R. Berakhiah said in the name of R. Isaac: The Holy One, blessed be He, will make a banquet for His servants, the righteous, and whoever has not eaten carrion in this world will witness [the banquet] in the World to Come.
VA-YIKRA RABBAH 13:3
Kashrut Certification
In the Iyar 5754 issue of Ha-Pardes the editor has reprinted a letter authored by R. Moshe Feinstein many years ago. The letter, as published in Ha-Pardes, is dated 9 Elul 5733. The identical letter appears in Iggerot Mosheh, Hoshen Mishpat, II, no. 4, sec. 1, bearing the date Kislev 5739. The communication was addressed to the administrators of a communal kashrut supervision organization. The letter was written at the behest of several rabbis who, for a period of time, had supervised and granted a private hekhsher, or certificate of kashrut, to a slaughterhouse. The rabbis approached Rabbi Feinstein with a complaint in which they asserted that the supervisory agency in question refused to allow establishments under its jurisdiction to make use of meat originating in the slaughterhouse supervised by the complainants. Those rabbis alleged that such refusal was nothing more than a boycott designed to put economic pressure upon the proprietors of the slaughterhouse to transfer kashrut supervision from the rabbis with whom they had a long-standing arrangement to the supervisory agency itself.
Such a motive is unworthy of any individual and most certainly of a kashrut agency and hence, were that indeed to have been the reason for not accepting the certification of the supervising rabbis, such motivation would, in itself, have constituted sufficient grounds for censure. More than a century ago, R. Moshe Sofer, Teshuvot Hatam Sofer, Hoshen Mishpat, no. 118, expressed astonishment that "scholars, a rabbi and a dayyan would join in committing an injustice and transgression" of such a nature. The incident discussed by Hatam Sofer involved certification of sugar produced by a non-Jew as kosher for use on Pesaḥ. The certification had been granted by two dayyanim who are described as having been impoverished. A certain rabbi allegedly attempted to persuade the non-Jew to dismiss one of the dayyanim and to engage him in place of the dayyan. The non-Jew, however, demurred. Thereupon the rabbi enlisted the assistance of the second dayyan and together they prevailed upon the gentile. Hatam Sofer decries such conduct as unworthy and, despite minor equivocation in his initial comments, declares such conduct to be a violation of the prohibition against hasagat gevul, i.e., unfair competition.
Rabbi Feinstein, in a brief and peremptory statement, expresses disapproval regarding the matter brought to his attention for a medley of reasons: 1) Infringement upon another person's means of earning a livelihood constitutes a violation of the prohibition against hasagat gevul. 2) Kashrut supervision constitutes the exercise of "authority" (serarah) and hence retaining the services of a kashrut supervisor constitutes an appointment to a position of authority rather than the engagement of an employee. The implication of adducing that consideration is that a person so engaged cannot be removed other than for cause.1It may be noted that Rabbi Feinstein himself expressed the opinion that an ordinary employee is not an employee at will but, at least if not expressly stipulated to the contrary, is engaged for as long a period as the employer has need of the type of service performed by the employee and, consequently, no employee can be dismissed other than for cause. See Iggerot Mosheh, Ḥoshen Mishpat, I, no. 75. 3) Refusal to accept the certification of the supervising rabbis is a source of great embarrassment to them and constitutes defamation of character. Rabbi Feinstein advises that, if there are indeed allegations of substantive irregularities, the matter be presented formally to a Bet Din for adjudication.
The statement, which Rabbi Feinstein signed in his capacity as president of the Union of Orthodox Rabbis of the United States and Canada, may well be construed as a policy statement of that organization. If it was intended as a definitive halakhic ruling, it may well have been compelled by the particular facts of the case addressed but can hardly be regarded as universal in application.
Any attempt to entice customers or clients already serviced by another person presents a serious question of hasagat gevul. Any attempt to disparage another person's performance in the rendering of services, whether by explicit statement or by innuendo, is indeed a form of defamation. However, refusal to rubber-stamp the kashrut endorsement of another rabbi or supervising agency need not necessarily entail either infraction. Similarly, a producer or retailer may seek new kashrut certification without necessarily being in violation of any provision of Jewish law.
Certification of the kashrut of any product is, in a technical halakhic sense, testimony with regard to the product as a permitted foodstuff.2See R. Moshe Feinstein, Nehora’i, II (Lakewood, 5745), p. 41. Such testimony cannot be compelled. Thus no individual or rabbi can ever be compelled to attest to the kashrut of any product. Certainly, no person or agency is permitted to compromise his or its integrity by actually certifying a product as kosher if that person or agency has any suspicion of irregularity. In judicial proceedings the Bet Din has no choice but to rule upon the testimony presented, provided that the witnesses are halakhically credible and the testimony is unimpeached. A judge who nevertheless harbors a suspicion of perjury cannot simply exclude or disregard the testimony. Nor is he permitted to act upon testimony that he regards with suspicion. Accordingly, Rambam, Hilkhot Sanhedrin 24:3, rules that a judge who finds himself in such a position has no choice but to recuse himself. Since the judge need not announce the reason for his recusal, no stigmatization of the witnesses accrues from his action in doing so. The same is assuredly the case with regard to extra-judicial matters involving a pronouncement of permissibility.
Neither a rabbi nor a supervisory agency is under an obligation to grant kashrut endorsements to all qualified applicants. Hence the rabbi or supervisory agency is fully entitled to demand stringencies on behalf of those who rely upon that endorsement. Those stringencies may represent matters of piety practiced by a particular clientele rather than matters of normative religious law. Moreover, a person called upon to accept the certification of a product as kosher may have no reason to suspect that the product falls short of even the most rigorous standards but may feel that further safeguards and controls are necessary in order to protect against problems that may arise over the course of time. Hence, refusal to extend full faith and credit to the certificate of another rabbi or agency does not, ipso facto, reflect negatively upon that endorsement.
There are also, to be sure, situations in which a person may entertain suspicion or doubt without being able to articulate the precise reason for his concern and certainly without being able to demonstrate impropriety to the satisfaction of a Bet Din. In comparable judicial situations, a member of a Bet Din must recuse himself rather than vote for either conviction or acquittal, liability or exoneration; similarly, in matters of kashrut, a person experiencing such ambivalence must decline to compromise himself by endorsing, or appearing to endorse, kashrut certification regarding which he has less than full faith.
Furthermore, a policy of "vertical" supervision is entirely reasonable. Certification of a processed food product, catering facility or commercial establishment involves not only attestation that nothing is amiss at the point of supervision but that all products and ingredients utilized in the food purveyed as kosher are indeed acceptable. A supervisory authority may cogently establish a policy of granting certification solely on the basis of its own investigation and determination of reliability of all ingredients and products. That, in turn, is tantamount to requiring that only products under its own supervision be used. It may also, with valid reason, restrict its own acceptance of certification of ingredients to products bearing the imprimatur of a communal organization. Presumably, such certification is not clouded by pecuniary motivation since no individual's livelihood or level of compensation is directly affected by the bestowal or withdrawal of any particular kashrut certification.3Cf., the comments of Rabbi Feinstein, Nehora’i, II, 40–41, regarding the superiority of this type of supervision as well as the comments of R. Menasheh Klein, Der Algemeiner Journal, September 2, 1994, p. 21, col. 2. Assuredly, apart from its undeniable intrinsic merit, absence of self-interest bolsters public confidence and hence a communal kashrut agency whose goal is the broadest possible acceptance will correctly seek to establish policies designed to achieve such acceptance.
For similar reasons a producer or purveyor of food products is completely at liberty, upon his own initiative, to seek the endorsement of whatever agency or individual he may desire. An enterprising businessman will seek the widest possible market for his product. A purveyor of kosher food will seek the testimonial of an agency or rabbinic figure likely to garner the largest possible number of customers. Accordingly, substitution of certification is not a reflection upon the probity of the individual or agency whose certification has been supplanted but simply reflects an awareness that the newly acquired imprimatur will lead to wider recognition and acceptance and hence will enhance sales. If, for the reasons indicated, the kashrut agency or supervisor is not in violation of the prohibition against hasagat gevul an entrepreneur availing himself of such supervision cannot be deemed guilty of abetting a transgressor.
Parenthetically, it should be noted that Rabbi Feinstein's depiction of kashrut supervision as a form of "authority," insofar as our society is concerned, reflects an ideal rather than the reality. In the autonomous Jewish kehillah of yesteryear a communal rabbi did indeed enjoy the prerogative of declaring a foodstuff to be non-kosher and of branding a purveyor as unreliable. His edict then became binding in his jurisdiction. Kashrut supervision in the United States involves no such power. A firm or individual seeking rabbinic endorsement of any given product does not undertake that the product will remain kosher forevermore. Quite to the contrary, the manufacturer or purveyor is at perfect liberty to surrender the kashrut endorsement and, at least to the extent permitted by Jewish law, to market the product to consumers for whom kashrut is not a concern. The supervising rabbi is simply not engaged to compel the manufacturer or proprietor to adhere to required standards of kashrut in the future, much less so to impose sanctions for nonfeasance. His function is entirely affirmative, i.e., to attest to the reliability of the product so long as everything is in order. To be sure, he has the halakhic right, and indeed the obligation, to warn against use of the product if he becomes aware of the fact that an ongoing claim of kashrut is false. He does so, however, by virtue of his obligation as an individual, not by virtue of his office or of any authority that has been conferred upon him. Since the private kashrut supervisor's position is not a position of "authority," he is not endowed with the right to tenure enjoyed by a communal official.
Is the Giraffe a Kosher Animal?
The status of the giraffe has been the subject of a number of discussions in rabbinic literature over the course of the past one hundred and fifty years. The earliest analysis of the question was published by H. Hanak in a periodical edited by R. Mendel Stern called Kokhavei Yizḥak, no. 16 (Vienna, 5612), pp. 41-43.4Kokhavei Yiẓḥak was published in Vienna between 5605 and 5630. A later discussion by R. Shlomoh Zevi Schuck was published in his Teshuvot Rashban, Even ha-Ezer (Satmar, 5665), no. 64. The issue was raised anew in an inquiry by R. Yeshayah Aryeh Dworkes, Ha-Ma'or, Tishri 5721, and responded to by R. Zevi Hirsch Cohen, She'elot u-Teshuvot ha-Ma'or ve-Zikaron ba-Sefer, I (New York, 5727), pp. 247-250. The matter has now been reexamined by R. Abraham Hamami in a contribution to Teḥumin, vol. 20 (5760).5Rabbi Ari Z. Zivotofsky, “What’s the Truth about… Giraffe Meat!” Jewish Action (Fall, 2000), p. 37, dispels a popular misconception regarding slaughter of the giraffe but does not address the complex issue of the permissibility of the consumption of giraffe meat.
The earliest rabbinic reference to a giraffe occurs in R. Sa'adia Ga'on's commentary on Deuteronomy 14:5. Scripture declares, "These are the animals you may eat" and proceeds to enumerate a list of permitted species. Among those animals is the "zemer" which is rendered in standard English translations as "mountain-sheep." R. Sa'adia Ga'on, perhaps following the Septuagint, identifies the zemer as the animal known in Arabic as al-zerafah, i.e., the giraffe. That translation is accepted by R. David ibn Kimḥi (Redak) in his Sefer ha-Shorashim in the entry for the term "zemer," by R. Estori ha-Farḥi, Kaftor va-Feraḥ, chap. 58, and by R. Shimon ben Ẓemaḥ Duran (Rashbaz), Yavin Shemu'ah, Hilkhot Treifot, p. 5b.6See also R. Amiti Ben-David, Siḥat Ḥullin (Jerusalem, 5755), pp. 412f., and cf., R. David Zevi Feldman, Yalkut Kol Ḥai (5757), p. 639, note 10. Rashbaz further identifies al-zerafah as an animal with "a long neck… so that when [the giraffe] is within the wall it extends [its neck] outside of the wall."7Cf., however, Rabbi Y. M. Levinger and M. David, “Sheva ha-Ḥayyot ha-Tehorot,” Torah u-Madda, vol. 4, no. 2 (Elul 5735), p. 3 and p. 48. Those authors object to identification of the zemer as the giraffe on the grounds that the zemer is enumerated together with other ḥayyot (as distinct from behemot, as will later be explained) whereas the giraffe does not have the distinctive horns of a ḥayyah and hence is presumably a behemah. Rabbi Hamami adduces an impressive list of sources, albeit mostly obscure in nature, that either identify the giraffe as the zemer of Scripture or otherwise refer to the giraffe as a kosher animal. Indeed, the giraffe, since it has split hoofs and chews its cud, appears to be readily identified as a kosher animal.8Yehudah Felix, Ḥai ve-Ẓomeaḥ ba-Torah (Jerusalem, 5744), p. 93, reports that the giraffe, although it is a ruminant, is a three-stomached (rather than four-stomached) animal. This is also true of the mouse-deer which is presumably a kosher animal.
The author of the article published in Kokhavei Yizḥak similarly regards the giraffe as a kosher species but, rather than identifying it with the zemer, he somewhat fancifully identifies it as the taḥash, the animal whose skin was used in the construction of the tabernacle as described in Exodus 25:5. The Gemara, Shabbat 28b, depicts the taḥash as a species that existed "in the days of Moses," that was made available to Moses for the specific purpose of use in construction of the tabernacle and that was subsequently concealed. Identification of the taḥash with the giraffe is based upon Targum Onkelos' translation of taḥash as "sasgavna," i.e., a creature that "delights in its colors," and the Arabic meaning of the term zerafah, i.e., "beautiful," as well as the putative derivation of the Hebrew "taḥash" from the verb "ḥashoh" meaning to be silent, reflecting the erroneous belief that the giraffe is mute.
R. Shlomoh Schuck suggests that the taḥash was a distinct kosher species but, as a result of crossbreeding with some other species, the giraffe appeared. Oddly, Rabbi Schuck believes that some giraffes are ruminants with split hoofs, some have only incompletely split hoofs, some resemble cows in part and camels in part, while others resemble, deer. He also maintains that scientists regard the giraffe as a species of camel. The camel, of course, chews its cud but does not possess cloven hoofs. He explains the existence of giraffes having such diverse physical characteristics on the basis of his contention that the giraffe is the product of crossbreeding.
Rabbi Schuck bolsters this thesis by pointing to the enumeration in Genesis 32:15-16 of the various species of animals sent by Jacob as a gift to his brother Esau. Scripture first mentions goats and sheep, then camels, followed by cattle and, finally, donkeys. The order is puzzling in that the enumeration of clean species is interrupted by mention of camels, an unclean species, while the other unclean species, viz., donkeys, is mentioned last. Rabbi Schuck suggests that the "camel" to which reference is made is none other than the taḥash. He contends that at a later period the taḥash was bred with a non-kosher species, i.e., a non-kosher camel, and that the giraffe was the product of that union. Rabbi Schuck seems to believe that the common species of the present-day giraffe, produced as a result of crossbreeding, possesses hoofs that are incompletely split and hence is obviously non-kosher, but that the original giraffe was a ruminant with completely split hoofs. In any event, if Rabbi Schuck were to be correct in describing its origin, the present-day giraffe, since it would be descended from a non-kosher ancestor, could not be regarded as a kosher species.
In developing their theses these two authors fail to take note of a highly significant halakhic presumption. The Gemara, Bekhorot 7a, declares that members of kosher and non-kosher species cannot crossbreed. Thus, if a questionably kosher animal successfully mates with a member of a kosher species and produces offspring, the animal in question must be deemed to be a member of a kosher species. Accordingly, the giraffe could not be the hybridized progeny of a kosher species and a non-kosher camel. It is rather odd that these writers do not address this issue. Far-fetched as it may seem, they may have postulated that the Gemara is reporting the empirical realia of its time as well as of the present-day world, but that in antiquity such crossbreeding may have occurred.
In the modern period, a related issue was raised in 1950 by the Va'ad ha-Rabbanim ha-Haredim of Paris, with regard to a different species. The Parisian rabbis sought to establish kosher slaughter in Madagascar in order to export meat to Israel. The breed of cattle slaughtered in Madagascar originated in India and is referred to as the "Indian ox." The animal is identified as the zebu, a type of humped cow that originally came from India but is now found in many other countries. The animal differs in physical appearance from European cattle. In addition to being somewhat bigger and having somewhat larger horns than other cattle, its mane has a distinctive appearance with hair that stands upright in the area of the neck. The rabbinical association sought the guidance of the then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, with regard to whether or not the animal, which has split hoofs and is a ruminant, might be considered to be kosher. Rabbi Herzog's response has now been published in his Pesakim u-Ketavim, vol. IV (Jerusalem, 5750), no. 20. Unfortunately, the concluding section of the responsum is missing. The issue was also addressed at the time by R. Meshullam Roth, Teshuvot Kol Mevaser, I, no. 9.9The identity of the zebu as a kosher species again became a matter of concern during the early months of 2004 in the wake of allegations that the lion’s share of meat sold in Israel, including glatt meat, is imported from Argentina and is, in fact, meat of the zebu. Reportedly, the zebu is far less likely than other cattle to have adhesions on its lungs and hence has the desirable characteristic of being glatt beyond cavil. See Ha-Maḥaneh ha-Ḥaredi, 25 Adar 5764, pp. 37–38. See also the immediately following section of this chapter.
The concern of the Parisian rabbis was based upon the opinion of Teshuvot Bet Ya'akov, no. 41, cited by Pitḥei Teshuvah, Yoreh De'ah 80:1. Shulḥan Arukh, Yoreh De'ah 80:1, records a number of variations of particular characteristics of animal horns that can be relied upon to distinguish between the biblical categories of behemah (animal) and ḥayyah (generally translated as "wild beast"). A portion of the blood of a ḥayyah must be covered with earth after slaughter and its ḥelev (the fat of certain parts of the animal that in a sacrificial behemah was burned upon the altar) is permitted as food, whereas a behemah does not require covering of its blood but its ḥelev is prohibited.
Bet Ya'akov goes beyond the position of the Shulḥan Arukh in asserting that, in addition to having split hoofs and chewing its cud, a ḥayyah, in order to be considered kosher, must have the distinctive horn characteristics of a kosher species. The Va'ad ha-Rabbanim of Paris was concerned that the "Indian ox" may be a ḥayyah rather than a behemah (as are other cattle) and hence, according to Bet Ya'akov, could be considered kosher only if it possesses the idiosyncratic characteristics of a kosher ḥayyah. Both Rabbi Roth and Rabbi Herzog dismiss the concern voiced by the Va'ad ha-Rabbanim by advancing halakhic evidence contradicting the position of Bet Ya'akov and also by citing earlier authorities, including the compiler of Pitḥei Teshuvah, who rejected Bet Ya'akov's novel view.10Kol Mevaser further argues that the “Indian ox” must be considered kosher even according to Bet Ya‘akov. His argument is that, if the animal in question does not exhibit the characteristics of a ḥayyah, it must be regarded as a behemah; however, if it is indeed a behemah, since it is a ruminant and has split hoofs, it should be deemed to be a kosher behemah. However, Kol Mevaser seems to have misread the cited statement of Bet Ya‘akov. Bet Ya‘akov maintains that a ḥayyah lacking the idiosyncratic horns of a kosher ḥayyah is not a behemah but a non-kosher ḥayyah.
The consideration raised with regard to the "Indian ox" is also germane with regard to the giraffe, i.e., according to Bet Ya'akov, if the giraffe is a ḥayyah rather than a behemah it can be accepted as a kosher animal only if it possesses the idiosyncratic horns of a kosher ḥayyah.
However, a second and even more crucial issue was raised by the Va'ad ha-Rabbanim that is directly relevant to the case of the giraffe as well. The rabbis of Paris reported that an unnamed person had objected to the slaughter of the zebu because we are not in possession of a tradition identifying it as a kosher animal. In support of his objection that scholar drew attention to a statement of Hokhmat Adam 36:1 who declares that not only birds but also animals cannot be eaten on the basis of reliance upon the codified criteria of kosher species; rather, they may be consumed only if there exists a received tradition regarding the permissible status of the animal in question.
This significant issue is not addressed either in Kol Mevaser or in the published version of Rabbi Herzog's responsum. However, Hazon Ish, Iggerot Hazon Ish, I, no. 99 and Hazon Ish, Yoreh De'ah 11:4, reprinted in Pesakim u-Ketavim, IV, no. 21, unequivocally agrees that the "Indian ox" cannot be permitted for precisely that reason. That view was forcefully reiterated by Hazon Ish in a subsequent letter published in Iggerot Hazon Ish, II, no. 83 and Hazon Ish, Yoreh De'ah, 11:5 and in yet a third letter published in Iggerot Hazon Ish, III, no. 113, reprinted in Pesakim u-Ketavim, IV, no. 22. However, as Hazon Ish himself notes, his ruling is predicated upon the assumption that the physical appearance of the "Indian ox" is sufficiently different from that of cattle for it to be regarded as a separate species for purposes of Halakhah.
The rule requiring a received tradition with regard to identification of a species as kosher is recorded by Rema, Yoreh De'ah 82:3, with regard to birds. The rationale underlying the rule with regard to birds is readily understandable. Leviticus 11:13-14 and Deuteronomy 14:12-18 identify a series of non-kosher avian species and declare all other birds to be permissible. Although each of these species is named in Scripture, we are not able to identify all of the enumerated species with certainty. Undoubtedly, many of those species are indigenous to particular locales and hence would not be recognized by persons living in other areas. Moreover, the names themselves, as given in the Pentateuch, are unfamiliar to us and we have no authoritative translation into languages with which we are familiar. Nevertheless, as recorded by Shulḥan Arukh, Yoreh De'ah 82:2, the Sages enumerated a number of physical characteristics that are manifested only by kosher species. However, the presence of those characteristics is dispositive only if, in addition, it is known that the bird is not "dores," i.e., it does not seize and kill its prey before consuming its flesh. Shulḥan Arukh, Yoreh De'ah 82:3, then proceeds to list additional criteria that establish that the bird is not dores. Rema disagrees and rules that those characteristics cannot be relied upon to establish with certainly that the bird is not dores and hence Rema rules that, unless there is a received tradition with regard to the permissibility of the particular species, it may not be eaten. The concern is quite simple. It is obvious that if a bird is dores it is ipso facto known to be non-kosher. However, failure to observe the bird performing such an act does not conclusively establish that it never does so. Failure to observe an event does not establish that the event has not occurred or that it will not occur in the future.11Cf., Arukh ha-Shulḥan, Yoreh De‘ah 83:16–29. Accordingly, only a tradition going back century after century to the time when the identity of the enumerated non-kosher birds was known with certainty can establish that the species in question, since it was eaten at that time, was known not to have been one of the forbidden species.
Shulḥan Arukh, Yoreh De'ah 80:1, records the rule that, unlike with regard to a behemah, the ḥelev of a ḥayyah may be eaten and then proceeds to list the physical characteristics that serve to distinguish a ḥayyah from a behemah. Shakh, Yoreh De'ah 80:2, offers a terse comment: "Since, at present, we know only what we have received by way of tradition [as is the case]… with regard to the characteristics of birds, I have abbreviated [my commentary]." Pri Megadim, Siftei Da'at 80:1, observes that since the criteria of kosher species, i.e., split hoofs and chewing of the cud, are explicitly spelled out in Scripture there is no need for a tradition with regard to the kashrut of any particular animal species. Hence, he understands Shakh's comment as limited to the acceptance of a particular species as a ḥayyah rather than as a behemah. According to Pri Megadim's understanding of Shakh, Shakh declares that in the absence of a tradition, we cannot accept a species as a ḥayyah on the basis of the enumerated physical characteristics in order to permit the ḥelev of a particular species nor can we rely upon the absence of those characteristics in order to exempt the animal from covering a portion of its blood with earth following slaughter. Pri Megadim's position is endorsed by Kaf ha-Hayyim, Yoreh De'ah 80:5 and by Darkei Teshuvah 80:3.12See also Pri To’ar, Yoreh De‘ah 80:30.
However, Hokhmat Adam 36:1,13Cf., however, R. Pinchas Eliyahu Eisenthal, Ha-Maḥaneh ha-Ḥaredi, 25 Adar 5764, p. 38, who interprets Ḥokhmat Adam’s comment as referring only to the question of ḥelev of a ḥayyah in conformity with Pri Megadim’s understanding of Shakh, i.e., as ruling that a mesorah is required only to establish that the animal is a ḥayyah rather than a behemah for purposes of permitting consumption of its ḥelev. Arukh ha-Shulḥan, Yoreh De'ah 80:10, and Hazon Ish, as well as Erekh ha-Shulḥan, Yoreh De'ah 80:10 and 82:29, understand Shakh as declaring that all animals are similar to birds in that no species may be accepted as kosher in the absence of a tradition confirming its status.14Rabbi Ari Z. Zivotofsky, “Kashrut of Exotic Animals: The Buffalo,” Journal of Halacha and Contemporary Society, no. 38 (Fall, 1999), cogently draws attention to the fact that the status of the buffalo is also problematic. This may appear odd to students of Yoreh De‘ah since, basing himself on much earlier authority, Shulḥan Arukh, Yoreh De‘ah 28:4, identifies the buffalo as a kosher species. Rema agrees but, unlike Shulḥan Arukh who classifies the animal as a behemah, Rema declares that it is doubtful whether its status is that of a behemah or of a ḥayyah. That reference, however, is not to the American buffalo but to a different animal, probably the Asian water buffalo which was introduced to Europe at an early date, but possibly the European bison or, less likely, the African buffalo. The animal referred to in this country as a “buffalo” is not really a buffalo but a unique species of bison. The American bison is indigenous to North America and hence was unknown to the author of Shulḥan Arukh and certainly could not have been known to the much earlier authors upon whom Shulḥan Arukh relies. Since the animal is indigenous to the New World it is obvious that there exists no tradition with regard to its status as a kosher animal. The fact that sale of the meat of the American bison was sanctioned some years ago by a number of kashrut supervising agencies does not necessarily indicate reliance upon the position of Pri Megadim. It may signify nothing more than the understandable, albeit erroneous, assumption that the animal is identical to the “buffalo” expressly sanctioned by Shulḥan Arukh. Moreover, even Ḥazon Ish did not unequivocally brand the “Indian ox” or zebu as unacceptable but indicated that the ultimate determination must rest upon the extent of its similarity to more common cattle. Although halakhic categories and scientific classifications are by no means coextensive or even overlapping, the American buffalo is scientifically classified either as a member of the same genus as true cattle or together with the European bison. The matter can be resolved only by a comparison of the physical characteristics of the American bison with those of the cow or, assuming there is a tradition with regard to its status as a kosher animal, the European bison.
Cf., R. Israel Belsky, Mesorah, no. 20 (Adar 5764), who writes that Ḥazon Ish would have permitted the American bison because it should be considered to be an “ox.” That allegation is entirely unfounded. Zebu, forbidden by Ḥazon Ish are far more similar to cattle, both zoologically and in terms of gross appearance, than are bison. Cf., Halacha Berurah, published by Zeirei Agudath Israel, vol. 7, no. 3, p. 3 and p. 4, note 24, in which R. Belsky himself acknowledges that the American bison is not permissible according to Ḥazon Ish.
Parenthetically, the Gemara, Bekhorot 7a, states that a ḥayyah and a behemah cannot mate and produce progeny. Accordingly, the phenomenon of the “beefalo,” a cross between a buffalo and a cow whose meat is commercially available, should demonstrate that the American buffalo is a behemah rather than a ḥayyah. There appears to be no available information with regard to whether any of the other species of buffalo to which Rema may have referred can be crossbred with cattle. Hazon Ish professes that "it is not incumbent upon us to seek reasons" for this stringency15R. Joseph Ber Soloveitchik, author of Bet ha-Levi, is quoted in Netivot Rabboteinu le-Bet ha-Levi Brisk, II (Jerusalem, 5763), 102, as stating, “for without a ‘masoret’ it is impossible to permit an ox, even if all the known characteristics are present, with the argument that it is the ox of which the Torah speaks.” The statement was made in the context of identification of the ḥilazon. Bet ha-Levi cites the verse, “Ask your father and he will tell you, your elders (zekenekha) and they will say to you” (Deuteronomy 32:7) and explains the apparent redundancy in the two clauses as follows: The term “zekenekha,” generally rendered as “elders,” also means “wise men.” In this instance it clearly has the latter meaning, i.e., the “wise men” are charged with responding to questions of Halakhah. The first clause, however, speaks of questions addressed to a father who must transmit the answer. The subject of that question addressed to fathers rather than Torah scholars, declares Bet ha-Levi, is empirical in nature, i.e., a matter of fact (meẓi’ut) upon which Halakhah is predicated that must be transmitted by means of a tradition passed down from generation to generation. but that it probably arose in order to prevent error with regard to identification of an unfamiliar species as a ḥayyah or as a behemah and consequent inadvertent transgression with regard to ḥelev or covering the blood. Hazon Ish also asserts that it serves to prevent transgression with regard to the prohibition of treifot that is attendant upon certain anatomical anomalies.16Thus, on the basis of the reasons for the prohibition spelled out by Ḥazon Ish, the fact that the zebu can hybridize with cattle is entirely irrelevant. Rabbi Zivotofsky, “Kashrut of Exotic Animals,” pp. 126–127, seems to have missed this point. Cf., Halacha Berurah, vol. 7, no. 3, p. 3 and p. 4, note 27. Moreover, whether the basis of this halakhic position is fear of genetic mutation, possible treifut or some other consideration, it is clear that Shakh and those who follow his ruling declare that, in the absence of a mesorah, the biblical criteria of a kosher species, i.e., a split hoof and chewing of the cud, cannot be relied upon in establishing the kashrut of a species. If biblically prescribed criteria that tautologically define kosher species are for some reason unacceptable, a fortiori, a rabbinically recognized criterion that is merely emblematic of the presence of defining criteria cannot be acceptable. Thus it is not surprising that neither Shakh nor any authority following in his footsteps indicates that the hybridization phenomenon serves as a substitute for a mesorah. Nor, to my knowledge, is there any authority who accepts the hybridization phenomenon as a substitute for a mesorah with regard to birds.
In a letter to the editor published in Tradition, vol. 36, no. 2 (Summer, 2002), p. 108, Rabbi Zivitovsky claims that “… many authorities have been willing to rely on the hybridization principle to rule that a bird species is kosher even in the absence of a tradition (see the discussions in, e.g., Ḥatam Sofer, Yoreh De’a 74; Netsiv, Meshiv Davar, Yoreh De’a 22; Avnei Nezer, Yoreh De’a 1:75; Maharsham, Da’at Torah, Yoreh De’a 82:3). That being the case, it would seem that, kal va-ḥomer, the hybridization principle should govern in the case of animals, for whom the tradition requirement is less certain and generally considered a stringency of recent vintage.” Rabbi Zivitovsky reads into the first three sources that he cites much more than they contain. The fourth source, Da‘at Torah of the Maharsham, contains nothing of relevance to this discussion.
Each of the sources deals with problems associated with one or more species of wild duck or wild goose. Although accepted by Ẓemaḥ Ẓedek, Yoreh De‘ah, no. 60, as a member of the same species as the domestic duck or goose, the majority of rabbinic authorities of the day regarded the fowl under discussion as significantly different in its physical characteristics from the species recognized as kosher and, in the absence of a mesorah, refused to recognize the wild duck as kosher. [See, however, R. Yonatan Eybeschutz, Peleti 82:2 and Kereti 82:9, who refers to the bird as a “wild goose” and rules that it is a kosher species.]
Some ducklings of that species were permitted to mingle freely with domestic ducks. The question posed to Ḥatam Sofer was whether future born ducklings born to female domestic ducks were to be regarded as kosher since the fathers may well have been members of unacceptable species of wild duck, Ḥatam Sofer permitted those offspring on the basis of a combination of a number of considerations: 1) Ẓemah Ẓedek ruled that the wild duck was a permitted bird; 2) the ducklings had the physical characteristics of the mother duck, indicating that the father was probably of the same species; 3) the majority of male ducks having access to the females were of the kosher species; and 4) whether or not paternal status could render the offspring non-kosher (ḥosheshin le-zera ha-av) is itself a matter of halakhic doubt. For purposes of the present discussion, the crucial point is that Ẓatam Sofer did not rule that successful hybridization served to confirm Ẓemah Ẓedek’s ruling beyond cavil. Ḥatam Sofer regards the wild duck as a non-kosher bird despite the fact that it was capable of breeding with a kosher species. Indeed, Ḥatam Sofer explicitly affirms that hybridized progeny of that bird are also non-kosher; his lenient ruling is based in part upon the probability that the ducklings in question were not hybridized but sired by a kosher duck. Thus, Ḥatam Sofer clearly refuses to accept the hybridization principle as a substitute for the requisite mesorah.
Meshiv Davar addresses the status of an apparently different species of duck that had been accepted as kosher in some locales. His interlocutor points out that those ducks mate freely with species of duck accepted as kosher. Although Meshiv Davar accepts the species as kosher for a number of reasons, including the fact that it shows no preference whatsoever for its own species over partners from the domestic species, he explicitly rejects the hybridization principle as dispositive with the comment “… for we accept the wild duck as unclean [despite the fact that] it procreates from our duck.”
Rabbi Zivitovsky fails to cite Avnei Nezer, Yoreh De‘ah, no. 76, dealing with a particular species of duck or goose in which he notes that they breed with kosher species but nevertheless, without citing Bekhorot 7a, comments that, since the two species are housed together for breeding purposes, the fact that they mate does not establish the kashrut of the species. In the very next paragraph he then queries how any bird can be regarded as kosher since it may have a non-kosher progenitor and offers several resolutions to that problem. Quite obviously, Avnei Nezer does not accept the hybridization phenomenon as a substitute for a mesorah.
Avnei Nezer, Yoreh De‘ah, no. 75, discusses an apparently different species of duck. It seems that the only physical characteristic of the species in question that gave Avnei Nezer pause in issuing a permissive ruling was that, unlike other ducks, its quack was “hoarse.” Avnei Nezer points to the fact that the duck in question breeds with accepted duck species as indicating that they are truly the same species. In that responsum there is no evidence that he would have accepted the hybridization principle as independent validation of the kashrut of the bird in situations in which its physical characteristics were markedly different from an accepted species. Read together with the immediately following responsum, that conclusion is inescapable.
Parenthetically, Ḥatam Sofer and others express some reservation with regard to the applicability of the hybridization principle of Bekhorot 7a to birds. In context, the principle is formulated with regard to animals and hence its extension to birds is a matter of at least some doubt. Thus, logically, grounds for application of the principle to animals are stronger than for birds. However, methodologically, Rabbi Zivitovsky is quite correct. Since Shakh’s requirement of a mesorah to animals is simply an extension of the rule accepted with regard to birds, any alternative mode acceptable with regard to birds should therefore be acceptable with regard to animals as well.
However, since no authority accepts the hybridization phenomenon as an alternative to a mesorah with regard to birds, there is no evidence supporting its acceptability with regard to animals. In light of both Shakh’s failure to regard the hybridization phenomenon as an alternative to a mesorah and Ḥazon Ish’s formulation of the reasons underlying Shakh’s stringency which, as Rabbi Zivitovsky himself candidly concedes, apply with equal cogency in the presence of hybridization, there is simply no basis for concluding that, according to Shakh, hybridization is other than an irrelevant phenomenon. Those anomalies, he claims, particularly with regard to certain structures of the lung, are difficult to recognize in unfamiliar species.17Refraining from an act because of fear of actual transgression, even if such fear is unwarranted, or as a seyag or “fence” designed to prevent transgression in other instances does not involve transgression of “You shall not add thereto” (Deuteronomy 13:1). The statement to the effect that Rabbi Herzog suggested that those who require a tradition confirming the kashrut of an animal species are in violation of this commandment is misleading. See Rabbi Zivotofsky, “Kashrut of Exotic Animals,” p. 126. Rabbi Herzog expresses doubt with regard to whether a “rebellious elder” (zaken mamre) who forbids the meat of such an animal, contra a formal ruling of the Great Sanhedrin, is in violation of the prohibition. Such an individual does not incur capital punishment for issuing a ruling of that nature since the matter cannot result in a transgression involving the penalty of excision (karet) on the part of any person who obeys his ruling. Rabbi Herzog expresses doubt with regard to whether, despite the absence of capital punishment, a person ruling in such a manner nevertheless violates the commandment “You shall not add thereto.” It may also be suggested that the consideration reflected in this practice is a fear that an unknown species may, in reality, be the product of genetic mutation of a progenitor that itself was a member of a non-kosher species. Progeny of non-kosher animals are non-kosher even if such progeny manifest all the indicia of kosher species.18For a fuller elucidation of this point see this writer’s “The Babirusa: A Kosher Pig?” Contemporary Halakhic Problems, III (New York: 1989), 66–67.
In any event it is clear that, since we lack a tradition with regard to the identity of the present-day giraffe,19In an addendum to R. Yitzchak Yosef’s Yalkut Yosef, vol. 10 (Jerusalem, 5759), pp. 553ff., R. Abraham Hamami argues that the identification of the zemer as the giraffe by R. Saadia Ga’on, Redak and others serves to establish a tradition with regard to its status as a kosher animal. That argument cannot be accepted for two reasons: 1) The identification of the zemer as the giraffe is hardly uncontested. Indeed, it would appear from the discussion of the Gemara, Ḥullin 80a, that the zemer is a wild goat. 2) None of the scholars who make the identification necessarily do so on the basis of a received tradition. Indeed, their translation of the term “zemer” may have simply been based upon the Septuagint. It is significant that Rabbi Hamami does not repeat this contention in his later contribution to Teḥumin; on the contrary, he explicitly concludes that, according to Ḥokhmat Adam and Arukh ha-Shulḥan, the giraffe cannot be permitted. consumption of its meat, although permitted by Pri Megadim and those who accept his interpretation of Shakh, would be forbidden by Hokhmat Adam, Arukh ha-Shulḥan and Hazon Ish,20Ḥazon Ish, Yoreh De‘ah 11: 4, asserts that, even if Ḥokhmat Adam erred in his understanding of Shakh, Ḥokhmat Adam’s codification of that view served to establish the normative rule. The practice of not eating the meat of an animal for which we have no received tradition is clearly in the nature of a popularly established seyag or “fence” designed to prevent transgression and has the status of a normative prohibition. The particular historical age in which that practice arose is not material. Thus, argues Ḥazon Ish, even if Ḥokhmat Adam incorrectly interpreted the comment of Shakh, the inclusion of that view in Ḥokhmat Adam’s published compendium served to enshrine the practice in Eastern Europe. Accordingly, he asserts that, following publication of Ḥokhmat Adam, even Pri Megadim would concede that no animal may be eaten in the absence of a received tradition establishing it as a kosher animal. Ḥazon Ish’s point, although correct in theory, is based on the assumption that earlier unknown species were actually introduced into Eastern Europe subsequent to publication of Ḥokhmat Adam. Consequently, Jews then had the opportunity to establish the practice of rejecting consumption of the meat of those animals, thereby accepting the stringency of Ḥokhmat Adam and rendering it normative. as well as by Erekh ha-Shulhan.21This is also the position of R. Amram Edrei, Ha-Kashrut ve-Halakhah (Jerusalem, 5157), p. 18 and pp. 20f.
The Zebu Problem
The issues surrounding recognition of the zebu as a kosher animal were reviewed in the immediately preceding section in conjunction with discussions of the kashrut of the giraffe. As noted, the controversy dates to the late 1950s when an opportunity arose to import zebu to Israel from Madagascar. The then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, ruled that the zebu was a kosher breed of cattle and was acceptable for kosher slaughter. That view was vigorously contested by Rabbi Abraham I. Karelitz, renowned as Hazon Ish. Assuming that the zebu differed markedly in its physical characteristics from other bovine species, Hazon Ish contended that no species can be accepted as kosher in the absence of a received tradition regarding its kashrut. In deference to Hazon Ish, the Israeli Chief Rabbinate declined to sanction the Madagascar source of supply and for decades nothing further was heard with regard to the matter.
That controversy erupted again shortly before Purim 5764 with a report that meat imported by Israel from South America is actually the meat either of the zebu itself or of hybrid cattle resulting from the crossbreeding of the zebu with other species. It has been alleged that virtually all of the Israeli kashrut authorities, including those of the glatt kosher market, were slaughtering such animals. That contention met with a wide range of reactions. Some kashrut authorities vehemently denied the charges and, in one case, published a document issued by a meat-processing company certifying that that particular company deals only in Hereford and Angus cattle. Others responded with a candid acknowledgement that they did indeed slaughter zebu and had been doing so for a considerable period of time. They contended either that they rely upon the opinion of the many authorities who disagree with Hazon Ish or that the zebu they import is not the same species banned by Hazon Ish. Indeed, one animal physiologist, Dr. Lawrence Shore, a member of the faculty of the Weizmann Institute of Science, has claimed that the animal of which Hazon Ish spoke was not the zebu but the bison. One writer has claimed that the "zebu" and the South American "cebu," the Spanish term for zebu, are, in actuality, the names of different species.
In the wake of those conflicting reports, Israel's preeminent halakhic decisor, Rabbi Joseph Shalom Eliashiv, convened an ad hoc committee and charged its members with investigating the factual basis of the allegations. In the interim, based upon a variety of considerations, he ruled that meat already on the market might be consumed but that no future slaughter of animals from the herds in question be undertaken pending clarification of the matter.
The primary anatomical distinction of the zebu is the presence of a hump-like protrusion behind the head on its shoulders.22In Koveẓ Iggerot Ḥazon Ish, III, no. 113, Ḥazon Ish refers to Rabbi Herzog’s report that the horns of the “Indian ox” are different from those of kosher ḥayyot. The various sources seen by this writer remarking upon the idiosyncratic hallmarks of the zebu fail to speak of distinctive horns.
Curiously, the biographers of Ḥazon Ish, Shlomoh Cohen, Pe’er ha-Dor, IV (Bnei Brak, 5733), 226, and Zevi Yavrov, Ma‘aseh Ish, I (Bnei Brak, 5759), 122, report that the animal prohibited by Ḥazon Ish had but one horn. Since the zebu has two horns either 1) the biographers were in error; 2) the animal in question was not the zebu; or 3) Ḥazon Ish was misinformed. In fact the term "zebu" connotes humped cattle. The origin of the zebu as a distinct species is traced to India. It was introduced into Brazil at a rather early date and resulted in the development of an Indo-Brazilian species. The animal is hardier than other breeds of cattle and, unlike some breeds, thrives in warm climates. The Brahman, perhaps world wide the most popular breed of cattle, is one of the major zebu breeds. Brahman have loose, saggy skin with sweat glands that enable them to sweat freely through the pores of the skin, an adaptation that contributes materially to heat tolerance. They are also capable of walking long distances to obtain water. Apparently, however, the meat of the zebu is rather tough and hence it is often bred with other species. Early American settlers found the zebu to have advantages lacking in the cattle they brought from Europe and so a gradual process of interbreeding occurred. If the claims of the International Association of Zebu Breeders are to be accepted, crossbreeding with the zebu is extremely prevalent.23See <a href="http://www.cowmans.com/izba.htm">http://www.cowmans.com/izba.htm</a>. If so, there are few cattle in either North or South America that can be presumed to be totally free of zebu ancestry, although in most cases the distinctive hump is no longer manifest. Indeed, Dr. Shore has asserted that, if Hazon Ish ate meat, he must have partaken of the meat of such animals because all meat available in Israel during his lifetime was derived from those hybrids. Hence Dr. Shore's contention that Hazon Ish was actually speaking of the bison.
The controversy has been widely reported in the Israeli ḥaredi press, including Yated Ne'eman, Yated ha-Shavu'a, 26 Adar 5764, pp. 21-24; Ha-Shavu'a be-Yerushalayim, 28 Adar 5764, pp. 16-17; Mishpaḥah, 18 Adar 5764, pp. 2-3 and 25 Adar 5764, pp. 2-16 and p. 26; Sha'ah Tovah, Parashat Ki Tissa, 5764, pp. 7-9 and Parashat Va-Yakhel-Pekudei, 5764, pp. 12-24 and pp. 64-67; Hadashot ba-Kehillah, 25 Adar 5764, pp. 34-37; Yated Ne'eman, Shabbat Kodesh, Parashat Va-Yikra, pp. 10-11; and Ha-Edah, Parashat Va-Yakhel-Pekudei, 5764, p. 10 as well as in the Jerusalem Post, March 19, 2004, p. 45. The halakhic sources are reviewed in detail by R. Pinchas Eliyahu Eisenthal in the newspaper published by the Belz community, Ha-Maḥaneh ha-Haredi, Parashat Va-Yakhel-Pekudei, 5764, pp. 36-37, and reprinted in its kashrut journal, Ha-Mehadrin, pp. 51-58.
The halakhic issues have already been examined in detail in conjunction with this writer's earlier discussion of the kashrut status of the giraffe and need only be briefly summarized. Rema, Yoreh De'ah 82:3, rules that the talmudic criteria that once served to distinguish the twenty-four scripturally identified forbidden birds and all others that are kosher can no longer be relied upon and hence no bird may be eaten unless there exists a received tradition with regard to its identity as a kosher species. Shakh, Yoreh De'ah 80:2, as understood by Hokhmat Adam 36:1; Arukh ha-Shulḥan, Yoreh De'ah 80:10; Erekh ha-Shulḥan, Yoreh De'ah 11:4-5; and Hazon Ish, Iggerot Hazon Ish, I, no. 99,24Reprinted in R. Isaac ha-Levi Herzog, Pesakim u-Ketavim, IV, Yoreh De‘ah, no. 21. Iggerot Hazon Ish, II, no. 73 and Iggerot Hazon Ish, III, no. 113,25Reprinted in Pesakim u-Ketavim, IV, no. 22. maintains that, despite the fact that Scripture explicitly spells out the identifying criteria of kosher four-legged animals, these animals also may not be consumed in the absence of a tradition with regard to the kashrut of the species. Pri Megadim, Siftei Da'at 80:1, however, understands Shakh's comment as limited to the need for a tradition establishing that a particular species is a ḥayyah rather than a behemah.26There is a similar ambiguity inherent in the comment of Ibn Ezra, Deuteronomy 14:5. Ibn Ezra notes that there are a total of seven species of kosher ḥayyot of which “the sheep and the deer are known; the five remaining species require a tradition.” In all likelihood, Ibn Ezra intends to indicate—as does Shakh—that a mesorah is necessary in order to establish the kashrut of the species as one of the remaining five kosher ḥayyot. Ibn Ezra’s words, however, might be construed as indicating only the requirement of a tradition to the effect that the animal in question is a ḥayyah rather than a behemah. The primary difference is that the ḥelev, i.e., the fatty portions of the hindquarters of a behemah, are forbidden while those of a ḥayyah are not. According to Pri Megadim, no tradition is necessary to establish the fundamental kashrut of an animal having split hoofs. Pri Megadim's understanding of Shakh is accepted, inter alia, by Kaf ha-Hayyim, Yoreh De'ah 80:5, Bet Yizḥak, Amudei Zahav 80:3, and, more recently, by R. Samuel Ha-Levi Woszner, Teshuvot Shevet ha-Levi, X, no. 114.27R. Isaac ha-Levi Herzog clearly differed with Ḥazon Ish regarding this matter. Unfortunately, only a fragment of this responsum is extant and appears in Pesakim u-Ketavim, IV, Yoreh De‘ah, no. 20. The controversy, of course, is of no relevance to Sephardim who follow the views of Shulḥan Arukh and do not accept Rema's stringency even with regard to birds.
As this writer has previously noted, the identical issue surrounds acceptance of the American buffalo as a kosher animal. The American "buffalo" is not at all a buffalo but a bison indigenous to the North American continent with regard to which, unlike the European buffalo, there is no tradition.28See supra, note 14. The subject of Rabbi Woszner's responsum is, in fact, the bison rather than the zebu. As noted earlier, Dr. Shore has also pointed out that bison are much more dissimilar to cattle than are the zebu.
It may also be noted that Hazon Ish was somewhat less than absolute in his assertion that a zebu requires an independent tradition of kashrut. Hazon Ish's hesitation was based on the fact that he did not examine a zebu and hence was somewhat unsure of whether its characteristics differ sufficiently from other species of cattle to trigger that requirement.29In responding to a second letter sent to him by Rabbi Herzog, in which Rabbi Herzog apparently argued that the zebu did not possess distinctive characteristics of material significance, Ḥazon Ish, Koveẓ Iggerot Ḥazon Ish, III, no. 113, referring to Rabbi Herzog’s original letter writes: “There was no discussion in the [first] letter of whether the distinctiveness of the ox is sufficient to create doubt that it may be a species other than the common ox; rather, it was determined that one must treat this as a new species that has come before us.” That question can also be raised with regard to other species such as elk, antelope and bison as well.
One further point should be noted. It is evident from Kovez Iggerot Hazon Ish, III, no. 113, that, in his second letter to Hazon Ish, Rabbi Herzog claimed that there was a mesorah or tradition with regard to the kashrut of the animal in question in the locale from which it was to be imported. Hazon Ish responded to that assertion with the observation that the mesorah of one country is of no avail in another country. Thus, Hazon Ish's concern was only with regard to importing the "Indian ox" to Israel. Accordingly, in countries in which the local zebu were accepted as kosher before dissemination of the comment of Shakh, it is certainly arguable that consumption of the meat of the zebu presents no problem even according to Hazon Ish.