When the Written and Oral Tradition Contradict One Another
From their flesh you should not eat and you should not touch their carcass. They are impure for you. (Sefer VaYikra 11:8)
1. Parshat Shemini intertwines two discussions
Parshat Shemini provides an outline of those species of animals that are permitted to be eaten and those which are prohibited. For example, the parasha explains that among the land-animals, only those that ruminate and have completely split hooves may be consumed. Among aquatics, those with fins and scales are permitted. No criteria are provided for birds. However, a list of the forbidden species is included in the parasha.
The parasha also, initiates the Torah’s extended discussion of the complex laws governing spiritual purity and impurity. There are various sources of spiritual impurity. Our parasha focuses on those objects that transmit spiritual impurity through contact. For example, the carcass of a dead animal may be a source of impurity and transmit its impurity through contact. The Torah does not require that a person sustain a state of purity. Generally, it is not prohibited to become impure. However, impurity does restrict the person from participation in some activities associated with sanctity. For example, an impure person is restricted from access to the precincts of the Bait HaMikdash – the Sacred Temple. The degree of restriction is consistent with the severity of the impurity. More severe forms of impurity generate broader restrictions and less severe forms generate lesser degrees of restriction.
The parasha intertwines its discussion of impurity with its treatment of the permitted and prohibited species. The above passage is an example of this phenomenon. The passage closes the initial discussion of permitted and prohibited species of land-animals. It explains that those animals that do not ruminate or do not have completely cloven hooves may not be consumed. The passage adds that the carcass of such an animal is also a source of impurity. A person is rendered impure through contact with the carcass. The intertwining of the discussion suggests some relationship between the subjects. However, the specific relationship is not articulated in the parasha.
When an animal that you are permitted to eat dies, one who touches its carcass is defiled until the evening. One who eats from the carcass – his clothes must be washed and he is defiled until evening. One who carries its carcass must wash his clothes and he is defiled until evening. (Sefer VaYikra 11:39-40)
2. Animal carcasses as a source of impurity As explained above, the carcass of a land-animal from among the prohibited species transmits impurity. The above passages explain that also the carcass of a permitted land-animal may transmit impurity. However, in this instance the impurity of the carcass will depend upon the circumstances of its death. If the animal was killed through shechitah – ritual slaughter – then its carcass does not transmit impurity. If the animal died by some other means other than shechitah, then its carcass will transmit impurity. Once again, the laws in these passages suggest a connection between the laws governing impurity and those regulating diet. An animal that dies by a means other than shechitah may not be consumed. It is also a source of defilement.
3. Only an olive-size portion of flesh transmit the carcass’ impurity
The above passages explain that also a person who eats the flesh of a dead land-animal is rendered impure. Rashbam explains that the Sages derived an important law from this passage. A person is only rendered impure through contact with the flesh of such a carcass when the amount of flesh is equal in size to an olive.[1] Understanding this law requires some background information.
Land-animals that are members of the permitted species may be eaten after the animal has been properly slaughtered through shechitah. If the animal has not been properly slaughtered, then it is not only a source of defilement, it is also prohibited to eat its flesh. In other words, failure to properly slaughter an animal has two outcomes. The animal’s carcass is rendered into a source of impurity and its flesh may not be consumed.
The prohibition against the consumption of the animal’s flesh focuses primarily upon consumption of an olive-size portion of flesh. Of course, even less than an olive-size is prohibited and may not be consumed. However, no punishment is given to the individual who consumes this negligible quantity. Punishment occurs only if an olive-size portion of flesh is consumed.
Now, the Sages’ law can be understood. Again, it is an example of the inter-relationship between the laws governing impurity and those regulating consumption. Impurity is transmitted only when contact is made with a quantity of flesh that is subject to the primary prohibition against consumption. In other words, less than an olive-size portion of flesh from the carcass is not subject to the primary restriction against consumption. Neither does it transmit impurity.
4. Rashbam’s strange comments and their inconsistency with the Oral Tradition Rashbam adds that the passage also suggests that one who eats the flesh of this carcass – even without contact with the flesh – is rendered impure. In other words, if a second party places a portion of flesh into the throat of an individual and this individual swallows the flesh, he will be defiled.[2] This is not because in swallowing the flesh he came into contact with it. Halachah does regard the mere swallowing of flesh – placed in one’s throat by a second party – as contact adequate to transmit impurity. Instead, the consumption itself is the vehicle of transmission. In other words, the Torah is identifying a means for transmission of impurity in addition to contact. Consumption, even without halachically meaningful contact, transmits impurity.
This law does seem to be clearly expressed in the passage. Nonetheless, the Oral Tradition teaches that in fact this is not the law! The intent of the passage is to communicate that only an olive-size portion of flesh transmits impurity. The intent is not to suggest that consumption without halachically meaningful contact transmits impurity. In short, Rashbam is interpreting the passage in a manner that contradicts the Oral Tradition and actual halachah!
Of course, Rashbam is not suggesting that the Oral Tradition contradicts the true meaning of the passage or that the normative halachah is incorrect. However, he is suggesting that even in instances in which the Oral Tradition teaches that the passage is to be understood in a manner other than its plain meaning, the plain meaning is important. Rashbam does not clearly explain why the plain meaning is significant. Without an explanation, his reasoning is unclear. Why is the literal interpretation of this passage relevant? This literal interpretation is rejected by the Oral Tradition and is excluded from halachah!
5. The relationship between policy and practice
Apparently, Rashbam maintains that a distinction must be made between the Torah’s goals and objectives and the manner in which these goals and objectives are expressed by the actual halachah. An example from everyday life will help illustrate this distinction. Parents must create rules for their children. Assume a set of parents makes a rule that their children may not watch television after 11:00 PM. One night they allow one of their children to watch television until 1:00 AM. The child who was indulged will probably have no problem with this exception. The other children will likely not be as willing to overlook the inconsistency. These other children may conclude that their parents are apparently not completely committed to the 11:00 PM television curfew. However, the reality may be quite different. There are a plethora of considerations that may have caused the parents to make an exception. The fact that the parents made an exception does not mean that they are not committed to the curfew. In other words, the parents have clear objectives and goals. They want their children in bed and away from the television by 11:00 PM. However, in the translation of policy into practice, wisdom dictates occasional exceptions.
Halachah also can be described as the actual practice that gives expression to the Torah’s policies. The Torah’s policies or its goals and objectives achieve practical expression through halachah. As in the above example, sometimes halachah will incorporate considerations that result in practices that are not exactly in conformity with the apparent policy.
6. The relationship between the laws of impurity and dietary restrictions
As noted above, there are numerous examples in the parasha of the inter-relationship between the laws of purity and those regulating consumption. These can be summarized. In virtually every instance in the parasha, the source of impurity is some entity whose consumption is prohibited. Rashbam is suggesting that the reason for this relationship is that the Torah treats the transmission of impurity as an extension of the restriction against consumption. In other words, through the attribution of impurity to these substances, the Torah alienates us from them and thereby reinforces the prohibition against their consumption. These substances transmit defilement because their consumption is restricted. Therefore, it follows that their actual consumption should certainly cause defilement. In other words, these objects defile because they may not be consumed. Their capacity to defile is so great, that even contact with them – not in the context of consumption – transmits impurity. If mere contact is adequate to transmit defilement, certainly actual consumption should render a person impure!
7. The significance of the Torah’s simple meaning
In fact, the Torah’s literal message is that consumption does transmit impurity. This literal interpretation of the Torah communicates or alludes to the consideration or policy that underlies the laws of impurity in the parasha. It suggests that the impurity of the substances in the parasha is related to their consumption. Oral Tradition teaches that consumption without contact does not transmit defilement. However, this is a result of considerations that impact the translation of policy into halachic practice. An exception is made for unspecified reasons.
In short, Rashbam is suggesting that the literal or simple meaning of our passages cannot be overlooked. This meaning is not expressed in halachah. In fact, halachah, for unspecified reasons, contradicts the simple meaning of the passages. Nonetheless, the simple meaning of the passages communicates essential insight into the Torah’s goals and objectives.
[1] Rabbaynu Shemuel ben Meir (Rashbam) Commentary on Sefer VaYikra 11:40.
[2] Rabbaynu Shemuel ben Meir (Rashbam) Commentary on Sefer VaYikra 11:40.