Answer

The only reasoning I can come up with for “kam lei be-derabba minei” is that there is a desire here not to cheapen the more severe offense. Think of a person who murdered someone and we also require him to pay 100 shekels in compensation. People might think that murder and monetary compensation are on the same scale. Jewish law wants to sharpen the total significance of murder, and therefore if a person is liable to death, he does not also incur payment or lashes.
All the best,
Michi
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Questioner:
Thank you very much! An interesting direction, with implications regarding the Torah’s preference for educating the public over the money of the individual.
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Rabbi:
Think about a mass murderer who is tried in court and sentenced to death, or to ten consecutive life sentences, and now they add another obligation to compensate Yankel with 100 shekels.
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Questioner (another):
I think that “kam lei be-derabba minei” is only one example among many in civil law that are lacking in logic. Maybe this only proves the idea that all civil law is a legal system parallel to the ordinary system that all the nations of the world have, and in this system there are “halakhic” laws that stem from a scriptural decree and not from human logic, unlike the ordinary legal system. The question is what the point of this system is if, in any case, every sane society (including a religious Jewish society) will establish a different system instead of it.
Oren
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Rabbi:
I suggested here a possible explanation. The religious legal system is not meant to regulate life in practice but to teach what the religious truth is. Therefore, even if it is not actually implemented, that is not so terrible. So too, a lost object after the owner has despaired of recovering it belongs to the finder, and that is the religious truth. But in practice one must return it to the loser, and we even compel that. That is justice and morality. It is important to know what the truth is even if we do not implement it in practice.
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Questioner (another):
What is the meaning of the term “religious truth”? If one is not obligated, and perhaps it is even forbidden, to act that way in practice—in what sense is that true?
Avi
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Rabbi:
Hello Avi. I gave the example of a lost object after despair, which by the strict law belongs to the finder, but in practical Jewish law we compel him to return it. So what is the meaning of the original (pure) law? That is the halakhic truth (the religious truth). The truth is that the lost object belongs to the finder, and that is worth knowing. And still, morality says that it should be returned even after despair (see what I wrote in Column 15 on morality and Jewish law), and in practice it is proper to follow morality. A person can waive his monetary rights, and the Sages can confiscate property for the sake of morality. That does not change the halakhic truth. The importance of halakhic truth is simply to know it, and not necessarily to implement it—especially in monetary law—as part of Torah study. Practical implementation is a weighted combination of Jewish law and morality. In monetary law, this can be formulated as follows: a person has a property right in the lost object, and that is the halakhic/religious truth. But rights can be waived for the sake of morality. See my article here: http://asif.co.il/?wpfb_dl=101
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Questioner:
Thank you. If so, then there is a fundamental similarity here to what you wrote about ukimtot, and also to the Ran’s homily about the combination of Torah law and the king’s law, no?
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Rabbi:
It is not really similar to ukimtot. Ukimtot do not speak about principles that are not to be implemented, but rather about implementation that exists only in a hypothetical situation. As for the Ran, there is definitely a connection. He too speaks about theoretical law and the king’s law, which is intended for practical implementation.
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Questioner (another):
I thought of a possible idea for the purpose of civil law beyond religious truth, something that somewhat recalls the law of the stubborn and rebellious son. It may be that Jewish law needs to use some property-law framework in order to convey to us ideas that do not pertain directly to monetary law—for example, the ordinance for penitents, which exempts those returning in repentance from restoring the stolen object itself and requires only its monetary value instead. In other words, the idea behind this is that one should avoid locking the door before those who wish to repent and make things as easy for them as possible. Even in a society where the law says that returning stolen property is done only by paying its monetary value (even for those who are not penitents), there is still an idea being conveyed through a certain medium that includes the Torah’s monetary laws. Without well-defined Torah monetary law, it would not be possible to convey ideas of this sort with sufficient clarity.
Oren
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Rabbi:
Definitely possible that the laws in civil law convey theological or other messages through the halakhic-legal medium. I am not sure that this must be the case, since it is certainly possible that they convey to us correct legal facts (within the legal sphere, without metaphysics), but in practical application we do not necessarily act only in accordance with them. That is, laws relating to civil law say something about civil law (and perhaps also about metaphysics), except that civil law is not necessarily the system that ought to be implemented. One can compare this to pure mathematics, which is a correct theory even though in the practical world it is not really implemented as such. There are corrections and approximations and disturbances, etc. And still, mathematics teaches something about the mathematical structure of the world itself. In the article about ukimtot I argued that even the laws of physics are not implementable in our world exactly as they are, but it is clear that they still teach something about the world (that was probably the point of Avi’s comment above).
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Avi:
Thank you. If so, then there is a fundamental similarity here to what you wrote about ukimtot, and also to the Ran’s homily about the combination of Torah law and the king’s law, no?

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Rabbi:

It is not really similar to ukimtot. Ukimtot do not speak about principles that are not to be implemented, but rather about implementation that exists only in a hypothetical situation. As for the Ran, there is definitely a connection. He too speaks about theoretical law and the king’s law, which is intended for practical implementation.