The Levels of Torah Law

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by R. Gidon Rothstein

Starting Part I of the Petihah Kolelet: The Levels of Torah Law

Peri Megadim is going to introduce us to the levels of laws in halacha, with examples of why each level has a practical nafka minna, a meaningful difference, what changes if a law is written explicitly in the Torah, for the highest level as an example, as opposed to being known some other way [in our recent project on the third section of Sha’arei Teshuvah, I noted Rabbenu Yonah gave another impact of the source of a rule, in that repentance reacts to severity of sin, the more severe the sin, the higher the bar for repentance.]

Within the realm of clear Torah Law (the Oral Law might tell us what the verses mean, but the obligation or prohibition is in the verse itself), there are mitzvot aseh, obligations, and mitzvot lo taaseh, prohibitions of various sorts, some that incur a death penalty, some karet, excision, some lashes, and some no court-administered punishment.

It’s a Death Penalty Sin Regardless of Whether the Criminal Is Put to Death

Death is the most extreme punishment in the system, and knowing the Torah assigns the death penalty for a sin matters even where there is no chance of it being enacted. For Peri Megadim’s example, people who violate a capital prohibition do not receive lashes nor have to pay damages or fines incurred during that act, even if the crime was committed be-shogeg, without full knowledge (the person did not know sewing on Shabbat was a Biblical violation, let’s say, and while sewing damaged someone else’s fabric). In a time when courts are not administering capital punishment, the person still will not have to pay the damages.

(This is due to a principle Peri Megadim does not name explicitly, kim lei bederabba minei, capital punishment elbows out all other punishments, even if the person will not be put to death. There’s a lot to be discussed there, but Peri Megadim does not delve into it here.)

Magen Avraham 278;1 notes a question raised by a sefer called Tal Orot (I think—the acronym is T”A, and Turei Even wasn’t written yet): in Hoshen Mishpat 424, Tur ruled a victim cannot collect damages for being wounded by someone else on Shabbat, because Shabbat violation is a death penalty offense. Tal Orot wondered how that could be, because wounding someone else is generally a melacha sheeina tzericha legufa, a Shabbat violation performed for some other reason than the Shabbat-violating element (in this case, drawing blood). In Orah Hayim 278, Tur had agreed such acts do not violate the Torah at a Biblical level (the Torah prohibited intentional acts, and these kinds of melachot do not have sufficient attention to the element that violates Shabbat). Seemingly, then, the person did not perform an act for which a court would ever have assigned the death penalty, and the assailant should have to pay the damages.

Doubts and Kinds of Doubt

Magen Avraham suggested Tur was unsure of the status of melacha sheeina tzericha, since some authorities did think it rose to the level of a Biblical violation, and people seeking to extract money from others bear the burden of proving their case (a principle known as hamotzi mehavero alav hareaya). The victim cannot prove this kind of act on Shabbat is prohibited rabbinically rather than Biblically, and therefore cannot get the money.

Peri Megadim objects based on Tur elsewhere being unequivocal that such acts are a matter of rabbinic prohibition. In addition, Sema (a commentary on Shulhan Aruch) suggested a way this could be considered a melacha hatzericha legufa, an act engaged for its typical Shabbat reason, a full Biblical violation.

Leaving aside the specific case, the idea opens the door to multiple ways people could not recover damages because the aggressor might be liable for the death penalty. Peri Megadim offers a relatively complicated example, the upshot of which is that if a woman’s wedding left doubts about whether it took effect and she then had an affair during which property was damaged, the owner could not recover the damages, because the couple might have been committing a capital crime.

He registers a caveat with more general ramifications. Were the doubts about her status to stem from contradictory witnesses, for example, she and her partner would have to pay, because until we have definitive evidence of marriage, she has a hezkat penuya, a presumption of being single, and no reason to assume she was committing capital adultery.

capital crime, witting or not, takes up all the air, allows for no other ramifications, including paying damages. In a doubtful case, the one suing for money would have to prove there was no capital crime, although sometims our halachic rules of presumption, such as hazaka, do the work for the plaintiff, tell us to assume it was not a capital crime.

Plain prohibitions, where a court could administer lashes, work a little differently. A sinner to whom a court administers lashes would also be exempt from payments. If the court was not in fact lashing him/her, such as if there were no warning from witnesses or nowadays when courts are not empowered to give lashes, the person will have to pay the damages.

More Reasons to Know What’s What

Knowing what counts as a capital crime matters also in terms of saving someone who is deathly ill, in that we seek to violate the Torah in the least transgressive way possible (as long as figuring out what counts as “least” will in no way risk a worse outcome. This is an important concept within the laws of saving lives, especially on Shabbat, hakal hakal tehilah, we violate the least significant rule first, but only if it will not endanger the patient).

Knowing what counts as the kind of violation that would have incurred lashes also impacts the person’s ability to serve as a witness. Deliberate violation of a lashable Torah law renders the person pasul leedut, invalid as a witness (when I was growing up, there were still rabbis who worried whether there would be observant Jews at a wedding, and brought someone with them just in case).

Validity as a Witness and Flouting Human Punishment

At “lower” levels, we still gain needed knowledge from being clear about the nature of a law. For a plain Biblical violation (where the Torah does not prescribe lashes nor will the sinner lose his status as a witness), another halachic principle comes into play, ein isur hal al isur, a second prohibition does not come into effect when one is already operative (unless the new prohibition adds something; Yom Kippur adds a prohibition on all foods, so even foods otherwise prohibited are also prohibited because of Yom Kippur).

The principle does not apply to mitzvot aseh, obligations, yet we still gain from knowing an obligation is Biblical–it tells us whether an oath to either perform or not perform the action will take halachic effect.  Normally, we say Jews are mushba already, took an oath at Sinai to fulfill the Torah, so no new oath can come into play. But if the action is not a specific obligation or prohibition, such as hatzi shiur, eating less than the minimum amount of a prohibited item, an oath would come into play. Were the oath-taker to eat the less than minimum amount, s/he would be liable for violating a Biblical oath and a man would be invalid as a witness.

Peri Megadim also thinks the loss of one’s ability to be a witness comes only from violating a prohibition with lashes or the death penalty. A Jew who knows a certain act is prohibited on Shabbat but does not realize Shabbat has a death penalty counts as enough of a shogeg, not fully aware of the act, to not forfeit his rights as a witness, because that prohibition does not produce lashes, since it is a prohibition recorded as part of laying out a capital punishment.

On Yom Kippur, on the other hand, mistaking the holiday for one where there are “only” lashes would lose the Jew the right to be a witness, because he knew he was violating the Torah in a way that incurred lashes. Were he to think there was “only” karet and no lashes, Peri Megadim thinks he might still be a valid witness, because he did not know the law he was violating was punishable by a human court.

He is teaching us it’s flagrant violation of human standards that render a man invalid as a witness. If so, he wonders about a Jew who sins in a way where halacha does not prescribe a punishment but does allow others to kill the person on the spot; not a court-administered punishment, but the sinner is flouting laws enforced by people.

For our last example for this time (bringing us to the end of paragraph three of this first part), Peri Megadim suggests that in case of a doubt about an issue where Torah law is not explicit, such as hatzi shiur, less than the minimal amount, the doubtful case might not be Biblically prohibited (to eat less than an olive’s worth of pig is Biblically prohibited, we assume, but there’s not a direct verse for it, he is pointing out. Refraining from doubtful situations of hatzi shiur might be a rabbinic problem, with many leniencies attached).

This is certainly true according to the view (which we will see again) that it was Hazal who prohibited cases of doubt about whether an halacha leMoshe miSinai, a law transmitted purely orally at Sinai, applied to a certain situation. The halacha itself is clear, but it is not clear if the prohibition on risking doubtful circumstances was Biblical or rabbinic.

As I have written this summary, I recognize flow is a weakness for Peri Megadim. The great strength of his work is how he brings our attention to reasons to be interested in the exact provenance of an obligation or prohibition. To say “Jews are supposed to do or not do y” may be true, but is grossly insufficient, because there are many ramifications to knowing each rule’s parameters. As he has begun to show us.

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