Q&A: "Division of Labors" in Rabbinic Prohibitions
"Division of Labors" in Rabbinic Prohibitions
Question
Hello Michi,
How are you?
A question that I assume you've written about, but I couldn't find it right now.
Is it possible for the prohibition against doing something to be more severe because it involves two rabbinic prohibitions rather than just one? On the face of it, what difference does that make? In any case, I violated one "do not turn aside," didn’t I?
The question came up for me because of what the Talmud says: they decreed regarding intercourse with a gentile woman because of NShGaZ or NShGaA. From Rashi it seems that he interpreted the word "because of" in the sense of "on account of"—that is, these are four reasons for the decree: lest he become accustomed to the daughter of a gentile and then come to have relations with a Jewish woman who is a menstruant, or with a maidservant, or, if he is a priest, with a zonah—forbidden promiscuous woman. In any event, it is one decree with several reasons.
But from Tosafot (Avodah Zarah 36b) it appears not that way, but rather that in this one act of intercourse itself there are several rabbinic prohibitions. And that seems a bit strange to me. Fine, if the Sages decreed against something on the Sabbath and against that same thing on a Jewish holiday, then if I did it on a holiday that fell on the Sabbath I would have violated both of those rabbinic prohibitions incidentally. Even in that case I would say it makes no practical difference. But for them to come and decree four separate decrees on the very same act—that someone who has relations with the gentile woman is considered, rabbinically, as though he had relations with a menstruant and also as though he had relations with a zonah, etc.—and all of it is rabbinic—that seems strange to me.
Best regards,
Answer
Hello N.,
I’m doing excellent (there’s a new grandson; right now he and his parents are staying with us at home).
Let me begin by noting that in Maimonides, Laws of Forbidden Sexual Relations 12:2, it implies that one receives four disciplinary floggings. I think that is the standard understanding. To my mind, Rashi is the novelty. And on looking carefully at his words, I’m really not sure that this is what he means. “He is punished because of all these,” meaning he is punished four times for four rabbinic offenses.
These are four rabbinic prohibitions that you violate in one act. Like neshekh and tarbit at the Torah level, where there is complete overlap in content and nevertheless these are two prohibitions.
This can be discussed on both the essential and the formal level.
On the formal level, true, there are views that with every rabbinic prohibition one violates only “do not turn aside” (a prohibition of obedience; Netivot HaMishpat, the well-known section 234), and that the rabbinic prohibition itself has no independent significance. But that is not reasonable even in Maimonides’ view, because then every rabbinic prohibition would amount to violating a Torah prohibition (Nachmanides’ objection). And if it is an independent prohibition, while “do not turn aside” is only the source authorizing them to legislate prohibitions, then formally there is no problem with four decrees on the same act.
However, on the essential level there is still room to discuss the rationale of the decrees: why would the Sages impose four prohibitions on the same act? If you assume that the goal of the decree is simply to prevent intercourse with a gentile woman, then it באמת has no point. But if you understand that their goal is to extend Torah prohibitions to gentile women as well—for example, out of concern lest he come to have relations with Jewish menstruants or forbidden promiscuous women—and that is explicit in Rashi on Avodah Zarah 36b: “A decree because of a Jewish zonah who had intercourse, to prohibit her”—then there is no difficulty understanding it. Another explanation: if the Sages want to say that intercourse with a gentile woman is problematic for four different reasons, then it is also understandable that they would make four decrees on the same act.
Here it is worth reflecting on neshekh and tarbit, even though that is Torah law. After all, these are two prohibitions on the same act, and they always come together. So why would the Torah prohibit both? Clearly, it wants to say that there are two problematic aspects to this act. There is no reason to distinguish between Torah law and rabbinic law, and the same can be said in the rabbinic sphere as well.
Discussion on Answer
You mean not just a case where one act violates several rabbinic prohibitions. A case like that is easy to find. You’re asking about a situation involving several prohibitions that, on the practical level, always appear in complete overlap (there is no practical difference between them, and they seem superfluous). I can’t think of one right now. I mentioned the Torah-level example of neshekh and tarbit. That is enough to demonstrate the logic, since there is no difference between Torah law and rabbinic law on the essential plane. On the formal plane there is, but I addressed that.
And one more point: this is not to reinforce the prohibition. My claim is that these are different prohibitions.
Something like this can be discussed regarding the expression “to be in violation on account of two prohibitions,” which is mentioned in the Talmud. Is that said only in order to add prohibitions and reinforce the severity, or are there several aspects here, and therefore several different prohibitions that come together? Perhaps the dispute between Maimonides and Tosafot depends on this (at the beginning of “Which Is Neshekh”): whether we say “to be in violation on account of two prohibitions” when there is no flogging. Tosafot assumes that this is said only where there is flogging, because then he gets eighty lashes. Otherwise, there is no point to it. Maimonides, by contrast, holds that this is said even where there is no punishment. On his view, these are simply two different prohibitions, not that an extra prohibition was added in order to reinforce it. As with neshekh and tarbit, where there is no flogging. By the way, regarding neshekh and tarbit Maimonides counts only one prohibition, but in the Laws of Lender and Borrower he writes that one violates two prohibitions.
I also thought of the dispute between Maimonides and Nachmanides in the ninth root. Maimonides writes that when the Torah repeats the same prohibition or positive commandment several times, it is only to reinforce it. For example, the positive commandment to observe the Sabbath appears 12 times. Nachmanides, in his glosses there, writes that the Torah does not just repeat things for reinforcement, and therefore every repetition comes to teach something.
At first glance, Maimonides here seems to contradict his own position from what I wrote to you earlier, where he says that being in violation on account of two prohibitions is not for reinforcement but because these are two aspects. But there is not necessarily a contradiction, because there we are dealing with two separately enumerated prohibitions, and that is not done merely for reinforcement. But when the Torah repeats the same prohibition several times, that is just repetition, and there it may be that it is done for reinforcement. The difference in the biblical formulation is that two different prohibitions are written in different forms, and it is clear that they are speaking about different aspects, as with neshekh and tarbit. The obligation to observe the Sabbath is written in the same form, more or less, 12 times. There it is clear that it is just repetition.
Thank you very much, and many congratulations as well (our grandchildren have also multiplied recently). Food for thought.
Is there another parallel case where one can see that the Sages decreed on a single act “because of” several things in order to reinforce the prohibition? Nothing is coming to mind for me right now.
Thanks again,