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Can you serve humanity on your kosher china?

22 April 2009

Every once in a while, I am in a conversation where an obscure issue of kashrut comes up. I refer to the delicacy that our earliest rabbis refer to (when they must) as basar me-holchei shtayim, “biped meat”. At first glance, this seems like a simple question to answer, because as we read last Shabbat:

scan of Leviticus [Hebrew] Speak to the Israelite people thus: These are the creatures that you may eat from among all the land animals: any animal that has true hoofs, with clefts through the hoofs, and that chews the cud—such you may eat. The following, however, of those that either chew the cud or have true hoofs, you shall not eat: the camel—although it chews the cud, it has no true hoofs: it is unclean for you… [Leviticus 11:2-4, NJPS]

[N.B.: I’m going to follow the NJPS’s lead in the rest of this essay, and translate tahor as “clean” as tamei as “unclean”, even though they’re really technical legal terms that have nothing to do with hygeine.]

People have no hoofs, therefore they’re not kosher. Case closed, right?

But wait! The oral tradition reads the text closely and expounds:

scan from Torat Cohanim [Hebrew] You might think that even biped meat and biped milk are covered by the prohibition against eating [non-kosher animals]; isn’t it logical? Since, regarding a [non-kosher] land animal, the rules for its abstention [see below] are lenient but the rules for its milk are strict [such milk is not kosher], then regarding a biped, where the rules for its abstention are strict, shouldn’t the rules for its milk be strict? [To forestall such an interpretation,] Scripture teaches: “this” [in Leviticus 11:29, “this shall be unclean for you”]: this is unclean, but the milk of a biped is not unclean. Suppose I exclude the milk, which not apply to all [i.e., males don’t produce it], but I do not exclude the flesh, which applies to all. Scripture teaches: “the following … is unclean” [in 11:4 above]: the following are included in the prohibition against eating, but the meat and milk of a biped are not included in the prohibition against eating. [Torat Cohanim, Shemini 4:4]

scan from Mishnah Bechorot [Hebrew] (The stuff about “abstention” refers to other ritual-purity laws. For example, if you touch a live human being who is in a state of ritual impurity, you become ritually impure yourself; the laws are much more lenient regarding touching a non-kosher animal.)

The prohibition against eating non-kosher animal species does not apply to human meat; therefore, it’s kosher. Case closed, right?

But wait! Torat Cohanim was making a very narrow point: this particular negative commandment of the Torah is not infringed when you eat your neighbor. The text doesn’t explicitly say it’s allowed. So we have to dig deeper.

The Mishnah, discussing such cases as a donkey giving birth to a cow, mentions an important principle:

…what comes from something unclean is unclean, and what comes from something clean is clean. [Bechorot 1:2]

Judging from what Nachmanides says below, this is the source for the principle that milk from kosher animal species is kosher, and milk from other species is forbidden. So… Jewish mothers can breastfeed, which implies that their milk is kosher, which implies that their meat is kosher… right? Maybe.

Let’s turn for a moment from breastfeeding to vampirism. The Gemara says:

scan from tractate Keritut [Hebrew and Aramaic] From “you shall not eat any blood…” [Leviticus 7:26] I would learn that even biped blood, egg blood, kosher-grasshopper blood, and fish blood were all included. Scripture teaches: “…of fowl or land animal”. Just as fowl and land animals are distinguished, because they have both lenient and severe uncleanliness and they have prohibitions and permissions [Rashi: they are prohibited from being eaten before they are properly slaughtered, and permitted afterward], and they are in the category of meat, so to with anything that has lenient uncleanliness. I exclude biped blood because [a biped] has severe uncleanliness but not lenient uncleanliness. [Keritut 20b]

On the other hand, the Tosefta says:

scan from Tosefta Keritut [Hebrew] …Biped blood and egg blood and insect blood are forbidden, but one is not punished for it. Fish blood and kosher-grasshopper blood are permitted. [Tosefta Keritut 2:12]

Another Gemara harmonizes these sources and quotes something resembling our Torat Cohanim excerpt above and lays down the law for both infants and vampires.

scan from tractate Ketubot [Hebrew and Aramaic] The Rabbis taught:

One keeps nursing a baby up to twenty-four months; from then on, it is like nursing a lizard—says Rabbi Eliezer. Rabbi Yehoshua says: even four or five years; if he weans after twenty-four months and goes back, then it is like nursing a lizard. The Master says: from then on [after age five?], it’s like nursing a lizard.
You might think that biped milk is unclean; isn’t it logical? Since, regarding a land animal, where the rules for its abstention are lenient but the rules for its milk are strict, then regarding a human, where the rules for abstention are strict, isn’t it logical that the rules for its milk be strict? Scripture teaches: “…the camel, although it chews the cud… it is unclean for you”—it is unclean, but the milk of bipeds is not unclean, but rather, clean. Possibly I should exclude the milk, which is not the same for everyone [the kashrut of the milk depends on the species that produced it], but I should not exclude the blood, which is the same for everyone [the blood of any land animal, even a kosher species, is forbidden]. Scripture teaches: “it”—it is unclean, but biped blood is not unclean, but rather, clean. And Rav Sheishet said: There is not even a [rabbinic] commandment to separate from it.
There is no contradiction: this [human milk being clean] is when it is separated [from the body] and that [“like nursing a lizard”] is when it is not separated. And with blood, it’s the reverse, as we learn from a Baraita: Blood that is on the surface of a piece of bread [because someone with bleeding gums bit into it]—he scrapes it and eats it [the unbloody part], and sucks what is between his teeth, and we are not concerned. [Ketubot 60a; see also Keritut 21b-22a]

So for milk and blood, the Gemara learns that there is a distinction between drinking it directly from the source and drinking it from a cup; it’s only OK to drink blood from the source and only OK, once you’re beyond nursing age, to drink milk from a cup. (My wife pointed out that from the same pre-Gemara sources, one could argue that it’s OK to drink your own blood but not anyone else’s. I’m not sure why the Gemara didn’t interpret the sources that way.) But somehow, amid all the discussion of milk and blood, the question of meat has been lost. To recover it, we must jump forward to the medieval sources.

Rabbeinu Asher (the “Rosh”), in his commentary on the above Gemara, opines:

scan from Rosh's commentary on tractate Ketubot [Hebrew] Blood on the surface of a piece of bread—he scrapes it and eats it, because it could be confused with other blood, because it is separated. For what is between his teeth, he sucks it and swallows it; biped blood is permitted. The reverse is true of milk; if it is not separated, it is forbidden, because one might come to confuse it with the milk of an unclean land animal; but separated, it is permitted. And so it seems with biped meat: to bite it off and eat it is forbidden, because one might come to confuse it with the meat of an unclean land animal, because this is not the way of eating it; perhaps its uncleanliness changes [translation uncertain]; but separated, it is permitted. [Rosh s.v. Ketubot 60a]

The Rosh explains the rules for human blood and milk as a matter of marit ayin. If I were seen to drink human milk directly from a woman’s breast, an observer might think that it’s also OK to drink the milk of a non-kosher animal, as long as one does so in this unusual fashion. To prevent this, the rabbis forbade adults to drink milk from the breast, but human milk from a cup is still OK. He then extrapolates to meat. If I go all Mike Tyson on my neighbor, bite off his earlobe, and swallow, an observer might think that it’s OK to do the same to a pig’s ear. But if I have a slice of “long pig” from a deli plate, no similar confusion would occur.

Maimonides, however, takes a completely different approach.

scan from Maimonides, Mishnah Torah [Hebrew] A human, even though it is said regarding him “…and the human became a living (chayyah) soul”, is not included among the species of wild animal (chayyah) that are food. Therefore, it is not covered by the prohibition [against eating non-kosher animals]. And one who eats human meat or milk, whether from the living or from the dead, is not flogged. But it is forbidden by a positive commandment, because behold, Scripture counts seven species of wild animal and says “these are the wild animals that you may eat”; behold, everything outside of them you shall not eat, and a prohibition classified as a positive commandment is [punished as a] positive commandment. [Mishnah Torah, Hilchot Ma’achalot Asurot 2:3]

What does the last part, “forbidden by a positive commandment”, mean? The default punishment for a physical action (as opposed to, say, speech) violating a prohibition of the Torah is flogging, but by default there is no punishment for failing to observe a mandate of the Torah. Even though “don’t eat human flesh” sounds a lot like a prohibition, Maimonides is classifying it among the positive commandments, as an implication of “only eat animals from the following species”. So if your plane goes down in the Andes and you, on the brink of starvation, have to choose between eating a pork chop from the galley or one of your dead fellow-passengers, you could make an argument that it’s better to forego the pork chop. (You could also make an argument that eating people is so self-evidently disgusting that God didn’t need to explicitly forbid it.)

Nachmanides, in his commentary on last week’s parsha, argues against Maimonides:

scan from Nachmanides' commentary on the Torah [Hebrew] The teacher Rabbi Moshe says that this is to exclude human flesh… but the matter is not so, because the Sages explicitly permitted biped blood and biped milk, so there is not even a rabbinic commandment to separate from it. And if its meat were forbidden, what comes from something unclean is unclean, and the Sages excluded insect blood and human blood from the prohibition against blood, and they said “the blood of an insect is like its meat” and one is flogged for it on account of its insect-ness and not on account of its blood-ness, and they made it like meat. But what they said—that eating [human flesh] is not covered by the prohibition—is to say that they are not excluding it [from the list of permitted meats] and they are permitting it. But according to my opinion this is meat from someone alive, but regarding a corpse, we learn by a textual similarity from the law of the heifer whose neck is broken that we are forbidden to derive benefit from it. [Nachmanides s.v. Leviticus 11:3]

Nachmanides makes the inference from Torat Cohanim that we were afraid to make earlier: if the prohibition against eating from non-kosher animals does not apply to human meat, then human meat must be permitted. But he points out that there is a completely separate commandment against deriving benefit from a human corpse. So if some poor fellow died to provide our deli plate, Nachmanides and Maimonides would forbid the meat, even though the Rosh would permit it. Meat à la Mike Tyson is kosher according to Nachmanides, even though both Maimonides and the Rosh forbid it. And placenta stew is OK according to both the Rosh and Nachmanides, even though Maimonides forbids it.

How do we resolve this three-way split? There’s a very long Nimukei Yosef on Ketubot 60a, evaluating all of the above interpretations, that is beyond my translation skills, although Gil Student might be summarizing it here. (He also brings down a fourth opinion, from the Ritva and the Re’ah: that since the Torah never explicitly permitted eating human meat, as it did for the meat of animals, it must be forbidden and punishable by flogging.)

Rabbi Yosef Karo, curiously enough, does not address the question of human meat in either the Shulchan Aruch or its longer predecessor, the Beit Yosef. But the Rema, in his emendations, says:

scan from Shulchan Aruch [Hebrew] Eating human flesh is forbidden by the Torah. [Shulchan Aruch, Yoreh Deah 79:1]

The Shach, commenting on this line, says that if the meat comes from a live human it’s forbidden according to Maimonides’ logic, and if it comes from a corpse then it’s forbidden according to Nachmanides.

So the bottom line is: if you’re Ashkenazi, anthropophagy is strictly forbidden, although placenta stew might be less strictly forbidden than pork. If you’re Sephardi, consult your rabbi.

Based on a tikkun leil Shavuot talk that I gave in 5760 [2000]. Images are scanned from my handout at that talk. I apologize to the non-visual readers for not having accessible transcripts of the Hebrew and Aramaic texts, and I apologize to the excessively visual readers for leaving some of the images tilted.