Q&A: Punishment Is Not Derived by Logical Inference
Punishment Is Not Derived by Logical Inference
Question
Have a good week, Rabbi.
Following a discussion with a friend, a question came up for us: Maimonides derives the prohibition against striking a fellow Jew by an a fortiori argument from “he shall not add,” as follows: “Rather, anyone who strikes a decent person from among Israel, whether minor or adult, whether man or woman, in a quarrelsome manner—this person transgresses a prohibition, as it is said: ‘He shall not add … to strike him’ (Deuteronomy 25:3). If the Torah warned not to add to the beating of a sinner, then all the more so one who strikes a righteous person. And even merely to raise one’s hand against another is forbidden. Anyone who raises his hand against another, even though he did not strike him, is called wicked.
One who strikes another a blow that does not involve the value of a perutah is lashed” (Laws of One Who Injures Person or Property, chapter 5). Seemingly this is difficult—punishment is not derived by logical inference. I thought to say that this is an a fortiori argument of the “included within the greater amount is the lesser amount” type, and therefore punishment can be imposed. My friend argued that the prohibition is not found in the very definition itself—it could be said that the prohibition is specifically to strike a wicked person beyond the assessed number of lashes set for him, even though the court thinks he deserves it (for example, a blow-count that does not divide by three, if the court thinks that is what is appropriate and the next lower number divisible by three is no longer fitting, or more than forty [according to Maimonides, that is the Torah-level definition]). If so, this is not an a fortiori argument on the basis of which one may punish.
Does the Rabbi have an explanation that could shed light on this for us?
Answer
Excellent question. First, regarding an a fortiori argument of the “included within the greater amount is the lesser amount” type—there is a dispute whether one may derive punishments from that or not. See Tosafot at the beginning of Bava Kamma, which cites the Mekhilta regarding: if one is liable for opening a pit, then all the more so for digging one. The Maharsha, in his second edition, wrote that in the Babylonian Talmud they derive something else from that, because they hold that punishments are derived by logical inference when it is an a fortiori argument of the “included within the greater amount is the lesser amount” kind. It follows that according to the Mekhilta, punishments are not derived even from such an a fortiori argument. Other writers on the rules wrote similarly. See also Kesef Mishneh on one who passes some of his children to Molech, but not all of his children to Molech, where he discusses this at length.
In terms of logic, it seems that the matter depends on why punishments are not derived by logical inference. If the concern is that perhaps there is a refutation, then here apparently there is no such concern (although elsewhere I have shown that even an a fortiori argument of the “included within the greater amount is the lesser amount” type can be refuted). But if the reason is that perhaps the more severe case does not carry the punishment of the lighter one, then that applies here as well.
As for your question, another possibility is that Maimonides really does hold that punishments may be derived from an a fortiori argument of the “included within the greater amount is the lesser amount” type. But it is also possible that he follows the view that they may not be, because the a fortiori argument here is somewhat different from an ordinary one. One can see it merely as clarifying the scope of the prohibition against adding a blow—that it does not refer only to an agent of the religious court, but to any person. The a fortiori argument only reveals that the prohibition in the verse applies to every person. A regular “included within the greater amount is the lesser amount” a fortiori argument introduces an additional prohibition (like the obligation to pay for digging a pit), but here it is the same prohibition applied to additional people.
In my opinion, that is what must be said, because the a fortiori argument here is not an a fortiori argument of the “included within the greater amount is the lesser amount” type. A righteous person is more significant than a wicked person, but does not include him. So this is really an analogy: just as with an agent of the religious court, so too with any person. The a fortiori wording is only there to reinforce the analogy.
Discussion on Answer
I also thought about those words of Maimonides, but he is speaking there about deriving a warning by logical inference when the punishment is explicit in the Torah. Here the punishment is not explicit. One who strikes his father or mother is not included in this prohibition, and it is easy to distinguish between that and one who strikes an ordinary Jew.
I thought perhaps to derive it from the fact that one who raises his hand against another is called wicked (and this is derived from the verse, “Wicked man, why do you strike your fellow?”), and from the laws of disqualified testimony we see that the disqualification of a wicked person applies only to one who transgressed a prohibition punishable by lashes or death. Maybe Maimonides’ statement can be applied on that basis. But it still requires further study.
Another possibility: perhaps it can be derived from a blow that causes damage worth a perutah, which obligates payment. According to several medieval authorities, the payment is itself a punishment, and if so it testifies that there is a prohibition, and again one could punish on the basis of logical inference. Somewhat like lashes for false witnesses in the case of someone alleged to be the son of a divorcee, where since it is impossible to punish them with “as they intended,” they receive lashes. (True, there there is a warning from “You shall not bear false witness,” but some explained that those lashes are under the law of “as they intended.”)
I didn’t understand what you meant by your words, “one who strikes his father or mother is not included in this prohibition,” since Maimonides states explicitly in the Laws of Rebels: “From where is the warning against striking one’s father derived? We have heard the punishment, but we have not heard the warning. Since one is warned not to strike any person from Israel, his father and mother are included.”
The prohibition against striking a fellow Jew is prohibition no. 300 in Maimonides, while striking one’s father and mother is no. 319. These are two separate prohibitions, as I wrote.
True, regarding striking one’s father and mother there is no explicit warning, and therefore their warning was derived from striking a fellow Jew (in the Mekhilta cited by Maimonides there, and in Sefer HaChinukh, commandment 48), and that indeed follows Maimonides’ principle at the end of Principle 14 mentioned above. But that was done by an a fortiori argument from striking an ordinary person to striking one’s father, which is more severe. Therefore the reverse direction—from a father to an ordinary Jew—does not exist, because we do not derive the lighter case from the more severe one. Beyond that, there is also a difference in punishments: striking one’s father carries death, while striking an ordinary person carries lashes. So I do not see how we could derive from striking a father (the more severe case, punished by death) to striking an ordinary person (the lighter case, punished by lashes). It is no accident that these are two separate prohibitions.
We do find a seemingly similar example that Maimonides brings regarding the death penalty of a married woman who committed adultery: if she is the daughter of a priest, she is burned; if she is the daughter of an ordinary Israelite, she is strangled; and if she is betrothed, she is stoned. Yet according to Maimonides all three are included under one prohibition (no. 347), despite the differences in punishment. But there, each one has its own separate punishment, and the warning for all of them is from “You shall not commit adultery” (see Principle 7). See also commandment 347, where he notes that there is even a general punishment (“the adulterer and the adulteress shall surely be put to death”) that is excepted in several cases. There too there is not necessarily a difference in severity (though one could analyze that further).
Hello Rabbi!
Seemingly, an a fortiori argument of the “included within the greater amount is the lesser amount” type is explicit in the sugya in Keritot 2b–3a: that one may not derive the punishment for a sister who is both his father’s daughter and his mother’s daughter from an a fortiori argument based on a sister from only one side. Seemingly that is exactly such a case, no?
First, we have seen that there is a dispute about this, and perhaps that sugya follows one of the opinions. Second, it may be an application of “if it is not needed for that matter,” meaning that here there is an otherwise unnecessary law that could have been learned by an a fortiori argument. It comes to teach that punishment is not derived by logical inference. True, here it is an a fortiori argument of the “included within the greater amount is the lesser amount” type, and for that type punishments may be derived; but the redundancy comes to teach, by way of “if it is not needed for that matter,” that in an ordinary a fortiori argument (not of the “included within the greater amount is the lesser amount” type), punishment is not derived by logical inference.
See Temurah 9: “And Abaye could say to you: this is not a true legal derivation—why should good be any less than bad?” It sounds from his words that he held that where the ‘included within the greater amount is the lesser amount’ logic applies, one cannot say that punishment is not derived by logical inference, and Rava presses him on this.
And see the book Ginat Veradim by the author of Pri Megadim, Rule 1.
According to Maimonides, in this case, since part of the punishment for the prohibition derived by an a fortiori argument is in fact explicit in the Torah (“one who strikes his father or his mother shall surely be put to death”), the rule “warnings are not derived by logical inference” does not apply here (Book of Commandments, Principle 14). And perhaps there is reason to say that similarly “punishment is not derived by logical inference” also does not apply here, because the explicit punishment testifies that there is no refutation of the a fortiori argument itself, and therefore one can also derive the non-explicit punishment, namely lashes. (I mean according to the well-known view that punishment is not derived by logical inference because of concern over a possible refutation that escaped our notice.)