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The Rules of the Swap

In this week’s ‘Daf Yomi,’ drawing a distinction between what is permitted and what is legal

Adam Kirsch
August 09, 2019
Inset images: Library of Congress; Flickr Commons
Inset images: Library of Congress; Flickr Commons
Inset images: Library of Congress; Flickr Commons
Inset images: Library of Congress; Flickr Commons

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

All of the laws governing vows of valuation, which were the subject of Tractate Arakhin, are derived from just a few verses in Leviticus 27. That same chapter is the source of the laws discussed in the next section of the Talmud, Tractate Temura, which Daf Yomi readers began last month. Indeed, all of Temura deals with the implications of just two Torah verses, whose subject is the substitution of animals designated for sacrifice in the Temple.

As we have seen over the course of Seder Kodashim, several categories of animals are or can be consecrated, which means that they belong to the priests and must be properly sacrificed in the Temple. Every firstborn male animal is automatically consecrated; the tithe of the flock, or every 10th animal, must also be consecrated; and any animal can be consecrated if the owner decides to give it as an offering to God. Once an animal is consecrated, it no longer belongs to the owner but to the priests, and the original owner is not entitled to take it back.

But what if you consecrate one animal to the priests, and then decide you would rather keep it and give up a different animal in its stead? Maybe you want to keep a big, valuable sheep for yourself and give the priest a skinny one; or maybe the reverse is true, you want to make sure God gets the best animal possible. Is this kind of substitution allowed? Or is consecration a permanent state, so that once a specific animal is designated, it cannot be replaced by a different animal, even if the two are equivalent?

This turns out to be a more complicated question than it might seem, because the Torah seems to contradict itself. Leviticus 27:32-33 states: “All the tithe of the herd or the flock, whatsoever passeth under the rod, the tenth shall be holy unto the Lord. He shall not inquire whether it be good or bad, neither shall he change it; and if he change it at all, then both it and that for which it is changed shall be holy; it shall not be redeemed.” In other words, the Torah first prohibits substitution, and then says that substitution can be effective, even though it is forbidden.

This raises a profound question about the nature of Jewish law. Like all legal systems, Halakha depends on what the 20th-century British philosopher J.L. Austin called “speech acts.” In his classic book How to Do Things With Words, Austin observes that certain kinds of speech aren’t just descriptions of the world, but actually change the world, when uttered in the proper context. For instance, if the bride and groom in a wedding ceremony say, “I do,” those words turn them into husband and wife.

Speech acts depend on context and consensus to achieve validity. When two people get married, nothing visible or tangible about them has changed; they are married only because other people agree to treat them as married. To win that agreement, the speech act must follow prescribed procedure: If I walk up to a stranger on the street and say, “I do,” I do not become married to them, because I haven’t followed the proper procedure for that speech act to become effective.

But this kind of reasoning doesn’t necessarily apply in Jewish law, because many of its speech acts are not between man and man, but between man and God. If I consecrate a sheep to God, it becomes God’s, even if no one is around to hear me do it, and even though God himself can’t stop me from taking it back. Another way of putting this is that religious speech acts partake of the nature of magic: Simply by saying or intending something, I can change the nature of reality.

This is the crux of the philosophical issue that dominates Chapter 1 of Tractate Temura. Leviticus says that you are not permitted to substitute consecrated animals, but implies that if you do it anyway, your action has a real effect—the substituted animal does become sacred (even though the original animal doesn’t lose its sacred status). As the mishna in Temura 2a awkwardly says, “Everyone substitutes, both men and women; not that it is permitted for a person to effect substitution; rather, if one substituted, the substitution takes effect.” As the Gemara immediately points out, this is “difficult.” If you aren’t allowed to substitute, why should the substitution be effective? Why not just say that the substituted animal is in fact not consecrated at all?

The mishna’s position implies that speech—in this case, speaking words of consecration over an animal—is an action with real effects. As the Gemara observes in Temura 3a, however, Jewish law conventionally distinguishes between speech and action when it comes to punishing sins. Only transgressions that involve a positive action are punishable by lashes; “it is a principle that one who transgresses a prohibition that does not involve an action is exempt” from whipping. Yet in the case of substitution, the mishna says that one who substitutes one animal for another receives lashes. Indeed, the Gemara goes on to point out that there are several cases where speech acts can be punished by whipping, including taking a false oath and cursing using God’s name, since the Torah specifically prescribes lashes in these cases.

In Temura 4b, we come to the core of the issue. According to Abaye, “With regard to any matter that the Merciful One states in the Torah not to perform, if one performed it, his action is effective, but the violator is flogged.” Rava, Abaye’s traditional antagonist, disagrees: “If one performed it, it is not effective at all.” Abaye makes the point that, if a prohibited speech act were not effective, it shouldn’t need to be punished by lashes; there would be nothing to punish, since the offender would just have uttered meaningless syllables. If speech is punishable—for instance, the speech that effectuates the substitution of one consecrated animal for another—that means the speech is an effective action. Rava counters that this doesn’t necessarily follow; perhaps the punishment is not for the action itself, but for the defiant intention behind it—“because he transgressed the statement of the Merciful One.”

Rava and Abaye go on to consider a wide range of forbidden acts that are nonetheless effective. For instance, a high priest is forbidden to marry a widow, but if he does, they are actually married. Seemingly, the speech act that constitutes a wedding (which includes a written component, the marriage contract) is effective in and of itself, even in cases where it is forbidden by God. Again, when separating teruma—the tithe of produce given to the priest—one is not supposed to pick the worst-quality produce, but if one does, it is still valid teruma. And while it is illegal to acquire property by robbery, in certain circumstances the robber does become the legal owner of the goods he steals.

In all these cases, there is a distinction between what is permitted, in the sense that it follows God’s will, and what is legal, in the sense that the law must recognize it. This kind of gap between law and commandment can only exist in a religious legal system, and it reveals the pathos of God’s predicament: He is at the same time omnipotent and helpless, able to give laws but dependent on human beings to enforce them.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.