The Torah in Parashat Re'ei presents the guidelines concerning the consumption of meat after Benei Yisrael enter the Land. Throughout their wanderings in the wilderness, Benei Yisrael were not permitted to eat meat outside the sacrificial framework; they ate meat only as part of a sacrificial offering (see Rashi, 12:20; this follows the view of Rabbi Yishmael in the Sifrei). Here the Torah spells out the laws concerning the consumption of meat in the land, and requires, "you shall slaughter any of the cattle or sheep that the Lord gives you" (12:21) – a verse understood by Chazal as introducing the obligation of shechita (the halakhic slaughtering of animals before partaking of their meat).

The Rambam lists shechita as the 146^th of the 248 mitzvot asei (positive commandments). The Ra'avad, in his critique of the Rambam's Sefer Ha-mitzvot, comments, "This has no reason; perhaps [the Rambam meant] that a 'lav ha-ba mi-khlal asei' is an asei." The Ra'avad's initial objection to the inclusion of shechita in the Rambam's list of mitzvot asei has to do with the simple fact that strictly speaking, there is no obligation of shechita. Technically, one can decide to never eat meat and thus never become obligated with respect to shechita. Shechita, the Ra'avad argues, is a precondition for eating meat, rather than a mitzva. But then the Ra'avad suggests that the Rambam counted shechita as a mitzvat asei because it constitutes a "lav ha-ba mi-khlal asei," meaning, a prohibition that naturally evolves from an imperative command in the Torah. What we have here, the Ra'avad suggests, is not so much an obligation of shechita as a prohibition against eating without shechita. In theory, then, the Rambam should have included shechita in his list of mitzvot lo ta'aseh – prohibitions, rather than in his list of mitzvot asei – positive obligations. But since the Torah formulated shechita in the imperative form – "you shall slaughter" – the Rambam treats it as a mitzvat asei. Conceptually, however, this mitzva is a prohibition, rather than an obligation.

The Kesef Mishneh, by contrast, suggests that the Rambam indeed viewed shechita as a genuine mitzvat asei. In a situation where a person wishes to eat meat, he comes under an obligation to slaughter an animal. Therefore, according to the Kesef Mishneh's understanding of the Rambam, shechita constitutes an obligation, not a prohibition.

One possible ramification of this debate involves a halakha mentioned in the Gemara (Chulin 27a) concerning the procedure for shechita. Shechita requires severing both of the animal's "simanim," meaning, the trachea and the esophagus. An animal is considered properly slaughtered once one of the two simanim has been completely severed and the other has been mostly severed. (When it comes to fowl, even severing a single siman suffices.) Nevertheless, the Gemara establishes that le-khatechila (to fulfill the mitzva at its optimum standard), one must completely sever both simanim. Rashi explains this halakha as a rabbinic enactment, whereas Tosefot (Chulin 21b) appear to indicate that Torah law requires that le-khatechila one must sever both simanim. Now elsewhere (Nidda 66b), Tosefot establish a general rule as to when there can be a Torah law that applies only le-khatechila, and is not indispensable for the fulfillment of the given mitzva. Tosefot claim that only when we deal with an outright obligation can we speak of a halakha of this type on the level of Torah law. By contrast, when dealing with a "matir" – a law that must be performed to permit a given action, but is not obligatory in its own right, we will not find a Torah law that applies only le-khatechila. Any Torah law regarding a "matir" applies "le-ikuva"- it is indispensable in order to generate the desired heter (permissibility).

Returning, then, to the dispute between Rashi and Tosefot in Chulin, they appear to debate the issue of how to view the obligation of shechita. Rashi views shechita as but a matir, rather than an actual mitzva, just as the Ra'avad understood the Rambam's position. Therefore, the le-khatechila requirement to sever both simanim cannot have been ordained by the Torah, and must rather originate from Chazal. Tosefot, by contrast, followed the Kesef Mishneh's understanding, that shechita indeed constitutes a bona fide mitzvat asei, and the halakha requiring one to sever both simanim may thus be seen as a Torah obligation.

Not surprisingly, the Kesef Mishneh, in Hilkhot Shechita (1:1), claims that the Rambam follows Tosefot's view, that the le-khatechila requirement to sever both simanim constitutes a Torah obligation. Since the Kesef Mishneh in Sefer Ha-mitzvot understood the Rambam as viewing shechita as an outright mitzva asei, he naturally allowed for the possibility of a Biblically ordained, le-khatechila requirement, and hence attributed Tosefot's position to the Rambam.

(Taken from Rav Herschel Shachtar's "Mi-pninei Ha-Rav," p. 323)

David Silverberg