Hullin 54 – We Don’t Add to the List of Treifot – Really?

My daily daf shiur has been going strong, through shechita and now the world of animal anatomy and treifot.  We continue to post the audio recordings of the shiur, on this site and as a podcast, and we are now also streaming live video on the YCT channel on JustinTV, with saved recordings for 1 week.  We encourage you to follow us on any and all of these outlets.

The blog postings have, for the last 4 weeks or so, been on a little bit of a Summer vacation, but as we near the end of the Summer and the end of אלו טריפות, I want to post on some central themes of this perek, chief of which is that of Science and Halakha.  In this post we will explore briefly whether the list of treifot has ever changed as a result of later discoveries, and in the next post we will look more broadly at the question of science and halakha.

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On Sunday’s daf, Hullin 54, the Gemara concludes it’s long analysis of the list of treifot of mammals. with a brief discussion of the last clause in the mishna:

“This is the rule: if an animal with a similar defect cannot live, this animal is a treifa.” (Mishna). What cases does this phrase include? — It includes the Seven Statements (שמעתתא).

The members of the house of Joseph the fowler used to kill beasts by striking them on the sciatic nerve. When they came to inquire of R. Judah b. Bathyra, he said to them, ‘May we then add to the list of defects [which render an animal trefah]? We accept only those enumerated by the Rabbis’.

The members of the house of R. Papa b. Abba the fowler used to kill beasts by striking them on the kidney. When they came to inquire of R. Abba, he said to them, ‘May we then add to the list of defects? We accept only those enumerated by the Rabbis’. But do we not see that the beast dies [from the blow]? We know by tradition that if salves were applied, it would live.

This passage ends with two stories that strongly assert that we cannot, based on empirical evidence, add to the list of treifot, even if it would mean being more strict.  The list of the Rabbis is final.  How, then, do we deal with the direct contradictory evidence?  There are two ways to read the conclusion of the Gemara:

1. We happen to know by tradition that there are remedies for exactly the specific injuries dealt with here – injury to the kidneys and the sciatic nerve. – or -
2. Even if we do not know that any specific remedies exist, we must assume that they do, since we know that the list of the Rabbis is final.

The first approach allows for the possibility that if we were to find another fatal injury for which there was no knowledge of any remedy, then we could indeed add to the list.  This is not the sense that one gets from the categorical exclamation: “Do you think that we can add to the list of treifot?!”  The clear sense of the sugya, then, is reading #2 – that given that we know that the list of the Rabbis is final, we must assume that any injury that appears to be fatal but is not on the list, is not actually fatal or has some cure.

So that would seem to end it – no additions can be made to the list.  But wait!  Haven’t the last 10 pages of this perek been a discussion not only of the parameters of the injuries on the mishna’s list, but also of additions to the list posited by the Amoraim?   And isn’t that exactly the first comment the Gemara makes here on the mishna – that the principle that “if an animal with a similar defect cannot live, it is a treifa,” comes to include injuries not on the list, like those of the Seven Statements?  How can this comment be juxtaposed with the following stories that assert that the list is final?  Are we guided by the principle or by the list?

Two answers seem possible here.  The first is that additions to the list made by the Amoraim – the Seven Statements – are not actually additions.  Remember that in the beginning of the chapter (42a) the Gemara stated that these could be part of the list of 18 treifot that R. Yishmael states are halakha li’Moshe mi’Sinai.   That is, these statements, although only articulated by the Amoraim, could be long standing traditions.  As such, the principle still holds that the list of treifot cannot be added to based on empirical knowledge, only based on tradition.  It should also be noted that the primary meaning of the word shmaitita, translated above as “[Seven] Statements,” most classically means not “teaching” or “statement,” but rather “tradition.”  Now, it is clear from all the discussions in the Gemara that these traditions were not universally held (indeed a recurring theme of this chapter has been the prevalence of conflicting and lack of fully reliable traditions).  It is also clear that the exact parameters of these traditions were subject to analysis and had to be worked out (a perfect example of אסוקי שמעתתא אליבא דהילכתא and איגרא דשמעתתא סברא).  Nevertheless, they are sourced in tradition and hence can be added to, or discovered to have always been a part of, the original list.

An alternate approach would focus not so much on the presence of a tradition, but rather on the general question of the source of authority.  The Seven Statements originated with the Rabbis.  Thus, even if they came later than the original list, since they are the rabbinic application of the principle of כל שאין כמוה חיה, they can be added to the list.  In contrast, the real problem with the two stories that follow is that the impetus to deem something a treifa came from non-rabbis, from hunters, and rested on their authority.  These hunters came to the rabbis and were arguing that based on their experience these animals should be deemed to be treifot.  Here the answer was clear – *you* can’t add to the list of what *the Rabbis* enumerated!  The problem is that the source of authority is completely external to the system.

An obvious practical difference between these two approaches is a case where a rabbi – an Amorah, a Rishon, an Acharon – argues to add to the list based on his (a) analysis of or application of a sugya, (b) analysis of a sugya informed by his empirical knowledge and/or his understanding of science, or (c) his direct application of his empirical of scientific knowledge.   If one takes the first, categorical approach, that nothing can be added, then that is the end of it.  But if the problem is that of authority, one can imagine that some of the above scenarios might create sufficient basis to add to the list.  The first case is an example of pure rabbinic analysis and application, and should be as valid as the Seven Statements (assuming they were not based on long-standing tradition).  The second and third cases are trickier, as they represent an interface between external evidence and rabbinic authority.  The key here, though, is that the list of treifot could in theory be added to, if it came about through a process of rabbinic interpretation and application.

If we can add to the list based on a traditional rabbinic process, why would we not be able to do so when the initiative/authority originated elsewhere?  This may be based on a broader concern of where the source of halakhic authority ultimately rests.  Can we allow the scientists or hunters to have more authority in this field than the rabbis?

Alternatively, it may be based on a specific issue by treifot – that there is both a principle at play here – that an injury which is fatal makes an animal a treifa – and a tradition, a traditional list of treifot, perhaps even based on a halakha li’Moshe Mi’Sinai.  Those who say that the list could never be added to would underscore that it is the tradition alone which dictates.  Those who allow for adding to the list but only within certain interpretive parameters would argue for an interplay between the tradition and the principle of fatal wounds. Rambam, for one, states both the principle that fatal injuries make an animal a treifa (Forbidden Foods 4:8-9, Shechita 5:1) and the statement that the list is a halakha li’Moshe mi’Sinai (Shechita 5:2).  How do these two coexist?  One way could be that the principle can be used to interpret and expand the list, but only following traditional rabbinic forms of interpretation and application (this would allow for cases (a) and (b) in the previous paragraph, but not (c)).  Change is allowed, but within certain parameters.

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So much for theory.  What is the story when it comes to practice?  Do we ever find anyone actually adding to this list?  Interestingly, the answer is that yes, sometimes rabbis did add to the list.  This was sometime opposed, based on a categorical stance that the list is final – a true, immutable halakha li’Moshe mi’Sinai – but it sometimes was accepted without comment or fuss.   In a footnote (no. 103) to the entry on “Histhanut HaTevaim – Nature has Changed” in Encyclopedia Hilkhatit Refuit, Dr. Avraham Sternberg presents a long list of cases where Achronim have added to the list of treifot.  These include:

• Bone in the heart – Resp. Chatam Sofer YD 43
• Missing chamber of the heart – Darkhei Teshuva 40:6
• Bone in the lung – Taz YD 39:23
• Lesions and corpuscles in the stomach – Shulkhan Arukh YD 46:6
• Dried and shriveled liver – Shulkhan Arukh and Rema YD 41:3
• Corpuscles and changed colors in the liver – Darkehi Teshuva 41:33, 35, 38
• Shrunken spleen – Shulkhan Arukh YD 42:2-7

He concludes this footnote by stating: “Certainly some of these examples can be reconciled (with the principle that one does not add to the list), or perhaps even all of them can be, but I have yet to see an answer to this problem.”  As stated above, I believe the answer is that all of these cases are not additions that originated outside the system.  They came perhaps completely internally – through the traditional process of analysis, analogy and application – and perhaps also through an interface of scientific knowledge with traditional sources and analysis.

I end with a final example of this tension and that is the case of a missing upper jaw of an animal.  Rambam ruled (Shechita 8:16, 23) that this was a treifa, although this case never appears in the Gemara.  In a Responsa (Blau edition, 316), he was questioned about this by the Sages of Luniel, and he responded as follows:

אבל לחי העליון קבוע הוא והחוטם הקבוע בו הוא עיקר נשמת רוח חיים הנכנסת ללב דרך הריאה עם הנשימה שתכנס מן הפה ואותו הלחי העליון כמו גג הוא לכסות הקנה כדי שלא תכנס נשמת הרוח והיא קרה לריאה וימות החי… אם ינטל לחי העליון אבד הכל ונמצא פי הקנה מגולה לאויר ומיד תכנס בו הרוח בכל נשימה ונשימה… וכיוצא תקרר הריאה והלב ותמות הבהמה ואין לך מי שאין כמוה חיה יותר מזו.

ומפני זה מנו נטילת לחי התחתון דוקא בכשרות לא העליון. וזה שאמרתם שלא שמעתם ולא ראיתם בחיבור מי שמנה טרפה זו הרבה דברים לא יזכירו אותם המפרשים מפני שלא שמו דעתם להם וכשיבין אדם באותם הדברים יראו.

But the upper jaw is fixed and the nose is fixed in it – that is the essence of the breath of life which enters into the heart (sic! – a common belief going back to the time of the Talmud, see Hullin 45b) via the lungs with the breathing that enters through the mouth.  And this upper jaw is like a roof which covers the opening of the trachea so that the breath of air does not enter in when it is cold into the lungs, which would cause death… [Thus,] if the upper jaw were removed, all would be lost, and the opening of the trachea would be exposed to the air and the air would enter into it directly with every breath… and thus the lungs and the heart would chill and the animal would die.  And you have no greater example of the principle “if an animal with a similar defect cannot live” than this case.

It was for this reason that the Rabbis enumerated a removed lower jaw among injuries where an animal is not a treifa, because they meant specifically this case, whereas a missing upper jaw would render it a treifa.  And that which you said that you have never heard or seen anyone write in any book that this injury makes an animal a treifa – many things are not mentioned by the commentators, because they did not consider them, but when a person understands these matters, he will see [the rightness of this ruling].

Rambam in his response defends his position based on [his understanding of] science, and he also explains that the Gemara’s focusing on the lower jaw did not mean to suggest that the upper jaw was less of a problem.  Quite the contrary, he states, the upper jaw is actually more of a problem.  What Rambam does not explain – what he was not asked about directly – is how he allows himself to add this treifa given the principle that we do not add to the list, a principle that Rambam himself asserts (Shechita 10:12-13).  Indeed, the Tur rejects Rambam’s ruling stating: “”And I am astounded at his ruling regarding the upper jaw.  Since it is not explicit in the Gemara, is it possible to add to the list of treifot?” (YD 33).  The Maharshal, in his Yam Shel Shlomo is even more emphatic: “And regarding the fact that Rambam wanted to added [this case] based on medical science, and to prove that the animal could not live [without the upper jaw] – I am shocked at this!  Behold he himself writes: “And one cannot add to these treifotat all… beyond the list given by the Rabbis…” (Shechita 10:12).  Therefore I say that although Rashba wrote that Rambam’s ruling [in regards to the upper jaw] makes sense, nevertheless, if such a case were to come to me, I would permit it…” (Yam Shel Shlomo, Hullin 3:7).

What is the answer to these challenges?  I believe it is the same as that to the list presented by Rabbi Dr. Sternberg.   This is an addition that, while informed by medical science, came through the process of interpreting traditional sources.  For Rambam did not only assert that the Talmudic passage did not contradict him.  He actually asserted that it implicitly supported him.  By focusing on the lower jaw, says Rambam, the Gemara is implicitly stating that the upper jaw is a problem.   An addition to the list that comes through the interpretation of traditional sources and that is supported by medical science is – at least according to Rambam – totally acceptable.  This is the balance between treifot being a halakha li’Moshe miSinai and at the same time following a principle that any fatal wound qualifies as a treifa.