Leprosy: Stringency and Leniency
The Torah introduces the code of law that the Priest was to use in order to determine the ritual status of objects stricken with Leprosy, “to pronounce it pure, or to pronounce it impure” (Lev. 13:59).
Invariably, cases would have arisen where the straight-forward reading of the Code of Law would have left doubt whether “to pronounce it pure, or to pronounce it impure”. How was the Priest to deal with cases of uncertainty? How did God expect us to deal with uncertainty in the laws of the Torah itself?
This central and critical question, as one can imagine was already a matter of dispute among the Sages. The [Jerusalem] Talmud of Eretz Yisrael teaches:
“Rabbi Eliezer said: Just as it is prohibited to pronounce pure that which is impure so too it is prohibited to pronounce impure that which is pure”. (Terumoth 5:3, 30b)
The Law is not merely a societal fail-safe, but a sacred and Divine prescription. Permitting the prohibited as well as prohibiting the permissible carries with it an inherent violation. According to Rabbi Eliezer, when one is in doubt about the law one must always weigh the risk of permitting the prohibited and prohibiting the permissible.
Other Sages took a different stance. The [Jerusalem] Talmud of Eretz Yisrael teaches us further:
“Rabbi Aba the son of Yaakov in the name of R. Yochanan said: If a law about [the purity/impurity of Terumah] comes before you and you do not know whether to suspend (i.e. weight until it is definitely impure) or to burn [Terumah] always pursue burning over suspending for there is nothing (i.e. offering) in the Torah more beloved [to God] than ‘bulls that are burned’ and ‘he-goats that are burned’. And they in fact are burned!. “
The “bulls and he-goats that are burned” refer to the exceptional offerings whose blood was sprinkled inside of the Temple as opposed to other sacrifices whose blood was sprinkled in the courtyard outside of the Temple. The meat of these special offerings as beloved and desirable to God as it may have been, was nevertheless burned, and by God’s own order!
According to Rabbi Yaakov bar Aha, the Torah itself reveals its mind on how cases of uncertainty should be handled. The example of bulls and goats shows us that destroying that which is sacred may not only permissible, but even desirable to God. Accordingly, Terumah whose purity/impurity is undetermined should be burned dispite the risk of burning pure Terumah rather than first waiting until it becomes definitely impure and permissible to burn.
By analogy, in cases of doubt, “destroying” or violating a sacred law by not weighing the risk of prohibitting the permissible should be normative procedure.
Rabbi Eliezer and Rabbi Aba the son of Yaakov’ point of dissent is whether in cases of doubt, one must consider the risk of prohibiting the permissible or may automatically rule stringently.
In its closing passage, the Talmud of Eretz Yisrael teaches:
Rabbi Yose asked: Can we derive something whose performance is not in this manner (by burning) from something whose performance is in this manner?
Burning the flesh of the offerings is part of their ritual prescription as opposed to burning Terumah which is done only when it is impure. Rabbi Yossi argues against Rabbi Aba the son of Yaakov and in favor of Rabbi Eliezer that one may not make any deductions from sacrifices.
The Talmud of Eretz Yisrael, which closes with this argument and does not come to the defense of Rabbi Aba the son of Yaakov would seem to be making its ruling.