The Incident Involving the Woman and the Oil and the Prohibition to Inflict an Injury Upon Oneself (91A-91B)

  • Rav Shmuel Shimoni

 

 

 

            In today's shiur we will return to the latter part of the mishna on p. 90b – the incident involving the woman and the oil, and examine the related Gemara. We will then turn our attention to the issue upon which the Gemara focuses – self-inflicted injury.

 

I. THe incident involving the woman and the oil

 

This is the general rule: All depends upon the dignity [of the humiliated person]. Rabbi Akiva said: Even the poor in Israel have to be considered as if they are freemen reduced in circumstances, for in fact they all are the descendants of Avraham, Yitzchak and Yaakov. It once happened that a certain person uncovered the head of a woman in the market place and when she came before Rabbi Akiva, he ordered the offender to pay her four hundred zuz. He later said to him: Master, allow me time [in which to carry out the judgment]. Rabbi Akiva assented and fixed a time for him. He watched her until he saw her standing outside the door of her courtyard. He then broke in her presence a pitcher where there was oil of the value of an issar, and she uncovered her head and collected the oil with her palms and she put her hands to her head [to anoint it]. He then set up witnesses against her and came to Rabbi Akiva and said to him: Have I to give such a woman four hundred zuz? But Rabbi Akiva said to him: Your argument is of no legal effect, for where one injures oneself, though it is forbidden, he is exempt, yet were others to injure him, they would be liable: so also he who cuts down his own plants, though it is forbidden, is exempt, yet were others to [do it], they would be liable.

 

            In effect, the argument presented by the person who uncovered the woman's head gives expression to the position of the first Tanna of the mishna, that the fixed sums set down in the first part of the mishna do not apply to a lowly person who is not particular about his own dignity, so that the injury caused him by his humiliation is not that great. As the Rambam formulates the matter:

 

There are many types of blows that involve humiliation and a small amount of pain, but no permanent damage. Our Sages have already ordained specific payments for these types of blows… When are these assessments imposed? When a distinguished person is involved. If, however, an ignoble person is involved - one who is not particular about these things or the like - he receives only the amount of money that is appropriate for him, as assessed by the judges. For there are base people who are not concerned with being shamed and will demean themselves in any humiliating manner for foolishness and frivolity, or to receive a peruta from the fools who jest with them. (Hilkhot Chovel u-Mazik 3:8, 11)

 

            The person who uncovered the woman's head demonstrated that his victim was prepared to uncover he head on her own initiative for a paltry issar of oil, and therefore she falls into the category of ignoble people. In the parallel passage in Avot de-Rabbi Natan (chapter 3), his claim is that she does not deserve to receive any compensation whatsoever, but even if we do not take it to that extreme, there is no justification to give such a person 400 zuz, but only "in accordance with his dignity."

 

            Rabbi Akiva's answer to the first Tanna's position appears at the beginning of the section of the mishna cited above: "Even the poor in Israel have to be considered as if they are freemen reduced in circumstances, for in fact they all are the descendants of Avraham, Yitzchak and Yaakov" – an egalitarian approach to compensation for humiliation (similar to Rabbi Meir's position, above, p. 86a, only that Rabbi Akiva relates to cases where the payments are fixed), according to which we do not examine the standing of the specific victim and his personal suffering as a result of the humiliation, but rather we award compensation for the injury to the person qua person.

 

            When, however, we examine Rabbi Akiva's response to the person who uncovered the woman's head, we find to our surprise a different explanation: "For where one injures oneself, though it is forbidden, he is exempt, yet were others to injure him, they would be liable." Why doesn't Rabbi Akiva repeat the argument that he voiced earlier? It is possible that Rabbi Akiva's earlier argument was an answer to the first Tanna's position that we distinguish between people in accordance with their socio-economic status. Rabbi Akiva does not accept this position; he maintains that in this context we give overriding weight to the fact that we are all descendants of Avraham, Yitzchak and Yaakov. This, however, does not contend with the fact that there are people who are not particular about their dignity. Why should we not say that they suffer less humiliation? Rabbi Akiva's answer to the person who uncovered the woman's head comes to contend with this argument.

 

            It is, however, difficult to understand this rationale and how it answers the argument put forward by the person who uncovered the woman's hair. The offender did not criticize the woman's conduct, but merely established that her behavior indicates that she is a lowly person who is not particular about her own dignity, so that her humiliation is not that great. As was noted above, he does not necessarily mean to say that there should be no imposition of liability whatsoever, but only that there is no justification to impose an obligation of 400 zuz.

 

            It may be proposed that according to Rabbi Akiva when a person embarrasses and humiliates another person, he does not lower his standing, as that remains as it was owing to the unique standing of each and every Jew. The liability is for the painful blow to the person who enjoys that special standing, but not for a blow that succeeds in lowering that standing. The same is true when a person humiliates himself. It is evident from the plain sense of our mishna that a person is forbidden to humiliate himself, and even though the Gemara proposes otherwise, the Tosafot (91b, s.v. ela) explain that according to the Gemara's conclusion this is not the case, and the Tosefta (9:1) explicitly states that there is such a prohibition.[1] This prohibition stems from the fact that the victim is a human being who enjoys special value and bears the image of God, and therefore a person is forbidden to act in this manner even towards himself.

 

According to Rabbi Akiva, even when a person humiliates himself, this doesn't lower his standing, because his standing cannot be lowered, as it does not belong to the humiliated person. This is Rabbi Akiva's argument: "For where one injures oneself, though it is forbidden, he is exempt, yet were others to injure him, they would be liable." That is to say, your argument that the woman was not particular about her own dignity is irrelevant, because even when she behaved in that manner, she was forbidden to do so owing to the injury to the image of God in her, only that when she delivers the blow, there are no financial repercussions. Of course, even the first Tanna upon whom the offender based his claim, agrees that if a person caused an injury to one of his ears and someone else came and caused an injury to his second ear, he is entitled to compensation from the latter, because the first injury did not diminish his status as a victim of injury regarding the second injury; but according to him, the fact that he is not particular about his own dignity diminishes his standing with respect to humiliation. Rabbi Akiva disagrees: Even an injury causing humiliation does not diminish the victim's standing, and therefore he is still entitled to regular compensation from another person who humiliated him.

 

According to the proposed reading, Rabbi Akiva's stringency is supported by the fact that a person is forbidden to inflict injury or humiliation upon himself. The Gemara also cites an opposing baraita, which according to the Gemara's conclusion according to the aforementioned Tosafot, disagrees with our mishna, and presents Rabbi Akiva's position in a different way: "Rabbi Akiva said to him: You have dived into the depths and have brought up a potshard in your hand, for a man may inflict an injury upon himself." According to this approach, Rabbi Akiva's argument rests on the allowance granted to the woman to act towards herself as she pleases: Your action was forbidden, whereas hers was permitted. How does this argument contend with the claim put forward by the person who uncovered the woman's head? When pressed, we can say that the allowance teaches us that when a person conducts himself in such a manner, it does not diminish his standing, for only when such an action is performed in an aggressive manner is it a blow to his dignity. But the wording of the baraita does imply this, and the matter requires further study.

 

II. THe Prohibition to inflict an injury upon oneself

 

            The Gemara's focus is not upon understanding Rabbi Akiva's argument, but upon his assertion in the mishna that a person is forbidden to inflict an injury upon himself, as opposed to his assertion in the baraita that a person is in fact permitted to inflict an injury upon himself. The Gemara proposes that we distinguish between injury and humiliation, but in the end concludes that we are dealing with a Tannaitic dispute (according to Rabbi Akiva) whether or not self-inflicted injury is permitted. The Rama in the Shita Mekubbetzet on our passage rules in accordance with the lenient position, and the Tur (420) implies that he accepted his position, but the Rambam (5:1) and the Shulchan Arukh (420:31) rule that it is forbidden. And this is the Halakha.

Let us examine the prohibition to inflict an injury upon oneself and its relationship to the prohibition to inflict an injury upon another person. Let us remember that one who injures another person violates the prohibition: "Forty stripes he may give him, and not exceed" (Devarim 25:3), and when the damage is less than a peruta, he is liable for lashes.

 

            The Gemara proposes three sources for the prohibition against inflicting an injury upon oneself. The first is based on the verse: "And surely the blood of your lives will I require" (Bereishit 9:5), which is the source for the prohibition against suicide. We shall not deal today with the prohibition against suicide, but merely note that there is an important question whether we are dealing with a prohibition different and separate from that of "You shall not kill" (Shemot 20:13), and perhaps also from that of "Whosoever sheds man's blood by man shall his blood be shed" (Bereishit 9:6); or perhaps it expresses the idea that a man's life does not belong to the person, and suicide is no different than any other murder, only that obviously there is no room to impose the death penalty for it.[2] According to the second understanding, there is room to say that the extension to self-inflicted injury also teaches about a prohibition that parallels that of inflicting an injury upon another person. The Gemara, however, rejects this source, for it is possible that a person is forbidden to take his own life, as his life does not belong to him, but as long as he is alive, his body does in fact belong to him and so he should be permitted to cause himself an injury. The Tosefta, however, implies that the prohibition against suicide may indeed be the source for the prohibition against self-inflicted injury:

 

Just as one is liable for damage caused to another person, so he is liable for damage caused to himself. If he scratched his own face in the presence of another person, pulled out his hair, tore his clothing, smashed his utensils, or scattered his money in his anger, he is exempt according to the laws of man, but liable according to the laws of heaven. As it is stated: "And surely the blood of your lives will I require." (Tosefta, Bava Kama 9:11)

 

            We learn from this Tosefta that this verse can serve as the source for the prohibition against self-inflicted injury, self-inflicted humiliation (of course, in the presence of another person, for only then is there humiliation), and even damaging one's own property. Damaging one's property is not prohibited here based on the prohibition of bal tashchit, the prohibition against destroying things of value, but because of the blow inflicted upon the person himself. We are dealing with a person who in his anger inflicts damage upon himself, and it seems that we are dealing with a separate prohibition (though it is possible to say that here too the prohibition parallels the prohibition to cause damage to another person, but this seems forced).

 

            The second suggested source for the prohibition against self-injury is the prohibition of bal tashchit. The Gemara rejects this suggestion, arguing that this may apply to the destruction of clothing, because "the loss is irretrievable," but not to an injury inflicted upon one's body. This implies that the case of an injury that cannot be restored is certainly included in the prohibition of bal tashchit (and it stands to reason that even the Rama would agree, as is implied by his words in the Shita Mekubbetzet). At any rate, this source certainly appears distinguished from the prohibition against inflicting an injury upon another person, as it does not relate to an injury caused to another person, but to destruction of the world, including ownerless property.

 

            The third possible source is the famous statement of Rabbi Elazar Ha-Kappar that one who deprives himself of wine and other worldly pleasures is guilty of a sin, for according to this, a person is certainly forbidden to inflict an injury upon himself.[3] Clearly this source does not connect the prohibition against self-injury to the prohibition against injuring another person, but to a general prohibition against causing oneself distress.

 

            It may then be inferred from our Gemara that even if self-inflicted injury is forbidden, the prohibition is not connected to the prohibition against causing an injury to another person, but rather it constitutes a separate law, inferior in its stringency.

 

            The Rambam, however, leaves us with a different and more complicated impression. The Rambam codifies in Hilkhot De'ot what the Gemara says in the wake of the words of Rabbi Elazar Ha-Kappar, and there he implies that we are indeed dealing with a general, moral guideline:

 

A person might say: Since envy, desire, [the pursuit] of honor, and the like, are a wrong path and drive a person from the world, I shall separate from them to a very great degree and move away from them to the opposite extreme. For example, he will not eat meat, nor drink wine, nor live in a pleasant home, nor wear fine clothing, but, rather, [wear] sackcloth and coarse wool and the like - just as the pagan priests do. This, too, is a bad path and it is forbidden to walk upon it. Whoever follows this path is called a sinner, as it says concerning a Nazirite (Bemidbar 6:11): "And he [the priest] shall make an atonement for him, for his having sinned regarding [his] soul." Our Sages declared: If the Nazirite who abstained only from wine requires atonement, how much more so does one who abstains from everything. Therefore, our Sages directed man to abstain only from those things that the Torah denies him and not to forbid himself permitted things by vows and oaths [of abstention]. (Hilkhot De'ot 3:1)

 

            It would seem from the Rambam that we are dealing here with a moral failing, and perhaps even a rabbinic prohibition. The Rambam does not explicitly refer to one who inflicts an injury upon himself, but it is clear that his words here apply to such a person as well (see at length the words of the Lechem Mishneh).

 

            On the other hand, the Rambam's words in Hilkhot Chovel u-Mazik imply that one who inflicts an injury upon himself violates a clearly-defined Torah prohibition, which applies both in the case of an injury caused to another person and self-injury. The Rambam seems to have understood from our Gemara that over and beyond the general correctness of Rabbi Elazar Ha-Kappar's exposition, the principle that follows from it that one is forbidden to cause himself distress teaches us that when there is a clear Torah prohibition regarding an injury caused to another person, it applies also to self-inflicted injury. Accordingly, one who causes an injury to himself violates a Torah prohibition.[4] Let us examine the words of the Rambam:

 

It is forbidden for a person to injure anyone, neither his own self nor another person. Not only a person who causes an injury, but anyone who strikes in strife an upright Jewish person, whether a minor or an adult, whether a man or a woman, violates a negative commandment, as it is stated (Devarim 25:3): "And not exceed"…

When one strikes another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes. For there is no monetary payment to be exacted here, so that this should be considered a negative commandment that results in an obligatory monetary payment. (Hilkhot Chovel u-Mazik 1:3)

 

            The Rambam begins by saying: "It is forbidden for a person to injure anyone, neither his own self nor another person." This implies that there is one common prohibition in both cases. It is clear, however, that there is no financial liability in the case of a self-inflicted injury, and earlier this year (shiur 20) we even suggested with respect to the laws of Choshen Mishpat, that one who injures himself is not considered a chovel. But it stands to reason that this approach gives independent standing to the prohibition to cause an injury, and to a certain decree detaches it from the realm of interpersonal violence and locates it in the realm of impairment of a body that was created in the image of God (see Rav Zevin in his article, "The Case of Shylock according to Jewish Law,"[5] who demonstrates at length that a person does not own his body, in the course of a discussion of, among other things, our passage). But from the continuation it would seem that the law of lashes in the case of a blow that does not warrant a peruta to be paid in recompense does not apply to a self-inflicted injury ("When one strikes another person"). Were it to apply to a self-inflicted injury, every case of self-inflicted injury would be subject to lashes, for a self-inflicted injury never warrants a peruta to be paid in recompense (though there are those who understand in Tosafot, Shevu'ot 36a, s.v. ve-shamur, that one who inflicts an injury upon himself is liable for lashes). This matter will be clarified below.

 

            The Rambam seems to distinguishes between one who injures another person and one who strikes him. I don't exactly know what is meant by a strike that does not involve an injury, but it would seem that the reference is to an assault that does not cause any real physical damage, and that physical damage falls into the category of injury even if it is not irretrievable. [Therefore, "a blow that does not warrant a peruta to be paid in recompense" is not so rare with respect to liability for the depreciation in value resulting from the injury, though it is possible that it is rare due to the liability for pain and humiliation.]

 

            It seems from the words of the Rambam that the condition "in strife" (derekh nitzayon; some Acharonim read: Derekh bizayon, in a humiliating manner) was stated only with respect to one who strikes another person, but not with respect to one who causes him an injury. Injury is forbidden because of the physical damage, and therefore the violent aspect of "in strife" is not a necessary condition. It would seem from the section cited above that the Torah prohibition includes two different laws: One law relates to a violent physical assault on another person, and this is the primary prohibition learned from "and not exceed."[6] This law does not apply to one who causes an injury to himself, as it is difficult to see that as a violent phenomenon and it is not "in strife" (even when a person causes himself an injury out of anger). For this there is liability for lashes.

 

The second law relates to an act of injury to a body that was created in the image of God. Regarding this law there is no condition of "in strife," and it applies to one who causes an injury to himself in the same way that it applies to one who causes an injury to another person. For this there is no liability for lashes, even though it would appear from the Rambam that it too is included in the Torah prohibition ("not only a person who causes an injury, but anyone who strikes in strife"), and as we find in other contexts in the Rambam that Torah prohibitions include peripheral prohibitions that are part of the Torah prohibition but do not carry the penalty of lashes. It is only one who strikes another person not in strife who does not violate the Torah prohibition. So too one who strikes himself without causing an injury does not transgress the prohibition, even though it stands to reason that his conduct does not accord with the Rambam's ruling in Hilkhot De'ot following the teaching of R. Elazar Ha-Kappar. R. Elazar Ha-Kappar teaches about a faulty moral trait that has significance of its own, and in addition – as stated above – he teaches that prohibitions relating to injury apply also to self-inflicted injuries, and therefore the law governing one who causes an injury to himself is identical to the law governing one who causes an injury to another person (which is not the case regarding the prohibition to strike another person, the essence of which is the strife, and this does not apply to one who strikes himself). Of course, one who causes an injury to another person in strife violates both of the laws derived from the verse.

 

            I wish to note that the Acharonim do not all agree with this understanding of the Rambam. I will not review their positions, but I will add two points:

 

1) I have assumed that according to the Rambam the prohibition to inflict an injury upon oneself is by Torah law, and that it is derived from the same source as the prohibition to inflict an injury upon another person. Many, however, understand that it is based on a different source, and perhaps even only by rabbinic decree (according to them it is clear why there are no lashes for a person who causes injury to himself). See, for example, the words of Rav Kook in Responsa Da'at Kohen, no. 138: "The prohibition to cause an injury, which the Rambam set before this, whether it is a Torah prohibition or only a Rabbinic one, whether it follows from 'And surely the blood of your lives will I require' or from the fact that a Nazirite is called a sinner…." In this context I wish to note that the Iggerot Moshe (I, Choshen Mishpat, 103; II, Choshen Mishpat, no. 66) relates to the words of the Tosafot in our passage (s.v. ela hai tanna), who clarify that the prohibition to inflict an injury upon oneself applies even when there is a need to do so. He finds this difficult, for it is clear that a person is permitted to deprive himself of wine when there is a need to do so. In his responsum he distinguishes between the pain stemming from not satisfying one's desire, about which we can say that owing to some other desire the person reached a decision that causes him less pain, and self-inflicted injury, which creates clear pain in and of itself, and regarding which some external benefit does not make it possible for us to day that there was no pain. According to our understanding of the Rambam, there is no question from the outset. For the source from Rabbi Elazar Ha-Kappar only teaches us that the prohibition of "and not exceed" applies also to self-inflicted injury, and from the moment that this prohibition is in force it is clear that need cannot permit it, and that it is not subject to the parameters of the prohibition to deprive oneself of wine.

 

2) According to our proposed understanding of the Rambam, the condition of "in strife," which as stated earlier some Acharonim read as "in a humiliating manner," does not apply to one who causes an injury to himself, or even to one who causes an injury to another person, but only to one who strikes another person. Rav Kook, in the aforementioned responsum, agrees with this. But the aforementioned Iggerot Moshe (and also Rav Ovadya Yosef in Responsa Yabi'a Omer II, Choshen Mishpat, no. 12) is inclined to say that even in the case of self-inflicted injury, one only violates the prohibition if the injury is inflicted in strife or in a humiliating manner. Of course, if we read "in strife" (and the manuscripts in the Frankel edition have only this reading), we must limit the prohibition to the case of a person who causes injury to himself in anger, and we must be prepared to define this as "in strife."

 

            The prohibition of self-inflicted injury is discussed at length by the Posekim in connection with various issues, e.g., the allowance to perform plastic surgery, in the wake of the aforementioned words of the Tosafot that the prohibition to cause an injury applies even in a case where there is a need to do so. Some concluded from this that such surgery is forbidden, while others permit it, including Rav Ovadya Yosef in his aforementioned responsum, who relies upon, among other things, the fact that this is not in strife or in a humiliating manner.

 

I cannot exhaust this topic here, but merely wish to note that in my opinion, as stated above, it is difficult to rely on this, since there is no requirement of "in strife" for injury, but only for the prohibition to strike another person. Therefore, it seems to me that the way to go is to examine the possibility of saying that such surgery is not defined as injury but as repair. In the end, the test for this is a question of values – if the goal seems important to us, we will define the act as a correct medical procedure, and as such it will not be considered as an act of injury that is permitted because of a need, but rather an act of repair (as it is clear to me that the removal of a defective organ is permitted not only because of the allowance to save lives, but rather because it is not at all considered an act of injury). However, when we perform a medical procedure on a person's body for the purpose of helping another person, it stands to reason that this cannot be seen as a reparative act, but only an act of injury that is performed for some need. As such it would seem that this is only permitted as a life-saving measure, but the matter requires further examination. See Iggerot Moshe (I, Choshen Mishpat, 103) who permits blood donations only because there are those who say that blood-letting has medical benefits. According to what we have said, it is clear that there is a difficulty permitting this, though in my opinion, in today's reality, donating blood clearly falls into the category of a life-saving measure for a sick person who is before us.

 

(Translated by David Strauss)

 

Sources for Shiur 28

 

 

In next week's shiur we will advance in the Gemara until the next mishna (92a) and we shall deal with two important and interesting issues that arise in our passage:

 

I. The liability for payment of ten Gold coins imposed on one who steals a mitzva from another person

 

"Tani Rabba bar bar Chanaliten lo asara zehuvim"; Chullin 87a, "Tanya idakh: Ve-shafakh ve-khisakos shel berakha yashveh arba'im zehuvim."

Rosh on our passage, middle of sec. 15: "Ika man de-amar ha de-chiyevo… le-kos shel berakha"; Tosafot on our passage, s.v. ve-chiyevo; Tosafot in Chullin, s.v. ve-chiyevo; Rosh, Chullin, chap. 6, sec. 8.

 

What may be learned from these sources regarding the liability for ten gold coins and regarding the mitzvot under discussion?

 

II. THe Prohibition of Bal Tashchit

 

"Amar Rav: Dikla…" until the mishna (92a); Rambam, Hilkhot Melakhim 6:8-10; [Sefer ha-Mitzvot, negative commandment 57; Ramban, positive commandments omitted by the Rambam, commandment no. 6].

 

In which cases does the prohibition against destruction not apply? Are there certain objectives that permit destruction or perhaps there is no destruction in these cases?


[1] But see the Meiri, ad loc., who understood that, according to the conclusion, self-inflicted injury is forbidden, whereas self-inflicted humiliation is permitted.

[2] "According to Pesikta Rabbati (beginning of parasha 25), a person who commits suicide violates the prohibition of "You shall not murder," lo tirtzach, as it is read as: lo titrazach. So too writes Halakhot Ketanot (II, no. 231). And so too Beit Meir, Yoreh De'a, 215, 5. Elsewhere I adduced proof for this from the Yerushalmi (Berakhot 1:5)" (R. Yerucham Perle, commentary to Sefer ha-Mitzvot of Rav Saadya Gaon, positive commandment 28).

[3] The Tosafot on our passage (s.v. ela she-tzi'er) discuss the position of R. Elazar Ha-Kappar. His position is discussed in many places in the Gemara, and it would seem from most of those places that the sin lies in the very acceptance of Naziriteship, bsed on a negative appraisal of depriving oneself of worldly pleasures. However, the verse upon which R. Elazar bases his teaching, "And he [the priest] shall make an atonement for him, for his having sinned regarding [his] soul" (Bemidbar 6:11), relates to the offerings brought by a Nazirite who contracted ritual impurity from a corpse. The Gemara in Nazir 19a states explicitly: "R. Elazar Ha-Kappar is of the opinion that a ritually pure Nazirite is also a sinner, and the reason that Scripture teaches this [lesson in connection] with [specifically] a ritually impure Nazirite is that he repeats his sin." On the other hand, in Nazir 3a it says: "For even R. Elazer Ha-Kappar who says that a Nazirite is accounted a sinner, means only the Nazirite who has contracted ritual impurity; for, since he must nullify [his previous abstinence] in accordance with the rule laid down by the Torah: 'But the former days shall be void, because his consecration was defiled,' there is a danger that he may break his Nazirite vow. But a Nazirite who remains ritually pure is not termed a sinner."

The answer to this difficulty that the Tosafot discuss in the name of Rabbeinu Tam provides a new understanding of the view of R. Elazar Ha-Kappar. Rabbeinu Tam mentions the unique law regarding a fast observed because of a dream on Shabbat, that a person who has a bad dream that justifies fasting does so even on Shabbat, and after Shabbat he must observe an additional fast to atone for the fact that he fasted on Shabbat. This is a unique case where the Halakha imposes a normative requirement to do something that it itself views in such infavorable light that it requires atonement. Rabbeinu Tam writes:

As for what it says that he is not a sinner, that is to say that the mitzva is greater than the transgression, as there is a mitzva to take a vow [of Naziriteship], as it is stated that one who sees a sota in her disgrace should withhold himself from wine. But nevertheless there is a small aspect of sin, as in the case of one who observes a fast for his dream on Shabbat, about whom we say that the decree issued against him is torn up, but he is punished for fasting on Shabbat. What should he do? He should observe a fast for his first fast, because the mitzva is greater than the transgression. And this is what it says about a Nazirite, that even R. Elazar who says that a Nazirite is a sinner, this is in the case of a ritually impure Nazirite, who is primarily a sinner, but a ritually pure Nazirite, Rabbi Elazar does not consider such a sinner.

How does the ritually impure Nazir become "primarily a sinner?" In my opinion, Rabbeinu Tam means to say as follows: R. Elazar Ha-Kappar sees Naziriteship as a problematic withdrawal from this world. Nevertheless, the sanctity that is achieved through Naziriteship justifies the price that must be paid, and can even define Naziriteship as something blessed (and bringing it to an end can be considered problematic; see Ramban Bemidbar 6:14). However, when the Nazirite contracts ritual impurity that cancels the days of his Naziriteship, he cancels the edifice of sanctity that he built, and is left with the price that was paid without the benefit that justifies it. Therefore, on the one hand it is true what the Gemara says in Nazir 19a that even in the case of a ritually pure Nazirite there is sin according to R. Elazar Ha-Kappar, but nevertheless we understand the words of the Gemara in Nazir 3a, that only in the case of a ritually impure Naziriteship is atonement necessary for that sin.

[4] I saw something similar in the Meiri on our passage. He understands that R. Elazar Ha-Kappar's exposition teaches us about the applicability of another prohibition to self-inflicted injury – not "and not exceed," but rather "And surely the blood of your lives will I require"; that this applies not only to murder, but also to injury. But according to the Meiri we are dealing with a Rabbinic prohibition, and not with a Torah prohibition, as, in my opinion, is implied by the Rambam.

[5] Rav Sh.Y. Zevin, Le-Or Ha-Halakha (5764), pp. 403-428.

[6] The verse reads: "Forty stripes he may give him, and not exceed; lest, if he should exceed, and beat him above (lo yosif pen yosif lehakoto) these with many stripes, then your brother shall be thus made vile before you." The words of the Rambam, "lo yosif lehakoto," is a piecing together of two parts of the verse. In light of what we have said regarding the Rambam's position, that the verse contains two separate laws, it is tempting to say that these are learned from the doubling of the phrases, "lo yosif" and "pen yosif," but of course this has no real basis.