Rav Chaim Loike is a rabbinic coordinator at the Orthodox Union. He is one of the world's leading authorities on the Kashrut of birds. Kol Torah is honored to present Rav Loike’s response to Torah Academy of Bergen County student Dovid Fertig’s question to Rav Loike regarding the Kashrut of penguins.
Editor’s Introduction (excerpted from an essay authored by Rav Dr. Ari Zivotofsky that was published in the Journal of Halacha and Contemporary Society)
For the purpose of identifying kosher animals, the Shulchan Aruch (Yoreh De'ah 79, 82, 83 and 85), based on Lev. 11:1-27 and Deut. 14:3-20, divides the animal kingdom into four categories. 1 These are: terrestrial mammalian quadrupeds, birds, fish, and invertebrates. 2 In general, the Torah specifies the features characterize a kosher species. For example, among the mammalian quadrupeds, an animal is kosher if it both chews its cud (ma'alay gara) and has fully split hooves (mafreset parsah v'shosa'at shesa prasot). In many cases the talmudic sages clarified, elaborated, embellished and added to the indicators, and these are often recorded as normative halacha in the Shulchan Aruch.
Birds are categorically different from the other three classes in that the Torah offers no identifying features to distinguish the kosher from the non-kosher species. The Torah simply provides a listing of those birds that are not kosher. An even score of species are listed and after several of them "and its species" is stated, for a total of 24 non-kosher species. By inference, all of the other, vast number of bird species, are kosher. Thus, for Moshe Rabbenu, or any expert ornithologist who is able to correctly identify the 24 listed species, things are relatively straightforward - all other birds are kosher. However, today when these can no longer be accurately identified, things are quite a bit more complicated.
The rabbis, cognizant that not everyone is familiar with all of the non-kosher species enumerated in the Torah, provided the following four identifying features to help categorize birds. The Mishnah (Chullin 3:6) states "every bird that is 1) dores ("a predator") is not kosher. Every bird that has 2) an extra toe, 3) a zefek (crop - ingluvius, the biblical more'eh, e.g. Lev 1:16), and 4) a korkuvan (gizzard, "pupik" in Yiddish) that can be peeled, is kosher."
The definition of a dores (predatory species) is the subject of a major debate. With all the debate, what is the normative halacha? The Rama (YD 82:3), the principal authority for all Ashkenazic lands, follows the lead of Rashi and the Levush and rules that the only applicable principle as far as he is concerned is that "no bird should be eaten unless there is a Mesorah (ancient tradition) that it is a kosher species (meaning that it is not one of the 24 forbidden birds listed in the Torah)."
Dovid Fertig’s Question
Dear Rav Loike,
My name is Dovid Fertig, and I attend Torah Academy of Bergen County. In my Chumash class the other day, my Rebbe (Rabbi Chaim Jachter) showed us your video (produced by the Orthodox Union) on how to identify kosher birds. Someone in my class brought up the interesting question of whether or not penguins qualify as a kosher bird. According to the Rishonim such as the Rambam that you cite in your video, it may be a kosher bird since it is not defined as a predator as it does not bring food to its mouth in a claw (in the manner of a predator). In addition, their webbed feet, much like a duck’s, are not capable of attacking. Even though we won’t be eating one, we are still interested to know. Thank you!
Rav Loike’s Response
This is an excellent question. It is clear that you learned from my video, and I thank you for the opportunity to teach Torah to you and your class.
Penguins are very interesting. The Talmud (Chulin 139) differentiates between the classifications of avian creatures; this classification does not follow scientific speciation. While zoologically the penguins are birds, from a biblical perspective it is possible to question their status. In BeReishit Perek 1 Pasuk 22, birds are described as, “VeHaOf Yirev BaAretz,” “And the bird will multiply on the ground.” Many penguins breed only on ice shelves of the Antarctic. If a creature lives its life at sea and breeds on ice, can it be considered a creature that is “Yirev BaAretz,” “multiplies on the land?” If it is not a creature which multiplies on land, would this preclude it from being a bird? A bird is also defined in BeReishit Perek 1 Pasuk 20 as “VeOf Ye’ofeif Al HaAretz Al Penei Reki’a HaShamayim,” “And the bird will fly on the land in the air of the sky." Penguins do not fly at all and, more importantly, lack the vestiges of the power to fly. Even flightless birds like ostriches, which are biblically forbidden (VaYikra 11:16) are able to flap their wings to gain momentum to move over land faster. Penguins use their flippers for balance, but hardly in any wing-like capacity. Anatomically, penguins are very different than most other birds and neither of the two biblical definitions of birds applies to the penguin. As such, can this creature be considered a bird?
Even if the penguin is a bird, the Talmud (Chullin 59) discusses the kosher signs of birds. I have not been able to thoroughly research the penguins, but those I saw did not seem to have an extra toe; kosher birds have an extra toe. You might be correct that the penguin is not predatory, yet we would still need to research if they have a kosher gizzard and crop, and then find penguins with an extra toe. The tradition among the Ashkenaz community (Rema Yoreh Dei’ah 82:3) is to only eat a bird which has a Mesorah of Kashrut and none exists for the penguin. Nonetheless, if we could clarify the kosher status of the penguin on the biblical level, we might merit to accomplish Shilu’ach HaKein (shooing away the mother bird before taking its young; this Mitzvah may be fulfilled only with a kosher bird), if we ever go to the Antarctic.
All the best,
Rabbi Chaim Loike