Q&A: One Does Not Derive Punishment from Inference in the Other Hermeneutical Principles
One Does Not Derive Punishment from Inference in the Other Hermeneutical Principles
Question
Greetings and blessings,
I could not find where Maimonides includes the other hermeneutical principles under the rule that one does not derive punishments from inference. I would appreciate it if you could show me.
In addition, I did not find in your article a discussion of punishment. That is, is Maimonides consistent in the Mishneh Torah that for every prohibition learned through the thirteen hermeneutical principles, one does not receive lashes?
Benjamin
Beginning of the thread:
Years ago I heard a lecture from you in which you mentioned Maimonides’ view that for a prohibition that is not explicit in the verses but is learned through the thirteen hermeneutical principles, one does not receive lashes for it.
A. Where does Maimonides say this?
B. Does Maimonides treat a prohibition learned through the thirteen hermeneutical principles as a rabbinic prohibition also with respect to ruling leniently in a case of doubt (and likewise regarding the authority of the sages to be lenient)?
C. Is Maimonides consistent about this in the Mishneh Torah, that every commandment learned through the thirteen hermeneutical principles he calls rabbinic?
D. How do you understand Maimonides’ opinion regarding the four prohibitions of the Sabbatical year? All the other prohibitions of the Sabbatical year are learned through the thirteen hermeneutical principles (see Sifra, Behar), and Maimonides writes that they are rabbinic, and also writes that the sages were lenient about them in cases of loss. In your opinion, did he understand their source to be the thirteen hermeneutical principles, or that they were only attached to the verses as a support?
With blessings,
Benjamin
Rabbi Michael Abraham:
Hello,
1. See the second root and the introduction to Sefer HaMitzvot (at the end of the fourteenth root).
2. I think not. I explained this in detail in my article on the second root in the book Yishlach Sharashav (there is a link on the site).
3. This is a question over which much ink has been spilled. There are major disputes around each such law. See my article there.
4. I am not currently immersed in this topic. But if in his opinion what is learned from the hermeneutical principles are rabbinic prohibitions, then I do not see why not.
Answer
In the introduction to Sefer HaMitzvot he writes:
And when the prohibition was not explicitly clarified in Scripture, they derive it by inference from the Torah’s forms of reasoning. As they mentioned (Sanhedrin 85a) regarding the prohibition of cursing one’s father and mother and striking one’s father and mother (negative commandments 317–318): the Scripture did not explicitly state it at all, for it did not say, “Do not curse your father,” nor did it say, “Do not strike your father,” but since it imposed the death penalty on one who strikes or curses, we know that these are negative commandments, and for them and others like them (negative commandment 26 and similarly negative commandments 195–196) we derive the prohibition from elsewhere by way of inference. And this does not contradict their statement (Pesachim 24a, Yevamot 22b, Makkot 5b, 17b, Zevachim 106b), “One does not formulate a prohibition from inference,” nor their constant expression (ibid. 17b, 106b; Yevamot 68b), “Do we formulate a prohibition from inference?” For we say “one does not formulate a prohibition from inference” only when the aim is to prohibit something for which no specific prohibition has been clarified, by means of inference. But when the punishment is explicitly found in the Torah for one who performs that act, then we necessarily know that it is a forbidden act against which one was warned; we derive the prohibition by inference only in order to reinforce the principle behind their saying: “Scripture does not punish unless it has first warned.” And once the prohibition concerning that matter has been established, then one who transgresses and does it becomes liable, whether to karet or to death. Know this introduction and remember it together with the previous roots whenever it comes up.
Nachmanides, in his glosses to the second root, comments on this:
I also saw that the Rabbi wrote further in the introduction that he placed before listing the commandments [pp. 200–202], saying that when the punishment for an act among the transgressions is explained in the Torah, but the prohibition is not explicit—such as one who strikes his father and mother and one who curses them, for the Torah did not say, “Do not curse your father,” or “Do not strike your father,” but only that one who strikes or curses is liable to death—we derive for them and similar cases the prohibition from other places by way of inference. And this, he says, is not contrary to their statement, “One does not formulate a prohibition from inference,” and their constant saying, “Do we formulate a prohibition from inference?” For we say this only in order to prohibit something whose prohibition was not clarified, by way of inference; but when the punishment is clearly stated, we necessarily know that it is an act one must refrain from doing, and we derive the prohibition only in order to reinforce their principle that Scripture punishes only if it first warned. All of this is mistaken and a confused compromise that he introduced in order to uphold his own position, since he casts doubt on the hermeneutical expositions. For what they meant by saying “one does not formulate a prohibition from inference” is only that one does not formulate a prohibition from a logical a fortiori argument. And similarly they said of it, “one does not derive punishments from inference,” as is explained in many places in Sanhedrin (54a, 73a, 74a, 76a) and Makkot (5b, 14a, 17b). And even if the punishment were explicit and stated clearly, they would not derive for it a prohibition from inference—that is, from an a fortiori argument—under any circumstances.
There are several places in the Yad HaChazakah that are attributed to this principle, but there has been much debate about each of them. I discuss this there.
Discussion on Answer
There are more examples of this. For instance, in his Commentary on the Mishnah, chapter 17 of Kelim, Maimonides explicitly gives such a rationale regarding the measures: although the law transmitted to Moses at Sinai is classified as rabbinic in formulation, the measures are Torah-level because they only determine the parameters of a Torah law.
First of all, this is an extremely fundamental rule. If Maimonides held this view, would he not have written it explicitly, and not merely hinted at it at the end of his introduction to Sefer HaMitzvot?
In addition, are there no examples of this from an exposition using the thirteen hermeneutical principles? It is difficult that such a fundamental rule remained hidden—unless you think Maimonides wanted to conceal it…
There is something called an “extraordinary law,” which is something whose definition is rabbinic but whose punishment is Torah-level. As I recall, that is the case you are talking about.
Benjamin, you keep coming back to points that I discussed in the article on the second root and in the book (Ruach HaMishpat). He did not conceal it, but it does not appear often because it is fairly rare.
You wrote there that one is punished for betrothal by money even though it is learned from a verbal analogy, since it is a detail within the commandment of betrothal.
The boundaries of this principle are not clear enough to me. I mentioned above the commandment of the Sabbatical year. Four types of labor are written explicitly in the Torah, and the sages expounded additional labors as prohibited. Maimonides writes that for those additional labors one does not receive lashes. But here too, seemingly, these are details within the commandment of the Sabbatical year, so one should also punish for them.
I did not find in your discussion there additional examples in Maimonides of the distinction between a detail of a commandment learned through exposition and a newly derived commandment—and the difference that here one punishes and there one does not.