Parashat Re'eh

Traditions and Counter-Traditions

Dealing with disagreements in interpretation of the law

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Provided by the Jewish Theological Seminary, a Conservative rabbinical seminary and university of Jewish studies.

This week's Parashah, Re'eh, contains a wonderful juxtaposition of mitzvot, which, when taken together, provide an insight into how Jews deal with novel situations and the disagreements that arise from them, and also allows me to share a peculiarity of my own family history. One of the commandments which the Jewish people have found most difficult to follow in practice is found in Deuteronomy 14:1: "lo titgodedu." The plain sense of the verse is "You should not gash yourselves... because of the dead." One must avoid pagan mourning customs that include self-mutilation. The rabbinic interpretation of the verse, however, is that Jews should not form themselves into multiple subgroups "agudot agudot" (B. Yevamot 13b) each following a different understanding of the law. Therefore, there should not be two Jewish courts in one city, one permitting a particular practice, the other forbidding it.

All of this brings us to the humble turkey. For most families, disagreements over turkey fall into simple categories like who gets the drumstick, the lumpiness of the gravy, or whose parents to go to for Thanksgiving. For my family, (and the Jewish family as a whole, really) the issues are weightier than one might expect.

Kosher Animals

The next verses of Deuteronomy 14 take as their main theme the laws of kosher animals. These laws have already been stated in Leviticus, but take on new relevance in Deuteronomy as the Israelites are about to enter the land of Israel and will now be permitted to eat meat more freely than they could in the desert (Deuteronomy 12:20).

For certain types of animals, the Bible provides specific examples and criteria. For instance, Deuteronomy 14:4-5 lists the kosher land mammals, and goes on to explain that they must chew their cud and have split hooves. Just to be sure, the text also lists those animals like the pig and the camel that one might mistakenly believe to be kosher because they have one of these characteristics and not the other. Kosher fish are not listed by name, but must have fins and scales. Therefore, if one were to encounter a new species of fish or mammal, one could usually tell by simple examination whether the species is kosher or not.

The situation with birds is more complicated. The Bible says (Deuteronomy 14:11) "You may eat any clean bird." One might then expect a set of characteristics, or a list of species, but in fact the Bible does not provide any way to identify an edible bird. Instead, it goes on to list 20 specific types and families of non-kosher birds, plus the bat for good measure, expanded to 24 non-kosher birds in total in accordance with rabbinic interpretation of the phrase "and their kind."

This particular presentation of the law leaves many open questions. Does that mean that all other birds are to be considered kosher? Given the vagaries of the biblical language and ancient ornithology, how can we be absolutely sure that a particular bird is not in fact a member of one of the non-kosher families?

The sages of the Mishnah (M. Hullin 3:6), presented with new birds that were unfamiliar to their ancestors, listed four criteria for making these determinations. To confirm kosher status, birds must have certain physiological features: an extra toe, a crop and a gizzard which is easy to peel. There is also a behavioral criterion, namely that kosher birds may not be dores (display certain types of predatory behavior).

Some sages, like Rashi, were concerned that these criteria were insufficient. There had been incidents, even going back to the days of the Talmud (B. Hullin 62b) where people had encountered a new type of bird, and assumed it was kosher based on the first three criteria. It was only after some time had passed that they realized that the bird was a predator and therefore not kosher. Rashi and others who followed him therefore decreed that only birds for which there was a masoret (an unbroken, reliable tradition) could be considered kosher, and any new birds subsequently discovered would be considered off limits.

Turkey in Europe

Fast-forward to the 1500s, as the turkey, which was native to the Americas, was first brought back to Europe by the early explorers of the New World. Would this new bird, never before seen by Europeans, be accepted as kosher? Eventually, the majority of European Jews did accept it, but the process by which this acceptance came about is unclear.

For indeed, while many sages of that era used the four signs enumerated by the sages of the Mishnah, some of the most prominent rabbis of the period, including Rabbi Moses Isserles, (Mapah on Shulhan Arukh YD82:3) were firmly in Rashi's camp, and rejected the possibility of any new birds being kosher. And yet, neither he nor his contemporaries mentioned this particular new bird by name.

By the time the turkey appeared in Jewish legal literature, in the 1700s, the issue had more-or-less been decided, with only a few vociferous holdouts. In fact, according to the United States Department of Agriculture's 2001 statistics, Israelis now eat more turkey per capita than residents of any other country in the world!

The question is of personal interest for me as well. Rabbi Yom-Tov Lippman Heller (1579-1654), was a prominent sage in the generation after Isserles. He is best-known for his commentary on the Mishnah called the Tosafot Yom-Tov, and is often referred to by the name of his book, rather than his given name. Many of his descendants hold fast to a family tradition that he was among the early sages who declared the turkey to be non-kosher. Indeed, I have distant cousins who to this day satisfy their Thanksgiving obligations with a brisket and a chocolate turkey.

The tradition relates that my ancestor realized that he would be outvoted by majority practice, but felt so strongly that he was in the right that he instructed his family to retain a higher standard. However, my own branch of the family has a counter-tradition rejecting this practice. I have searched my ancestor's writings on the topic of unkosher birds, and though he follows the rulings of Rashi and Isserles, he too never refers to the bird by name.

If he felt strongly enough about this issue to command his descendants, why did he not include any of the Hebrew names for turkey in his writings? Is it possible that, as my father said, passing down the family lore along with the cranberry sauce, that the family tradition is a hoax and "The Tosafot Yom Tov never even saw a turkey"?

I therefore face an unusual November dilemma every year. Do I follow a more general family tradition, which is at variance with conventional Jewish practice, or follow instead the counter-tradition passed down from my own branch of the Heller clan, which is to disregard that restriction? Perhaps, in addition to meat, milk and Passover dishes, I need to purchase a fifth set just for Thanksgiving? Or do I just give up and go to my in-laws?

This tale of the turkey is more than just an amusing footnote in the annals of Jewish law and a quirk in my family tree. It also raises some important questions about how we, as Jews, grapple with disagreements over law. Historically, the commandment of "Lo titgodedu" (do not divide into rival groups) has been observed primarily in the breach.

In every era, groups of Jews who were equally committed to the vitality and continuity of Jewish life, have disagreed over matters of religious practice. This includes the Babylonians and Jews from the land of Israel, Ashkenazim and Sephardim, Hassidim and their opponents, and now the various movements and even competing groups within them.

In some cases (for instance, eating corn and rice on Passover, or the observance of one day of yom tov in the land of Israel, and two days in the Diaspora), the differences in practice have themselves been codified, so that an individual who normally follows one ruling would know what to do when spending time in a community that followed different practices.

In many other cases, from the completely trivial to the most essential, Jews have not been able to reach consensus on common practices and principles. The process of creating an environment where Jews from different backgrounds can even eat together, let alone pray together, can sometimes be daunting. Some may feel, like the Tosafot Yom Tov, that we cannot accept a particular practice or opinion nor follow it, even though it has become generally accepted practice. Such situations have a way of resolving themselves over time. One variant, whether the permissive one or the restrictive one, becomes the norm, while the other is ultimately discarded, or else the tradition will eventually incorporate both alternatives and mediate between those who accept each.

It is vital, though, in the interim, that Jews retain the ability to "talk turkey" with those who observe differently, so that we remain one people, more than the sum of our parts, rather than disconnected sects, "agudot agudot."

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Rabbi Joshua Heller

Rabbi Joshua Heller is the rabbi at Congregation B'nai Torah in Atlanta, GA. Previous to that, he served as director of the Distance Learning Program at the Jewish Theological Seminary.