Daily Mitzvah (Rambam)

The 322nd prohibition is that we [i.e., the Beth Din] are forbidden from inflicting punishment upon transgressors and carrying out judgments on Shabbos.

The source of this commandment is G‑d's statement1 (exalted be He), "Do not burn any fire [wherever you may live on the Shabbos day]."

The meaning of this is, "Do not burn someone who has been convicted and condemned to execution by s'reifa (burning)."2 This applies to the other methods of execution as well.3

The Mechilta4 says as follows: "[The verse says,] 'do not burn any fire'; but the act of making a fire is already prohibited!5 However, it is mentioned separately to teach us a different law — that just as burning is distinctive in that [in spite of the fact that] it is one of the types of judicial execution and [therefore a mitzvah,6 but nevertheless it] does not override the prohibition of Shabbos, so too the other forms of execution do not override Shabbos."

The Gemara7 says that making a fire "l'lav yotzas"8 [it is singled out because it is "only" a regular prohibition]. However, this opinion is not accepted as the final halachah.9 Rather, the Gemara concludes l'chalek yotzas [it is singled out to show that each melachah is treated separately], and therefore one must bring an offering for every single melachah which was performed, as explained there.10

[Therefore, according to the Gemara's conclusion, there is no particular prohibition in this verse and it can be used to teach us this prohibition of inflicting punishment on Shabbos.

The Rambam now brings a source which extends the prohibition to all kinds of judicial punishment.11]

The Jerusalem Talmud12 quotes [the end of the verse, " 'Do not burn fire] wherever you may live.' Rav Ilah quotes Rav Yanai as saying that we learn from this verse that a beth din is not allowed to judge on Shabbos."13

Footnotes

1.

Ex. 35:3.

2.

See P228.

3.

See P226, P227, P229. Malkos (flogging) and other punishments are also prohibited on Shabbos (Hilchos Shabbos, 24:7). See Jerusalem Talmud quoted at the end of the mitzvah.

4.

On Ex. 35:3. The Mechilta explains why this verse cannot be interpreted literally, i.e., a prohibition against making a fire.

5.

Under the general prohibition, "do not do melachah on Shabbos." See N320.

6.

See Mishneh Torah, Hilchos Shabbos 24:7.

7.

Shabbos 70a.

8.

This Gemara poses the same question as the Mechilta which the Rambam has just quoted: If all forms of melachah are already prohibited, why was making a fire mentioned separately? The Gemara brings two answers to this question: "l'lav yotzas" or "l'chalek yotzas."

The first answer (l'lav yotzas) is that fire is singled out because it is different from other melachos. This opinion holds that while other melachos are capital offenses punishable by kores, etc. (see N320 and footnotes there), the prohibition against making a fire is only punished by flogging. This is called "l'lav yotzas," — that it was singled out ("yotzas") from all the prohibited acts of Shabbos to be treated like other prohibitions of the Torah ("lav"), i.e., punishable by flogging instead of kores.

The second answer ("l'chalek yotzas") is that fire is the same as any other melachah, but is singled out to teach something about all the melachos. This opinion holds that if a person does several melachos on Shabbos, each one is treated separately. We know that if a person did a melachah on Shabbos unintentionally, he must bring a sin-offering (see N320, ibid.). If he did two types of melachah (e.g., cooking and writing), he would bring two sin-offerings. This is called "l'chalek yotzas," — that it was singled out ("yotzas") from all the prohibited acts of Shabbos to teach that each melachah must be treated separately ("l'chalek") regarding the sacrifices.

9.

According to the opinion "l'lav yotzas," the verse has already been used to teach us a separate prohibition — that one may not make a fire on Shabbos. We are now left with a question on our commandment N322; how can we learn two prohibitions from the same verse?

The Rambam answers this question by pointing out that the Gemara concludes not like that opinion, but rather "l'chalek yotzas." Therefore, making a fire is included in the general prohibition, and since there is no separate prohibition learned from the verse, it is free to be used for this mitzvah. See Yad Halevi, N322. (See also Chinuch 114, for another explanation of the Rambam's intention in quoting this Gemara.)

10.

See Einayim L'mishpat, Yevamos 6b (p.12) regarding the precise choice of words the Rambam uses.

11.

See Derech Mitzvosecha (Tzemach Tzedek) p. 88a. Sefer Hamitzvos (Heller) p. 181, note 9. Sources quoted in Mishneh Torah, Kapach, 5746, Hil. Shabbos, Ch. 24, note 19. But see Rif Perlow Vol. 2, p. 392a.

12.

Sanhedrin 4:6.

13.

The phrase, "wherever you may live," is used in Num. 35:29 to refer to Beth Din. That teaches us that the phrase here also refers to a Beth Din. This Talmudic passage teaches that the prohibition includes all types of judgment, not only execution.