ownership. The laws of ownership determine what belongs to whom. Then comes the prohibition “you shall not rob” and says: if you take someone else’s property, you have violated the prohibition of robbery.

Usually people understand Rabbi Shimon Shkop as though the theory of law establishes property law, and property law is merely a factual determination—this is yours, that is mine—but you can still take what isn’t yours. And then the Torah forbids taking something that, according to property law, is not yours. But that’s not right. Rabbi Shimon Shkop certainly does not mean that, and I don’t think it’s correct in itself either. Rabbi Shimon Shkop means there is also a prohibition against taking it already in the legal order itself. “You shall not rob” adds a Torah-level halakhic prohibition against taking it, but the prohibition exists even before “you shall not rob,” simply by virtue of the fact that it is his. How do I know that this is what Rabbi Shimon means? Because in chapter 2, after saying this in chapter 1, he asks: perhaps you will say, what obligates us to obey something that the Torah did not command? So what if there is this theory of law and all these things—did the Torah command it? If there is no command in the Torah, what obligates me to obey it?

Now I ask you: according to the other reading, is there any point to this question? I don’t need to obey anything if no command is being made. They only tell me: this belongs to me, that belongs to you, and you can still take it. Nobody tells you what to do or not do, so what does “obey” even mean? Obedience exists only on the plane of Jewish law, of Torah law. Once there is “you shall not rob,” then they tell you that you may not take something that belongs to someone else; the Torah must be obeyed. But what does it mean to obey if all this earlier layer does is determine facts of ownership and the prohibition on taking comes only from “you shall not rob”? If Rabbi Shimon Shkop says: wait, what obligates me to obey? then he clearly means that there is a legal prohibition against robbery. It is not merely a property determination. Besides that there is also a halakhic prohibition against robbery, namely “you shall not rob.”

A practical difference, for example: robbing a gentile. According to those medieval authorities who say robbing a gentile is not prohibited by Torah law, it is still prohibited by Torah law. It is prohibited by Torah law in the legal-law sense. It is forbidden to rob them because it is theirs, even though the formal halakhic prohibition “you shall not rob” does not apply there; there is still a legal prohibition to rob them. You can also see this in Rabbi Shimon—it’s another proof that that other reading is wrong regarding him, because he says this too.

By the way, what does he answer? If there is no Torah command, why obey? He gives a wonderful answer, better than the question. He answers like a Jew—he answers a question with a question. Why obey what is written in the Torah? When you ask me why obey what is not written in the Torah, I ask you why obey what is written in the Torah. Everything is logic. Logic says that if the Torah commands, you should obey. Logic also says that there is legal law. Logic is stronger than the Torah. The Torah rests on logic, not that logic needs grounding in the Torah. On the contrary: the reason I need to obey the Torah is because of logic. So if logic can obligate me to obey the Torah, logic can also obligate me to obey the theory of law, the laws of legal order. Fine, that is just in passing; what interests me is the question, not the answer.

So what is written there? That in robbery there are two layers. There is the legal layer that precedes the halakhic command, which establishes ownership law—this is yours and that is mine, this is how ownership is acquired and this is how it is not. Of course from that also follows a prohibition on taking it. It is indeed a prohibition on taking; not just a factual determination that this is yours and this is mine. There is a prohibition on taking something because it is legally yours. On top of that there is a halakhic prohibition by force of “you shall not rob.” For the halakhic prohibition there is no punishment, because it is tied to a positive commandment. But what about the legal robbery? You entered a domain not your own, into property belonging to someone else. For that one brings the guilt-offering for robbery.

Now there is only one question, for which I have a possible suggestion, but for intellectual honesty it needs to be asked. Then why don’t we bring a guilt-offering for every robbery? After all, as I mentioned, the guilt-offering for robbery is brought only for a false oath concerning a deposit. If someone claims money from me and I deny that the money is with me and swear to that, and then it turns out I lied, then I bring the guilt-offering for robbery. But when I physically take your money and violate robbery, I do not bring the guilt-offering for robbery. Why not? I would have expected the same thing there too—what difference should it make?

I think perhaps—and this really is a question—that when I commit the straightforward act of robbery, there is also the prohibition attached to the act of robbery itself. A prohibition attached to the act of robbery is something for which bringing a guilt-offering is not enough to atone; that is dealt with by the heavenly court. But when the false oath regarding a deposit takes effect, you did not actually perform an act of robbery; you merely deny that the money is with you. That is a pure expression of blurring the boundary and dealing with something that does not belong to your sphere. For that one brings the guilt-offering for robbery. When there is also the offense itself alongside it—as with the ordinary married woman, where I said: why don’t we bring the guilt-offering of the designated maidservant in the case of someone who commits adultery with a married woman? Because there they deal with him for the offense of a married woman, and that already covers the guilt-offering. In the straightforward robbery case, you have the offense of robbery. They won’t punish you in an earthly court because it is tied to restitution or to a positive commandment, but they will punish you for it; it is an offense for which you cannot just atone trivially. Therefore there is no point in bringing a guilt-offering. In a place where you did not commit an act of robbery, to the point that it is not even clear that there is a formal prohibition of “you shall not rob,” because the simple model of “you shall not rob” is only when there is something like physically snatching the spear, when you perform a robbery-act—and here you perform no act at all. It came into your hands permissibly; it was entrusted to me, or wages owed, or whatever it is. I am just now denying that it is with me, and denying it under oath. So here there is no criminal dimension for which I will be punished. There is only the problem that money not mine is in my possession. For that one brings the guilt-offering for robbery. Only for that dimension. When there is also an offense there beside it, as with the ordinary married woman, then the guilt-offering is swallowed up in the punishment for the offense. Perhaps that is the explanation, but it’s only a suggestion; I don’t know.

Now we see all along the way—these are really the three guilt-offerings for transgression: the guilt-offering for robbery, the guilt-offering for misuse, and the guilt-offering for the designated maidservant. You see that systematically, in all these guilt-offerings, including the pathological examples under the guilt-offering for misuse—blessings over enjoyment and misuse in consecration-style vows—in all these examples one can see very, very systematically that the guilt-offering is not brought for a transgression. Sometimes there is no transgression at all. Sometimes there is a transgression but it is dealt with by flogging or some other mechanism unrelated to the guilt-offering. The guilt-offering is brought for the consequential aspect, for the desolation you created, as Nachmanides says. Guilt-offering from the language of desolation—brought for the result.

Do the interpreters of blessings over enjoyment say it is by Torah law? Yes, obviously. Why? That’s what Pnei Yehoshua says: why do I need a verse—it’s logical, and if it’s logical then it’s Torah law. There just isn’t a command, so there is no offense in the formal sense because there is no command. But there is a Torah-level wrong here, like the legal law in the case of robbing a gentile. There too there is no formal halakhic offense, but it is still a Torah-level wrong because by Torah law that ownership is his. And ownership means that it is his and you may not take it. That is what ownership means. The formal halakhic prohibition of “you shall not rob” was not said regarding gentiles according to those medieval authorities; there is a dispute among the medieval authorities. But that is the meaning.

Therefore I also think that the two guilt-offerings of purification, of the Nazirite and the leper, can be added to this picture. It is not contradictory, because even the guilt-offerings for sin do not really come for sin. So the guilt-offerings of purification are not necessarily different; they are guilt-offerings that perform some kind of cleansing of something that happened. Even the guilt-offerings for sin are basically guilt-offerings that cleanse; they are not guilt-offerings of atonement in the sense of the sin-offering. The sin-offering atones for the sin of the person. The guilt-offering cleans the result that occurred. Therefore also the guilt-offering of the Nazirite and the leper is a guilt-offering that purifies a problematic state. So all types of guilt-offerings can actually become very close to one another—both the guilt-offerings for sin and the guilt-offerings of purification.

What remains for us, of course, is the provisional guilt-offering. That is the sixth and final guilt-offering. What happens there? The provisional guilt-offering is a very interesting point. There are all kinds of inventions attributed to Maimonides that have no basis—and now you’ll see they aren’t needed anyway. Maimonides’ well-known position is that a Torah-level doubt is treated leniently by Torah law, right? Stringency is only rabbinic. But by Torah law itself, a Torah-level doubt is lenient. That is Maimonides’ view, in dispute with Rashba and other medieval authorities.

So all the later authorities struggle: look at Maimonides in chapter 9 of the Laws of the Impurity of the Dead. He wrote: it is well known that all these impurities and the like that are due to doubt are only of rabbinic force. One is impure by Torah law only when he became certainly impure. And with respect to all doubts—whether in matters of impurity, forbidden foods, sexual prohibitions, or Sabbath violations—they have force only by rabbinic law. Yes? The obligation to be stringent in a Torah-level doubt is only by the rabbis, only rabbinic. And nevertheless—notice, the addition is in square brackets—“and nevertheless, something whose intentional violation incurs excision, its doubtful case is forbidden by Torah law, for one who does it is liable to a provisional guilt-offering.” That phrase does not appear in the original versions of Maimonides. It is an invention of later authorities. They simply inserted it into Maimonides because of the difficulty, very crudely. Apparently before Rabbenu Tam’s ban on emending texts, people thought you could make edits right into the book. Okay? And that’s what they do. They simply insert into Maimonides an addition. Why? Look in Frankel; in the original versions it is not there.

Why did they do it? Because they say: after all there is a provisional guilt-offering for something whose intentional violation incurs excision. How can there be a provisional guilt-offering if there is no transgression? The prohibition is only rabbinic. If a Torah-level doubt is lenient by Torah law, then the offense is only rabbinic. So how can you bring a provisional guilt-offering if there is no transgression? That would be unconsecrated slaughter in the Temple courtyard. They conclude that we must say that in those offenses whose doubtful case triggers a provisional guilt-offering, even Maimonides agrees that their doubtful case is stringent by Torah law, not lenient. That is simply false. False, and there is no need for it at all. Maimonides himself says explicitly “whether in matters of sexual prohibitions or Sabbath violations.” Right? That’s his own example. And they say: every matter whose intentional violation incurs excision, its doubtful case is forbidden by Torah law. I don’t understand. Intentional violation incurs excision? Sexual prohibitions and Sabbath violations both incur excision. And those are Maimonides’ own examples of doubtful cases treated leniently. So how can you stick into his text, in brackets, that things whose intentional violation incurs excision are treated stringently in doubt? In that very same law he says the opposite. The difficulty drove those good Jews out of their minds.

Look in Shev Shema’teta. He brings this and assumes it. Pnei Yehoshua too assumes it. It is obvious to them that things for which there is a provisional guilt-offering are also, clearly, things where even Maimonides agrees that the doubtful case is stringent. Not true at all. They simply don’t understand what a guilt-offering is. A guilt-offering does not require a transgression in order to be brought. There is no transgression here. The doubtful case is treated leniently. But Rabbi Shimon Shkop in section 1 discusses the question: what does it mean that a Torah-level doubt is treated stringently? Stringent rabbinically according to Maimonides, by Torah law according to Rashba, not important now—but what does it mean? Two possibilities.

One possibility: one must be stringent. What does that mean? If it turns out that you ate something forbidden, then you have no defense that you didn’t know, because they warned you that in cases of doubt you must be stringent. Fine? If you didn’t eat something forbidden after all, then you were stringent and nothing happened. But if you ate it and it turns out it was forbidden, you cannot excuse yourself by saying “I was coerced, I didn’t know.” No—they warned you. Even in a case of doubt you have to be stringent, because you might hit an actual prohibition. That is one possibility.

The second possibility: there is a prohibition on entering the house of doubt. That is Rabbi Shimon Shkop’s phrase. Meaning, the very act of taking a risk with something that might be forbidden is itself prohibited, regardless of whether in the end it turns out the thing was permitted. You are forbidden to enter a place where there is doubt whether it is forbidden or permitted. Now his expression is beautiful: a prohibition on entering the house of doubt. Does that remind you of vows? There is a zone that you are forbidden to enter. In this context it is of course virtual, conceptual, but essentially you enter a place you should not have entered. There is no formal offense here, because by Torah law this is lenient. So what prohibition or punishment would there be for this? A guilt-offering. Entry into an area you should not enter, with no formal transgression and therefore no ordinary punishment—that is exactly the situation for which a guilt-offering is brought.

The provisional guilt-offering joins all the previous five guilt-offerings. Exactly the same thing. You do not need a transgression for it. By the way, this comes up further on too regarding a double doubt. There is a dispute—Tosafot and Maimonides and Pri Chadash discuss it—whether one brings a provisional guilt-offering in a case of double doubt. But why not? A double doubt involves no prohibition. So what? Even in a single doubt there is no prohibition according to Maimonides. A guilt-offering does not depend on a prohibition. Pri Chadash asks it as a contradiction. There is no contradiction. Tosafot says that in a case of double doubt one brings a provisional guilt-offering, even though there is no prohibition. So he asks: how can that be? The answer: because you do not need a prohibition in order to have a guilt-offering. It makes no difference. The very fact that you entered dangerous territory, where there was a possible prohibition—even if it is a double doubt such that legally there is no prohibition—you entered the house of doubt, and for that you bring a provisional guilt-offering. There are other implications too.

But what we basically see is that there is no need for all these corrections. Those corrections are invalid to begin with, but they also aren’t needed. Because the only thing that forced them to insert that correction into Maimonides was the assumption that if in a case of doubt there is no prohibition, then how can there be a provisional guilt-offering? And the correction is false. But the reason they thought they needed it does not exist either. So why make a false correction when there is no reason to make it? Besides the fact that it is false. There is no reason to make it. Your whole difficulty does not exist. You assume a guilt-offering needs a prohibition. Not true. A guilt-offering does not need a prohibition; a guilt-offering is brought even without one. Therefore the provisional guilt-offering also belongs to the same category.

And this is permitted—there is no prohibition. Not “permitted,” but no formal prohibition. Fine. But the guilt-offering tells you: still, be careful. Factually you need to be careful, not halakhically. Halakhically it is only rabbinic. But there is a Torah-level dimension here, like robbing a gentile. Meaning, basically there is some concern not to enter there. The Torah does not impose a formal prohibition on it, but there is still something there even before that. And for that you bring the guilt-offering.

Let me sharpen this a bit more. They ask another question about Maimonides. Maimonides says—this is his position against Nachmanides—that every rabbinic prohibition is based on “you shall not deviate.” Okay? A rabbinic prohibition is based on “you shall not deviate.” So all doubtful cases should be treated stringently. If you eat poultry with milk, you have violated the Torah prohibition of “you shall not deviate.” If you have a doubt about poultry with milk, that is a Torah-level doubt, so you should be stringent, right? That is how Nachmanides asks against Maimonides in his glosses to the first root. And there are various answers. But let’s try to see what the analysis we’ve done until now says about this question.

We said that in every Torah prohibition there are two aspects: the aspect of the person—obedience or rebellion against the command—and the problematic result because of which the thing was forbidden. In a rabbinic law there is no problematic result. Poultry cooked with milk is not, in itself, a problematic thing. The only reason the sages prohibited it is lest I come to eat actual meat and milk together, which really is problematic. And regarding poultry with milk, this is the Netivot in section 34, who says that a rabbinic prohibition is only a prohibition of obedience, right? Even according to Maimonides, who bases it on “you shall not deviate.” So true, it is a Torah prohibition in form, but it is a Torah prohibition with only obedience and no substantive essence.

Now what happens in laws of doubt? I ask you: in an ordinary Torah-level doubt, why am I stringent? Because perhaps I am rebelling against the command, or because perhaps there is damage here or a problematic result? Let me prove to you that it’s because of the result. Why? Because with a rabbinic doubt we are lenient. Now according to Maimonides, in a rabbinic doubt too there is a command of “you shall not deviate,” so why are we lenient? Because rebellion against a doubtful command is not rebellion. Thus Rabbi Shlomo Zalman writes in Shema’teta, and Rabbi Shimon Shkop too, in a somewhat different wording, explain it similarly. Therefore in a Torah-level doubt according to Maimonides, even though it ultimately comes out of “you shall not deviate,” we are lenient. Why? Because the obligation to be stringent in doubtful cases is grounded in the concern that you may strike a prohibition, not because of rebellion. Rebellion against a doubtful command is not rebellion. And the proof is that in rabbinic laws, where there is only the dimension of command and not the substantive dimension, if you are in doubt you may be lenient. So that means that in Torah law, why must you be stringent? Not because of the command dimension. In the command dimension, there is nothing troubling there—we see that from rabbinic prohibitions. What there is, is a possibility that perhaps you are damaging the prohibition itself—or in other words, entering the house of doubt, as Rabbi Shimon Shkop defines it. The very act of entering a place where you could strike a prohibition—that entry is problematic, not the eventual violation itself. The eventual violation is the ordinary certainty-case, for which if it becomes clear you bring a sin-offering. The sin-offering is brought for the actual transgression. But for the factual result, for that one brings the guilt-offering, the provisional guilt-offering.

So the provisional guilt-offering basically joins all the earlier guilt-offerings, which are brought not for a transgression but for the blurring of boundaries that should have been preserved irrespective of prohibition. Even where there is a prohibition, the prohibition is dealt with separately, and the guilt-offering is brought only for the… And where there is no prohibition at all, as in the designated maidservant, then of course it can only be this. And we saw that even in places where there is a prohibition, it is not brought for the prohibition but for the consequential aspect. The prohibition is dealt with separately, as with vows: there is the prohibition “he shall not break his word,” for which one is flogged, and that is unrelated to misuse in consecration-style vows. The misuse is for the fact that you entered a domain outside your own sphere, in a vow which is a law in the object, because there is a boundary and you cannot enter there.

Okay, I’ll stop here. Next week’s class is only for whoever wants to come; it’s not mandatory, those are makeup hours. So anyone who wants to make up hours, or anyone who simply wants to learn—that’s also perfectly legitimate—is welcome to come, but there is no obligation. Meaning, if someone already has enough attendance percentage and all those kinds of things, then he doesn’t need to come. I’ll still complete a bit more on this topic in the next class, and we’ll see—maybe we’ll do one more thing too.

All right, that’s it for now. So if someone isn’t coming next week, then this is basically the end of the semester. So I wish you success in the exams, and whoever comes next semester, we’ll meet then too, of course.