Back in 2007, I posted 7 answers to the question of why we treat Torah law and rabbinic law differently. In particular, we are lenient when in doubt about a rabbinic law (safeiq derabbanan lahaqeil) but are stringent when it comes to Torah law (safeiq deOraisa lechumra). “[W]hy do we rule leniently for a rabbinic law? Isn’t every rabbinic law really a Torah law of ‘do not veer from what they tell you, neither to the left nor to the right?'”
The second answer resolved around an interesting dispute that I encountered again recently.
In Shaarei Yosher, [Rav Shimon Shkop] asks the question of why a sefeiq sefeiqah (a doubt added upon a second doubt) is ruled leniently.
The Rashba (Shu”t 1:401) holds it’s a variant on the notion of relying on majority. If the first doubt is roughly 50:50, and the second doubt is roughly 50:50, the chance of violation is 1/4, and therefore ignorable. However, Rav Shim’on asks, why then do we have the rule “mi’ut bemaqom safeiq lo amrinan — we do not speak of a minority added to a safeiq“? After all, if the first doubt is 50:50, any minority to whittle away at one side would make a majority? And yet, a case of doubt plus minority is no more lenient than without the minority?
Rav Shimon explains sefeiq sefeiqa on other grounds, following the Rambam. Who said that a doubt in Torah law must be ruled stringently? It wasn’t the Torah, it is rabbinic! And therefore, a second doubt on top of that first one is a doubt in a rabbinic law — and therefore we rule leniently.
So, rather than the Ramban’s limiting the specific prohibition to only cases where we are certain about the realia, it’s possible that we could limit the rabbinic enactment of ruling stringently on Torah law to have only been made about the other 612 laws. With the same consequent rationale.
Ula says on Chullin 43a lists eight kinds of tereifos given to Moshe at Sinai. An animal with one of these conditions may not be eaten (regardless of proper shechitah), nor may we use their milk. One of them is a derusah, an animal that was clawed by the forelimb of a predator large enough to poison it. Chazal speak of a poison in the claw, perhaps today we would speak of infection; but regardless of the explanation, the bottom line is that it was given to Moshe at Sinai, and all our theorizing is just guesses. After all, even if modern science would prove that the animal would live, or if it had a condition other than these 8 that is inevitably fatal, we do not change the list.
The Rambam (Shechitah 5:3) says that a doubt in most forms of tereifah is resolved leniently, derusah being the one exception. He says this is because the other tereifos are halakhah leMoshe miSinai — laws given to Moshe in the Sinai, without documentation in the Torah, Whereas derusah is referred in the text (Shemos 22:30), “וּבָשָׂ֨ר בַּשָּׂדֶ֤ה טְרֵפָה֙ לֹ֣א תֹאכֵ֔לוּ — and meat that is torn (tereifah) in the field you shall not eat.” The Arukh haShulchan (Yoreh Dei’ah 29:25) points out that since halakhos leMosheh miSinai are no less authoritative or stringent than those written in the Torah. And besides, even though the other seven categories are not mentioned in the Torah, the broad topic of tereifah including all of them is.
As we saw in the earlier post, the Rambam (Tum’as Meis 9:12) holds that the rule that safeiq deOraisa lechumera — a doubt in Torah law is to be decided stringently — is itself a rabbinic rule. However, the Arukh haShulchan writes, this is only true in general, when it comes to a derusah, it is the Torah itself that requires we assume the more stringent possibility. He explains that this is the aspect of the verse with regard to derusah the Rambam is referring to. The Torah describes an animal found torn in the field, and tells us it’s not kosher. Even though we didn’t actually see a carnivore attack the animal. In this one case, the doubt is presumed stringent by implication of the Torah — unlike every other safeiq derOraisa lechumerah, which is “only” rabbinic. And this is why derusah is more stringent in general when in doubt than are other forms of tereifah.
And, in the case of a sefeiq sefeiqa about a Torahitic example derusah, the Rambam’s above reasoning would not hold, and he would have us rule stringently.
However, Tosafos cannot take this approach, since they hold (like the Rashba, above), that across the whole Torah, it is the Torah that tells us to rule these questions stringently. So why do they say doubts about a derusah are unique? Simply — because our food animals and poultry being trounced by predators is so common, it’s not close enough to even to be called a real doubt. (AhS YD 57:38) Which fits the Rashba’s rationale about sefeiq sefeiqa, that a double-doubt is a way of knowing the probability is small.
All of the above presumes, however, that we have definitely established that there is a question of derusah. The Arukh haShulchan continues (57:40) that if the doubt is whether there was a predator nearby or not, then it’s a usual case of doubt.
In any case, I enjoyed finding another example where this rather abstruse point of theory finds pragmatic expression. As usual it’s an envelope case; here it’s the derusah, an exception to the normal rules of doubt.