The Tosaphists’ Explanation of the Dispute between R. Yishmael and R. Akiva

The Tosaphists believe that both R. Yishmael and R. Akiva agree that Scriptural verses regarding shehutei hutz referred only to qodshim. According to the Tosaphists R. Yishmael inferred from these verses that b’sar ta’avah had been prohibited in the desert inasmuch as the Scripture explicitly permitted such meat to be eaten upon entry into the Land, as it is written “בכל אות נפשך תאכל בשר,” implying that eating meat had previously been prohibited unless the animal was offered as a sacrifice; R. Akiva inferred from these verses that nehirah had previously been a valid method of slaughter from the fact that the commandment to perform shehitah was given only upon entry into the Land. Because those in the desert could not have known these laws from verses transmitted only at the end of the 40 years, the Tosaphists must believe that these laws had been orally transmitted in the desert.

It would also seem possible that, according to R. Yishmael, the obligation to perform shehitah could be inferred from the verse “זאת תורת הבהמה והעוף,” except that the Tosaphists raised the question how the Gemara knew that R. Akiva and R. Yishmael disagreed? Perhaps each one held his position without disputing that of the other, the two positions not being mutually exclusive, because R. Akiva could agree that, in the desert, only cattle and sheep that were offered as sacrifices were allowed to be eaten while the flesh of undomesticated animals, which are not fit to be brought as sacrifices, could be eaten. But after entry into the Land, even cattle and sheep that were not offered as sacrifices were permitted to be eaten by the verse “בכל אבת נפשך תאוכל בשר,” provided that they were slaughtered by the method of shehitah, not by nehirah, the Scripture having specified “וזבחת.” R. Yishmael, too, could maintain that in the desert nehirah was a valid method of slaughter for undomesticated animals, fowl, and blemished animals unfit to be sacrificed, but that “וזבחת” was meant to invalidate nehirah as a method of slaughter after entry into the Land.

This question could not arise under Rashi’s interpretation, whereby R. Yishmael deduces the prohibition of b’sar ta’avah from the Scriptural passage concerning shehutei hutz, because R. Yishmael could not have inferred that b’sar ta’avah had been prohibited if the verse “ואל פתח אהל מועד לא הביאו,” in reference to shehutei hutz had not specifically prohibited shehitah, and not nehirah, thereby implying that the method of slaughter to which reference was made had been valid in the Taberancle. Thus, if R. Yishmael had accepted that nehirah was once a valid method of slaughter, he would necessarily also have accepted its validity as a method of slaughtering cattle and sheep, so that b’sar ta’avah would then have been permissible if the animal was slaughtered by the method of nehirah. According to Rashi, therefore, R. Yishmael necessarily disagreed with R. Akiva that nehirah was once a valid method of slaughter.

The approach of the Tosaphists is very problematic. First, the redundancy, according to R. Yishmael, of the verse “וזבחת מבקרך ומצאנך כאשר צויתיך” is equally problematic for the Tosaphists as for Rashi, inasmuch as, according to their approach, R. Yishmael must have believed that those in the desert had known that shehitah had to be performed on an animal before its flesh could be consumed either from a Scripturat text or from a halakhah le-moshe mi-sinai. If so, why was it necessary to repeat the commandment to perform shehitah upon entry into the Land? It might be that, according to the Tosaphists, these verses teach us how meat was eaten in the desert, because there are seemingly contradictory verses. One verse (“אוכלה בשר”) implies that in the desert eating meat was not allowed, while other verses (“כי יצוד ציד חיה ועוף אשר יאכל” and “אך כאשר יאכל את הצבי ואת האיל”) imply that eating meat was permitted in the desert, so that the verse “וזבחת מבקרך ומצאנך כאשר צויתיך” had to teach us that in the desert only those animals (cattle and sheep) that were eligible to be sacrificed were prohibited unless offered as sacrifices. But even if that entire passage was meant to teach us that only cattle and sheep had been prohibited in the desert unless brought as sacrifices, why the Torah wrote “וזבחת כאשר צויתיך,” simply reiterating that they had already been commanded all the laws of shehitah, is an unresolved difficulty for the Tosaphists, as it was for Rashi.

Moreover, to say that, according to the Tosaphists, all these verses come to inform us how meat was eaten in the desert with no practical halakhic implications is impossible, because the Gemara itself asserts that the Scripture meant only to permit the Israelites to eat b’sar ta’avah upon entry into the Land, implying that, without the verse, b’sar ta’avah would have remained forbidden. In addition, the Gemara even questions why, after being exiled, we were not again subject to the original prohibition against eating b’sar ta’avah. That is why, according to the Tosaphists, the original prohibition against eating b’sar ta’avah must have been transmitted orally, so that, upon entry into the Land, all these verses were necessary in order to permit b’sar ta’avah.

But the idea that there was an oral commandment, of which there are no other examples, is astonishing. And it is even more astonishing to think that a written commandment would have been required to nullify an oral commandment. And a still greater difficulty is that there was no reason to permit b’sar ta’avah at all, because when Moshe gave the oral commandment not to eat b’sar ta’avah, he could have made it clear that the prohibition was temporary, lasting only while they were in the desert. And the final difficulty is that it is certainly not possible that the verses were needed to inform us how b’sar ta’avah was eaten in the desert with no practical implication for us, so that one could ask that even if the verses concerning b’sar ta’avah were needed to inform us that b’sar ta’avah is now permitted, what do we learn from the passage “וזבחת מבקרך ומצאנך . . . כאשר צויתיך”, which teaches us nothing except that only cattle and sheep were prohibited in the desert. Why did we need to know a historical fact irrelevant to our own practice? The generation of the desert, to whom these verses were taught, must have known what the Scripture came to permit, in which case, the verse “וזבחת מבקרך ומצאנך . . . כאשר צויתיך” is redundant.

It is also difficult to understand, both for Rashi and the Tosaphists, why the Gemara would inform us of a dispute between R. Yishmael, who believes that nehirah was never permitted and R. Akiva who believes that b’sar ta’avah was never prohibited if the dispute has no practical halakhic consequences. But in fact there is one major halakhic difference that does depend on this dispute: whether the requirement to perform shehitah on fowl is Biblical or rabbinic. According to R. Yishmael, nehirah never having been a valid method of slaughter, and the Scripture in Deuteronomy having come not to reiterate an already existing requirement to perform shehitah, but to permit b’sar ta’avah, there could have been no difference in the method of slaughter required for cattle and sheep and for fowl. It was necessary to mention cattle and sheep in the verse “וזבחת מבקרך ומצאנך כאשר צויתיך” only to permit shehitah to be performed on them outside the Tabernacle.

But according to R. Akiva, b’sar ta’avah was never prohibited and “וזבחת” came to invalidate nehirah. Since “וזבחת” implies a positive commandment and is mentioned only in relation to cattle and sheep, one must ask which animals were covered by that commandment? Now the obligation to perform shehitah on undomesticated animals  could be inferred from the obligation to perform shehitah on cattle and sheep through a heqeish between dear and gazelle and cattle and sheep (Deuternonmy 12:15). For fowl, however, nehirah could have remained a valid method of slaughter, as R. Eliezer Haqappar in fact maintains (Hulin 28a). Indeed, this must be so, because if fowl were covered by the Biblical obligation to perform shehitah, it would have been unnecessary to mention cattle and sheep in the verse “וזבחת מבקרך ומצאנך כאשר צוית”, inasmuch as “וזבחת” is a general statement (klal) followed by a particular statement (prat) specifying cattle and sheep. If so, the prat must exclude something from the general obligation to perform shehitah stated by the klal, the exclusion presumably teaching us that nehirah remained a valid method of slaughter for fowl even though it was invalidated for cattle and sheep.

But if so, the halakhic rule that R. Akiva’s opinion is authoritative in any dispute with another tanna (“הלכה כרבי עקיבא מחברו”) must apply. Indeed if fowl were not excluded from the Biblical exclusion, there would have been no reason for the Torah to include the words “מבקרך ומצאנך” after “וזבחת ואכלת.” But such a derivation is possible only according to R. Akiva who believes that there was a potentially valid method of slaughter other than shehitah, while according to R. Yishmael, no valid alternative method ever existed, so the obligation to perforom shehitah on fowl was necessarily Biblical. However, our tradition is that performing shehitah on fowl is a Biblical obligation, in accord with the opinion of R. Yishmael, contrary to the rule that the opinion of R. Akiva is followed in a dispute with any single tanna.

The above discussion shows that the Tosaphists’ question why the Gemara identified Rebi as the tanna that disputes the opinion of R. Eliezer ha-Qappar that there is no Biblical obligation to perform shehitah on fowl when the Gemara could also have instead identified Bar Kappara as that tanna was misplaced. The response of the Gemara was not problematic, because the question was only relevant in relation to the opinion of R. Akiva that in the desert nehirah was a valid method of slaughter; according to R. Yishmael, nehirah was never a valid method of slaughter, so that the requirement of “ושפך“ in relation to slaughtering an animal could be discharged only by performing shehitah. The Gemara therefore could not have responded that Bar Kappara, who follows the opinion of R. Yishmael, is the tanna that disputes the opinion of R. Eliezer ha-Qappar. If that were the response, then the dispute about whether the obligation to perform shehitah on fowl is Biblical would be identical with the dispute between R. Akiva and R. Yishmael about the purpose of the verse “וזבחת מבקרך ומצאנך כאשר צויתיך,” in which case we would have to conclude, based on the rule that we follow the opinion of R. Akiva in disputes with R. Yishmael, that the Biblical obligation to perform shehitah on fowl is not Biblical.

That is why the question of the Gemara must have been: who is the tanna that follows the authoritative opinion of R. Akiva that also disputes the opinion of R. Eliezer Ha-kappar that the obligation to perform shehitah on fowl is Biblical. The Gemara answers that the only tanna who holds both opinions is Rebi. And it is only possible to understand how this conclusion is reached by considering the Rambam’s explanation of the dispute between R. Akiva and R. Yishmael (the subject of the next post).