The gemara on daf 52b in Mesechta Sanhedrin discusses the misa of sayaf. The gemara says that by murder of an eved you get the misa of sayaf. So then the gemara asks what about a regular person? So the gemara wants to suggest that it's a kal vchomer. An eved who is lower than a full fledged yisroel gets sayaf then surely a full fledged yid gets sayaf. The gemara then objects because it is toluy in the machlokes of which misa is worse - sayaf or chenek. So the gemara ends off by learning from Egla Arufa according to the shitah that chenek is more chomur.
My question on this is that why don't we object by saying Ain Onshin Min Hadin? There is rule in onshin that one does not get an onesh as a result of a kal vchomer. So why would I upgrade the misa from chenek to sayaf based on a kal vchomer if we never punish based on a kal vchomer?
Your help on this question would be much appreciated
Mr Sender Goodman, Brooklyn, NY USA
The YAD RAMAH there writes that since we already know that the death penalty is to be administered and we only want to clarify *which* death penalty, it is not called "Onshin Min ha'Din." The Kal va'Chomer is not teaching that there *is* an Onesh, but what the Onesh is.
Best wishes,
M. Kornfeld
Kollel Iyun Hadaf