88 Comments

This is the content I come here for and bought your books for. Keep it up.

Thank you for a great post.

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Love these kind of posts, please post more of these ๐Ÿ™ and please let us know when volume 2 of the Torah Encyclopedia of the Animal Kingdom will be released.

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Run it by R Herschel Schachter

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Serious question: Do you need a mesorah to identify a bird as definitely *not* kosher?

If somebody ate secretary bird meat while touching terumah, would we burn it or leave it as safek?

Or let's say you were starving and had nothing but cassowary and ostrich. Should you eat the cassowary first, or does it not matter? (You could argue that regardless eating something that's explicitly forbidden by the pasuk is worse, but the kal vachomer from camel-hare-hyrax-pig to animals that don't have either kosher sign would seem to contradict that idea.)

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A very interesting and, as advertised, highly technical post.

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This is fascinating. One point, however, is not entirely clear. In a previous post you explained why a peelable gizzard is inherently related to a bird not being a predator. But how do a crop and a hind toe contribute to demonstrating that the bird is ipso facto non-predatory? In fact, Wikipedia https://en.wikipedia.org/wiki/Crop_(anatomy) notes that most raptors, including hawks, eagles and vultures, have a crop, but owls do not. So it would seem that this characteristic is unrelated to the predatory or non-predatory nature of a bird. What is the significance of this characteristic (and maybe also the hind toe) in the view of the majority of the Rishonim, and why did Chazal include it? Interestingly, Rambam in Hilchot Ma'achalot Asurot 1:16 & 1:19 states for a non-predatory bird, any one of these 3 characteristics is sufficient to know that it is permitted, but in practice we rely on this only if the one characteristic is the peelable gizzard.

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author

I have not been able to find any inherent significance to the other signs. I also haven't been able to correlate them with non-predatory behavior.

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Sep 4, 2023ยทedited Sep 4, 2023

Note that ostriches are definitely non-kosher and also non-predatory. So apparently, being predatory is not the only concern of the verse. They only have two toes, and several other birds have three, so it's possible the sign was formulated with regard to them.

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Turkeys are kosher because they are native to North America and did not exist in the Eastern Hemisphere until they were imported there after 1500. So none of the bird names in the Torah could mean "turkey".

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author

By that argument, secretary birds and cassowaries would be kosher. Which they certainly are not.

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It is theoretically possible to find fossils of turkey- like birds in the middle east. Is that really the reason?

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What!?

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For a long time, camels in Genesis were considered anachronistic by archaeological experts.

Then they found fossils of camels.

I'm just noting that we don't know what we don't know. In archaeology, absence of evidence is not evidence of absence

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This is zoology. Turkeys are native to the Americas. They never existed in other parts of the world.

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There is no reason to think turkeys did not exist at any point in the Middle East. This is a question for archaeology. As the camels in Genesis example shows, the answers are not perfect yet

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You're conflating existence with domestication.

In any case, the speculation that turkey fossil may yet be found in the Old World would not solve the problem (which I don't believe exists) of "secretary birds and cassowaries".

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Again, absence of evidence is not evidence of absence!

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Why would the fact that Turkeys โ€œare native to North America and did not exist in the Eastern Hemisphere until they were imported there after 1500โ€ ipso facto make them kosher?

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Because there wouldn't have been a Hebrew name for them at the time of Matan Torah. The Torah lists, by name, all the birds that are not kosher. Everything that came later is based on not being sure what species those names refer to. So a species that could not have been named is ipso facto kosher.

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Would you eat penguins?

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The way I understand the definitions in the Torah, penguins are fish because they don't fly but swim, and I wouldn't eat them because they lack fins and scales.

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Aug 30, 2023ยทedited Aug 30, 2023

1.

Would flightless land birds be behemahs & Chayahs because of they way they move, and not kosher out of a lack of split hooves and rumination?

No, as the ostrich is listed in the Torah among the birds (as in the photo of this post).

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Would you eat a Dodo bird? They couldn't fly either - till they went extinct.

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A Dodo is considered a bird of the pigeon family, hence could be kosher

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That makes sense. So I'd like @Avi to explain why penguins are fish since they can't fly, if Dodo's are pigeons when they can't fly either.

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What is coral? Vegetable and therefor kosher, or animal and therefore not kosher?

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Chickens don't fly either - do they need cloven hooves to be kosher?

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Aug 30, 2023ยทedited Aug 30, 2023

2.

There is however the view of Chizkuni that aquatic birds birds were created from the waters (Gen. 1:20) while land birds were created from the soil (Gen. 2:19). Penguins would be grouped with the former.

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Penguins spend extensive periods of time on land. To be fair, all shorebirds do, and no bird can breed in the water. But I don't think a penguin would likely be called a fish.

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Interesting, but even if true - I have not checked your citations or the sources you didn't cite - it would be just one of countless cases in which the law is based on a mistaken premise. This works both in the direction of kula and chumrah, and applies not only to halacha based on mistakes, but also to halacha based on then available evidence that shouls theoretically change due to new evidence, manuscripts, etc. It's a very old issue, already recognized in the Gemara itself, and true of other legal systems too, not just halacha. How law is made or followed is rarely black and white.

In any event, good luck with the dinner.

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Trying to continue an earlier thread. I said absence of evidence doesn't imply absence, Natan Slifkin said it does, this is my response.

And expectations are also subject to what one wishes to believe about a topic. See all the discoveries that "upend everything science knows about a topic!"

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That is specfically about takanos and gezeiros, not interpretation of halachah.

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Who were you replying to? About what?

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Odd. I replied to Leib Shachar below, who claimed that this would be subject to the principle of ืื™ืŸ ื‘ื™ืช ื“ื™ืŸ ื™ื›ื•ืœ ืœื‘ื˜ืœ ื‘"ื“ ืื—ืจ ืืœื ืื ื›ืŸ ื’ื“ื•ืœื” ืžื”ื ื‘ื—ื›ืžื” ื•ื‘ืžื ื™ืŸ, but it came up as an independent comment.

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This article is deeply flawed, it assumes that the Rishonim were referring to the same bird that you identify as stork. This is despite the fact that they surely knew it didn't have webbed feet.

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author

I'm not "assuming" anything. They describe the stork with its name and its prominent behavior. There is no bird with webbed feet that nests on tall buildings.

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Don't storks have partially webbed feet? Does that count?

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ื—ืกื™ื“ื” and cigonia are definitely names for the stork, no doubt about that.

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Aug 31, 2023ยทedited Aug 31, 2023

Granted that is the case, it still doesn't mean that the bird they identified as such is the same as the one we identify as such.

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author

Yes, it does. There is no other candidate. They describe the stork with its name and its prominent behavior. There is no bird with webbed feet that nests on tall buildings.

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Well they called it "cigonia" and that name was used from antiquity through nowadays in all latin languages to mean a stork. There are not so many species of storks, and they mostly look the same. I do not know about possessing a crop, but their feet are not webbed, although it could vaguely seem so from afar.

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Nice post!

"unless it has a [broad?] bill and webbed feet"

"and even with a [broad?] bill and webbed feet"

"Furthermore, they clearly do not possess either a [broad?] bill or webbed feet"

Unless there are birds without any bill.

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Can you list which birds would be permitted if one does not accept the Rema, but are prohibited according to the Rema?

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Turkey, which calls into question whether it is actually true that established halacha follows the Rema.

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If actual behavior were the standard you would be hard pressed to find ANY kosher birds outside of the hummingbird which would qualify. That includes all the phasianids, pretty much every waterfowl (yes, even ducks, geese, and swans) all the diving birds, thrushes, etc cetera.

Fortunately for us actual phenomenological reality does not get a seat at the table.

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Hummingbirds could be considered predatory against insects as are chickens

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All birds pretty much are by that standard. Hummingbirds don't exhibit predatory behavior to insects. They just slurp them up inadvertently. I had to work hard to find even one species of bird that isn't a predator

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Incorrectโ€ฆprior to migration they enter a state of hyperphagia eating many insects to literally

Double their weight prior to flying across the Gulf of Mexico overnight

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Strange. I had beard much different in the ornithology of NA birds class I took. But that waa a while ago. Perhaps research has yielded new results.

In any case that reinforces my original point. It's darned hard to find non-predatory birds in the real world. The standard set by faith and clever arguments runs aground and sinks when it encounters reality.

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Fascinating post. I would just add that following the Rosh or Rashi and Rama in this case would most likely be the Halacha of ืื™ืŸ ื‘ื™ืช ื“ื™ืŸ ื™ื›ื•ืœ ืœื‘ื˜ืœ ื‘"ื“ ืื—ืจ ืืœื ืื ื›ืŸ ื’ื“ื•ืœื” ืžื”ื ื‘ื—ื›ืžื” ื•ื‘ืžื ื™ืŸ. I assume that is also in a case when the latter Bais Din is certain the first were mistaken.

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You're wrong.

This rule applies only to takkanot.

See Rambam Mamrim 2:

ื: ื‘ื™ืช ื“ื™ืŸ ื”ื’ื“ื•ืœ ืฉื“ืจืฉื• ื‘ืื—ืช ืžืŸ ื”ืžื™ื“ื•ืช ื›ืคื™ ืžื” ืฉื ืจืื” ื‘ืขื™ื ื™ื”ื ืฉื”ื“ื™ืŸ ื›ืš, ื•ื“ื ื• ื“ื™ืŸ, ื•ืขืžื“ ืื—ืจื™ื”ืŸ ื‘ื™ืช ื“ื™ืŸ ืื—ืจ, ื•ื ืจืื” ืœื• ื˜ืขื ืื—ืจ ืœืกืชื•ืจ ืื•ืชื• ื”ื“ื™ืŸ, ื”ืจื™ ื–ื” ืกื•ืชืจ, ื•ื“ืŸ ื›ืคื™ ืžื” ืฉื™ื™ืจืื” ื‘ืขื™ื ื™ื•, ืฉื ืืžืจ ืดืืœ ื”ืฉื•ืคื˜ ืืฉืจ ื™ื”ื™ื” ื‘ื™ืžื™ื ื”ื”ืืด (ื“ื‘ืจื™ื ื™ืดื–:ื˜ืณ), ืื™ืŸ ืืชื” ื—ื™ื™ื‘ ืœืœื›ืช ืืœื ืื—ืจ ื‘ื™ืช ื“ื™ืŸ ืฉื‘ื“ื•ืจืš:

ื‘: ื‘ื™ืช ื“ื™ืŸ ืฉื’ื–ืจื• ื’ื–ื™ืจื” ื•ื”ืชืงื™ื ื•ื ืชืงื ื” ื•ื”ื ื”ื™ื’ื• ืžื ื”ื’, ื•ืคืฉื˜ ื”ื“ื‘ืจ ื‘ื›ืœ ื™ืฉืจืืœ, ื•ืขืžื“ ืื—ืจื™ื”ื ื‘ื™ืช ื“ื™ืŸ ืื—ืจ, ื•ื‘ื™ืงืฉ ืœื‘ื˜ืœ ื“ื‘ืจื™ื‘ ื”ืจืืฉื•ื ื™ื, ื•ืœืขืงื•ืจ ืื•ืชื” ื”ืชืงื ื” ื•ืื•ืชื” ื”ื’ื–ื™ืจื” ื•ืื•ืชื• ื”ืžื ื”ื’, ืื™ื ื• ื™ื›ื•ืœ, ืขื“ ืฉื™ื”ื™ื” ื’ื“ื•ืœ ืžืŸ ื”ืจืืฉื•ื ื™ื ื‘ื—ื›ืžื” ื•ื‘ืžื ื™ืŸ:

ื”ื™ื” ื’ื“ื•ืœ ื‘ื—ื›ืžื” ืื‘ืœ ืœื ื‘ืžื ื™ืŸ, ื‘ืžื ื™ืŸ ืื‘ืœ ืœื ื‘ื—ื›ืžื”, ืื™ื ื• ื™ื›ื•ืœ ืœื‘ื˜ืœ ืืช ื“ื‘ืจื™ื•. ืืคื™ืœื• ื‘ื˜ืœ ื”ื˜ืขื ืฉื‘ื’ืœืœื• ื’ื–ืจื• ื”ืจืืฉื•ื ื™ื ืื• ื”ืชืงื™ื ื•, ืื™ืŸ ื”ืื—ืจื•ื ื™ื ื™ื›ื•ืœื™ืŸ ืœื‘ื˜ืœ ืขื“ ืฉื™ื”ื™ื• ื’ื“ื•ืœื™ื ืžื”ืŸ:

ื•ื”ื™ืืš ื™ื”ื™ื• ื’ื“ื•ืœื™ืื’ ื‘ืžื ื™ืŸ, ื”ื•ืื™ืœ ื•ื›ืœ ื‘ื™ืช ื“ื™ืŸ ื•ื‘ื™ืช ื“ื™ืŸ ืฉืœ ืฉื‘ืขื™ื ื•ืื—ื“ ื”ื•ื, ื–ื” ืžื ื™ืŸ ื—ื›ืžื™ ื”ื“ื•ืจ ืฉื”ืกื›ื™ืžื• ื•ืงื™ื‘ืœื• ื”ื“ื‘ืจ ืฉืืžืจื• ื‘ื™ืช ื“ื™ืŸ ื”ื’ื“ื•ืœ, ื•ืœื ื—ืœืงื• ื‘ื•:

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I looked around a bit more, You are correct that this is only by takana, and I was under the impression that when it comes to Halacha the same spirit is followed (as I write in the Comment below). At it turns out, the Chazon Ish mentions the Rambam, and says when it comes to Psak, If it was accepted by the generation as a whole it has the status of Sanhedrin, and would need a full consensus to revoke. The Maritz Chayes says a similar thing why the Gemara will never argue on a Tanna. It is not because it can't, but the final consensus to follow the ื—ืชื™ืžืช ื”ืžืฉื ื” on everything, and they did not get together to revoke that. The same goes with a later consensus. I see the Rama as more of a takana, but being that it wasn't an official takana, you may be right that this would be closer to a psak. But we still would need a process to revoke this, and good luck trying to do that.

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Reb Leib knows that https://www.rationalistjudaism.com/p/pity-the-zealots/comment/21996214

I guess he understood that the Rema made a Takana

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Thanks, yes that is how I understood. It was my mistake including Rashi in this which is more of a psak.

We still do find the idea of someone not arguing with an authority 500 years before him, but that's likely more out of common sense to defer to our betters most of the time. I still see from poskim that if a psak is accepted by all Jews, it seems to carry more weight. It is similar to the first din, but yes, not subject to the same strict process, as Jew well pointed out from the Rambam.

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Why do you assume this?

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Because we see this used in Gemara (36b in Gittin for example) even when a later authority said an earlier Takana was doing more harm than good, and we still have no power to do away with it. Its very nice we are convinced we know better and sometimes we are right, but halacha has to be set in stone so things don't get out of control. The Maritz Chayes has a long piece on this in his ื›ืœ ื›ืชื‘ื™.

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author

Correct, but the question is who has the status to set things in stone. There were plenty of authorities who argued with Rema about all kinds of things - clearly they didn't consider him to be set in stone.

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Sep 1, 2023ยทedited Sep 1, 2023

I did not mean it on everything the Rama says everywhere, but sometimes a psak is accepted, for one reason or another, by Israel as a whole, meaning by all poskim. I agree the Rama himself is not like the ื‘"ื“ ืฉืื™ืŸ ืœื‘ื˜ืœื• since he wasn't set in stone, but when his opinion was fully accepted for a few generations, I would think that's very strong- because if its acceptance by ALL poskim from a certain time, even if we got smarter in a later generation. That's what I mean when I say Bais din. I think a similar idea is the Gemara as a whole which was 'canonized' (your words) because of its acceptance.

I am writing this regarding psak, but as I wrote here in other responses, this case might be on a lower level, although we'd still follow it based on this premise.

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Aug 31, 2023ยทedited Aug 31, 2023

This might parallel Chasimas Hashas, which according to one Gaonic source which eludes me at the moment, took place over several generations.

===

EDIT

Or we might say that whereas Shas as a whole was canonized, later rulings are canonized case by case. (Wild, eh?)

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A takana(enactment) is NOT a halakhik ruling(psak).

A Takana which backfires is a takana requiring a level of authority to overturn.

A Psak (ruling) is an expression of _previously valid_ law which establishes no new legal reality. A takana is a _new_ law .

Why do you assume a psak has the standing of a takana ?

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In this case it is hard to call it a full psak, since no one actually thinks that the Torah requires mesora, but being many questions came up, a fence was therefore set that we should only eat with mesora. Your'e right it's not a full-fledged takana, but it wasn't a full psak either. You are probably right that one may not be violating the extreme of the phrase I quoted, but it is more or less the same idea in how we should go about dealing with older, fully accepted rulings, especially when set up to prevent people from potentially eating non-kosher.

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What I'm hearing is: as a matter of law there is no issue . However there is ample reason to make an enactment now.

This is now a question of authority.

Where I'm from (what they taught me in yeshiva) there is no authority besides the talmud . If a town voted in ื˜ื•ื‘ื™ ืขื™ืจ ( councilmen?) they could make local enactments but not worldwide.

And definitely not chasam sofer style " I have a mandate from heaven as I'm the one chosen to pasken for all of klal yisrael therefore even though I have no proof this is my position".

Then again you can accept any authority over yourself.

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You are right it is a question of authority.

I don't know where you learned but I was taught that "The Shulchan Aruch and the poskim set the standard to a degree". Yes, a very vague statement. I don't know of poskim who paskend right from the Gemara while ignoring an explicit Shulchan Aruch, unless they had many poskim to back them up. ืฉื‘ืขื” ื˜ื•ื‘ื™ ื”ืขื™ืจ is not related to this discussion.

I agree one Gadol can't set the Standard for something to be set in stone. The Chasam Sofer was simply standing up against reform. But when a full generation accepts something, like not eating kitniyos for Ashkenazim, it has a lot of weight, and that is fully permitted by the Torah and did not even become forbidden with the process of a real Takana.

As far as yourself, If a legitimate Torah authority says this is not binding, ื‘ื˜ืœื” ื“ืขืชื™.

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That principle is specfically about takanos and gezeiros, not interpretation of halachah.

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See my comment above, but no one thinks that the interpretation of halacha is to only eat birds with a mesora, but enacted when there were doubts. I agree the process of making a takana was not followed here.

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I can see why somebody would say that a stork has ื›ืฃ ืจื’ืœื” ืจื—ื‘ even though they aren't exactly webbed https://www.istockphoto.com/photo/painted-stork-close-up-of-feet-gm1152335707-312591704 compared to eagle https://www.istockphoto.com/photo/eagle-claws-gm1419545982-465859093

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