Is the sin of bringing a premature offering punishable by lashes?
Rabbi Shmuel Wise, Magid Shiur at realcleardaf.com
This issue came up in the Daf this week on 114. The anonymous first opinion in our mishnah rules that someone who offers a premature sacrifice (e.g. an animal younger than eight days old) outside of the Beis Hamikdash isn’t liable for the sin of bringing an offering out of bounds. This is as we would expect given the rule laid out earlier in the Mishnah that the sin of bringing an offering outside is only applicable to a sacrifice that was fit to be offered inside. Being that a premature offering is not fit to be offered inside, offering it outside will not violate the prohibition.
R’ Shimon, however, rules differently. Although R’ Shimon acknowledges the rule stated above and thus agrees that bringing a premature sacrifice outside wouldn’t make a person fully liable (i.e. to the punishment of kareis), he would still have violated a negative commandment in the Torah. Which negative commandment? This is the question taken up by the Gemara, beginning on 114a. The gemara there explains that R’ Shimon’s negative commandment is based on the verse that we will read in this week’s Torah reading. In the verse, Moshe informs Bnei Yisrael of the sacrificial laws that will apply upon entering Eretz Yisrael throughout the period of conquest and division of the land (the period of “Gilgal,” the location of the communal altar).
In R’ Shimon’s understanding, Moshe in this verse tells Bnei Yisrael that throughout this period—until the establishment if the more permanent Tabernacle, or Mishkan, in Shiloh—the people will not be able to bring individual obligatory korbanos; only voluntary korbanos will be allowed. Now what if someone during the Gilgal period went ahead and consecrated an animal as an obligatory sacrifice? Based on Moshe’s teaching, that sacrifice would be considered premature, for the person wouldn’t be able to bring it until the establishment of the Mishkan in Shiloh. In effect then, Moshe’s command here of, “Do not do as we’ve done until today (i.e. do not bring an obligatory sacrifice during the Gilgal period),” is a negative command against bringing a premature offering. This is the reason that R’ Shimon says a negative commandment is violated for offering a premature sacrifice outside of the Beis Hamikdash.
The Gemara observes that if this is the negative commandment that R’ Shimon refers to, it should apply even if the person brought the premature sacrifice inside of the Beis Hamikdash. But this would then appear to contradict the conclusion of the gemara in Chullin (78a) about this matter. The gemara there considers the possibility of lashes based on a verse in Emor which states a negative commandment against offering any disqualified sacrifice—including a premature sacrifice. However, the gemara dismisses this proposal based on a verse in Mishpatim which states the sacrificial requirement that the animal be at least eight days old as a positive commandment. This verse has the effect of changing the prohibition of offering a premature sacrifice from a negative to a positive commandment. Thus (since only negative commandments are punishable by lashes) the gemara there concludes that offering a premature sacrifice is not punishable by lashes. But according to R’ Shimon who derives a prohibition against offering a premature sacrifice from “You will not do as we do here today,” there still should be lashes! The gemara answers by saying that indeed the gemara there in Chullin was only stated according the rabbanan of our gemara who disagree with R’ Shimon, but it’s true: according to R’ Shimon if someone brings a premature sacrifice—even inside of the Beis Hamikdash—he would be liable to lashes.
The gemara’s question here gave me some pause: Yes, it’s true that R’ Shimon understands “You will not do as we do here today,” as a negative commandment against premature sacrifices, but why shouldn’t the positive commandment language of Mishpatim change the status of this prohibition from negative to positive, just as it does to the verse in Emor?
A careful reading of Rashi and Tosafos helps us understand the Gemara’s point here. In Rashi there’s one key word the sheds light on the issue: “explicit.” As elaborated further by Tosafos, the important thing to understand here is that R’ Shimon is suggesting that the Torah explicitly stated a negative commandment specifically against bringing a premature offering. If the Torah forbids a particular act with a negative commandment, the fact that in a different place the Torah expresses it positively (i.e. you shall do the opposite of the forbidden act) does not impact the negative status already conferred upon the prohibition by the first verse.
By contrast, the gemara in Chullin is saying that if the Torah states an umbrella prohibition like the prohibition in Emor against offering any disqualified sacrifice, but then singles out a specific example under that prohibition (i.e. premature sacrifices) expressing it as a positive commandment, then this indeed has the effect of placing that specific example in the technical category of a positive commandment which is not subject to lashes.
Thanks to the elucidation of Rashi and Tosafos we now understand why our gemara states that the conclusion of the gemara in Chullin is incompatible with the view of R’ Shimon.