The Bat and the Penguin

Are they birds, and are they kosher?

Hooray, it’s parashat Shemini! My favorite parasha discusses a wealth of animals, both in the list of eight reptiles that transmit impurity when dead, and in the laws of kosher and non-kosher creatures. And for this post, I’d like to talk about bats and penguins. Which, conveniently, were on hand for me to take a selfie with just now.

The Torah gives a list of birds that are not kosher; whatever is not mentioned, is ipso facto kosher. At the end of the list of non-kosher birds is the atalef, which has long been universally understood to refer to the bat.

This seems problematic – the bat is a mammal, not a bird. It has fur, not feathers; it does not have a beak; and it gives birth to live young that it nurses on milk, rather than laying eggs. So why is it in the list of non-kosher birds?

In the 19th century there was a court case in New York about whether whales are classified as fish and thus their oil would be taxed under the category of fish oil. The court ruled that they are indeed fish. This was not a mistake. Words do not have objective meanings; they mean whatever they are taken to mean. While scientists use the word “fish” to refer to a specific group of cold-blooded creatures, whalers (who were intimately aware of the biological differences between whales and fish) used the word “fish” to refer to anything that swims, including whales. And the court decided that since whalers were (at that time) more prominent that scientists, their definition of the word is what counts.

Likewise, in 21st century English, the word “bird” has a very specific meaning, referring to something with feathers and a beak that lays eggs. However the Biblical word “ohf” just doesn’t have the same meaning. Bats fly, and hence although the bat is not a bird, it is an ohf.

But what about ostriches? According to the Gemara (albeit disputed by Yehudah Feliks), one of the other birds in the Torah's list, the bat ha-yaanah, is an ostrich, which does not fly!

The answer is that the word ohf does not mean "flying creature." The Torah's classification is a "folk taxonomy" (this is not an insulting or heretical term; it is an academic term with a specific meaning described in The Torah Encyclopedia of the Animal Kingdom). There aren't specific criteria to be an "ohf." Rather, it means something "birdish." Things can be birdish in different ways. Bats are birdish because they fly. An ostrich is birdish because it has a beak and two legs and feathers.

That solves the problem with bats and birds. But what does this mean for penguins? Penguins would also be in the category of ohf. They do not fly, but they are birdish. So, given that the penguin is a "bird" in the Torah classification, and it is not mentioned in the Torah's list of non-kosher birds, does that mean that it is kosher?

I would strongly argue that it is not kosher. But in order to explain why, we'll have to first discuss a different bird: the secretary bird.

The secretary bird, as those who have joined my Africa trips (or remember the old Disney film Bedknobs & Broomsticks) will know, is a very unusual bird. Its basic body (and beak) shape is that of a bird of prey, but it has a long tail, and exceptionally long legs, like a flamingo. It also has a remarkable crest of feathers sprouting from its head, like a writing-quill stuck behind the ears, which earns its name. The secretary bird lives only in sub-Saharan Africa, and is definitely not in the Torah's list of non-kosher birds. Nor could it reasonably be described as being included in the same min as one of the birds in the Torah's list, since it looks so utterly different from all of them.

On the other hand, there is absolutely no way that a secretary bird can be kosher. It's a bird of prey! It eats snakes and mongooses and hares and even young gazelles. Ramban states that the fundamental reason for non-kosher birds being non-kosher is that they are predatory. And while it seems to be a difficult overreach to say that it's the only reason for birds being non-kosher (since it would not account for certain non-kosher birds such as hoopoes and bats), it would seem clear that it is a sufficient reason. And the Mishnah in Chullin states explicitly that all predatory birds are not kosher.

There's just no way, conceptually or halachically, that a secretary bird could be kosher. And yet it's not one of the birds in the Torah's list of non-kosher birds!

The only possible answer is that the Torah's list of non-kosher birds is not comprehensive. Rather, following the Talmudic-based principles that I developed in my encyclopedia and in my book The Camel, The Hare & The Hyrax, we can say as follows. The animals of the Torah are the animals of Biblical lands. The four animals listed as possessing only one of the three kosher signs are the sole such animals in that region, not in the entire world. The ten types of mammals listed in Parashas Re'ay as being the kosher mammals are the sole such animals in that region, not in the entire world - the moose, chevrotain and okapi are also kosher. Likewise, the two dozen birds listed as being non-kosher are the non-kosher birds of that region, not of the entire world.

Now, this is the kind of thing that immediately gets the Kefira Cops revving up and ready to slam me as a heretic. But, after I came up with this approach, I then discovered that it's actually a Tosafos!

The Gemara in Chullin states that the Torah gives the most concise way of telling us which creatures we may and may not eat. Since there are more kosher birds than non-kosher birds, the Torah lists only the non-kosher birds. Now, Rashi explains this to mean that there are no non-kosher birds in the entire world other than the two dozen listed (which can only include other birds of the same type/min). But Tosafos (Chullin 61a) says that this does not have to be what the Gemara is saying. Rather, the Gemara could mean that listing the two dozen non-kosher birds gives us a way to identify which types of birds in general are not kosher, i.e. those which are similar in some critical way to the birds listed! Baruch shekivanti.

Accordingly, since the non-kosher birds listed in the Torah include all the local predatory birds, we can extrapolate and conclude that the secretary bird is not kosher. And since it also includes fishing birds such as cormorants and gulls, penguins would likewise not be kosher.

Shabbat Shalom! And if you want to understand this topic better, come visit the Hall of Kosher Classification at the Biblical Museum of Natural History. Meanwhile, another significant animal in this week’s parasha is the hyrax, and you can freely download the chapter from my encyclopedia on the hyrax at this page.