Laws of Ever Min Ha-Chai

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by R. Gidon Rothstein

Parshat Bo: Laws of Ever Min Ha-Chai, Animal Parts Removed from a Living Animal

Ever min ha-chai seems to me a prime example of a not infrequent phenomenon, where Jews assume a reason for a Torah law unsupported by the rules of the mitzvah in questions. In our case, I think many or most of us take EMH [ever min hachai, loosely, a body part taken off a live animal] to be a cruelty prohibition, the Torah wanted to teach us not to mistreat animals by causing them pain.

AH Yoreh De’ah 62;1 already presents problems. EMH includes full body parts only, says AH. Such a sinner would get lashesbecause Devarim 12;23 says not to eat a soul with its flesh, tradition teaching us to include body parts taken off with the “soul,” meaning while the animal is still alive. If only meat came off, though, Chullin 102b tells us the prohibition is the issur terefah, loosely, a mortally wounded animal; in AH’s view, if a Jews eats both a full body part that came off while alive, as well as meat, separately, s/he would be liable for two sets of lashes.

In case it needs to be said, it is not immediately obvious that taking off a whole body part is so much more cruel than slicing a bunch of meat from a live animal.

The Special Status of an Ever

Rashi to Chullin 102b says the body part’s inability to regenerate makes it like a piece of the soul of the animal, impermissible while there is still life in the flesh.  (AH doesn’t explain why meat wouldn’t be the same; if the answer is that meat can regenerate, I’m not sure why it counts as terefah, but that’s not our focus now.]

Cheilev, the prohibited fats of an animal, do regenerate, suggesting that Rashi would have thought cheilev taken out of a living animal should not be a problem of EMH. Indeed, Ramban, cited by Rashba, thought Chullin 103a’s assertion of the inclusion of cheilev in EMH meant only kulya be-chalba, where a body part is mixed in with the cheilev. He had to be thinking Chazal were being inexact in their language, since they say cheilev counts as EMH.

Rambam is clearer that cheilev itself would be EMH, AH tells us in s’if three, meaning the ability to regenerate cannot have been his concern. AH suggests he saw cheilev as itself the soul, similar to blood (which the Torah explicitly designates the soul); if so, there are two levels to EMH, body parts, and then blood and fats, themselves the building blocks of the original animal. This also could explain why these are the two parts of an animal offered for sacrifices (other than an olah, where everything goes up). [In se’if five, AH struggles with other aspects of Rambam’s view, e.g. his assertion EMH doesn’t apply to birds for non-Jews. I’m going to skip it here.]

A Pause to Consider Non-Jews

EMH also implicates non-Jews, who were told in Bereshit 9;4 not to eat flesh in its blood. In se’if four, AH points out interesting differences between the rule for them and for us.  Chullin 102a limited the prohibition to kosher animals and birds, because the verse says not to eat the flesh with the soul, implying we could eat the flesh without the soul. Non-Jews have no idea of prohibited animals (once they are dead), which then means EMH includes all living creatures.

On the other hand, just meat that came off a living animal would be allowed to a non-Jew, because (as we said above), it’s part of the prohibition of terefah, one they do not have.

(Two interesting asides in AH: he wonders about a question the Gemara raised, how could the Torah permit to Jews what it prohibited to non-Jews. The question takes for granted that Jewish life is universally stricter than a non-Jew’s. Leaving the broad claim aside, Tosafot Chullin 33a says we need not worry about it here, because Jews also may not eat basar min hachai, meat from a live animal, just for terefah reasons, not EMH one. And that’s good enough, apparently.

Secondly, he reminds us a Jew could not give a non-Jew EMH (where the non-Jew otherwise has no way of getting it), because the ban on lifnei iver, leading people astray, including to sin, applies to our interactions with non-Jews, too.)

Fish, Grasshoppers, Shechitah

In se’ifim seven and eight, AH deals with Rambam’s view of EMH outside the realm of animals or birds. Jews will have no EMH problem for fish or grasshoppers (if we still had a tradition about what grasshoppers may be eaten), because the Torah did not require killing them to make them kosher. AH wonders whether non-Jews might nonetheless not be allowed to eat such living beings [or parts of them, sadly for fraternities that wish to swallow goldfish during their initiations], since they have no idea of shechitah, killing animals or birds by slicing the neck, to make them kosher. For them, access to meat or fish come the same way, so EMH should encompass both.

Logical, the claim runs afoul of the principle noted earlier, anything prohibited to non-Jews must be prohibited to Jews, too. Rambam seems to disagree, seems to reject that Talmudic proposition, because he also disallowed non-Jews from eating meat right after shechitah, while the animal is still in its death throes (in the beginning of Laws of Shechitah, Rambam did say Jews may not eat such meat, too, but that’s because of the blood; if a Jew could quickly remove the blood, the meat would be permitted from the moment of shechitah, where for non-Jews, death is needed).

The Threshold Amount for Ever Min HaChai

In se’ifim 9-13, AH reviews Rambam and Tosafot’s views of how much one has to eat to violate EMH. Chullin 102a says a full violation requires a kezayit, an olive’s worth, because the Torah refers to achilah, eating. However, if the Jew is eating a kezayit, it should already be prohibited because it is terefah meat (as we said above). AH think Rambam’s answer, from Laws of Prohibited Foods 5;2-3, was that if one was only eating the meat off of a live animal, it would require a kezayit, because it’s basically the same as terefah.

EMH adds bone, sinews, and other elements of an organ to the equation, so they all count towards the kezayit. As long as the bone is in its original condition, the various parts all still attached (were the parts to have been disassembled and the Jew to put them all in his/her mouth to eat them, AH is sure Rambam held it “only” violates terefah, like all meat torn off a living animal). For similar reasons, AH thinks the Jew must put the entire kezayit in his mouth at once, without cutting it into smaller parts—once it’s no longer in the form it was when it was on the animal, it becomes just an issue of basar min hachai.

Tosafot Chullin 96 thought the Jew would have to eat an entire body part to be liable, because Devarim 12;23 bans eating the nefesh, the soul. Half an organ does not rise to the level of nefesh, soul, neither for removing, for Rambam, nor also for eating, for Tosafot. AH floats the possibility the idea might explain Rambam’s distinction between if the Jew is eating the organ with its bone, or just the meat—the latter is not as it was on the animal, and therefore isn’t EMH.

The idea of wholeness also explains Tur’s puzzling choice to explicitly prohibit lesser amounts of EMH. Wondering why he would repeat the well-known principle of hatzi shi’ur, that Torah prohibitions are also forbidden in lesser amounts, AH se’ifrim 13-14, points out we usually say it’s because of chazei le-itztarufei, the less than punishable amounts can combine. As we’ve been saying, EMH only happens when whole, so Tur said it was nonetheless not allowed.

Let’s Define “Coming Off”

To be considered off the animal, the body part has to have disconnected completely. Organs or meat that are partially attached are not prohibited by Torah law, despite its never being able to regrow (which mean it is functionally no longer part of the animal). In se’if twenty, though, AH says there is a rabbinic prohibition against eating it, to ensure we not slip up and eat actual EMH. Chullin 73a says that if the animal died on its own, this partially removed part will be considered full EMH, where proper slaughter to make the animal kosher would salvage this body part, too.

More surprising, to me anyway, are AH’s ideas in se’ifim nineteen and twenty one, a body part that is completely cut away from the animal, but still inside of it, is and will always be EMH, even if the animal is later slaughtered properly. (The example in se’if 21 is testicles, but it is true for any internal matter). Here again, were it partially attached, it would be allowed by Torah law, although the custom is not to eat it because it is too similar to EMH.

A Cruelty Law?

I have not pointed out each time how these laws seem to focus away from cruelty. Notice there is no dispensation made for cutting off a body part without pain (such as under anesthesia), or where it came off without our involvement. Too, the source verse focuses on eating, lo tochal ha-nefesh im ha-basar, not to eat the soul with the flesh; a Jew who vivisects an animal, with or without anesthesia, likely violates a Torah prohibition of tza’ar ba’alei chayim, cruelty to living beings, but has not come near EMH.

Last, remember AH’s idea that the fat counts as soul as does the blood, putting the soul/life source front and center of this eating prohibition. I suggest, therefore, the issue here is eating an animal while still alive, it or any of its constituent parts. By constituent, we mean organs, with bone, flesh, and sinews, crucial enough to life to count as a soul.

I suggest the Torah means to teach us a different lesson than we usually assume, that animals, in their lives, are to be considered potential food, not food itself. To eat body parts that came off, even without our cutting them, treats a living creature as what it is not, a possible source of food. For that, we first must have killed it, properly.

About Gidon Rothstein

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