I’m going to take a detour which will eventually lead back to the Rambam in yesterday’s post. The gemara in Makkos (15b) has a famous machlokes regarding how to understand lav hanitak l’aseh. One side of the debate argues kiymu v’lo kiymo – a person is chayav malkos the moment a lav hanitak is violated, and to avoid punishment must proactively be mekayeim, fulfill the mitzvas aseh the Torah commands to rectify that lav. The opposing view argues bitlo v’lo bitlo – its not the proactive performance of the aseh which removes punishment, but it is only the bittul and negation of the aseh which would cause punishment. Exactly how this second view works is debated in Rishonim: is the lav not complete until the aseh is violated (Ritva), or the is lav complete, but punishment held off (Rashi)?
Learners of daf yomi will be familiar with the scenario the gemara uses as a test case to determine whether the kiymo or bitlo model is correct. A rapist must marry his victim (assuming she doesn’t object); divorcing one’s victim is a lav hanitak to the mitzvah of marrying her. If the rapist fails to fulfill the aseh, he would potentially get malkos. Asks the gemara (Makkos 16): if one must proactively perform the aseh to be exempt from punishment, kiymo, then the possibility of malkos exists if the rapist refuses to remarry his victim and fulfill the aseh. However, if only the negation of the aseh leads to punishment (bitlo), how can one negate the possibility of fulfilling the mitzvas aseh in this case? – so long as his wife lives, there is the possibility of remarriage! And, continues the gemara, even if the rapist kills his wife, there is still no punishment of malkos that would be given – since he would receive the death penalty for murder, there is no double-jeapordy (kam lei b’derabba minei) and hence no malkos! Take a look at Makkos 16 if you want to know how the gemara answers, but that’s enough for my purpose.
The Ritva jumps in here with a brilliant comment (recall that bitlo is interpreted differently by Rashi and Ritva). The rule of no double-jeopardy applies only when two issurim occur simultaneously. According to Ritva's understand of bitlo as meaning a lav is not violated until its attached aseh is negated, the act of muder simultaneously completes the lav of divorce and violates the lav of murder. But according to Rashi, bitlo only means that potential punishment is held in abeyance until the attached aseh is negated - the lav itself is done and complete at the moment of divorce. Since the lav of divorce occurs earlier than the lav of murder, why is there an exemption from malkos based on kam lei b’derabba minei?
Hopefully no one is lost yet – one more post to wrap this up.