HaKsav VeHakkabalah on the Aquatic Skink

Consider the following pasuk, in parashat Shemini (Vaykira 11:12)

יב  כֹּל אֲשֶׁר אֵין-לוֹ סְנַפִּיר וְקַשְׂקֶשֶׂת, בַּמָּיִם--שֶׁקֶץ הוּא, לָכֶם.

12 Whatsoever hath no fins nor scales in the waters, that is a detestable thing unto you.

Chazal lay down a general rule, in Chullin 65b (and in a Mishna in Niddah 51b), that whatever has scales has fins, but not everything that has fins has scales.

This rule was challenged when the scincus marinus, that is, the aquatic skink, was discovered in the Spanish Sea. It was reported that this was a fish which had scales but no fins. In fact it was a lizard, and a land animal. But the Acharonim who heard this misreport had to rule on its kashrus status, as well as defend Chazal's statement, which until then was widely assumed (based on the second suggestion of Tosafot on the daf, see there) to be a halacha leMoshe miSinai.

haKsav vehaKabbalah

Here is the commentary and explanation of HaKsav veHakabbalah, written by Rabbi Ya'akov Zvi Mecklenburg (1785-1865). For a summary of his general approach, I will cite On the Main Line -- "His work is normally grouped with 19th century Jewish exegete Malbim, although similar in kind (eg, for its devotion to uniting the rabbinic interpretation with the pshat on grammatical and critical, rather than homiletical grounds) R. Mecklenburg's found more use for contemporary quasi-non-traditional sources than Malbim (although this factoid should not be blown out of proportion). For example, Ha-qetav We-ha-qabbalah cites Julius Fürst and the Biurists, while Malbim will not cite contemporary maskilim and only occasionally cites someone like Philo (in his commentary) or Shadal (in Ya'ir Or, on Hebrew synonyms)." 

See also this Hebrew Wikipedia article.

The text of his commentary on this pasuk follows:



"Fins and scales: From our Rabbis (Chullin 65b): Whatever has scales has fins. And if you find a cut of fish which has scales, you need not seek after a fin. And Scriptures only needed to write the sign of the scales, and this that the All-Merciful wrote 'fins', is in order to 'make the teaching great and glorious'. End quote.

And it is possible that this klal (general rule) that our Sages set out, that whatever has scales has fine, is not absolute, to say that there is nothing in existence at all, a species of fish which has scales with no fins. For we know the reverse to be true, that in the Spanish Sea there is found a fish called the scincus marinus which has scales but no fins. Rather, their statement 'whatever has...' is not something absolute, as they said (in the beginning of perek בכל מערבין) 'we do not learn from klals, even where it says 'except'', and so the statement 'whatever has [scales]...', that is to say yhat the majority which have scales have fins.

And I have found like my words in the Kreisi [from Rav Yonasan Eibeshitz, in Yoreh Deah] siman 83 seif katan 3, that he writes that in all particulars of the nature of creations, there are things which deviate from the nature, as the naturalists testified about the nature of living creatures. And our rabbis spoke about the majority, that the majority which have scales have fins, such that a species which is found to have scales and does not have fins does not contradict the words of our Sages.

And so wrote the Rav, the author of the Teshuvot Knesset Yechezkel [from R' Yechezkel Katzenelenfogin, author of this sefer and Av Beit Din and Rosh Yeshiva in the Three Communities, Hamburg, Altona, and and Wandsbek] in his novellae to Niddah page 51, which is printed in the novellae of the Rashba on Niddah) that that which they said 'all that have scales', the intent is 'most'. And the practical difference when it comes to law is a piece of fish, that we go after the majority, and the fish in the Spanish Sea which has no fins, certainly is not kosher, for we require both of them, fins and scales (as Tosafot writes in Niddah 51b, d"h ולכתוב) that it is similar to the signs of a beheima in the matter of rumination and having split hooves, see there his words.

And it is further possible, in my opinion, that that which our Sages said יגדיל תורה ויאדיר, in order to 'make the teaching great and glorious', their intention in this, since the Torah regularly fences in a matter in a short manner, which is, by their general rules and not on their specifics, and upon the present and regular always and not on something which is uncommon. And according to this approach, it did not need to give a sign for the kosher status of fish except for scales alone, since the vast majority which have scales have fins as well; and even though the tiniest minority of them have scales and no fins, still, since the Torah in every place utilizes short speech, about the general and that which is to be found, it should not have worried about this tiny minority which was irregular, such that it should not have specified the sign of the fine. However, here, the Torah goes out of its usual pattern and does not wish to choose the shorter speech, but rather chose to elaborate and make it greater with the addition of the word 'fin', so that it should be a sign for us about the species, even though it is entirely uncommon, such that we learn that it is prohibited when it is missing this sign.

And I have seen to the Rav, the Pri Megadim (Yoreh Deah siman 83 seif 7, seif katan 2) that he wrote that this which we say "whatever has scales has fins", this is that there is none found which has scales but no fins, but not that it was speaking about the majority, that we are going after the majority. For this is not the case. And from where do I believe this? From that which it [the gemara] asks, "and let the All-Merciful write scales [only]." And if there were found, a minority of a minority, that had scales but no fins, it would not have asked this. End quote.

And in my opinion, this is not dispositive, for since it is not of the ways of the Torah in every place to speak of the minority of the minority, it would not have been straightforward in the mind of the one asking to say that the Torah added the sign of the fin on a matter which was uncommon.

And the Pri Chadash wrote there: This, that fins are not found in this fish of the Spanish Sea, the stinkus marinus, despite it having scales, this is what we say, that the fins fell from it before it was taken out of the sea, see there.

And this is a very farfetched idea, for the nature of fins is that they are firmly fixed into the flesh of the fish, and they are well connected to each other, and it is not appropriate to say about them that they fell out [J: as one might say regarding scales]; and further, if this was within the realm of possibility, the place they fell out from would be visible and recognizable to the eyes."