Q&A: A Prohibition with No Action — Learning by a Common Denominator
A Prohibition with No Action — Learning by a Common Denominator
Question
Hello Rabbi,
In the Talmud in Makkot 4b, a dispute is brought regarding a prohibition that involves no action: according to the Sages, one is not flogged for it, and according to Rabbi Yehuda, one is flogged. There they tried to derive that one is flogged through a common denominator from conspiring witnesses and one who brings out a bad name, since in both cases there is no action and yet one is flogged. That derivation is rejected, because in each of them there is a stringent aspect of its own (according to Rabbi Yehuda the derivation does stand, but that is not important right now).
Let us set aside for a moment the difficulty with that rejection, which almost nullifies any derivation by common denominator altogether (the medieval authorities discuss this, and you also addressed it in one of your columns). In practice, there are several other prohibitions with no action for which one is flogged, as brought in Temurah 3a. So even if conspiring witnesses and one who brings out a bad name really do each have a unique stringency, one could still derive it by a common denominator from the prohibitions listed in Temurah (one who takes an oath, and one who curses his fellow using the Divine Name). Why doesn’t the Talmud do that?
In addition, Maimonides writes at the beginning of the laws of Temurah that where one is flogged and where one is not is learned by tradition. If so, why did they try at all to derive it by a common denominator?
Answer
I don’t know how to give you a general answer. Each source has to be discussed on its own terms. In each one there is apparently its own unique stringency.
"Learned by tradition" in Maimonides could also mean from an exegetical derivation.