The Mitzvah to Check for Signs of Kashrut

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by R. Gidon Rothstein

Parshat Shemini

Based in Parshat Shemini, Rambam has four mitzvot aseh, obligatory mitzvot, related to kosher food, nos. 149-152, to check for signs of a kosher animal (chews its cud and has split hooves), bird, insect (grasshopper, has jointed legs above their feet ), and fish (fins and scales). Rambam cites a Sifra for the inference that zot ha-chaya asher tokhelu, these are the creatures you may eat, 11;2, establishes a mitzvah obligation.

The Checking Matters

Technically, it is a lav ha-ba mikhlal aseh, a prohibition implied by a command (if we must check for these signs, we know we may not eat without checking). There is also a prohibition, but our mitzvah is the requirement to check. Someone who ate meat without checking will still have neglected the obligation even if the meat turned out to be kosher.

With birds, the Torah names permitted species rather than gives signs, meaning the mitzvah is to ascertain a particular bird comes from a permitted species before eating it [the Talmud did generate signs of being a non-kosher bird based on the list in the Torah, but they are not inherent to our mitzvah].

In Parshat Kedoshim, the Torah tells us to distinguish kosher animals and birds from non-kosher ones, another statement of this obligation, that we are to check before we eat.

Or, Enhancing the Prohibition

Ramban disagrees on principle, as he articulated in the sixth of Rambam’s shorashim. Remember, Rambam introduced his Book of Commandments with fourteen rules for how to decide what makes the list of the 613 (just counting words of command or prohibition yields many more than that). His sixth rule decided we count the obligation and prohibition among the mitzvot when the Torah expressed itself both ways.

Ramban disagreed, and included our mitzvah among his examples. In his view, there is no mitzvah fulfilled by eating kosher foods—for a reductio ad absurdum, he points out the verse speaks of eating these, suggesting a Jew who encountered a kosher animal, hunted and caught it, would be required to eat it.

Instead, he thinks the inferred prohibition, which does technically count as an aseh, only adds severity to the prohibition of eating non-kosher. Should a Jew eat non-kosher insects, s/he will have violated the lav, the proscription, as well as failed to fulfill this requirement.

The Point of Checking

The reason Sefer HaChinukh 153 gives for this mitzvah builds off his overall theory of prohibited foods, one we saw last time, they damage our characters when we eat them. If so, it makes sense for us to check before we eat, to be sure it not be among the damaging ones.

Except it is too good, because then there should be a positive commandment for every prohibited food, and there is not. Similarly, later in the mitzvah he throws in the importance of knowing the difference between a behema and a chaya, since all the fat of the latter is permitted, where only the non-chelev fat of a behema is allowed (chelev are those fats the Torah said would be burned on the altar as part of a sacrifice), and only the blood of a behema needs to be covered after slaughter.

To Sefer HaChinukh, it is all a way to know what we can and cannot eat, except he has passed a little too quickly over the fact that there is in fact no mitzvah to know that difference. Jews are within their halakhic rights not to eat the chelev of all animals, just in case.

I suggest his rejection of an inherent value in the mitzvah is part of why he now tells us he thinks Ramban is right about this debate, despite his firm practice of listing mitzvot by Rambam’s count. [I think he chose Rambam’s list, because Rambam has a full list; it does surprise me that he did not choose to discuss the mitzvot Ramban gave to supplement the ones he struck from Rambam’s list.

Minchat Chinukh saved me from an embarrassing mistake here; I was going to write about Sefer HaChinukh’s not counting a mitzvah to check for the signs of birds, despite Rambam counting it, when in reality, he does have it, in Mitzvah 470, because only in Re’eh does the Torah say it in positive terms: these are the birds you can eat.]

Why an Aseh?

Sefer HaChinukh’s view leaves us without insight into what Rambam would have thought. In Mishneh Torah, Rambam sounds like the mitzvah is for every Jew to have access to kosher food wherever s/he goes, to be able to differentiate and therefore access kosher despite a lack of institutional framework. Of course, that works for animals and fowl only if the person also knows shechita, but for fish and insects, it helps.

I suggest another reason, the importance of being conscious of what we are doing. The mitzvat aseh implies a value in being aware of what we are doing as we do it, not just to avoid doing wrong. If someone serves me meat and I don’t check what it is, I haven’t violated anything if it turns out to be kosher, but Rambam would tell me I lost a chance to be aware I was eating as God commanded. To me, it makes sense for there to be such a mitzvah with kosher food, the staple of our diet.

Substitute Signs

For laws of the mitzvah, Sefer HaChinukh shares ways we can figure out if an animal is kosher without checking the actual two signs. Talmudic tradition knew that any ruminant, animal that chews its cud, will not have upper incisor teeth, with the exception of the camel, will have split hooves [Minchat Chinukh points out the shafan and arnevet, hare and hyrax, listed by the Torah among ruminants without split hooves, do have upper incisor teeth]. In reverse, any animal with split hooves will be a ruminant other than the pig.

Devarim 14;5 lists ten animals as kosher, and tradition claimed this is a complete list, although those names might be of types rather than single specific animals. When we check for signs of kashrut in an unknown animal, we would be checking whether it was of one of those ten.

It seems worth pointing out how technical this is. Rather than a mitzvah to check for these signs of being a kosher animal, it seems to be a mitzvah to ascertain the status of the animal, however we do it. Split hooves and chews its cud, sure, but  we see no resistance to relying on our shortcuts.

With fish, scales are a sure sign there were fins, two scales is enough to count, even if they only appear at adulthood, even if they fall off when taken out of the water.

There are eight acceptable kinds of insects, identifiable either by expertise in what they are, or through signs, four wings that cover the majority of the body in length and width, four legs, and then two jointed legs for walking on the ground.

Whether as a mitzvah of its own or just to protect us from eating non-kosher, we are required to know the once-living creatures we eat were in fact of the acceptable species. A mitzvah we have fully outsourced to others, raising systemic questions I hope we find another occasion to consider, when having others take care of our obligations is just fine, and when we are supposed to be doing it ourselves.

About Gidon Rothstein

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