In the Holy Bible you sometimes have a punishment that is stated openly but it is hard to find the prohibition. One place this comes up is the case of the rebellious son.
The law of the rebellious son [age 13 until 13 and three months] is a little vague to me right now but mainly the idea is that he is not listening to his parents and he eats a specified amount of raw meat and wine. He is given a warning. "If you do that, you will get lashes." And he says, "I understand and even so I do it." He gets the lashes.
Then later he does not listen, and before he eats the same amount of meat and wine he is given the same warning, but this time it is said, "If you do that, you will get the death penalty." And he says, "I understands and even so I do this". Then he is taken out and stoned.
The question is here, "Where is the prohibition?" We have a general principle, "There is no punishment without a prohibition." The 'Rambam says that principle does not apply when the punishment is stated explicitly. [I don't remember the actual proper usage of this principle. I think it came up in Ketubot and Yevamot ]which I learned long time ago and completely forgot.. The Ramban' disagrees and says even here we need an open verse to forbid.
And this idea of the Ramban seem to be the basis for the Tosphot I am about to discuss here.
The Talmud brings a baraita that gives different things for which the verse that forbids them is ''Don't eat on the blood.'' לא תאכלו על הדם R. Yochanan says it also forbids the rebellious son. Then some person [Rav Avin bar Kahana] says one does not get lashes for them because there are no lashes for anything in which the same verse forbids several different things.
Tosphot [Sanhedrin 63 the second to the bottom Tosphot.] asks: "But it can't get lashes anyway because it is a prohibition that could lead to the death penalty. And also in fact it does have lashes."
The law of the rebellious son [age 13 until 13 and three months] is a little vague to me right now but mainly the idea is that he is not listening to his parents and he eats a specified amount of raw meat and wine. He is given a warning. "If you do that, you will get lashes." And he says, "I understand and even so I do it." He gets the lashes.
Then later he does not listen, and before he eats the same amount of meat and wine he is given the same warning, but this time it is said, "If you do that, you will get the death penalty." And he says, "I understands and even so I do this". Then he is taken out and stoned.
The question is here, "Where is the prohibition?" We have a general principle, "There is no punishment without a prohibition." The 'Rambam says that principle does not apply when the punishment is stated explicitly. [I don't remember the actual proper usage of this principle. I think it came up in Ketubot and Yevamot ]which I learned long time ago and completely forgot.. The Ramban' disagrees and says even here we need an open verse to forbid.
And this idea of the Ramban seem to be the basis for the Tosphot I am about to discuss here.
The Talmud brings a baraita that gives different things for which the verse that forbids them is ''Don't eat on the blood.'' לא תאכלו על הדם R. Yochanan says it also forbids the rebellious son. Then some person [Rav Avin bar Kahana] says one does not get lashes for them because there are no lashes for anything in which the same verse forbids several different things.
Tosphot [Sanhedrin 63 the second to the bottom Tosphot.] asks: "But it can't get lashes anyway because it is a prohibition that could lead to the death penalty. And also in fact it does have lashes."
You can ask on the first question: The verse, "Don't eat on the blood"לא תאכלו על הדם does not exempt the rebellious son from lashes, so it can't exempt anyone from lashes. So to find an exemption is only by what the לאו שבכללות a prohibition that includes many things.
But you could defend the question of Tosphot in this way:
It does exempt from lashes because the rebellious son does not get lashes from that verse, but from the verse that is said in its own place. ויסרו אותו. The point of Tosphot is the reason not to get ashes from our verse is from two reasons and the Talmud only mentions one.
But then we moved on to the second question of Tosphot where it looks like he is in fact saying that the lashes do come from that verse.
So Tosphot is asking on our Gemara from two sides. He is saying if you assume thus and thus, this Gemara makes no sense. And if you make this other set of assumptions, the Gemara still is hard to understand.
I think the entire Tosphot is going like the Ramban'.
The 'Rambam would deny that either question is valid. Let us think. the first question says that yes we agree with the Gemara that forbidding lots of things would be a reason not to get lashes for that prohibition. but there is a further reason not to get lashes for it--because it leads to the death penalty.
The 'Rambam would say, "No it does not. Once you know there is a penalty, you don't bother looking for the prohibition. The reason for the death penalty might have been that verse "Don't eat on the blood," but we don't need it to be, and now we know it can't be."
The second question of Tosphot does not even begin if one holds by the Rambam. To the Rambam the reason for the lashes of the rebellious son is not from that verse because it is a verse that includes other prohibitions.
In any case the Rambam would have to answer the problem of what does Rabbi Yochanan means then and he would say it is just a general hint but it is in fact that the reason for either the lashes or the death penalty.
I am not done thinking about the first question of Tosphot. I am not sure if what I wrote here is really satisfactory or not.
But you could defend the question of Tosphot in this way:
It does exempt from lashes because the rebellious son does not get lashes from that verse, but from the verse that is said in its own place. ויסרו אותו. The point of Tosphot is the reason not to get ashes from our verse is from two reasons and the Talmud only mentions one.
But then we moved on to the second question of Tosphot where it looks like he is in fact saying that the lashes do come from that verse.
So Tosphot is asking on our Gemara from two sides. He is saying if you assume thus and thus, this Gemara makes no sense. And if you make this other set of assumptions, the Gemara still is hard to understand.
I think the entire Tosphot is going like the Ramban'.
The 'Rambam would deny that either question is valid. Let us think. the first question says that yes we agree with the Gemara that forbidding lots of things would be a reason not to get lashes for that prohibition. but there is a further reason not to get lashes for it--because it leads to the death penalty.
The 'Rambam would say, "No it does not. Once you know there is a penalty, you don't bother looking for the prohibition. The reason for the death penalty might have been that verse "Don't eat on the blood," but we don't need it to be, and now we know it can't be."
The second question of Tosphot does not even begin if one holds by the Rambam. To the Rambam the reason for the lashes of the rebellious son is not from that verse because it is a verse that includes other prohibitions.
In any case the Rambam would have to answer the problem of what does Rabbi Yochanan means then and he would say it is just a general hint but it is in fact that the reason for either the lashes or the death penalty.
I am not done thinking about the first question of Tosphot. I am not sure if what I wrote here is really satisfactory or not.
