Q&A: Your article — A Synthesis of Halakhic Concepts
Your article — A Synthesis of Halakhic Concepts
Question
Rabbi Michael Abraham, greetings and blessings,
My friend, Shmuel Keren, passed along to me for reading your very interesting article, "A Synthesis of Halakhic Concepts: The Case of the Oath of Partial Admission and the Oath of the Watchmen." In that article you mention that you asked the head of the Ponevezh Yeshiva why, regarding primary categories and derivative categories in damages, use is made of the principle of the common denominator [which is a branch of the principle of binyan av], whereas regarding primary categories and derivative categories on the Sabbath, that principle is not used.
And I thought that perhaps there is an essential difference between the topics: in the case of damages we are dealing with monetary law, whereas in the case of the Sabbath we are dealing with penal law.
With regard to penal law, the rule is that punishments are not derived by logical inference. Later authorities discussed whether one may derive punishments through other hermeneutic principles. Regarding the derivation of "from what do we find" [that is, binyan av], there are different opinions that make the answer depend on the question of why punishments are not derived by logical inference. On this matter I refer you to the Talmudic Encyclopedia, volume 1, page (and column) 694.
It seems to me that this is another possible direction for answering your question (I very much enjoyed the original thought behind the question itself—I had never noticed that fact…).
With wishes for a good sealing and happy festivals
Answer
In my opinion, this does not answer it, for the following reasons.
1. At least according to most views, punishments are indeed derived from all hermeneutic principles except a fortiori reasoning. Maimonides' view (at the end of Principle 14 and in the introduction to Sefer HaMitzvot) is very exceptional on this issue (and apparently contradicted by explicit Talmudic passages, as Nachmanides already noted in his glosses to Principle 2).
2. The similarity between a derivative category and a primary category is a kind of binyan av ("from what do we find"), and there it is clear that punishments do apply. So what is the difference between a binyan av from one verse and from two?
3. Tosafot at the beginning of Bava Kamma writes that even in monetary law punishments are not derived by logical inference (he links this to a dispute between the Babylonian Talmud and the Mekhilta). According to this, there is no room at all to distinguish between monetary law and penal law.
4. At the very least, they should derive the prohibition for derivative categories from two primary categories, and only not impose punishment. But we do not find any prohibition derived in that way. It is not only about punishment.
At one point I thought that perhaps the difference could be explained by resolution. On the Sabbath there are many more primary categories than in damages, and therefore every derivative category is sufficiently similar to one of them. In damages there are few primary categories, so a priori it is reasonable that we would find forms of inference that are not sufficiently similar to any single primary category and need the help of an additional primary category in order to derive them.