The Rambam’s Explanation of the Dispute between R. Yishmael and R. Akiva
Here is the comment of the Ramban on the verse (Deuteronomy 12:21) וזבחת מבקרך ומצאנך אשר נתן לך ה’ א-לוהך כאשר צויתיך
The meaning of this verse according to the opinion of the Rabbis is as follows: “As I have commanded thee – orally, by law declared to Moses on Sinai. This teaches us that he was commanded with regard to [severing] the windpipe and the gullet, and [severing] the greater part of one in a bird and the greater part of both in an animal.”
Know that the term “shehitah” in the Sacred Language denotes the severing of the two organs in the neck [windpipe and gullet]. . . Thus He commanded regarding the offerings, “ושחט,” “ושחטו,” which refer to the organs of the neck. Now at first He commanded that whatever [meat] they eat be of peace-offerings, that they be slaughtered according to the law of the offerings, and now, when He proceeded to permit the meat of unconsecrated animals, He said, “thou shalt slaughter of thy herd and of thy flock as I have commanded thee when such animals were brought as offerings, and you may eat them unconsecrated after the desire of thy soul,” meaning that He permits unconsecrated animals to be eaten everywhere, provided that they be slaughtered as He had commanded originally, when they were all [permitted only as] offerings. This is the correct meaning of the verse in line with the plain sense of the Scripture. Perhaps our Rabbis intended this [thought] when they said in the Sifre: “כאשר צויתיך” – just as the consecrated animals are slaughtered [in accordance with the traditional regulations] so must also the unconsecrated animals be slaughtered [according to the same regulations]. Thus the commandment of slaughtering is here expressly stated and is explained in the words of our Rabbis on the basis of tradition.
It is astonishing that the Ramban, by interpreting “כאשר צויתיך“ to refer to the commandment to perform shehitah on qodshim, without noticing that he is disputing the baraita of Rebi, totally dismisses the opinion of our Rabbis the masters of the Talmud, specifically the baraita of Rebi. And by dismissing the words of Rebi, the Ramban, without realizing it, was nullifying the Biblical obligation to perform shehitah on fowl, because it was only Rebi who, in opposition to R. Eliezer Ha-Kappar, understands “כאשר צויתיך” to refer not to qodshim, but to a new commandment to perform shehitah on hullin including fowl. But if “כאשר צויתיך” refers to qodshim — consecrated fowl having never been subject to the obligation to perform shehitah — then what is the source for that Biblical obligation? The derivations for such an obligation mentioned in the Gemara were in accord with the opinion of R. Yishmael, not with that of R. Akiva.
That the Rambam quoted the baraita of Rebi at the beginning of Hilkhot Shehitah (1:4) is not insignificant. However, there is also a corresponding problem with Rebi’s position: how is it possible that “כאשר צויתיך” refers to a new obligation to perform shehitah on hullin, when the laws of shehitah had already been conveyed in connection with the obligation to perform shehitah on qodshim? Why was there any need for a new commandment to perform shehitah rather than simply incorporate by reference the laws of shehitah pertaining to qodshim? It must be that a new commandment to perform shehitah was required to extend the obligation to perform shehitah to fowl, concerning which there was no previous obligation to perform shehitah. Indeed fowl seem to be excluded from this verse, because “וזבחת” is a klal and “בקר” and “צאן” are prat, so that the klal includes only what is covered by the prat.
But here is how the Rambam (Shehitah 4:17-18) explains the dispute between R. Yishmael and R. Akiva. Unlike Rashi and the Tosafists, the Rambam interprets the dispute between R. Yishmael and R. Akiva not to be about the verses relating to shehutei hutz, understanding R. Yishmael and R. Akiva to agree that the Scripture prohibited performing shehitah, outside the Tabernacle, even on unconsecrated cattle and sheep, which are eligible to be brought as sacrifices.
17 When Israel was in the desert, they were not commanded to perform shehitah on unconsecrated animals. Instead, like gentiles, they could perform either shehitah [i.e., on undomesticated animals and fowl] or nehirah before consuming meat. In the desert they were commanded that anyone desiring to perform shehitah [on an animal eligible to be brought as a sacrifice] should do so only if he intended to bring the animal as a peace-offering, as it is stated (Leviticus 17:3-4):
איש איש מבית ישראל אשר ישחט שור או כשב או עז במחנה או אשר ישחט מחוץ למחנה. ואל פתח אהל מועד לא הביאו להקריב קרבן לי-הוה לפני משכן י-הוה דם יחשב לאיש ההוא דם שפף ונכרת האיש ההוא מקרב עמו.
But one who wanted just to perform nehirah on an animal and eat the animal [without bringing it as a sacrifice] could do so.
18 This commandment does not apply to all generations, but was in effect only in the desert while nehirah was permitted. But in the desert they were commanded that, upon their entry into the Land, nehirah would be forbidden and they would no longer be allowed to eat unconsecrated animals without performing shehitah, and could perform shehitah [on unconsecrated animals] anywhere except the courtyard of the Tabernacle as it is stated (Deuteronomy 12:20-21):
כי ירחיב י-הוה א-להיך את גבלך כאשר דבר לך ואמרת אכלה בשר כי תאוה נפשך לאכל בשר בכל אות נפשך תאכל בשר. כי ירחק ממך המקום אשר יבחר י-הוה א-להיך לשום שמו שם וזבחת מבקרך ומצאנך אשר נתן י-הוה לך כאשר צויתיך ואכלת בשעריך בכל אות נפשך
This is the commandment that applies for all generations: to perform shehitah and then to eat.
Thus, the Rambam, following the opinion of R. Akiva, codified that, in the desert, the flesh of an animal slaughtered by the method nehirah was permitted. However, it was forbidden to perform shehitah on all cattle and sheep outside the Tabernacle, only nehirah being permissible for cattle and sheep not offered as sacrifices. If R. Akiva agrees that, in the desert, performing shehitah even on unconsecrated cattle and sheep was prohibited outside the Tabernacle, then the verse “כי ירחק ממך המקום אשר יבחר י-הוה א-להיך לשום שמו שם” did not state a commandment to perform shehitah on unconsecrated animals, but stated that, upon entry into the Land, it would be permissible to perform shehitah outside the Tabernacle. But since R. Akiva also believed that the verse concerning b’sar ta’avah did not come to permit b’sar ta’avah to be consumed, b’sar ta’avah never having been prohibited, nehirah must have been a valid method of slaughter in the desert. And if it was necessary to permit zevihah outside the Tabrenacle, because the people would be distant from the Tabernacle after entry into the Land, it may be inferred that nehirah, which had previously been permitted, was now forbidden.
But the Israelites’ knowledge that in the desert nehirah was a valid method of slaughter could not have been derived from a verse that was communicated to them only at the end of their 40 years in the desert. How, then, did the Israelites know that in the desert nehirah, by severing the windpipe and the gullet, rendered an animal fit for consumption, while killing an animal with a blunt instrument did not. This question is also relevant for the Rambam who wrote that in the desert the Israelites were not commanded to perform shehitah on unconsecrated animals, but could, like the Gentiles, perform either nehirah or shehita, implying that there was no specific obligation for the Israelites to slaughter animals by the method of shehitah, but did only what was required of Gentiles to render the flesh of animals fit for consumption.
But this seems astonishing, because the only obligation of Gentiles was only not to eat the limb of a live animal (eiver min ha-hai), so they were then allowed to kill an animal, as they do nowadays, with a blunt instrument. But in the desert the Israelites were already forbidden to eat neveilah and tereiphah, so they must have been commanded about the method by which animal flesh could be rendered fit for consumption. However, this very problem proves that the prohibition of ever min ha-hai forbade the Gentiles to eat not only the flesh of animals that died of natural causes, but also the flesh of a tereiphah (a mauled animal) that is near death from injuries, which, owing to its unfitness for human consumption, the Israelites were commanded to throw to the dogs (Exodus 22:30). In fact, both the Scriptural verses concerning ever min ha-hai entail the prohibition of neveilah as well as that of ever min ha-hai, because the Torah prohibited the consumption of animal flesh while the animal’s life force — its lifeblood — remains within it, so that the prohibition covers any animal from which the lifeblood has not been extracted – extraction being effected by severing its simanim.
In Hilkhot Ma’akhalot Assurot (4:10), the Rambam writes that the flesh of a live animal (basar min ha-hai) as well as the flesh of a tereiphah are covered by the same prohibition, there being no difference between a live tereiphah and flesh cut from a live animal, and no difference between the death of the whole animal and the death of part of the animal (i.e., flesh cut from a live animal). So if the Torah prohibited the limb of a live animal to be consumed, the limb having been severed without first extracting the animal’s lifeblood, then surely the flesh of a dead animal whose lifeblood was not extracted must also be prohibited. This reasoning proves that Gentiles are also obligated to extract the lifeblood of an animal by performing nehirah before consuming its flesh, in accord with the anonymous statement of the Gemara (Hullin 33a) that, for a Gentile, nehirah is sufficient and that the flesh of an animal upon which nehirah has been performed may be consumed if taken after it has expired. So it is clear that the flesh of an animal clubbed to death, or of an animal that died of natural causes, may not be eaten by a Gentile. This reasoning explains why the Rambam wrote that the Israelites in the desert, like the Gentiles, were performing nehirah or shehitah, the Gentiles having always been obligated to perform nehirah to extract the lifeblood of an animal before eating its flesh. And this is why R. Akiva said that the verse “וזבחת מבקרך ומצאנך” came to prohibit eating the flesh of an animal slaughtered by the method of nehirah, which had been permissible in the desert, because the verse “לא תאכל הנפש עם הבשר” requires extracting the lifeblood of an animal before its flesh may be eaten.
According to Rashi, R. Akiva interprets the verses concerning shehutei hutz to apply to consecrated animals only. If so, the verse “וזבחת מבקרך ומצאנך ” must be understood as a positive commandment to perform shehitah on hullin, so that “כאשר צויתיך” means “just as I have commanded you to perform shehitah on qodshim,” the commandment to perform shehitah having previously applied only to qodshim. The Torah therefore informed the Israelites that, upon entry into the Land, the commandment to perform shehitah would thereafter also apply to hullin, specifically mentioning cattle and sheep, the animals covered by the commandment to perform shehitah on qodshim. And even if “וזבחת” is extended, by way of the heqeish of ”צבי ואיל,” to undomesticated animals, the commandment could not be extended further to include fowl, because doing so would violate the hermeneutic principle klal u-prat, because the prat of ”בקר” and “צאן“ following the klal of “וזבחת” would then exclude nothing from “וזבחת.” But if R. Akiva interprets the verses concerning shehutei hutz to prohibit shehitah outside the Tabernacle on all – even unconsecrated — cattle and sheep, then the verse “כי ירחק ממך המקום אשר יבחר י-הוה א-להיך . . . וזבחת מבקרך ומצאנך . . . כאשר צויתיך” would be interpreted as an annulment of the prohibition against performing shehitah on any cattle and sheep outside the Tabernacle. If so, there would be no positive commandment to perform shehitah on hullin, shehitah simply being necessary to avoid the prohibitions of neveilah and ever min ha-hai. But, by linking permission to perform shehitah to the distance from the Tabernacle (rihuq maqom), the Scripture implies that nehirah – previously the only permissible method of slaughtering hullin outside the Tabernacle – is no longer a valid method of slaughter, the distinction between performing nehirah on cattle and sheep and on undomesticated animals and fowl having been eliminated. The phrase “כאשר צויתיך” cannot, therefore, refer back to “וזבחת” because allowing shehitah to be performed on hullin required no mention of the obligation to perform shehitah on qodshim.
It was Rebi who teaches in the baraita that “כאשר צחיתיך” teaches us that Moshe was orally commanded about the minimum requirements of shehitah. Thus, according to Rebi, “כאשר צויתיך” is a separate and distinct statement from “וזבחת,” and should be read as if it were written “כאשר צויתיך לזבוח” the word “לזבוח” being omitted, because it follows “וזבחת.” But “כאשר צויתיך” refers not to “וזבחת” at the beginning of the verse, which signifies termination of the earlier prohibition against performing shehitah on cattle and sheep, but to the oral comandment to sever the trachea and the gullet — a majority of at least one being required for fowl and a majority of both being required for cattle (including undomesticated animals) and sheep, “כאשר צויתיך” signifying an obligation covering all animals, cattle and sheep being mentioned only because the earlier prohibition against shehitah outside the Tabernacle applied only to cattle and sheep.
The Gemara therefore identified Rebi as the tanna who disputes the opinion of R. Eliezer Ha-Qappar that there is no Biblical obligation to perform shehitah on fowl, notwithstanding Rebi’s agreement with R. Akiva that nehirah had been permitted in the desert. But according to R. Akiva and Rebi, even though “וזבחת” came to annul the prohibition against peforming shehitah on unconsecrated cattle and sheep, “כאשר צויתיך” was a distinct statement and should be read as if the text were “כאשר צויתיך לזבוח,” creating a new commandment to perform shehitah before consuming the flesh of hullin. So, according to the Rambam, when R. Akiva said that the Scripture had no purpose except to prohibit nehirah, he was referring to “כאשר צויתיך,” not to “וזבחת” ,“וזבחת” having been required to permit shehitah on unconsecrated cattle and sheep outside the Tabernacle.
Now the tannaim who maintain that there is no Biblical obligation to perform shehitah on fowl must, like R. Akiva, reject the opinion of R. Yishmael that only shehitah was ever a valid method of slaughtering animals. These tannaim must have interpreted the opinion of R. Akiva as Rashi does: that R. Akiva disagrees with R. Yishmael about the interpretation of the prohibition of shehutei hutz, R. Akiva believing that the prohibition of shehitah outside the Tabernacle pertained only to qodshim. Under this interpretation, “וזבחת מבקרך ומצאנך כאשר צויתיך” must be understood as a commandment to perform shehitah and to prohibit nehirah, so that the mention of cattle and sheep excludes fowl and undomesticated animals from the commandment to perform shehitah. Although the heqeish between צבי ואיל and בקר וצאן rescinds the exclusion of undomesticated animals from the commandment to perform shehitah, fowl must remain excluded, because otherwise the hermeneutic principle klal u-prat would be violated.
In sum, the explanation proposed by the Tosaphiists to the dispute between R. Yishmael and R. Akiva is untenable, while the explanation of Rashi turns out to correspond to the opinion held by those who maintain that there is no Biblical obligation to perform shehitah on fowl. The explanation of the Rambam corresponds to the opinion of Rebi concerning the dispute between R. Yishmael and R. Akiva: that both agree that performing shehitah on fowl is Biblically required, but they argue whether the requirement to perform shehitah is a positive commandment or just the method by which to avoid the prohibition against eating neveilah. According to R. Yishmael, there is no positive commandment to perform shehitah even on qodshim, shehitah being the only method for rendering an animal fit for consumption, because nehirah was never a valid method of slaughter. And even if there is a positive commandment to perform shehitah on qodshim, the commandment arises only when performing the sacrificial rite; according to R. Akiva, the commandment to perform shehitah was restricted to qodshim in the desert, when nehirah was a valid method of slaughter, and, only upon entry into the Land, was the commandment to perform shehitah extended to hullin, nehirah having thereby been invalidated.
But what still remains to be explored is if there is indeed a positive commandment to perform shehitah, how do we know that eating meat from an animal upon which shehitah has not been performed (eino zivu’ah) is like eating neveilah and is subsumed under the prohibition of neveilah? Perhaps, only the prohibition of eino zivu’ah applies in such a case, and nehirah, despite having been invalidated as a method of slaughter, might still prevent the status of neveilah from devolving upon the animal. The explanation of this matter will be provided in the upcoming iqarim. The explanation of the verse of b’sar ta’avh, which, according to R. Akiva, seems redundant, will also be provided.