Bechukotai (5764)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help — Mida Tova — Friday eve of Parashat Bechukotai, 5765

Questions

1. Temurah in consecrated offerings and in the animal tithe.
2. What is the difference between substitution of the animal itself and substitution by designation?
3. Is substitution by designation really temurah?
4. The rationale of the verse and scriptural decree.
5. A fence and a penalty as rationales for commandments.
6. Are commandments means or ends?
7. The hermeneutical principles consist of a universal, formal, logical dimension and a specific, contentual dimension.

The Principles

• A matter that was included in a general category and then singled out in order to teach.
• A matter that was singled out to be governed by a new rule.

“And if it is an animal of which one may bring an offering to the Lord, all that one gives of such to the Lord shall be holy. One shall not exchange it or substitute it, good for bad or bad for good; and if one does substitute one animal for another, then both it and its substitute shall be holy.”

— Leviticus 27:9-10

“And all the tithe of herd and flock, all that passes under the staff, the tenth shall be holy to the Lord. One shall not distinguish between good and bad, nor shall one substitute for it; and if one does substitute for it, then both it and its substitute shall be holy; it shall not be redeemed.”

— Leviticus 27:32-33

The Rabbis taught: “‘One shall not distinguish between good and bad, nor shall one substitute for it’ — why was this stated? Has it not already been stated, ‘One shall not exchange it or substitute it, good for bad’ and so on? Since it says, ‘One shall not exchange it or substitute it,’ that suggests an individual offering; with respect to a communal offering, an altar-offering, and a Temple-maintenance consecration, Scripture therefore says, ‘One shall not distinguish.’ Rabbi Shimon said: But the tithe was already included in the general category; why then was it singled out? To tell you: just as tithe is an individual offering, an altar-offering, an obligatory matter, and something not held in partnership, so too every individual offering, altar-offering, obligatory matter, and non-partnership offering. Rabbi says: Why then was the tithe singled out? In order to be governed with respect to substitution by designation and substitution of the animal itself, teaching you: substitution by designation is offered, substitution of the animal itself is not offered; substitution by designation is redeemed, substitution of the animal itself is not redeemed; substitution of the animal itself takes effect on something fit and on something unfit, whereas substitution by designation takes effect only on something fit. They said: Because the Merciful One included in it substitution by designation, has it thereby been diminished? Yes, for we say: what Scripture included, it included, and what it did not include, it did not include. But why should that be so? Rav Huna son of Rav Yehoshua said: Because it is a matter that came to be governed by a new rule, and it has only its novelty alone.”

— Babylonian Talmud, Temurah 13b

A. Temurah and Its Meaning

Introduction

The final chapter of Leviticus deals with several laws of vows, consecrations, devoted property, houses in walled cities, and finally the section of the animal tithe. In verses 9-10, quoted above, the Torah commands us regarding the laws of temurah (the substitution of one consecrated animal for another), to which an entire tractate of the Talmud is also devoted. A person who consecrates an offering to the Lord may sometimes wish, for various reasons, to replace it with another offering. Ordinary temurah — that is, substitution of the animal itself; below we will encounter another type, substitution by designation — is done by setting aside the new animal and saying: “This is the substitute for the burnt-offering that I have,” and the like.

In verse 10 the Torah imposes a prohibition against substitution, whether one substitutes a good offering for a worse one or a worse one for a better one. At the same time, it also determines that if one nevertheless does so, the substitution takes effect. The new offering too receives sanctity. The Torah also determines that the sanctity does not depart from the original offering: “then both it and its substitute shall be holy.”¹

In the verses at the end of the section, also quoted above, the Torah commands us regarding the animal tithe. In that context it repeats the law of temurah and determines that if a person substitutes the tithe, both it and its substitute are holy. In other words, there is a unique command regarding temurah in the animal tithe, beyond the command concerning temurah in other offerings. Why is a special repetition of the law required in a context already included in the general command? As should immediately occur to any faithful reader of Mida Tova (see the sheets on Parashat Vayakhel and Parashat Tzav), in such a case we must examine the application of the principle, “a matter that was included in a general category and then singled out in order to teach.”

In the Mishnah that concludes the first chapter of Temurah, a dispute is cited between the first tanna and Rabbi Shimon regarding the source for the rule that there is no temurah in Temple-maintenance consecrations. The Gemara explains that the dispute depends on whether Temple-maintenance consecrations are called “an offering” or not. According to Rabbi Shimon, they too are called an offering, and therefore it is impossible to learn that temurah does not apply to Temple-maintenance consecrations from the word “offering” in the verse. Rabbi Shimon therefore has to derive this from another source. The source he brings is the repetition of the law of temurah with respect to the animal tithe.²

The Tannaitic Dispute

The baraita (a tannaitic teaching outside the Mishnah) determines that the law of temurah was stated only with respect to an offering — that is, intrinsic sanctity, or altar sanctity — and not with respect to Temple-maintenance consecrations — that is, monetary sanctity. Likewise, the law of temurah was stated only with respect to something that comes as an obligation, and only with respect to an individual offering, not a partnership offering or a communal offering. We have seen that, with respect to the source of these laws, the Tannaitic sages disagree in the Mishnah and the baraita:

The first tanna holds that these laws are learned from the verses that deal with temurah themselves. The fact that they are stated in the singular, and in the language of “an offering,” teaches us all these laws.

Rabbi Shimon derives them from the fact that the Torah removed the tithe from the category of offerings and, in the section of the animal tithe, repeated the laws of temurah. This was meant to teach us that the entire law of temurah was stated only with respect to an individual offering that comes as an obligation, like tithe. The principle Rabbi Shimon employs here is: “Every matter that was included in a general category and then singled out in order to teach was not singled out to teach only about itself, but to teach about the entire category” — as one would expect in such a scriptural pattern.

Rabbi, whose view does not appear in the Mishnah but only in the baraita, understands this repetition differently. In his opinion, tithe was “singled out to be governed by a new rule” — that is, it was singled out by a law that exists only there. In such a case a special innovation is required in order to restore it to its general category, that is, to teach the law of temurah with respect to tithe. Therefore the verses on temurah in the animal tithe are not merely a simple repetition, and so there is no room here for the principle of “a matter that was included in a general category and then singled out in order to teach.” The Gemara explains that the laws discussed in the baraita are derived by Rabbi, exactly as by the first tanna, from the language of Scripture itself — the singular form and the expression “offering.” Rabbi and the first tanna therefore disagree with Rabbi Shimon.³

The Tannaitic Dispute and the Relation Between the Two Principles

Thus, the Tannaitic sages disagree about which principle should be applied to tithe. According to Rabbi and the first tanna, tithe is treated as “singled out to be governed by a new rule.” Accordingly, the repetition of the law of temurah with respect to it is not superfluous, and therefore it cannot be analyzed by means of the principle “a matter that was included in a general category and then singled out in order to teach.” Tithe was no longer within the general category, because it had been removed from it in order to be governed by a new rule; therefore its being singled out cannot teach about the general category. Rabbi Shimon, by contrast, does apply here the principle of “a matter that was included in a general category and then singled out in order to teach.”

In several places these two principles appear as opposites. The reason is very simple. As we have seen, the principle of “a matter singled out in order to teach” is applied to a scriptural pattern in which a law is repeated that has already been stated with respect to a broader group. In such a case, we compare the specific case to the category from which it was singled out. But if the law had to be stated specifically in this context, then there is no repetition here, and consequently it is impossible to infer from it that there is a comparison between the two contexts. One natural way to show that the repetition is not superfluous but necessary is to say that the specific context was singled out from the general category in order to be governed by a new rule, and therefore Scripture had to restore it explicitly to its general category. See the sheet on Parashat Metzora for a fuller discussion.

What Is Substitution by Designation?

As noted, Rabbi’s reason for holding that this repetition is necessary rests on another hermeneutical principle: “Whenever a matter was included in a general category and then singled out to be governed by a new rule, you cannot restore it to its general category unless Scripture explicitly restores it to its general category.” With respect to this principle, see the sheet on Parashat Metzora. In our case, tithe was singled out from the category of offerings for a special matter, namely to teach substitution by designation; below I will suggest two possible ways to understand this. In all offerings, temurah is effected only in the form of substitution of the animal itself, that is, a declaration that this animal is the substitute for that offering. In tithe, however, there is another mode of substitution: substitution by designation.

When the animals are passed one by one under the rod, and the tenth is marked as the animal tithe, it sometimes happens that the person counting calls the ninth “tenth” and vice versa. Sometimes it can also happen that he calls the eleventh “tenth.” In such a case several animals become holy: the actual tenth, and also the one mistakenly called “tenth.” This is a unique type of substitution, which exists only in tithe.⁴

A possible source for Rabbi’s innovation is the doubling and special wording found in the verse concerning the animal tithe: “One shall not distinguish … nor shall one substitute for it.” The word “distinguish” does not appear in the general verses, and the doubling hints that in the animal tithe there are two types of substitution: substitution of the animal itself — “nor shall one substitute for it,” like all offerings — and substitution by designation — “one shall not distinguish” — which exists only in the animal tithe.

As appears from the wording of the baraita here, there are halakhic differences between ordinary temurah and substitution by designation. For example, ordinary temurah is not offered, and it takes effect even on something unfit, for example, a blemished animal. By contrast, substitution by designation is offered, and it takes effect only on something fit to be offered.

Two Interpretations in Our Sugya

Let us now return to our baraita. Rabbi says that because tithe was singled out to be governed by a new rule, with respect to substitution by designation, the repetition is necessary. Rashi and Tosafot, s.v. “to be governed,” ad loc., bring two interpretations regarding the question of what this new rule is, and consequently two interpretations regarding the need to repeat the law of temurah in the animal tithe:

1. The singling out to be governed by a new rule was intended to teach us the law of substitution by designation in tithe, beyond the law of substitution of the animal itself that exists in all offerings. In light of this, we might have thought that tithe has only substitution by designation, for “you have in it only its novelty.” Therefore the law of temurah had to be repeated, in order to teach us that tithe too has the law of temurah. Scripture explicitly restores it to its general category, for otherwise we would not have restored it.
2. The singling out to be governed by a new rule was intended to teach us that substitution by designation takes effect only on what is fit, unlike substitution of the animal itself, which takes effect both on what is fit and on what is unfit. The repetition comes to teach us that in substitution of the animal itself, the substitution takes effect both on what is fit and on what is unfit, as in other offerings.⁵

According to the first interpretation, a difficulty arises in the course of the Gemara. According to this interpretation, Rabbi argues that were it not for the repetition of the law of temurah with respect to tithe, we would not know that a law of temurah exists in tithe at all. The reason is that Scripture singled tithe out to be governed by a new rule. But what is this new rule? It is substitution by designation. If so, it is obvious in any event that some law of substitution exists in tithe, for otherwise how could it have a law of substitution by designation? What, then, was the initial assumption that the law of substitution of the animal itself would not exist in the animal tithe?

Is Substitution by Designation Really Temurah?

The law of substitution by designation appears in the Mishnah in Babylonian Talmud, Bekhorot 60a, and in the discussion there. The give-and-take in that Mishnah is illuminating, and we will quote part of it:

If he called the ninth “tenth,” and the tenth “ninth,” and the eleventh “tenth,” all three are consecrated. The ninth is eaten once it becomes blemished, the tenth is the tithe, and the eleventh is offered as a peace-offering and can effect temurah — these are the words of Rabbi Meir. Rabbi Judah said: Can a temurah itself effect temurah? They said in the name of Rabbi Meir: If it were a temurah, it would not be offered.

— Mishnah, Bekhorot 60a

Rabbi Meir says that the eleventh animal, which was mistakenly called “tenth,” is offered as a peace-offering and can effect temurah. Rabbi Judah raises against him a simple question: according to the halakha (Jewish law), a temurah cannot itself effect temurah; see Maimonides, Mishneh Torah, Laws of Temurah 1:15. Rabbi Meir answers that this animal itself, the eleventh, is not in the category of temurah at all. The proof is that it is offered on the altar,⁶ as is evident from our sugya in Temurah with respect to substitution by designation; see Rabbi Gershom’s commentary on the sugya in Bekhorot there. For this reason Rabbi Meir holds that there is no problem in its effecting temurah.

It follows from this that, according to Rabbi Meir, substitution by designation is not considered temurah, and therefore it is offered as a peace-offering. Substitution of the animal itself, which is not offered — as explained in the quotation from our baraita above — is apparently actual temurah, and therefore it does not effect temurah, it takes effect even on what is unfit, and so forth.

We can now understand the course of our Gemara. Had the Torah not repeated the laws of temurah in tithe, we would have thought that tithe has only substitution by designation and not substitution of the animal itself. In such a situation no law of temurah at all would apply to tithe, for substitution by designation is not really temurah. Therefore the Torah repeats and teaches the law of substitution of the animal itself in tithe, in order to teach that tithe too has a law of temurah.⁷

So What, After All, Is “Substitution by Designation”?

Maimonides brings the law of substitution by designation in Mishneh Torah, Laws of Firstborn Animals 8:1:

This matter has been received by tradition: that an animal designated in error becomes sanctified in the tithe, whether it is the one above the tenth or the one below it…

From Maimonides’ wording it appears that he understands the eleventh animal to become sanctified with the sanctity of tithe, and not as temurah. In other words, “substitution by designation” is not an alternative mode of the law of temurah. It is a law within the laws of tithe, according to which even an erroneous designation of “tenth” is effective in imposing the sanctity of tithe on the animal, and it is therefore offered as a peace-offering.

This law may stem from the fact that the animal tithe in general depends also on the owner’s intention, and not only on objective reality. We have seen that the actual tenth becomes sanctified with the sanctity of tithe, but so too does the animal that was called “tenth,” even in error. With respect to tithe, intention counts no less than reality.

We know from Babylonian Talmud, Bava Metzia 7a that a doubtful tithe is not a tithe — “the definite tenth, and not a doubtful tenth.” Normally, a doubt in Torah law is treated stringently, and therefore, at first glance, we ought to have treated the doubtful case as tithe out of stringency. Rabbi Elchanan Wasserman, in an article in Ohel Torah, explains the conceptual structure of all the laws in which the Torah innovates that we should treat a doubtful case as though it were certainly permitted — orlah outside the Land of Israel, mourning, a mamzer, the animal tithe, and others. Rabbi Wasserman explains that all these laws do not depend on reality but on the person’s cognition. Once there is doubt, there is no prohibition, because the matter is determined by what the person thinks, and not by reality itself.⁸ It may be for this reason that when the owner mistakenly calls an animal “tenth,” it thereby becomes tithe. As noted, tithe depends on the owner’s intention, and not only on objective reality itself. According to Rabbi, this is probably the meaning of the verb used in the verses concerning the animal tithe, “to distinguish.”

This is probably the reason that our baraita determines that substitution by designation is offered, that it takes effect only on something fit, and that the laws of the tithe-offering apply to it. The reason is that substitution by designation is a type of tithe, and not a type of temurah of tithe. By contrast, substitution of the animal itself in tithe is ordinary temurah, and therefore it takes effect even on what is unfit, and it is not offered.

B. The Rationale of the Verse and the Principle of “A Matter Included in a General Category and Then Singled Out in Order to Teach”

Introduction

Up to this point we have dealt with Rabbi’s view, which ties the law of temurah in tithe to the principle of “singled out to be governed by a new rule.” In this chapter we return to Rabbi Shimon’s view, who discusses the temurah of tithe by means of the principle of “a matter that was included in a general category,” and therefore the specific case, tithe, was singled out in order to teach about the entire category. Rabbi Shimon’s conclusion is that the law of temurah stated with respect to consecrated offerings in general is learned from the laws of the animal tithe: it applies only to offerings that possess intrinsic sanctity, only to something that comes as an obligation, and only to an individual offering, not to a partnership offering and not to a communal offering.

The Problematic Nature of Rabbi Shimon’s Comparison

Rabbi Shimon’s comparison between tithe and the law of temurah in all consecrated offerings is problematic. How were the parameters of similarity chosen? Why did we learn that temurah applies only to intrinsic sanctity and only to individual offerings, whereas we did not learn from tithe that the law of temurah applies only to lesser holy offerings like tithe? Or perhaps only to the firstborn and the tithe, which resemble one another in several respects? It is not clear what criterion guides the interpreter in choosing the axes of similarity.

It should be emphasized that the verses themselves do not seem to provide any hint on this point. The similarity is the result of analyzing the subjects that are being compared to one another, that is, the result of rational judgment.

This question once again raises the relation between the formal-universal dimensions present in every hermeneutical principle and the specific components that depend on each context in which the principle is applied. It is quite clear that the axes of similarity are not learned from the universal mode in which the principle operates, and sometimes not even from the verses. The contents of the similarity are a product of the content of the subjects that are being compared — tithe and consecrated offerings — or of the feature being compared between those subjects, namely the law of temurah. The principle is a framework that can dictate and delimit directions of similarity. The principle can determine the direction of the comparison — from the general category to the specific case, or vice versa — whether we are dealing at all with similarity or with generalization, and so forth.

Maimonides at the End of the Laws of Temurah

Maimonides concludes the Laws of Temurah with a few explanatory words, and there he suggests, though in qualified language, a possible rationale for the law of temurah. This is his language at the end of the Laws of Temurah:

Although all the statutes of the Torah are decrees, as we explained at the end of Me’ilah, it is fitting to contemplate them, and whatever reason you can give them, give them a reason. The early sages already said that King Solomon understood most of the reasons for all the statutes of the Torah. It appears to me that what Scripture said, “then both it and its substitute shall be holy,” is similar to what it said, “and if the one who consecrated it redeems his house, he shall add a fifth of the money of your valuation to it.” The Torah descended to the depths of human thought and to a certain extent to his evil inclination. Human nature inclines a person to increase his possessions and to have pity on his money, and even though he vowed and consecrated, it is possible that he went back on it and regretted it, and would redeem it for less than its value. Therefore the Torah said that if he redeems it for himself he must add a fifth. Likewise, if he consecrated an animal with intrinsic sanctity, he may regret it, and since he cannot redeem it he will exchange it for one inferior to it. And if you permit him to exchange the bad for the good, he will exchange the good for the bad and say, “It is good.” Therefore Scripture blocked the way before him and forbade him to exchange, and penalized him if he did exchange, saying, “then both it and its substitute shall be holy.” All these things are intended to subdue his inclination and to correct his dispositions. Most laws of the Torah are nothing but counsels from afar from the Great Counselor, to correct dispositions and to straighten all actions. Thus it says: “Have I not written to you excellent things in counsels and knowledge, to make you know the certainty of the words of truth, that you may return words of truth to those who send you?” End of the Laws of Temurah.

There is here a proposal to view the law of temurah as a kind of penalty, whose purpose is to prevent a person from replacing the animal he consecrated as an offering with an animal cheaper than it. Maimonides says that although the verse quoted above forbids replacing a bad animal with a good one as well, this too is intended to prevent the possibility that a person will replace a good animal with a worse one.⁹

The Parameters of Similarity

It seems that Maimonides’ rationale is a good candidate to serve as the criterion underlying all the axes of similarity between the animal tithe and the general law of temurah. If indeed the purpose of the law of temurah is to penalize the substituter, in order to prevent a person from replacing his sacrificial animal, then it is understandable that there is less reason to impose such a penalty in the case of a communal offering. There is no concern that someone will effect temurah in a communal offering in order to protect the community’s money, for it is not his own money. Especially with respect to the community, it is unlikely that someone would try to save their funds while at the same time causing them to fail by bringing an inferior offering.

With respect to partners, there may perhaps be some concern that they will try to save money, for unlike the community they do have a personal monetary stake in the animal. On the other hand, it is unlikely that partners would conspire against a consecration. Therefore the concern that they will effect an improper temurah is not realistic, and there is no need for a penalty.

The same consideration can also be applied to temurah in monetary sanctity, that is, Temple-maintenance consecrations, based on the rationale suggested by Maimonides. Generally speaking, it is unlikely that people would come to replace an object consecrated with monetary sanctity with something cheaper. First, in many cases a person consecrates a sum of money or a valuation, not an object. In such a case there is clearly no room to replace it with another valuation. Beyond that, if the essence of monetary sanctity is value, rather than atonement as in an offering, then a person cannot deceive himself or his surroundings and claim that he is bringing another, more sacred object. If the second object is worth less, then he has not fulfilled his obligation, because he did not bring to Temple maintenance the value he committed himself to. Temurah in an offering, by contrast, is a different situation. There, were it not for the law of temurah, we might think that he has fulfilled his obligation, or obtained atonement, even with the inferior offering. Therefore it is a realistic possibility that a person will come to substitute a good offering with one worse than it.

By contrast, the fact that tithe belongs to the category of lesser holy offerings does not seem a plausible basis for an alternative axis of similarity with respect to the laws of temurah. Why should someone who can obtain atonement through most holy offerings not try to replace the offering with an inferior animal? On this issue there does not seem to be room to distinguish between most holy offerings and lesser holy offerings. Therefore this axis of similarity was not used in the comparison between tithe and the other offerings with respect to temurah.¹⁰

We thus learn that all the axes of similarity between the animal tithe and consecrated offerings in general with respect to temurah emerge from understanding the nature of the law of temurah as a penalty designed to prevent a reduction in the value of the offering. According to our proposal, this is the line of reasoning that underlay the comparison made by the interpreter, and from it he derived all the parameters of similarity; by the same power he also excluded other parameters.

If so, the principle of “a matter that was included in a general category and then singled out in order to teach” tells us that the specific case was singled out in order to compare itself to the general category. The interpreter must now choose, from the full set of characteristics of the specific case, which of them are relevant to the law being compared, and apply them to the general category as well. That choice is made on the basis of his own reasoning. This is exactly the process we have described here.

The Approach of the Sifra

As noted, the Sifra extends the law of temurah even to most holy offerings by means of a midrash (rabbinic exegetical derivation). At first glance, this implies that according to the Sifra, were it not for the midrash, we really would have compared tithe to the other offerings on this point as well, and concluded that the law of temurah exists only in lesser holy offerings. If so, according to the Sifra the axes of similarity are not derived from Maimonides’ rationale.

It may be suggested that the midrash in the Sifra follows the view of Rabbi and the first tanna, and not Rabbi Shimon. As we saw above, Rabbi and the first tanna derive these laws from the language of Scripture — which uses the singular and the word “offering” — and this implies that they do not have such reasoning on their own. Perhaps Rabbi Shimon is consistent here with his general approach, in that he does derive the rationale of the verse.

According to this, it may also be possible to explain why Maimonides presents this rationale in qualified language, for we do not rule like Rabbi Shimon on the question of deriving the rationale of the verse.

The Rationale of the Verse and the Contentual Dimension of the Hermeneutical Principles

But this is not necessary. As we have seen, tithe was singled out from the general category in order to teach. That itself hints to us that tithe is to be compared to the other consecrated offerings. If so, the Torah itself instructs us to seek parameters of similarity on our own, because, as we have seen, every hermeneutical principle contains a specific contentual layer that is not learned directly from the verses.

It is important to notice that this is not a question of deriving the rationale of the verse. We are not independently interpreting the reason for Scripture’s law; rather, we are trying to find a criterion that will underlie the comparison to which the Torah itself hints, by singling tithe out from the general category in order to teach. In such a situation everyone will derive the rationale of the verse, because otherwise we could never interpret anything at all. It seems that there is no hermeneutical principle that stands entirely on formal foundations without recourse to the specific contents of the scriptural context. As we saw in the sheet on Parashat Vayeshev and elsewhere, every exegetical derivation contains a universal-logical layer and a specific-contentual layer. For example, in a gezerah shavah (an inference from verbal analogy), Scripture hints to us to compare two passages by means of a shared word. But the determination of the parameters of similarity remains in our hands. Once we are directed to the specific layer, we have no choice but to search for the reasons behind the matter. Here the rule that we may not derive the rationale of the verse does not apply.

General Implications for Understanding the Principles and the Modes of Interpretation: The Two Dimensions Present in Every Principle

As noted, the scriptural pattern in this case dictates to us clearly and unambiguously the use of the principle “a matter that was included in a general category and then singled out in order to teach.” That much we have already learned. This is the universal dimension in this hermeneutical principle. From this point onward, the task falls upon us. The scriptural hint instructs us to seek parameters of similarity, which we find by means of our own interpretive reasoning. This is the specific-contentual dimension within the principle.

Sometimes the contentual dimension can be sought within the scriptural context in which the verse we are interpreting appears, as in the case discussed in the sheet on Parashat Kedoshim. In other cases, as in our proposal here, the source of the specific-contentual dimension is solely the interpreter’s reasoning.

This is an important lesson for all students of the hermeneutical principles, and for all who share the effort to renew our use of them.

The Connection to the Concept of “Scriptural Decree”

At this point one can raise a question in the opposite direction: if the conclusion is indeed clear from reasoning, why is it necessary at all to single tithe out from the general category? If it is clear from understanding the nature of temurah that this law does not belong to monetary sanctity, or to communal and partnership offerings, then why is there any need to remove tithe from the general category and lead us through this winding process?

Here the other side of the coin enters. Had the Torah not singled tithe out from the general category, the consideration that views temurah as a penalty would not have been relevant on the halakhic plane. It would have remained merely the rationale of the verse, which we are not permitted to derive. Singling tithe out from the general category instructs us to seek a parameter of similarity, and it is here that we are permitted to use the reason for the law in order to derive halakhic conclusions.

This consideration resembles what we saw at the end of the sheet on Parashat Vayera in the words of Meiri, regarding “scriptural decree.” We saw there that even laws that are in the category of scriptural decree are not devoid of reason. However, the reason in such cases is not decisive, and one cannot derive the conclusion solely from the reasoning that underlies it. Therefore a scriptural hint is required, one that gives us authorization from the Torah to shape the halakha in accordance with our understanding of it. A scriptural decree is a law learned from a verse, which reveals the reason for that law and gives it force. If so, scriptural decree is not a substitute for reason, but a foundation for reason.¹¹ This is exactly what we saw with respect to the hermeneutical hint in the principle of “a matter that was included in a general category and then singled out in order to teach.”

It should be noted that even according to the views of Rabbi and the first tanna in the baraita, there is not necessarily any disagreement that this is indeed the reason for the law. But according to them, the singling out of tithe from the general category serves something else — to restore it to its category after it had been singled out to be governed by a new rule — and therefore nothing can be learned from it about the general category. According to them, we have no scriptural hint that permits us to use the rationales of the law of temurah, and therefore for them this remains only the rationale of the verse.

Back to Maimonides

But we must now return to the words of Maimonides quoted above. According to our analysis, what we have here is a real rationale that we do derive, and not a rationale stated only as theoretical reflection. Yet Maimonides’ wording does not imply this. He takes pains to emphasize that this is only the rationale of the verse, and to prove that we are permitted to try to conjecture the reasons for the commandments.

Perhaps Maimonides means only that this is a principled rationale, but it does not stand on its own. As we explained above, we could not have derived conclusions from the rationale without the principle that singled tithe out from the general category.

And one should note that here Maimonides brings proofs from King Solomon that we ought to seek reasons. In other places he does not do so. At first glance, this indicates that his intention here is more substantive; that is, here he is relating to these matters as the actual rationale of the law of temurah, and not only as a rationale of the verse.¹²

We should note that we have already seen that these matters are probably the subject of a dispute among the Tannaitic sages, between Rabbi Shimon on the one hand and Rabbi and the first tanna on the other. As we mentioned, Maimonides apparently rules here like the first tanna, and therefore from his point of view the rationale for the laws of temurah may indeed be only the rationale of the verse.

Penalty as the Rationale of the Verse

The question whether one derives the rationale of the verse arises in several contexts and in several different forms. For example, Rabbi Yosef Engel, in his book Lekach Tov, principle 8, discusses whether there are protective fences in Torah law: can a Torah law be interpreted as something whose purpose is only a fence, or is every Torah law an end in itself?

The assumption underlying the discussion is that the Torah deals only with ends and not with means. From this point of view, penalties too are means and not ends, and there is certainly room to raise the question whether there are Torah laws that are penalties.

With respect to fences, one can find several examples in the medieval authorities that treat Torah laws as fences — for example, the laws of seclusion, or the laws of destroying leaven, and others. Here we see that there is also a Torah law that is in the nature of a penalty.

How do all these fit with the rule that one does not derive the rationale of the verse? On the one hand, even if one does derive the rationale of the verse, it still does not necessarily follow that the rationale is a penalty or a fence.¹³ But if we do not derive the rationale of the verse at all, then there is clearly no room to understand any laws whatsoever as fences or penalties.

A possible way out of the tangle is a scriptural situation like the one we have seen here: when the Torah itself hints to us that we should make use of the reason for the law, for example, when it singles out a particular case from the general category. In such a situation there is certainly room to derive the rationale of the verse.

Footnotes