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Class Notes - Class #1

Season 2, Class #1 – Kosher and non-kosher animals 1

 

Welcome to Season 2 of our study of Sefer haHinnuch.  If you are just joining our study, please see the “Joining This Project” page on the web site to find out which Season 1 classes you might want to check out.

 

Our first topic is the kashrut of animals.  We have two mitzvot about parts of kosher animals that are nevertheless prohibited.  Then we go on to several mitzvot about which animals we are permitted to eat and which we are forbidden to eat.

            Mitzvah #147 prohibits eating the helev of kosher domestic mammals.  Toward the end of the essay, the author defines helev as the fat of the entrails, the kidneys and the loins, along with associated sinews and membranes.  (We will continue with our practice of not going too deeply into the anatomical details.)  We are allowed to eat the fat around the heart and other parts of the intestines.  The author refers to disagreement among halachic authorities about exactly which fat is which.  Removing helev, like removing the sciatic nerve, must be done by a pious and expert in this field.  (Do you remember mitzvah #3?)

            The author has already identified the shoresh of mitzvot about forbidden foods.  He explained that the body is the vessel for the soul, so the health of our spiritual lives will be better if our bodies are healthy.  God blesses us by forbidding us from eating unhealthy foods.  At least as to this mitzvah, your cardiologist would agree.

            In the dinei hamitzvah section, the author starts with a straightforward explanation:  helev of some animals is prohibited, whereas helev of other animals is not prohibited.  This mitzvah only applies to the three kosher domestic mammals mentioned in the source verse: cows, sheep and goats. The helev of non-kosher mammals, such as pigs, has no special status.  Rather, it is prohibited as part of the non-kosher mammal.  The mitzvah does not apply to other types of kosher mammals, for example deer or wild animals; the helev of those animals is permitted.  As to the three animals the mitzvah applies to, the helev is subject to a separate prohibition even if the animal is prohibited to eat for some other reason.  So if someone eats the helev of a cow that is a neveilah or a treifah, the eater has broken two prohibitions.  (Do you remember what neveilah and treifah are?)

            Then the author pursues another sub-topic:  is it permitted to eat the helev of a calf that was in utero when its mother was slaughtered?  At this point in the work, the author often uses cases in the dinei hamitzvah section of his essays to give us practice in following close distinctions and convoluted arguments, and he does that here.

Consider the case of an animal that is ritually slaughtered when pregnant.  Normally, the fetus within a mother animal is considered an organ of the mother animal; the “thigh,” of the mother.  The fetus does not have the status of a separate animal, so its helev is permitted.  That is the rule if the fetus is not viable.  But if the fetus is viable, even if it is not yet doing things to demonstrate that it is viable, it might have a different status.  Maybe then it is considered a separate animal, rather than an organ of its mother.  And, even if it is not considered a separate animal, once it starts functioning as a living animal, there is potential for confusion since anyone looking at it without knowing the special circumstances would think it is an independent animal.  Let’s say someone eats that animal without slaughtering it, or eats the helev of that animal.  An observer might conclude that it is permissible to eat animals without ritual slaughter, or the observer might conclude that the person eating the animal is indulging in prohibited behavior.

Despite those concerns, most authorities conclude that the animal can be eaten without ritual slaughter and that its helev is permitted.  Rambam, however, permits eating the animal without ritual slaughter but prohibits eating its helev or sciatic nerve. 

            The author considers a related case.  What if a pregnant animal becomes a treifah?  That might mean that the fetus is also a treifah, even though there was no fatal blemish in the fetus.  In this case, the author tells us, the fetus is not considered an organ or its mother, but is considered a separate animal.  If the fetus is viable and develops into an independent animal, it requires ritual slaughter before it is eaten, but that is only to solve the appearance problem we mentioned earlier.  Therefore, if something goes wrong with the ritual slaughter, for example the knife is not applied properly, it is still permissible to eat the animal.

            These are complex cases.  Note that the author does not explain very much about why these distinctions lead to different results, what rules are d’oraita and what rules are d’rabbanan, etc.  I think his purpose here is to get us to practice making close distinctions rather than to explain why different cases get different results.  That can be a bit frustrating for us as readers, though.

            The author says several times in the course of this essay that the punishment for eating helev is karet.  At the end of the essay, the author says the punishment is malkos.  (Do you recall what karet is?  Malkos? And, while we are at it, makat mardut?) I think the “malkos” is just an error.  After saying that the punishment is malkos, the author says the punishment for eating helev b’shogeg, without full intention, is a hattah sacrifice.  That would be the result if the punishment for eating halev b’mazid, with full intention, was karet.

 

Mitzvah #148 prohibits eating blood.  This refers to the blood of wild or domestic mammals or birds.    It does not prohibit eating the blood of fish or kosher locusts.

            As in the prior mitzvah/essay, our author relates the shoresh of this prohibition to health.  He expands the shoresh in several ways more specific to this mitzvah.  Blood, he says, is evil by nature, and eating it might make one cruel.  According to Ramban, animals are coarse and unrefined as compared to people.  When we eat the blood of the animal we incorporate some of that coarseness into our bodies.  (I do not know why this applies to blood but not to other parts of the animals.)  Or perhaps the notion is not that animals are so different from us, but that animals are much like us.  The author mentioned this notion in his discussion of sacrifices; when we sacrifice an animal, we can see our own lives reflected in the life of the animal.  Animals have souls, says our author, souls somewhat like our souls, although more limited.  Blood represents the vital life force of animals and people.  There is something cruel about our eating the blood of animals, absorbing the life force of creatures much like us.  Finally, the author says, “it is not right that a soul should eat a soul.” 

            The author covers a multitude of subtopics in the dinei hamitzvah section of the essay.  We will try to follow the author’s order of discussion:

First the author explains that the blood of some animals is prohibited but the blood of other animals is permitted.  The author said earlier that this mitzvah prohibits us from eating the blood of kosher mammals and kosher birds.  It does not prohibit the blood of fish, kosher locusts and other prohibited small creatures. That is a confusing list. The mitzvah prohibits eating the blood of some but not all otherwise kosher animals, and some but not all otherwise non-kosher animals.

            Although we are allowed to eat the blood of permitted fish and permitted locusts, the rabbis were concerned that people would get confused if that permitted blood was collected and served at a meal.  As we saw in the prior mitzvah, other people seeing someone else eating that blood might think either that in general Jews are permitted to eat blood, or that the person eating the blood was doing something forbidden.  So the rabbis required that, if fish blood is collected in a bowl and served, the host should float a few fish scales in the bowl to make it obvious the blood being served is from fish.

            In general, products of animals we are prohibited from eating are also prohibited.  So, for example, eggs of prohibited birds are prohibited and milk from prohibited mammals is prohibited.  (The major exception is bee honey.)  Therefore, the author says, blood of otherwise prohibited fishes is prohibited.  It comes as something of a surprise that the blood of prohibited small creatures is permitted.  The author mentions that but does not explain why.

            That leads to the question of whether human blood is permitted.  The author explains that human blood is prohibited d’rabannan, lest appearances confuse people.  Thus, blood that never leaves someone’s body is permitted; for example blood from bleeding gums may be swallowed.  If a little of that blood gets on some food, the rabbis suggest we scrape off the blood and then eat the rest of the food.  Blood that escapes the body is prohibited.  This discussion seems to miss the obvious preliminary point:  is it permitted to eat human flesh?  Not to worry, the author will come back to that. 

            Having covered questions about blood of otherwise forbidden animals, the author turns to topics about the blood of animals we are otherwise permitted to eat.  Our text starts with a discussion of blood in eggs.  It’s not clear how much of this discussion was written by our author and how much was added later by someone else.  The text surveys several different opinions.  First is the opinion that we are permitted to eat blood in eggs, even if the blood is associated with a chick that has begun to develop, and cites the gemara and tosafot for that opinion.  Next comes the opinion that the rabbis forbade eggs in which the embryo has begun to develop.  Further, they banned blood in eggs, lest the blood indicate embryonic development.  If there clearly is no embryonic development, (which is the case with commercial eggs nowadays) they forbade any blood in the egg anyway, lest people get confused about which blood is permitted and which blood is forbidden.  In that case, according to this opinion, we can remove the blood and eat the rest of the egg.  Then the text cites an opinion that if there is blood on the yolk of an egg, even without embryonic development, the entire egg is forbidden.  Clearly, the issue of blood in eggs is more complex than one might have thought.  The text does not mention any need to check individual eggs, although that is the modern practice.

            The author distinguishes two types of forbidden blood of otherwise permitted animals like sheep, cows and chickens.  Dam hanefesh,”  “lifeblood,” is something like the red blood, pumped by the heart, which gushes out of the animal.  (Again, we will skip the details here.)  The punishment for eating a k’zayis of dam hanefesh b’mazid is karet.  Other blood is “ dam haevarim,” “blood of the limbs.”  That includes blood left in the meat of the animal after it is slaughtered and the oozes of blood from the beginning and end of the flow from slaughtering the animal.  Eating that blood is punishable by malkos.  The author explains that each of these prohibitions is based on a different verse; he does not explain why they are treated as one mitzvah rather than two.

            Then he considers the blood that remains in the meat after the animal is slaughtered.  As long of the blood remains in the meat, the blood is considered part of the meat and therefore we are permitted to eat it.  Thus, we are permitted to eat that meat raw.  But if we try to cook the meat, some of the blood will come out in the cooking, and the blood that comes out would be prohibited as dam haevarim.  There are two solutions to this problem.  We can roast the meat using equipment that allows any blood that comes out of the meat to fall away.  Then we can eat the meat, since any blood that came out is no longer on the meat. We can even cook that roasted meat in a pot with other foods.  Or we can remove the blood that would come out in cooking before we cook by salting and soaking the meat.  Once that process is complete, any remaining blood is considered part of the meat even if it comes out during cooking.

            The author describes the process of removing the blood by salting and soaking the meat. First, rinse any blood off the meat.  Then sprinkle it liberally with medium sized cubes of salt so that some of the salt adheres to the meat.  Place the salted meat on a slanted board or a perforated surface so that any blood that comes out will drain away.  Leave it that way for the time it takes to walk a “mil,” or about twenty minutes. Lift the meat and shake off the salt, then wash several times until the wash water runs clear.

            This process works even on very large chunks of meat.  The author cites empirical evidence; we can taste the salt in meat from the interior of a large chunk that has been salted and soaked.  We need to be careful not to leave the salt on for too long, lest the blood that comes out and is absorbed by the salt reabsorb into the meat.  The author says we can leave the salt on for up to twelve hours.  If the salt stays on too long, we need to peel off the outer layer of the meat where the blood might have reabsorbed, or roast the meat such that any blood that comes out will drain away.  Many of us may remember a time when every Jewish homemaker knew this process well.  Now, the butchers do it all.  The process our author describes may not match all the details of current practice.

            The author describes an exception to this process.  Some cuts of meat, for example liver and brains, amass blood more than other cuts.  The author says those cuts must be roasted a little to remove prohibited blood, and then they can be cooked in any manner.  

The author says this is a “minhag,” “custom,” which all Jewish communities have adopted.  And, the author says,  minhag yisrael torah hi,” “a minhag of the Jewish community is like torah law.”  It seems that, at least sometimes, a practice the Jewish community accepts on itself becomes mandatory.   This is a very important concept, a whole new source of binding rules.  The author mentions the principle but does not define it clearly.  What exactly is a minhag?  Is it any practice that the Jewish community accepts, or just some practices?  Does it matter why the community adopts the practice?  What constitutes “community acceptance”?  What percentage of the community has to adopt the practice?  Do those who do not accept the practice become obligated because “ most other folks are doing it”?  How binding is the minhag?  What competing concerns might outrank it?

            What happens if, rather than roasting those cuts of meat, someone salted and soaked them?  Let’s say the person then cooks them in a pot with other meat, so it is too late to roast the blood out of them.  The author says we are allowed to eat the entire pot of food.  Presumably, the process of salting and soaking takes care of any biblical prohibition on the blood, so the only problem is the minhag that was violated, and that is not enough to make the food prohibited.  But that result only applies if the problem was accidental. Thus, the situation is “b’diavad,” already accomplished.  If the cook relied on salting and soaking instead of roasting on purpose, “l’hatchilah,” the resulting food is prohibited.  The author introduced this distinction earlier; he takes this opportunity to review it.

 

Mitzvot # 153 – 158 and 162 – 165 deal with animals we are permitted to eat and animals we are forbidden to eat.  They deal with four categories of animals: mammals, birds, fish and little critters.

            Conceptually, three of these mitzvot are different from the rest.  Mitzvot 153, 155 and 158 require us to examine mammals, locusts and fish we want to eat to make sure they are permissible. The other mitzvot prohibit eating certain types of animals.  Rambam counts the requirement to examine these critters as separate mitzvot.  Ramban disagrees.  He argues that we are permitted to eat some types of animals and not others.  By implication, we need to check to make sure the type of animal we are about to eat is a permitted type.  But the act of checking is not a separate mitzvah.  Our author agrees with Ramban, but having resolved to follow Rambam’s count, he grits his teeth and sticks with the original plan.  The simple, clear passage here has important implications. Respected rabbinic authorities disagree with each other.  Our author does not consider either of his respected authorities to be infallible.  They might be right as to any given argument, or they might be wrong.  The author feels fully empowered to decide for himself which authority he agrees with.  He expects to evaluate the logic behind each position and decide which is more convincing.  He explains this to us, beginning students.  Clearly he is telling us that, when we are more advanced students we should do the same.

 Examining animals to see whether or not they are kosher types reflects a society before industrial agriculture.  It imagines we might meet an animal we were not familiar with and have to figure out whether or not we are permitted to eat it.

            A word about terminology.  Animals we are permitted to eat are called “tahor.”  Animals we are not permitted to eat are called “tamei.”  This is identical to the terminology used to distinguish things and people that may enter the Temple and things and people that may not enter the Temple.  It takes some care to keep track of which set of categories any give text is talking about.

The author reminds us that he has already covered the shoresh for these mitzvot in his discussions of other mitzvot that prohibit eating certain foods.  That leaves him to explore the halachic aspects of these mitzvot.

 

Mitzvot #153 and 154 deal with mammals we are permitted to eat and mammals we are not permitted to eat.  Mammals that chew their cud and have split hooves are permissible.  Of the mammals known to the author, all mammals that chew their cud also lack upper teeth.  (According to various websites, cows have molars in their upper jaws, but they do not have front upper teeth.  I did not check other domestic mammals.) 

            The author is careful to distinguish two types of animals: “behemot,” domestic animals are different from “hayot,” wild animals. There are three behemot that are permitted (cow, sheep, goat) and seven hayot (they are listed in the source verse, Deut. 14:5.)  This distinction is important for several mitzvot.  For example, we saw earlier in this class that the helev of behemot is prohibited but the helev of hayot is not.

 Halachic literature has various rules of thumb for distinguishing permitted and prohibited animals, perhaps to make it easier for someone to determine whether some unfamiliar animal is OK to eat. Someone who recognizes a type of animal the person knows is permitted may rely on his or her knowledge, and need not go through the process of applying those rules. The rules are different for behemot and hayot.  All behemot that chew their cud also have split hooves except for camels, and all behemot that have split hooves also chew their cud except for pigs.  The rules for hayot focus on the structure of an animal’s horn.  The source for these rules is in the oral law tradition; they have no source in Biblical verses.

Mitzvah #153 begins with a short discussion of how these mitzvot are derived from the source verses.  That discussion continues in mitzvah #154.  It has implications for a specific case.

The source verse for mitzvah #153 is Lev. 11:2-3: “You may eat living things (hayah) from all the beasts (behemah) that are on the earth: any with split hooves that are completely split and that chew their cud from the beasts you may eat.”  The subsequent verses list animals that have one of those characteristics but not the other, and say we may not eat those animals.  Note that the source verse does not prohibit us from eating any specific animals.  It just says there are animals we may eat.  The midrash halachah makes a reasonable inference.  We may eat those designated mammals, and we may not eat other mammals. This logic turns what appeared to be a positive mitzvah to check and make sure any mammal we eat has those characteristics, into a prohibition on eating other mammals.  The author identifies that this logic creates a “lav haba’ah miclal asseh,” “a negative commandment that is derived from a positive one.”

The source verses for mitzvah #154 are the list of animals that we may not eat because the mammals have one of the two required characteristics. (Lev. 11:4-7)  These verses prohibit that specific list of mammals (camels, pigs, rock badgers, hares) and clarify that both the designated characteristics are required.  But neither verse actually prohibits eating other mammals (rodents, dogs, monkeys). 

The author says we can derive a prohibition on other mammals by kal v’homer, a logical technique we have seen before.  If we know a case whose result it less clear, we can infer the result in a clearer case.  Here we know there are two relevant factors, cud chewing and split hooves.  From the verse we know that animals like camels and pigs, that have one of those characteristics but not both, are forbidden.  It follows that mammals that have neither characteristic are also prohibited.

There is a direct Biblical prohibition on eating mammals with one but not both of the required characteristics.  That is an ordinary prohibition and violating it is punishable by malkos.  Normally, though, a lav haba’ah bclal asseh, or a mitzvah logically derived by kal v’homer, is not punishable.  Here that would mean that eating rodents, dogs or monkeys is not punishable.  This case, though, is an exception.  The derived meaning is so close to the surface meaning of the relevant verses that the process hardly counts as a kal v’homer at all.  Hence, someone who eats a k’zayis from a forbidden mammal is punishable by malkos if the person acts b’mazid whether the animal has one of the two required characteristics or neither characteristic.

The author then applies this rubric to the question of eating human flesh.  (We knew this was coming. Remember, the target audience for this book is teenaged boys.)  Rambam’s opinion is that eating human flesh is prohibited.  Humans are called “nefesh hayah;” hayot are prohibited unless they chew their cud and have split hooves, and humans have neither. Rambam argues that the controlling verse is the positive mitzvah Deut. 14:4, which lists the mammals we are allowed to eat.  Thus, the prohibition on human flesh would be covered by a lav haba’ah b’cala asseh.  Eating human flesh is prohibited but not punishable.

Ramban sees no prohibition at all on eating human flesh.  He relies on a Gemara that appears to permit eating human milk and blood.  Normally, if we are permitted to eat the products of an animal then we are also permitted to eat the flesh of the animal.

 We don’t know how Ramban deals with Rambam’s argument based on the source verses.  We don’t know how Rambam deals with the Gemara Ramban cites.  In practice, though we are prohibited from getting any benefit from the corpse of a Jew.  No comment about corpses of non-Jews.

More on which animals we are permitted to eat in the next class.

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