The Challenge of Eagles and Hoopoes

There's a Torah-science challenge that you've never heard of. In fact, I think that nobody has ever thought of it before. But it's been bothering me for years. In this post, I will discuss it, and suggest a path towards reconciling with it. 

The laws of kashrut that were introduced in Parashat Shemini are repeated in this week's parasha, Re'ay. With land animals, we are given signs for identifying kosher animals - a system that we can use thousands of years later to identify newly discovered species such as okapis as being kosher. With fish, we are likewise given signs, which we can easily utilize to identify kosher fish at markets anywhere in the world. Even with insects, while it is a a little more complicated, there can be absolutely no doubt that the desert locust (which happens to be 99.99% of all locusts you'll ever see swarming in the region of Israel) is one of the kosher species mentioned in the Torah. 

But with birds... it's a whole different matter.

The Torah does not give signs via which to distinguish kosher from non-kosher birds. It just lists the names of the birds that are non-kosher. And this is a problem.

I've spent a quarter of a century working at identifying the creatures of the Torah. In some cases, one can reach 100% certainty, such as with the shafan being the hyrax. This is based on a convergence of evidence from many different areas - primarily identifying clues given in other locations in Tanach, but also comparative linguistics, evidence from other ancient sources, the ability to rule out alternate possibilities, and so on. But in other cases, one cannot be so sure. The yachmor is either the fallow deer or the hartebeest, but it's difficult to be certain which it is. Still, it makes no halachic difference, since with mammals we can rely on kosher signs.

But it's a problem with birds, since the Torah doesn't give any signs. It only gives names, and it's very difficult to know which birds are being referred to. I've served as consultant on this matter for ArtScroll and Koren and Chabad and Steinsaltz (the new Steinsaltz Chumash contains probably the best discussion of the matter), but while it's possible to achieve certainty or near-certainty for some of the birds, with others one cannot be anywhere near certain. We set up an exhibit of all the non-kosher birds in the Hall of Kosher Classification at the new Biblical Museum of Natural History, but as we explain to our visitors, we are far from certain as to the true identities of all the birds. The hoopoe is the popular and strongest candidate for the duchifat, but there is very little to go on. And as for birds such as the tachmos, there are many different suggestions, none of which are anything more than guesses.  

And there are all kinds of related difficulties. Since the nesher is undoubtedly the griffin vulture, where does the eagle appear on the list of non-kosher birds - is it the ayah, or is nesher a generic term that also includes eagles? Why is the ayit that descended on the carcasses of the Brit Bein HaBetarim not in the list of non-kosher birds - is it a synonym for another type, is it a generic name for scavenging birds, or is there some other explanation?

Even more problematically, the list of non-kosher birds in Re'ay is not the same as the list in Shemini! Now, the Gemara in Chullin addresses this, and argues that Moshe gave different names to some of the birds due to differences in what some people called them. But this just begs the question - if the Torah accommodated past name changes, what about future name changes?

The fact is that if you want to refer to an animal for an audience spanning different times and places, the absolute worst way to identify it is by its name. Because different places and different times have different animals. And consequently, names get transposed. 

The animal known today as a red deer in England is called an elk in America. But the word elk in England refers to the animal that Americans call a moose. 

Americans buy pet turtles. In England, a turtle is a sea-dwelling creature that reaches a yard in length; the reptiles that Americans buy are called tortoises (if they are terrestrial) or terrapins (if they live in lakes and rivers).

The American turkey vulture is also often called a buzzard. But in every other part of the world, "buzzard" refers to a very different bird of prey, of the Buteo family. Yet these birds are called hawks in America. Whereas "hawk" elsewhere refers strictly to birds in the Accipitridae family.

Now, the problem of identifying the birds of the Torah's list is not a new one. Consequently, the Tanna'im studied the kosher and non-kosher birds and identified a combination of characteristics which can be used to identify which birds can be eaten. (Unfortunately, it is very difficult to correlate this system with our knowledge of birds Still, most Rishonim are of the view that it can be implemented, though the stringent view that a tradition is required has recently become widely accepted.) But while previous generations grappled with the difficulty of identifying birds, they didn't discuss the inherent problem with the concept of the dietary laws being based on rules that would be destined to become incomprehensible.

Someone from the mystical school of thought might claim that the problem is just due to our limitations. The very first thing that man did in the world was to name the animals, and from the mystical perspective, this means that Adam was able to divine the fundamental nature of each animal and give it a perfectly appropriate name in the Holy Language which exactly expresses its essence. Accordingly, the Torah's listing of non-kosher birds is in fact a perfect way of describing them. But in fact, this is not much of a solution. None other than ArtScroll says that none other than some of Chazal themselves had difficulties identifying the birds. If identifying birds by means of kabbalistic powers is too much even for Chazal, then what chance does everyone else have?

All of this forces one to the conclusion that the Torah's way of identifying kosher from non-kosher birds is very limited in application. It cannot and could not possibly stand the movements of the Jewish People over the world and over history. And, if one believes that God authored the Torah, one must therefore also believe that God knew this. Yet He nevertheless gave a system that would prove impossible to implement after a few centuries.

So what is a believer supposed to do with that? Actually, it's not necessarily as a big a problem as it might first appear. But it might require some adjustment in one's conception of Torah.

Being an Orthodox Jew means accepting that the Torah is binding in all times and in all places. And yet, it has long been acknowledged (at least by the more rationalistically-inclined rabbinic authorities) that the presentation of Torah was oriented towards the generation that received it. (This is a topic that I discussed in detail in my book The Challenge Of Creation.) As Rambam puts it, "the Torah spoke in the language of man" - i.e. the people that first received the Torah. Rav Hirsch notes that the Torah's description of the "firmament" as a solid dome was in accordance with the conception of the universe held by people at that time. The same approach is necessary with numerous other scientifically-inaccurate statements in the Torah.

Rambam and others go even further than just saying that the Torah packaged its description of the universe in terms familiar to the generation that received it. They say that even certain commandments were primarily oriented to that generation. Naturally, this leads to a concern that later generations will abandon their observance, which is one reason why Rambam's advancement of this argument regarding offerings aroused much controversy. Still, he advanced it nonetheless, and there can be many other arguments for adhering to observing a commandment even if the primary original reason no longer applies.

And so the Torah's presentation of the laws of kosher birds is no different. For the generation that received the Torah, that was the most effective way of teaching them which birds may and may not be eaten. Yes, it's not a system that would withstand the later movements of the Jewish People through space and time. But then again, nor would all the laws which are dependent on living in the Promised Land!

It's also important to note that, in practice, the Torah's system for identifying kosher birds has not been problematic. Birds that were commonly available and farmed - chickens, ducks, and geese - were accepted without a problem. So were other commonly eaten birds, such as quail, guinea fowl, pheasants, and sparrows. Even turkey managed to get accepted before the Jewish community took on a more stringent approach to the dietary laws. For a variety of reasons too complicated to discuss here, it's safe to predict that there will never be any new species of bird to be commercially farmed.

It's true that recently things have taken a turn for the worse. Misunderstandings of both zoology and Talmudic natural history have lead many to believe that even some breeds of chicken may not be eaten. During the infamous Chicken Wars of 2017, it was claimed that all commercially available chickens are not kosher. Still, hopefully it will be possible to correct this error (my monograph on this topic is available in both English and Hebrew). I'm very much hoping that the Biblical Museum of Natural History, through its exhibits and publications, will successfully teach people that the laws of kashrus are both sensible and practical. The questions and difficulties are in the realm of fascinating theoretical and academic discussions - in practice, there is no shortage of birds to eat.

Nevertheless, as the global population increases, it will make more economic sense to obtain protein from insects. Food scientists have recognized this for years and are working to bring insects into the food market. Thank God, the Torah is future-proofed, and locusts are kosher!

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