Introduction
This
week we will explore Rav Yosef Dov Soloveitchik’s position
regarding the contemporary applicability of the Rabbinic prohibition to
consume milk that was milked by a non-Jew and not supervised by a
Jew. Indeed a question that is often debated in the Orthodox
community is whether or not one may drink packaged milk that is not
under Rabbinic supervision. We will present the view of Rav
Yosef Dov Soloveitchik as heard from one of his leading students, Rav
Menachem Genack. It is vitally important to note that we will
address the issue in accordance with the facts that pertain in this
country. In many countries, however, it is forbidden to
consume unsupervised milk according to all authorities. I
have heard that these countries include Spain, Portugal, Poland, and
other Eastern Europe countries where milk from non-Kosher animals is
commonly available. This information is liable to change and
a Rav should be consulted.
Rav
Soloveitchik's Three Considerations for Leniency
It
is well known among Rav Soloveitchik's students that the Rav when he
resided in the United States drank packaged milk that did not have any
special Rabbinic supervision. Rav Genack mentioned in a Shiur
at Yeshiva University that the Rav told him that there exist three
considerations to be lenient. First, if no non-Kosher animals
are found in the herd of animals that is being milked (“Ein
Bedro Tamei”) some authorities rule leniently.
Second, we may rely on the government (USDA) supervision and
inspections to insure that the milk we consume is from cows. Finally,
the rabbinic edict forbidden drinking milk from an animal that was
milked by a non-Jew technically does not apply today since the cows are
milked by machines. It is interesting to note that a great
Israeli authority, Rav Zvi Pesach Frank, permitted drinking powdered
milk imported from the United States based on somewhat similar
considerations (Teshuvot Har Zvi, Yoreh Deah 103-104).
Ein
Biedro Tamei
Let us explore these
issues through the Gemara, Rishonim, and Acharonim. The
Mishnah (Avodah Zarah 35b) records that Chazal forbade consuming milk
from a Kosher animal that was milked by a non-Jew without (observant)
Jewish supervision. The Gemara explains that this was enacted
because of concerns that the non-Jew may have mixed non-Kosher milk
with the Kosher milk. Rishonim and Acharonim, however, debate
if this prohibition applies even if the non-Jew has no non-Kosher
animals in his herd (see Mordechai Avodah Zara 826, Teshuvot Radbaz
4:1147, and S’mak 123). Some authorities are
lenient only if, in an entire locale, non-Kosher animals are not
milked. The later Acharonim are divided regarding how to
resolve this issue. Pri Chadash (Y.D. 115:6) and Chazon Ish
(Y.D. 41:4) rule leniently, whereas Aruch Hashulchan (Y.D. 115:5),
Chochmat Adam (67:1), and Chatam Sofer (Y.D. 107, cited in the Pitchei
Teshuva Y.D. 115:3), rule strictly. The latter three
authorities note that the custom among Eastern and Central European
Jews was to rule strictly regarding this question. The Darkei
Teshuva (115:6) quotes that the custom in Eretz Yisrael was also to be
strict about this matter. The Pri Chadash, though, records
that the custom in Amsterdam was to be lenient. For further
sources on this hotly debated issue, see Sdei Chemed (8:45) and Darkei Teshuva
(115:6) who cites that the custom in a number of communities was to
adopt the lenient approach to this issue.
We should note that
the Darkei Teshuva cites the Beit Meir who argues that there is hardly
any locale that has no non-Kosher animals in the area and thus this
line of leniency is hardly ever relevant. On the other hand,
the Pri Chadash and his supporters believe that Ein Biedro Tamei means
that there are no non-Kosher animals that are milked in the
area. An animal in the zoo does not appear to impinge on the
applicability of this rule according to the Pri Chadash.
It is important to note that even if the strict ruling is adopted, the
lenient opinions can be used as a legitimate Snif Lihakel (an adjunct
consideration) to a lenient ruling. An example of this
approach can be found in Rav David Zvi Hoffman's responsum (Teshuvot
Melamed Lihoil 2:33) where he utilized the lenient opinion as a
consideration to permit a sick individual, for health reasons, to drink
buttermilk that has not been rabbinically supervised. Rav
Soloveitchik seems to be similarly utilizing these lenient opinions as
a consideration to rule leniently, in light of the rule that milk from
non-Kosher animals is not commercially available. (An owner of a milk
factory once told me that it would be economically counterproductive to
introduce non-Kosher milk into the milk that is to be
marketed.) It is vitally important to note, though, that this
is not true in Israel. Rav Zev Whitman the Rav of Tenuva, one
of the world’s great experts regarding Kashrut of milk and
milk products, reports (Techumin 22:459) that camel milk is
(regrettably) commercially available in Israel and is used as an
ingredient in ice cream that is sold in Southern portions of Eretz
Yisrael. This is one of the reasons that the Israeli Chief
Rabbinate is not lenient regarding milk that is not supervised by an
observant Jew (see Rav Eliyahu Bakshi-Doron’s essay in
Techumin volume 23).
On
the other hand, Rav Whitman (Binetiv Hechalav p.40) notes that since
the price of non-Kosher milk is tens of times more expensive than
Kosher milk we need not be concerned that non-Kosher milk was
introduced into the Kosher milk. Thus, he argues using the
leniency advanced by the Pri Chadash that the prohibition of non-Kosher
milk does not apply when the price of non-Kosher milk is far more
expensive than Kosher milk. The basis for this approach is
the Gemara (Avodah Zarah 34b) that teaches that although the Mishna
(Avodah Zarah 29b) prohibits Muryis (oil from pickled fish that
sometimes contains wine) due to concern that non-Kosher wine was added,
the prohibition does not apply when wine is far more expensive than
pure Muryis.
Government
Inspection
The second
consideration is to rely on the government's inspection of milk to
ensure that no non-Kosher milk has been introduced. This
ruling (see Chazon Ish Y.D. 41:4) is based in the Gemara (Avodah Zarah
39b), which states that the observant Jewish supervisor need not
constantly watch the milking. Rather, as long as he has easy
access to view the milking, the milk is acceptable. This is
because the non-Jew milking the cow is afraid
(“Mirtat”) to introduce non-Kosher milk, lest the
Jew see him. It seems clear that as long as the non-Jew is
afraid to put non-Kosher milk into the Kosher milk, one is permitted to
consume the milk. Indeed, many of the great twentieth-century
authorities believe that the Halacha essentially regards responsible
government supervision as Halachically equivalent to Jewish supervision
in the context of the halacha of Chalav Yisrael because it creates a
Mirtat to introduce non-Kosher milk. Rav Moshe Feinstein
(Teshuvot Igrot Moshe Y.D. 1:46) writes, "In a case where there is fear
(“Mirtat”) of government penalty, this rabbinic
prohibition does not apply." Other authorities who
essentially accept this position include the Chazon Ish (Y. D. 41:4,
though see our discussion that will appear Im Yirtzeh Hashem and Bli
Neder next week), Rav Zvi Pesach Frank in case of powdered milk (ad.
loc.), Rav Yosef Eliyahu Henkin (Teshuvot Ivra 38) and Rav Yaakov
Kaminetzsky (Emet LiYaakov p.308).
It
is important to note that according to this approach, it is only
permitted to consume milk poured from a container from a USDA
supervised company (or any other country that strictly supervises milk
production). However, it would not be permitted to drink milk
that a non-Jew pours from his own container (see the story related by
the Aruch Hashulchan Y.D. 115:6). Incidentally, Rav Moshe
Feinstein rules (Teshuvot Igrot Moshe Y.D. 1:46) that this Rabbinic
edict does not apply to a non-observant Jew. Rav Yosef Shalom
Eliashiv and Rav Shmuel Wosner (presented in Binitivot Hechalav, a
recent publication by Tenuva which outlines many of the Kashrut issues
involved with contemporary production of milk and milk products) agree
with this ruling. Others, however, disagree (see Encyclopedia
Talmudit 15:174).
Davar
Shebiminyan
Despite this
leniency, it is well known that Rav Moshe Feinstein encouraged (both in
writing and orally) people to drink milk that has been supervised by
rabbis. The primary reason for this is based on a Gemara
(Beitzah 5a) that “Davar Shebiminyan Tzarich Minyan Acheir
L’hatiro,” which means, essentially, that a
rabbinic edict applies even if its reason no longer applies.
This point was strongly emphasized by the Chatam Sofer in his
aforementioned responsum regarding Chalav Yisrael. Although
the Pri Chadash argues that milk was not a Davar Shebiminyan, namely
that there was no formal prohibition in situations where there is no
concern for a mixture of non-Kosher milk, the custom in most of Europe was not to follow
the Pri Chadash.
However, Rav
Soloveitchik's third reason to rule leniently might overcome this
obstacle. He argues that the edict applies only if a non-Jew
milks the animal but not if a machine milks the cow.
According to this approach, the Rabbinic edict does not apply to the
milk we currently drink even if one assumes that milk was prohibited by
Chazal as a Davar Shebiminyan. One might ask then why should
wine produced by non-Jews be a problem today if the wine is produced
entirely by machinery and there is no hand contact with the
wine. An answer is that the Shulchan Aruch (Y.D. 125:2)
states explicitly that wine produced by non-Jews is prohibited even if
the non-Jew produced the wine indirectly and did not touch the
wine. By contrast, the Shulchan Aruch does not make such an
assertion in the context of the Halachot of milk production.
On the other hand, none of the other twentieth-century Poskim make Rav
Soloveitchik’s argument. Perhaps they believe that
the rule articulated by the Shulchan Aruch in the context of wine
applies to milk as well. This would be especially true
according to the assertion of the Chatam Sofer that milk is a Davar
Shebiminyan similar to wine. A proof to this might be derived
from the accepted practice among all Orthodox Jews is that the rabbinic
prohibition of cheese produced by a non-Jew still applies today even
though the cheese today is produced by machine.
It should be noted, though, that a concern of those who rule strictly
is that if Chalav Yisrael is not observed then this law will be
forgotten by Am Yisrael (see Rav Yaakov Breisch, Teshuvot Chelkat
Yaakov 3:37). The concern is that we will forget to observe
this Halacha when its reason is applicable, such as in countries or
circumstances where the lenient considerations are not
relevant. Accordingly, even those Jews who adopt the lenient
position are reminded by those Jews who accept the strict position,
that sometimes milk can be considered not kosher.
In addition, it is important to note Rav Zev Whitman’s
insight (Techumin 22:460-463) that today a significant number of cows
throughout the world undergo a surgical procedure that renders them
(and the milk they produce) as Treifah. Thus rabbinic
monitoring of the situation is necessary to ascertain that this does
not render the milk Treifah. The Orthodox Union (see Mesorah
Volume 10) has determined that this is not currently a problem in the
United States. One may not assume that this is not a problem
in other parts of the world without consulting a competent Rav.
It
also should be noted that one who is lenient should serve only
Rabbinically supervised milk to those who adopt the strict opinion (see
Rama Y.D. 119:7). On the other hand, those who adopt the
strict approach should not regard those who rule leniently as not being
observant of Kashrut laws, since they are following eminent halachic
authorities such as Rav Soloveitchik and Rav Feinstein (see
aforementioned Rama).
Conclusion
Rav Moshe Feinstein
(Teshuvot Igrot Moshe Y.D. 1:47) writes that, “Most observant
Jews and also many Rabbanim are lenient regarding this matter and God
forbid that one declare that they are acting
improperly.” Indeed, many of Rav
Soloveitchik’s students follow their Rebbe’s
example and adopt the lenient approach to this than issue. We
should note, though, that today a much greater percentage of the
observant community adopts the strict approach to this issue than when
Rav Moshe wrote his Teshuva in 1954.
We should note that the lenient position appears to be especially
cogent because there is no concern for a violation of a Torah
prohibition in this matter. The Shach (Y.D. 118:8) points out
that we are not concerned that the non-Jew added a large amount of
non-Kosher milk because then the adulteration would obvious as
non-Kosher milk looks different than Kosher milk as noted by the Gemara
(Avodah Zarah 35b). Accordingly, since the concern is only
that a small amount of non-Kosher milk was added, there is no
possibility of violating a Biblical prohibition exists since two like
items (Min Bimino, in this case the non-Kosher milk and the Kosher
milk) are nullified on a Biblical level as long as there is a majority
of the Kosher product.
See, though, Pitchei Teshuva (Y.D. 118:1) who questions the reasoning
of this Shach based on the fact that the Kosher and non-Kosher milk are
of different tastes and therefore should be considered a case of two
different items (Min B’sh’eino Mino) where there
must be more than sixty times of the Kosher item to nullify the
non-Kosher item. See, though, the Chazon Ish (Y.D. 41:1) who
explains that there is no prohibition on a biblical level to drink
unsupervised milk since the chance of mixture of non-Kosher milk is so
small.
Next
week we will, Im Yirtzeh Hashem and Bli Neder, explore this question
further and present the reasons behind those who follow the strict
opinion regarding this issue.
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