Tractate Yoma – Elul 5783 – Lesson 3

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[Rabbi Michael Abraham] Yes, but the punishment is the same; in both cases it’s karet. There is capital punishment on the Sabbath; on Yom Kippur there is no capital punishment. This inference, again, is only an inference with limited force. Fine, one could have raised a few more points here; the Talmud brought one stringency like this and rejected the a fortiori argument. I’m only asking why it didn’t reject it in another way as well. Okay, fine, it’s not a major difficulty. Tosafot often say, fine, it would have been preferable to object in such-and-such a way, or something like that; it’s not such an extreme inference. I mentioned that the existence of a positive commandment—aside from the fact that even if the refutation were correct, the fact that they didn’t bring it is only a questionable inference—but it’s also not clear that the refutation is correct, because as I said earlier, the existence of a positive commandment does not necessarily indicate that the prohibition is more severe. In truth, there is apparently a dispute among the medieval authorities (Rishonim) about a positive commandment overriding a prohibition. Regarding a positive commandment overriding a prohibition, the rule appears in the Talmud that if there is a prohibition and a positive commandment together, then the positive commandment does not override them. Now the question is: when there is a positive commandment opposite a prohibition plus a positive commandment, does it override the prohibition? The prohibition it does override; it’s only because of the positive commandment that it is not overridden. For example, on the Sabbath or on a Jewish holiday there is a positive commandment and a prohibition regarding labor on a Jewish holiday, right? Now women are exempt from the positive commandment, maybe exempt from the positive commandment of a Jewish holiday, because it is a time-bound positive commandment. They have only the prohibition. The question is whether they may burn impure terumah on a Jewish holiday. Because there is a positive commandment to burn impure terumah, and opposite it, from the standpoint of the woman, stands only a prohibition; there is no positive commandment. The question is whether they may or may not. Now even for a man, where he has a positive commandment and a prohibition, then the positive commandment of burning impure terumah does not override a prohibition plus a positive commandment. If I did it anyway, one could say: the prohibition was overridden; I violated the positive commandment. A practical difference is that I would not receive lashes. Because for the prohibition one gets lashes; for the positive commandment one does not, and the prohibition was overridden by the positive commandment. Meaning, there are practical differences here. And the medieval authorities (Rishonim) disagree on this matter. There are medieval authorities (Rishonim) who claim that the prohibition is in fact overridden; it’s only that when there is also a positive commandment opposite it, one positive commandment will not override another positive commandment—but it did override the prohibition. And what? So that’s exactly the dispute on this point. The question is whether because “observe” and “remember” were said in one utterance, so that anyone obligated in the prohibition is obligated in the positive commandment, is that stated only about the Sabbath, or also about a Jewish holiday, or everywhere that a prohibition and a positive commandment overlap. That is a dispute among the medieval authorities (Rishonim). By the way, that same Tosafot I mentioned, those same medieval authorities (Rishonim) I mentioned in Kiddushin 34, Tosafot is there. He also discusses burning impure terumah on a Jewish holiday. In any case, Rav Nissim Gaon there says that the positive commandment does not override even the prohibition in such a situation. Because once there is a positive commandment together with the prohibition, then the prohibition too is more severe. And then the positive commandment does not override even the prohibition, not only the positive commandment.

Now that is exactly what we’re talking about here. Meaning, if on the Sabbath there is also a positive commandment besides the prohibition, does that make the prohibition of the Sabbath itself more severe? According to Rav Nissim Gaon, there is room to say yes. What is the idea here, apparently? The prohibition tells you not to be in the negative state. Now if they tell you that the opposite state is a positive state, then not being in the negative state becomes much more important. Because, first, it means avoiding the negative state, and second, if you are there, then you are also not in the positive state. So somehow, not being in the negative state is already a stronger demand. And then it could be that the existence of a positive commandment strengthens the prohibition as well. Right? And then there really would be room for this inference in the Talmud: so why doesn’t the Talmud say that on the Sabbath there is a positive commandment, whereas on Yom Kippur there is no positive commandment? From here, proof that on Yom Kippur too there is a positive commandment. And therefore the fact that the Talmud does not bring this—so I’m saying, that depends on different assumptions: Rav Nissim Gaon, and the question whether the fact that they didn’t bring it is itself proof. They didn’t bring it because they had already refuted it anyway. So I’m saying, the proof is, let’s say, a rather dubious proof.

There is a Talmudic passage in Shabbat 124—I’ll do this briefly because it’s a very difficult passage, but only in order to see the source. Because this is a source where one can discuss the issue. Some of the later authorities (Acharonim) brought from here a source for this law of a positive commandment concerning labor on Yom Kippur. Rav Zeira said in the name of Rav Huna, and some say Rav Abba said in the name of Rav Huna: if Yom Kippur falls on the Sabbath, preparing vegetables is forbidden. Preparing vegetables means getting vegetables ready for the meal after the fast. Rav Mana taught: from where do we know that if Yom Kippur falls on the Sabbath, preparing vegetables is forbidden? Scripture says, “a solemn rest” — cessation. Cessation, yes? For what? If you say for labor, but it is already written, “you shall do no labor.” Rather, is it not for preparing vegetables? Conclude from this. Now how are you understanding this—what is being discussed here with “a solemn rest” — cessation?

[Speaker B] It’s positive.

[Rabbi Michael Abraham] Is this about the Sabbath or Yom Kippur? About the Sabbath. Right, Exodus 16 is the Sabbath. Meaning, the whole Talmudic discussion here is Yom Kippur that falls on the Sabbath. And simply speaking, it looks like the discussion of preparing vegetables is from the aspect of the Sabbath within it. So why are they discussing Yom Kippur that falls on the Sabbath? Let them just discuss the Sabbath itself—whether it is permitted to prepare vegetables. Right? So then why should it not be forbidden when Yom Kippur falls on the Sabbath?

[Speaker B] On the contrary, here there is Yom Kippur on top of the Sabbath.

[Rabbi Michael Abraham] Why should it be permitted? What, does Yom Kippur lighten the prohibition of the Sabbath? If from the standpoint of the Sabbath it is forbidden, then the fact that it is also Yom Kippur makes it more lenient? At most it doesn’t add another prohibition. But why would it make it more lenient? So here there really is room to discuss it. Some of the later authorities (Acharonim), it seems, understood—although that is not the plain sense of the passage—that the discussion is actually about the laws of Yom Kippur, not the laws of the Sabbath. And the claim is that they bring “a solemn rest” — cessation, but really they mean the “Sabbath of solemn rest” of Yom Kippur. And the claim is that from here we see there is a positive commandment of resting on Yom Kippur. Resting from labor on Yom Kippur. That is not the plain sense of the Talmud, but it’s true. It is a valid observation. Again, the verses—I don’t know who added the verses, Exodus 16, you see the notes here, and Exodus 20; Exodus 20, “you shall do no labor,” that’s a Talmud in…

[Speaker B] That was said about the Sabbath, no?

[Rabbi Michael Abraham] No, it appears also regarding Yom Kippur.

[Speaker B] “You shall do no labor” is also said there?

[Rabbi Michael Abraham] Also, yes. So I don’t know who added those scriptural references, but whoever studied… yes. “You shall do no labor”—wait, look a little higher up, maybe it says “you shall do no labor on it,” so maybe we can see the… in a moment we’ll see the wording. Here: “And any soul that does any labor on that very day, I will destroy that soul… you shall do no labor.” Right, there it says, “you shall do no labor,” so the wording is the wording of the Sabbath. Right? At least regarding the prohibition. What?

[Speaker B] If we look at our Talmudic passage on Yom Kippur, that’s what the Talmud says—that they come to ask, from where do we know that it is forbidden to prepare vegetables on Yom Kippur?

[Rabbi Michael Abraham] On Yom Kippur it is permitted—that’s exactly the point. The Talmud discusses only Yom Kippur that falls on the Sabbath. It seems that on Yom Kippur by itself it is permitted. So I’m saying, from the plain sense of the Talmud it appears this is not about Yom Kippur; the discussion is about the Sabbath. Some of the later authorities (Acharonim) understood—apparently because of this difficulty—that it is speaking about Yom Kippur, and then it seems that “a solemn rest” — cessation is a source for Maimonides, that there is a positive commandment here regarding labor on Yom Kippur. But that is not the plain sense of the Talmud; that’s not what it says. The plain sense of the Talmud here is a positive commandment about the Sabbath. It’s an interesting question.

Some of the medieval authorities (Rishonim) want to claim that this is only a rabbinic restriction of the type Nachmanides speaks about. The prohibition… Nachmanides says, after all, that there are Torah-level prohibitions that are not actual categories of labor—to rest on the Sabbath, not to do actions that are clearly weekday-type activities or something like that—and that is a Torah prohibition. Some want to… the question is whether this refers to vegetables still attached to the ground or detached vegetables. Some want to claim it refers to attached vegetables, or that he doesn’t cut them finely. It doesn’t matter; there are entire discussions there, and I don’t want to get into the plain sense of the Talmud. The plain sense of the Talmud here is difficult from several aspects. I only want to show this source, because it is indeed a source one can discuss regarding the positive commandment concerning labor. What will Maimonides say about this? What, I didn’t understand?

[Speaker B] Maimonides brings in the laws of Yom Kippur the “solemn rest” — cessation, fine.

[Rabbi Michael Abraham] But also in the laws… when Maimonides brings this law, he brings it for Yom Kippur that falls on the Sabbath, not for ordinary Yom Kippur. Here it repeats itself: Rav Chiyya bar Abba said in the name of Rabbi Yohanan: Yom Kippur that falls on the Sabbath—it is permitted to prepare vegetables. They challenge him: but isn’t it taught that preparing vegetables is forbidden? “A solemn rest” — cessation. If you say for labor, but it is written “you shall do no labor.” Rather, is it not for preparing vegetables? No—actually, it is for labor, yes, that when someone does labor he violates both a positive commandment and a prohibition.

[Speaker B] On the Sabbath? The same question.

[Rabbi Michael Abraham] Simply speaking, I would say on the Sabbath.

[Speaker B] On a Sabbath on which Yom Kippur falls?

[Rabbi Michael Abraham] Well, that’s what they’re saying. This… “to rest” is the verse brought here. “To rest” is the verse of the Sabbath, to rest on the Sabbath. So the… but to violate the… what is the initial assumption even? Meaning, it says, “For what? If you say for labor, but it is written ‘you shall do no labor.’” What does that have to do with anything? The fact that I have a prohibition of “you shall do no labor,” does that mean there can’t also be a positive commandment regarding labor? Is the positive commandment regarding labor redundant? But true, that itself is what they answer: no, actually it is for labor, so that one transgresses by it both a positive commandment and a prohibition. But from the start, what kind of objection is that? You tell me, there is a prohibition, so why do I need a verse for a positive commandment? What do you mean? A positive commandment and a prohibition are two different things; that’s the whole point of Maimonides… well, maybe that’s what is being newly taught here, I don’t know. This whole Talmudic passage is very, very strange.

Look at Maimonides. Maimonides rules this as law: “And it is permitted to prepare vegetables on Yom Kippur from the afternoon offering onward. And what is this preparation? That he removes the spoiled leaves and cuts the rest and prepares it for eating,” and so on, “and all this because of emotional distress. Yom Kippur that falls on the Sabbath—it is forbidden to prepare vegetables and to crack nuts.” I don’t want to enter into the details of the passage; it is very complicated and there are different ways to read it. I am trying to show you the different sides in the Talmud, how to read it. And why? Because there are… maybe we should see before the… I didn’t understand… what does the Talmud want to say… “rather, is it not for preparing vegetables…”

[Speaker B] Yes… the Talmud says, no, actually it is for labor… yes, that when someone does—

[Rabbi Michael Abraham] labor, he violates both a positive commandment and a prohibition. The whole day, and also from the afternoon onward. So on Yom Kippur itself it is permitted because of emotional distress, implying that in principle there is some sort of prohibition here, maybe a rabbinic prohibition, but there is some sort of prohibition here and they permitted it because of emotional distress. But when Yom Kippur falls on the Sabbath, they did not permit it. Why not? Excuse me, but on Yom Kippur, what is the difference? On Yom Kippur too, “a Sabbath of solemn rest” is also a problem. No, that’s exactly what I’m asking, so why, why, what’s the difference? So I’m saying, if the prohibition on Yom Kippur that falls on the Sabbath is not different from the prohibition of the Sabbath—

[Speaker B] What’s the difference?

[Rabbi Michael Abraham] Because on the Sabbath you do not eat.

[Speaker B] There is a difference, because on the day itself of the Sabbath you can eat afterward in the day. So there is no preparation here.

[Rabbi Michael Abraham] So you’re saying then there is no prohibition, so why do I need the permission because of emotional distress? After all, the permission because of emotional distress says that in fact there is a prohibition here even on a regular Sabbath. There is a prohibition here, only on Yom Kippur, because of emotional distress, they permitted it. Right?

[Speaker B] Because of emotional distress from the Sabbath—the whole issue near the afternoon is emotional distress; from the afternoon and close to it, so they won’t come…

[Rabbi Michael Abraham] Right, but that’s why I’m saying: but because of emotional distress they permitted it. So why, on Yom Kippur that falls on the Sabbath, did they not permit it? Unless we say that on Yom Kippur there is no positive commandment, while on Yom Kippur that falls on the Sabbath there is a positive commandment—the positive commandment of the Sabbath, yes. The positive commandment of cessation on the Sabbath.

[Speaker B] I’m saying, and then—

[Rabbi Michael Abraham] from here there is proof that on Yom Kippur there is no positive commandment. And therefore they permitted preparing vegetables on Yom Kippur because there is no positive commandment, and in any case this isn’t included [in the prohibition], whereas the positive commandment of resting—

[Speaker B] of cessation—does not exist on Yom Kippur. Yom Kippur that falls on the Sabbath, from the standpoint of the Sabbath within it, has the positive commandment of cessation. And that is proof that there is no positive commandment on Yom Kippur regarding labor.

[Rabbi Michael Abraham] Nachmanides here explains that this preparation is so that he should not suffer and perhaps come to eating. Right, that’s the Ritva. The Ritva brings that: on Yom Kippur they permitted only in the latter clause; on the Sabbath in the latter clause—I don’t know.

[Speaker B] The logic is the opposite.

[Rabbi Michael Abraham] Here there are considerations on Yom Kippur both for leniency and for stringency. The Ritva, for example, wants to claim that on ordinary Yom Kippur they forbade this preparation because it makes you more distressed. Meaning, it is a prohibition—not that there is a general prohibition and the discussion is whether they permitted it or not; rather, preparing vegetables is basically permitted. On ordinary Yom Kippur that does not fall on the Sabbath, they forbade it; they forbade the preparation in order to ensure the emotional distress. And from the afternoon onward, not so. But before the afternoon they forbade it. Meaning, then the whole discussion comes out the opposite way. It’s not a discussion about the permission of preparing vegetables; it’s a discussion about the prohibition—why they forbade it until the afternoon, not why they permitted it from the afternoon. Well, there are many, many sides here; I only want—

[Speaker B] Why is preparing vegetables permitted on Yom Kippur if a positive commandment is not relevant?

[Rabbi Michael Abraham] What? Because this is not included in “you shall not do”; this is not labor. It is only lack of rest, only cessation. The Talmud says there is here “a solemn rest” — cessation. So if there is a positive commandment on the Sabbath, it is understandable why Yom Kippur that falls on the Sabbath is forbidden, but why on ordinary Yom Kippur is it not forbidden? After all, if Yom Kippur and the Sabbath are the same thing, then on Yom Kippur too there is “a solemn rest” — cessation. That’s what Nachmanides says. So why not on Yom Kippur? We see that on Yom Kippur there is no positive commandment. That goes against Maimonides. Okay?

Rashi writes this: “Rather, is it not for ordinary preparation of vegetables”—when detached—“that concerning something which is not labor, the positive commandment of ‘a solemn rest’ — cessation applies. And since by Torah law it is forbidden on all Sabbaths of the year, here we do not permit it because of emotional distress, to override a Torah prohibition. But on other Yom Kippurs it is permitted because of emotional distress, and even though there too it says ‘a solemn rest’ — cessation, that is not about labor but rather about anything that prevents one from afflicting oneself…”

[Speaker B] Since it is juxtaposed to “and you shall afflict yourselves.”

[Rabbi Michael Abraham] “So we expound it in the last chapter of Yoma regarding washing, anointing, and the like.”

[Speaker B] What is Rashi saying? “Solemn rest” is not about labor, right? There is no positive commandment.

[Rabbi Michael Abraham] There is no positive commandment regarding labor on Yom Kippur, correct? That is the whole difference. On ordinary Yom Kippur there is no positive commandment, so they permit preparing vegetables. On Yom Kippur that falls on the Sabbath, then from the side of the Sabbath there is a positive commandment, and just as all year long it is forbidden, so here too they forbade it. There may have been room to say that on Yom Kippur, really, there is also a positive commandment. But on Yom Kippur I would permit that positive commandment because of emotional distress, permit that positive-commandment prohibition because of emotional distress. But on Yom Kippur that falls on the Sabbath, if you permit it because of emotional distress, you will come to permit it on ordinary Sabbaths as well, and there there is no reason to permit it, and therefore they made a special decree in the case of Yom Kippur that falls on the Sabbath. Since that is what he says: “since by Torah law it is forbidden on all Sabbaths of the year.” Why all Sabbaths of the year? Say simply, since by Torah law it is forbidden on the Sabbath—on this Sabbath, Yom Kippur that falls on the Sabbath. Why do you need all the Sabbaths of the year? Perhaps there was room to say that it is forbidden on this Sabbath, even though in principle it should have been permitted because otherwise I would come to permit it on all the Sabbaths of the year, and that is not okay. But Yom Kippur by itself—they really did permit it there because it is indeed always permitted on Yom Kippur. Right?

And then it comes out that according to Rashi too, there is a positive commandment on Yom Kippur regarding labor. I’m saying it could be that according to Rashi there is a positive commandment both on Yom Kippur and on the Sabbath regarding labor. So why on Yom Kippur that falls on the Sabbath did they forbid preparing vegetables, while on ordinary Yom Kippur they permitted it? He says: on ordinary Yom Kippur they permitted it because even when there is a positive-commandment prohibition, they permit it because of emotional distress from the afternoon onward. On Yom Kippur that falls on the Sabbath, in principle there would be room to permit it because of emotional distress; it is one positive commandment against another positive commandment—there is no reason; even with two positive commandments they permitted it, the “solemn rest” of the Sabbath and of Yom Kippur. But if you permit it on Yom Kippur that falls on the Sabbath, people will come to permit it on all Sabbaths of the year. And on the Sabbaths of the year there is no basis to permit it because of emotional distress. So they decreed regarding Yom Kippur that falls on the Sabbath not to permit it. That is a bit forced, because in the Talmud it is not presented as a rabbinic decree. “A solemn rest” — cessation, that’s what the Talmud says; there is a prohibition here. The rabbis permitted it because of emotional distress. That’s a question. Therefore some want to claim it is only a rabbinic prohibition, or some category of cessation that Scripture entrusted to the sages, even though it is Torah-level; and then the sages can determine that here they do not forbid it. Even a Torah prohibition, if Scripture entrusted it to the sages, then it may be that the sages can still shape the prohibition.

So I’m saying, in the plain sense of the Talmud and in the plain sense of Rashi, it seems there is no positive commandment regarding labor on Yom Kippur. But of course, according to Maimonides, one has to read this Talmudic passage differently, because Maimonides says there is a positive commandment regarding labor on Yom Kippur. And then one must understand the difference between the fact that he rules this as law, that on Yom Kippur yes, but on Yom Kippur that falls on the Sabbath no. On this matter, it may be that in the dispute between Rashi and Maimonides—and here there is the Avnei Nezer—there is a Torah-level issue, there is a Torah-level issue on Yom Kippur—

[Speaker B] a positive commandment, and it’s not rabbinic.

[Rabbi Michael Abraham] So he says, since this is an act of weekday activity, there are clear weekday-type actions that are forbidden by Torah law; perhaps they are even forbidden by Torah law on the Sabbath.

[Speaker B] Like—

[Rabbi Michael Abraham] as Nachmanides says in Parashat Emor, and the Ritva. So I’m saying, maybe that is also what is written here. In Maimonides there is such an implication; several medieval authorities (Rishonim) understand it that way. Why specifically preparing vegetables is the most severe rabbinic prohibition, to the point that it becomes a weekday-type activity—I don’t know, it really is not clear to me.

In the Avnei Nezer he really notes this. He says: “And by the way, I will write to you what is difficult for me regarding Maimonides and the other enumerators of the commandments, who counted as a positive commandment resting from labor on Yom Kippur, whereas in tractate Shabbat at the end of the chapter ‘These Knots,’ it is explicit that there is no positive commandment regarding labor on Yom Kippur unless it falls on the Sabbath; for it answers concerning the statement that if Yom Kippur falls on the Sabbath they forbade preparing vegetables, from ‘a solemn rest’ — cessation, that one transgresses it by both a positive commandment and a prohibition. And from the fact that it says ‘falls on the Sabbath,’ it implies that on Yom Kippur alone there is no positive commandment, as Rashi explained according to the view of the questioner, that preparing vegetables is not labor but only cessation, and on Yom Kippur it is not Torah-level, for ‘a solemn rest’ does not refer to labor but to affliction; likewise according to the answerer, though it refers to labor, the positive commandment of labor does not refer to labor but to affliction, and the view of the enumerators of the commandments requires examination in my eyes.”

All right, so look at it afterward in the summary; one can read this Talmudic passage somewhat differently as well. It’s complicated; there are all sorts of aspects there in the Talmud. But indeed, in the plain sense of the Talmud and in the plain sense of Rashi, it seems there is no positive commandment regarding labor on Yom Kippur, only a prohibition. Not like Maimonides, who counts here a positive commandment. Okay.

Now I want to move to the prohibition of affliction. As I said earlier, what we discussed until now was the pair regarding labor: the positive commandment and the prohibition of labor. Now I want to move to the pair regarding affliction, the prohibition and the positive commandment of affliction, and here the situation is the opposite. The Torah states the positive commandment, “and you shall afflict yourselves.” The prohibition is not clear—whether there is one, and where it comes from, and so on. From the Talmud itself it is clear that there is a prohibition. I don’t know where it derives it in the Torah, but it is clear there is a prohibition. How do I know that? Because the Talmud derives that the karet that exists on Yom Kippur is for a prohibition. The karets, yes, karet is written explicitly in the Torah. For what was the karet given? One could have said it is for the positive commandment, but the Talmud understands that the karet on Yom Kippur is for the prohibition. How do I know? Because the Talmud says there are only two cases of karet for a positive commandment: circumcision and Passover. It does not bring Yom Kippur as a case of karet for a positive commandment. So the Talmud understood that the karet on Yom Kippur is for a prohibition, and there is karet both for labor and for affliction. So you see there is a prohibition regarding affliction; that one sees in the Talmud. The big question is: where did the Talmud get that from? Where is that written? And here we don’t even have “a Sabbath of solemn rest”; where does it come from? All the Torah has is that there is…

So the Talmud says this; therefore it is clear that this is what it derived. But why? From where did the Talmud understand that the karet here is on the prohibition? Why not say it is on the positive commandment, like Passover and circumcision? Okay, I do not know a source for a prohibition regarding affliction on Yom Kippur. So there is—so I’m saying, in the Talmud itself it is clear there is a prohibition. From where did it derive it in the Torah? That is a discussion, a discussion in which the source is not clear to me.

Now, one could have claimed that since the Torah says there is a prohibition, then the negative formulation is redundant. And in fact there is no need to write a prohibition. If there is karet, then apparently there is a prohibition; otherwise, what is there a punishment for? But we already said that this karet could come on a positive commandment. Okay, so I’ll get to that in a moment, I’ll get to it in a moment. But here I’m saying, beyond the question of punishment, we have heard the punishment—where is the warning? The karet could be on the positive commandment. After all, there are karets on positive commandments. So from where did the Talmud derive that here it is not on a positive commandment? Okay?

Look at Maimonides. Commandment 196 is “that we were warned against eating on the fast of Yom Kippur. And the Torah does not explicitly give a warning for this act,” yes, for this action, “but it mentions the punishment and makes liable to karet one who eats. And we know that eating is prohibited, from His saying: ‘For any soul that is not afflicted on that very day shall be cut off.’ And at the beginning of Keritot, when they counted those liable to karet, they included among them one who eats on Yom Kippur. And they explained there that everything for which one is liable to karet is a negative commandment, except for Passover and circumcision.” That is the proof I mentioned earlier. So there is proof in the Talmud; Maimonides is right, it is a prohibition. But Maimonides also offers an explanation. What? How can that be? After all, you need a warning. He says no: since there is karet, and somehow there is probably a tradition or something of that sort that this karet is not among the karets for positive commandments, then apparently there is a warning here. Why? What? So I’m saying, even if there were a tradition that it is not on a positive commandment, still, the fact that there is a punishment—the Talmud always asks, “We have heard the punishment; from where do we know the warning?” Right? “We have heard the punishment; from where do we know the warning?” The very fact that a punishment is written does not automatically mean there is a warning. And Maimonides himself brings this; we’ll see it in a moment. So how here does Maimonides ignore that issue? He says: there is karet here, and therefore it is clear there was a warning.

[Speaker B] Isn’t it different from circumcision and Passover? There, it’s failure to do the act, and here it’s not to do.

[Rabbi Michael Abraham] What, because eating on Yom Kippur is an active deed? Still, it is the nullification of a positive commandment through an active deed. We discussed in the previous class that the difference between a positive commandment and a prohibition is not the question whether one fulfills it through positive action or violates it through passive omission. There are prohibitions that are violated through positive action, and there are prohibitions that are violated through passive omission; and the same is true of positive commandments. “Do not stand idly by your neighbor’s blood” is a prohibition—how do you violate it? If I do not save my friend, I violate it by passive omission. The same on the Sabbath: how does one violate a positive commandment? Through action, by doing labor one violates a positive commandment. Therefore the practical criterion is not what distinguishes between a positive commandment and a prohibition. So this Maimonides really is somewhat puzzling.

Before I go into this issue, I want to sharpen the background a bit more. The Talmud says in several places, “We have heard the punishment; from where do we know the warning?” Meaning, the Talmud assumes that although the Torah mentions a punishment, an additional warning must also appear; there is no punishment without a warning. Sefer Ha-Chinukh, commandment 69, explains this. He says as follows: “Not to curse judges, as it is said, ‘You shall not curse God,’ and its interpretation refers to judges, as it is said, ‘whom God shall condemn,’ and Scripture used the expression ‘God’ so that another prohibition would be included in this prohibition, namely the prohibition of blessing the Name of God, blessed be He, as our sages of blessed memory said in the Mekhilta and the Sifrei: ‘A warning against blessing the Name [i.e., blaspheming] is from that which is written, ‘You shall not curse God.’” And what is written in… but there is still a warning here also for blessing the Name. Why? Because, says Sefer Ha-Chinukh, we found no other warning. What we found is a punishment. Yes? “Whoever pronounces the Name shall surely be put to death.” But we did not find a warning. Therefore, perforce, the warning is from here. “For the mention of punishment in a commandment without a warning would not suffice for us. And this is why our sages of blessed memory always say: ‘We have heard the punishment; from where do we know the warning?’” The fact that there is a punishment does not eliminate the need for a warning; a warning is necessary.

“And the matter is that if all we had in a matter were God’s prevention only in the sense that He would say, ‘Whoever does such-and-such will be punished in this way,’ it would imply that permission is in the hands of anyone who wishes to accept the punishment and not care about the pain, to transgress the commandment, and by this he would not be acting against the will of God, blessed be He, and His command. And the commandment would become like a kind of buying and selling, meaning: whoever wants to do such-and-such should pay such-and-such and do it, or consent to bear such-and-such and do it. But that is not the intent of the commandments. Rather, God, for our benefit, prevented us from certain things, and informed us in some of them of the punishment that comes to us immediately, aside from violating His will, which is harder than all. And this is the meaning of the sages’ statement everywhere, ‘He does not punish unless He first warned’—meaning, God does not inform us of the punishment that comes upon us for transgressing the commandment unless He first informs us that His will is that we should not do that thing for which the punishment comes.”

So he explains here the idea in the Talmud that a warning is needed; it is not enough just to state a punishment. A punishment is a price. Yes. Meaning, I once saw in a book by Chaim Cohen, on law, where he says that in Israeli law there is no prohibition against stealing. It says only that the thief’s punishment is such-and-such.

[Speaker C] If they catch you, you pay—that’s the price.

[Rabbi Michael Abraham] It’s forbidden to get caught. As they say, it’s not forbidden to steal. Meaning, the thief’s punishment is such-and-such. I think, if I remember correctly, he explains this from his liberal perspective, according to which basically the legislator cannot tell me what to do and what not to do. I am a free and happy person. What the legislator can do is say—the judge works for him. To the judge—once they thought the judge works for the legislator—so the legislator says to the judge: if someone comes before you who stole, you have to punish him. But you cannot tell a person what he is permitted or forbidden to do. I don’t know; maybe that’s true, though to me it’s a questionable explanation. But in any case, in the law indeed no warning appears, only the punishment appears.

[Speaker B] Not even “You shall not murder.” What? Not even “You shall not murder” in the law.

[Rabbi Michael Abraham] Yes, yes, same thing, the whole criminal code is formulated—

[Speaker B] like that.

[Rabbi Michael Abraham] The whole criminal code is formulated like that.

[Speaker B] Criminal law is not educational. Criminal law is not psychological; it doesn’t educate.

[Rabbi Michael Abraham] Yes, but I’m not talking about education; I’m talking about a warning. A warning does not mean education. Maybe I’ll clarify one more point. People do not understand what “warning” means. When the Torah warns me not to do something, is what we have here really a verse that reveals to me that the Holy One, blessed be He, thinks this thing is wrong, unworthy? If that were so, then the verse of command would in essence be a declarative sentence. You know, in grammar they distinguish between a declarative sentence and an imperative. There are four tenses—well, I don’t know why they call them tenses, but past, present, future, and imperative. Right? Past, present, and future are different forms of a declarative sentence—a statement of fact: a fact about the past, a fact about the present, a fact about the future. An imperative sentence is not a sentence that describes facts. It tells you: do such-and-such. It is not a sentence speaking a fact; it is a sentence giving an instruction. Right? A question sentence also is not a sentence of fact. If I ask you what time it is, that is not a sentence describing a fact; I am asking. These are sentences that have another function. The imperative sentence has a different function from the declarative sentence. In the eighth root of Maimonides he elaborates on this.

So what is the meaning of this matter, the imperative sentence? If the imperative sentence only revealed to me that theft is bad in the eyes of the Holy One, blessed be He, then it would be a declarative sentence. The meaning of “you shall not steal” would merely be a fact: theft is bad in the eyes of the Holy One, blessed be He. Okay, now I can decide whether I want to do what is bad in His eyes or do not want to do what is bad in His eyes. But the verse “you shall not steal” is not a declarative sentence; it is an imperative sentence. What does that mean? It gives me an instruction: do not steal. What does that mean? I’ll sharpen a bit what that means, because many people miss this point.

If “you shall not steal” had not been written, I would still know by reason that it is not okay to steal. There is also evidence that the sages saw this as something known by reason; it’s obvious. Yes, the Holy One, blessed be He, says to Cain, “The voice of your brother’s blood cries out to Me from the ground.” There was not yet a prohibition against murder—so what does He want from Cain? Cain should have understood on his own that murder is problematic. Rabbi Shimon Shkop’s theory of civil law—yes, all monetary law, theft, and everything—that too comes from reason.

[Speaker B] Right. Even though regarding the generation of the Flood, whose decree was sealed because of robbery—

[Rabbi Michael Abraham] because it was something they should have understood by reason. Yes, but there, fine, there are the seven Noahide commandments. The… what?

[Speaker B] Their decree was sealed because of robbery. Exactly.

[Rabbi Michael Abraham] But an imperative verse does not come to reveal facts. Not even facts about the will of the Holy One, blessed be He. It comes to command. And when the verse commands, that is what turns the thing into a prohibition. Before that it was wrong, but it was not a prohibition. Think, for example—suppose the legislator had not said that it is forbidden to cross at a red light. It still would not be okay to cross at a red light; it is life-threatening. Suppose the practice was that you stop at red and go at green, but there were no such law. Okay? It still would not be okay, and perhaps not okay to the same degree. You endanger your own life and the lives of others; it is clearly not okay. What did the legislator add when he said it is forbidden? He turned it into a prohibition. What does that mean? That now, aside from the fact that what you did is wrong, you also violated the command of the legislator.

[Speaker B] What do you mean?

[Rabbi Michael Abraham] What’s the practical difference? Now you can be punished. Meaning, before that you were doing something wrong. If you had done it, we would have said, naughty naughty, we’d put you on the bulletin board for everlasting disgrace. But we couldn’t punish you. Punishment is given for a prohibition. Punishment is not given for something that’s merely wrong. And therefore, for punishment to be given, you need a warning. Because the warning is not there to reveal to me that without the warning I wouldn’t have known it was forbidden. I might have known even without it, at least in some cases. But it still wouldn’t have been a prohibition. Until that thing is legislated, enacted, appears as a negative commandment forbidding it, it is not a prohibition. It’s only something that isn’t right. Okay? Therefore, many times when people say, “Why do I need a verse? It’s logical,” people make the mistake of thinking that anything derived by logic makes the verse unnecessary. “Why do I need a verse? It’s logical.” That is a big mistake. I made that mistake too for years. It’s a big mistake. Because if something follows from logic, it is not a prohibition; it is only something that isn’t right. You always need a verse to tell me that it is also a prohibition. Every place where the Torah says, “Why do I need a verse? It’s logical,” where the Talmud says, excuse me, “Why do I need a verse? It’s logical,” that is only in places where the logic interprets an existing command. If I would understand through logic that the command means such-and-such, then indeed the verse is unnecessary, because there is already a verse commanding it, and logic already interprets it correctly. I don’t need a verse to forbid me from doing that thing. But when it is a new command that could have been derived by logic, you will never find “Why do I need a verse? It’s logical” regarding a brand-new command.

Yes, the Talmud in Berakhot 35 discusses blessings over enjoyment, that famous passage discussed by Pnei Yehoshua and Tzelach. Right, blessings over enjoyment—the Talmud says in the end that it looks for a source: how do we know that one blesses over food beforehand? And it answers: it’s logical. It is forbidden for a person to benefit from this world without a blessing, and anyone who benefits from this world without a blessing is as if he committed sacrilege. Pnei Yehoshua asks: but if it’s logical, then logic is Torah-level, because everywhere it says, “Why do I need a verse? It’s logical.” Meaning, apparently logic is equivalent to a verse; it’s Torah-level. So why do we rule leniently in cases of doubt about blessings? The answer is that the logic here is not logic that interprets an existing command. The logic here creates a new obligation. A new obligation, even if it follows from logic, cannot become an actual obligation. It can become something one ought to do, or ought not to refrain from doing—morally, religiously, whatever you want. Command is a category unto itself. There is no prohibition without a verse that commands it. “Take heed,” “lest,” and “do not”—these are terms of command according to the Sages. Without that, there is no negative commandment. Even if the reasoning says a thousand times that it is forbidden, that’s irrelevant. Well, not irrelevant—it matters—but not for defining the thing as a prohibition.

Yes, in legal theory there is a dispute between positivism and natural law. Okay? Natural law basically says that law merely reflects things that are forbidden, but the law did not create the prohibition. The prohibition already exists, and the law just conceptualizes it, defines it, gathers all the prohibitions together so there won’t be misunderstandings. That is really a view that sees legislation as a collection of clarifying verses. They merely reveal facts that already existed before. Positivism claims that the law is what makes the thing forbidden. Morality may also exist beforehand. But without law, the thing does not become prohibited. You need legislation, a command, in order for the thing to become prohibited—a legal verse. And the practical difference, as I said before, is punishment. You cannot impose punishment for something the law did not forbid, even if it is horrible, a truly dreadful act. You cannot punish for it. Punishment can be imposed only if the verse containing the command prohibited it.

And that’s the whole major back-and-forth surrounding the Nuremberg trials, for example, where ostensibly, if they acted in accordance with the law, there was no prohibition in their legal system against what the Nazis did. And there was great confusion there in court, in the tribunals at Nuremberg: how can you convict such people? On what basis? You can’t punish a person if there is no law forbidding it. And then they created various constructions—that there are laws there that do not need to be legislated, a kind of legal fiction, really. They adopted a bit of natural law. Basically they said: there are deeds so terrible that no state legislation can undo this; this is universal human legislation. But that too is legislation. It’s a very big conceptual innovation, because here we are not merely saying that they were not okay—that they were not okay is obvious. But to punish them on that basis—that is a legal category. How can you punish someone when there is no law prohibiting what he did? What? No matter—even revenge, still, you need a law that forbids it. However you understand punishment, you can’t avoid that.

So let me come back to our issue. This basically means that the purpose of a command is not to reveal to me that something isn’t right. The purpose of a command is to turn that wrong thing into a prohibition. Sometimes it also reveals it to me. Meaning, say pork—I wouldn’t know it wasn’t okay, so the verse forbids it, and in doing so it also reveals to me that it isn’t right, but it also prohibits it. It does both things. But there are things I would know even without the verse: “Do not murder,” “Do not steal.” But the verse is still needed. Nobody asks about “Do not murder,” “Why do I need a verse? It’s logical.” And that logic is stated explicitly in the Torah itself with Cain. It’s not my own reasoning. So why don’t they ask, “Why do I need a verse? It’s logical”? There is nothing to ask, because the verse turns it into a prohibition. The verse does not come to reveal that it is morally wrong. It turns it into a religious, halakhic / of Jewish law prohibition.

By the way, in my opinion that is also the reason there is a complete categorical disconnect—and that’s a whole separate topic, I won’t go into it here—between Jewish law and morality. They do not speak to one another. There is no Jewish law that deals with morality. None. Including “Do not murder,” “Do not steal,” none. Morality was known beforehand; obviously it is morally forbidden to steal and to murder. That is not what Jewish law comes to say. Jewish law comes to say that aside from the fact that it is morally forbidden, there is also a halakhic / of Jewish law prohibition here. A religious prohibition. Okay? That’s the point. And punishments in Jewish law are given for religious prohibitions, not for moral prohibitions. For moral prohibitions, society can punish. Those are rules society will set. Jewish law does not deal with that.

And therefore I think what I just said has very far-reaching implications. In any event, back to our topic—I’m returning to Sefer HaChinukh—what is the Chinukh actually saying? The Chinukh tries to explain why the Talmud assumes that it is not enough for the Torah to write the punishment. It also has to write the warning. And the answer is that if the Torah had written a punishment and we could not find a warning, then we would think this is some kind of price tag. Meaning, if you want, do the act, cut off whatever needs cutting off, and everything is fine—you have not violated God’s will. Meaning, you did not commit a prohibition. The punishment here is not really a punishment at all, but some kind of price tag. In order to say that this punishment is a punishment, you need a command, because punishment is given only for a prohibition. And without a command there is no prohibition. Okay? Therefore you always need a warning.

The thing that’s a bit hard to understand in the Chinukh is that in the end he undercuts the very claim on which his own explanation rests. Because when the Talmud says, “We heard the punishment—where do we know the warning from?” what is the Talmud assuming? It is assuming that of course there must be a warning. How can it be that there is no warning? We didn’t find one. Meaning, the Talmud assumes there is no such thing as punishments that are just price tags. Otherwise what’s the problem? The Talmud could say: okay, this punishment is a price tag and there is no warning. Fine. What’s the difficulty in “We heard the punishment—where do we know the warning from?” This punishment has no warning; it’s a price tag. Everything is fine. No—the Talmud treats this as a difficulty, and therefore it presses hard to solve it, as we’ll see later. So it is clear to the Talmud that there must be a warning. There are no price tags in the Torah. In the Torah, all sanctions are punishments. There are no price tags. That is what the Talmud assumes. Okay? But if you are already assuming that there is no such thing in the Torah, then again it is unnecessary. Because once the Torah writes a punishment, and you already know that all punishments are not price tags, then why does it need to write a warning? You already know from the punishment that clearly this punishment is not a price tag; understand from that that it is also forbidden. Okay? So there is a bit of a logical problem here in the Chinukh’s explanation.

In any event, for our purposes, maybe they want—maybe—knowledge of the law in this case would exempt from punishment, because the law is not written; only the punishment is written. So a person might make the mistake of thinking that this punishment is a price tag, even though really there is no such thing. So they tell him: you have to find a warning somewhere else. Maybe this is for the person’s sake, not really because essentially it is needed.

I once saw an article by Rabbi Dov Lando, who rose to prominence not long ago. There is a little article, a short article he wrote decades ago in some memorial volume, and since then I haven’t been able to find it. And there he gives two examples of applying that initial assumption. He brings one—let me quote it here. In commandment 516, the Chinukh discusses the obligation to heed the prophet, and in the course of that the Minchat Chinukh says: “And one who suppresses his prophecy is also liable from the verse that we read, ‘he will not listen,’ and there they say that one who suppresses his prophecy is flogged. And they warn him—how can they warn him? After all, no one knows he received prophecy, since he didn’t say it. They warn him, his fellow prophets, because they all know, as explained there. And Tosafot wrote that he does not receive lashes because there is no negative commandment there, and also because there is no act; rather they beat him until he dies. Now, we have heard the punishment for one who suppresses his prophecy, but the command in the verse is not explicit, that he is obligated to state his prophecy. And although the rule ‘Scripture does not punish unless it warns first’ does not apply here in the usual way, because that is found only in negative commandments and not in positive ones, nevertheless according to what the author wrote in commandment 69—that the function of the warning is that if there were only a punishment, it would imply that if he wants to transgress and accept the punishment, that is fine, and he is not acting against the will of the Holy One, blessed be He; therefore the Torah warned in order to make known that the Blessed One does not desire this”—that expression, “to make known that the Blessed One does not desire this,” is misleading. It sounds like merely an obligation. What it means is: to command, not merely to inform us that the Holy One does not desire it—“if so, then even with a positive command, since no verse is written, perhaps if he wants to suppress the prophecy and accept the punishment, that is fine. And perhaps this was Jonah the prophet’s reason, for it is explained in the Talmud here that he was suppressing his prophecy.”

Jonah the prophet, after all, did not want to go prophesy to Nineveh. He suppressed his prophecy, and he transgressed the prohibition of suppressing prophecy. And we are talking about a prophet, not a little child. What, he is running away from the Holy One? Suppressing his prophecy? He is neglecting the positive command to prophesy. “Far be it that Jonah the prophet would commit a sin against the will of the Blessed One. Rather, this is not against His will; it only incurs a punishment. And Jonah the prophet intended it for the benefit of Israel, as explained, because they would repent; he accepted the punishment upon himself for the benefit of Israel.” So he says: I can easily resolve Tosafot’s difficulty, says the Minchat Chinukh. Tosafot asked: if one who suppresses his prophecy is flogged, where is the warning? The Minchat Chinukh says: correct, we did not find a warning, because suppressing prophecy is only a price tag, not a punishment. Right, exactly. He brings the Chinukh and says: no, such a situation can indeed exist. “We heard the punishment—where do we know the warning from?” is not a difficulty; it is a question. Is there also a warning? But it may be that we will not find a warning, and then it is a price tag. It’s not based on the assumption that there must be a warning. It’s a question, not a difficulty. And it may be that we won’t find a warning, and then indeed it will be a price tag. And that explains very nicely how Jonah the prophet suppressed his prophecy, because he was not going against God’s will. He did not do something wrong. There was just some kind of price tag, that one who suppresses his prophecy is flogged, and he was willing to accept the punishment for the benefit of Israel, for various considerations one way or another.

By the way, I’m not sure it was for the benefit of Israel. In the Book of Jonah it seems that the dispute was over the question whether repentance should exempt from punishment—whether repentance is effective. Jonah claims: why should the people of Nineveh be forgiven if they repent? And the Holy One takes him through the whole book so that in the end—“Are you so deeply grieved over the kikayon?”—He teaches him that lesson: yes, people who repent should be forgiven. That’s why I gave all this introduction.

So the Minchat Chinukh’s claim here is basically that there really may be punishments that are price tags. And in the context of Jonah the prophet too he ultimately says: “But in truth, here no warning is needed.” Here means in the case of suppressing prophecy. Because the warning is to the prophet himself, like Jonah, for the Holy One told him, “Go to Nineveh.” What warning do you need? What warning do you need to tell a prophet that he must prophesy? When the Holy One tells him to prophesy, in that very statement He commands him to prophesy. You do not need a verse in the Torah saying that if you receive prophecy you are obligated to convey it. When the Holy One tells you the prophecy, He is saying: go prophesy. That is the command. You don’t need an additional command. Therefore, says the Minchat Chinukh here, this is a positive commandment, not a negative one, and therefore the explanation does not apply here—and so regarding Jonah, this is not the explanation, and he backs off from it. What? He says: because here there was a command. In principle he is willing to accept the possibility of a price tag, but here it is not relevant, because when the Holy One told Jonah to go prophesy, that itself was the command, so don’t tell me there was no command. There was a command.

But it is true that from here one can understand that in principle, with other prohibitions that are not suppressing prophecy—with other prohibitions, for example on Yom Kippur, where there is karet without the warning—it may be that the karet is a price tag. A bit strange. Meaning, now notice, this does not mean that someone who eats on Yom Kippur is doing something wonderful, that everything is fine. Because he has neglected the positive command; there is an obligation to fast. But as for the negative commandment—I don’t know, maybe there is no negative commandment and the karet is a price tag. He only neglected the positive commandment, but the karet is not for that neglect, because this is not Passover or circumcision; rather it is on a negative commandment—but there is no negative commandment. So the karet is a price tag without a negative commandment. Like putting your foot between the door and the doorpost.

[Speaker B] Wait, he thought that when he would suppress his prophecy—what? I didn’t understand. Jonah. Jonah also knew, right? He didn’t need a verse. His dispute was with the Holy One, no? He thought he would outmaneuver the Holy One?

[Rabbi Michael Abraham] Abraham our forefather argued with the Holy One—did he think he would beat Him? Maybe yes, I don’t know.

[Speaker B] In the end they—

[Rabbi Michael Abraham] They argued, and refused—

[Speaker B] Here—and they did a miracle here for Jonah.

[Rabbi Michael Abraham] There is a Talmud in Temurah—I’ll say it briefly now because I want to finish this topic today. There is a Talmud in Temurah, another example that Rabbi Dov Lando brings. Another example he brings is the Talmud in Temurah, where at least according to Rabbenu Gershom—according to Rashi maybe not—you’ll see everything in the summary afterward—there is an initial assumption there that a person who is obligated to swear in a religious court will swear and be flogged. Meaning, not only is he permitted to swear, not only permitted—he is obligated to swear, because the religious court instructs him to swear, and for that very oath lashes are stated. Meaning, he will swear and be flogged. The Talmud in fact has verses saying that he is flogged, while on the other hand he needs to swear an oath—he is punished for the fact that he swore. That is the initial assumption in the Talmud in Temurah, never mind the details. Exactly. That is the initial assumption: he will swear, he is obligated to swear, not merely permitted, and be flogged. Rabbi Dov Lando says that according to Rabbenu Gershom there is indeed that initial assumption there—and once again we see that it is possible for a person to do an act that involves no prohibition—here it is even an obligation, not just that there is no prohibition—and still be flogged as a price tag. In the end they reject it. The Talmud rejects it and explains differently. But as an initial assumption, it appears there too.

At the end of the day, I do not know of an actual example of this in the final conclusion. Therefore it seems to me that it is not accidental that there is no example of it, and that the Chinukh is right to say that this is essential: there cannot be punishment without a warning. Such initial assumptions do come up; I found two of them—or rather he found them, not I—but I do not know of any example where that remains the conclusion. Therefore…

[Speaker B] “Scripture does not punish unless it warns first”? Right, in the Talmud.

[Rabbi Michael Abraham] What did he add? No, “Scripture does not punish unless it warns first”—but you could interpret that as referring to lashes. Because for lashes, after all, the punishment is not written. In all the punishments written in the Torah, those are punishments other than lashes. The punishment of lashes applies to every negative commandment unless there is no act involved or it is linked to a positive commandment, but every negative commandment gets lashes, and you don’t need to write the punishment of lashes. Now there, if there is no warning, you cannot punish. But it could still be that for a punishment explicitly written in the Torah, like karet or execution by a religious court or something like that, there you would punish even without a warning. Meaning, “Scripture does not punish unless it warns first” does not necessarily mean what we are saying here, but “We heard the punishment—where do we know the warning from?” does. Because there it is talking about a case where “we heard the punishment,” meaning there is a punishment in the Torah.

Now Maimonides, as we saw earlier, brings this negative commandment and learns from the fact that there is karet that apparently there is also a warning. Right? That is what I read before. And that raises the question: why? After all, “We heard the punishment—where do we know the warning from?” He brings it from the Sifra. The language of the Sifra is: “‘For any soul that shall not be afflicted… shall be cut off’—this is the punishment for affliction. But we have not heard the warning for affliction on the day itself. When Scripture states the punishment for labor—which need not have been stated, because it could have been derived by a kal va-chomer. For if affliction, which does not apply on festivals and Sabbaths, is nevertheless punishable, then labor, which does apply on festivals, is it not all the more so that one should be punished for it? So why was the punishment for labor stated? To teach from it a warning for affliction. If it is not needed for that purpose—just as the punishment for labor comes after a warning, so too the punishment for affliction comes after a warning.” That is what the Sifra says.

So here there is some kind of “if it is not needed,” a derivation that learns a warning for affliction, a negative commandment regarding affliction. Now the problem is that Maimonides argues that when the warning is learned through derivation, the rule applies that we do not derive warnings through logical inference. And if I learn the warning from a derivation, you cannot punish for that. A derivation—

[Speaker B] A derivation of the Talmud?

[Rabbi Michael Abraham] No, a derivation in the Talmud—I’m talking about a derivation of the Talmud. And what difference does it make? Midrash. Once it is midrash, according to Maimonides in the second root, midrash is words of the Sages. A law that comes from midrash is rabbinic. Therefore, something that comes from midrash—by the way, Maimonides explains this based on the rule that we do not punish based on logical inference. I’m touching on broad issues here, but only briefly because I want to finish this today. “We do not punish based on logical inference.” Usually the medieval authorities (Rishonim), the Talmud and the medieval authorities (Rishonim), explain “din” there as a kal va-chomer. “Is it not logical?”—that is always the language of kal va-chomer. Maimonides says “We do not punish based on din” means through all the hermeneutic principles. Hermeneutic principles are called din. Therefore everything learned from hermeneutic principles is basically from the words of the Sages according to Maimonides, and therefore we do not punish for it.

Now here, if you learn it from a derivation, how can Maimonides say that this is enough? After all, the punishment alone is not enough. The source you have for the warning is only a derivation. So how can you nevertheless say that there is a negative commandment here? On that there is a Maimonides at the end of the fourteenth root. He says as follows: “It is also fitting to attach to this the following introduction, namely, that everything for which one is liable to execution by a religious court or karet is necessarily a negative commandment, except for Passover and circumcision, which incur karet despite being positive commandments, as they mentioned at the beginning of tractate Keritot. And we have absolutely no positive commandment other than these for which one who transgresses it incurs karet.” Right? Yom Kippur of course is a negative commandment. And all the more so execution by a religious court. “And whenever it is written in the Torah that whoever does such-and-such an act shall die or incur karet, we know in truth that that act is forbidden and subject to a negative commandment. Sometimes the warning is explicit in Scripture but the punishment is not explicit. Sometimes the punishment is mentioned and the warning is mentioned, like desecration of the Sabbath and idolatry, where it says ‘Do no labor’—that is the warning—and ‘Do not worship them’—that is the warning—and afterward stoning is imposed—that is the punishment—for one who performed labor or worshipped. And sometimes the warning is not made explicit in Scripture as a simple negative commandment, but only the punishment is mentioned and the warning is left unmentioned, yet there must be a warning. But the principle we have is: Scripture does not punish unless it warns first. If we do not find a warning, it is impossible to punish. Scripture does not punish unless it warns first. And it is impossible for there not to be a warning for anything that incurs punishment. Therefore they say everywhere, ‘We heard the punishment—where do we know the warning from? Scripture teaches such-and-such.’” Right? They find the warning. “And when the warning is not explicit in Scripture, they learn it by comparison from Torah analogies”—that is, derivations. Wait, yes. “As they mentioned regarding the warning for one who curses his father or mother and one who strikes his father or mother, which is not explicit in Scripture at all.” It says, “One who strikes his father or mother shall surely die”—the punishment is written, but the warning is not. The warning is learned from a derivation. “Yet we know that these are negative commandments, and we derived for them and similar cases the warning from elsewhere by way of analogy. And this does not contradict their statement ‘We do not derive warnings through logical inference,’ nor their repeated statement, ‘Do we derive warnings through logical inference?’” Notice Maimonides’ position: “We do not derive warnings through logical inference” applies to all hermeneutic principles. So he says: here, apparently, that contradicts it. You are telling me that here I can derive the warning from din, from a derivation, and that is fine—it is a real negative commandment. So why is that not contradictory? Why? “Because we do not say ‘We do not derive warnings through logical inference’ except when we seek to prohibit something for which no specific prohibition was made explicit, by means of analogy. However, when the punishment for doing this act is explicitly found in the Torah, we know necessarily that it is a forbidden act against which there is a warning. We derive the warning by analogy only in order to reinforce for ourselves the principle that Scripture does not punish unless it warns first. And once the warning for that matter has been established, then the person who transgresses and does it becomes liable, whether to karet or death. Know this introduction and remember it together with the previous roots in all cases where it will be mentioned.” Here he is hinting at the second root.

What is he saying? He says as follows: if you derive a warning for a mere prohibition from a derivation, there are no lashes. Because Scripture does not punish unless it warns first—

[Speaker B] Excuse me, we do not derive warnings through logical inference.

[Rabbi Michael Abraham] So there are no lashes. Okay? Because that is called deriving a warning through logical inference. If there is a punishment without a warning, we also do not punish, because Scripture does not punish unless it warns first. But if there is a punishment and the warning is derived through logical inference, that is okay. When the warning is derived through logical inference and there is no punishment, then we do not punish. But if the punishment is written in the Torah—after all, “We heard the punishment—where do we know the warning from?”—it is clear to us that there is a warning. That means that the warning which we derived through logical inference is indeed real. And it is not rabbinic. This fits with what Maimonides writes elsewhere as well: there are places where derivations are indeed a full negative commandment and not merely words of the Sages—where the Sages told us that this is a tradition, or where we know that the Torah forbids it. From the fact that a punishment is written, we know that the Torah forbids it. Once we find a derivation, we know that that derivation is a Torah prohibition, and therefore there it is a genuine negative commandment. And that is what Maimonides is basically saying in our case too about the karet of Yom Kippur: it really is learned from this Sifra through the “if it is not needed” derivation. True, it is a derivation, but when the punishment is written and we know that this punishment is for a negative commandment and not a positive one, then the warning that comes from the derivation is also sufficient. That is basically the claim.

[Speaker B] Meaning that from a kal va-chomer you can’t learn a warning? Right.

[Rabbi Michael Abraham] No, from a kal va-chomer you can’t learn a warning. Only if there is a punishment written in the Torah and the warning is learned by kal va-chomer, then that is okay. But if you learn some warning by kal va-chomer, they will not be flogged for it. In a place where the punishment is not written, they will not be flogged for it. That is basically what Maimonides says, and that is probably the source of the negative commandment of affliction. The source is basically the Sifra. Maimonides’ source is the Sifra: when the punishment is explicitly written in the Torah, a source from derivation is enough.

Nachmanides, in his glosses to the second root, attacks Maimonides on this point. He says that derivations—except for kal va-chomer in the case of punishments based on logical inference—are not included in this rule. One can certainly derive warnings from other derivations, and that is not merely words of the Sages—

[Speaker B] It is really Torah-level.

[Rabbi Michael Abraham] Fine, the Talmud on page 81 you’ll already perhaps see in the summary; I don’t want to go into it more here. Okay, we’ll stop here. Thank you—

[Speaker B] very much. By the way, these texts are also pulled up in the transcript.