Parshas Beha'aloscha:
Crime and Punishment

by Dovid Manela

The Parsha of Beha'aloscha concludes with the story of Miriam, who spoke lashon hora (gossip) and was consequently punished. "She was quarantined for seven days," reads chapter 12, verse 15. In reasoning the length of her punishment, the Torah applies the logic of a "Kal Va'Chomer" (which means something like, if 'a', then all the more so 'b'). In this case, a kal va'chomer is used to say, "were Miriam's father to spit in her face, would she not be humiliated for seven days?" Since (a) is true, then all the more so, (b) she should be quarantined outside the camp for seven days, for speaking lashon hora.

When the Torah depicts a prohibition without a corresponding  punishment, then a kal va'chomer, will have power to define the punishment

The Talmud, (Zevachim 69B) acknowledges this verse as the biblical source for validating the use of a kal va'chomer in the determination of halacha (Jewish law). However, if we are assuming that a legitimate kal va'chomer was used in determining Miriam's punishment, then this contradicts another Talmudic ruling (in Tractate Makkos 5.b). This ruling states that deliverance of a punishment cannot rely on the legal power of a kal va'chomer.

The Korban Aharon explains that this ruling in Makkos is valid only when the kal va'chomer is a manifestation of the human thought process, since it is not a direct expression of Hashem's word. It is very sensible to be suspicious of possible mistakes and problems due to man's finite comprehension. Therefore, it would not be right to subject someone to a punishment based on a method that is woven with threads of skepticism. On the other hand, if the kal va'chomer is written explicitly in the Torah, it is reflective of the infinite wisdom of Hashem, insuring its complete reliability. Thus, the ruling in Makkos would not apply and it can be used as a basis of a punishment.

Some commentators are not content with this explanation. After all, the Tractate Zevachim gives the kal va'chomer of our Parsha universal significance as the source from where the Rabbis receive permission to make their own kal va'chomer.

A Kal Va'Chomer can reflect the infinite wisdom of Hashem
The Satmar Rav, in his Divrei Yoel uses an entirely different approach to resolve this contradiction between the tractates. He bases it on a principle from the Magid Mishna.

Commandments fall into two categories, positive (do . . . ) and negative (do not do . . . ).

Normally, when the Torah explicitly states an issur (prohibition) as "do not do . . ." the punishment is lashes. The Torah does not need to write this, as it is implicit in the definition of a negative commandment. On the other hand, when the Torah issues a positive commandment with the phrase "do . . ." an actual prohibition is not explicitly stated; it is merely implied. Unless the Torah clearly delivers a punishment for the transgression, transgressors contract the sin, but receive no lashes.

In these situations,according to the Maggid Mishnah, a kal va'chomer can be used to derive the punishment. In other words, when the Torah depicts a prohibition without a corresponding punishment, then a kal va'chomer, if available, will have the power to define the punishment. (This principle is not operative with respect to sentencing one to death. Then an explicit statement is required.)

The Divrei Yoel explains that refraining from speaking lashon hora is written as a positive commandment according to the Ramban, in his comments on the Book of Mitzvahs of the Rambam.

The Ramban makes the presumption based on a "Sifra" which cites the verse "remember that which Hashem did to Miriam" the Ramban interprets the word "remember" to connote "do this," a positive commandant against speaking lashon hora. Since the Torah already depicts the prohibition of lashon hora in a way that suggests no punishment,therefore according to the Maggid Mishnah the kal va'chomer in our Parsha can be appropriately used for punishment.

May we only commit Mitzvos and be deserving of reward in this world and the world to come!

Good Shabbos.

Published Tuesday June 24, 1997

Dovid Manela is a medical student who studies evenings in the Kollel. He is originally from Los Angelas.



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